Com. v. Alvarez

• Decision Date: 24 July 1992
• Citation: 596 N.E.2d 325,413 Mass. 224
• Parties: , 76 Ed. Law Rep. 199 COMMONWEALTH v. Angelo B. ALVAREZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 325

596 N.E.2d 325

413 Mass. 224, 76 Ed. Law Rep. 199

COMMONWEALTH v. Angelo B. ALVAREZ.

Supreme Judicial Court of Massachusetts,

Bristol.

Argued May 6, 1992.

Decided July 24, 1992.

Benjamin H. Keehn, Committee for Public Counsel Services, for defendant.

Cynthia A. Vincent, Asst. Dist. Atty., for Com.

Scott Harshbarger, Atty. Gen., Pamela L. Hunt, R. Michael Cassidy & Paula J. DeGiacomo, Asst. Attys. Gen., for Atty. Gen., amicus curiae, submitted a brief.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

GREANEY, Justice.

In this case, we consider challenges to the validity of G.L. c. 94C, § 32J, as inserted by St.1989, c. 227, § 2, set forth below. ¹ This statute, commonly known as the "school zone" statute, establishes a mandatory minimum term of imprisonment of not less than two years for any person who violates G.L. c. 94C, §§ 32-32F, or § 32I, while within 1,000 feet of a public or private elementary, vocational or secondary school. The statute also provides that lack of knowledge of school boundaries is not a defense in such a case and that the two-year mandatory minimum sentence be served from and after any sentence imposed for the violation of G.L. c. 94C, §§ 32-32F, or § 32I.

At trial, the jury could have found the following facts. Police officers from the city of New Bedford, believing that cocaine was being distributed from a first floor apartment at 305 South Second Street, obtained a warrant to search the apartment. The officers executed the warrant (which did not require them to knock and announce themselves prior to entry) on the evening of August 24, 1989. At approximately 8:30 P.M. that evening, an undercover officer approached the rear door of the apartment. He observed a man at the doorway, who knocked on the door and asked for "a half." The man slid money under the door, received a small bag containing a white substance, then departed. The undercover officer knocked on the door, and a person inside asked him what he wanted. He also requested "a half," which he testified was a quantity of cocaine with a street value of approximately $40. He slid $40 under the door and shortly afterward received a small bag of cocaine later determined to weigh .73 grams. He left the building and informed his colleagues that he had made the purchase. Shortly afterward, teams of officers broke down the front and the rear doors of the apartment with battering rams. The doors had been barricaded with two-by-four pieces of wood supported by metal brackets attached to the door frame. As the officers entered the rear door of the apartment, they saw four men running into a bedroom and followed them. Three of the men, including the defendant, resisted the police officers in the bedroom doorway, while the fourth man went into a bathroom that was located inside the bedroom. He was carrying a plastic sandwich bag which held several smaller bags containing white powder. Before the officers could reach him, he flushed the sandwich bag down the toilet. The police searched the apartment and seized .55 grams of cocaine, drug paraphernalia and a small amount of cash, including the $40 that had been used for the purchase by the undercover officer. The defendant, along with four other men inside the apartment, was arrested.

The Commonwealth alleged that the apartment was set up for selling cocaine and that the defendant was involved in the business. The defendant was charged with the possession of cocaine with intent to distribute in violation of G.L. c. 94C, § 32A, and with violation of G.L. c. 94C, § 32J, the school zone statute. The parties stipulated that the apartment where the drugs were seized is within 1,000 feet of a public school. A judge of the Superior Court denied the defendant's pretrial motion to dismiss the § 32J charge. That motion was presented on the ground that the "lack of knowledge of school boundaries" provision in § 32J deprived the defendant of his Federal and State constitutional rights of due process by removing guilty knowledge as an element of the offense. A jury found the defendant guilty on both charges. The defendant then moved to dismiss his conviction under § 32A for possession of cocaine with intent to distribute on the ground that crime constituted a lesser included offense of the § 32J charge. That motion was denied, and the defendant was sentenced to a term of ninety days in a house of correction on the § 32A conviction, and a two-year consecutive term on the § 32J conviction. The defendant appealed, and we allowed the defendant's application for direct appellate review. We affirm the convictions. ²

On appeal, the defendant argues that G.L. c. 94C, § 32J, violates State constitutional due process provisions, ³ and that the imposition of a mandatory minimum sentence thereunder violates common law prohibitions against double jeopardy and his State constitutional right to be protected against cruel and unusual punishment. He also claims error in the instruction given by the trial judge on consciousness of guilt.

1. We reject the defendant's argument that § 32J violates his due process rights as protected by articles 1, 10, and 12 of the Declaration of Rights because it removes guilty knowledge as to one element of the offense, namely the school boundaries element. ⁴ The defendant is not helped by his reference to decisions where this court, or the Appeals Court, has imposed a mens rea requirement for criminal statutes imposing serious penalties for the defendant's commission of an unlawful act alone. See, e.g., Commonwealth v. Crosscup, 369 Mass. 228, 234-235 & n. 5, 339 N.E.2d 731 (1975); Commonwealth v. Jackson, 369 Mass. 904, 916, 344 N.E.2d 166 (1976); Commonwealth v. Buckley, 354 Mass. 508, 511-512, 238 N.E.2d 335 (1968); Commonwealth v. Dellamano, 17 Mass.App.Ct. 156, 157, 456 N.E.2d 481 (1983), S.C., 393 Mass. 132, 469 N.E.2d 1254 (1984); Commonwealth v. Wallace, 14 Mass.App.Ct. 358, 363-364, 439 N.E.2d 848 (1982). In these cases, the criminal statutes at issue were silent as to whether mens rea was required for a conviction, and the appellate courts construed the statutes to require mens rea in order to avoid possible due process doubts. In so doing, however, the courts acknowledged that clear legislative language indicating that mens rea was not required for conviction could produce a different result. See Commonwealth v. Buckley, supra 354 Mass. at 511-512, 238 N.E.2d 335.

The Legislature has provided such clear direction in § 32J by specifically stating that lack of knowledge of school boundaries is not to be considered an issue in any prosecution under the statute. The Legislature may permissibly do this. That body has "broad power to define and limit the mens rea element of criminal offenses," Commonwealth v. Tart, 408 Mass. 249, 264, 557 N.E.2d 1123 (1990), quoting Simon v. Solomon, 385 Mass. 91, 103, 431 N.E.2d 556 (1982), and, consistent with that authority, may "create strict criminal liabilities by defining criminal offenses without any element of scienter." Commonwealth v. Miller, 385 Mass. 521, 524, 432 N.E.2d 463 (1982), quoting Smith v. California, 361 U.S. 147, 150, 80 S.Ct. 215, 217, 4 L.Ed.2d 205 (1959). 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, acknowledging that "[s]trict criminal liability is not necessarily a denial of due process of law." Commonwealth v. Miller, supra (statutory rape does not admit of a mistake of fact defense). See also Commonwealth v. Knap, 412 Mass. 712, 715, 592 N.E.2d 747 (1992); Commonwealth v. Dunne, 394 Mass. 10, 18-19, 474 N.E.2d 538 (1985); Commonwealth v. Baker, 17 Mass.App.Ct. 40, 42, 455 N.E.2d 642 (1983); Nelson v. Moriarty, 484 F.2d 1034 (1st Cir.1973).

It is also of significance 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. In this last feature § 32J resembles 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. See G.L. c. 269, § 12E (1990 ed.) (discharge of a firearm within 500 feet of a dwelling; no requirement of knowledge of the distance); G.L. c. 94C, § 32E (1990 ed.) (increasing mandatory minimum terms based on the weight of controlled substances with no requirement that the defendant have knowledge of the weight of the substance or that it exceeded any specified limit). We conclude that § 32J does not violate State constitutional rights of due process. ⁵

2. The defendant next argues that the imposition of multiple punishments in this case violates his right not to be punished twice for the same offense. He bases his argument on the "same evidence" rule which states that "where convictions are returned under two statutes, unless 'each statute requires proof of an additional fact which the other does not,' consecutive sentences may not be imposed." Commonwealth v. Wilson, 381 Mass. 90, 124, 407 N.E.2d 1229 (1980), quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871). The defendant believes that this rule expresses a right that is at least implicit in articles 1, 10 and 12 of the Declaration of Rights. Since the crimes of which the defendant stands convicted meet the "same evidence" test, the defendant maintains that a consecutive sentence for the § 32J conviction cannot be imposed on him.

The "same evidence" rule, first expressed in the Morey case, is a rule of...