Petition — Comins v. Massachusetts

Supreme Court, Us

~ FILED

FEB 3 1977

MICHAEL RO "

In the DAK, "%., CLERK |

Supreme Court of the United States.

OcroBer TERM, 1976.

No.6 = 1068

ARNOLD C. COMINS,

PETITIONER,

v.

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

Petition for Writ of Certiorari to the Supreme Judicial Court

for the Commonwealth of Massachusetts.

Rospert W. HARRINGTON,

Juprrn _E. Dtamonp,

Danie, E. CALLAHAN III,

HARRINGTON AND GORMLEY,

75 Federal Street,

Boston, Massachusetts 02110.

(617) 426-1424

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS.

Table of Contents.

Opinion below

Jurisdiction

Questions presented

Constitutional and statutory provisions

Statement of the case

awn n WD WW

Reasons for granting the writ

I. The decision below raises a constitutional ques-

tion which has not yet been addressed by the

Court. 5

II. The decision below raises a question of the

permissible constitutional limits of state statutory

construction mandating review by this Court. 8

Conclusion — 12

Appendix follows page 12

Judgment of the Supreme Judicial Court of Massa-

chusetts, entered October 18, 1976 la

Denial of rehearing by the Supreme Judicial Court

of Massachusetts, dated November 5, 1976 2a

Opinion of the Supreme Judicial Court of Massa-

chusetts, dated October 18, 1976 3a

Indictments by Barnstable County Grand Jury,

dated April 1973 l6a

Indictments Nos. 34241-34247 by Barnstable

County Grand Jury, dated April 1974 18a

Motion to dismiss indictments Nos. 34241-34247 22a

Further motion to dismiss indictments Nos. 34241-

34247 24a

Barnstable County Grand Jury Minutes, dated

April 4, 1974, pages 11-15 25a

ii TABLE OF AUTHORITIES CITED.

Table of Authorities Cited.

CASES.

Beck v. Washington, 369 U.S. 541 (1962)

Bouie v. City of Columbia, 378 U.S. 347 (1964)

Commonwealth v. Comins, ____. Mass. __, 356 N.E.

2d 241 (1976)

Costello v. United States, 350 U.S. 359 (1956)

Douglas v. Buder, 412 U.S. 430 (1973)

Hale v. Henkel, 201 U.S. 43 (1906)

Lanzetta v. New Jersey, 306 U.S. 451 (1939)

Lawn v. United States, 355 U.S. 339 (1958)

Martin v. Beto, 397 F. 2d 741 (5th Cir. 1968)

Palmer v. City of Euclid, 402 U.S. 544 (1971)

United States v. Bartee, 479 F. 2d 484 (10th Cir. 1973)

United States v. Collier, 478 F. 2d 268 (5th Cir. 1973)

United States v. Larson, 507 F. 2d 385 (9th Cir. 1974)

United States v. Sweig, 316 F. Supp. 1148 (S.D. N.Y.

1970), aff'd, 441 F. 2d 114 (2d Cir. 1971), cert. den.

403 U.S. 932 (1971)

CONSTITUTIONAL AND STATUTORY PROVISIONS.

United States Constitution

Fifth Amendment

Fourteenth Amendment

7

11, 12

2,7

5, 6, 7

11

TABLE OF AUTHORITIES CITED.

28 U.S.C. § 1257(3)

Mass. Gen. Laws c. 94C

§ 19

§ 32

iii

2.

8

3, 4, 8, 9, 10, 12

In the

Supreme Court of the United States.

Ocroser TERM, 1976.

No.

ARNOLD C. COMINS,

PETITIONER,

v.

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

Petition for Writ of Certiorari to the Supreme Judicial Court

for the Commonwealth of Massachusetts.

The petitioner, Arnola C. Comins, respectfully prays that a

writ of certiorari issue to review the judgment of the Supreme

Judicial Court of Massachusetts entered on October 18, 1976,

upon which rehearing was denied November 5, 1976.

2

The opinion of the Supreme Judicial Court is reported in

1976 Mass. Adv. Sh. 2448, 356 N.E. 2d 241, and is set forth in

the Appendix hereto (pages 3a-16a).

Jurisdiction.

The judgment of the Supreme Judicial Court for the Com-

monwealth of Massachusetts was entered on October 18, 1976

(App. la), and rehearing was denied November 5, 1976 (App.

2a). The jurisdiction of this Court is invoked pursuant to

28 U.S.C. § 1257(3).

Questions Presented.

1. Whether indictments based upon hearsay testimony Of

an inflammatory and prejudicial nature are violative of due

process.

2. ‘Whether the petitioner was denied due process in that

he did not receive fair notice of the offenses with which he

was charged.

Constitutional and Statutory Provisions.

Section 1 of the Fourteenth Amendment to the Constitution

of the United States:

“All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

3

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal pro-

tection of the laws.”

Section 32 (paragraph one) of chapter 94C of the General

Laws of Massachusetts:

“Except as authorized by this chapter, no person shall

knowingly or intentionally manufacture, distribute, dis-

pense, or possess with intent to manufacture, distribute or

dispense a controlled substance; or create, distribute, dis-

pense, or possess with intent to dist“bute or dispense

a counterfeit substance.”

Statement of the Case.

The petitioner, an osteopathic physician, was indicted in

April, 1973, by a grand jury of the County of Barnstable,

Massachusetts. There were two indictments returned at that

time, both charging the petitioner with dispensing controlled

substances “in bad faith and in excessive amounts” during

March and April of 1973 (App. 16a-17a). One of the indict-

ments charged a violation of Massachusetts General Laws,

c. 94C, § 32; the other used virtually identical language, but

failed to cite a statutory section. On April 17, 1974, these two

indictments were nol prossed. ‘Two weeks earlier, on April 4,

1974, seven indictments were returned charging that in March

and April of 1973 the petitioner “unlawfully dispensed” named

controlled substances “not for a legitimate purpose” in viola-

4

tion of c. 94C, § 32 (App. 18a-22a). These indictments were

directed against the same conduct of the petitioner as were the

earlier indictments.

The petitioner moved to dismiss the indictments on the

grounds, inter alia, that the grand jury testimony upon which

the indictments were based was improper and prejudicial, and

that the statute was unconstitutionally vague (App. 22a-24a).

Those motions were denied.

The Commonwealth grounded its case upon the testimony

of two undercover police officers who had gone to the office of

the petitioner on various occasions and received prescriptions

for controlled substances. The grand jury had heard only the

hearsay testimony of a third police officer which consisted of

his reading the reports of the two officers directly involved and

offering his own observations and conclusions. His testimony

was inflammatory and prejudicial in that it included references

to comments allegedly made by the petitioner concerning sex

(App. 25a-27a). These comments had no bearing upon the

offenses with which Dr. Comins was later charged. >

At trial the undercover agents testified that they had told

the petitioner that they were addicts in need of help (Tr. I-31,

II-98). The Commonwealth’s experts testified that the drugs

prescribed were appropriate to the complaints which had been

made to Dr. Comins (Tr. III-47, III-11-12); that all of the

drugs have accepted uses in the treatment of drug-dependent

persons (Tr. III-58-63); and that the amounts prescribed by

the petitioner were not necessarily excessive (Tr. III-43-44).

This was especially true in light of the reasons advanced by

the undercover agents for receiving additional prescriptions:

that a prescription had been lost by one agent (Tr. IV-25);

and that a roommate had taken the prescription of the other

agent (Tr. IV-29-30). There was expert testimony that the

petitioner’s failure to do a medical history and physical exami-

nation was poor medical practice (Tr. III-10, III-25, III-59,

III-64).

5

The petitioner was a practitioner and physician duly reg-

istered in accordance with state law and authorized to pre-

scribe controlled substances. Further, he was duly registered

under federal law and authorized to dispense and prescribe

controlled substances; he had been issued BNDD number

AC-1947817 (Tr. I-10, Ex. 1).

The trial was conducted without jury and the petitioner was

found guilty on all counts. The Massachusetts Supreme Judi-

cial Court affirmed the convictions (App. la) and denied

rehearing (App. 2a).

Reasons for Granting the Writ.

I. THe Decision BELow Raltses A CONSTITUTIONAL QUESTION

WHICH HAS Nort YET BEEN ADDRESSED BY THE COurrT.

The Supreme Judicial Court of Massachusetts dismissed the

attack upon the grand jury proceedings by citing this Court’s

opinion in Costello v. United States, 350 U.S. 359 (1956).

The holding in that case was that a grand jury may indict on

hearsay testimony alone and nonetheless satisfy the require-

ments of the Fifth Amendment. It is not the hearsay char-

acter of the grand jury testimony which the petitioner asserts

has violated his Fourteenth Amendment right to cue process.

Rather, it is the fact that the testifying officer introduced

much inflammatory and prejudicial information which had

the intended result of biasing the grand jurors and denying

him the due process to which he is entitled.

Pages 11 through 15 of the grand jury transcript are par-

ticularly striking in this regard (App. 25a-27a). The grand

jurors are told nothing in this section of the testimony which is

even remotely material to the allegations of criminal conduct.

They are, however, titillated with the petitioner's unconven-

6

tional openness about sex. No purpose can be gleaned from

the officer’s remarks other than to prejudice the jurors against

the petitioner.

Indeed, the responses of some of the grand jurors to this line

of testimony make this plain:

“It sure doesn’t represent a common Doctor.

“Right, I think we have the idea” (App. 27a).

The testifying officer again injected his biased view of the

petitioner by casting doubt on his qualifications. The wit-

ness implied that Dr. Comins was somehow less than a “regular

Medical Doctor” (Gr. J. at 6). The prosecutor buttressed this

suggestion by his exchange with a juror with regard to the

“Medical Association” (Gr. J. at 17).

Finally, the grand jury minutes contain numerous conclu-

sory statements of the witness which demonstrate his preju-

dice and to which he was not competent to testify. For

example, he described the April 3 transaction as the “same

garbage” (Gr. J. at 16). On another occasion he characterized

the events as “[o]verprescribing, the same type of stuff” (Gr.

J. at 16).

Mr. Justice Burton, concurring in Costello, supra, was care-

ful to state what he assumed to be the limits of the broad

language of the majority opinion:

“[T]his Court would not preclude an examination of

grand-jury action to ascertain the existence of bias or

prejudice in an indictment. Likewise, it seems to me

that if it is shown that the grand jury had before it no sub-

stantial or rationally persuasive evidence upon which to

base its indictment, that indictment should be quashed.

To hold a person to answer to such an empty indictment

7

for a capital or otherwise infamous federal crime robs the

Fifth Amendment of much of its protective value to the

private citizen.” 350 U.S. at 364.

Other decisions of this Court similarly suggest that grand jury

proceedings must be impartial and unbiased. Cf. Lawn v.

United States, 355 U.S. 339 (1958); Hale v. Henkel, 201 U.S.

43 (1906). See also Martin v. Beto, 397 F. 2d 741 (5th Cir.

1968) (Thornberry, J., concurring). The courts recognize that

there are constitutional limits upon grand jury proceedings,

but nowhere have these limitations been articulated. See,

e.g., Commonwealth v. Comins, __.. Mass. , 206 N.E.

2d 241, 243 (1976) (App. 3a, 4a); United States v. Sweig, 316

F. Supp. 1148, 1153 (S.D. N.Y. 1970), aff'd, 441 F. 2d 114

(2d Cir. 1971), cert. denied, 403 U.S. 932 (1971).

In Beck v. Washington, 369 U.S. 541 (1962), the question

of grand jury bias was raised, but the Court found it unneces-

sary to reach that question and specifically refrained from

examining the issue:

“

. . even if due process would require a State to furnish

an unbiased body once it resorted to a grand jury pro-

cedure — a question upon which we do not remotely

intimate any view — we have concluded that Washing-

ton, so far as is shown by the record, did so in this case.”

Id. at 546.

Many of the grand jury bias cases, see, e.g., Beck v. Wash-

ington, supra; Martin v. Beto, supra; United States v. Sweig,

supra, have arisen as a result of the notoriety of a particular

defendant. In such circumstances the prosecution may or may

not have participated in creating the atmosphere of notoriety.

8

In the case of petitioner Comins the issue of grand jury bias is

raised in the starkest of terms. There are no influences

beyond the grand jury room which the petitioner claims to

have tainted the proceeding. It is simply the conduct of the

prosecutor which has denied the petitioner due process. This

Court has not previously examined the limits of permissible

prosecutorial conduct in the grand jury room. The record in

this case squarely presents such an issue. It is submitted that

certiorari should be granted to review this question.

II. THe Decision BeLow Ralses A QUESTION OF THE PERMIS-

SIBLE CONSTITUTIONAL Limits OF STATE STATUTORY

CONSTRUCTION MANDATING REVIEW BY THIS CouRT.

From the outset it was never clear how the conduct of the

petitioner could be construed as proscribed by c. 94C, § 32, of

the Massachusetts General Laws. That section provides in

relevant part: .

“Except as authorized by this chapter, no person shall

knowingly or intentionally manufacture, distribute, dis-

pense, or possess with intent to manufacture, distribute

or dispense a controlled substance. .. . ”

The indictments charged that the petitioner “ . . . did un-

lawfully dispense . . . not for a legitimate medical purpose,

in violation of the provisions of Massachusetts General Laws

Chapter 94C, Section 32” (App. 18a-22a). As the court below

noted, there is a statutory exception for physicians (App. 12a-

13a). The language of § 32 nowhere mentions “legitimate

medical purpose.” (This language does appear in § 19 of c.

94C, but the petitioner was never charged under this section.)

9

The Supreme Judicial Court of Massachusetts took the lan-

guage of § 32 and fashioned a standard of conduct for physi-

cians — a standard which that court found the petitioner had

violated. The petitioner could not have known that his con-

duct would be proscribed by this statute prior to the Supreme

Judicial Court’s tortured construction of § 32, and, therefore,

he has been denied due process by this failure of notice.

The evidence upon which the court below relied is set forth

in its opinion (App. 8a-lla). Both agents had told petitioner

that they were addicts seeking help in ending their addiction.

He took no medical histories, nor did he examine them. He

issued prescriptions for controlled substances and charged a fee

of $10 per office visit. There was expert testimony that the

failure to take the histories and give physical examinations was

not proper medical practice. There was further uncontro-

verted expert testimony that the drugs prescribed were appro-

priate for the treatment of drug addicts (Tr. III-58-63). One

of the experts testified that the amounts prescribed were not

necessarily excessive (Tr. III-43-44). It was stipulated at trial

that the petitioner was properly licensed and registered by

both state and federal authorities, and that he was authorized

to dispense and prescribe controlled substances by both sov-

ereigns (Tr. I-10, Ex. 1).

After reviewing the evidence in the case, the court below

upheld the convictions under § 32 based upon the following

standard for judging the conduct of a physician:

“A physician who issues a prescription not intending

to treat a patient’s condition in the usual course of his

practice of medicine does not issue a valid prescription,

and he thus violates § 32.’ Such a physician violates § 32

because he acts in bad faith, in the sense that his purpose

is not to treat the patient in accord with accepted medical

practice. Although the physician’s failure to comply with

10

accepted medical practice is an element of the crime and

evidence is admissible that the physician failed to adhere

to accepted medical practice, mere malpractice in the

prescribing of drugs has not been made a crime. To

prove the crime, the physician’s purpose, his state of

mind, must be shown to have been such that he was not

intending to achieve a legitimate medical objective.”

(App. 13a.)

From this formulation it is far from clear where the line is

to be drawn between “mere malpractice” and criminal con-

duct. But even if it is assumed that such a standard is within

the limits of statutory construction, the petitioner had no fair

notice prior to the Supreme Judicial Court’s opinion that such

a standard would be applied to him.

This confusion as to what conduct of a physician was pro-

scribed by § 32 had been a problem for the Commonwealth

itself throughout the case. The earlier indictments (which

were directed at the same conduct of the petitioner) had

charged dispensing controlled substances “ . . . in bad faith

and in excessive amounts . . . ” (App. 16a-17a). These in-

dictments were nol prossed after the seven indictments in this

case were returned. As noted, these indictments spoke in

terms of “legitimate medicai purpose.” The instant case was

the first time § 32 had been construed by the Supreme Judicial

Court as applied to physicians. The petitioner could not have

anticipated that his conduct would be proscribed by the bare-

bones language of that section of the statute.

The federal standard certainly would not have put him on

notice:

“A physician is restricted to dispensing or prescribing

drugs in the bona fide treatment of a patient’s disease,

ll

including a dispensing of a moderate amount of drugs

to a known addict in a good-faith attempt to treat the

addiction or to relieve conditions or suffering incident to

addiction.” United States v. Collier, 478 F. 2d 268, 272

(5th Cir. 1973).

The petitioner finds himself in much the same position as

the petitioners in Bouie v. City of Columbia, 378 U.S. 347

(1964), where this Court reaffirmed “ . . . [t]he basic prin-

ciple that a criminal statute must give fair warning of the con-

duct that it makes a crime....” Id. at 350. Nothing in the

language of the statute under which Dr. Comins was charged

can be read as providing such warning. Nor, given the state

of the law in other jurisdictions and in the federal courts,

could the petitioner have reasonably expected that the court

below would be able to give the statute such a tortured con-

struction as to find him criminally liable thereunder.

For example, the reported federal cases involving physicians

rely upon such factors as: numerous post-dated prescriptions,

United States v. Bartee, 479 F. 2d 484 (10th Cir. 1973);

grossly excessive amounts, United States v. Larson, 507 F. 2d

385 (9th Cir. 1974); or charging by the prescription or quan-

tity prescribed, United States v. Larson, supra. None of these

factors was present in the instant case.

The petitioner’s attack at this point is not upon the face of

the statute, see Lanzetta v. New Jersey, 306 U.S. 451 (1939),

but upon the construction which the Supreme Judicial Court

gave the statute as applied to him. Bouie v. City of Colum-

bia, supra; Palmer v. City of Euclid, 402 U.S. 544 (1971);

Douglas v. Buder, 412 U.S. 430 (1973). This kind of due

process violation can be even more invidious than that con-

demned in Lanzetta, supra. As the Bouie Court pointed out:

12

“If the Fourteenth Amendment is violated when a person

is required ‘to speculate as to the meaning of penal stat-

utes,’ as in Lanzetta, or to ‘guess at [the statute’s] mean-

ing and differ as to its application,’ as in Connally, the

violation is that much greater when, because the uncer-

tainty as to the statute's meaning is itself not revealed

until the court’s decision, a person is not even afforded

an opportunity to engage in such speculation before com-

mitting the act in question.” Id. at 352.

The petitioner’s position from the beginning of the case has

been that he could not be found guilty under § 32 because

he had done nothing which the statute proscribed. The

construction of the statute as applied to physicians which the

court below created from whole cloth has erected a new

standard — one which a person of ordinary intelligence could

not have anticipated would be imposed.

Conclusion.

For the reasons set forth above, a writ of certiorari should

issue to review the judgment and opinion of the Massachusetts

Supreme Judicial Court.

Respectfully submitted,

ROBERT W. HARRINGTON,

JUDITH E. DIAMOND,

DANIEL E. CALLAHAN III,

HARRINGTON anp GORMLEY,

75 Federal Street,

Boston, Massachusetts 02110.

(617) 426-1424

Attorneys for Petitioner.

la

Appendix.

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL CouRT FOR THE COMMONWEALTH,

At Boston, October 18, 1976.

In the case of SJC #526

COMMONWEALTH

vs.

ARNOLD C. COMINS

pending in the Superior Court for the County of Barnstable

#34243

Ordered, that the following entry be made in the docket

=. —

Judgments affirmed.

By the Court,

WILLIAM M. CLORAN, Asst. CLERK.

October 15, 1976.

Brief statement of the grounds and reasons of the decision:

See opinion on file.

2a

SUPREME JUDICIAL COURT

FOR THE COMMONWEALTH

Court House

Boston

FREDERICK J. QUINLAN

CLERK

WiLuiaAM M. CLoRAN

ASSISTANT CLERK

November 5, 1976

Robert W. Harrington, Esq.

Attorney Judith E. Diamond

75 Federal Street

Boston, Massachusetts 02110

Dear Attorneys:

Re: Commonwealth v. Arnold C. Comins

Supreme Judicial Court No. SJC-526

1976 A. S. 2448

Your request for a rehearing in re the above captioned case

has been considered by the court and is denied.

Very truly yours,

FREDERICK J. QUINLAN, CLerk

c.c.: W. James O'Neill, Asst. Dist. Atty.

Barnstable Superior Court House

District Attorney’s Office

Barnstable, Massachusetts 02630

3a

SUPREME JUDICIAL COURT

. FOR THE COMMONWEALTH

COMMONWEALTH vs. ARNOLD C. COMINS

Barnstable. May 4, 1976. — October 18, 1976.

Present: Hennessey, C.J., Braucher, Kaplan, & Wilkins, JJ.

Narcotic Drugs. Physician. Practice, Criminal, Indictment.

Evidence, Relevancy and materiality; Opinion: expert;

Hearsay. Words, “Dispense,” “Ultimate user.”

Indictments found and returned in the Superior Court on

April 4, 1974. The cases were heard by Zarrow, J. The

Supreme Judicial Court granted a request for direct appellate

review.

Robert W. Harrington (Judith E. Diamond with him) for

the defendant.

W. James O'Neill, Assistant District Attorney (Gary A.

Nickerson, Assistant District Attorney, with him) for the

Commonwealth.

Wixkins, J. The defendant, a licensed osteopathic physi-

cian, appeals from seven convictions for dispensing controlled

substances in violation of G.L. c. 94C, § 32.' He challenges

(1) the denial of his motions to dismiss each indictment,

(2) the denial of his motions for judgments of acquittal, and

(3) certain evidentiary rulings made during the course of his

' The first paragraph of G.L. c. 94C, § 32, inserted by St. 1971, c. 1071,

§ 1, provides in part: “Except as authorized by this chapter, no person shall

knowingly or intentionally manufacture, distribute, dispense or possess with

intent to manufacture, distribute or dispense a controlled substance. . . .

4a

jury waived trial. This case is concerned principally with the

proper form of an indictment which charges a prescribing:

physician with violation of the controlled substances act (G.L.

c. 94C) and with the proof necessary to sustain a conviction of

a physician for the unlawful prescribing of a controlled

substance. We granted the defendant's application for direct

appellate review. We affirm the convictions.

1. The defendant moved to dismiss the indictments, relying

on several grounds.? Of those grounds which the defendant

still pursues, some may be disposed of briefly.

The fact that the indictments were issued solely on the basis

of hearsay evidence is not in itself a ground for their dismissal.

Commonwealth v. Gibson, Mas. , - (1975).°

Commonwealth v. Lammi, 310 Mass. 159, 163-164 (1941).

Costello v. United States, 350 U.S. 359 (1956). See Common-

wealth v. Lincoln, Mass. : n. 2 (1975), for a

discussion of a preferred procedure. These authorities indicate

that, in the absence of extraordinary circumstances, an indict-

ment based exclusively on hearsay will not be overturned.

There are no extraordinary circumstances shown in the grand

jury proceedings.

The indictments did not have to allege in the words of § 32

that the defendant “knowingly or intentionally” dispensed a

controlled substance unlawfully. Although a knowing or

intentional delivery is clearly an element of the crimes

charged, as § 32 states, the form of these indictments was

* Each indictment followed the same form, charging that the defendant on

a certain day in March or April, 1973, at Orleans, “did unlawfully dispense

a controlled substance, Class B, to wit: [naming the drug], not for a legiti-

mate medical purpose, in violation of [G.L. c. 94C, § 32].”

@Mass. Adv. Sh. (1975) 2652, 2659-2663.

bMiass. Adv. Sh. (1975) 2215, 2222 n. 2.

5a

proper by reason of G.L. c. 277, § 38, as appearing in

St. 1971, c. 1071, § 8, which states that “[i]n a prosecution

under any provision of [G.L. c. 94C], for unlawfully ...

dispensing . . . a controlled substance . . . it shall be sufficient

to allege that the defendant did unlawfully . . . dispense . . .

such alleged substance, without any further allegations .. .

but the defendant shall be entitled to a bill of particulars

under [§ 40].” This language, adopted as part of the sarne

act which inserted G.L. c. 94C, answers any claim that the

indictment had to allege that the defendant acted “knowingly

or intentionally.” See Commonwealth v. Baker, Mass.

-, (1975);° Commonwealth v. McClaine, Mass. ,

(1975),4 and cases cited. Here, there is no question

that the defendant had sufficient notice of the nature of the

charges against him. The indictments stated that his conduct

was “not for a legitimate medical purpose, in violation of

[G.L. ec. 94C, § 32],” and the defendant’s motions for particu-

lars were allowed and bills of particulars were filed to which

the defendant has raised no objection.

We come then to the defendant’s major challenge to the

indictments. He contends that a registered physician cannot

be guilty of “dispensing” a controlled substance in violation of

G.L. c. 94C, § 32. He argues that a licensed physician

cannot “dispense” a controlled substance in violation of G.L.

c. 94C because only when the delivery of a controlled

substance is a lawful delivery can one “dispense” that

substance as the word “dispense” is defined in G.L. c. 94C,

§ 1, as amended by St. 1972, c. 806, § 3. Consequently, so

the argument goes, no unlawful “dispensing” by a physician

may occur under G.L. c. 94C. The inference is that a physician

may be charged under G.L. c. 94C, § 32, with unlawful

©Mass. Adv. Sh. (1975) 1875, 1899-1900, 1902.

dviass. Adv. Sh. (1975) 1266, 1267-1268.

6a

“distributing” of a controlled substance but not with “dis-

pensing.”*

The premise of the defendant’s argument fails on a literal

reading of the definition of “dispense.” If “dispensing” only

can be a lawful act under G.L. c. 94C, it is difficult to explain

why the word appears in § 32 to describe unlawful conduct.

A physician who unlawfully issues a prescription for a

controlled substance may “dispense” a controlled substance.

“Dispense” means “to deliver a controlled substance to an

ultimate user or research subject ... by a practitioner .

including the prescribing and administering of a controlled

substance... .” G.L. c. 94C, § 1, as amended by St. 1972,

c. 806, § 3. There is nothing in this definition which indicates

that the controlled substance or the prescription must be

delivered lawfully. The definition of “practitioner” includes a

physician even when he is acting outside of his lawfully

authorized role. G.L. c. 94C, § 1, inserted by St. 1971,

c. 1071, § 1.4 ;

The question whether a licensed physician who has

delivered a controlled substance unlawfully under the Compre-

hensive Drug Abuse Prevention and Control Act of 1970, 21

U.S.C. §§ 801 et seq. (1970), should be charged with “dis-

pensing” or with “distributing” that substance has attracted

divergent views in the United States Courts of Appeals.’

* “Distribute” is defined in G.L. c. 94C, § 1, as “to deliver other than by

administering or dispensing a controlled substance.”

* The defendant, even if acting unlawfully, was nevertheless still “[a]

physician . . . registered to distribute [or] dispense ... a controlled sub-

stance in the course of professional practice . . . in the Commonwealth.”

* An initial disagreement among the circuits as to whether a physician may

be charged under 21 U.S.C. § 841(a)(1) (1970) with unlawful delivery of a

controlled substance was resolved in the affirmative in United States v.

Moore, 423 U.S. 122 (1975). However, because the defendant in the Moore

case was charged both with “distributing” and “dispensing” (id. at 124), and

no question was raised concerning this aspect of the indictment, the Moore

7a

Some courts have indicated that a physician is “dispensing”

when he prescribes a controlled substance outside of the lawful

scope of his practice. See United States v. Hicks, 529 F. 2d

841, 844 (5th Cir. 1976); United States v. Green, 511 F. 2d

1062, 1072 (7th Cir. 1975), cert. denied, 423 U.S. 1031 (1976);

United States v. Leigh, 487 F. 2d 206, 207-208 (5th Cir.

1973); United States v. Bartee, 479 F. 2d 484, 486-488 (10th

Cir. 1973). Other courts have indicated that a physician does

not “dispense” a controlled substance in such a circumstance;

he “distributes” it. See United States v. Ellzey, 527 F. 2d

1306, 1308 (6th Cir. 1976); United States v. Rosenberg, 515

F. 2d 190, 200 (9th Cir. 1975), cert. denied, 423 U.S. 1031

(1976); United States v. Black, 512 F. 2d 864, 866 (9th Cir.

1975); United States v. Badia, 490 F. 2d 296, 298 (ist Cir.

1973).°

We do not face, and need not decide, the issue which has

divided the Courts of Appeals. A 1972 amendment of the

definition of “dispense” in G.L. c. 94C, § 1, has undercut the

reasoning lying behind those Federal opinions which have held

that a physician “distributes” but does not “dispense” a

controlled substance when he exceeds his professional author-

ization. Prior to its amendment in 1972, G.L. c. 94C, § 1,

defined “dispense” in much the same language as “dispense” is

defined in the Federal law. Compare G.L. c. 94C, § 1,

opinion does not resolve the split among the circuits concerning the proper

verb (“dispense” or “distribute”) to describe a physician’s unlawful prescrib-

ing under 21 U.S.C. § 841(a)(1) (1970). The Uniform Controlled Substance

Act avoids the problem by referring to “deliver[y]” of a controlled substance

(see § 401[a]), a word which the Commissioners’ Note to § 401 indicates was

selected to include both dispensing and distributing, as defined in the

uniform act. Uniform Controlled Substances Act § 401, Note.

* Much can be said for the approach of the uniform act which replaces

“distribute” and “dispense” with the single verb “deliver.” In these circum-

stances, the choice of words should not be permitted to become crucial, and

judicial time can be better spent trying to resolve more important questions.

8a

inserted by St. 1971, c. 1071, § 1, with 21 U.S.C. § 802

(1970). In the original Massachusetts law, and still under the

Federal law, the definition of “dispense” includes the delivery

of a controlled substance “pursuant to the lawful order of a

practitioner” (emphasis supplied). See St. 1971, c. 1071, § 1.

The 1972 amendment of the Massachusetts definition elimi-

nated the word “lawful” so that delivery of a controlled

substance pursuant to an unlawful order of a physician could

constitute “dispensing.” St. 1972, c. 806, § 3. The absence of

the word “lawful” in the Massachusetts definition of dispense

mekes the reasoning of the First Circuit Court of Appeals in

the Badia case seem inapplicable under the present Massa-

chusetts law.’ The elimination of the word “lawful” with

respect to a physician's order when another person acts

pursuant to that order gives substantial support to our view

that a literal reading of the definition of “dispense” is the

correct one: that a physician, “dispenses” whether lawfully or

unlawfully.* )

2. We turn next to the defendant’s argument that the

evidence did not warrant a conviction under any of the indict-

ments and that, consequently, each motion for judgment of

acquittal should have been allowed.

The judge would have been warranted in finding that, on

March 27, 1973, one Garrison, a State police officer assigned

’ All the other opinions of Courts of Appeals cited above (except perhaps

the Black case, supra at 866) which reach the Badia result contain no

significant analysis of the question and rely on the Badia opinion.

*A contrary view would mean that an unlawful prescription would

require a charge of “dispensing” for one purpose (in a charge against one

who distributes a controlled substance pursuant to the prescription) and not

for another (in a charge against that physician for acting outside his profes-

sional authorization in issuing the prescription). Such legal technicalities

should be avoided where possible, and the Legislature has done so in its

treatment of the definition of “dispense.”

9a

to the Criminal Information Bureau, Narcotics Unit, went to

the defendant’s office, which was located on the ground floor

of his home in Orleans. The d-fendant was conversing with

several adolescents in the reception area. Posing as a patient,

Garrison stated that he wished to discuss a personal matter

with the defendant. They went into an adjoining consultation

room where Garrison told the defendant that he had a drug

problem of which he wanted to be free. The defendant asked

Garrison whether he used “scag,” a street name for heroin,

and Garrison replied that he “shot up a couple of bags every

two or three days.” The defendant then noted that Garrison

had taken an important step and asked what he wanted.

Garrison replied that he wanted something to help him over

the “hard times.” The defendant then asked which drug he

wanted. Garrison made a request for numorphan, which the

defendant refused “because a pharmacist would report a

prescription for that to the police. . . .” Garrison rejected the

defendant’s offer of robitussin and countered with a request

for percodan, to which the defendant acceded. They then

returned to the reception area where the defendant wrote out

a prescription for percodan and another prescription not the

subject of an indictment here. When he gave the prescrip-

tions to Garrison, the defendant stated, “I have to write the

Percodan 4 to 6 hours per day for pain, but you know how to

use it,” and suggested that he fill the prescriptions in Hyannis

instead of Provincetown. No medical history was taken by the

defendant, and he made no physical examination of Garrison.

Garrison did not see the usual items associated with a medical

practice when he was in the defendant's office.

On March 30, 1973, a female police officer, Phinney, also

posing as a patient, went to the defendant's office and found

the defendant engaged in a nonmedical discussion with three

adolescents, which lasted over an hour. During this time,

Garrison returned to the defendant’s office, and the defendant

10a

issued another prescription for percodan to him. Garrison

had spoken with the defendant by telephone earlier that day,

and the defendant had agreed to have Garrison return for a

second prescription. In the course of sitting in the defendant's

office, Phinney observed the doctor issuing a prescription for a

controlled substance to each of the two adolescent girls who

were present. One girl was able to get a prescription for

percodan when she said she was on “junk.” Phinney then

stated that she was on “junk,” and the defendant wrote a

prescription for percodan for her. He asked her to fill the

prescription in Boston. At no time on March 30 did the

defendant either take a medical history or conduct a physical

examination of either Garrison or Phinney.

On April 3, 1973, Garrison went to the defendant's office

again. Phinney arrived shortly thereafter. Phinney requested

another prescription of percodan, telling the defendant that

the prescription he had given her on March thirtieth had been

used up. When the defendant asked her if she wanted

anything else, she said she wanted some “T-20’s,” a reference

to biphetamine T-20, a substance which at the time should not

have been made available by a pharmacist. A short conversa-

tion ensued between Garrison, Phinney, and the defendant as

to whether T-20’s were “good to get off on,” after which the

defendant issued Phinney a prescription for percodan and one

for biphetamine T-20. When Phinney left, Garrison asked the

defendant for another prescription for percodan and for

something to help him sleep, and the defendant gave him

another prescription for percodan and a prescription for

tuinal. The defendant requested that he fill these prescrip-

tions off the Cape. At no time on April 3 did the defendant

take a medical history or physically examine either police

officer.

At each office visit, each officer paid the defendant $10.

The prescriptions were never filled. Percodan, biphetamine

lla

T-20, and tuinal are all controlled substances under G.L.

c.94C. There was expert medical testimony that proper

medical practice required a medical history and physical

examination before prescribing these drugs for any medical

purpose.

We reject as without merit the defendant’s argument that

the Commonwealth’s proof was insufficient because the

various prescriptions were not filled. The definition of

“dispense” appearing in G.L. c. 94C, § 1, includes “prescrib-

ing” within the act of dispensing. The words “including the

prescribing and administering of a controlled substance”

appearing in the definition of “dispense” mean that either

“prescribing” or “administering” are intended to be acts of

dispensing. See United States v. Leigh, 487 F. 2d 206, 208

(5th Cir. 1973). A disjunctive reading of the word “and” is

called for in the context. See United States v. Bartee, 479 F.

2d 484, 487 (10th Cir. 1973), where a similar conclusion was

reached as to parallel language in 21 U.S.C. § 802(10) (1970).

The defendant continues, arguing that the delivery must be

to “an ultimate user or research subject” (G.L. c. 94C, § 1) in

order to constitute a dispensing of a controlled substance and

contends that the police officers were neither. An “ultimate

user” is defined in G.L. c. 94C, § 1, inserted by St. 1971,

c. 1071, § 1, as “a person who lawfully possesses a controlled

substance for his own use....” The defendant argues that

the undercover police officers did not “possess” a controlled

substance “lawfully” and “for [their] own.use.” As we have

already indicated, the prescribing itself constitutes a delivery

of a controlled substance within the definition of the word

“dispense.” There is thus “possession” of a_ controlled

substance without the necessity of going through the needless

expense of filling the prescription. Cf. United States v.

Green, 511 F. 2d 1062, 1072 (7th Cir. 1975), cert. denied, 423

U.S. 1031 (1976). We think also that the possession was

12a

“lawful.” Police officers acting undercover received the

prescriptions in pursuit of their work, and, therefore, their

possession was lawful, even if the physician was not acting

lawfully in delivering those prescriptions. By the same token,

the prescriptions were received for the police officers’ own use,

in the sense that they received them while acting in the role of

a consumer, the purpose of the words “for his own use” in the

definition of an “ultimate user” in G.L. c. 94C, § 1.

If undercover police operations such as were conducted here

could not lead to convictions under G.L. c. 94C because the

police officers were not “ultimate user[s],” the investigation

and prosecution of drug violators would be limited severely

and unnecessarily. We do not attribute to the Legislature an

intention to prohibit undercover police operations of the type

involved in this case. The defendant’s argument in effect

requires us to do so, and we reject it. See Commonwealth v.

Miller, 361 Mass. 644, 655 (1972); United States v. Bartee,

supra at 487, where a contention that the drug must be used

was rejected under the parallel definition of an “ultimate user”

in the Federal act.

We come then to the defendant’s argument that the

evidence of the circumstances in which the defendant

delivered the prescriptions was insufficient to warrant a

conviction of a physician for unlawful dispensing of a

controlled substance. This argument requires us to analyze

the standard to which a physician is held under G.L. c. 94C

when he dispenses a controlled substance.

Section 32 of G.L. c. 94C provides in part that “[e]xcept as

authorized by this chapter, no person shall knowingly or inten-

tionally ... dispense ... a controlled substance... .

Clearly a statutory exception is necessary for persons who

practice medicine, and for other professionals who make

legitimate uses of drugs. For that reason, G.L. c. 94C, §

19(a), inserted by St. 1971, c. 1071, § 1, stated (in part) that

13a

“{a] prescription for a controlled substance to be valid shall be

issued for a legitimate medical purpose by a practitioner acting

in the usual course of his professional practice.”

A physician who issues a prescription not intending to treat

a patient’s condition in the usual course of his practice of

medicine does not issue a valid prescription, and he thus vio-

lates § 32. Such a physician violates § 32 because he acts in

bad faith, in the sence that his purpose is not to treat the

patient in accord with accepted medical practice. Although

the physician’s failure to comply with accepted medical

practice is an element of the crime and evidence is admissible

that the physician failed to adhere to accepted medical prac-

tice, mere malpractice in the prescribing of drugs has not been

made a crime. To prove the crime, the physician’s purpose,

his state of mind, must be shown to have been such that he

was not intending to achieve a legitimate medical objective.

United States v. Rosenberg, 515 F. 2d 190, 193, 194-195 (9th

Cir. 1975), cert. denied, 423 U.S. 1031 (1976). United States

v. Collier, 478 F. 2d 268, 272 (5th Cir. 1973). Cf. United

States v. Moore, 423 U.S. 122, 138-139, 142-143 (1975).

We have no question that the evidence summarized above

warranted a finding that the defendant acted in bad faith in

delivering the prescriptions which are the subject of the indict-

ments in this case. Also, there was evidence that the defend-

ant’s conduct was not in accord with accepted medical prac-

tice. He took no medical histories and conducted no physical

examinations. These facts support an inference that the

defendant did not have medical needs in mind when he issued

the prescriptions and that he was not interested in finding

physical indications of such needs. United States v. Ellzey,

527 F. 2d 1306 (6th Cir. 1976). United States v. Rosenberg,

515 F. 2d 190, 199 (9th Cir. 1975), cert. denied, 423 U.S.

1031 (1976). United States v. Green, 511 F. 2d 1062, 1066,

1073 (7th Cir. 1975), cert. denied, 423 U.S. 1031 (1976).

l4a

United States v. Badia, 490 F. 2d 296, 297 (Ist Cir. 1973).

United States v. Bartee, 479 F. 2d 484, 489 (10th Cir. 1973).

There was other evidence to support the judge’s findings.

The defendant permitted Garrison to name the drug he

wanted. See United States v. Ellzey, 527 F. 2d 1306 (6th

Cir. 1976). The defendant expressed concern about where the

prescriptions would be filled. See United States v. Larson,

507 F. 2d 385, 387-388 (9th Cir. 1974); United States v.

Bartee, 479 F. 2d 484, 489 (10th Cir. 1973). The issuing of

additional prescriptions for percodan at short intervals to

Garrison and Phinney could have been found to be incon-

sistent with accepted medical treatment and support an infer-

ence that the prescriptions were not intended to serve a

medical purpose. See United States v. Green, 511 F. 2d

1062, 1066, 1073 (7th Cir. 1975), cert. denied, 423 U.S. 1031

(1976); United States v. Larson, 507 F. 2d 385, 387-388 (9th

Cir. 1974); United States v. Bartee, supra. The defendant's

remarks and actions in the course of the officers’ visits, which

need not be summarized here, also support the conclusion that

the prescriptions were not issued for a medical purpose.

3. There was no prejudicial error in any rulings on the

admission of evidence.

It was within the judge’s discretion to permit an osteopathic

physician, who did not treat drug dependent patients, to give

his opinion that it was not consistent with accepted medical

practice to prescribe the drugs which the defendant prescribed

without obtaining some medical history or background and

without first conducting a physical examination. See Com-

monwealth v. Boyd, Mass. , - (1975).© W.B. Leach

& P.J. Liacos, Massachusetts Evidence 97 (4th ed. 1967). The

physician's opinion concerning proper medical practice in

treating drug dependent patients in certain circumstances was

©Mass. Adv. Sh. (1975) 687, 703-705.

l5a

also admissible. His lack of detailed experience with the treat-

ment of drug dependent patients went to the weight, but not

to the admissibility of his testimony.

Admission of evidence from a pharmacist that six of the

seven prescriptions of the defendant were “fillable” is no

ground for reversal of the convictions. In the absence of any

contention by the defendant that the seven prescriptions were

not in fact orders for drugs, as they appeared to be on their

face, the question whether the prescriptions were in proper

form, and hence fillable, was immaterial to the prosecutor's

case, as we have interpreted G.L. c. 94C. However, the

admission of testimony that certain prescriptions would have

been filled by a pharmacist if presented seasonably did not

prejudice the defendant in any way.’

We find no impropriety in permitting the undercover police

officers to testify concerning statements made by the defendant

in their presence during the course of the visits to the defend-

ant’s office. Some of these statements were made to third

persons who were in the doctor’s waiting room. Some of the

statements were profane; some were trivial; and some indica-

ted that the defendant had young persons in the area of his

office with whom he engaged in general discussions of sex and

drugs. All these statements were made by the defendant in

the presence of the witness. There is, therefore, no valid

hearsay objection to the admission of the testimony.

The issue of the relevancy of this evidence is a more sub-

stantial one. However, the question whether the defendant

was acting in the usual course of his practice and in accord

with accepted medical practice was an important issue in the

case. In such a situation, the conduct and remarks of the

* The defendant raises no objection to the pharmacist’s testimony that the

prescription for biphetamine T-20 would not have been filled. The witness

testified that the Federal Food and Drug Administration had withdrawn this

compound from the market.

16a

physician in the patient’s presence may be helpful in assessing

the physician’s good faith or bad faith in prescribing the

drugs. Although in a case tried to a jury, some of the defend-

ant’s comments might have been so prejudicial as to distract

the jury from their proper fact-finding duties, where this case

was tried to a judge we see no overriding prejudice which

makes the admission of otherwise relevant evidence improper.

There was no error in admitting testimony from one of the

police officers that the defendant gave him two prescriptions

not the subject of indictments. As we have said the circum-

stances of the purported physician-patient relationship are rele-

vant to the basic question of the bona fides of the defendant's

conduct in prescribing the controlled substances which are the

subject of the indictments. Thus, evidence of the circum-

stances under which other drugs are prescribed at the same

time is admissible.

Judgments affirmed.

COMMONWEALTH OF MASSACHUSETTS.

BARNSTABLE, SS.

At the Superior Court begun and holden at Barnstable

within and for the County of Barnstable, on the first Monday

of April in the year of our Lord one thousand nine hundred

and seventy-three

The jurors for the said Commonwealth on their oath

present, That Arnold C. Comins on or about the months of

March and April in the year of our Lord one thousand nine

hundred and seventy-three at diverse times, at Orleans, in the

County of Barnstable aforesaid, in bad faith and in excessive

amounts, did knowingly or intentionally dispense controlled

17a

substances, Class B, to wit: derivatives of barbituric acid and

amphetamines and derivatives of opium.

A True BILL.

PHILIP A. ROLLINS, EDWARD W. OSGOOD, JR.,

District Attorney. Foreman of the Grand Jury.

COMMONWEALTH OF MASSACHUSETTS.

BARNSTABLE, SS.

At the Superior Court begun and holden at Barnstable with-

in and for the County of Barnstable, on the first Monday of

April in the year of our Lord one thousand nine hundred and

seventy-three

The Jurors for the said Commonwealth on their oath pre

sent, That Arnold C. Comins on or about the twenty-seventh

day of March in the year of our Lord one thousand nine hun-

dred and seventy-three at Orleans, in the County of Barnstable

aforesaid, in bad faitl. and in excessive amounts did knowingly

or intentionally dispense a controlled substance, Class C, to

wit: placidyl, in violation of Section 32 of Chapter 94C of the

General Laws of this Commonwealth.

A True BILL.

PHILIP A. ROLLINS, EDWARD W. OSGOOD, JR.,

District Attorney. Foreman of the Grand Jury.

18a

Indictment No. 34241.

At the Superior Court begun and holden and Barnstable

within and for the County of Barnstable on the first Monday

of April in the year of our Lord one thousand nine hundred

and seventy-four.

The Jurors for the said Commonwealth on their oath pre-

sent, That Arnold C. Comins on or about the twenty-seventh

day of March in the year of our Lord one thousand nine hun-

dred and seventy-three, at Orleans, in the County of Barn-

stable aforesaid, did unlawfully dispense a controlled sub-

stance, Class B, to wit: Percodan, not for a legitimate medical

purpose, in violation of the provisions of Massachusetts Gen-

eral Laws Chapter 94C, Section 32.

A True BILL.

PHILIP A. ROLLINS, DAVID F. MATHEWS,

District Attorney. Foreman of the Grand Jury.

Indictment No. 34242.

At the Superior Court begun and holden at Barnstable

within and for the County of Barnstable, on the first Monday

of April in the year of our Lord one thousand nine hundred

and seventy-four.

The Jurors for the said Commonwealth on their oath pre-

sent, That Arnold C. Comins on or about the thirtieth day of

March in the year of our Lord one thousand nine hundred and

seventy-three, at Orleans, in the County of Barnstable afore-

said, did unlawfully dispense a controlled substance, Class B,

19a

to wit: Percodan, not for a legitimate medical purpose, in

violation of the provisions of Massachusetts General Laws

Chapter 94C, Section 32.

A True BILL.

PHILIP A. ROLLINS, DAVID F. MATHEWS,

District Attorney. Foreman of the Grand Jury.

Indictment No. 34243.

At the Superior Court begun and holden at Barnstable

within and for the County of Barnstable, on the first Monday

of April in the year of our Lord one thousand nine hundred

and seventy-four.

The Jurors for the said Commonwealth on their oath pre-

sent, That Arnold C. Comins on or about the third day of

April in the year of our Lord one thousand nine hundred and

seventy-three, at Orleans, in the County of Barnstable afore-

said did unlawfully dispense a controlled substance, Class B, to

wit: Percodan, not for a legitimate medical purpose, in viola-

tion of the provisions of Massachusetts General Laws Chapter

94C, Section 32.

A True BILL.

PHILIP A. ROLLINS, DAVID F. MATHEWS,

District Attorney. Foreman of the Grand Jury.

20a

Indictment No. 34244.

At the Superior Court begun and holden at Barnstable

within and for the County of Barnstable on the first Monday

of April in the year of our Lord one thousand nine hundred

and seventy-four.

The Jurors for the said Commonwealth on their oath pre-

sent, That Arnold C. Comins on or about the third day of

April in the year of our Lord one thousand nine hundred and

seventy-three, at Orleans, in the County of Barnstable afore-

said, did unlawfully dispense a controlled substance, Class B,

to wit: Tuinal, not for a legitimate medical purpose, in viola-

tion of the provisions of Massachusetts General Laws Chapter

94C, Section 32.

A True BILL.

PHILIP A. ROLLINS, DAVID F. MATHEWS,

District Attorney. Foreman of the Grand Jury.

Indictment No. 34245.

At the Superior Court begun and holden at Barnstable

within and for the County of Barnstable, on the first Monday

of April in the year of our Lord one thousand nine hundred

and seventy-four.

The Jurors for the said Commonwealth on their oath pre-

sent, that Arnold C. Comins on or about the thirtieth day of

March in the year of our Lord one thousand nine hundred and

seventy-three, at Orleans, in the County of Barnstable afore-

said, did unlawfully dispense a controlled substance, Class B,

2la

to wit: Percodan, not for a legitimate medical purpose, in

violation of the provisions of Massachusetts General Laws

Chapter 94C, Section 32.

A True BILL.

PHILIP A. ROLLINS, DAVID F. MATHEWS,

District Attorney. Foreman of the Grand Jury.

Indictment No. 34246.

At the Superior Court begun and holden at Barnstable

within and for the County of Barnstable, on the first Monday

of April in the year of our Lord one thousand nine hundred

and seventy-four.

The Jurors for the said Commonwealth on their oath pre-

sent, That Arnold C. Comins on or about the third day of

April in the year of our Lord one thousand nine hundred and

seventy-three, at Orleans, in the County of Barnstable afore-

said, did unlawfully dispense a controlled substance, Class B,

to wit: Percodan, not for a legitimate medical purpose, in

violation of the provisions of Massachusetts General Laws

Chapter 94C, Section 32.

A True BILL.

PHILIP A. ROLLINS, DAVID F. MATHEWS,

District Attorney. Foreman of the Grand Jury.

22a

Indictment No. 34247.

At the Superior Court begun and holden at Barnstable

within and for the County of Barnstable, on the first Monday

of April in the year of our Lord one thousand nine hundred

and seventy-four.

The Jurors for the said Commonwealth on their oath pre-

sent, That Arnold C. Comins on or about the third day of

April in the year of our Lord one thousand nine hundred and

seventy-three, at Orleans, in the County of Barnstable afore-

said, did unlawfully dispense a controlled substance, Class B,

to wit: Biphetamine T-20, not for a legitimate medical purpose,

in violation of the provisions of Massachusetts General Laws

Chapter 94C, Section 32.

A True BILL.

PHILIP A. ROLLINS, DAVID F. MATHEWS,

District Attorney. Foreman of the Grand Jury.

Nos. 34241-34247.

[ Caption omitted in printing. ]

Motion to Dismiss Indictments.

Now comes the Defendant in the above-entitled indictments

and moves to dismiss said indictments and assigns as grounds

therefor the following:

1. That the indictments on their face fail to set out any

offense under chapter 94C Section 32.

23a

2. That the indictments in question fail to set-out any

offense under Chapter 94C.

3. That the indictments in question are vague and ambigu-

ous in contravention of the Defendant's right to be fully and

clearly informed of the charge against him pursuant to Article

12 of the Declaration of Rights and the Sixth Amendment to

the United States Constitution.

4. That Section 32 of chapter 94C is unconstitutionally

vague and ambiguous.

5. That the indictments do not enable the Defendant to

understand the charge against him and to prepare his defense,

all in violation of chapter 277, Section 34.

6. That the indictments purport to charge the Defendant,

a physician, with “dispensing” by virtue of writing prescrip-

tions which clearly does not constitute dispensing under any

construction of chapter 94C.

7. That the indictments are defective in that said indict-

ments fail to indicate where and to whom the allegedly con-

trolled substances were dispensed; that the said indictments

fail to describe with any specificity what the controlled sub-

stances allegedly dispensed were.

8. That to the extent the Government relies on the provi-

sions of chapter 277, Section 38 to cure said defects, Defendant

contends that said chapter 277, Section 38 is unconstitutional

and violates Defendant’s rights both under the Bill of Rights of

the United States Constitution and the Declaration of Rights.

9. That the indictments in question purport to allege a vio-

lation by the Defendant, a physician, of chapter 94C, Section

32, Defendant maintains that “dispensing” under Section 32 of

chapter 94C has no application to the Defendant as a physi-

cian.

10. That certain of the indictments on their face are identi-

cal and that Defendant believes that with respect to certain of

the indictments they are multiplicitous in that they attempt

24a

to prosecute a single transaction by charging it as more than

one crime.

By his attorney,

ROBERT W. HARRINGTON.

Filed April 26, 1974, and denied (Travers, J.) November 14,

1974. Defendant's exception noted.

Nos. 34241-34247.

[ Caption omitted in printing. }

Further Motion to Dismiss Indictments.

Now comes the Defendant in the above-entitled indictments

and moves to dismiss the indictments and assigns as grounds

therefor the following:

1. That the indictments were returned by a Grand Jury

which heard testimony on Thursday, April 4, 1974; that the

testimony before the Grand Jury was improper and prejudi-

cial; that the testimony before the Grand Jury was inadequate

upon which to return the indictments in question; that based

upon the above, the return of the indictments was improper

and a violation of the Defendant’s Constitutional Rights.

By his attorney,

ROBERT W. HARRINGTON.

Filed June 13, 1974, and denied (Travers, J.) November 14,

1974. Defendant's exception noted.

25a

Barnstable County Grand Jury Minutes,

dated April 4, 1974.

[11] prescriptions. He wrote like for 30 Percodan to be taken

one every four to six hours on the 27th. He has to sleep a cer-

tain amount. Then, he prescribed also on 3-30, another pre-

scription for another 30 Percodan. No examination.

A Juror: That's the other point.

Tue Witness: No examination.

A Juror: So, point one would be the excessive amount that

the person can use and point two, the Doctor must examine

someone and find cause to issue this other than the person's

requesting it.

THe Witness: That's right, because it’s not a legal prescrip-

tion the way it was prescribed under the law. Plus, the evi-

dence that was put in here about what he wanted. He told

the Doctor what he wanted and the Doctor gave it to him.

It wasn’t like the Doctor said, “This is what you should have”.

A Juror: These are all pills?

Tue Witness: All pills so far, yes.

The Policewoman, on March 30th — this is Policewoman

Nancy Phinney, the Policewoman of the Yarmouth Police. At

approximately 2:15 p.m. on [12] Friday, March 30, 1973, she

went to the office of Doctor Comins and she entered the

office, which is located in the basement of his home. There

were four people sitting around. One of these four was the

Doctor. “He asked me to sit down and join the discussion

they were having. There were two girls and a young man, all

approximately 20 years old, as well as the Doctor. ‘They were

having a discussion about identity in a relationship. We dis-

cussed this for a while, and I made the comment that it was

hard, if not impossible, to maintain your identity in a rela-

tionship that lasted more than a few months. The Doctor said

26a

that a relationship was lasting and successful even if it only

lasted for one night, if they fucked. He told the group, ‘All

a woman really wants to do is fuck and a guy with any brains

can get her to’. The whole discussion was about sex.

I told him that my brother, who lived in Albany, was get-

ting married soon and that I was upset about it because I did

not feel that he would be happy with his girlfriend for a long

period. Doctor Comins asked me if I thought she would take

his [13] balls away. I said that I thought she would try to.

He said it sounded as if I loved my brother in an incestuous

way and that I was probably jealous of his future wife which

was perfectly normal. He then asked me if I had ever fucked

my brother. I replied, ‘No’. He said, ‘You should go home

now and fuck him’. Then, he told me that when my brother

got married, I should live with him and his wife. I said I did

not think that was a good idea, that they deserved to have

some privacy. He said that was foolish and he asked me what

kind of hangups I had. He said that I should move right in

with them and teach her how to be a real woman.

The Doctor then began discussing parents and their arbi-

trary use of power. He said they were the reason that the

world was so fucked up today. He asked one of the girls what

she thought of her parents and she said that they were really

great people who understood ker completely. She said that

she could tell them anything and they would understand her.

The Doctor laughed and said, ‘If that is true, then why don’t

you live with them?’ She said that she didn’t because they

lived in [14] Pennsylvania and she loved Cape Cod. He then

said, “Would they allow you to bring a guy home and fuck

him in front of them?’ She said, ‘Yes, probably’. The Doctor

then conceded that they must be understanding.

He asked the young man about his parents, and the man

replied that his mother was understanding but his father was

very straight. The Doctor then said, “Your father isn’t

27a

straight, he’s jealous. If you brought him home some pussy he

could fuck, he’d be understanding’. He then turned to me,

and I told him I was an orphan.”

A Juror: I wonder if we can do away with the extraneous?

I don’t want to cut you off. I think we have heard anough of

that. It’s very interesting. If we could get right to where you

want the indictments, so we can take action.

THe Wirness: Okay.

A Juror: There is nothing illegal about the language.

Tue Witness: No.

A Juror: It sure doesn’t represent a common Doctor.

[15] A Juror: Right. I think we have the idea.

THe Witness: The Policewoman said that she was on junk,

which is drugs, and would like a prescription for Percodan.

He said, “Fine, no problem.” He asked her name and age

and address and then said, “Cash these scripts in in Boston”,

and handed the prescriptions to her. He never examined her

or asked her any more questions. She left the office at ap-

proximately 5:00 p.m.

A Juror: I have a question in regards to him telling these

various so-called patients to get these prescriptions filled in

various places. Is that so it would be harder to keep track of

what he prescribed?

THe Wirness: Well, yes. Prior to this, a lot of pharma-

cists did shut him off. They wouldn’t fill his prescriptions

because they felt they had an obligation.

A Juror: He was doing this so it would be harder to trace?

THe Witness: Yes, right. I have a prescription here for

Percodan tablets, dispense 30, one every six hours as needed

for pain for the... .