Com. v. Perry

• Citation: 464 N.E.2d 389,391 Mass. 808
• Parties: COMMONWEALTH v. Richard F. PERRY.
• Decision Date: 11 May 1984
• Court: United States State Supreme Judicial Court of Massachusetts

Page 389

464 N.E.2d 389

391 Mass. 808

COMMONWEALTH v. Richard F. PERRY.

Supreme Judicial Court of Massachusetts Hampden.

Argued Jan. 11, 1984.

Decided May 11, 1984.

Elizabeth Butler Heath, Boston, for defendant.

Dianne M. Dillon, Asst. Dist. Atty., for Commonwealth.

Before HENNESSEY, C.J., and ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

The Commonwealth and the defendant, a physician, stipulated that the defendant issued prescriptions for various drugs named in the indictments with which this case is concerned, that he did so without medical justification, and that in each instance the prescribed drugs were for the defendant's own use. Following the stipulation, a judge of the Superior Court reported two questions concerning the sufficiency of the indictments charging the defendant with violations of the Controlled Substances Act, G.L. c. 94C. We transferred the case to this court on our own motion. We answer that (1) a physician does not "dispense" or "distribute" a controlled substance within the meaning of G.L. c. 94C, §§ 32-32G, when without medical justification he prescribes a controlled substance for himself or receives it for his own use pursuant to the prescription, and (2) an indictment charging the defendant with "manufacturing, dispensing or distribution" of a controlled substance in violation of G.L. c. 94C, §§ 32-32G, also charges, as a lesser included offense, the unauthorized possession of a controlled substance under G.L. c. 94C, § 34.

In June, 1982, a grand jury returned five indictments against the defendant. Each indictment charged him with issuing a prescription for a particular controlled substance ^{1 1} in violation of G.L. c. 94C, § 19(a ), in the period between April 14, 1981, and April 20, 1982. General Laws c. 94C, § 19(a ), inserted by St.1971, c. 1071, § 1, provides that "[a]n order purporting to be a prescription issued not in the usual course of professional treatment or in legitimate and authorized research is not a prescription within the meaning and intent of section one and the person knowingly filling such a purported prescription, as well as the person issuing it, shall be subject to the penalties provided by" the provisions regulating the unauthorized manufacture, distribution, and dispensing of controlled substances.

Pursuant to G.L. c. 111E, § 10, the defendant filed a request for assignment to a drug treatment facility. Under that statute, a defendant who is charged with a drug offense may under certain conditions be assigned to a drug treatment facility "if the court determines that [he] is a drug dependent person who would benefit by treatment." G.L. c. 111E, § 10, inserted by St.1981, c. 704, § 3. If the administrator of the treatment facility reports "that the defendant successfully completed the treatment program, or if the defendant completes the term of treatment ordered by the court, the court shall dismiss the charges pending against the defendant." Id.

The Commonwealth opposed the defendant's request for assignment to a drug treatment facility. It argued that, although the prescriptions issued by the defendant were solely for his own use, the interests of justice would not be served if the defendant were permitted to take advantage of G.L. c. 111E, § 10. If the defendant completed his treatment program, the Commonwealth contended, the charges against him would then be dismissed, the defendant's medical license would not be revoked, and he could continue to write prescriptions. The Commonwealth also argued that, in writing the prescriptions, the defendant "distributed" controlled substances in violation of G.L. c. 94C, §§ 32-32G, and that G.L. c. 111E, § 10, expressly states that it does not apply to a person charged with violating those sections.

On November 16, 1982, following a psychiatric examination of the defendant, a judge of the Superior Court rejected the Commonwealth's contentions, concluding that commitment of the defendant to a rehabilitation center was "unquestionably the most appropriate, just disposition." The judge also found that "[t]he defendant is a young doctor (with an impeccable record) who suffers from serious health problems and depression, and unwittingly became addicted to drugs which were, in the first instance, properly prescribed for him. The defendant's own efforts to rid himself of his drug dependency led to his discovery and subsequent prosecution." The judge ordered that the defendant be assigned to McLean Hospital initially on an inpatient basis, to "be changed to an outpatient basis at such time as the hospital determines is appropriate," for one year. In accordance with G.L. c. 111E, § 10, the criminal proceedings against him were stayed for the period of assignment.

At some time in November, 1982, prior to the judge's assignment order, but perhaps in anticipation of it, the district attorney again presented evidence against the defendant to another grand jury. That grand jury returned ten indictments against the defendant based on evidence which was substantially the same as that presented to the grand jury that returned the indictments in June. Except for minor changes in the dates involved, the first five of the November indictments were identical to the five indictments returned in June. The second group of five indictments referred to the same prescriptions which were the subject of the first group, but charged that the defendant "unlawfully did knowingly and intentionally manufacture, distribute or dispense" the five controlled substances in violation of G.L. c. 94C.

The defendant moved to dismiss the November indictments. A judge of the Superior Court dismissed the first five indictments as duplicative of the earlier June indictments. The earlier indictments were still pending; proceedings had merely been stayed during the defendant's treatment. With respect to the second group of five indictments, the judge reported the following questions to the Appeals Court:

"(1) Does the issuance by a physician of a prescription for a controlled substance to himself and for his own use, but without medical justification, or the receipt by him of such controlled substance in accordance with the prescription constitute the 'manufacture, dispensing or distribution' of that substance under G.L. c. 94C, §§ 32-32G?

"(2) If the answer to Question (1) is 'NO,' may the court dismiss so much of [the second group of indictments] as charge 'manufacturing, dispensing or distribution,' and allow the indictments to stand as charging the defendant with simple possession of the substances named in the indictments?"

We assume that the words in the first reported question, "issuance by a physician of a prescription for a controlled substance to himself," refer not to the mere writing of a prescription, for which there could be no criminal liability, but rather to the delivery of a prescription to a pharmacist, or to an agent of the physician who could then take the prescription to a pharmacist. Our task, then, with respect to the first question, is to construe the words, "dispense" and "distribute" as those words are used in G.L. c. 94C, §§ 32-32G. ²

General Laws c. 94C, § 1, as amended by St.1972, c. 806, § 3, provides that the word "[d]ispense," as used in that chapter, means "to deliver a controlled substance to an ultimate user ... by a practitioner ... including the prescribing ... of a controlled substance." General Laws c. 94C, § 1, as amended by St.1973, c. 1190, § 6, defines "[u]ltimate user" as "a person who lawfully possesses a controlled substance," and includes "physician" within the definition of "[p]ractitioner." Therefore, a physician "dispenses," within the meaning of our...