In DeGina, the Court of Appeals found reversible error in a trial court's use of an entrapment-defense instruction over defense objection.Summary of this case from Nowicki v. Cunningham
Argued November 18, 1988
Decided December 20, 1988
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Lawrence N. Martin, Jr., J.
Julia Pamela Heit for appellant. Carl A. Vergari, District Attorney (Richard E. Weill of counsel), for respondent.
This case, involving narcotics sales, presents two questions: first, was it error for the trial court to instruct the jury on the affirmative defense of entrapment over defendant's consistent protestations that he was not advancing an entrapment defense, but was in fact putting forth a different defense, and second — if error — was the error harmless?
Defendant's position both at trial and on appeal has been that he did not raise an entrapment defense and that it was error to charge the jury on that defense. Defendant claims that the entrapment instruction violated his fundamental right to present a defense of his own choosing and cannot be deemed harmless in any circumstances. Alternatively, he contends that because the entrapment charge shifted the burden of proof of criminal intent to him, permitted the jury to consider his predisposition to commit the crimes charged, and undermined the defense he actually raised, the error was prejudicial in this case.
The Appellate Division concluded that the defense was not entrapment and that the trial court's instruction therefore constituted error. We agree. The Appellate Division, however, found the charge error harmless, and in that conclusion we cannot concur. While we need not reach defendant's broader argument that it is invariably reversible error to charge a jury on an affirmative defense disavowed by defendant, on this record the error cannot be deemed harmless.
Synopsis of the Trial Record
Resolution of both questions presented requires a summary of relevant portions of the trial record.
In a brief opening, defense counsel stated that, although defendant did not have the burden of proof, the evidence would show that an undercover agent — John DiDomenico — kept after his client to sell him drugs. "He was trying to ensnare an innocent man" into selling something he didn't want to sell. Defendant, however, did not sell the agent drugs. Counsel explained that, in order to "get this man off his back," defendant ultimately sold him what turned out to be talcum powder, after which the agent, a "professional deceiver," invented a case of drug sales against his client.
The People's key witness was the undercover narcotics agent, John DiDomenico, who testified that he had been introduced to defendant under the assumed name Frank DeMarco after telling a police informant he wanted to buy cocaine. DiDomenico met with defendant a number of times in the following days for the purpose of making a purchase, but on each occasion defendant said he had been unable to obtain any cocaine. Eventually, DiDomenico told defendant that he was tired of these abortive meetings, at which point defendant gave him his home telephone number. DiDomenico subsequently arranged to meet defendant outside a bar, where they agreed that DiDomenico would purchase a gram of cocaine. When he arrived, defendant insisted that he first needed the money to buy the cocaine, and DiDomenico gave defendant $125 — which the officer conceded may well have been paid out of his own funds. Defendant returned several minutes later with an envelope that he claimed contained cocaine. Laboratory analysis later showed that what defendant had sold DiDomenico for his $125 was talcum powder, not cocaine.
According to DiDomenico, after he insisted that defendant make restitution, defendant and his friend, codefendant Robert Sanzo, gave him a tinfoil packet of opium and then offered to sell him opium and amphetamines that Sanzo had acquired from the drugstore where he worked. Having obtained a sample of the pills from Sanzo, DiDomenico agreed to purchase the drugs. He testified that defendant was present during the transaction, but it was Sanzo who actually possessed and delivered the drugs. Subsequent laboratory analysis showed the substances were indeed opium and amphetamines.
The facts of this transaction formed the basis for a separate indictment of Sanzo. The jury was given a limiting instruction that this evidence was not to be considered against defendant, who had not been involved.
The only defense witness was defendant's mother, who testified that during the month when DiDomenico claimed he bought drugs from defendant, she had received 15 to 20 telephone calls from a man named Frank, who asked to speak to defendant but would not leave a telephone number. She heard her son speak to Frank only once, during which defendant yelled at Frank. Frank came to her house toward the end of the month, when defendant and his good friend Sanzo were working in the yard. Frank called Sanzo over and spoke to him alone. Sanzo later told her that if Frank telephoned again, he — Sanzo — wanted to speak to him.
At a precharge conference, the prosecutor requested an entrapment instruction, arguing that defendant had based his defense on the claim that he "could not form the necessary intent to, I believe this to be the defense, although I'm not sure, at the conclusion of the case, that he could not form an intent to sell these drugs, simply because of the fact that he was trapped." Over defense objection, the court declared that it would charge the jury on the entrapment defense.
In summation, defense counsel repeated the claim he had made in his opening — that DiDomenico was trying to "ensnare" his client by his constant efforts to get him to sell drugs, leading to defendant's sale of talcum powder simply to get a "pest off his back." That transaction, counsel argued, was the key to the entire case. Counsel asserted that it was Sanzo alone who later sold drugs to DiDomenico, and that DiDomenico had fabricated the story of defendant's involvement simply because he was infuriated and humiliated at having been tricked into buying talcum powder, possibly even with his own money.
The court thereafter instructed the jury on the affirmative defense of entrapment, noting that the burden of proving all material elements of the charged crimes beyond a reasonable doubt was on the People, but that defendant then bore the burden of proving the affirmative defense of entrapment by a preponderance of the evidence. After reading the elements of the defense from Penal Law § 40.05, the trial court again noted that defendant "has the burden of proving by a preponderance of the evidence that he was actively induced or encouraged to commit a crime he would not otherwise be disposed to commit and was thus `entrapped' under the law." Defendant at this point reiterated that this was not the theory of his defense. During deliberations, and shortly before the return of a guilty verdict, the jury asked for the definition of entrapment. The court reread only the statutory definition of entrapment and its instruction on defendant's burden of proof.
Defendant was convicted of several counts of criminal sale of a controlled substance, and the Appellate Division affirmed. While concluding that it was error to charge entrapment, the Appellate Division termed the error harmless beyond a reasonable doubt "given the overwhelming evidence regarding defendant's intent to commit the crimes for which he was convicted" ( 140 A.D.2d, at 538). We now reverse.
The entrapment defense was introduced in New York — one of the last States to recognize it — in 1967, as part of the current Penal Law. Penal Law § 40.05 sets forth the elements of the defense: "that the defendant engaged in the proscribed conduct because he was induced or encouraged to do so by a public servant, or by a person acting in cooperation with a public servant, seeking to obtain evidence against him for purpose of criminal prosecution, and when the methods used to obtain such evidence were such as to create a substantial risk that the offense would be committed by a person not otherwise disposed to commit it." As it is designated an affirmative defense, the burden to establish these elements by a preponderance of the evidence is placed on the defendant — unlike other defenses, as to which the defendant has no burden and which the People must disprove beyond a reasonable doubt (Penal Law § 25.00, ).
A defendant thus assumes a substantial burden in asserting entrapment. Indeed, New York imposes a heavier burden than either the Federal courts, where entrapment is an ordinary defense — not an affirmative defense — or the Model Penal Code and those States following its formulation, where entrapment is a so-called "objective" affirmative defense. In contrast to Penal Law § 40.05, which requires that defendant prove that he or she had no disposition to commit the acts charged (see, People v Calvano, 30 N.Y.2d 199, 203-204), under the Model Penal Code approach the character of the particular defendant is not a relevant subject of inquiry, the pertinent question being the nature of the police conduct and whether it was such as to cause an ordinary person to commit the crime (ALI Model Penal Code § 2.10, comment, at 20 [Tent Draft No. 9]).
It should be borne in mind, however, that affirmative defenses were introduced into the law not "as a hardening of attitudes in law enforcement [but] rather as a civilized and sophisticated amelioration." (People v Patterson, 39 N.Y.2d 288, 306 [Breitel, Ch. J., concurring].) As such, it is necessary to guard against abuse of affirmative defenses "to unhinge the procedural presumption of innocence" or "to undermine the privilege against self incrimination by in effect forcing a defendant in a criminal action to testify in his own behalf." (Id., at 305.)
Applying these legal standards to the factual record in this case, we agree with the conclusion reached by the Appellate Division: "a fair reading of the record establishes that the entrapment defense was not raised" ( 140 A.D.2d, at 538, supra). Defendant's trial theory had in common with a defense of entrapment the premise of overreaching and misconduct by a police officer. But defendant did not contend that he was "induced or encouraged" to engage "in the proscribed conduct." (Penal Law § 40.05.) His defense was to deny engaging in the "proscribed conduct" at all; he sold the officer only talcum powder. Defendant sought to have the jury disbelieve DiDomenico as to any sales of controlled substances by him, and to believe instead that the officer sought retaliation by falsely involving him in criminal charges.
Nor did counsel's use of the word "ensnare" in his opening and summation, convert his defense to one of entrapment. Counsel used the word "ensnare" to describe DiDomenico's repeated efforts to cause defendant to sell him drugs. DiDomenico's alleged overzealousness was relevant to defendant's theory that the officer was angered by what actually happened and ultimately framed him. Counsel was not forbidden to urge the jury to draw these inferences at peril of being saddled with the burden of proving a full-blown entrapment defense.
Addressing the dissent, defendant never adduced any evidence to show, nor did he argue, that following the talcum powder incident he had sold the opium and amphetamines to DiDomenico only because of the officer's active encouragement. Notably, defendant also did not argue that the jury could infer, if they disbelieved his denial of the offenses, that he had sold the drugs as a result of the officer's encouragement before the talcum powder transaction. The import of the dissent is that a defendant who found himself in the situation depicted by defense counsel — pursued by a police officer seeking to make a drug purchase and then framed when he failed to provide drugs — must face a Hobson's choice at trial: defendant would be forced either to avoid eliciting or commenting on the very evidence that provided an explanation of the officer's motive to fabricate the charges, or mount a full-scale entrapment defense. The dissent's characterization of the defense proffered in the case as merely an artful attempt by counsel to smuggle in the concept of entrapment assumes the falsity of defendant's version of events, which it is not our province to do.
Having concluded from a fair reading of the record that defendant did not raise the entrapment defense, we further agree with the Appellate Division that it was error to accede to the People's request for such an instruction.
Imposing the burden of proving entrapment on defendant, who had not raised it, constituted an abuse of the affirmative defense in derogation of defendant's right to have the State bear the entire burden of proof. Moreover, a trial court is not authorized to instruct the jury on legal principles that are not applicable to the particular case (CPL 300.10). As we have recognized, jury instructions have singular significance in criminal trials, where a charge error may well result in the deprivation of a fair trial and require reversal (see, e.g., People v Owens, 69 N.Y.2d 585, 589). Whether or not reversible error in every case, the erroneous instruction prejudiced defendant in at least two respects.
First, a defendant unquestionably has the right to chart his own defense (see, People v Martin, 66 A.D.2d 995, 996), and in this case the entrapment charge undermined the defense chosen by defendant. In telling the jury that when counsel used the word "ensnare" he was really raising the defense of entrapment, the court's instruction effectively impaired the success of the different inferences urged by defendant. Furthermore, by informing the jury that defendant was claiming he had sold the drugs as a result of the officer's inducement, the trial court placed defendant in the midst of contradictory defenses on the critical question of whether he had or had not sold any drugs. Defendant was arguing that he had not sold any drugs to DiDomenico; the entrapment defense proceeded on the premise that he had sold drugs to DiDomenico. While a defendant is not forbidden to do this (see, People v Butts, 72 N.Y.2d 746 [decided today]), it is plainly a hazardous tactic, for it not only risks confusing the jury as to the nature of the defense but also may well taint a defendant's credibility in the eyes of the jury. Indeed, only recently a Supreme Court Justice aptly termed such a strategy "self-penalizing." (See, Mathews v United States, 485 US ___, 108 S Ct 883, 889 [Scalia, J., concurring].) Certainly it is not a strategy that should be thrust on a defendant who has not chosen it.
Second, the court imposed on defendant an affirmative burden of proof he had not undertaken by his defense theory. The jury was charged that defendant had the burden of establishing by a preponderance of the evidence that DiDomenico actively enticed him into committing the crime, and that without such enticement defendant would not have been disposed to commit the crime. Understandably, in light of his quite different defense, defendant did not attempt to present evidence, through his own witnesses or through cross-examination, to demonstrate that DiDomenico actively encouraged or induced him to sell drugs after the talcum powder incident, as would have been required to prevail upon a claim of entrapment. Nor did defendant make any affirmative effort to meet his burden of showing a lack of disposition to commit the charged crimes, as it was his claim that they had never happened at all. Thus, the court's charge imposed upon defendant an affirmative burden that the jury was bound to conclude he had failed to sustain (see, People v Alwadish, 67 N.Y.2d 973, 974).
While it is true, as the People point out, that the trial court initially, and properly, charged the jury that they were not to reach the affirmative defense of entrapment unless and until they determined that the People had met their higher burden of proving the elements of the charged crimes, we do not therefore conclude that defendant could not have been prejudiced by the imposition of a burden he was unprepared to meet. In that defendant advanced only a defense — as to which he had no affirmative burden of proof (see, People v Albright, 65 N.Y.2d 666) — the suggestion that he had assumed a burden of proof in connection with his defense itself had the potential to mislead the jury (People v Victor, 62 N.Y.2d 374, 378 [reversal required where alibi charge may have misled jury as to defendant's burden]). We note, moreover, that the jury requested that the instruction on entrapment be reread during deliberations, demonstrating that they did in fact consider the issue injected by the trial court's erroneous acquiescence in the District Attorney's request to charge.
Finally, we reject the Appellate Division's conclusion that the evidence of defendant's intent was overwhelming and consequently, prejudice notwithstanding, the erroneous instruction was harmless. If DiDomenico's testimony were fully credited, then the evidence of defendant's intent to sell drugs was indeed overwhelming. But the defense urged was not that defendant had no intent to sell DiDomenico narcotics; the defense urged was that he simply had not done so, and that the officer's testimony was a fabrication. Overwhelming evidence of intent would be relevant to the question whether the defense of entrapment had been made out, but was not proof whether the sales took place at all. In addition, DiDomenico's testimony was the sole source of evidence both of defendant's intent and of the sales. It was this very testimony that defendant sought to have the jury discredit. The erroneous instruction deprived defendant of the opportunity to have the jury evaluate the officer's testimony in assessing defendant's claim accurately. It is no answer to say that the evidence of intent proffered by the officer nonetheless rendered that error harmless.
While we have concluded that defendant's remaining contentions lack merit, the erroneous entrapment charge unduly prejudiced defendant and requires a new trial.
Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.
Chief Judge WACHTLER and Judges SIMONS, TITONE and HANCOCK, JR., concur with Judge KAYE; Judge ALEXANDER dissents and votes to affirm in a separate opinion in which Judge BELLACOSA concurs.
Order reversed, etc.
Because I believe, contrary to the position advanced by the majority, that a fair reading of the record unquestionably establishes that defendant raised an entrapment defense in every conceivable way short of reading the statutory definition to the jury, I conclude that the lower court was fully justified in instructing the jury on the law of entrapment over defense counsel's objection and thus committed no error. Further, because there is inherent in the majority view the troubling potential for abuse that would permit clever defense counsel to obliquely raise the entrapment issue at trial while avoiding the court's instruction that would enable the jury to properly evaluate the defense, thereby evading the affirmative evidentiary requirements that criminal defendants urging entrapment must satisfy, I respectfully dissent.
Entrapment is "an affirmative defense that the defendant engaged in the proscribed conduct because he was induced or encouraged to do so by a public servant, or by a person acting in cooperation with a public servant, seeking to obtain evidence against him for purpose of criminal prosecution, and when the methods used to obtain such evidence were such as to create a substantial risk that the offense would be committed by a person not otherwise disposed to commit it" (Penal Law § 40.05). Being an affirmative defense, the People need not disprove entrapment beyond a reasonable doubt and it is defendant who bears the burden of proving the defense by a preponderance of the evidence (Penal Law § 25.00). Thus, a defendant urging entrapment assumes the burden of showing that the police actively encouraged or induced him to commit a crime when he was not predisposed to do so (see, People v Martin, 66 A.D.2d 995).
Upon close examination of the record, it is at once apparent that defendant's attorney repeatedly attempted to portray his client as having been victimized by the deceptions and machinations of the undercover officer. In his opening, the attorney described the officer as "a professional deceiver" who "befriended" and "took advantage" of defendant. He recounted numerous phone calls placed by the undercover officer to defendant's residence in an attempt "to ensnare an innocent man, Mr. Scott Degina, into selling something that an innocent man didn't want to sell". In a similar vein, the attorney suggested that the officer was "interfering with [defendant's] tranquility and his lifestyle" and that he was "trying to force [defendant] to do something he doesn't want to do". The allusion to the entrapment defense here could hardly be more obvious; defense counsel was clearly asking the jury to believe that defendant was actively encouraged to commit a crime he was not predisposed to commit.
The fact that an entrapment defense was being pursued is further demonstrated by the tenor of the cross-examination where, in questioning the undercover officer, counsel repeatedly attempted to elicit statements suggesting that defendant had consistently resisted the seductions of the police:
"Defense Counsel: Isn't it true, Sir, that every time that you called Mr. Degina, if he answered the phone, or every time you tried to make contact with Mr. DeGina, he didn't want to speak to you, and he didn't want to have anything to do with you?
"District Attorney: Objection form of the question. Compound.
"The Court: The objection is sustained.
"Defense Counsel: Isn't it true that Mr. DeGina wasn't interested in speaking to you?
"Witness: No, that's not true.
"Defense Counsel: Isn't it correct, Sir, that you were promoting the transaction?
* * *
"Defense Counsel: Isn't it true that Mr. Degina told you to stop calling his house? Scott DeGina; isn't that true?
"Witness: I don't recall.
* * *
"Defense Counsel: And you said — and isn't it a fact, Sir, that you told Mr. DeGina, when you handed him the money, you told him, `I know where you can get it.' Isn't that true? `I know where you can get the cocaine.' When you gave him the $125.00?
"Defense Counsel: Isn't it true that he showed absolute [reluctance]?
"District Attorney: Objection to form. Argumentative.
"The Court: Yes, the objection is sustained.
"Defense Counsel: Isn't it true that he was reluctant?
"District Attorney: Objection. Form.
"The Court: Objection is sustained.
"Defense Counsel: Isn't it true that he did not want to?
"District Attorney: Same objection, Judge.
"The Court: You are asking for an opinion. The objection is sustained.
* * *
"Defense Counsel: Isn't it true that Mr. Degina said he did not want to sell you [cocaine] for $125.00.
"Witness: No, it's not true.
* * *
"Defense Counsel: You are familiar with buying drugs, you've done it a lot; right?
"Defense Counsel: Would you say it's common practice for an enthusiastic would-be seller of drugs to sell a good customer talcum powder?
"District Attorney: Objection to the form of the question.
"The Court: Objection sustained."
That the foregoing exchange is relevant to the issue of predisposition to commit the crimes charged and is designed to counteract such an inference is self-evident. It is clear that defense counsel knew exactly what he was doing in presenting for the jury's consideration the picture of an innocent man who was lured by the police into a drug transaction he neither sought nor desired.
The majority appropriately notes (majority opn, at 773) that during his summation defense counsel repeated his contention that the undercover officer had been trying to "ensnare" defendant. The majority fails to mention, however, that defense counsel also explicitly referred to a very well-known entrapment case in suggesting that defendant's predicament was "more serious than the DeLorean case" (alluding to the case of United States v DeLorean in which a famous car manufacturer was acquitted of drug-related charges by reason of entrapment). This telling reference is directly at odds with the position advanced by defendant in his brief to us that "[e]ven after the court informed counsel that it intended to charge the affirmative defense of entrapment, counsel in his closing summation did not conform his arguments to encompass this defense". It is simply impossible to interpret defense counsel's allusion to the DeLorean case in any way other than as a deliberate effort, consistent with counsel's trial strategy up to that point, to impress the entrapment defense upon the collective conscience of the jury, even while urging that defendant played no part in the crimes charged.
Given the ample record evidence demonstrating defense counsel's deliberate strategy to raise the entrapment defense at trial, I cannot agree with the majority's conclusion that charging the jury on the law of entrapment was error. Indeed, it may not be disputed that the trial court was obligated to instruct the jury on the material legal principles applicable to the case (CPL 300.10). Not delivering the entrapment charge, in the circumstances presented, would have breached this obligation and left the jury without the legal tools necessary to cope with the evidence adduced at trial (see, People v Magliato, 68 N.Y.2d 24 [where defendant raises justification defense, court is obligated to instruct jury on elements of that defense]).
Nor does requiring the entrapment charge on these facts present defendant with a "Hobson's choice" (see, majority opn, at 776, n 2) requiring him to pursue a particular defense strategy not based on entrapment only at the peril of being saddled with an unwanted entrapment charge at the end of the trial. Here, it was defendant who, by intentionally raising the affirmative defense, all but guaranteed that the court would deliver the charge. Defense counsel's repeated references to "ensnaring" and his obvious attempts to persuade the jury that defendant was not predisposed to committing the crimes charged would have been unnecessary if the strategy of the defense were limited solely to proving that the undercover officer framed defendant out of anger after defendant sold him talcum powder instead of cocaine.
Holding defendant to his chosen defense strategy does not, as suggested by the majority, "[assume] the falsity of defendant's version of events" (see, majority opn, at 776, n 2), but simply ensures that his version of events, or versions if more than one, are properly reflected in the court's instructions to the jury. In this regard, the fact that defense counsel apparently also pursued a parallel strategy by which he attempted to portray defendant as a nonparticipant in the drug transaction who was framed by the undercover officer neither diminishes nor eliminates the entrapment defense as it is recognized that a criminal defendant may maintain inconsistent defenses (see, Mathews v United States, 485 US ___, 108 S Ct 883, 887-888; People v Butts, 72 N.Y.2d 746, 750 [decided today]). Inasmuch as the entrapment defense was clearly and intentionally raised at trial, had the court failed to instruct the jury in respect thereto, defendant would have succeeded in evading the affirmative proof obligations of that defense imposed by law, thereby misleading the jury into believing that the People carried the burden of disproving entrapment beyond a reasonable doubt.
To permit a criminal defendant, through his attorney, to subtly, but clearly, raise an affirmative defense at trial while avoiding the proof requirements of that defense and the charge pertaining thereto is patently improper and tends to undermine the fairness of the adversarial system. A fair trial is not a trial fair to one side alone but rather one which scrupulously respects and protects the legal rights of the criminal defendant while affording the prosecution a genuine unfettered opportunity to prove the defendant's guilt beyond a reasonable doubt (see, Hayes v Missouri, 120 U.S. 68, 70 [impartiality of jury "requires not only freedom from any bias against the accused, but also from any prejudice against his prosecution. Between him and the state the scales are to be evenly held"]). This is simply not possible where, as here, the defense attorney is permitted, through the artful manipulation of language, to offer an entrapment defense for the jury's consideration while denying that same jury, by objecting to the court's instruction, essential knowledge of the legal principles applicable to that defense. Accordingly, I would affirm the order of the Appellate Division.