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SJC-12693
COMMONWEALTH vs. RAUL MATTA.
Hampden. May 9, 2019. - October 21, 2019.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
Controlled Substances. Parks and Parkways. Constitutional Law, Search and seizure, Reasonable suspicion, Investigatory stop. Search and Seizure, Threshold police inquiry, Reasonable suspicion. Threshold Police Inquiry. Practice, Criminal, Motion to suppress, New trial, Assistance of counsel.
Indictments found and returned in the Superior Court Department on December 17, 2015.
A pretrial motion to suppress evidence was heard by Daniel A. Ford, J.; the cases were tried before him; and a motion for a new trial was considered by him.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Andrew P. Power for the defendant. Travis H. Lynch, Assistant District Attorney, for the Commonwealth. Timothy St. Lawrence, for Michael Sanchez, amicus curiae, submitted a brief. 2
Jason D. Frank, Vanessa M. Brown, & Chauncey B. Wood, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.
BUDD, J. The defendant, Raul Matta, fled when a police
officer attempted to question him as a result of a tip received
regarding a firearm in a motor vehicle. After pursuing and
arresting the defendant, police recovered a plastic bag
containing heroin that the defendant had thrown onto a
pedestrian walkway; several more small bags of heroin were found
at the defendant's feet. The defendant was charged with
possession of heroin with intent to distribute (second offense)
in violation of G. L. c. 94C, § 32 (b); and with committing the
crime within one hundred feet of a public park in violation of
G. L. c. 94C, § 32J (§ 32J), the "park zone statute."1 A judge
in the Superior Court denied the defendant's motion to suppress
the evidence, and the defendant was subsequently found guilty of
each of the above offenses. His motion for a new trial premised
on ineffective assistance of counsel was denied by the same
judge who had decided the motion to suppress and presided over
the trial.
We transferred the defendant's consolidated appeal to this
court on our own motion, and we now affirm the defendant's
1 The defendant also was charged with resisting arrest, but that charge was dismissed on the defendant's motion for a required finding of not guilty. 3
conviction of possession of heroin with intent to distribute,
reverse the denial of the defendant's motion for a new trial on
the § 32J charge, and vacate the conviction of a violation of
§ 32J. In so doing, however, we conclude that intent to commit
the underlying drug crime is sufficient to violate § 32J,
without additional proof of scienter of park boundaries;
further, we conclude that whether a particular location is a
"park" pursuant to the statute is a matter for the fact finder
to determine.
Background. For the purposes of the motion to suppress, we
present the facts found by the motion judge supplemented by
uncontroverted facts from the record. Commonwealth v. Jones-
Pannell, 472 Mass. 429, 431 (2015). On November 5, 2015, in the
late afternoon, Holyoke police received two telephone calls from
an unknown source indicating that the caller had observed
someone place a firearm under the front seat of a black motor
vehicle with two male and two female occupants. The motor
vehicle was parked in an area of Holyoke known for violent
crime, drug sales, and shootings.
Upon arrival, approximately three to four minutes after
officers were dispatched to the scene, one of the officers
observed a parked dark green Honda with two people inside. The
officer, who was driving a marked cruiser, parked directly
behind the vehicle without activating the lights or siren. As 4
the officer got out of the cruiser, he observed the individual
seated in the passenger seat, later identified as the defendant,
get out of the vehicle and reach with both hands to the right
side of his body and adjust his waistband. The defendant
thereafter began walking toward bushes that were away from the
sidewalk. The officer then called out in substance, "Hey, come
here for a second." At that point, the defendant made eye
contact with the officer and immediately began to run. As the
defendant ran, he held onto his waistband. The officer yelled
out for the defendant to stop, and then gave chase.
As the defendant ran behind a nearby apartment building, he
threw a plastic bag over a chain link fence approximately eight
feet high onto a pedestrian walkway. The defendant was
apprehended by multiple officers as he attempted to scale the
fence, and the group fell to the ground. When the defendant was
arrested, there were small wax baggies on the ground at his
feet. The plastic bag retrieved from the other side of the
fence also contained smaller wax baggies. One hundred twenty-
nine baggies were recovered in total. A sample of the contents
of the baggies was found to be heroin.
Discussion. 1. Motion to suppress. The defendant argues
that the officer did not have reasonable suspicion to stop him,
and thus his motion to suppress the narcotics seized as a result
should have been allowed. See Commonwealth v. Franklin, 456 5
Mass. 818, 820 (2010) (evidence obtained as result of unlawful
seizure is inadmissible).
"When reviewing the denial of a motion to suppress, this
court accepts 'the judge's subsidiary findings of fact absent
clear error and leave[s] to the judge the responsibility of
determining the weight and credibility to be given oral
testimony presented at the motion hearing.' Commonwealth v.
Contos, 435 Mass. 19, 32 (2001), quoting Commonwealth v. Eckert,
431 Mass. 591, 592-593 (2000). 'We conduct an independent
review of the judge's application of constitutional principles
to the facts found.' Commonwealth v. Hoose, 467 Mass. 395, 400
(2014)." Commonwealth v. Pinto, 476 Mass. 361, 363 (2017).
Article 14 of the Massachusetts Declaration of Rights
provides that "[e]very subject has a right to be secure from all
unreasonable searches, and seizures, of his person, his houses,
his papers, and all his possessions." An investigatory stop or
"seizure" by police is justified under art. 14 if police have
reasonable suspicion at the time of the stop to conduct it. See
Commonwealth v. Phillips, 452 Mass. 617, 626 (2008), and cases
cited. Thus, we must determine (1) at what point the stop
occurred; and (2) whether the officer had reasonable suspicion
for the stop at that time. Franklin, 456 Mass. at 820.
a. Seizure. Here, the defendant argues that the seizure
occurred when the police officer called out, "[H]ey, come here 6
for a second," as the defendant began walking away from the
officer. The Commonwealth argues that the seizure occurred
moments later, after the defendant began to flee, when the
officer ordered the defendant to stop running away. As
explained infra, we agree with the Commonwealth.
i. Standard. "[N]ot every encounter between a law
enforcement official and a member of the public constitutes [a
seizure]." Franklin, 456 Mass. at 820, quoting Commonwealth v.
Lopez, 451 Mass. 608, 611 (2008). We have long held that
"[p]olice have seized a person in the constitutional sense 'only
if, in view of all the circumstances surrounding the incident, a
reasonable person would have believed that he [or she] was not
free to leave.'" Commonwealth v. Barros, 435 Mass. 171, 173-174
(2001), quoting United States v. Mendenhall, 446 U.S. 544, 554
(1980) (opinion of Stewart, J.). See Florida v. Royer, 460 U.S.
491, 502 (1983). See also Commonwealth v. Borges, 395 Mass.
788, 791 (1985).2 However, because civilians rarely feel "free
2 In California v. Hodari D., 499 U.S. 621, 628-629 (1991), the United States Supreme Court distanced itself from the Mendenhall-Royer line of cases, holding that seizure requires more than a show of authority leading to a reasonable belief that one is not free to leave -- there must also be submission to that show of authority. See United States v. Dubose, 579 F.3d 117, 121 (1st Cir. 2009), cert. denied, 562 U.S. 1016 (2010) ("when an officer makes a show of authority instead [of using physical force], the person is not seized until the person submits to the show of authority by complying with the officer's instruction"). In interpreting art. 14 of the Massachusetts Declaration of Rights, we have rejected the Hodari D. approach. 7
to leave" a police encounter, a true application of the test
would result in nearly every police inquiry being deemed a
seizure in the constitutional sense.3 See 4 W.R. LaFave, Search
and Seizure § 9.4(a), at 580 (5th ed. 2012) ("[I]f the ultimate
See Commonwealth v. Stoute, 422 Mass. 782, 786-787 (1996). See also Commonwealth v. Franklin, 456 Mass. 818, 821-822 (2010) ("seizure for art. 14 purposes may be effectuated by police conduct that falls short of the physical detention of the suspect").
We note, however, that Federal law has not abandoned the "free to leave" test entirely. See Brendlin v. California, 551 U.S. 249, 254-255 (2007), and cases cited. That is, in cases involving seizure via submission to a show of authority, the show of authority must still be evaluated through the Mendenhall-Royer standard. See, e.g., United States v. Stover, 808 F.3d 991, 995-996 (4th Cir. 2015), cert. denied, 137 S. Ct. 241 (2016) ("If an interaction is not consensual, i.e., if a reasonable person would not have felt free to terminate it, then the Fourth Amendment guards against unreasonable seizures. In such cases, however, the seizure inquiry does not end. . . . [A] court must also ascertain whether and when the subject of the seizure actually acquiesced to that authority"). See also United States v. Tanguay, 918 F.3d 1, 6 (1st Cir. 2019), and cases cited.
3 "[O]ur law guards a person's freedom to speak or not to speak to a police officer. A person also may choose to walk away, avoiding altogether any contact with police." Commonwealth v. Warren, 475 Mass. 530, 538 (2016). However, although legally a person may be free to end a "voluntary" police encounter, in reality when an officer makes inquiry of an individual, he or she may not feel free to leave. That is, the law on what constitutes an "objectively" coercive situation does not line up with empirical evidence on the matter. See Kessler, Free to Leave? An Empirical Look at the Fourth Amendment's Seizure Standard, 99 J. Crim. L. & Criminology 51, 73 (2009); Smith, Dolgoff, & Speer, Testing Judicial Assumption of the "Consensual" Encounter: An Experimental Study, 14 Fla. Coastal L. Rev. 285, 304-305 (2013) (among participants in "consensual" police encounter, majority did not feel free to leave or did not know of right to leave). 8
issue is perceived as being whether the suspect 'would feel free
to walk away,' then virtually all police-citizen encounters must
in fact be deemed to involve a Fourth Amendment seizure. The
Mendenhall-Royer standard should not be given such a literal
reading as to produce such a result" [footnotes omitted]).4
A review of our case law reveals that rather than focusing
primarily on whether a reasonable person would have believed
that he or she was free to leave, we look at the totality of the
circumstances to determine whether a member of law enforcement
has "engaged in some show of authority" that a reasonable person
would consider coercive; that is, behavior "which could be
expected to command compliance, beyond simply identifying [him-
or herself] as police" (quotation and citation omitted).
Commonwealth v. Sanchez, 403 Mass. 640, 644 (1988).
4 That the "free to leave" test is somewhat of a misnomer has not escaped the notice of courts. See, e.g., United States v. Cardoza, 129 F.3d 6, 16 (1st Cir. 1997) ("We recognize, of course, the import of [the defendant]'s observation that few people . . . would ever feel free to walk away from any police question"); United States v. Tavolacci, 895 F.2d 1423, 1425 (D.C. Cir. 1990), citing Butterfoss, Bright Line Seizures: The Need for Clarity in Determining When Fourth Amendment Activity Begins, 79 J. Crim. L. & Criminology 437, 439 (1988) (acknowledging criticism that "free to leave" test is "artificial" and "based on a false assumption that ordinary citizens believe they are normally free to cut police inquiries short"); People v. Spicer, 157 Cal. App. 3d 213, 218 (1984) (characterizing one's freedom to disregard police questioning and walk away as "legal fiction"). 9
Thus, rather than attempting to determine whether a
reasonable person would believe he or she was free to leave, in
our view, the more pertinent question is whether an officer has,
through words or conduct, objectively communicated that the
officer would use his or her police power to coerce that person
to stay. See Barros, 435 Mass. at 175-176 (question is whether
officer was "communicating what a reasonable person would
understand as a command that would be enforced by the police
power"). See also Commonwealth v. Sykes, 449 Mass. 308, 311
(2007), quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)
(seizure occurs "[o]nly when the officer, by means of physical
force or show of authority, has in some way restrained the
liberty of a citizen").5 If applied literally, the Mendenhall-
5 The United States Court of Appeals for the First Circuit has also acknowledged the internal contradiction in the doctrine, and the court has adopted an inquiry that looks to whether the police officer objectively communicated that he or she is "exercising his or her official authority to restrain the individual's liberty of movement" (citation omitted). See Tanguay, 918 F.3d at 6, and cases cited; United States v. Cardoza, 129 F.3d 6, 16 (1st Cir. 1997). Under this approach, courts still look to the "totality of the circumstances" as interpreted through the "reasonable person," but with special attention paid to the officer's words and actions, and the message conveyed therein. See United States v. Ford, 548 F.3d 1, 5 (1st Cir. 2008), cert. denied, 558 U.S. 815 (2009). See also United States v. Mendenhall, 446 U.S. 544, 554 (1980) ("Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled"). 10
Royer standard would require a court to treat "seizure" as a
state of mind induced by the mere presence of law enforcement,
rather than a discrete and intentional act of law enforcement.
See Black's Law Dictionary 1631 (11th ed. 2019) (defining
"seize" as "[t]o forcibly take possession [of a person or
property]"). Cf. California v. Hodari D., 499 U.S. 621, 625
(1991), quoting Thompson v. Whitman, 85 U.S. 457, 471 (1873) ("A
seizure is a single act, and not a continuous fact"). Cf. also
Nieves v. McSweeney, 241 F.3d 46, 55 (2001) (pretrial release
conditions do not constitute seizure because seizure is
"generally a discrete event, quintessentially an arrest, . . .
or at least a physical detention"). In other words, while the
attending circumstances of a police encounter are relevant, a
"seizure" must arise from the actions of the police officer.
The question whether one believes he or she is free to walk
away from a police encounter, as compared to whether one
believes he or she would be coerced to stay, is not a
distinction without a difference. Police officers are free to
make noncoercive inquiries of anyone they wish. See
Commonwealth v. Murdough, 428 Mass. 760, 763 (1999). And, as
discussed in note 3, supra, although not legally obligated, few
As the First Circuit has stated, "Discerning such an objective communication of authority is easiest when the officer expressly asserts it through a command." See Tanguay, supra, and cases cited. 11
civilians feel as if they could discontinue an encounter with a
law enforcement officer, let alone ignore an inquiry from one.6
Indeed, the police depend on a degree of civilian compliance to
maintain public safety and carry out criminal investigations.
See Strange v. Commonwealth, 269 S.W.3d 847, 851 (Ky. 2008). In
short, because, in most situations, a reasonable person would
not believe that he or she was free to leave during a police
encounter, using that standard does not produce the information
necessary to determine whether a seizure has occurred. Rather,
the inquiry must be whether, in the circumstances, a reasonable
person would believe that an officer would compel him or her to
stay.
Although this is a different question from what we
heretofore have asked, the analysis takes the same circumstances
into consideration. Whether an encounter between a law
enforcement official and a member of the public constitutes a
noncoercive inquiry or a constitutional seizure depends upon the
facts of the particular case. See Sykes, 449 Mass. at 311,
citing Commonwealth v. Thinh Van Cao, 419 Mass. 383, 387, cert.
denied, 515 U.S. 1146 (1995) ("The nature of an encounter
between a citizen and a law enforcement official is necessarily
6 We note that those in doubt as to whether they are free to discontinue an encounter with the police may ask the officer at any point during the encounter if they are free to leave. 12
fact specific and requires careful examination of the attending
circumstances"). The difference is one of emphasis -- that is,
even though most people would reasonably feel that they were not
"free to leave" in any police encounter, the coercion must be
objectively communicated through the officer's words and actions
for there to be a seizure. See Barros, 435 Mass. at 175-176.
ii. Application. Here, the police officer parked his
cruiser behind the vehicle in which the defendant was a
passenger. The two men got out of their vehicles in unison, and
the defendant began walking away from the officer. As the
defendant did so, the officer said, in substance, "Hey, come
here for a second." The officer and the defendant "locked eyes
for a moment," and then the defendant began running away. The
officer instructed the defendant to stop, and then gave chase
when the defendant failed to comply.
We begin with the initial attempt the officer made to
engage the defendant. Although we have acknowledged the
difference between questions and orders, see, e.g., Lopez, 451
Mass. at 610 ("A question is an inquiry; an order is a command.
A question requests an answer, while an order demands
obedience"), we never have held that a direct command from a
police officer to submit to his or her authority automatically
effects a seizure. Instead, we look to whether an officer has
"communicat[ed] what a reasonable person would understand as a 13
command that would be enforced by the police power." Barros,
435 Mass. at 176.
Thus, we have concluded that no seizure has taken place
when an officer got out of his marked cruiser and said to
defendant, "Hold on a second, I want to talk to you."
Commonwealth v. Martin, 467 Mass. 291, 301, 303 (2014). See
Lopez, 451 Mass. at 610 (officer motioning at defendant to come
to him and asking, "Can I speak with you?" was not seizure). In
contrast, we have concluded that where a defendant chooses to
ignore verbal attempts by police to speak with him, and officers
persist by issuing a subsequent order, that subsequent order
constitutes a seizure. See Jones-Pannell, 472 Mass. at 431
(after defendant failed to respond to police requests, officer
called out, "Wait a minute"); Barros, 435 Mass. at 172 (after
being ignored, officer got out of vehicle, walked up to
defendant with two other officers and said, "Hey you. I wanna
talk to you. Come here" [emphasis added]).
Here, the officer's words, "Hey, come here for a second,"
were not what "a reasonable person would understand as a command
that would be enforced by the police power." Barros, 435 Mass.
at 176. The record here shows that, at this point, the officer
had made only one request, compare id., and had not activated
any lights or sirens, compare Commonwealth v. Smigliano, 427
Mass. 490, 492-492 (1998), or otherwise intimidated the 14
defendant, compare Sykes, 449 Mass. at 311, 313. Further,
although the officer began walking toward the defendant, the
officer did not "impede or restrict the defendant's freedom of
movement." Barros, supra at 174. For that reason, we conclude
that the defendant was not seized at the point at which the
officer first called out to him.
The defendant was seized, however, once the officer ordered
him to stop, and then chased him. See Commonwealth v. Thibeau,
384 Mass. 762, 764 (1981) ("a stop starts when pursuit begins").
See also Commonwealth v. Powell, 459 Mass. 572, 577-578 (2011),
cert. denied, 565 U.S. 1262 (2012) (defendant seized when
officer ordered him to drop his weapon); Barros, 435 Mass. at
176.
b. Reasonable suspicion. We turn next to whether the
officer had reasonable suspicion to believe that the defendant
"was committing, had committed, or was about to commit a crime"
at the time of the seizure. Martin, 467 Mass. at 303.
Reasonable suspicion "must be grounded in 'specific, articulable
facts and reasonable inferences [drawn] therefrom' rather than
on a 'hunch.'" Commonwealth v. DePeiza, 449 Mass. 367, 371
(2007), quoting Commonwealth v. Scott, 440 Mass. 642, 646
(2004). "The facts and inferences underlying the officer's
suspicion must be viewed as a whole when assessing the
reasonableness of his acts." Sykes, 449 Mass. at 314, quoting 15
Thibeau, 384 Mass. at 764. That is, "a combination of factors
that are each innocent of themselves may, when taken together,
amount to the requisite reasonable belief that a person has, is,
or will commit a particular crime" (quotation and citation
omitted). Commonwealth v. Meneus, 476 Mass. 231, 236 (2017).
Based upon the judge's findings, at the time of the stop,
the officer was aware of the anonymous tip regarding a concealed
firearm in a motor vehicle in an area "known for violent crime,
drug sales, and shootings." The officer, who had gotten out of
his cruiser, observed the defendant get out of the automobile in
which he was seated, adjust the right front area of his
waistband with both hands, and walk toward some bushes "not on
the sidewalk[,] where one would expect a person to walk." When
the officer called out to the defendant, the two looked at one
another, and then the defendant began to run. Although the
question is a close one, we conclude that here the circumstances
existing at the time of the stop provided reasonable suspicion
for that stop.
We begin by noting that carrying a concealed firearm, by
itself, is not a crime. DePeiza, 449 Mass. at 373. Thus, the
caller's tip "suggesting a concealed firearm, with nothing more,
[did] not provide reasonable suspicion for a stop."7 Id., citing
7 There were also issues with the reliability of the anonymous tip itself. See generally Commonwealth v. Mubdi, 456 16
Commonwealth v. Alvarado, 423 Mass. 266, 269 (1996);
Commonwealth v. Couture, 407 Mass. 178, 183, cert. denied, 498
U.S. 951 (1990). Compare Commonwealth v. Haskell, 438 Mass.
790, 793-794 (2003) (reasonable suspicion existed where
defendant was observed loading handgun shortly before 2 A.M. in
high crime area).
Similarly, the defendant's adjustment of his waistband
alone did not create reasonable suspicion for a seizure. It is
not uncommon for anyone to adjust his or her clothing upon
getting out of a motor vehicle. See generally United States v.
Gray, 213 F.3d 998, 1001 (8th Cir. 2000) ("Too many people fit
this description for it to justify a reasonable suspicion of
criminal activity"). However, the judge credited the officer's
Mass. 385, 395-396 (2010), quoting Commonwealth v. Lopes, 455 Mass. 147, 155-156 (2009); Commonwealth v. Depina, 456 Mass. 238, 243 (2010). The caller reported that the firearm was in a black vehicle with four occupants, including two females and two males, with one of the females in the driver's seat. The caller's description of the vehicle varied, including a Honda, a Toyota, and a vehicle with lights that flip up and down. When an officer arrived a few minutes following the caller's tip, he found a dark green Honda with two occupants, one of whom appeared to be a female in the driver's seat; the gender of the individual in the passenger seat could not be immediately ascertained. Both individuals were in fact male; however, the driver had a ponytail. We note that although there were discrepancies between the details provided by the anonymous caller and the observations made by the officer upon arriving to the area, police "must be allowed to take into account of the possibility that some descriptive facts supplied . . . may be in error" (citation omitted). Commonwealth v. Emuakpor, 57 Mass. App. Ct. 192, 198 (2003). 17
testimony that based upon the officer's experience, people who
carry unlicensed firearms often carry them inside a waistband,
and that the officer became concerned that the defendant was
carrying an unlicensed firearm when the defendant adjusted the
right side of his waistband using both hands.8
In addition, the officer's concern was heightened when the
defendant "began walking towards bushes, not on the sidewalk
where one would expect a person to walk," and, when the officer
called out to the defendant, the defendant began to run away,
holding his waistband as he ran. "[N]ervous or furtive
movements do not supply reasonable suspicion when considered in
isolation," DePeiza, 449 Mass. at 372; nor does seeking to avoid
contact with police, Commonwealth v. Warren, 475 Mass. 530, 538-
8 We note that ordinarily, when an officer relies on his or her training and experience to draw an inference or conclusion about an observation made, the officer must explain the specific training and experience that he or she relied on and how that correlates to the observations made. See United States v. Walker, 324 F.3d 1032, 1037 (8th Cir.), cert. denied, 540 U.S. 898 (2003); United States v. Johnson, 171 F.3d 601, 604 (8th Cir. 1999). Here, the officer did not testify specifically that, in his training and experience, the adjustment of one's waistband in the way described indicates that the person may be carrying an unlicensed firearm. Compare Commonwealth v. DePeiza, 449 Mass. 367, 368, 373-374 (2007) ("As part of their training . . . officers had learned that [defendant's] distinctive 'straight arm' gait was one sign of a person carrying a firearm by pressing it against his body with the stiff arm"). However, as the officer testified that in his experience people carry unlicensed firearms in their waistband, the fact that the defendant clutched his waistband as he ran could be considered as part of the reasonable suspicion calculus. 18
539 (2016). However, those details could be combined with the
other circumstances present in this case in the reasonable
suspicion calculus. See, e.g., Sykes, 449 Mass. at 314, and
cases cited.
The officer also properly could consider the fact that the
encounter took place in a high crime neighborhood. We have held
repeatedly that "[j]ust being in a high crime area is not enough
to justify a stop." Commonwealth v. Grandison, 433 Mass. 135,
139 (2001). However, the fact that a particular area is known
for "violent crime, drug sales, and shootings," as was the case
here, may be taken into account as a factor in the reasonable
suspicion analysis. See Commonwealth v. Johnson, 454 Mass. 159,
163 (2009).
Finally, although the defendant's flight from the officer
is not enough on its own for an "individualized suspicion that
the defendant was involved in [a] crime," see Warren, 475 Mass.
at 538, it is a factor that may be considered in the reasonable
suspicion calculus in appropriate circumstances. See Sykes, 449
Mass. at 314. Considered in isolation, none of the above
factors would have been enough to create reasonable suspicion
that the defendant had committed, was committing, or was about
to commit a crime. However, taken together, the circumstances
presented added up to reasonable suspicion for an investigatory
stop. See DePeiza, 449 Mass. at 371-372. 19
2. General Laws c. 94C, § 32J.9 As a result of throwing a
bag of heroin over a fence onto what is known as Ely Pedestrian
Walkway (walkway), the defendant was convicted of committing a
drug offense within one hundred feet of a park (park zone)
pursuant to § 32J. The defendant makes three claims with
respect to this conviction. First, he argues that § 32J
includes a scienter element as it pertains to the park zone
provision and that the Commonwealth failed to prove the
defendant knowingly violated the provision. Second, the
defendant argues that the walkway onto which he threw the heroin
was not a park within the meaning of the statute. Third, the
defendant contends in a motion for a new trial that even if the
walkway was a park under § 32J, it was incorrectly identified in
the indictment as Ely Court Park, which is a separate tract of
land not adjacent to the walkway, and that his trial counsel was
ineffective for failing to raise the issue of variance of proof
at trial.
After review, we conclude that with respect to the "public
park or playground" provision of § 32J, the intent to commit the
9 General Laws c. 94C, § 32J (§ 32J), commonly is known as the "school zone statute" because, as originally enacted in 1989, it punished certain drug offenses that occurred within a designated number of feet of a school zone. See St. 1989, c. 227, § 2. As discussed infra, the statute was amended in 1993 to include public parks and playgrounds. See St. 1993, c. 335. 20
underlying drug crime is sufficient, without additional proof of
knowledge of park or playground boundaries required. We further
conclude that whether an area of land is a public park under
§ 32J is a question of fact properly left to the fact finder.
Finally, we conclude that the defendant's trial counsel was
ineffective with respect to failing to raise the variance
between the park named in the indictment and the evidence
presented at trial.
a. Mens rea. Section 32J provides in relevant part:
"Any person who violates the provisions of [§§ 32, 32A, 32B, 32C, 32D, 32E, 32F, or 32I][10] while in on, or within 300 feet of the real property comprising a public or private accredited preschool, accredited headstart facility, elementary, vocational or secondary school if the violation occurs between 5:00 A.M. and midnight, whether or not in session, or within [one hundred feet] of a public park or playground shall be punished by a term of imprisonment . . . . Lack of knowledge of school boundaries shall not be a defense to any person who violates the provisions of this section." (Emphases added.)
G. L. c. 94C, § 32J, as appearing in St. 2018, c. 69, § 57.11
The original version of § 32J, enacted in 1989, referred to drug
offenses committed on the property of or within a specified
10These sections of G. L. c. 94C, otherwise known as the Controlled Substances Act, govern the unauthorized manufacture, distribution, and dispensing of controlled substances, see §§ 32, 32A, 32B, 32C, 32D, and 32E, as well as sale to minors, see § 32F, and the sale of drug paraphernalia, see § 32I.
11Since the time of the defendant's alleged offense in 2015, § 32J was rewritten, see St. 2018, c. 69, § 57, but the provisions at issue here remain substantially unchanged. 21
distance of schools (school zones).12 See St. 1989, c. 227, § 2.
Not long after its passage, we confirmed that § 32J "comprises,
in part, an aspect of strict liability," Commonwealth v.
Peterson, 476 Mass. 163, 165-166 (2017), and that as such it did
not violate the due process clause, see Commonwealth v. Alvarez,
413 Mass. 224, 228-229 (1992).13 See also Commonwealth v.
Roucoulet, 413 Mass. 647, 650-651 (1992).
12Originally included were "public or private elementary, vocational, or secondary" schools. St. 1989, c. 227, § 2. In 1998, § 32J was amended to include preschools and accredited headstart programs. St. 1998, c. 194, § 146.
13In concluding that § 32J did not violate the due process clause, we pointed out that
"§ 32J is not totally void of any mens rea requirement. Before a conviction can be obtained thereunder the Commonwealth must prove the defendant guilty of a predicate drug-dealing offense requiring mens rea -- in this case the possession of cocaine with intent to distribute. Section . . . 32J thus imposes liability only on someone who knows he is dealing in drugs and requires the dealer to proceed at his peril with respect to the proximity of a school."
Commonwealth v. Alvarez, 413 Mass. 224, 229-230 (1992).
Further, we noted that § 32J is similar to "other criminal statutes which punish an underlying violation committed with mens rea and consider the offense aggravated by a fact of which the defendant may not have express knowledge." Id. at 230. See G. L. c. 269, § 12E (discharge of firearm within 500 feet of dwelling; no requirement of knowledge of distance); G. L. c. 94C, § 32E (increasing mandatory minimum terms based on weight of controlled substances with no requirement of knowledge of weight of substance). But see Commonwealth v. Brown, 479 Mass. 600, 607-608 (2018) (Commonwealth must prove that defendant knew that unlawful firearm was loaded with ammunition for conviction under G. L. c. 269, § 10 [n], because unlawful possession of ammunition is lesser included offense). 22
In 1993, when the Legislature amended § 32J to bar, in
addition, drug offenses within park zones, the amendment did not
alter the last sentence of the statute. See St. 1993, c. 335.
The defendant contends that because § 32J explicitly bars
"[l]ack of knowledge of school boundaries," but not lack of park
boundaries, as a defense, we are to infer that a defendant
therefore can assert the latter as a defense. This position
conflicts with the purpose of, and prior decisions interpreting,
§ 32J.
We begin by noting that the express inclusion of one thing
does not imply the exclusion of another. See Commonwealth v.
Garvey, 477 Mass. 59, 65 (2017). Thus, it is not necessarily
the case that because § 32J specifically excludes lack of
knowledge of school zones but not park zones as a defense to the
statute, that the latter is an available affirmative defense.
Our holding that § 32J lacks a knowledge requirement with
regard to school boundaries did not rest solely on the last
sentence of § 32J. Commonwealth v. Lawrence, 69 Mass. App. Ct.
596, 600 (2007). See Alvarez, 413 Mass. at 229 ("Even in the
absence of specific language such as the language that appears
in § 32J, we have construed criminal statutes which authorize
the imposition of serious sentences to permit conviction without
proof of mens rea . . ."). In Roucoulet, we noted with respect
to the school zone provision of § 32J: 23
"By its express terms, a violation is made out if a defendant is shown to have committed one of the enumerated acts that constitute crimes under G. L. c. 94C 'while in or on, or within' 1,000 feet of a school. The quoted words are clearly meant to fix the location where the predicate crime must take place. General Laws c. 94C, §§ 32A and 32E, which in relevant part make criminal the possession with intent to distribute cocaine, do not require for conviction that a defendant have an intent to distribute within any specific area. Considered term by term, § 32J contemplates a violation in three instances -- when one of the identified drug crimes is committed (a) in a school; (b) on school property; or (c) within 1,000 feet of school property. 'After the elements of [the predicate] offense have been established, one need only take out the tape measure to see if [the school zone provision of § 32J] has been violated.'"
Roucoulet, 413 Mass. at 650-651, quoting State v. Ivory, 124
N.J. 582, 593 (1991). The same reasoning pertains to the park
zone provision of the statute, which applies when a drug
violation occurs "within [one hundred] feet of a public park or
playground." G. L. c. 94C, § 32J. That is, by the provision's
plain language § 32J is violated any time one of the enumerated
drug offenses occurs in that specified location. No scienter
requirement is stated or implied. See Commonwealth v. LeBlanc,
475 Mass. 820, 821 (2016) ("Clear and unambiguous language is
conclusive as to legislative intent").
This result is in keeping with the legislative intent of
the statute. "It is well settled, through legislative history
and two decades of decisional law examining that history, that
the purpose of G. L. c. 94C, [§] 32J, is to protect children
from the harmful impact of drug dealing." Commonwealth v. 24
Peterson, 476 Mass. 163, 168 (2017). Just as in the case of a
school zone, the distribution of drugs within a park zone
creates a potentially dangerous situation for children
regardless of a drug dealer's knowledge or intent to do so in
that location.14 See Roucoulet, 413 Mass. at 651, quoting Ivory,
124 N.J. at 594-595 ("Clearly, the Legislature intended to
create drug-free zones of safety where children could be, learn
and play free of the potential infection of drugs. One
contaminating these safety zones is liable, regardless of
whether he or she intended to infect those here or others
elsewhere").
Finally, we note that the argument proffered by the
defendant already has been considered and rejected by the
Appeals Court. In Lawrence, 69 Mass. App. Ct. at 600, the court
held that the strict liability aspect of § 32J applies to
preschools, concluding that "the Legislature properly forwent
any element of scienter with respect to whether a defendant had
14The defendant points out that, in its original form, § 32J disproportionately affected urban communities resulting in racial disparities, and goes on to argue that construing § 32J to permit conviction without proof of mens rea is in contravention of the Legislature's intent to reduce those disparities. We disagree. In 2012, the Legislature amended § 32J to decrease the radius of the school zone from 1,000 feet to 300 feet specifically to address those disparities. See Commonwealth v. Bradley, 466 Mass. 551, 552 (2013). It made no other amendments to the statute in this regard; in particular, the Legislature left the mens rea requirement unchanged. 25
an intent to commit the predicate offense within any specific
area." Although the Legislature has amended § 32J more than
once since that time, it has not made any changes with regard to
mens rea. See St. 2010, c. 256, § 72; St. 2012, c. 192, §§ 30,
31; St. 2018, c. 69, § 57. When interpreting the meaning of a
statute, we presume that "as part of familiarizing themselves
with the subject matter of the legislation, legislators became
familiar with that pertinent precedent." See McCarty's Case,
445 Mass. 361, 380 (2005). As the Legislature declined to amend
intent requirements within the section, we assume that it has
adopted this construction of the statute. See Commonwealth v.
Colturi, 448 Mass. 809, 812 (2007), citing Nichols v. Vaughan,
217 Mass. 548, 551 (1914).
b. Meaning of "park" within § 32J. The defendant also
contends that the area where the heroin landed when he threw it,
the walkway, is not a park as the term is used in § 32J.
Because § 32J does not define "park," we give the term its
"usual and accepted meaning[]," as long as it is "consistent
with the statutory purpose." Commonwealth v. Zone Book, Inc.,
372 Mass. 366, 369 (1977). "We derive the words' usual and
accepted meanings from sources presumably known to the statute's
enactors, such as their use in other legal contexts and
dictionary definitions." Id. The term "park" is defined as "a
tract of land maintained by a city or town as a place of beauty 26
or of public recreation." Webster's Third New International
Dictionary 1642 (1993). See Commonwealth v. Campbell, 415 Mass.
697, 700 (1993), citing Zone Book, Inc., supra. This definition
is consistent with our use of the term in other legal contexts.
See Salem v. Attorney Gen., 344 Mass. 626, 630 (1962) ("as used
in modern and present times in America the term 'park' usually
signifies an open or [e]nclosed tract of land set apart for the
recreation and enjoyment of the public; or, in the general
acceptance of the term, a public park is said to be a tract of
land, great or small, dedicated and maintained for the purposes
of pleasure, exercise, amusement, or ornament; a place to which
the public at large may resort to for recreation, air, and
light" [quotation and citation omitted]). See also G. L. c. 45,
§ 1 ("In this chapter 'park' shall include a city or town common
dedicated to the use of the public, or appropriated to such use
without interruption for a period of twenty years").
Nothing in any of these definitions excludes pedestrian
walkways, categorically or otherwise. Nor does the purpose of
the statute, i.e., to "protect children from the harmful impact
of drug dealing," Peterson, 476 Mass. at 168, suggest the
exclusion of pedestrian walkways. See Commonwealth v.
Mogelinski, 466 Mass. 627, 633 (2013), citing Wright v.
Collector & Treas. of Arlington, 422 Mass. 455, 457-458 (1996)
(statutory interpretation must be reasonable and supported by 27
purpose and history of statute). Indeed, to the contrary, the
legislative purpose would be served by a broad definition of
"park."15
We conclude that, as a walkway may be considered a "park"
under § 32J depending upon the circumstances, it is for the jury
to decide whether a tract of land is publicly owned or
maintained and dedicated for enjoyment and recreational use by
the public. We emphasize that, under this definition, the
Commonwealth must prove not only that the tract was used by the
public for recreation, but also that it was dedicated or set
apart for such use. See Salem, 344 Mass. at 630. See also
G. L. c. 45, § 1. Otherwise, every walkway -- including
sidewalks, which are primarily intended for transportation
rather than recreation, see, e.g., 350 Code Mass. Regs. § 5.01
(2001) (defining "sidewalk" as "[t]hat portion of a roadway or
parkway . . . set aside for pedestrian travel") -- could
potentially become a "public park" under § 32J. A less specific
definition runs the risk of violating due process. See
15The defendant's argument that including pedestrian walkways as parks under § 32J would contravene the intent of the Legislature is misplaced. As we noted in Commonwealth v. Peterson, 476 Mass. 163, 168-169 (2017), the Legislature recognized "the statute's uneven impact on people who live in urban areas," and subsequently amended § 32J to reduce the school zone radius and to limit the time period in which a violation may occur. See St. 2012, c. 192, §§ 30, 31. However, the Legislature has not made any changes to the term "park" so as to exclude public walkways. 28
Commonwealth v. Sefranka, 382 Mass. 108, 110-111 (1980), and
However, we do not require proving the elements of
dedication for public use as we do in property law. See, e.g.,
Longley v. Worcester, 304 Mass. 580, 588-589 (1939), and cases
cited ("The owner's acts and declarations should be deliberate,
unequivocal and decisive, manifesting a clear intention
permanently to abandon his property to the specific public
use"). Such proof is unnecessary given that the purpose of
§ 32J is to keep drugs away from certain public spaces, not to
determine title. Rather, the Commonwealth may prove that a
tract is dedicated for public recreational use and enjoyment
through circumstantial evidence, such as photographs of the
tract, testimony from those who are involved with maintenance of
the property, or authoritative maps referring to the tract as a
"park." Cf. Commonwealth v. Williams, 422 Mass. 111, 121 (1996)
(conviction may be based on circumstantial evidence).
Conversely, the defense may argue that the tract is used by the
public for recreational purposes by happenstance rather than the
intent of the owner.16
16We note that the jury instructions on the definition of "park" were in accordance with our reading of § 32J. The judge instructed the jury, "Now, I will tell you that the law . . . says the term park usually signifies an open or enclosed tract of land set apart for the recreation and enjoyment of the public. Or in the general acceptance of the term, a public park 29
c. Motion for a new trial. Finally, the defendant filed a
motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as
appearing in 435 Mass. 1501 (2001), claiming, as relevant here,
that his trial counsel failed to challenge adequately the park
zone charge. More specifically, the defendant argued that
because Ely Court, the park named in the indictment, is
different from the walkway, the area where the defendant tossed
the drugs, he was convicted of a crime for which he was not
indicted, and his trial counsel was ineffective in failing to
raise the issue at any point prior to, or during, the trial. We
agree.
At the evidentiary hearing on the motion for a new trial,
it was established that Ely Court Park and the walkway are
distinct, nonadjacent tracts of land separated by a distance of
more than one hundred feet. The walkway comprises the last
third of Ely Street and is perpendicular to Bowers Street. Ely
Court Park, on the other hand, sits at the corner of Center
Street and Lyman Street and contains a basketball court.
Trial counsel was aware that the distance between where the
tossed drugs were found and Ely Court Park was greater than one
hundred feet, and personally observed that the two areas were
is said to be a tract of land, great or small, dedicated and maintained for the purposes of pleasure, exercise, amusement, or ornament. A place to which the public at large may resort to for recreation, air, and light." 30
not contiguous but were instead more than one hundred feet
apart. He failed to raise the issue, however, assuming that the
walkway was nevertheless part of Ely Court Park. Trial counsel
further reasoned that, in any case, had he raised the matter by
way of a motion to dismiss, the Commonwealth likely would have
moved, and received permission, to amend the indictment to name
the walkway rather than Ely Court. Trial counsel believed that
naming the location of the offense in the indictment was mere
"surplusage," and unnecessary to describe the crime. As
detailed infra, we conclude that trial counsel's strategic
choices with regard to defending against the § 32J charge were
manifestly unreasonable.
First, we disagree with the motion judge that trial counsel
"reasonably concluded" that the walkway was part of Ely Court
Park even though the two parcels are not adjacent to one
another. Further investigation into the boundaries of Ely Court
Park would have shown that the walkway was indeed separate;
according to testimony at the hearing, this information was
readily available online.
With a correct understanding of the boundaries of the two
parcels, trial counsel would have had at least two possible
options to pursue. First, he could have moved to dismiss the
indictment prior to trial. Even if the Commonwealth had re- 31
indicted the defendant to name the correct location,17 counsel
could have mounted a viable defense to the § 32J charge by
arguing that the walkway did not meet the definition of a park
within the meaning of the statute. See part 2.b, supra.
Although the Commonwealth presented evidence that the walkway
was owned and maintained by the Holyoke parks and recreation
department, and the photographs of the walkway introduced at
trial depict a paved walkway surrounded by trees and grass,
there was no direct evidence on the intended use of the walkway
-- that is, no testimony or documentation showing that the park
was dedicated to public recreational use, or even that members
17Alternatively, an amendment to the indictment in this case would have been improper. An indictment may be amended "if the amendment is one of form, not substance"; "if the amendment will not result in prejudice"; and pursuant to art. 12 of the Massachusetts Declaration of Rights, as long as such amendment does not "materially change[] the work of the grand jury" (quotation and citations omitted). Commonwealth v. Miranda, 441 Mass. 783, 787 (2004). See Mass. R. Crim. P. 4 (d), 378 Mass. 849 (1979). A motion to amend would have been appropriate if the indictment incorrectly referred to the proper parcel by, for example, using its former name, or misspelling the name. See G. L. c. 277, § 35 (defendant "shall not by acquitted by reason of . . . an immaterial mistake in the description of the property or the ownership thereof"). See also Commonwealth v. Downey, 12 Mass. App. Ct. 754, 761-762 (1981) (amendment to middle initial of third party's name was immaterial and thus not in error). Here, because the grand jury handed up an indictment for a § 32J violation specifically with respect to Ely Court, amending the indictment to indicate a different tract of land would have been an amendment of substance rather than one of form. See Commonwealth v. Snow, 269 Mass. 598, 608-610 (1930) (although name of victim was not essential element of extortion charge, where such person is specifically named in indictment by grand jury, amending name is impermissible). 32
of the public actually used the walkway for such purposes.
Trial counsel could have drawn attention by way of cross-
examination and argument to the aforementioned weaknesses in the
Commonwealth's evidence.
Another option would have been for trial counsel to have
moved for a required finding of not guilty at the close of the
Commonwealth's case based on the variance between the
allegations in the indictment and the proof at trial. As
discussed supra, although the indictment names Ely Court as the
location of the crime, all of the evidence presented pertained
to the walkway. It is true that "[a] defendant is not to be
acquitted on the grounds of variance between the allegations and
proof if the essential elements of the crime are correctly
stated, unless he is thereby prejudiced in his defence." G. L.
c. 277, § 35. See, e.g., Commonwealth v. O'Connell, 432 Mass.
657, 660-661 (2000) (no prejudice to defendant where victim is
not mentioned by name in indictment, but is mentioned by name at
trial). However, here, a material element of the crime is that
the underlying drug offense took place within one hundred feet
of real property used as a public park or playground. Although
there is no real question regarding whether Ely Court Park was a
park within the meaning of § 32J, as discussed supra, the same
cannot be said for the walkway. Thus, the fact that the
location was not correctly identified in the indictment was a 33
material inaccuracy. See Commonwealth v. Barbosa, 421 Mass.
547, 552-554 (1995) (Commonwealth presented evidence of two drug
transactions, but ambiguity in indictment as to which
transaction formed factual basis of charge required reversal of
convictions). See also Commonwealth v. Ohanian, 373 Mass. 839,
843 (1977) (conviction of larceny for obtaining money by means
of checks drawn against insufficient funds reversed where
indictment incorrectly named bank and defendants had no reason
to know about sufficiency of funds at named bank). This is
especially true where, as here, the indictment naming the wrong
location was attached to the verdict slip and was sent into the
jury room during deliberations. Thus, the jury were asked
whether the defendant was guilty of possessing drugs within one
hundred feet of Ely Court, but they heard evidence only about
the walkway.
There would have been no downside to challenging the
variance between the indictment and the evidence. We conclude
that trial counsel's failure to do so was manifestly
unreasonable and deprived the defendant of one or more viable
defenses. See Commonwealth v. Acevedo, 446 Mass. 435, 442
(2006), citing Commonwealth v. Adams, 374 Mass. 722, 728 (1978);
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
The usual remedy for ineffective assistance of counsel is a
new trial. Here, however, counsel was ineffective in failing to 34
challenge the sufficiency of the evidence regarding an essential
element under § 32J -- the proximity of the underlying offense
to a particular public park. There was no evidence that the
defendant's possession of heroin with intent to distribute
occurred within one hundred feet of Ely Court, the location
named in the indictment as the public park for the purposes of
§ 32J. Where an amendment of the indictment at trial to
identify the correct park would have been improper, see note 17,
supra, and where the Commonwealth presented no evidence at trial
showing that the defendant committed the underlying drug offense
within one hundred feet of Ely Court, the evidence was
insufficient as a matter of law, and the conviction must be
dismissed with prejudice. See Commonwealth v. Merry, 453 Mass.
653, 660 (2009), citing Corson v. Commonwealth, 428 Mass. 193,
201 (1998) ("Where the evidence at the first trial was legally
insufficient to sustain a verdict, a new trial would violate the
prohibition against double jeopardy and is therefore
impermissible").
Conclusion. For the reasons stated supra, we affirm the
judgment of conviction of possession with intent to distribute
heroin. However, the denial of the defendant's motion for a new
trial on the § 32J charge is reversed, the judgment of
conviction on the indictment charging the defendant with the 35
§ 32J violation is vacated, the jury verdict is set aside, and
judgment shall enter for the defendant.
So ordered.