Com. v. Green

• Decision Date: 11 September 1989
• Docket Number: No. 89-P-233,89-P-233
• Citation: 543 N.E.2d 424,27 Mass.App.Ct. 762
• Parties: COMMONWEALTH v. David S. GREEN.
• Court: Appeals Court of Massachusetts

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.

Donald S. Sheldon, Haverhill, for defendant.

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

Before DREBEN, KASS and SMITH, JJ.

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 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:

"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 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 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 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."

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 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 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 cigars are not medicines); Commonwealth v. Nickerson, 236 Mass. 281, 308, 128 N.E. 273 (1920) (whiskey is an "intoxicating liquor"); Proposed Mass.R.Evid. 201(b) ("A judicially noticed fact must be one not subject to reasonable dispute in that it is either generally known within the territorial jurisdiction of the trial court or capable of accurate and ready determination by resort to resources whose accuracy cannot reasonably be questioned").

Numerous courts elsewhere in determining the sufficiency of evidence have taken judicial notice that specific drugs are narcotics. See, e.g., People v. Robinson, 14 Ill.2d 325, 330, 153 N.E.2d 65 (1958) (heroin, even when found in a compound, is a derivative of opium); State v. Yanez, 89 N.M. 397, 398, 553 P.2d 252 (1976) (morphine is an opium derivative); People v. Vaughn, 35 A.D.2d 889, 889, 315 N.Y.S.2d 771 (1970) (cocaine is a narcotic); State v. Brock, 34 Ohio App.2d 175, 296 N.E.2d 837 (1973) (heroin is a habit forming drug); Kovash v. State, 519 P.2d 517, 522 (Okla.Crim.App.), cert. denied, 419 U.S. 830, 95 S.Ct. 52, 42 L.Ed.2d 53 (1974) (barbiturate is a salt of barbituric acid). See also United States v. Chiarelli, 192 F.2d 528, 532 (7th Cir.1951), cert. denied, 342 U.S. 913, 72 S.Ct. 359, 96 L.Ed. 683, reh. denied, 342 U.S. 950, 72 S.Ct. 551, 96 L.Ed. 706 (1952) (heroin is a derivative of opium); Jordan v. United States, 345 F.2d 302, 304 (10th Cir.1965) (heroin derivative of opium and hence a narcotic...