2006-709, STATE OF NH v. THOMAS LAROSE

Kelly A. Ayotte

No. 2006-709

Hillsborough-southern judicial district

after a jury trial in Superior Court (Lynn DALIANIS, J. The defendant, Thomas Larose, appeals his conviction

marijuana. He was also convicted of a drug offense in Massachusetts. to crack cocaine. In 2001, he was convicted in New Hampshire of possession of I. Background drug problem since he was young; in approximately 1999, he became addicted The jury could have found the following facts. The defendant has had a

Thomas Larose

Kacavas, Ramsdell & Howard, PLLC

to an undercover police officer. See RSA 318-B:2 (2004). We affirm.

orally), for the defendant. THE SUPREME COURT OF NEW HAMPSHIRE, of Manchester (John P. Kacavas

memorandum of law and orally), for the State.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as testified that, after April 27, he did not authorize the informant to buy cocaine p. 2 not authorize the informant to use drugs with him. The undercover officer informant drugs. The defendant testified that he believed that the police did Roof Inn “[m]aybe twice.” In that week, the defendant testified that he sold the between April 27 and May 2, she visited the defendant at his room at the Red least two dozen times,” the informant denied this. The informant testified that testified that for the next week, he and the informant used drugs together “at crack cocaine together in the defendant’s hotel room. Although the defendant That evening, the informant, a friend of hers, and the defendant smoked

the undercover officer the cocaine she had just purchased. The informant drove the defendant back to the Red Roof Inn and, later, gave her cocaine. He kept one package of cocaine for himself and later snorted it. and went into the hotel. When he emerged, he returned to the car and gave arrived at the Extended Stay Hotel, the defendant took the informant’s money told her that, instead, they had to go to the Extended Stay Hotel. When they informant’s car. As she began driving towards the Red Roof Inn, the defendant following her. The defendant came out of the restaurant and got into the The informant drove to the restaurant, with the undercover officer

to keep one of the cocaine packages that he would procure for the informant. was already thinking about, you know, doing some.” He anticipated being able been feeling like using cocaine again. As he explained, “At that point I guess I defendant testified that he agreed to sell the informant drugs because he had the Red Roof Inn where he would purchase cocaine to sell to her. The He told the informant to pick him up at the restaurant and drive him to

they used drugs together. several days coming” and had not seen the informant since October 2004 when “okay.” He testified that as of that date, he “hadn’t been partying at all in the conversation, she again asked him if he would sell her drugs, and he said informant to meet him at a local restaurant. During the same telephone to her. The defendant said that he wanted to think about it and invited the presence, the informant called the defendant and asked if he would sell drugs On April 27, at an undercover police officer’s direction and in his

informant’s presence. They had a mutual friend to whom the defendant had once sold drugs in the had known each other since 2002 or 2003, and had used drugs together. defendant was selling cocaine in Nashua. The informant and the defendant On April 27, 2005, a police informant reported to the police that the

seen “some former associates” at the hotel where he was residing. however, the defendant felt “the urges” to use cocaine again because he had that he would “be done with dealing and done with cocaine.” In April 2005, In late winter of 2004, after a relapse, the defendant promised his family his motion for additional discovery about the informant. p. 3 denying his request for a continuance and initially denying without prejudice to instruct the jury on entrapment; (2) denying his motions to dismiss; and (3) On appeal, the defendant argues that the trial court erred by: (1) failing

for the April 27 sale to the informant. the five drug sales that he made to the undercover officer; he was not indicted cocaine transactions on June 2 and June 7. The defendant was indicted for police arrested the defendant, he and the officer completed two additional which he purchased cocaine, which he then sold to the officer. Before the certain location at which he was waiting, and drive him to another location at prior transactions, the defendant instructed the officer to pick him up at a The officer said that he was and the defendant said “no problem.” As with the returned the call and asked the officer if he was “looking for the same thing.” asking the defendant to call him back. Within five minutes, the defendant The officer called the defendant again on May 24, and left a message

the officer cocaine after taking some for himself. emerged from the car, got back into the officer’s vehicle, and eventually gave nearby bench until a car picked him up. Shortly thereafter, the defendant and, after driving him to a laundromat, gave him $200. The defendant sat on a he wanted to buy another $200 worth of cocaine. The officer met the defendant Five minutes later, the defendant returned the call and the officer told him that On May 12, the officer left a message for the defendant on his cell phone.

downtown Nashua. four “baggies” of cocaine. The officer then drove the defendant to a bar in the defendant money and the defendant went into the hotel and returned with defendant said, “no problem.” They went to the Red Roof Inn, the officer gave told the defendant that he wanted to buy $200 worth of cocaine. The he did. The defendant and the officer went to the officer’s car, where the officer The defendant told the officer to meet him at a Nashua restaurant, which

and looking for a way to make some money.” the mistake of calling [“Nick”]” because he was “completely strung out on drugs defendant if he would sell him cocaine. The defendant testified that he “ma[d]e “help him out for [her] today.” The defendant then called “Nick,” who asked the defendant that “Nick” was “in need of something” and asked the defendant to number of her friend “Nick,” the undercover police officer. She told the On May 2, the informant called the defendant and gave him the phone

informant had no further contact. from the defendant. The officer further testified that, after May 2, he and the commit an offense does not constitute entrapment.

p. 4 However, conduct merely affording a person an opportunity to

committed by a person not otherwise disposed to commit it.

such as to create a substantial risk that the offense would be

him and when the methods used to obtain such evidence were enforcement official, for the purpose of obtaining evidence against enforcement official or by a person acting in cooperation with a law

offense because he was induced or encouraged to do so by a law It is an affirmative defense that the actor committed the

Pursuant to RSA 626:5 (2007):

issues of law in the case. State v. Letourneau instructions are not grounds for reversal if read as a whole they fairly cover the Without the necessary quantum of evidence to support the defense, jury

exercise of discretion. Lavoie, 152 N.H. at 547. review the trial court’s failure to give an instruction for an unsustainable 1. General Principles, 133 N.H. 565, 568 (1990). We

though “defendant testified inconsistently on numerous occasions”). (2001) (court erred by not giving requested instruction on self-defense even 12 (1st Cir. 1996) (quotation omitted); see State v. Haycock, 146 N.H. 5, 9–11 of that defense.” State v. Lavoie circumstantial corroboration in the record.” United States v. Joost, 92 F.3d 7, specific defense if there is some evidence to support a rational finding in favor may have weight if it is interlaced with considerable detail and has some “A trial court must grant a defendant’s requested jury instruction on a 1161, 1165-66 (10th Cir. 1986), “a defendant’s account, though self-serving, statements, standing alone, will not suffice,” United States v. Ortiz, 804 F.2d 809, 815 (1st Cir. 1988). Moreover, while “conclusory and self-serving contradicted by irrefutable evidence.” United States v. Rodriguez, 858 F.2d not “give weight to allegations which are intrinsically improbable or flatly when it denied his request for a jury instruction on entrapment. because of police entrapment. He asserts, therefore, that the trial court erred conviction.” State v. Graham, 614 N.W.2d 266, 272 (Neb. 2000). A court need The defendant first argues that he sold cocaine to the undercover officer the existence of a fact, but must be real and of such quality as to induce scintilla, evidence cannot be vague, conjectural, or the mere suspicion about A. Jury Instruction on Entrapment means more than a minutia or a scintilla of evidence. Id. “To be more than a , 152 N.H. 542, 547 (2005). “Some evidence”

II. Analysis p. 5 5

the part of the defendant to engage in the alleged criminal conduct. See two elements: (1) government inducement; and (2) the lack of predisposition on Under New Hampshire law, therefore, the entrapment defense consists of at p. 5 562-64 (3d ed. 2007). 387 (R.I. 2001). See generally 2 W. LaFave et al., Criminal Procedure § 5.2(a), Tejeda, 974 F.2d 210, 217 (1st Cir. 1992); State v. Verrecchia, 766 A.2d 377, 1339, 1343 (11th Cir. 2002), cert. denied, 537 U.S. 927 (2002); United States v. (2004), and cert. denied, 541 U.S. 956 (2004); United States v. Ryan, 289 F.3d States v. Jackson, 345 F.3d 59, 66 (2d Cir. 2003), cert. denied, 540 U.S. 1157 63 (1988); United States v. Daniel, 3 F.3d 775, 778 (4th Cir. 1993); United in the majority of jurisdictions. See Mathews v. United States, 485 U.S. 58, 62- 121 N.H. at 771-72. In this respect, New Hampshire law comports with the law objective test.” Id Little, entrapment defense exists . . . involve[s] elements of both the subjective and the other an objective test.” State v. Little In New Hampshire, “the determination of whether a legitimate entrapped is made by reference to one of two criteria, one a subjective test and Campbell, 110 N.H. 238, 241 (1970). crime” and the police only furnished him an opportunity to do so, State v. 772 (quotation omitted), to determine whether he was “ready to commit the examine the defendant’s “own conduct and predisposition,” Little, 121 N.H. at charged.” State v. Groulx, 106 N.H. 44, 47 (1964) (quotation omitted). We also conduct . . . [that] may . . . have induced the accused to commit the crime officials and their agents to determine whether they engaged in “the kind of

. at 771. Thus, we look at the conduct of law enforcement

“Generally, the determination of whether a defendant has been of the defendant’s predisposition to commit the alleged crime is irrelevant. Id. opportunity to commit the crime. Id. at 770. Under the objective test, evidence enforcement officials and their agents in providing the defendant with an contrast, the objective test focuses exclusively upon the conduct of law unless their conduct is so outrageous as to offend due process. Id. By the subjective test, the actions of government officials “are not critical factors” have been predisposed to commit the crime, the defense will fail. Id. Under commit the crime. Id. Under the subjective test, if the defendant is found to subjective test focuses upon the intent or predisposition of the defendant to

309; see also Lavoie, 1 p. 5 52 N.H. at 547. the defense, the trial court should not submit the issue to the jury. See id. at defendant fails to meet his burden of producing some evidence in support of entrapment raises an issue of fact to be determined by the jury, if the officers.” State v. Bacon, 114 N.H. 306, 308 (1974). While ordinarily defendant from being convicted of a crime manufactured by law enforcement The general purpose of the affirmative defense of entrapment “is to prevent a context of each example illustrate possible government

p. 6 suicidal and in desperate need of money. The background and food and rent; [and] (7) told defendant that she (the agent) was when defendant had lost his job and needed money for his family's

prohibition); (6) used repeated suggestions which succeeded only of one former war buddy for another to get liquor (during experience and withdrawal symptoms; (5) played upon sentiment

defendant’s sympathy for informant’s common narcotics and dogged insistence until defendant capitulated; (4) played upon defendant, and were belligerent; (3) engaged in forceful solicitation

defendant’s family; (2) called every day, began threatening the government officials: (1) used intimidation and threats against a jury (or finding entrapment established as a matter of law) where Courts have found a basis for sending the entrapment issue to the

“An ‘inducement’ consists of an ‘opportunity’ plus

2. Inducement

Gendron, 18 F.3d at 961. government’s taking advantage of an alternative, non-criminal type of motive.” typically, excessive pressure by the government upon the defendant or the commit a crime.” United States v. Gendron something else – “[I]nducement . . . goes beyond providing an ordinary opportunity to arrest on the spot or later.” Jacobson, 503 U.S. at 549. the opportunity to buy or sell drugs and, if the offer is accepted, make an omitted). “Thus, an agent deployed to stop the traffic in illegal drugs may offer solicitation. It is more even than a successful solicitation.” Id. (citation affirmative response.” Sparks, 603 A.2d at 1283. “It is more than a inducement, by its very nature, contemplates more than a request and an an opportunity to commit an offense does not constitute entrapment”). “An United States, 503 U.S. 540, 550 (1992); RSA 626:5 (“merely affording a person (quotations omitted), cert. denied, 513 U.S. 1051 (1994); see Jacobson v.

this burden. whether the trial court erred when it ruled that the defendant failed to meet N.H. at 771-72. With these general principles in mind, we now analyze was not predisposed to engage in it. See Lavoie, 152 N.H. at 547; Little, 121 that: (1) the charged offense was induced by government officials; and (2) he (Md. 1992). He must produce “some evidence” to support a rational finding v. State, 603 A.2d 1258, 1283 (Md. Ct. Spec. App.), cert. denied, 610 A.2d 797 defense. See Lavoie, 152 N.H. at 547; see also Tejeda, 974 F.2d at 217; Sparks entrapment, a defendant must produce “some evidence” on both prongs of the 626:7 (2007). Little, 121 N.H. at 772. Thus, to be entitled to an instruction on the burden of proving entrapment by a preponderance of the evidence, see RSA Because it is an affirmative defense, see RSA 626:5, the defendant bears p. 7 Also, in Sherman

that he was not sure that he wanted to do it and that he had to think about it. Further, in Sherman he would sell drugs to her. The first time he was asked, the defendant said symptoms. Id distinguishable from Sherman v. United States. at 371. Here, the informant merely asked the defendant twice if accused’s sympathy by feigning physical suffering due to withdrawal before the informant contacted him, he had been “partying.” This case is, thus, after “a number of” repeated requests and by repeatedly doing drugs with him, his own testimony establishes that even after the informant solicited the officer had the police informant not induced him to return to his drug addiction, the accused agreed to sell the informant drugs only While the defendant implies that he would never have sold cocaine to the him “out of the blue” and asked him to sell drugs to her. informant here, knowing that the defendant had sold drugs in the past, called mutual attempts to overcome narcotics addiction. Id. at 373. Conversely, the accidentally and allowing their conversation gradually to progress to their First, in Sherman the informant cultivated a relationship with the accused by running into him

within several days of the informant’s first contact. Id. at 371, 376. induced to sell them to the informant, the defendant had been using drugs was being treated for drug addiction and was trying to avoid drugs before being him selling drugs to a mutual friend. Moreover, while the accused in Sherman defendant because she had used drugs with him in the past and had observed Sherman, 356 U.S. at 371. By contrast, the informant here knew the at a doctor’s office where they were being treated for narcotics addiction.

engaged in any to the charged offenses, there is no evidence at all that the undercover officer where the Court found inducement as a matter of law. that the defendant was induced to commit the charged offenses. With respect, 356 U.S. 369, 373 (1958), defendant, it did not constitute “some evidence” to support a rational finding Here, even if we view the evidence in the light most favorable to the

Id

RSA 626:5. not inducement as a matter of law. See Sparks, 603 A.2d at 1283; see also testimony as true, the officer merely asked him for drugs. Mere solicitation is

improper inducement. Rather, even taking the defendant’s

. at 961-62 (quotations, citations, brackets and ellipsis omitted).

who are ready to commit it. such an offense will be committed by persons other than those of persuasion or inducement which create a substantial risk that overreaching -- of its having acted unfairly by employing methods the defendant twice is not inducement. See p. 8 None of this constitutes improper inducement. That the informant asked

just, you know, that you could do it. hundred dollars would be like a minimum amount, you know. It’s a hit is enough. But for someone out of the blue to call you, two you start using drugs, you know, any purchase, any chance to get keep a package. And that would be the case. Not to say that once was that I could help her out. I could keep a package. She could good deal and still keep some for yourself. . . . So, the anticipation

charged offenses. sufficiency of the defendant’s proof that he was not predisposed to commit the jury instruction on entrapment. Accordingly, we need not address the to commit the charged offenses is fatal to his claim that he was entitled to a The defendant’s failure to produce “some evidence” that he was induced

that’s enough to be able to give someone, another wholesaler, a you know, when the amount is a ball, two hundred dollars, well something for somebody and you take a piece for yourself. And, In the way of doing things at the time, generally speaking, you buy

cocaine for himself. the promise of a good cocaine customer and the ability to keep some of the P.2d 1088 (Wash. 1995). Nor is it inducement that the defendant was lured by State v. Trujillo, 883 P.2d 329, 332 (Wash. Ct. App. 1994), rev. denied, 892

enable him to keep a package for himself. As he testified: selling her cocaine (to give to “Nick”), the amount of cocaine involved would testified that he assented because he believed that if he “helped her out” by she could not procure cocaine as usual because of time constraints. He “really good customer, Nick, who got a ball [of cocaine] every week,” for whom Additionally, in Sherman asked him twice if he would sell cocaine to her, telling him that she had a viewed in the light most favorable to the defendant, is that the police informant sale to the informant for which he was never charged. The alleged inducement, The only other inducement to which the defendant points concerns the

Id. at 373. supporting the defendant’s entrapment defense is his own self-serving account. testimony of the government’s witnesses, while here, the sole evidence Court found inducement as a matter of law based upon the uncontroverted notified the police before any sales took place. Id. Finally, in Sherman, the accused only after repeatedly buying drugs from him, while here, the informant

“okay.” He never said “no.” The second time he was asked, within moments of the first time, he said defendant’s request to proceed pro p. 9 The record reveals that one week before trial, the trial court granted the 9

unsustainable exercise of discretion. available to assist him as stand-by counsel. We hold that this was not an motions for discovery that he had filed lacked merit, and his attorney was still because the defendant had a week before the trial to prepare, almost all of the discovery motions. The trial court denied the request for a continuance evidence necessary to establish probable cause. Hoffa v. United States continuance so that he could “review courtroom procedures” and file certain police need not halt a criminal investigation as soon as they have the minimum counsel. At the hearing on this request, the defendant asked for a one-month discretion in managing the proceedings before it,” In the Matter of Connor & generally. “There is no [federal] constitutional right to be arrested,” and the for additional discovery about the informant. “The trial court has broad continue to sell and consume drugs, which damaged his health and society se and to retain his attorney as stand-by his request for a continuance and initially denied without prejudice his motion Constitution by not arresting him after the first sale, thereby permitting him to Finally, the defendant contends that the trial court erred when it denied police violated his due process and equal protection rights under the Federal motion for more discovery were not unsustainable exercises of discretion. 789. We conclude that the denials of his request for a continuance and his C. Motions for Continuance and Discovery 2. Federal Constitution case. See State v. Jaroma, 137 N.H. 562, 571-72 (1993); Emery, 152 N.H. at demonstrates that the decision was clearly unreasonable to the prejudice of his about pre-trial discovery and motions to continue only if the defendant discovery, State v. Emery, 152 N.H. 783, 789 (2005). We will disturb decisions Connor, 156 N.H. ___, ___, 931 A.2d 1252, 1254 (2007), including pre-trial

The defendant also argues that dismissal was required because the

when it denied the defendant’s motions to dismiss. U.S. 293, 310 (1966). We conclude, therefore, that the trial court did not err and warrants no extended consideration. See, 385 government and is not pertinent here. This argument, therefore, lacks merit New Hampshire Constitution. Part I, Article 8, however, concerns open motion to dismiss on the ground that the police violated Part I, Article 8 of the The defendant next asserts that the trial court erred by denying his

1. State Constitution

322 (1993).

B. Motions to Dismiss p. 10 10

DUGGAN, GALWAY and HICKS, JJ., concurred.

Affirmed

argument for our review. We therefore decline to consider it. See him of due process, he has failed to demonstrate that he preserved this for a continuance and motion for additional discovery, the trial court deprived Although on appeal, the defendant contends that by denying his request

court granted. the record shows that once the State opened the door to her testimony, the trial With respect to his motion for additional discovery about the informant, State of N.H. (State v. San Giovanni), 154 N.H. 671, 677 (2007).

for additional discovery constituted an unsustainable exercise of discretion. demonstrate that the trial court’s initial denial without prejudice of his motion it before any questioning. Given this record, the defendant has failed to

the defendant’s request for discovery and gave him time to review