Com. v. Comins

• Citation: 356 N.E.2d 241,371 Mass. 222
• Parties: COMMONWEALTH v. Arnold C. COMINS.
• Decision Date: 18 October 1976
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 241

356 N.E.2d 241

371 Mass. 222

COMMONWEALTH

v. Arnold C. COMINS.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued May 4, 1976.

Decided Oct. 18, 1976.

Robert W. Harrington, Boston (Judith E. Diamond, Brookline, with him), for defendant.

W. James O'Neill, Asst. Dist. Atty. (Gary A. Nickerson, Asst. Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C.J., and BRAUCHER, KAPLAN and WILKINS, JJ.

WILKINS, Justice.

The defendant, a licensed osteopathic physician, appeals from seven convictions for dispensing controlled substances in violation of G.L. c. 94C, § 32. ¹ He challenges (1) the denial of his motions to dismiss each indictment, (2) the denial of his motions for judgments of acquittal, and (3) certain evidentiary rulings made during the course of his jury waived trial. This case is concerned principally with the proper form of an indictment which charges a prescribing physician with violation of the controlled substances act (G.L. c. 94C) and with the proof necessary to sustain a conviction of a physician for the unlawful prescribing of a controlled substance. We granted the defendant's application for direct appellate review. We affirm the convictions.

1. The defendant moved to dismiss the indictments, relying on several grounds. ² Of those grounds which the defendant still pursues, some may be disposed of briefly.

The fact that the indictments were issued solely on the basis of hearsay evidence is not in itself a ground for their dismissal. Commonwealth v. Gibson, --- Mass. ---, --- - ---, ^a 333 N.E.2d 400 (1975); Commonwealth v. Lammi, 310 Mass. 159, 163--164, 37 N.E.2d 250 (1941); Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). See Commonwealth v. Lincoln, --- Mass. ---, --- n. 2, ^b 331 N.E.2d 533 (1975), for a discussion of a preferred procedure. These authorities indicate that, in the absence of extraordinary circumstances, an indictment based exclusively on hearsay will not be overturned. There are no extraordinary circumstances shown in the grand jury proceedings.

The indictments did not have to allege in the words of § 32 that the defendant 'knowingly or intentionally' dispensed a controlled substance unlawfully. Although a knowing or intentional delivery is clearly an element of the crimes charged, as § 32 states, the form of these indictments was proper by reason of G.L. c. 277, § 38, as appearing in St.1971, c. 1071, § 8, which states that '(i)n a prosecution under any provision of (G.L. c. 94C) for unlawfully . . . dispensing . . . a controlled substance . . . it shall be sufficient to allege that the defendant did unlawfully . . . dispense . . . such alleged substance, without any further allegations . . . but the defendant shall be entitled to a bill of particulars under (§ 40).' This language, adopted as part of the same act which inserted G.L. c. 94C, answers any claim that the indictment had to allege that the defendant acted 'knowingly or intentionally.' See COMMONWEALTH V. BAKER, . . . MASS. ---, ---, --- - ---, ---, 330 N.E.2D 794 (1975)^C; Commonwealth v. McClaine, --- Mass. ---, ---, --- - ---, ^d 326 N.E.2d 894 (1975), and cases cited. Here, there is no question that the defendant had sufficient notice of the nature of the charges against him. The indictments stated that his conduct was 'not for a legitimate medical purpose, in violation of (G.L. c. 94C, § 32),' and the defendant's motions for particulars were allowed and bills of particulars were filed to which the defendant had raised no objection.

We come then to the defendant's major challenge to the indictments. He contends that a registered physician cannot be guilty of 'dispensing' a controlled substance in violation of G.L. c. 94C, § 32. He argues that a licensed physician cannot 'dispense' a controlled substance in violation of G.L. c. 94C because only when the delivery of a controlled substance is a lawful delivery can one 'dispense' that substance as the word 'dispense' is defined in G.L. c. 94C, § 1, as amended by St.1972, c. 806, § 3. Consequently, so the argument goes, no unlawful 'dispensing' by a physician may occur under G.L. c. 94C. The inference is that a physician may be charged under G.L. c. 94C, § 32, with unlawful 'distributing' of a controlled substance but not with 'dispensing.' ³

The premise of the defendant's argument fails on a literal reading of the definition of 'dispense.' If 'dispensing' only can be a lawful act under G.L. c. 94C, it is difficult to explain why the word appears in § 32 to describe unlawful conduct.

A physician who unlawfully issues a prescription for a controlled substance may 'dispense' a controlled substance. 'dispense' means 'to deliver a controlled substance to an ultimate user or research subject . . . by a practitioner . . . including the prescribing and administering of a controlled substance . . ..' G.L. c. 94C, § 1, as amended by St.1972, c. 806, § 3. There is nothing in this definition which indicates that the controlled substance or the prescription must be delivered lawfully. The definition of 'practitioner' includes a physician even when he is acting outside of his lawfully authorized role. G.L. c. 94C, § 1, inserted by St.1971, c. 1071, § 1. ⁴

The question whether a licensed physician who had delivered a controlled substance unlawfully under the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq. (1970), should be charged with 'dispensing' or with 'distributing' that substance has attracted divergent views in the United States Courts of Appeals. ⁵ Some court have indicated that a physician is 'dispensing' when he prescribes a controlled substance outside of the lawful scope of his practice. See United States v. Hicks, 529 F.2d 841, 844 (5th Cir. 1976); United States v. Green, 511 F.2d 1062, 1072 (7th Cir. 1975), cert. denied, 423 U.S. 1031, 96 S.Ct. 561, 46 L.Ed.2d 404 (1976); United States v. Leigh, 487 F.2d 206, 207--208 (5th Cir. 1973); United States v. Bartee, 479 F.2d 484, 486--488 (10th Cir. 1973). Other courts have indicated that a physician does not 'dispense' a controlled substance in such a circumstances; he 'distributes' it. See United States v. Ellzey, 527 F.2d 1306, 1308 (6th Cir. 1976); United States v. Rosenberg, 515 F.2d 190, 200 (9th Cir. 1975), cert. denied, 423 U.S. 1031, 96 S.Ct. 562, 46 L.E.2d 404 (1976); United States v. Black, 512 F.2d 864, 866 (9th Cir. 1975); United States v. Badia, 490 F.2d 296, 298 (1st Cir. 1973). ⁶

We do not face, and need mot decide, the issue which has divided the Courts of Appeals. A 1972 amendment of the definition of 'dispense' in G.L. c. 94C, § 1, has undercut the reasoning lying behind those Federal opinions which have held that a physician 'distributes' but does not 'dispense' a controlled substance when he exceeds his professional authorization. Prior to its amendment in 1972, G.L. c. 94C, § 1, defined 'dispense' in much the same language as 'dispense' is defined in the Federal law. Compare G.L. c. 94C, § 1, inserted by St.1971, c. 1071, § 1, with 21 U.S.C. § 802 (1970). In the original Massachusetts law, and still under the Federal law, the definition of 'dispense' includes the delivery of a controlled substance 'pursuant to the lawful order of a practitioner' (emphasis supplied). See St.1971, c. 1071, § 1. The 1972 amendment of the Massachusetts definition eliminated the word 'lawful' so that delivery of a controlled substance pursuant to an unlawful order of a physician could constitute 'dispensing.' St.1972, c. 806, § 3. The absence of the word 'lawful' in the Massachusetts definition of dispense makes the reasoning of the First Circuit Court of Appeals in the Badia case seem inapplicable under the present Massachusetts law. ⁷ The elimination of the word 'lawful' with respect to a physician's order when another person acts pursuant to that order gives substantial support to our view that a literal reading of the definition of 'dispense' is the correct one: that a physician 'dispenses' whether lawfully or unlawfully. ⁸

2. We turn next to the defendant's argument that the evidence did not warrant a conviction under any of the indictments and that, consequently, each motion for judgment of acquittal should have been allowed.

The judge would have been warranted in finding that, on March 27, 1973, one Garrison, a State police officer assigned to the Criminal Information Bureau, Narcotics Unit, went to the defendant's office, which was located on the ground floor of his home in Orleans. The defendant was conversing with several adolescents in the reception area. Posing as a patient, Garrison stated that he wished to discuss a personal matter with the defendant. They went into an adjoining consultation room where Garrison told the defendant that he had a drug problem of when he wanted to be free. The defendant asked Garrison whether he used 'scag,' a street name for heroin, and Garrison replied that the 'shot up a couple of bags every two or three days.' The defendant then noted that Garrison had taken an important step and asked what he wanted. Garrison replied that he wanted something to help him over the 'hard times.' The defendant then asked which drug he wanted. Garrison made a request for numorphan, which the defendant refused 'because a pharmacist would report a prescription for that to the police . . ..' Garrison rejected the defendant's offer of robitussin and countered with a request for percodan, to which the defendant acceded. They then returned to the reception area where the defendant wrote out a prescription for percodan and another prescription not the subject of an indictment here. When he gave the prescriptions to Garrison, the defendant stated, 'I have to write the Percodan 4 to 6 hours per day for pain, but you know how to use it,' and suggested that he fill the prescriptions in Hyannis instead of Provincetown. No medical history was taken by the defendant, and he made no physical...