Com. v. Green, No. 89-P-233

CourtAppeals Court of Massachusetts
Writing for the CourtDREBEN
Citation543 N.E.2d 424,27 Mass.App.Ct. 762
PartiesCOMMONWEALTH v. David S. GREEN.
Docket NumberNo. 89-P-233
Decision Date11 September 1989

Page 424

543 N.E.2d 424
27 Mass.App.Ct. 762
COMMONWEALTH

v.
David S. GREEN.
No. 89-P-233.
Appeals Court of Massachusetts,
Essex.
Argued June 12, 1989.
Decided Sept. 11, 1989.

[27 Mass.App.Ct. 763] Donald S. Sheldon, Haverhill, for defendant.

Margaret J. Perry, Asst. Dist. Atty., for Com.

Before [27 Mass.App.Ct. 762] DREBEN, KASS and SMITH, JJ.

[27 Mass.App.Ct. 763] DREBEN, Justice.

The primary issues in the defendant's appeal from his conviction for operating under the influence of narcotic drugs (G.L. c. 90, § 24) relate to the proof needed to show that codeine is a narcotic as defined in G.L. c. 94C, § 1. General Laws c. 90, § 24(1)(a )(1), as appearing in St.1982, c. 373, § 2 ("driving under" statute), defines the offense as operating a motor vehicle "while under the influence of ... narcotic drugs ... as defined in section one of chapter ninety-four C...."

1. Codeine as a narcotic. Since the defendant claims that his motion for a

Page 425

required finding of not guilty should have been allowed, we narrate the events of April 12, 1988, taking the evidence most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979). On that evening, at 11:40 P.M., Detective Foulds of the North Andover police department noticed a white pickup truck parked in the middle of Waverly Street in that town. The lights were on, the engine was running, and the operator was slumped over the wheel. As Foulds approached the truck on foot, it drove off. Following in his cruiser, Foulds saw the truck weave to the wrong side of the road and ultimately hit a telephone pole. Foulds opened the truck's door, whereupon the defendant "fell out into [his] hands." He was "thick-tongued"; his eyes "appeared beady"; he had trouble standing up; he leaned against the truck to keep his balance. Upon questioning, he stated that he was on pain medication--codeine--for which he had a prescription.

Later, when the defendant was taken to the police station and booked, the police during an inventory search found a pharmacist's label, indicative of a filled prescription for the defendant. The label, in addition to the defendant's name, included the words:

[27 Mass.App.Ct. 764] "Take one capsule four times a day as

needed for pain

Drug Exp. 4-89 Cod. Caps."

While at the station, the defendant stated that, although he was supposed to take one pill four times a day, he had taken four at once.

Shawn Conway, another North Andover policeman who had joined Detective Foulds at the scene of the accident, testified that he had attended a basic course in narcotics in which he learned about drug classifications and the effects of the general type of drugs found "on the street." It was his opinion, based on his observations of the defendant, including the "very little scent of alcohol," that the defendant was operating under the influence of narcotics.

We turn to the relevant statutes. As indicated earlier, the "driving under" statute, G.L. c. 90, § 24(1)(a )(1), refers to "narcotic drugs ... as defined" in G.L. c. 94C, § 1. The relevant part of c. 94C, § 1, is set forth in the margin. 1

The Commonwealth introduced no evidence that codeine is a narcotic drug or that it is derived from opium. On this ground--namely lack of evidence that codeine is a narcotic--the defendant moved for a required finding of not guilty. In denying the defendant's motion, the judge noted that c. 94C, § 31, which establishes classes of controlled substances for purposes [27 Mass.App.Ct. 765] of violations of c. 94C, lists codeine as a Class A narcotic 2 and, referring to Class E, subsection (b ), 3 ruled: "The law states that prescription drugs are narcotics." Indeed, the judge charged the jury in accordance with his ruling.

While the judge was not correct in equating prescription drugs with narcotics, we concur in his conclusion that, despite a lack

Page 426

of evidence that codeine is a derivative 4 of opium, the defendant was not entitled to a required finding of not guilty.

Prior to its amendment by St.1971, c. 1071, § 1, the definition of narcotic drug, referred to in the "driving under" statute, listed specific drugs which, among others, included opium, morphine, heroin and codeine. See G.L. c. 94, § 197, as appearing in St.1957, c. 660, § 1. 5 In 1971, Massachusetts substantially adopted the Uniform Controlled Substances Act, 9 Uniform Laws Annot. § 101(o ) (Master ed. 1988), including its definition of "narcotic drug." The Uniform Act had, in turn, adopted the definition contained in the Federal act. See 21 U.S.C. § 802(17) (1982 & Supp. V 1987).

The reason for defining narcotics more generally is evident in G.L. c. 94C, § 2, as amended by St.1972, c. 806, § 7 (set forth in the Appendix to this opinion). Section 2(a ) provides that the Commissioner of Public Health shall establish five schedules of controlled drugs. Section 2(a 1/2 ) requires him to include by regulation those controlled substances which are from time to time designated as controlled substances under the Federal act, 21 U.S.C. §§ 801 et seq. In other words, as scientific data regarding drugs are developed, the commissioner is to update the lists of controlled substances to reflect current [27 Mass.App.Ct. 766] knowledge; he is also to include in the lists all substances which are controlled under the Federal act. To effect these purposes and to expedite conformance with the Federal act, 6 the Legislature substituted a general definition of narcotic drugs in place of the list of specific narcotic drugs. Clearly, there was no intent to change the elements of the offense in the "driving under" statute.

Chief Justice Shaw's discussion in Commonwealth v. Herrick, 6 Cush. 465, 468-469 (1850), albeit in a somewhat different context, is persuasive. In that case the defendant claimed that a law, enacted subsequent to the date of his offense, which changed the statutory definition in the liquor law from "spirituous liquors" to the broader term "intoxicating liquors" required his acquittal. Shaw wrote:

"Suppose the prior act had made the offence consist in retailing rum, brandy, and so on, enumerating all the common strong drinks; but in consequence of the changes in the modes of compounding mixed liquors, and the invention of new names, the statutes were in danger of being evaded, and a law should pass, similar to the one in question, substituting the general term, 'intoxicating liquors,' for the specific kinds named, it would not, we think, repeal the existing law, because the substituted enactment would embrace all which were expressed in the previous one, and some more."

Just as Chief Justice Shaw found there could be no ground to hold that a person convicted under the prior law for selling "spirituous liquors" would not be punishable in the same manner under the new law and that its operation would be the same, we find it difficult to hold that the Legislature by substituting a general definition of "narcotic drug" has effected a change in the elements of the offense of "operat[ing] a motor vehicle while under the influence of ... narcotic drugs."

[27 Mass.App.Ct. 767] When looked at as a whole, it is without doubt that G.L. c. 94C treats codeine as a narcotic. Section 31 establishes the classes of controlled substances for purposes of setting penalties, and, as we have already indicated, Class A includes two forms of codeine. See note 2, supra. "Codeine" is also specifically included as a narcotic drug in G.L. c. 94C, § 31, Class E,

Page 427

subsection (a )(1). 7

The defendant contends that since the "driving under" statute refers only to § 1 of c. 94 C, we cannot look to the other sections of that chapter to import meaning into the definition of "narcotic drug." We think this is too confining a reading of § 1 in light of the legislative history and purpose of c. 94C.

We need not, however, rely on the statutory classifications to conclude that the defendant was not entitled to a required finding of not guilty because of lack of evidence that codeine is a narcotic. The ordinary lexical meaning of codeine 8 is in accord with the classifications of c. 94C. That codeine is a derivative of opium appears "indisputably true" and is either a matter of "common knowledge" or a subject of "generalized knowledge ... readily ascertainable from authoritative sources." It thus falls within the group of facts of which a judge [27 Mass.App.Ct. 768] may appropriately take judicial notice. Liacos, Massachusetts Evidence 19 (5th ed. 1981). See McCormick, Evidence §§ 329-330 (3d ed. 1984). See also Commonwealth v. Marzynski, 149 Mass. 68, 72, 21 N.E. 228 (1889) (court could take judicial notice that ordinarily...

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8 practice notes
  • Com. v. Barnette, No. 97-P-1477
    • United States
    • Appeals Court of Massachusetts
    • September 22, 1998
    ...New International Dictionary 1184 (1993), to which this court often resorts in construing criminal statutes, Commonwealth v. Green, 27 Mass.App.Ct. 762, 767 n. 8, 543 N.E.2d 424 (1989); Commonwealth v. DiPietro, 33 Mass.App.Ct. 776, 777, 604 N.E.2d 1344 (1992); Commonwealth v. Belete, 37 Ma......
  • Commonwealth v. Bigley, No. 13–P–539.
    • United States
    • Appeals Court of Massachusetts
    • June 24, 2014
    ...Mass. 818, 882 N.E.2d 328 (2008); Commonwealth v. Comolli, 14 Mass.App.Ct. 607, 613–614, 441 N.E.2d 536 (1982); Commonwealth v. Green, 27 Mass.App.Ct. 762, 771, 543 N.E.2d 424 (1989), S.C.,408 Mass. 48, 556 N.E.2d 387 (1990). The present case falls into that category of cases in which there......
  • Com. v. Adams, No. 92-P-63
    • United States
    • Appeals Court of Massachusetts
    • June 28, 1993
    ...counsel of his proposed action on the requested instructions prior to the closing arguments to the jury. See Commonwealth v. Green, 27 Mass.App.Ct. 762, 770-771, 543 N.E.2d 424 (1989). Here, the charging conference appears to have taken place in the judge's lobby and was not on the record. ......
  • Com. v. Sullivan
    • United States
    • Massachusetts Supreme Judicial Court
    • July 1, 1991
    ...which will be given, and that the judge's action in this case deprived him of the opportunity to do just that. Commonwealth v. Green, 27 Mass.App.Ct. 762, 771, 543 N.E.2d 424 (1989) ("Counsel is entitled to know the judge's treatment of each proposed instruction in order that counsel m......
  • Request a trial to view additional results
8 cases
  • Com. v. Barnette, No. 97-P-1477
    • United States
    • Appeals Court of Massachusetts
    • September 22, 1998
    ...New International Dictionary 1184 (1993), to which this court often resorts in construing criminal statutes, Commonwealth v. Green, 27 Mass.App.Ct. 762, 767 n. 8, 543 N.E.2d 424 (1989); Commonwealth v. DiPietro, 33 Mass.App.Ct. 776, 777, 604 N.E.2d 1344 (1992); Commonwealth v. Belete, 37 Ma......
  • Commonwealth v. Bigley, No. 13–P–539.
    • United States
    • Appeals Court of Massachusetts
    • June 24, 2014
    ...Mass. 818, 882 N.E.2d 328 (2008); Commonwealth v. Comolli, 14 Mass.App.Ct. 607, 613–614, 441 N.E.2d 536 (1982); Commonwealth v. Green, 27 Mass.App.Ct. 762, 771, 543 N.E.2d 424 (1989), S.C.,408 Mass. 48, 556 N.E.2d 387 (1990). The present case falls into that category of cases in which there......
  • Com. v. Adams, No. 92-P-63
    • United States
    • Appeals Court of Massachusetts
    • June 28, 1993
    ...counsel of his proposed action on the requested instructions prior to the closing arguments to the jury. See Commonwealth v. Green, 27 Mass.App.Ct. 762, 770-771, 543 N.E.2d 424 (1989). Here, the charging conference appears to have taken place in the judge's lobby and was not on the record. ......
  • Com. v. Sullivan
    • United States
    • Massachusetts Supreme Judicial Court
    • July 1, 1991
    ...which will be given, and that the judge's action in this case deprived him of the opportunity to do just that. Commonwealth v. Green, 27 Mass.App.Ct. 762, 771, 543 N.E.2d 424 (1989) ("Counsel is entitled to know the judge's treatment of each proposed instruction in order that counsel m......
  • Request a trial to view additional results

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