Com. v. Chavis

• Decision Date: 08 July 1993
• Parties: COMMONWEALTH v. Cassius CHAVIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 423

616 N.E.2d 423

415 Mass. 703

COMMONWEALTH v. Cassius CHAVIS.

Supreme Judicial Court of Massachusetts,

Worcester.

Argued March 2, 1993.

Decided July 8, 1993.

Joseph A. Nicastro, Northampton, for defendant.

William E. Loughlin, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

LIACOS, Chief Justice.

On February 6, 1991, a jury convicted the defendant, Cassius Chavis, of distribution of cocaine (second or subsequent offense) in violation of G.L. c. 94C, § 32A (1990 ed.). On appeal, the defendant raises three claims of error which he argues warrant the reversal of his conviction. ¹ First, the defendant contends that the trial judge erred when he refused to dismiss the portion of the indictment that alleged a second or subsequent offense. Second, the defendant argues that the judge erred when he denied the defendant's motion to discharge his trial counsel on the day of trial. Third, the defendant claims that the prosecutor made impermissible and prejudicial comments in his closing argument. We affirm. ²

We summarize the evidence presented at trial by the Commonwealth. ³ On November 4, 1989, Officer Frank Lahey of the Worcester police department carried out an undercover assignment for that department's drug unit. Part of Lahey's mission was to make contact with three African-American males who Lahey's superior officer said would be standing by a defunct diner. Lahey, who had previously patrolled the area as a uniformed officer, disguised his appearance with long hair, a beard, and an earring. At about 10 P.M., Lahey approached the three individuals whom his superior officer had described. One of these men was the defendant. As Lahey drew near, the defendant said: "Hey, what's up, man? What do you need?" Lahey replied that he needed "a half," the street jargon for one-half gram of cocaine.

The defendant did not proceed with the transaction immediately. Rather, the defendant expressed concern that Lahey might be an undercover police officer, and he requested that Lahey come to the side of the diner and undergo an inspection. Lahey complied, and the defendant satisfied himself that Lahey did not carry a gun, wear a badge, or display any other sign of authority.

Lahey then waited while the defendant went to a nearby night club. Shortly thereafter, the defendant returned and asked Lahey to follow him to the night club. The defendant indicated that one-half gram of cocaine would cost $50, and Lahey supplied the money. Inside the night club, the defendant engaged two men in conversation while Lahey waited by the bar. Lahey observed the defendant and one of these individuals go into the men's room. The defendant returned, and he and Lahey left the night club together, returning to the diner.

There, the defendant handed Lahey a plastic bag containing a white substance. Based on his training and experience, Lahey concluded that the bag appeared to contain cocaine. Lahey asked the defendant whether similar transactions could be arranged in the future. The defendant responded affirmatively and indicated that he could be identified by his gold chain. ⁴

At the defendant's trial, the substance which he sold to Lahey was introduced as evidence together with a report from the drugs of abuse laboratory of the University of Massachusetts Medical Center. This report identified the substance as being .35 gram of cocaine, a class B controlled substance. G.L. c. 94C, § 31 (1990 ed.).

1. The Defendant's Statutory Claim.

Prior to trial, the defendant moved for dismissal of the portion of the indictment that alleged a second or subsequent offense. The defendant conceded that he had been convicted in 1987 of possession of marihuana (a class D controlled substance) with intent to distribute. The defendant, however, argued that this conviction did not trigger the second or subsequent offender provisions of G.L. c. 94C, § 32A, because marihuana does not belong to the same class of controlled substances as cocaine. The judge stated that he would rule on this motion if and when the jury returned a verdict on the underlying indictment of distribution of cocaine. After the jury found the defendant guilty, the judge rejected the defendant's statutory argument and sentenced him as a second or subsequent offender. The defendant now argues that the judge's decision was erroneous. ⁵

Section 31 of c. 94 C establishes five classes of controlled substances. Criminal penalties for unlawful use of such substances are set forth in §§ 32-32D of c. 94C. Each individual section addresses one particular class of controlled substances and mandates separate penalties for first and repeat offenders. ⁶ Section 32A governs offenses involving class B controlled substances. Paragraph (b ) of this section, which governs second or subsequent offenses, states:

"Any person convicted of violating this section after one or more prior convictions of manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute or dispense a controlled substance as defined by section thirty-one of this chapter under this or any prior law of this jurisdiction or of any other offense of any other jurisdiction, federal, state, or territorial, which is the same as or necessarily includes the elements of said offense shall be punished by a term of imprisonment in the state prison for not less than three years nor more than ten years" (emphasis supplied).

The defendant argues that the words "said offense" refer back to the words "this section," thereby confining second or subsequent offender status to those defendants convicted of a prior violation involving a class B controlled substance. The defendant points out that §§ 32, 32B, 32C, and 32D contain second or subsequent offender provisions with language identical to that of § 32A (b ). The defendant reasons that, under the trial judge's construction of this language, a violation of any of those sections may form the basis of an enhanced sentence pursuant to the second or subsequent offender provisions of another section. This result, the defendant argues, is "illogical" because the penalties imposed on repeat offenders vary from section to section, thereby making the severity of a defendant's punishment contingent on which offense he or she committed first. ⁷ At best, the defendant concludes, the statute is ambiguous and should be construed in the light most favorable to him.

Under well-established due process principles, "[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes." United States v. Batchelder, 442 U.S. 114, 123, 99 S.Ct. 2198, 2203, 60 L.Ed.2d 755 (1979), quoting Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939). In recognition of this doctrine, we follow a canon of statutory interpretation whereby criminal statutes are construed strictly against the Commonwealth. See Commonwealth v. Gagnon, 387 Mass. 567, 569, 441 N.E.2d 753 modified on other grounds, 387 Mass. 768, 443 N.E.2d 407 (1982); Commonwealth v. Clinton, 374 Mass. 719, 721, 374 N.E.2d 574 (1978). We have explained, however, that "this maxim is a guide for resolving ambiguity, rather than a rigid requirement that we interpret each statute in the manner most favorable to defendants." Gagnon, supra, quoting Simon v. Solomon, 385 Mass. 91, 102-103, 431 N.E.2d 556 (1982).

Where the legislative purpose is expressed in clear statutory language, we must construe the statute in accordance with its terms and need not apply the rule of lenity on which the defendant relies. See Commonwealth v. Roucoulet, 413 Mass. 647, 652, 601 N.E.2d 470 (1992). Cf. Commonwealth v. Alvarez, 413 Mass. 224, 232-233, 596 N.E.2d 325 (1992) (where Legislature unambiguously authorizes consecutive sentences under separate criminal statutes, courts will not apply principle of statutory construction resolving question of multiple punishments in favor of defendant). In the present case, § 32A (b ) plainly states that a second or subsequent offender is a person who violates this section following a conviction that involved "a controlled substance as defined by section thirty-one of this chapter." As described above, § 31 lists all the controlled substances that may form the basis of a prosecution under §§ 32-32D. It follows that a conviction pursuant to any of these sections triggers the second or subsequent offender provisions of § 32A (b ).

The words "said offense," on which the defendant bases his claim, do not refer to "this section." The phrase, "which is the same as or necessarily includes the elements of said offense," follows the phrase, "any offense of any other jurisdiction, federal, state, or territorial." This phrase, in turn, appears immediately after the language providing that a repeat offender is a person who previously committed an offense involving a controlled substance listed in § 31. The words "said offense" clearly link these two provisions; their function is to indicate that an out-of-State offense which sufficiently resembles an offense involving a controlled substance listed in § 31 ("said offense") may form the basis of a prosecution pursuant to the second or subsequent offender provisions of § 32A (b ).

The history of § 32A also reveals that the Legislature intended such construction to be given to the statute. Section 32A(b ) formerly provided: "A person convicted of violating this section after one or more prior convictions of this offense or of any offense of any other jurisdiction ... which is the same as or necessarily includes the elements of said section, shall, upon conviction of a violation of said section, be punished ..." (emphasis supplied). St.1980, c. 436, § 4. In Commonwealth v. Burgos, 390 Mass. 763, 459 N.E.2d 469 (1984), we construed language then found in § 32 (b ) to extend second or subsequent offender status to defendants with prior convictions involving the...