Commonwealth v. Bell
| Decision Date | 04 May 2004 |
| Citation | 810 NE 2d 796,442 Mass. 118 |
| Parties | COMMONWEALTH v. TYRONE BELL & another. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.
Michelle Learned, Assistant District Attorney, for the Commonwealth.
Esther J. Horwich for Tyrone Bell.
Susan E. Neff for Wade Crawford.
We must decide whether an alternative education program located in Boston, ABCD University High School, can be a "secondary school" within the meaning of G. L. c. 94C, § 32J, the school zone statute. Tyrone Bell and Wade Crawford were charged in complaints filed in the Boston Municipal Court with distribution of a class B substance (crack cocaine) in violation of G. L. c. 94C, § 32A, and distribution of the substance within 1,000 feet of ABCD University High School, in violation of the school zone statute. Before trial, the Commonwealth sought to preclude defense counsel from referencing, in opening statements, certain regulations promulgated by the Department of Education (department) that define a "secondary school" and impose certain requirements on secondary schools. Defense counsel sought to use the regulations to establish that ABCD University High School is not a secondary school under the school zone statute. After proceedings described below, the Commonwealth filed a petition for relief pursuant to G. L. c. 211, § 3, seeking "a supervisory order" precluding "the [judges] of the Boston Municipal Court from admitting into evidence regulations promulgated by the [department] that define `secondary school,' and any expert testimony about said regulations, in school zone cases." A single justice of this court reserved and reported the case, without decision, to the full court. We conclude that the Commonwealth is entitled to relief.
A private, nonprofit, incorporated human services agency, Action for Boston Community Development (ABCD), operates ABCD University High School, in collaboration with the Boston Public Schools, as a "satellite" alternative education program. The school was established to solve a student capacity problem, to leverage Federal funding, and to provide a cost-effective, alternative education for students who would "historically drop out of school." ABCD University High School offers classes for grades nine through twelve for "at-risk" students at Boston public high schools and some students from Cambridge Rindge and Latin School. ABCD University High School follows a Boston public school calendar so that its students may fulfil Boston public school graduation requirements. There are approximately one hundred students at ABCD University High School. The school is open from 8:10 A.M. to 1:19 P.M. The students attending ABCD University High School remain registered at their "home" high schools, and receive diplomas from their "home" high schools. While ABCD University High School offers students some after-school activities, its students, who have not been expelled from their "home" schools, may seek permission to participate in sports programs at their "sending" schools.
We next outline the complicated proceedings that led to this petition. After the defendants' arraignments, the Commonwealth filed a motion in limine, seeking to preclude counsel for the defendant Bell2 from referencing in her opening statement regulations promulgated by the department that define a "secondary school" and list requirements that secondary schools must meet. One regulation defines a "[s]econdary school" as "any school, be it public or private, that has been designated or approved as a secondary school by the school committee." 603 Code Mass. Regs. § 33.03 (1993). Other regulations impose requirements on secondary schools, including a requirement that the school year "includes at least 185 school days," see 603 Code Mass. Regs. § 27.03(2) (1998), and a requirement "that every secondary school student is scheduled to receive a minimum of 990 hours per school year of structured learning time,"3 see 603 Code Mass. Regs. § 27.04(2) (1998). A Boston Municipal Court judge continued Bell's case without an express ruling on the Commonwealth's motion. The Commonwealth moved to report questions of law to the Appeals Court pursuant to Mass. R. Crim. P. 34, 378 Mass. 905 (1979), and to stay the proceedings. The judge denied the motion to report, and he again continued the case. After considering various other motions and memoranda filed by both parties,4 this judge entered an order referring the Commonwealth's motion in limine to the trial judge, and denying (for a second time) the motion to report. Concerning the motion in limine, the judge stated that, assuming he had previously made any preliminary rulings, such rulings were "revoked."
On the day scheduled for trial, the Commonwealth moved to stay the proceedings in order "to seek further appellate action pursuant to G. L. c. 211, § 3." A different Boston Municipal Court judge held a hearing on outstanding pretrial matters, including the Commonwealth's motion to stay, which, as best we can determine from the audible portion of the hearing, pertained to the issue of what constitutes a "secondary school" under the school zone statute. The prosecutor informed the judge that prior rulings concerning the definition of, and evidence pertaining to, "secondary school," had been "withdrawn," and that the parties were "starting from scratch." The prosecutor argued that the department's regulations should not be admitted in evidence, and that the judge should not read the regulations into the record or state them in his charge to the jury.5 After denying the prosecutor's request to report the case to the Appeals Court, the judge allowed a continuance on the cases to enable both defendants to procure a witness from the department to testify "as to the regulations." The judge noted that this action would obviate the need for the Commonwealth to seek relief pursuant to G. L. c. 211, § 3, and that the Commonwealth would have "no standing to object to [the] continuance" allowed. The judge left the issues concerning the meaning of the term "secondary school," as well as other pretrial motions, for the trial judge. Trial was rescheduled.
The Commonwealth next sought, in the county court, a supervisory order to stay the trial to enable it to pursue its petition for relief under G. L. c. 211, § 3. A single justice entered a stay, and the Commonwealth filed its petition. The single justice then made his reservation and report.
1. The defendants argue that we should not exercise our power under G. L. c. 211, § 3, to review the matter because (1) there is no actual ruling or order to review; (2) evidentiary rulings ordinarily are not subject to review under G. L. c. 211, § 3; and (3) we have never granted relief to the Commonwealth from a prospective evidentiary ruling. Each of these arguments is technically correct. See Commonwealth v. Yelle, 390 Mass. 678, 687 (1984). We conclude, nonetheless, that it is appropriate to exercise our general superintendence power under G. L. c. 211, § 3.
We arrive at this conclusion for several reasons. First, the issue raised by the Commonwealth's petition is not solely evidentiary. Rather, the petition presents the question how the trial judge should instruct the jury on an essential element of the offense. See Commonwealth v. Gonzales, 33 Mass. App. Ct. 728, 730 (1992) (). See also Commonwealth v. Ellerbe, 430 Mass. 769, 772 (2000), and cases cited. This issue cannot be avoided and, without immediate intervention, will arise soon again in these cases (and in others). The defendant Bell acknowledges as much in a pretrial memorandum. Additionally, the judge refused to report the case to the Appeals Court, and fashioned his ruling allowing a continuance, to prevent the Commonwealth from seeking relief pursuant to G. L. c. 211, § 3. The Commonwealth has shown that it has no other means of effective appellate review. The appeal thus represents one of those most exceptional occasions appropriate for us to act under G. L. c. 211, § 3, "to correct and prevent errors and abuses." See Commonwealth v. Yelle, supra. See also Commonwealth v. Gonzalez, 437 Mass. 276, 281 n.2 (2002), cert. denied, 538 U.S. 962 (2003).
2. As had been said, in a prosecution under the school zone statute, the Commonwealth must prove that the school is one of the types enumerated in the statute. See Commonwealth v. Ellerbe, supra. The school zone statute provides:
G. L. c. 94C, § 32J. The statute does not define the term "secondary school." Because the...
To continue reading
Request your trial
-
In Matter of Grand Jury Investigation, SJC-09343 (MA 12/14/2004)
...facts of this case, the phrase "living with a parent" is not ambiguous, and in keeping with its ordinary meaning, see Commonwealth v. Bell, 442 Mass. 118, 124 (2004), only unemancipated, minor children who actually reside with the accused parent may invoke the disqualification (assuming the......
-
In the Matter of a Grand Jury Investigation
...facts of this case, the phrase "living with a parent" is not ambiguous, and in keeping with its ordinary meaning, see Commonwealth v. Bell, 442 Mass. 118, 124 (2004), only unemancipated, minor children who actually reside with the accused parent may invoke the disqualification (assuming the......