Com. v. Silva

• Decision Date: 30 January 1986
• Citation: 488 N.E.2d 34,21 Mass.App.Ct. 536
• Parties: COMMONWEALTH v. Anthony R. SILVA (and a companion case 1 ).
• Court: Appeals Court of Massachusetts

Page 34

488 N.E.2d 34

21 Mass.App.Ct. 536

COMMONWEALTH v. Anthony R. SILVA (and a companion case ¹).

Appeals Court of Massachusetts,

Essex.

Argued Dec. 10, 1985.

Decided Jan. 30, 1986.

William A. Bolton, Reading, for Anthony R. Silva.

Eugene Patrick McCann, Reading, for Roberto Saparosi.

Elin H. Graydon, Asst. Dist. Atty., for Com.

Before GREANEY, C.J., and PERRETTA and FINE, JJ.

GREANEY, Chief Justice.

For trafficking in 200 or more grams of cocaine, the Legislature has fixed a mandatory minimum penalty of ten years in prison. G.L. c. 94C, § 32E(b )(3), as appearing in St.1982, c. 650, § 11. After a joint trial before a jury in the Superior Court, the defendants were convicted of trafficking at that level and of distributing cocaine in violation of G.L. c. 94C, § 32A, as appearing in St.1982, c. 650, § 7. Silva was sentenced to a term of ten to fifteen years' imprisonment at M.C.I., Cedar Junction, on the trafficking charge and to a concurrent five to ten year term on the distributing charge. Saparosi was sentenced to a ten to twelve year term of imprisonment on the trafficking charge. His conviction of distributing was placed on file with his consent.

On appeal, both defendants argue that their motions to dismiss the charges were erroneously denied. The motions sought dismissal on contentions, first, that G.L. c. 94C, § 32E(b ), which prohibits trafficking in cocaine, is unconstitutionally vague, and, second, that the sentencing provisions of c. 94C, §§ 32E(b )(3) and 32H, prescribe "cruel or unusual punishment" in violation of art. 26 of the Massachusetts Declaration of Rights. In addition, Saparosi argues that the motion judge erred in denying his motion to suppress his post-arrest statements to the police and that the trial judge erred in refusing to give his requested instruction on the concept of "indirect entrapment."

The indictments stem from two transactions which occurred on January 13 and 14, 1983, at Silva's place of business, a lounge in Lawrence. The State police had received information that a large amount of cocaine was available for sale at the lounge and subsequently mounted an undercover operation that led to the defendants' arrest. At trial, the defendants did not dispute whether they they had possessed or sold cocaine but claimed instead that they had been entrapped by the actions of an undercover State police trooper, Gregory C. Dern, and a police informant, Barry McCarthy.

There was evidence in the defendants' case that on January 11, 1983, a Greg Freitas and the informant, McCarthy, were in Silva's lounge before 4:00 P.M. and again after 9:30 or 10:00 P.M. When they returned to the lounge, McCarthy beckoned Silva over and said, "I'm looking for one or two grams of cocaine. Do you know anyone that can help?" Silva responded, "No." Within the next hour, according to Freitas, McCarthy, still in the bar area, asked Silva twice more for assistance in obtaining cocaine. Silva appeared to be agitated at the request. Finally, McCarthy and Freitas followed Silva into his office, where McCarthy renewed the request. There, Silva responded that he might know someone who could help. He called in Saparosi and said, "Bob, do me a favor. Get these guys off my back. See if you can help them." Saparosi allegedly stated, "Are you serious? I know how you feel," to which Silva replied, "Yeah, just help them...." McCarthy and Saparosi talked, and Saparosi left to make a telephone call. When Saparosi returned, he said to McCarthy, "I can't help you out," but indicated that McCarthy could obtain the two grams he sought the following day. On the next day (January 12th) McCarthy told Silva that he would pick up the cocaine the day after (January 13th) with a friend.

On January 13, 1983, McCarthy, accompanied by Trooper Dern, went to Silva's bar. Dern asked Silva to sell him some cocaine, and after initial protests Silva again turned to Saparosi, asking, "Bobby, do you think you can get an ounce for them?" Saparosi stated, "I don't know ... I'll have to ask the guy." Saparosi then spoke to one Carlos Arturo, who was sitting in the bar. Arturo left the lounge, and Saparosi returned to McCarthy and Dern and indicated that Arturo could get an ounce of cocaine for $2,300. ² While Arturo was gone, Dern asked Silva about buying a pound of cocaine. Silva again stated that he was not in the business of selling cocaine. However, Silva later requested that Saparosi ask Arturo whether he could also obtain a pound; the answer was affirmative. When Arturo returned, he gave a white object to Saparosi. Saparosi gave an ounce of cocaine to Silva, who sold it to Dern for $2,300. Silva gave the money to Saparosi, who, in turn, gave it to Arturo. Silva also told Dern the price of the pound of cocaine and gave him the lounge office phone number so that Dern could verify his intention to proceed with the larger purchase.

On the afternoon of January 14th, Trooper Dern and undercover State trooper William Gorman went to Silva's office at the lounge to buy the pound of cocaine. Dern gave Silva $32,000 in exchange for two bags which contained slightly less than one pound of cocaine. ³ Silva testified at trial that he had obtained the cocaine from Saparosi, who had previously obtained it from Arturo. As soon as the exchange took place, Trooper Gorman arrested Silva. Trooper Dern then went into the bar and arrested Saparosi.

1. Constitutionality of the statute--the claim of vagueness. The defendants argue that their motions to dismiss the indictments should have been allowed because the statute under which they were convicted of trafficking in cocaine is void for vagueness.

General Laws c. 94C, § 32E(b ), as appearing in St.1982, c. 650, § 11, provides as follows: ⁴ "Any person who trafficks in cocaine or any salt thereof by knowingly or intentionally manufacturing, distributing, or dispensing or possessing with intent to manufacture, distribute, or dispense or by bringing into the commonwealth a net weight of twenty-eight grams or more of cocaine or any salt thereof or a net weight of twenty-eight grams or more of any mixture containing cocaine or any salt thereof" shall be punished, by an increasing scale of mandatory minimum prison sentences, depending on the total net weight of the cocaine involved. ⁵ The defendants focus on the Legislature's use of commas in and the "or" before the word "dispensing." They contend that the commas should be read as having the conjunctive force of the word "and", while the "or" should be given its usual disjunctive sense. The defendants concede that the statute may mean that engaging in any one of the various types of conduct specified in § 32(b ) will constitute trafficking. Undaunted by that conclusion, however, they press their construction to argue that the statute is ambiguous because it may also be read as intending to punish only those defendants whose conduct involves the manufacture of cocaine and one other of the specified acts.

Applying recognized standards of construction, ⁶ we find no ambiguity in subsection (b ) of G.L. c. 94C, § 32E, much less support for the crabbed interpretation of the statute's language that the defendants propose. In , , and , subsection (b ) sets forth three categories of activity that will constitute trafficking in cocaine. The first category lists three types of conduct that, for the purposes of this discussion, we shall term active behavior, namely, manufacturing, distributing, and dispensing. Within subsection (b ), these types of behavior are listed (and conventionally punctuated with commas) as items in a series. The serial commas are not, as the defendants contend, a substitute for the word "and" inserted between coordinate adjectives. The words in the enumeration in are gerunds (verbal nouns), not adjectives, and the "obvious sense," see Gaynor's Case, 217 Mass. 86, 89, 104 N.E. 339 (1914), dictates reading each of the commas as standing in place of an "or." So too, the context of and its manifest purposes indicate that the "or" is to be given its ordinary disjunctive meaning. See id. at 90, 104 N.E. 339; Bello v. South Shore Hosp., 384 Mass. 770, 782, 429 N.E.2d 1011 (1981), quoting from Eastern Mass. St. Ry. v. Massachusetts Bay Transp. Authy., 350 Mass. 340, 343, 214 N.E.2d 889 (1966). Thus, a showing of any one of the three activities set forth in will support a conviction for trafficking in cocaine. See Commonwealth v. Olivo, 369 Mass. 62, 66-67, 337 N.E.2d 904 (1975). ⁷ We conclude that the statute, on its face, sets out with sufficient clarity "ascertainable standards of guilt," and as a result, is not void for vagueness. Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, (1948). See Opinions of the Justices, 378 Mass. 822, 827, 393 N.E.2d 313 (1979).

2. Constitutionality of the statute--the claim of "cruel or unusual" punishment. The defendants also argue that their motions to dismiss the indictments should have been allowed because the mandatory minimum ten-year prison sentence, see [21 Mass.App.Ct. 542] note 5, supra, for someone who trafficks in 200 grams or more of cocaine (a Class B controlled substance), constitutes "cruel or unusual" punishment in violation of art. 26 of the Massachusetts Declaration of Rights. ⁸ Their argument has two prongs: the first, that the penalty on its face impermissibly conflicts with art. 26, and, the second, that the punishment is constitutionally infirm when applied to offenders who, like the defendants, have no previous record of drug violations.

We consider the first challenge (alleging facial invalidity of the punishment under art. 26) foreclosed by the reasoning in Opinions of the Justices, 378 Mass. at 829-833, 393 N.E.2d 313. In those Opinions, the Justices of the Supreme Judicial Court considered the penalty provision of an earlier proposed version of G.L. c. 94C, § 32 (Senate No. 777 of 1979) which would have imposed a mandatory minimum twenty-five year prison sentence...