Commonwealth v. Keefner, SJC–11019.

• Citation: 961 N.E.2d 1083,461 Mass. 507
• Decision Date: 13 February 2012
• Docket Number: SJC–11019.
• Parties: COMMONWEALTH v. Shawn M. KEEFNER.
• Court: United States State Supreme Judicial Court of Massachusetts

461 Mass. 507

961 N.E.2d 1083

COMMONWEALTH

v.Shawn M. KEEFNER.

SJC–11019.

Supreme Judicial Court of Massachusetts, Berkshire.

Argued Nov. 7, 2011.Decided Feb. 13, 2012.

John P. Bossé, Assistant District Attorney, for the Commonwealth.

David M. Skeels, Cambridge, Committee for Public Counsel Services (Lisa A. Ruggieri, Wellesley, with him) for the defendant.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

IRELAND, C.J.

A single justice of this court granted the Commonwealth leave to file an interlocutory appeal from a District Court judge's order in the Appeals Court, see Mass. R.Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). We transferred this case here on our motion to consider whether, in view of the enactment of G.L. c. 94C, § 32L, inserted by St.2008, c. 387, § 2, which decriminalized possession of one ounce or less of marijuana, a defendant may be criminally charged with possession with intent to distribute marijuana, in violation of G.L. c. 94C, § 32C ( a ), where the amount of marijuana possessed is one ounce or less. Also before us is the Commonwealth's appeal from an order allowing the defendant's motion to suppress.

We conclude that the passage of G.L. c. 94C, § 32L, did not repeal the offense of possession of marijuana with intent to distribute, G.L. c. 94C, § 32C ( a ), where the amount of marijuana possessed is one ounce or less. We also determine that, while the sale of any amount of marijuana remains a criminal offense under G.L. c. 94C, § 32L, third par., a prosecution under G.L. c. 94C, § 32C ( a ), is not limited solely to situations where the “distribut[ion]” involves a sale. Accordingly, we reverse the order allowing the defendant's motion to dismiss. Last, we affirm the allowance of the defendant's motion to suppress.

1. Motion to dismiss. a. Background. The defendant is charged with possession of a class D substance (marijuana) with intent to distribute, as a subsequent offense, G.L. c. 94C, § 32C ( a ) and ( b ). The charge arose from an incident that occurred on the afternoon of May 23, 2010, as noted in a police report.¹ The Great Barrington police department received a telephone call from a woman indicating that her daughter and others were smoking marijuana on her property. The police responded to the residence and observed six people, including the defendant, sitting in an area of the front porch. The police searched the defendant and in his pockets found three sandwich bags of marijuana,² a cellular telephone, and ninety-eight dollars in cash. The total weight of the marijuana was six grams, which is less than one quarter of one ounce.

The defendant moved to dismiss the complaint, asserting that the possession of less than one ounce of marijuana, with intent to distribute, is not a crime in light of the enactment of G.L. c. 94C, § 32L, which decriminalized possession of one ounce or less of marijuana. A District Court judge agreed, concluding that, in accordance with the rules of statutory construction, § 32L punishes those who sell one ounce or less of marijuana, but does not punish those who distribute it unless the distribution involves the exchange of money or other consideration. The Commonwealth appealed from the judge's order allowing the motion to dismiss.

b. Discussion. The question before us is what effect, if any, does the passage of G.L. c. 94C, § 32L, have on the offense of possession of marijuana with intent to distribute under G.L. c. 94C, § 32C ( a ). Under our current law, it is a criminal offense to possess marijuana with the intent to distribute it. See G.L. c. 94C, § 32C ( a ) (“Any person who knowingly or intentionally ... distributes ... or possesses with intent to ... distribute ... [marijuana] shall be imprisoned ...”). The act of simple possession of marijuana is also a crime and is listed separately in the General Laws, see G.L. c. 94C, § 34, and generally prohibits the unauthorized possession of controlled substances, including marijuana.

On November 4, 2008, voters approved St.2008, c. 387, pursuant to the provisions of art. 48, The Initiative, Part V, § 1, as amended by art. 81, § 2, of the Amendments to the Massachusetts Constitution. See Commonwealth v. Cruz, 459 Mass. 459, 464, 945 N.E.2d 899 (2011). This initiative is entitled, “An Act establishing a sensible State marihuana policy” (act). See St.2008, c. 387. The act, in the main, changed the status of the possession of one ounce or less of marijuana from a criminal offense to a civil offense. See St.2008, c. 387, § 2. Section 2 of the act, which is codified at G.L. c. 94C, § 32L, states in relevant part:

“Notwithstanding any general or special law to the contrary, possession of one ounce or less of marihuana shall only be a civil offense, subjecting an offender who is eighteen years of age or older to a civil penalty of one hundred dollars and forfeiture of the marihuana, but not to any other form of criminal or civil punishment or disqualification....

“Except as specifically provided in [the act], neither the Commonwealth nor any of its political subdivisions or their respective agencies, authorities or instrumentalities may impose any form of penalty, sanction or disqualification on an offender for possessing an ounce or less of marihuana.... Information concerning the offense of possession of one ounce or less of marihuana shall not be deemed ‘criminal offender record information’ ... and shall not be recorded in the Criminal Offender Record Information system.

“As used herein, ‘possession of one ounce or less of marihuana’ includes possession of one ounce or less of marihuana or tetrahydrocannabinol and having cannabinoids or cannibinoid metabolites in the urine, blood, saliva, sweat, hair, fingernails, toe nails or other tissue or fluid of the human body. Nothing contained herein shall be construed to repeal or modify existing laws, ordinances or bylaws, regulations, personnel practices or policies concerning the operation of motor vehicles or other actions taken while under the influence of marihuana or tetrahydrocannabinol, laws concerning the unlawful possession of prescription forms of marihuana or tetrahydrocannabinol such as Marinol, possession of more than one ounce of marihuana or tetrahydrocannabinol, or selling, manufacturing or trafficking in marihuana or tetrahydrocannabinol. Nothing contained herein shall prohibit a political subdivision of the Commonwealth from enacting ordinances or bylaws regulating or prohibiting the consumption of marihuana or tetrahydrocannabinol in public places and providing for additional penalties for the public use of marihuana or tetrahydrocannabinol.”

Section 3 of the act, which is codified at G.L. c. 94C, § 32M, requires youthful offenders to complete a drug awareness program “within one year of the offense for possession of one ounce or less of marihauna.” In addition, § 4 of the act, which is codified at G.L. c. 94C, § 32N, provides directives to police departments to enforce violations of § 2 using “non-criminal disposition procedures” under G.L. c. 40, § 21D (noncriminal citation forms). Last, § 5 of the act in two respects amended G.L. c. 94C, § 34 (discussed later), which pertains to simple possession of marijuana.

To resolve the issue before us we apply settled principles of statutory construction “as we would any other statute adopted in the normal legislative process.” Commonwealth v. Cruz, supra at 471 n. 22, 945 N.E.2d 899. When a statute's language is plain and unambiguous, we afford it “its ordinary meaning.” Commonwealth v. Brown, 431 Mass. 772, 775, 730 N.E.2d 297 (2000). “Where the draftsmanship of a statute is faulty or lacks precision, it is our duty to give the statute a reasonable construction.” Capone v. Zoning Bd. of Appeals of Fitchburg, 389 Mass. 617, 622, 451 N.E.2d 1141 (1983), quoting School Comm. of Greenfield v. Greenfield Educ. Ass'n, 385 Mass. 70, 79–80, 431 N.E.2d 180 (1982). We “must construe the statute ‘in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.’ ” Capone v. Zoning Bd. of Appeals of Fitchburg, supra at 622–623, 451 N.E.2d 1141, quoting Industrial Fin. Corp. v. State Tax Comm'n, 367 Mass. 360, 364, 326 N.E.2d 1 (1975). In addition, a statute must be construed “so that effect is given to all its provisions, so that no part will be inoperative or superfluous.” Bankers Life & Cas. Co. v. Commissioner of Ins., 427 Mass. 136, 140, 691 N.E.2d 929 (1998), quoting 2A B. Singer, Sutherland Statutory Construction § 46.05 (5th ed. 1992). Significantly, a statute must be interpreted “as a whole”; it is improper to confine interpretation to the single section to be construed. Wolfe v. Gormally, 440 Mass. 699, 704, 802 N.E.2d 64 (2004), quoting 2A N. Singer, Sutherland Statutory Construction § 46.05, at 154 (6th ed. 2000).

Here, the crimes of simple possession of marijuana and possession of marijuana with intent to distribute are listed separately in the General Laws, have different elements, and are distinct. Compare G.L. c. 94C, § 34 (possession of controlled substance), with G.L. c. 94C, § 32C ( a ) (possession of marijuana with intent to distribute). The act, insofar as it relates to the simple possession statute, only applies to a small amount (one ounce or less) of marijuana. In contrast, the crime of possession with intent to distribute applies to any amount of marijuana if the intent is to distribute it (as opposed to personal use). Significantly, in addition to expressly decriminalizing the possession of one ounce or less of marijuana, the act specifically amended § 34 (the simple possession statute) to set forth an exemption of possession of marijuana of one ounce or less under § 32L from the crime of unlawful possession and set forth an exemption of possession of marijuana of one ounce or less under § 32L...