Com. v. Tata

• Decision Date: 08 November 1989
• Docket Number: No. 89-P-227,89-P-227
• Citation: 28 Mass.App.Ct. 23,545 N.E.2d 1179
• Parties: COMMONWEALTH v. Patrick TATA, Jr.
• Court: Appeals Court of Massachusetts

Page 1179

545 N.E.2d 1179

28 Mass.App.Ct. 23

COMMONWEALTH v. Patrick TATA, Jr.

No. 89-P-227.

Appeals Court of Massachusetts,

Middlesex.

Argued Oct. 5, 1989.

Decided Nov. 8, 1989.

Robert L. Sheketoff, Boston, for defendant.

David R. Marks, Asst. Dist. Atty., for the Com.

Before BROWN, KAPLAN and PERRETTA, JJ.

KAPLAN, Justice.

The defendant was indicted for trafficking in cocaine of a weight of one hundred grams or more but less than two hundred grams (G.L. c. 94C, § 32E[b ], as appearing in St.1983, c. 571, § 3). Under a search warrant, the police seized drugs and other things found in a designated apartment and a related hall closet or locker. Before trial the defendant moved to suppress the evidence seized, and to suppress also certain statements made by the defendant during the execution of the warrant. The first motion failed; the second was allowed in part. At trial the jury brought in a verdict of guilty of trafficking as charged. The defendant appeals from the judgment of conviction. Also under appeal is the denial of a postverdict motion for a new trial based upon an alleged conflict of interest on the part of defense counsel.

1. The judge left to the jury the trafficking in 100-200 grams and the lesser-included offense of simple possession; he did not put to the jury, as additional lesser-included offenses, trafficking in 28-100 grams or possession with intent to distribute. The defendant contends that the omission was error. We must set the stage.

Seized under the warrant in the apartment was a bag with a small residue of cocaine, and from the closet, 111.82 grams of eighty-six percent pure cocaine in "rock" form. Also seized were paraphernalia of the narcotics trade, which need not be described.

The defendant took the position at trial with respect to the rock cocaine that he did not possess or control it for any purpose, whether for trafficking or personal use. However, he attempted to show that he was a cocaine user of up to two grams a week.

The defendant objected to the judge's omission to charge in accordance with the defendant's proposed instruction No. 1 (as well as Nos. 2 and 3). No. 1 was entitled "Instruction on 'Lesser Included Offenses' " and set out proposed charges on the three offenses short of the larger trafficking offense named in the indictment. The defendant referred the judge to the proposed instruction by number. He did not address the judge on the grounds of the instruction or, correspondingly, the grounds of the objection to the court's failure to give the instruction. Thus the defendant appears to have done less than is called for by Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979), which requires that counsel specify both "the matter to which he objects" and "the grounds of his objection." See Commonwealth v. Keevan, 400 Mass. 557, 563-564, 511 N.E.2d 534 (1987); Commonwealth v. Maskell, 403 Mass. 111, 115, 526 N.E.2d 756 (1988).

The defendant gets around to stating his "grounds" in his brief on appeal. There he indicates that, in his conception of trafficking by possession with the intent to distribute, the Commonwealth is bound to prove, out of the total quantity of the drug the defendant possessed, what amount thereof he intended to distribute, and it is that amount which fixes the range or bracket of the trafficking, e.g., whether 28-100 or 100-200. Thus, in the defendant's view, the jury should have been asked to attempt to consider (even despite the defendant's disclaimer of possession of the rock) what part of the rock was intended to be consumed by the defendant himself, and to deduct that amount from the 111.82 grams: thus an instruction would be in order as to the lesser offense involving 28-100 grams.

We think this interpretation of the statute is erroneous and the quantity of rock possessed by the defendant fixed the trafficking bracket so long as there was an intent to distribute some part of it. The language of the statute easily permits that interpretation, ¹ and it is reason for accepting the reading that the defendant's contrary interpretation would create great practical difficulty in the enforcement of the law. We cannot suppose that a Legislature which has successively increased the penalties for trafficking would be content with the defendant's interpretation or its practical result. The maxim that penal statutes are to be strictly construed does not mean that an available and sensible interpretation is to be rejected in favor of a fanciful or perverse one. See Edgartown v. State Ethics Commn., 391 Mass. 83, 90, 460 N.E.2d 1283 (1984) (quoting from Simon v. Solomon, 385 Mass. 91, 102-103, 431 N.E.2d 556 [1982]: the maxim "is a guide for resolving ambiguity, rather than a rigid requirement that we interpret...