Com. v. Harvard

• Decision Date: 03 December 1969
• Citation: 356 Mass. 452,253 N.E.2d 346
• Parties: COMMONWEALTH v. John G. HARVARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 346

253 N.E.2d 346

356 Mass. 452

COMMONWEALTH v. John G. HARVARD.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Oct. 7, 1969.

Decided Dec. 3, 1969.

Conrad W. Fisher, Worcester, for defendant.

Anthony N. Compagnone, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, CUTTER, KIRK, SPIEGEL, and REARDON, JJ.

SPALDING, Justice.

The defendant was convicted on three indictments, two of which charged a sale, and one possession, of marihuana, G.L. c. 94, §§ 205, 217. The defendant appealed, the trial having been conducted pursuant to G.L. c. 278, §§ 33A--33G. The defendant assigns as error the refusal of the judge to direct verdicts of not guilty on all indictments and five rulings on evidence, four of which have been waived.

There was evidence of the following: As a result of a complaint from citizens concerning narcotic activities in Webster, Officer Martin of the State police was sent into the Webster area in April, 1968, as an undercover agent. Martin telephoned the defendant on April 24, 1968, and asked him to obtain some marihuana for him; this request was repeated on four other occasions prior to May 17. The defendant told Martin that he could not get it because it was 'scarce.' Martin saw the defendant or communicated with him by telephone almost daily until May 17, 1968.

On May 17, the defendant and a person named Gawle introduced Martin to one Zacharo, and a transfer of marihuana took place in the following manner. Martin's car and Zacharo's car were parked parallel to each other and three or four feet apart; the defendant was standing between the cars. During a conversation among the four, Gawle and the defendant persuaded Zacharo to sell marihuana to Martin. Zacharo thereupon handed a plastic bag of marihuana to the defendant who passed it to Martin in Martin's car. Martin then gave $15 to the defendant who passed it to Zacharo. There was no evidence that the defendant received any of the proceeds of the sale.

On June 5, Martin again asked the defendant if he could get him some marihuana, and the defendant replied he could, as 'a new connection,' whom he called 'the Mexican,' had just come into town. Later that day Martin and the defendant located 'the Mexican' (whose name was Castro). The defendant introduced Martin to Castro, stating that Martin was a friend who 'would like to have some grass.' ¹ Castro told Martin that he could get him some; he then entered Martin's car and they drove off to obtain it. The defendant did not go with them. A few minutes later they returned, and the defendant asked Martin 'if * * * (he) did all right.' Picking up a bag, Martin replied, 'He came across with this marijuana here.' Martin paid Castro $20. The defendant then entered Martin's car, remarking, 'I've had some of that, it's real good.'

There was no evidence that the defendant received any consideration from the transaction just described. Apart from the transactions of May 17 and June 5, on which the two indictments charging sales are based, Martin never saw the defendant buy or sell any drug. On one occasion prior to the May 17 transaction Martin was with the defendant when a person called 'Wes' asked him if he had any 'grass.' Upon being told by the defendant that he had none, 'Wes' asked him if he would like some 'speed.' ² Martin declined but the defendant took some and sniffed it. Immediately thereafter the defendant went with Martin to Southbridge where the defendant talked with two persons concerning the purchase by the defendant of $400 worth of LSD (a hallucinogen) from a dealer in Northampton, but there was no evidence that anything further was done. On another occasion prior to the May 17 transaction the defendant told Martin that he could get some opium for him. The defendant thereafter introduced Martin to Gawle who sold him a substance purporting to be opium and for which Martin paid $10. On analysis this proved to be an unidentifiable nonnarcotic substance.

At the close of the evidence the defendant moved for a directed verdict of not guilty on each of the indictments charging a sale and on the indictment charging possession. The motions were denied, subject to the defendant's exceptions. These exceptions are the subject of assignment of error no. 17. The motions are grounded on the contention that the evidence would not warrant conviction that the defendant committed the offences charged, that is, a sale of marihuana on May 17 and June 5 and possession of marihuana on May 17. The defendant also seeks to support his motions on the ground that the defendant was, as matter of law, entrapped.

1. We consider first whether there was sufficient evidence to warrant a conviction on the indictment charging a sale of marihuana on May 17. We are of opinion that there was not. The record shows that the defendant facilitated an illegal sale by introducing a willing buyer and seller and by aiding in the physical transfer of drug and money. There is nothing to show that the defendant had any financial interest in the transaction, or was employed by the seller to promote sales. Rather than prosecute him as an accessory, or one who has delivered, furnished, or exchanged a drug, all of which acts are proscribed by our statutes, the Commonwealth has charged him with unlawful sale.

Section 217 of c. 94 (as appearing in St. 1960, c. 204, § 3), imposes a minimum term of five years imprisonment for '(w)hoever sells * * * any narcotic drug, other than heroin, except as provided by the narcotic drug law.' Section 197 (as appearing in St.1957, c. 660, § 1) 'unless the context otherwise requires' defines 'sale' as including 'barter, exchange or gift, or offer therefor, and each such transaction made by any person, whether as principal, proprietor, agent, servant or employee' (emphasis added). It has been urged, without success, in the New York and Federal courts under statutes similar to those under consideration that conduct of the sort in which the defendant engaged would support a conviction for selling. ³ In People v. Branch, 13 A.D.2d (N.Y.) 714, 213 N.Y.S.2d 535, the court said: 'There was nothing in the evidence to show that the defendant had entered into a conspiracy with the vendor of the narcotics to engage in the selling of narcotics or that the defendant had acted in the transaction in any way as the agent of the vendor or on her behalf or that he was associated in any way with the enterprise of the vendor or that he had any personal or financial interest in bringing trade to her. * * * One who acts solely as the agent of the buyer cannot be convicted of the crime of selling narcotics.' To the same effect are: People v. Buster, 286 App.Div. (N.Y.) 1141, 145 N.Y.S.2d 437; People v. Fortes, 24 A.D.2d (N.Y.) 428, 260 N.Y.S.2d 716.

In United States v. Sawyer, 210 F.2d 169 (3d Cir.), the court reached a similar conclusion in reversing a conviction for the unlawful selling of heroin where the trial judge had not instructed the jury on the difference between dealing with a purchaser as seller and acting for him as procuring agent. There the court said that if 'the defendant undertook to act in the prospective purchaser's behalf rather than his own, and in so doing purchased the drug from a third person with whom he was not associated in selling, and thereafter delivered it to the buyer, the defendant would not be a seller.' Page 170. A similar result was reached in United States v. Moses, 220 F.2d 166 (3d Cir.), where, although the defendant facilitated the purchase by introducing the buyer to the seller and vouching for him he could not be convicted of selling. Other cases of like tenor are: Henderson v. United States, 261 F.2d 909, 912 (5th Cir.); Cofield v. United States, 263 F.2d 686, 690 (9th Cir.).

Our attention has been directed to decisions of the Supreme Court of Illinois interpreting a somewhat similar statute that would hold that the defendant's conduct here constituted a sale. ⁴ The theory of these cases is that 'agent' as used in the definition of sale includes any agent or gobetween, whether for the buyer or seller, who participates in or facilitates an illegal drug transaction. It appears that the Illinois statute is worded somewhat more broadly than § 197. But to the extent that those decisions are contrary to what is here decided, we are not disposed to follow them. The defendant's motion for a directed verdict on the indictment charging a sale on May 17 ought to have been granted.

2. One of the indictments charged the defendant with possession of marihuana on May 17. The defendant argues that this indictment should not have been submitted to the jury. Admittedly, the defendant was in possession of marihuana on May 17 when Zacharo handed the plastic bag containing it to the defendant who in turn passed it to Martin. The defendant argues that such fleeting, momentary contact with the drug does not constitute the possession proscribed by the statute. We disagree. At the moment the defendant received the drug he had the control and power to do with it what he willed. In this case he chose to hand it immediately to Martin rather than hold it longer, keep it himself, or otherwise deal with it. Possession ought not to depend on the duration of time elapsing after one has an object under his control. A standard based on duration would be exceedingly difficult to apply. Authorities in other jurisdictions support this conclusion. See Peachie v. State, 203 Md. 239, 100 A.2d 1; State v. Brown, 235 Md. 401, 201 A.2d 852; Sutton v. State, 170 Texas Cr.R. 617, 343 S.W.2d 452; annotation, 91 A.L.R.2d 810, 812.

3. The defendant also argues that there was not sufficient evidence to support a conviction under the indictment charging a sale on June 5. For the reasons stated in point 1 of the opinion the defendant's conduct did not warrant a conviction for unlawful sale under § 217 and it was error to submit this indictment to the jury.

4. Apart...