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SJC-12097

             COMMONWEALTH   vs.   MARCUS G. PETERSON.



        Suffolk.      October 5, 2016. - January 3, 2017.

 Present:   Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
                             Budd, JJ.


Controlled Substances. "School Zone" Statute.    Practice,
     Criminal, Dismissal.



     Complaint received and sworn to in the Central Division of
the Boston Municipal Court Department on June 23, 2014.

    A motion to dismiss was heard by Eleanor C. Sinnott, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Matthew T. Sears, Assistant District Attorney (Amanda Read
Cascione, Assistant District Attorney, with him) for the
Commonwealth.
     J. Scott Lauer, Committee for Public Counsel Services, for
the defendant.


    GAZIANO, J.    General Laws c. 94C, § 32J, the so-called

school zone statute, punishes individuals who commit certain

enumerated drug offenses within 300 feet of a school or one
                                                                   2


hundred feet of a public park or playground.    In 1992, we

determined that the school zone statute does not violate a

defendant's due process rights, but cautioned that "[t]here may

be extraordinary circumstances shown in some cases which would

make it unfair to find guilt under § 32J."     Commonwealth v.

Alvarez, 413 Mass. 224, 228, 230 n.5 (1992).    This case tests

the bounds of school zone statute liability.    The issue

presented is whether the statute applies to a defendant who is

located momentarily within one hundred feet of a public park

solely because he is a passenger in a motor vehicle that is

driven on a public roadway past the park and, fortuitously,

stops at a red light.   We conclude that application of G. L.

c. 94C, § 32J, to the defendant, in the particular facts and

circumstances of this case, would be overreaching.    The park

zone charge, therefore, must be dismissed.

    Background.    The following facts are drawn from the police

report; they are uncontested for purposes of this interlocutory

appeal.   On May 12, 2014, at approximately 5:45 P.M., three

police officers assigned to the Boston police department's youth

violence strike force were on patrol in the Dorchester section

of Boston in a police cruiser.   Driving down Ceylon Street, they

observed a white Chevrolet Cruze automobile in front of them,

stopped at a red light at the intersection of Ceylon Street and

Columbia Road.   Immediately adjacent to Ceylon Street, at that
                                                                    3


intersection, is a public park called Ceylon Park.    While

traveling along Ceylon Street and when stopped at the light, the

Chevrolet was within one hundred feet of the park.

    There were four people in the vehicle, including the

defendant, who was the front seat passenger.    The three officers

learned through their onboard computer that the vehicle's

inspection sticker had expired.    When the light turned green,

the vehicle proceeded through the intersection.    The officers

activated their lights and sirens and stopped the vehicle a

short distance away, at the intersection of Columbia Road and

Hamilton Street, at which point the vehicle was no longer within

one hundred feet of Ceylon Park.

    When asked for his license and registration, the driver

told police that he did not have a driver's license or

registration for the vehicle.   He provided a name and birth date

that the officers later discovered was false.    The officers also

obtained names and dates of birth from the passengers, none of

whom was wearing a seat belt.   Two of the officers returned to

the police cruiser to verify this information.

    The officer who remained at the vehicle noticed the

defendant remove a clear plastic bag from his left front pants

pocket and drop it on the floorboard behind him, in front of a

female passenger's feet.   The officer opened the front passenger

door to investigate, and a struggle ensued when the defendant
                                                                    4


pushed him away.   When they saw the door being opened, the other

officers returned from the cruiser and assisted in removing the

defendant from the vehicle.   He was handcuffed and seated on the

ground, and the other occupants were ordered to get out of the

vehicle.   The officers searched the vehicle and found the clear

plastic bag.   It contained forty individually wrapped "bumps" of

what appeared to be "crack" cocaine, and six pills that appeared

to be a prescription drug.    The officers arranged to have the

vehicle towed and conducted an inventory search prior to towing.

In a brown leather bag on the front passenger's side floorboard,

they discovered a loaded, semiautomatic handgun.   After the

discovery of the weapon, the other occupants of the vehicle were

handcuffed for officer safety.   The rear seat passengers were

given warnings about the seat belt violations and released, and

the driver was arrested for unlawful possession of a firearm.

    The defendant was arrested and charged with a number of

firearm offenses, resisting arrest, assault and battery on a

police officer, and three narcotics offenses:   possession of a

class B controlled substance, in violation of G. L. c. 94C,

§ 34; possession of a class B controlled substance with intent

to distribute, in violation of G. L. c. 94C, § 32A; and

committing a drug offense within one hundred feet of a public

park, in violation of G. L. c. 94C, § 32J.   The defendant sought

to dismiss the park zone charge, arguing that G. L. c. 94C,
                                                                    5


§ 32J, is unconstitutional as applied to him, and that

prosecution in these circumstances would violate his right to

due process, "given that [he] was a passenger in a vehicle

driven by another individual and his presence within [one

hundred] feet of a park zone was entirely fortuitous" and not

the sort of circumstance the Legislature intended to reach in

enacting G. L. c. 94C, § 32J.   After a nonevidentiary hearing,

the judge allowed the motion for the reasons argued by the

defendant.   The Commonwealth filed a timely notice of appeal,

and we transferred the case from the Appeals Court on our own

motion.

    Discussion.    The Legislature is vested with unquestioned

authority to define crimes and set penalties.   See Commonwealth

v. Jackson, 369 Mass. 904, 922 (1976).   "The function of the

[L]egislature [in defining crimes and their punishments] is

primary, its exercises fortified by presumptions of right and

legality, and is not to be interfered with lightly, nor by any

judicial conception of their wisdom or propriety."   Commonwealth

v. Brown, 466 Mass. 676, 684-685 (2013), quoting Weems v. United

States, 217 U.S. 349, 379 (1910).   This power includes the

authority to create strict liability criminal offenses whereby

the Commonwealth is relieved of its obligation to prove an

intent to commit a crime.   See Commonwealth v. Knap, 412 Mass.

712, 715 (1992).
                                                                   6


     General Laws c. 94C, § 32J, comprises, in part, an aspect

of strict liability.1    The only proof of intent required under

§ 32J is the intent required to commit the underlying drug

offense.    No additional proof of a defendant's knowledge or

intent with respect to the boundaries of a school zone is

required.    See Commonwealth v. Roucoulet, 413 Mass. 647, 650

(1992); Alvarez, 413 Mass. at 229.    Indeed, the statute provides

explicitly that "[l]ack of knowledge of school boundaries shall

not be a defense to any person who violates the provisions of




     1
         General Laws c. 94C, § 32J, provides in relevant part:

          "Any person who violates the provisions of [G. L.
     c. 94C, §§ 32, 32A-32F, or 32I,] while in or on, or within
     300 feet of the real property comprising a public or
     private accredited preschool, accredited headstart
     facility, elementary, vocational, or secondary school if
     the violation occurs between [5 A.M.] and midnight, whether
     or not in session, or within one hundred feet of a public
     park or playground shall be punished by a term of
     imprisonment in the state prison for not less than two and
     one-half nor more than fifteen years or by imprisonment in
     a jail or house of correction for not less than two nor
     more than two and one-half years. No sentence imposed
     under the provisions of this section shall be for less than
     a mandatory minimum term of imprisonment of two years. A
     fine of not less than [$1,000] nor more than [$10,000] may
     be imposed but not in lieu of the mandatory minimum two
     year term of imprisonment as established herein. In
     accordance with the provisions of [G. L. c. 279, § 8A,]
     such sentence shall begin from and after the expiration of
     the sentence for violation of [the predicate offense].

          "Lack of knowledge of school boundaries shall not be a
     defense to any person who violates the provisions of this
     section."
                                                                     7


this section."2   G. L. c. 94C, § 32J.   Thus, the penalty applies

regardless of whether a defendant intended to distribute drugs

in a particular school zone or planned to do so elsewhere, and

was present in the school zone only momentarily.     See Alvarez,

supra.   See, e.g., Commonwealth v. Bradley, 466 Mass. 551, 556

(2013) (school zone conviction does not require proof of "any

additional wrongdoing by the defendant; it is enough that the

drug violation occurred within a school zone, regardless whether

the defendant knew he was within a school zone"); Roucoulet,

supra at 650-651, quoting State v. Ivory, 124 N.J. 582, 593

(1991) ("one need only take out the tape measure to see if [the

school zone provision of § 32J] has been violated").

     In Alvarez, 413 Mass. at 228-230, we concluded that G. L.

c. 94C, § 32J, does not violate due process of law

notwithstanding that the statute expressly "removes guilty

knowledge as to one element of the offense, namely the school

boundaries element."   We noted that the Legislature has "broad

power to define and limit the mens rea element of criminal

offenses" (citation omitted), id. at 229, and permissibly did so

in drafting the school zone statute.     We cautioned, however,


     2
       We assume for purposes of discussion, without deciding,
that this language applies to park and playground boundaries as
well as to school boundaries. Given the result we reach, we
need not resolve the defendant's alternate argument that the
statute imposes strict liability only for school zone
violations, and not for violations near parks or playgrounds.
                                                                   8


that "[t]here may be extraordinary circumstances shown in some

cases which would make it unfair to find guilt under [G. L.

c. 94C,] § 32J."3   Id. at 230 n.5.

     At issue in this appeal is the extent of this strict

liability aspect of G. L. c. 94C, § 32J.    Specifically, we are

asked to determine whether the Legislature possibly could have

intended the school zone statute to apply to someone like the

defendant, who, albeit in possession of drugs with intent to

distribute, does nothing more than simply travel as a passenger

in a motor vehicle on a public roadway past a school, park, or

playground.

     "Our primary duty in interpreting a statute is 'to

effectuate the intent of the Legislature in enacting it.'"

Sheehan v. Weaver, 467 Mass. 734, 737 (2014), quoting Water

Dep't of Fairhaven v. Department of Envtl. Protection, 455 Mass.

740, 744 (2010).    "Ordinarily, where the language of a statute

is plain and unambiguous, it is conclusive as to legislative

     3
       In discussing a hypothetical example of an impermissible,
overbroad application, we pointed to United States v. Coates,
739 F. Supp. 146, 152-153 (S.D.N.Y. 1990). In that case, a
United States District Court judge dismissed Federal school zone
charges brought against two defendants who had boarded an
underground train at Penn Station carrying a large quantity of
cocaine. Id. at 153. The defendants were within 1,000 feet of
a school located in an office complex adjoining the train
station. Id. The judge explained, "To charge a schoolyard
count in these circumstances stretches the scope of the statute
beyond logical and acceptable bounds. . . . To posit liability
under [the Federal school zone act] in these fortuitous
circumstances is simply overreaching." Id.
                                                                     9


intent."   Thurdin v. SEI Boston, LLC, 452 Mass. 436, 444 (2008).

That said, we do not adhere blindly to a literal reading of a

statute if doing so would yield an "absurd" or "illogical"

result (citations omitted).    Commonwealth v. Parent, 465 Mass.

395, 409-410 (2013).    Commonwealth v. Rahim, 441 Mass. 273, 278

(2004).    See Attorney Gen. v. School Comm. of Essex, 387 Mass.

326, 336 (1982) ("We will not adopt a literal construction of a

statute if the consequences of such construction are absurd or

unreasonable"); 2A N.J. Singer & S. Singer, Statutes and

Statutory Construction § 46:7 (7th ed. rev. 2014) ("if the

literal text of an act is inconsistent with legislative meaning

or intent, or leads to an absurd result, a statute is construed

to agree with the legislative intention").    See also Black's Law

Dictionary 11-12 (10th ed. 2014) (defining "absurdity" as "being

grossly unreasonable" and "[a]n interpretation that would lead

to an unconscionable result, esp. one that . . . the drafters

could not have intended").

    The Commonwealth argues that the phrase "within one hundred

feet of a public park or playground" must be read and applied

literally, to encompass an individual who is physically present

within one hundred feet of a park in essentially any manner, for

any reason, and for any period of time.   We do not agree.   A

literal application, as urged by the Commonwealth, could

sometimes "yield an absurd or unworkable result" (citation
                                                                   10


omitted), Commonwealth v. Perella, 464 Mass. 274, 276 (2013), as

it does here.   Under the Commonwealth's reading, for example, a

drug offender traveling on a Massachusetts highway, who sped

past a roadside public park at sixty-five miles per hour for a

matter of seconds, would be subjected to the severe statutory

penalty for a park zone violation.4

     We see nothing in the history or purpose of the statute

that justifies such an extreme and excessive result.   It is well

settled, through legislative history and two decades of

decisional law examining that history, that the purpose of G. L.

c. 94C, 32J, is to protect children from the harmful impact of

drug dealing.   See Commonwealth v. Bell, 442 Mass. 118, 124-125

(2004) (intent of Legislature to provide drug-free school

zones).   Then Governor Michael Dukakis proposed the legislation

"[in order to make] every school and surrounding community safe

from the destructive impact of drug trafficking and drug abuse."

Id., quoting Roucoulet, 413 Mass. at 651 n.7.   See Bradley, 466

Mass. at 556 (when first enacted in 1989, legislative purpose of

G. L. c. 94C, 32J, was to protect school children from drug

dealers by creating drug-free school zones).


     4
       The fact that the defendant in this case was traveling on
a local street and not on a highway is not by itself
dispositive. The critical fact is that he was in a vehicle
being driven past the park, which stopped by happenstance at a
red light, and that this was the sole basis alleged by the
Commonwealth for his coming within the scope of the statute.
                                                                   11


    More recently, recognizing the statute's uneven impact on

people who live in urban areas, the Legislature amended the

school zone statute to reduce the school zone radius from 1,000

feet to 300 feet, and to limit the time period in which a

violation may occur to between the hours of 5 A.M. and midnight.

See St. 2012, c. 192, §§ 30, 31.   The Legislature observed that

the broader 1,000-foot radius created "an unfair disparate

impact on those residing in urban areas and, consequently, on

minority residents, and [that] the broader radius did not better

protect school children from drug dealers."   Bradley, 466 Mass.

at 559.   The newly created time restriction for violations, of

course, excludes hours of the day (midnight to 5 A.M.) when

there is little practical chance that children will be in or

near schools and parks.

    Given the Legislature's stated reasons for enacting the

statute, we do not think the Legislature possibly intended G. L.

c. 94C, § 32J, to apply to an individual who merely passes

momentarily by a school or a park while traveling on a public

roadway in an automobile driven by another person, which would

not have stopped but for a change in a traffic signal.   In these

circumstances, the defendant's physical appearance in the park

zone was by chance.   There is no suggestion that he engaged,

attempted to engage, or intended to engage in any type of drug

transaction within the protected area, or had any other type of
                                                                     12


connection whatsoever to the protected area; and there is no

evidence that his momentary presence as he passed by the area in

these circumstances posed any real or potential risk to children

or anyone else in the park.    Applying the statute literally in

these particular circumstances thus would not serve the

legitimate goals of the statute.

    In sum, "[w]e do not believe the . . . Legislature intended

the [school zone] statute to apply to an individual not

apprehended within the school [or park] zone and where

uninterrupted passage in an automobile through the school [or

park] zone was fortuitous.    As stated in [United States v.]

Coates, [739 F. Supp. 146, 152–153 (S.D.N.Y. 1990),] a contrary

holding would stretch the statute beyond logical and acceptable

bounds.   We will not conclude the [L]egislature intended such an

unreasonable result."   State v. Barnes, 275 Kan. 364, 375

(2003).

    We emphasize that this ruling is limited to the specific

facts presented here and to the predicate offense of possession

of a controlled substance with intent to distribute.   It is not

counter to, and does not alter, our decisions in Commonwealth v.

Roucoulet, 413 Mass. 647 (1992), and Commonwealth v. Alvarez,

413 Mass. 224 (1992), or the Appeals Court's decision in

Commonwealth v. Labitue, 49 Mass. App. Ct. 913 (2000).     Mindful

that the "absurd results doctrine must be used sparingly,"
                                                                  13


2A N.J. Singer & S. Singer, Statutes and Statutory Construction

§ 46:7 at 279 (7th ed. rev. 2014), we hold only that the

application of G. L. c. 94C, § 32J, to this defendant in the

particular facts and circumstances of this case would be

overreaching.

                                   Order allowing motion to
                                     dismiss affirmed.
