NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
16-P-697 Appeals Court
COMMONWEALTH vs. ROBERT F. COOPER.
No. 16-P-697.
Middlesex. March 8, 2017. - May 25, 2017.
Present: Green, Wolohojian, & Sullivan, JJ.
Controlled Substances. "School Zone" Statute. Words, "Accredited."
Complaint received and sworn to in the Cambridge Division of the District Court Department on March 29, 2012.
The case was tried before Michelle B. Hogan, J.
Kathleen A. Kelly for the defendant. Jason R. Chandler, Assistant District Attorney, for the Commonwealth.
GREEN, J. Among the challenges to his conviction of
distribution of a class E substance in a school zone, in
violation of G. L. c. 94C, §§ 32D(a) and 32J, the defendant
contends that the evidence was insufficient to establish that
the pills seized at the time of his arrest were a class E
substance (gabapentin), or that the school furnishing the basis 2
for his school zone violation was an "accredited private
preschool" within the meaning of § 32J. We conclude that the
evidence was sufficient to establish that the pills were a class
E substance and, discerning no merit in his other claims of
error as to that charge, affirm his conviction on the charge of
distribution of a class E substance. However, we reject the
Commonwealth's contention that evidence that the preschool in
question was licensed sufficed to establish that it was
"accredited" within the meaning of the statute, and accordingly
the defendant's conviction of the school zone violation is
reversed, the verdict is set aside, and judgment shall enter for
the defendant on that charge.
Background. We summarize the facts the jury could have
found, reserving other details for discussion of the issues. On
the morning of March 16, 2012, undercover Cambridge police
Officer Janie Munro entered a fast food restaurant and made eye
contact with the defendant; shortly thereafter, the two left the
restaurant together. Munro told the defendant that she was
looking to buy drugs, and the defendant asked if she was
familiar with "Johnnies," or Neurontins. The defendant
explained that the pills were really called gabapentin, and that
he had a prescription for that medication, with five refills
remaining. During their conversation, the defendant displayed a
prescription pill bottle from his backpack, though Munro was not 3
able to read the label. As they ended their conversation, Munro
and the defendant exchanged telephone numbers. Later that day,
the defendant sent Munro a text message, offering to sell her
fifty "Johnnies" for forty dollars. The two met again that day
at a pizza restaurant in Cambridge, where the defendant advised
Munro that he did not have the agreed-upon fifty pills but that
he would sell her what he could. Munro watched as the defendant
removed yellow pills from a prescription bottle and placed them
in a plastic bag. The defendant then handed the pills to Munro
underneath the table at which they were seated, and Munro handed
him the agreed-upon payment in exchange.
Following the exchange, the defendant cautioned Munro to be
careful when taking the pills, and not to consume more than five
pills at once. He further explained that the pills were 300
milligram, quick-release capsules. During their conversation,
Munro observed the defendant holding a prescription pill bottle,
and saw the defendant's name on the label. When Munro left the
defendant and returned to the Cambridge police station, she
counted thirty-two pills inside the bag she received from the
defendant, each imprinted with "G5027."
The pills Munro purchased from the defendant were sent to
the State police drug laboratory and examined by chemist Rebecca 4
Daner. 1 Upon examination, Daner determined that the pills were
all the same color, appearance, and size, and each bore the
marking "G5027." Based on her examination of the capsules, and
after consulting reference materials maintained in the
laboratory concerning the markings of prescription medications,
Daner concluded that they contained gabapentin.
The pizza restaurant where the defendant sold the pills to
Munro is located within 300 feet of the Bright Horizon
Children's Center at University Park. At trial, the center's
director, Katie Coffin, testified that the center was licensed
by the Department of Early Education and Care, as required for
it to operate in Massachusetts, and a copy of the center's
license was admitted in evidence.
Discussion. 1. Sufficiency of the evidence -- class E
substance. In his challenge to the sufficiency of the evidence
on his conviction of distribution of a class E substance, the
defendant contends that the Commonwealth's evidence did not
sufficiently establish that the substance the defendant sold to
Munro was in fact a class E substance (gabapentin). In
1 Daner worked in the drug identification unit from May of 2011 to January of 2015, analyzing thousands of substances during her tenure. Before joining the unit Daner earned a bachelor's degree in biology and a master's degree in biomedical forensic science. During her time with the laboratory she received specialized training in drug identification, reviewed literature on drug analysis, completed practical exercises, and passed required competency exams. 5
particular, the defendant contends that the Commonwealth's
failure to present evidence of a chemical analysis of the
substance left the jury to speculate whether the substance was
gabapentin, as the defendant represented it to be at the time he
sold it to Munro, or was instead a counterfeit substance that
the defendant falsely represented to be gabapentin. See,
e.g., Commonwealth v. Vasquez, 456 Mass. 350, 365-366 (2010),
and cases cited. See also G. L. c. 94C, § 32G (prohibiting
possession with intent to distribute counterfeit substance). We
disagree.
When prosecuting a narcotics offense, the Commonwealth must
prove that the substance in question "is a particular
drug." Commonwealth v. Paine, 86 Mass. App. Ct. 432, 434
(2014), quoting from Commonwealth v. MacDonald, 459 Mass. 148,
153 (2011). "Proof that a substance is a particular drug need
not be made by chemical analysis and may be made by
circumstantial evidence." Commonwealth v. Dawson, 399 Mass.
465, 467 (1987). In cases involving pharmaceutical drugs, we
have held that visual inspection supplemented by additional
evidence probative of the identity of a drug may be sufficient
to sustain the Commonwealth's burden of proof. See,
e.g., Commonwealth v. Alisha A., 56 Mass. App. Ct. 311, 313-315
(2002); Commonwealth v. Greco, 76 Mass. App. Ct. 296, 299
(2010). 6
In Alisha A., supra at 313, the evidence included a
description of the color and shape of the pills, and of the
presence of a hollowed out "K" in the middle of each tablet, and
a physician testified that Klonopin pills are usually identified
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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
16-P-697 Appeals Court
COMMONWEALTH vs. ROBERT F. COOPER.
No. 16-P-697.
Middlesex. March 8, 2017. - May 25, 2017.
Present: Green, Wolohojian, & Sullivan, JJ.
Controlled Substances. "School Zone" Statute. Words, "Accredited."
Complaint received and sworn to in the Cambridge Division of the District Court Department on March 29, 2012.
The case was tried before Michelle B. Hogan, J.
Kathleen A. Kelly for the defendant. Jason R. Chandler, Assistant District Attorney, for the Commonwealth.
GREEN, J. Among the challenges to his conviction of
distribution of a class E substance in a school zone, in
violation of G. L. c. 94C, §§ 32D(a) and 32J, the defendant
contends that the evidence was insufficient to establish that
the pills seized at the time of his arrest were a class E
substance (gabapentin), or that the school furnishing the basis 2
for his school zone violation was an "accredited private
preschool" within the meaning of § 32J. We conclude that the
evidence was sufficient to establish that the pills were a class
E substance and, discerning no merit in his other claims of
error as to that charge, affirm his conviction on the charge of
distribution of a class E substance. However, we reject the
Commonwealth's contention that evidence that the preschool in
question was licensed sufficed to establish that it was
"accredited" within the meaning of the statute, and accordingly
the defendant's conviction of the school zone violation is
reversed, the verdict is set aside, and judgment shall enter for
the defendant on that charge.
Background. We summarize the facts the jury could have
found, reserving other details for discussion of the issues. On
the morning of March 16, 2012, undercover Cambridge police
Officer Janie Munro entered a fast food restaurant and made eye
contact with the defendant; shortly thereafter, the two left the
restaurant together. Munro told the defendant that she was
looking to buy drugs, and the defendant asked if she was
familiar with "Johnnies," or Neurontins. The defendant
explained that the pills were really called gabapentin, and that
he had a prescription for that medication, with five refills
remaining. During their conversation, the defendant displayed a
prescription pill bottle from his backpack, though Munro was not 3
able to read the label. As they ended their conversation, Munro
and the defendant exchanged telephone numbers. Later that day,
the defendant sent Munro a text message, offering to sell her
fifty "Johnnies" for forty dollars. The two met again that day
at a pizza restaurant in Cambridge, where the defendant advised
Munro that he did not have the agreed-upon fifty pills but that
he would sell her what he could. Munro watched as the defendant
removed yellow pills from a prescription bottle and placed them
in a plastic bag. The defendant then handed the pills to Munro
underneath the table at which they were seated, and Munro handed
him the agreed-upon payment in exchange.
Following the exchange, the defendant cautioned Munro to be
careful when taking the pills, and not to consume more than five
pills at once. He further explained that the pills were 300
milligram, quick-release capsules. During their conversation,
Munro observed the defendant holding a prescription pill bottle,
and saw the defendant's name on the label. When Munro left the
defendant and returned to the Cambridge police station, she
counted thirty-two pills inside the bag she received from the
defendant, each imprinted with "G5027."
The pills Munro purchased from the defendant were sent to
the State police drug laboratory and examined by chemist Rebecca 4
Daner. 1 Upon examination, Daner determined that the pills were
all the same color, appearance, and size, and each bore the
marking "G5027." Based on her examination of the capsules, and
after consulting reference materials maintained in the
laboratory concerning the markings of prescription medications,
Daner concluded that they contained gabapentin.
The pizza restaurant where the defendant sold the pills to
Munro is located within 300 feet of the Bright Horizon
Children's Center at University Park. At trial, the center's
director, Katie Coffin, testified that the center was licensed
by the Department of Early Education and Care, as required for
it to operate in Massachusetts, and a copy of the center's
license was admitted in evidence.
Discussion. 1. Sufficiency of the evidence -- class E
substance. In his challenge to the sufficiency of the evidence
on his conviction of distribution of a class E substance, the
defendant contends that the Commonwealth's evidence did not
sufficiently establish that the substance the defendant sold to
Munro was in fact a class E substance (gabapentin). In
1 Daner worked in the drug identification unit from May of 2011 to January of 2015, analyzing thousands of substances during her tenure. Before joining the unit Daner earned a bachelor's degree in biology and a master's degree in biomedical forensic science. During her time with the laboratory she received specialized training in drug identification, reviewed literature on drug analysis, completed practical exercises, and passed required competency exams. 5
particular, the defendant contends that the Commonwealth's
failure to present evidence of a chemical analysis of the
substance left the jury to speculate whether the substance was
gabapentin, as the defendant represented it to be at the time he
sold it to Munro, or was instead a counterfeit substance that
the defendant falsely represented to be gabapentin. See,
e.g., Commonwealth v. Vasquez, 456 Mass. 350, 365-366 (2010),
and cases cited. See also G. L. c. 94C, § 32G (prohibiting
possession with intent to distribute counterfeit substance). We
disagree.
When prosecuting a narcotics offense, the Commonwealth must
prove that the substance in question "is a particular
drug." Commonwealth v. Paine, 86 Mass. App. Ct. 432, 434
(2014), quoting from Commonwealth v. MacDonald, 459 Mass. 148,
153 (2011). "Proof that a substance is a particular drug need
not be made by chemical analysis and may be made by
circumstantial evidence." Commonwealth v. Dawson, 399 Mass.
465, 467 (1987). In cases involving pharmaceutical drugs, we
have held that visual inspection supplemented by additional
evidence probative of the identity of a drug may be sufficient
to sustain the Commonwealth's burden of proof. See,
e.g., Commonwealth v. Alisha A., 56 Mass. App. Ct. 311, 313-315
(2002); Commonwealth v. Greco, 76 Mass. App. Ct. 296, 299
(2010). 6
In Alisha A., supra at 313, the evidence included a
description of the color and shape of the pills, and of the
presence of a hollowed out "K" in the middle of each tablet, and
a physician testified that Klonopin pills are usually identified
by a "K" marked on them. In addition, the juvenile had told her
schoolmates that she would be bringing Klonopin pills into
school to distribute; on the following day at school she
displayed the pills and gave about fifteen of them to a
schoolmate who, after ingesting them, was observed to be "under
the influence." Id. at 312. On the same day the juvenile
brought the pills to school, her mother (who had a prescription
for Klonopin) noticed that she was missing seventeen
pills. Ibid.
In Greco, supra at 297, there was evidence that the pills
in question were yellow and stamped with the word "Seroquel,"
the brand name equivalent of the generic drug quetiapine. In
addition, the defendant was observed in front of a Walgreens
pharmacy, removing pills from a large prescription bottle and
handing them to another individual. Ibid. When questioned, the
defendant stated that the other individual had given him "ten
bucks for the pills." Id. at 299. The bottle, which was
introduced in evidence, bore the defendant's name and a
"Walgreen's" logo. Ibid. 7
Similar to the facts in Alisha A. and Greco, the evidence
in the present case included substantial circumstantial evidence
in addition to the distinctive markings on the pills the
defendant sold to Munro. In particular, in his first meeting
with Munro the defendant described the pills he intended to sell
by both their street name ("Johnnies") and their pharmaceutical
name (gabapentin). He told Munro that he had a prescription for
gabapentin, with five refills remaining. When the two met for
the sale, Munro saw the defendant remove the pills from a
prescription bottle with his name on it. In addition, on that
occasion the defendant cautioned Munro to take no more than five
pills at once, and advised her that the capsules were each 300
milligram, quick-release capsules. That additional evidence
distinguishes the present case from Paine, supra at 436, on
which the defendant relies, but in which no evidence was
presented regarding the nature of the drugs beyond the visual
markings "consistent in markings and appearance with" a class E
substance. The evidence that the pills were a class E narcotic
was sufficient to support the defendant's conviction.
2. Sufficiency of the evidence -- school zone. In his
separate challenge to the sufficiency of the evidence to support
his conviction of the school zone charge, the defendant
acknowledges that the Commonwealth introduced evidence that the
Bright Horizon Children's Center was licensed by the 8
Massachusetts Department of Early Education and Care, but
observes that the statute applies only to private preschools
that are "accredited." 2,3 In response, the Commonwealth asserts
that the term "accredited," as used in the statute, should be
construed to include any private preschool that is licensed.
In general, "a statute is to be interpreted 'according to
the intent of the Legislature ascertained from all its words
construed by the ordinary and approved usage of the language,
considered in connection with the cause of its enactment, the
mischief or imperfection to be remedied and the main object to
be accomplished, to the end that the purpose of its framers may
be effectuated.'" Commonwealth v. Welch, 444 Mass. 80, 85
(2005), quoting from Commonwealth v. Galvin, 388 Mass. 326, 328
(1983). "We begin, of course, with 'the plain language of the
statute,' but we also draw guidance from the legislative history
of the statute [and] 'the language and construction of related
statutes.'" Commonwealth v. Jean-Pierre, 65 Mass. App. Ct. 162,
163 (2005), quoting from Welch, supra. Where a term is not
2 The defendant does not challenge the sufficiency of the evidence to establish that the sale occurred within 300 feet of the center, or that it occurred between the hours of 5:00 A.M. and midnight. 3 Some schools and daycare facilities are licensed but never accredited for any number of reasons. Although one may conceive valid policy grounds to include licensed educational facilities and day care centers under the umbrella of G. L. c. 94C, § 32J, we are bound by the language chosen by the Legislature. 9
defined, we may also "refer to definitions given the same word
where it has appeared in other statutes under
review." Commonwealth v. Baker, 368 Mass. 58, 69 (1975).
Prior to 1998, G. L. c. 94C, § 32J, as inserted by St.
1989, c. 227, § 2, imposed a mandatory minimum sentence on
"[a]ny person who violates the provisions of [certain specified
drug statutes] while in or on, or within one thousand feet of
the real property comprising a public or private elementary,
vocational, or secondary school." By St. 1998, c. 194, § 146,
the statute was amended to add to the list of facilities
triggering the statute's minimum penalties "a public or private
accredited preschool" and an "accredited headstart facility." 4
By St. 2012, c. 192, § 30, effective August 2, 2012, the statute
was again amended to reduce the distance from one thousand to
300 feet, and to restrict its scope to violations of the school
zone provisions occurring between 5:00 A.M. and midnight.
The term "accredited" is not defined in G. L. c. 94C. 5 As
defined in Black's Law Dictionary (9th ed. 2009), "accredit"
4 In Commonwealth v. Thomas, 71 Mass. App. Ct. 323, 325 (2008), we construed the new language to include public preschools, whether or not accredited, based on the conclusion that the modifier "accredited," as applied to preschools, was applicable only to "those newly added facilities that were private in nature." 5 We note that several other statutes that refer to accreditation without reference to licensure either provide a definition of accreditation or include a list of organizations 10
means "1. To give official authorization or status to. 2. To
recognize (a school) as having sufficient academic standards to
qualify graduates for higher education or for professional
practice." According to the same source, "license" means "1. A
permission, usu. revocable, to commit some act that would
otherwise be unlawful . . . 2. The certificate or document
evidencing such permission." Neither definition, standing
alone, resolves the question whether the two terms are or should
be considered equivalent for purposes of the school zone
statute. At trial in the present case, the Commonwealth
presented no evidence concerning the availability or use of
accreditation in the field of preschool or daycare facilities,
so as to establish that accreditation is the substantial
equivalent of licensure. 6 We turn, then, to consideration of how
the terms are used in other related statutory contexts.
See Baker, supra. See also Department of Youth Servs. v. A
Juvenile, 398 Mass. 516, 523 (1986).
Our research has disclosed references to accreditation in a
variety of other statutory settings, principally in the fields
of education and health. In several statutes, certification for
that can provide qualifying accreditation. See, e.g., G. L. c. 18, § 28; G. L. c. 29, § 2JJ; G. L. c. 278A, § 8; G. L. c. 112, § 24G; and G. L. c. 112, § 54A. 6 The record furnishes no guidance, for example, on the proportion of licensed preschools that are also accredited. 11
participation in a government program preempts or satisfies an
otherwise applicable requirement for accreditation. In those
instances, however, the relevant statute makes the equivalency
between certification and accreditation explicit. See, e.g.,
G. L. c. 175, § 108 (contracts regarding accident and health
insurance policies); G. L. c. 175, § 110 (contracts with
insurers generally); G. L. c. 176A, § 5 (contracts with hospital
service corporations); G. L. c. 176B, § 4 (contracts with a
medical service corporation); G. L. c. 176G, § 6 (contracts with
health maintenance organizations); G. L. c. 176I, § 2 (preferred
provider arrangements). In certain other instances, a statute
describing regulatory oversight of a field recognizes either a
license or accreditation as alternative means to satisfy
eligibility requirements under the statute. Again, however, in
such instances the statutory equivalency is stated explicitly in
the statute. See, e.g., G. L. c. 111, § 25N1/2 (primary care
residency grant program); G. L. c. 152, § 28 (eligibility to
employ a mentally retarded person under exemption for certain
sheltered workspaces); G. L. c. 175, § 20A (credit for
reinsurance); G. L. c. 176O, § 1 (defining health care
professional).
We consider particularly instructive the treatment of
licensure and accreditation, respectively, under G. L. c. 112, 12
§ 263, which governs the licensure and operation of private
occupational schools. Subsection (p) of that statute describes
the manner in which private schools, having obtained a license,
may become accredited. It is clear from the statute that
accreditation involves an additional review process, and a more
stringent set of criteria, than licensing, and that not all
licensed schools are accredited.
As we have observed, we construe the language used in a
statute based on the meaning of the words used. The Legislature
is presumed to be aware of the meaning it has ascribed to terms
it has used in other statutes, particularly in relation to
similar subjects. Accordingly, we must place some significance
on the choice of the Legislature to use the term "accredited"
rather than "licensed" in § 32J, and on the fact that it did not
use both as alternatives (as it has in other settings). We note
as well that, prior to 1998, the statute did not refer to
preschools at all and that, when it did, it encompassed only
accredited private preschools (as compared to public schools,
which are encompassed without regard to "accreditation").
See Commonwealth v. Thomas, 71 Mass. App. Ct. 323, 325 (2008).
On the record before us, the Commonwealth has developed no
evidence suggesting that "accredited" and "licensed" are
considered or treated as equivalents in any manner in the
context of private preschools. In the absence of such evidence, 13
and mindful of the principle of lenity applicable to the
construction of criminal statutes, see Commonwealth
v. Williamson, 462 Mass. 676, 679 (2012), we conclude that the
evidence in the present case was insufficient to support the
defendant's conviction of a violation of G. L. c. § 94C, § 32J.
3. Other issues. The defendant's remaining claims of
error require only brief discussion. The defendant claims error
in the denial of his motion to exclude the drug certificate and
the testimony of chemist Rebecca Daner, filed after both sides
rested. The motion was untimely and, accordingly, is waived.
See Commonwealth v. Coutu, 88 Mass. App. Ct. 686, 692 (2015).
In any event, the trial judge did not abuse her discretion in
determining that Daner was qualified to offer an expert opinion,
or to present a certificate expressing that opinion. Daner
testified about her extensive training and experience,
establishing her qualifications to offer an opinion based on the
appearance and markings of the pills she examined that they were
gabapentin. Cf. Alisha A., 56 Mass. App. Ct. at 313-315
(physician testified regarding appearance and distinctive
markings of Klonopin). There was no abuse of discretion and,
hence, no error; the admission of the evidence accordingly does
not give rise to a substantial risk of a miscarriage of justice.
The defendant's related claim of ineffective assistance of
counsel, based on trial counsel's failure to challenge Daner's 14
testimony and certificate in a timely manner, is likewise
unavailing. 7 As we have observed, however, the trial judge did
not abuse her discretion in allowing Daner to testify to her
opinion that the pills were gabapentin, based on her examination
of their appearance and markings. A timely objection to the
testimony and certificate would have achieved nothing for the
defendant, and counsel's failure to raise one accordingly
furnishes no basis for a claim of ineffective assistance.
See Commonwealth v. Satterfield, 373 Mass. 109, 115
(1977); Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983).
Conclusion. The defendant's judgment of conviction on
count 1, distribution of a class E substance, in violation of
G. L. c. 94C, § 32D(a), is affirmed. The defendant's judgment
of conviction on count 2, distribution in a school zone, in
violation of G. L. c. 94C, § 32J, is reversed, the verdict is
set aside, and judgment shall enter for the defendant.
So ordered.
7 We note that the defendant has raised his claim on direct appeal, so it is eligible for consideration and relief only if the "factual basis of the claim appears indisputably on the trial record." Commonwealth v. Zinser, 446 Mass. 807, 811 (2006), quoting from Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).