Com. v. Jasmin

• Decision Date: 30 January 1986
• Citation: 487 N.E.2d 1383,396 Mass. 653
• Parties: COMMONWEALTH v. Ronald B. JASMIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1383

487 N.E.2d 1383

396 Mass. 653

COMMONWEALTH v. Ronald B. JASMIN.

Supreme Judicial Court of Massachusetts,

Hampden.

Argued Nov. 5, 1985.

Decided Jan. 30, 1986.

John E. Miller (Frank E. Antonucci, Springfield, with him) for defendant.

William T. Walsh, Jr., Asst. Dist. Atty., for Com.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

WILKINS, Justice.

The defendant was convicted under an indictment charging him with possession of drug paraphernalia with intent to sell in circumstances where he knew or should have known that the objects would be put to an unlawful use in violation of G.L. c. 94C. See G.L. c. 94C, § 32I(a ) (1984 ed.). Section 32 I, the so-called "anti-drug paraphernalia" act, had become effective only a few months before the defendant was arrested in May, 1982, for its violation. St. 1981, c. 669, § 2. This is the first case in which we have considered a conviction under this statute.

In May, 1982, Springfield police officers executed a search warrant at the Phoenix Smoke Shop in Springfield. The defendant was in the shop behind the counter. A number of items, most with price tags affixed, were seized pursuant to the warrant. Some objects were fit for a single purpose, the production, distribution, or consumption of controlled substances. Others were dual purpose items, that is, capable of both a lawful use and an unlawful use in weighing, preparing, or consuming controlled substances. Most of the items seized were found in the cellar of the store.

We transferred the defendant's appeal here on our own motion. He challenges the applicable statutory provisions as unconstitutionally vague, asserts that the evidence did not warrant his conviction because there was no proof beyond a reasonable doubt that he possessed drug paraphernalia with intent to sell, and advances arguments concerning errors in the course of the trial. We affirm the conviction.

1. The defendant asserts that the applicable statutory provisions are unconstitutionally vague. He did not raise this issue by a pretrial motion under Mass.R.Crim.P. 13(c), 378 Mass. 872 (1979). He first presented the vagueness argument in support of his motion for a required finding of not guilty. The Commonwealth argues here, for the first time, that this argument comes too late and should have been presented by pretrial motion. It may be that, pursuant to rule 13(c), an argument based on the facial invalidity of a criminal statute should be presented by a pretrial motion. Perhaps a challenge to the vagueness of a statute as applied might properly be raised before trial, but it need not be raised until the Commonwealth has presented its evidence showing the circumstances in which the statute would be applied to a defendant.

Several principles applicable to vagueness challenges are well established. Where, as here, the challenge involves no claim that an overbroad statute threatens First Amendment interests, a defendant is entitled to assert only his rights and not those of others who might be affected by the challenged statute in some different way. See Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2561, 41 L.Ed.2d 439 (1974); Broadrick v. Oklahoma, 413 U.S. 601, 608, 93 S.Ct. 2908, 2913, 37 L.Ed.2d 830 (1973); Commonwealth v. Adams, 389 Mass. 265, 270-271, 450 N.E.2d 149 (1983); Commonwealth v. Bohmer, 374 Mass. 368, 371, 372 N.E.2d 1381 (1978). A law is unconstitutionally vague and a denial of due process of law if it fails to provide a reasonable opportunity for a person of ordinary intelligence to know what is prohibited or if it does not provide explicit standards for those who apply it. See Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972). The degree of vagueness permissible varies with the interests involved. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-499, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982). The test is less strict when the law involves economic regulation and does not inhibit the exercise of constitutionally protected rights. Id. We have never said, nor does the defendant contend, that the Constitution of the Commonwealth establishes a stricter standard for testing vagueness than does the Constitution of the United States.

The defendant specifically argues that § 32I(a ), ¹ and the associated definition of drug paraphernalia in G.L. c. 94C, § 1, ² are vague for several reasons. He contends first that because "drug paraphernalia" are defined to include materials which are used, "or intended for use," in drug production, distribution, and consumption, a retailer cannot reasonably know what function a purchaser intends for an item that potentially has both a lawful and an unlawful use and that, therefore, the defendant argues, a retailer cannot determine if his conduct is or would be criminal. This construction of the definition is incorrect. The words "intended for use" refer to a defendant's or seller's intention as to the use of the item he possesses for sale, not to the purchaser's intended use. This is the construction given to those words in other statutes which (like the Massachusetts legislation) were derived, sometimes with modifications, from the Model Drug Paraphernalia Act. See Garner v. White, 726 F.2d 1274, 1282 (8th Cir.1984); Stoianoff v. State, 695 F.2d 1214, 1220 (9th Cir.1983); State v. Newman, 108 Idaho 5, 696 P.2d 856, 864 (1985); Opinion of the Justices, 121 N.H. 542, 545, 431 A.2d 152 (1981); Town Tobacconist v. Attorney Gen., 94 N.J. 85, 107, 462 A.2d 573 (1983), and cases cited. As so construed, the statute requires proof of the defendant's intention and is not vague.

The defendant also contends that the statute improperly punishes for negligent as well as intentional conduct. Section 32 I forbids a person from possessing drug paraphernalia with intent to sell, "knowing, or under circumstances where one reasonably should know," that the object will be used in illegal drug activity. The defendant argues that the reasonableness standard is improper because it punishes a person for negligently failing to perceive that another person will use an item unlawfully. We pass by the question whether, in the circumstances, negligence could properly be the basis of criminal responsibility. This statute does not impose guilt for negligence alone. The Commonwealth must prove that a defendant possessed drug paraphernalia with intent to sell it and, further, that the defendant knew or reasonably should have known that the object would be used unlawfully in violation of G.L. c. 94C. Thus it is a specific intent crime (the knowing possession of drug paraphernalia with intent to sell it), with an additional (and, it seems, somewhat redundant) element concerning the defendant's knowledge of the use to which the item would be put or reasonably would be expected to be put. Courts elsewhere, construing analogous language, have rejected a similar vagueness challenge. Camille Corp. v. Phares, 705 F.2d 223, 230 (7th Cir.1983); Stoianoff v. State, supra at 1221; New England Accessories Trade Ass'n v. Tierney, 691 F.2d 35, 36-37 (1st Cir.1982); Florida Businessmen for Free Enterprise v. Hollywood, 673 F.2d 1213, 1219 (11th Cir.1982); State v. Newman, supra 696 P.2d at 866. ³

Finally, the defendant argues that there is a risk of arbitrary enforcement because the definition of drug paraphernalia states that "a court or other authority " (emphasis supplied) shall consider specific factors in determining whether an object is drug paraphernalia. ⁴ He argues that the statute is vague because "other authority" is not defined and a jury, if included within the meaning of "other authority," would lack guidance as to whether a particular item was within the definition. We conclude that "other authority" includes a jury and that the jury, and not the judge, are to determine whether an item is drug paraphernalia, on instructions from the judge which would include, among other considerations, reference to the factors set forth in the statute. This is a factual question that should not be taken from the jury. See Commonwealth v. McDuffee, 379 Mass. 353, 363-364, 398 N.E.2d 463 (1979). The definition of drug paraphernalia is not ambiguous as applied to the defendant in this case.

Accordingly, we conclude that the judge rightly rejected the argument that, because of the statute's vagueness, a required finding of not guilty should be entered. ⁵

2. The defendant's other arguments concerning the denial of his motion for a required finding of not guilty are without merit. The Commonwealth need not introduce evidence bearing individually on each factor listed for consideration in the definition of drug paraphernalia. The evidence showing the defendant's...