Commonwealth v. Zwickert
This text of 639 N.E.2d 1102 (Commonwealth v. Zwickert) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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The defendant was tried and found guilty by a jury on an indictment charging him with possession of cocaine with intent to distribute (“cocaine distribution conviction”). He was next tried jury-waived on an indictment charging that the cocaine distribution conviction was his second conviction under G. L. c. 94C, § 32A. The judge found him guilty (“repeat offender conviction”). The principal issue [365]*365on appeal arose on sentencing. The district attorney argued that the cocaine distribution conviction was under § 32A(c), with the consequence that the defendant faced a mandatory minimum term of five years for the repeat offender conviction under § 32A(if). Defense counsel argued that the cocaine distribution conviction was under § 32A(a), and thus that the repeat offender conviction was under § 32A(¿), with a minimum term of only three years.1 The judge agreed with the Commonwealth and imposed a five-to-seven year sentence.2
[366]*366The defendant’s argument is premised on a statement made in Cedeno v. Commonwealth, 404 Mass. 190 (1989), to the effect that cocaine distribution is prohibited by two different statutory provisions (i.e., G. L. c. 94C, § 32A[a] and § 32A[c]) with different penalties. The indictment of the defendant did not, on its face, as contrasted with its back, specify whether the charge was laid under subsection (a) or subsection (c).3 Hence, the defendant’s argument goes, a rule of lenity should be applied, and the indictment taken to be laid under subsection (a), as the more lenient of the two statutes prohibiting cocaine distribution. If this is done, the second offender conviction would be under subsection (b), with a mandatory minimum prison term of three years. Thus, he argues, the case should be remanded for resentencing.
The trial judge properly rejected this contention. The words of the indictment4 tracked the language of G. L. c. 94C, § 32A(c), rather than § 32A(a). The purpose of subsection (c), as it read at the time of the events in issue here, was to single out for more stringent punishment two of the substances (phencyclidine and cocaine) that are included within the broader prohibition of subsection (a) (Class B substances generally). Because this indictment charged the defendant with possession with intent to distribute, not just a Class B controlled substance, but rather cocaine specifically, it put the defendant on notice that he was exposed to the more stringent penalties of subsection (c).
[367]*367A limited analogy may be drawn to the familiar law of lesser included offenses.5 One who is charged with armed robbery while masked knows that he can receive the mandatory minimum term of imprisonment (five years for the first offense, ten for repetitions) specified in the second clause of G. L. c. 265, § 17. Conduct that violates that clause also violates the first clause of § 17 (unmasked armed robbery), as well as G. L. c. 265, § 19(6) (unarmed robbery, see Commonwealth v. Saia, 18 Mass. App. Ct. 762, 764 [1984]), and the prosecutor, acting in his discretion, might frame the charge as such, thus exposing the defendant to less severe penalties. Mention of the dangerous weapon and the mask, however, gives the defendant notice that he is charged with the greater crime, whether § 17, second clause, is mentioned or not. Here, similarly, the grand jury, having before it evidence of the defendant’s possession of cocaine with intent to distribute, might have framed the indictment as possession of a Class B substance with intent to distribute, thus exposing the defendant only to the lesser penalty of § 32A(o); but because the indictment identified the Class B substance as cocaine, it was a charge under § 32A(c). It is not necessary that the indictment state the particular subsection under which it is framed, so long as it charges conduct that constitutes a violation of that subsection. Commonwealth v. Jiminez, 22 Mass. App. Ct. 286, 295-296 (1986). Commonwealth v. Bradley, 35 Mass. App. Ct. 525, 527 & 528 n.5 (1993).
In Cedeno v. Commonwealth, the complaint charged the defendant with trafficking in cocaine. The District Court had jurisdiction neither of that charge nor the lesser included charge of possession of cocaine with intent to distribute. 404 Mass. at 194 n.5. To enable the District Court to dispose of the complaint with finality, the prosecutor in effect exercised [368]*368his discretion to proceed only on so much of the complaint as charged possession of a Class B substance with intent to distribute — the offense set out in § 32A(a) — an offense over which the District Court did have jurisdiction. 404 Mass. at 192-193 n.4. If the case had been bound over for trial in the Superior Court, Cedeno could have been found guilty of so much of the complaint as charged possession of cocaine with intent to distribute and sentenced under § 32A(c). Cedeno’s conviction under subsection (a) was predicated, not on the fact that the complaint did not refer to that subsection, but on the fact that the prosecutor elected to try the case in the District Court, foreclosing sentencing under subsection (c). No such election having been made in the present case, the defendant’s conviction on an indictment charging possession of cocaine with intent to distribute was correctly treated as one under subsection (c). On proof that this conviction was the defendant’s second under § 32A, the defendant was properly sentenced under subsection (d).6
The defendant’s other arguments concerning alleged constitutional infirmity in the framework of § 32A have been dealt with in Commonwealth v. Cedeno, supra. His argument concerning the sufficiency of the evidence is without merit. The jury could properly infer from the testimony of surveilling detectives that the defendant in at least two instances had received cash from buyers and spoken to Gonsalves, who went into the alleyway to get crack cocaine from a tin box and delivered it to the buyers. A police expert testified to his familiarity with such two-person, street-level distribution arrangements. The inference that the defendant was an accomplice is reasonable despite the facts that he [369]*369himself never handled the crack cocaine and that some other buyers were seen to go directly to Gonsalves.
Judgment affirmed.
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Cite This Page — Counsel Stack
639 N.E.2d 1102, 37 Mass. App. Ct. 364, 1994 Mass. App. LEXIS 894, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-zwickert-massappct-1994.