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SJC-11623

              COMMONWEALTH   vs.   WALTER THOMPSON.



                       November 10, 2014.

Controlled Substances. "School Zone" Statute.    Statute,
     Amendment, Retroactive application.


     After a jury trial, Walter Thompson was convicted of
distributing cocaine and doing so in a school zone. While his
appeal was pending in the Appeals Court, the school zone
statute, G. L. c. 94C, § 32J, was amended to reduce the radius
of the school zone from 1,000 feet to 300 feet. St. 2012,
c. 192, § 30. In an unpublished decision, a panel of the
Appeals Court ruled that this amendment did not have retroactive
effect, rejected Thompson's other claims of error, and affirmed
the convictions. Commonwealth v. Thompson, 83 Mass. App. Ct.
1135 (2013). We granted Thompson's application for further
appellate review. 467 Mass. 1101 (2014). We now affirm the
convictions, on somewhat different grounds.

     Evidence. We review the evidence presented at trial in the
light most favorable to the Commonwealth. Commonwealth v.
Latimore, 378 Mass. 671, 677-678 (1979). On July 31, 2008, at
approximately 10 P.M., Cambridge police Detectives Kevin Branley
and Ed Liberacki were conducting patrols in Cambridge. From
their parked, unmarked vehicle, they observed (Branley using
binoculars) Michael Benoit and Lori Quigley sitting on a curb in
the parking lot of a convenience store on the corner of Prospect
Street and Broadway. Both detectives were experienced in
detecting street-level narcotics sales and were familiar with
this parking lot from previous narcotics investigations. Benoit
and Quigley were counting change in their open hands and looking
furtively in all directions. Quigley stood and made a call at a
pay telephone attached to the side of the convenience store.
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After about twenty seconds, she hung up the telephone and
returned to the curb, where she and Benoit continued looking up
and down the streets. Quigley paced as she did so. After about
ten minutes, Thompson approached on bicycle on Broadway from the
direction of Harvard Square. He rode through the parking lot
and, without stopping, exchanged a few words with Quigley.
Thompson, with Quigley following him at a hurried pace,
continued on Prospect Street and stopped at a nearby house. As
Quigley approached him, they looked back and forth at each other
and all around in all directions. Quigley extended her hands
toward Thompson, with one palm open and facing up, and the other
in a closed fist. Thompson did the same, extending a closed
fist toward Quigley's open hand and an open hand to her closed
fist. Their hands made contact briefly, in a manner consistent
with exchanging items between them. This exchange took place
approximately 500 feet from school property. Quigley continued
pacing, acting as though she was nervous. She returned to where
Benoit was sitting at the curb. Quigley and Benoit walked at a
quickened pace across the parking lot and onto Broadway toward
Harvard Square. As they walked behind a fence at a nearby
house, Thompson got back on his bicycle and rode down Prospect
Street toward Central Square.

     The detectives radioed a description of Thompson and pulled
into the driveway of the house. They got out of their car and
walked up the driveway alongside the house. They found Quigley
and Benoit behind the house in an area that was well lit with
floodlights. Benoit had in his hand an object that turned out
to be a small plastic bag containing "crack" cocaine, and he was
opening the bag. The detectives identified themselves and
displayed their badges. Benoit quickly extended his hand over a
fence and dropped the bag. The detectives detained them and
radioed for backup. Once backup arrived, Liberacki retrieved
the bag from where Benoit had dropped it. It was the cut-off
corner of a plastic sandwich bag, consistent with packaging of
approximately one-half gram of crack cocaine, which was
typically valued between forty and sixty dollars. The
detectives arrested Benoit and Quigley and read them the Miranda
warnings. Both Benoit and Quigley were searched; among other
things, a glass tube of the type used to smoke crack cocaine was
found on Quigley's person.

     Other officers stopped Thompson in an area between the
store and his home. Branley arrived shortly thereafter and read
Thompson the Miranda warnings. Thompson said that he understood
his rights and wished to speak to the detective. In response to
Branley's question, Thompson stated politely that he was coming
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from a friend's house in Charlestown. Thompson was searched,
resulting in the discovery of two folds of cash, one containing
forty-five dollars and the other containing forty dollars, a
cellular telephone and charger, a pack of cigarettes, and a
cigarette lighter.

     Sufficiency of evidence. Based on the foregoing evidence,
it is clear that the jury had ample basis to convict Thompson of
distributing cocaine. Contrary to Thompson's argument, the
evidence does not equally suggest that Benoit was in possession
of the cocaine at all times. In particular, the officers
observed a hand-to-hand transaction between Thompson and
Quigley, after which Thompson was found with no drugs on his
person, but with folds of cash, and Quigley's companion Benoit
was found with drugs (which he quickly discarded) having roughly
the value of either cash fold found on Thompson. Together with
the participants' furtive behavior, Thompson's arrival within
minutes after Quigley made the telephone call, and the glass
tube found on Quigley's person, this evidence requires no leap
of conjecture to conclude that Thompson sold the crack cocaine
to Quigley.

     Retroactivity of St. 2012, c. 192, § 30. In Commonwealth
v. Bradley, 466 Mass. 551, 561 (2013), we ruled that the recent
amendment to the school zone statute, St. 2012, c. 192, § 30,
applies retroactively to "all cases alleging a school zone
violation for which a guilty plea had not been accepted or
conviction entered as of" the effective date of the amendment.
Thompson now argues that we should extend this rule to his case,
where he had been tried and convicted before the effective date,
but his direct appeal was pending on that date. We disagree.

     As we discussed in Bradley, supra at 555, "the Legislature
did not clearly express an intention that § 30 apply
retroactively." We nonetheless concluded, after considering the
legislative purpose of the statute, that limiting § 30 to
prospective application would be inconsistent with that purpose,
or in the words of G. L. c. 4, § 6, "repugnant to the context of
the same statute." Bradley, supra at 555-561. As § 30 "was
enacted to diminish the unfair disparate impact of the prior
statute on urban and minority residents," id. at 559, we
concluded that failing to apply it to charges that were pending
in the trial court on the effective date would wrongly prolong
that unfair disparate impact. Id. at 561.

     The situation is different, however, where the charges were
already resolved with a trial and conviction that occurred
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before the effective date of the amendment. Applying § 30
retroactively in such cases would necessitate new trials on
convictions that had been entered before the Legislature acted
to change the school zone statute. While it is inconsistent
with the Legislature's purpose not to grant defendants the
benefit of § 30 in trials that take place after the effective
date, we conclude that the Legislature did not intend to grant
new trials to defendants who already had been convicted.
Accordingly, we hold that St. 2012, c. 192, § 30, does not
entitle Thompson to a new trial on his conviction of a school
zone violation where his conviction was entered prior to August
2, 2012.1

     Other issues. Finally, Thompson raises two additional
claims of error: first, that certain photographs were wrongly
admitted and, second, that the judge gave an improper response
to a question from the deliberating jury. He objected to
neither alleged error at trial. We have carefully reviewed the
record and agree with the Appeals Court that there was no
substantial risk of a miscarriage of justice.

                                   Judgments affirmed.

     Matthew C. Harper-Nixon for the defendant.
     Kevin J. Curtin, Assistant District Attorney, for the
Commonwealth.
     Benjamin H. Keehn, Committee for Public Counsel Services,
for Committee for Public Counsel Services, amicus curiae,
submitted a brief.




    1
       We leave for another day the question whether St. 2012,
c. 192, § 30, would apply on retrial if a defendant's conviction
of a school zone violation, entered before August 2, 2012, were
subsequently reversed on other grounds. Because we affirm
Thompson's convictions, we need not decide that issue today.
