Opposition — Comins v. Massachusetts

In the

Supreme Court of the Unit

OctTosBER TERM, 1976.

No. 76-1068.

ARNOLD C. COMINS,

PETITIONER,

v.

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

Brief for the Respondent in Opposition.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT

FOR THE COMMONWEALTH OF MASSACHUSETTS.

Francis X. BELLOTTI,

Attorney General,

STEPHEN R. DELINsky,

Assistant Attorney General,

Chief, Criminal Bureau,

BarBARA A. H. SMITH,

Assistant Attorney General,

Chief, Criminal Appellate Section,

KATHLEEN KING PARKER,

On the brief: Assistant Attorney General,

Puivip A. ROLLINs, Criminal Bureau,

District Attorney, One Ashburton Place,

Cape and Islands District. Boston, Massachusetts 02108.

Gary A. NICKERSON, (617) 727-2240

Assistant District Attorney.

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS.

Table of Contents.

Opinion below

Jurisdiction

Questions presented

Statutory provisions

Statement of the case

Reasons why the petition is opposed

I. The Supreme Judicial Court correctly held

that there was no reason to dismiss the indict-

ments

II. The petitioner received fair notice of the

crimes with which he was charged

Conclusion

~> HOw WY NY

6

6

Appendices follow page 10

Appendix A: Opinion of the Supreme Judicial

Court of Massachusetts, dated October 18,

1976

Appendix B: Massachusetts General Laws, chap-

ter 94C, section 19

Appendix C: Massachusetts General Laws, chap-

ter 94C, section 32

Appendix D: Massachusetts Rules of Appellate

Procedure, Rule 27

Appendix E: Commonwealth’s Bill of Particulars

la

l5a

l6a

19a

2la

ii TABLE OF AUTHORITIES CITED.

Table of Authorities Cited.

CASES.

Beck v. Washington, 369 U.S. 541 (1962) 4,5,6

Bouie v. City of Columbia, 378 U.S. 347 (1964) 7n

Commonwealth v. Comins, 1976 Mass. Adv. Sh.

2448, 356 N.E. 2d 241 1, 3, 5

Commonwealth v. Gibson, 1975 Mass. Adv. Sh.

2652, 333 N.E. 2d 400 4

Commonwealth v. Miller, 361 Mass. 644, 282 N.E.

2d 394 (1972) )

Commonwealth v. Noble, 230 Mass. 83, 119 N.E.

510 (1918) 8,9

Costello v. United States, 350 U.S. 359 (1956) 5

Hurtado v. California, 110 U.S. 516 (1884) 4

King v. Solomon, 323 Mass. 326, 81 N.E. 2d 838

(1948) 9

Pierre v. Louisiana, 306 U.S. 354 (1939) 5

Snyder v. Massachusetts, 291 U.S. 97 (1934) 4

United States v. Behrman, 258 U.S. 280 (1922) 9

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

1973) 8

United States v. Moore, 423 U.S. 122 (1975) 8

United States v. Rosenberg, 515 F. 2d 190 (9th Cir.

1975), cert. denied, 423 U.S. 1031 (1975) 8

CONSTITUTIONAL AND STATUTORY PROVISIONS.

United States Constitution, Fourteenth Amendment 4

TABLE OF AUTHORITIES CITED. iii

Massachusetts General Laws, c. 94C (Controlled

Substances Act) 6, 7,9

§ 19 2,7, 8

§ 32 2,7, 8

MISCELLANEOUS.

Massachusetts Rules of Appellate Procedure, Rule 27 6

1964 Opinion of the Attorney General, 104-105 9

In the

Supreme Court of the United States.

OcToBER TERM, 1976.

No. 76-1068.

ARNOLD C. COMINS,

PETITIONER,

Dv.

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

Brief for the Respondent in Opposition.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT

FOR THE COMMONWEALTH OF MASSACHUSETTS.

Opinion Below.

The opinion of the Supreme Judicial Court is reported in

1976 Mass. Adv. Sh. 2448, 356 N.E. 2d 241, and has been

appended to the brief (App. A).

2

Jurisdiction.

The jurisdictional requisites are adequately set forth in

the petition.

Questions Presented.

1. Whether the nature of thie testimony heard by the

grand jury required the dismissal of the indictments on

which petitioner was tried.

2. Whether the petitioner received fair notice of the

offense with which he was charged.

Statutory Provisions.

Section 32 (par. 1) of chapter 94C of the General Laws of

Massachusetts (App. B).

Section 19(a) of chapter 94C of the General Laws of

Massachusetts (App. C).

Statement of the Case.

The petitioner was tried, without jury, on seven indict-

ments returned April 4, 1974. Each of the seven

indictments charged that the defendant did unlawfully

dispense a certain controlled substance, in violation of

Massachusetts General Laws, c. 94C, § 32. The trial judge

found petitioner guilty on all seven indictments. He was

3

sentenced on each of five indictments to two years,

suspended, with probation for a term of five years from and

after the previous sentence, and on each of two indictments

to a fine of $2,500. The Supreme Judicial Court affirmed

these convictions and denied rehearing.

The facts in this case are summarized in the opinion of

the Supreme Judicial Court. 1976 Mass. Adv. Sh. 2448,

356 N.E. 2d 241. Petitioner misstates several facts which

should be corrected. He states that there was evidence that

the drugs prescribed were appropriate to the complaints;

and that all of the drugs have accepted uses in the

treatment of drug-dependent persons. This distorts the

testimony of the expert witnesses. In fact, all the testimony

about the drugs emphasized their serious contraindications

and the caution with which they should be prescribed.

Three drugs were involved here: tuinal, percodan, and

biphetamine T-20. There was testimony that tuinal was

appropriately prescribed for insomnia, when the patient

“hasn’t played with drugs” (Tr. lil, 47). Another expert

testified that tuinal could conceivably be used with someone

who is drug-dependent, but that it would likely be used in

a hospital, not in out-patient care (Tr. III, 59-60). As for

percodan, there was testimony that it is prescribed for the

relief of pain (Tr. III, 11-12), but other testimony that it is

not commonly used in the management of patients in opiate

detoxification (Tr. III, 59).

The testimony concerning biphetamine T-20 was dam-

aging. One expert testified that it should not be used with

drug-dependent people (Tr. III, 61). Another expert

testified that biphetamine T-20 had been withdrawn from

the market by the Food and Drug Administration in the

month prior to the date of the prescription (Tr. II, 57, 58).

4

Reasons Why the Petition is Opposed.

I. THe Supreme JupiciaL Court Correctty HELD THAT

THERE WAS No REASON TO DISMISS THE INDICTMENTS.

The Supreme Judicial Court held that, as a matter of

Massachusetts law, there was no reason to dismiss the

indictments. Under Massachusetts law, an indictment can

be based exclusively on hearsay, tips, rumors, evidence

offered by the prosecution, or the personal knowledge of the

jurors. Commonwealth v. Gibson, 1975 Mass. Adv. Sh.

2652, 2659-2663, 333 N.E. 2d 400. The nature of the

testimony presented to the grand jury does not raise a

constitutional question.

The United States Consiitution does not require a state to

proceed against a defendant by means of a grand jury

indictment. Hurtado v. California, 110 U.S. 516, 538

(1884). This Court has suggested, but not held, that once a

state has chosen a grand jury procedure, it must furnish an

“unbiased grand jury.” Beck v. Washington, 369 U.S. 541,

546 (1962). Should such a_ suggestion ever become

explicitly a constitutional requirement, it would be based on

the due process clause of the Fourteenth Amendment.

Thus the grand jury proceedings would be examined to

determine whether they “offend[ed] some principle of

justice so rooted in the traditions and conscience of our

people as to be ranked as fundamental.” Snyder v.

Massachusetts, 291 U.S. 97, 105 (1934).

Examining the entire grand jury proceedings in this case,

it is clear that the due process clause of the Fourteenth

Amendment was not violated. The testimony which

petitioner characterizes as inflammatory and prejudicial

concerned his discussions, with patients in his office, of sex.

5

This was determined by the Supreme Judicial Court to be

relevant evidence, when admitted at trial:

[T he 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 physician in the patient’s presence may be help-

ful in assessing the physician’s good faith or bad faith

in prescribing the drugs. 1976 Mass. Adv. Sh. at 2462,

356 N.E. 2d at 249.

In light of the whole record, this determination of relevance

is correct.

The alleged bias in this case did not arise out of excessive

publicity which might have led the jurors to judge the

potential defendant before they conducted their investiga-

tion. See Beck v. Washington, supra. It did not arise

because the grand jury was not constituted legally. See

Pierre v. Louisiana, 306 U.S. 354 (1939). The alleged bias

arose, rather, because the grand jury during their investiga-

tion heard testimony which inculpated the petitioner. This

is precisely what the grand jurors, pledged to indict no one

because of prejudice and to free no one because of special

favor, are charged to do. Under the reasoning of the peti-

tion here, every valid indictment would be suspect because

any inculpatory testimony heard by the indicting grand jury

could be characterized as prejudicial and inflammatory.

This Court’s suggestions about the requirement of an

unbiased grand jury do not require the kind of scrutiny of

indictments suggested in this petition. See Costello v.

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

6

Finally, in petitioner's trial on the merits, the court

strictly observed all the rules designed to bring about a fair

verdict. Whatever harm he may have suffered by reason of

the grand jury proceedings was cured.

The Supreme Judicial Court was correct, then, in

refusing to find constitutional infirmity in the indictments

here. Its decision is in accord with the decisions of this

Court.

Il. THe Petitioner Recetvep Fair Notice OF THE CRIMES

WITH WHICH HE WAS CHARGED.

Petitioner argues that the Supreme Judicial Court's

construction of the statute under which he was convicted,

as applied to him, deprived him of notice that his conduct

violated the statute.

This argument has not been properly raised in the state

court. Petitioner made this argument, however vaguely, in

his petition for rehearing. However, a petition for

rehearing is not the proper method, under Massachusetts

procedure, for raising issues whose existence can be known

only after the appellate court’s decision. Rule 27(a) of the

Massachusetts Rules of Appellate Procedure allows a petition

for rehearing to bring to the appellate court’s attention

“. .. points of law or fact which it is contended the court

has overlooked or misapprehended....” It does not

provide for the raising of new issues. Therefore, the

argument raised here has not been properly raised in the

state courts, and for that reason this Court should decline to

review it. Cf. Beck v. Washington, supra, 369 U.S. at

549-554.

Furthermore, the argument is without merit. The plain

language of the statute, part of the Controlled Substances

7

Act, provides clear warning. The Supreme Judicial Court

read the statute as it was meant to be read.

Chapter 94C, § 32, provides in part:

Except as authorized by this chapter, no person shall

knowingly or intentionally ... dispense ... a con-

trolled substance... .

The necessary statutory authorization for persons who

practice medicine is found in § 19(a) of the same chapter:

“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 professiona! practice. . . .”

The common sense reading of this statutory scheme

notifies every person that if the chapter does not authorize

his conduct, then he is in violation of § 32. Just as both sec-

tions must be read together to determine who is authorized

to dispense controlled substances, so too both sections must

be read together to determine whether particular conduct is

not authorized and therefore in violation of § 32. Further,

§ 19 provides: “An order purporting to be a prescription

issued not in the usual course of professional treatment . . .

is not a prescription within the meaning and intent of

section one and . . . the person issuing it shall be subject to

the penalties provided by section thirty-two.” Thus § 19,

by its terms, requires that it be read with § 32.'

Petitioner was charged in each indictment with unlawful-

ly dispensing, not for a legitimate medical purpose, in

‘Petitioner's reliance on Bouie v. City of Columbia, 378 U.S. 347

(1964), is misplaced. The petitioner in Bouie did not violate the statute

as it was written, while in this case petitioner did violate the statute as it

is written.

8

violation of § 32 of chapter 94C.* In the bills of particu-

lars, the manner and means of the violations of § 32 were

set out: “the defendant did write a prescription in exces-

sive amounts and not for a legitimate medical purpose for a

Class B Controlled Substance” (App. E, p. 2la). These

clearly set out the nature of the charge against petitioner.

Petitioner suggests that the “tortured construction” of the

statutory scheme by the Supreme Judicial Court deprived

him of the notice he already had. The court did not add

new meaning to, but rather elaborated on, the language of

§§ 19 and 32. Federal courts elaborating analogous federal

statutes have used similar language. United States v.

Rosenberg, 515 F. 2d 190, 197 (9th Cir. 1975), cert.

denied, 423 U.S. 1031 (1975); United States v. Collier, 478

F. 2d 268, 272 (5th Cir. 1973). In fact, this Court has

explained the analogous federal statute in a similar manner.

United States v. Moore, 423 U.S. 122, 138-139, 142-143

(1975). Jor

Petitioner’s case is the first one in which c. 94C, § 32, has

been applied to a physician. However, physicians who

stepped out of bounds have been prosecuted under

predecessor narcotics statutes in Massachusetts. In Com-

monwealth v. Noble, 230 Mass. 83, 119 N.E. 510 (1918),

the defendant was charged and convicted of unlawfully

prescribing, when not obviously needed for therapeutic

purposes, certain narcotic drugs, to persons known by the

defendant to be addicts. The Supreme Judicial Court, in

affirming the conviction, explained that the statute reaches

a physician acting in bad faith:

*The two indictments printed in the petition at 16a and 17a, and

discussed in the petition at 3 and 10, are not part of the record of this

case. While arguably they might be directed at similar conduct of the

petitioner, a nolle prosequi was entered on them; and they are not rele-

vant to this case.

9

The statute in question was enacted to limit and

control further the use of such drugs by prohibiting the

giving of prescriptions therefor by unscrupulous prac-

titioners to habitual users of drugs, “except when the

drug is obviously needed for therapeutic purposes.”

The statute (§ 3) at the same time provides for the

protection of reputable physicians who act honestly and

in good faith.

While the question whether the drug is or is not

obviously needed for therapeutic purposes in a given

case is a question for the attending physician and he is

not to be held liable for a violation of the statute if he

acts in good faith, it does not follow that his judgment

in the matter is conclusive and cannot be reviewed

or inquired into in a prosecution for an alleged violation

of the statute. 230 Mass. at 87-88, 119 N.E. at 512.

See also King v. Solomon, 323 Mass. 326, 329-330, 81 N.E.

2d 838, 840 (1948). Cf. United States v. Behrman, 258

U.S. 280 (1922).

In 1964 an Opinion of the Attorney General ruled that

the Massachusetts narcotics statutes demonstrate a legislative

intent to permit the prescribing of narcotics by physicians in

good faith and in legitimate practice only. 1964 Opinion

of the Attorney General, 104-105. In 1972, the Supreme

Judicial Court stated, in affirming the conviction of a

physician under the immediate predecessor of the Con-

trolled Substances Act: “We recognize that the professional

judgments of a physician, exercised in good faith, may

impel him to dispense drugs to a patient... . Nevertheless,

the exercise of the physician’s discretion in such matters is

not conclusive or beyond question.” Commonwealth v.

Miller, 361 Mass. 644, 656, 282 N.E. 2d 394, 402 (1972).

10

In light of this tradition in Massachusetts, the language of

the Supreme Judicial Court in petitioner’s case was clear,

predictable, and correct. Petitioner’s argument of failure of

notice must fail.

Conclusion.

For the reasons stated above, the petition for writ of

certiorari should be denied.

Respectfully submitted,

FRANCIS X. BELLOTTI,

Attorney General,

STEPHEN R. DELINSKY,

Assistant Attorney General,

Chief, Criminal Bureau, °

BARBARA A. H. SMITH,

Assistant Attorney General,

Chief, Criminal Appellate Section,

KATHLEEN KING PARKER,

Assistant Attorney General,

Criminal Bureau,

One Ashburton Place,

Boston, Massachusetts 02108.

(617) 727-2240

On the brief:

PHILIP A. ROLLINS,

District Attorney,

Cape and Islands District.

GARY A. NICKERSON,

Assistant District Attorney.

la

Appendix A.

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, ]. 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.

Wiikins, 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. . . .”

2a

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

stil! 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, Mass. , - (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. P 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.

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

3a

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 same

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. ,

. 4 (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. ce. 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 _ conirolled

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.

4a

“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.‘ ne

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

5a

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 (lst 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.

6a

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

makes 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.”

7a

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 defendant 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

8a

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

9a

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

10a

“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

lla

“{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 sense 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 US.

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

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

12a

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 dependerit 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.

l3a

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 tu 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.

l4a

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.

15a

Appendix B.

GENERAL Laws, CHAPTER 94C, SEecTION 19.

[Authorized Purposes for Which Prescriptions

May Be Issued. |

(a) A prescription for a controlled substance to be valid

shall be issued for a legitimate medical purpose by a prac-

titioner acting in the usual course of his professional prac-

tice. The responsibility for the proper prescribing and

dispensing of controlled substances shall be upon the pre-

scribing practitioner, but a corresponding responsibility

shall rest with the pharmacist who fills the prescription.

An order purporting to be a prescription issued not in the

usual course of professional treatment or in legitimate and

authorized research is not a prescription within the meaning

and intent of section one and the person knowingly filling

such a purported prescription, as well as the person issuing

it, shall be subject to the penalties provided by section

thirty-two.

(b) No prescription shall be issued in order for a prac-

titioner to obtain controlled substances for supplying the

practitioner for the purpose of general dispensing to

patients.

(c) Unless permitted by federal law, a prescription shall

not be issued for the dispensing of drugs or controlled sub-

stances as defined in section thirty-eight of chapter one

hundred and twenty-three, listed in any schedule to a drug

dependent person for the purpose of continuing his depend-

ence upon such drugs, in the course of conducting an

authorized clinical investigation pursuant to an addict

rehabilitation program.

l6a

Appendix C.

GENERAL Laws, CHAPTER 94C, SECTION 32.

[Unauthorized Manufacture, Distribution, etc.,

Prohibited; Penalties. |

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 distribute or dispense a

counterfeit substance.

Whoever violates any provision of this section relative to

a controlled substance in Class A or B of section thirty-one

shall be punished by imprisonment in the state prison for

not more than ten years or in a jail or house of correction

for not more than two and one half years or by a fine of

not more than twenty thousand dollars, or both such fine

and imprisonment. Whoever violates any provision of this

section after one or more prior convictions of a felony under

any provision of this chapter, or under a corresponding

provision of prior law relating to the sale or manufacture of

a narcotic drug as defined in said earlier law, shall be

punished by imprisonment in the state prison for not less

than five years and not more than fifteen years and by a

fine of not more than thirty thousand dollars; except that if

a person has a prior conviction of any offense involving the

manufacture, distribution, or dispensing of heroin or the

possession with intent to manufactuer, distribute or dispense

heroin, such person shall be punished by imprisonment in

the state prison for not less than ten years nor more than

twenty-five years and by a fine of not more than thirty

thousand dollars.

l7a

Whoever violates any provision of this section relative to

a controlled substance in Class C of section thirty-one shall

be punished by imprisonment in the state prison for not

more than five years or in a jail or house of correction for

not more than two and one half years, or by a fine of not

more than ten thousand dollars, or by both such fine and

imprisonment. Whoever violates any provision of this

section after one or more prior convictions of a felony under

any provision of this chapter, or under a corresponding pro-

vision of prior law relating to the sale or manufacture of a

narcotic drug as defined in said earlier law, shall be

punished by imprisonment in the state prison for not less

than three years nor more than ten years and by a fine of

not more than twenty thousand dollars.

Whoever violates any provision of this section relative to

controlled substances in Class D of section thirty-one, shall

be punished by imprisonment in a house of correction for

not more than two years or by a fine of not more than five

thousand dollars, or both. Whoever violates any provision

of this paragraph after one or more prior convictions of an

offense under any provision of this section, or of a felony

under any provision of this chapter, or under a provision of

prior law relative to the sale or manufacture of a narcotic

drug or a harmful drug as defined in said earlier law shall

be punished by imprisonment in the state prison for not less

than two years nor more than five years and by a fine of

not more than ten thousand dollars.

Whoever violates any provision of this section relative to

Schedule E of section thirty-one, shall be punished by

imprisonment for not more than one year or by a fine of

not more than twenty-five hundred dollars, or both. Who-

ever violates any provision of this paragraph after one or

more prior convictions of an offense under any provision of

this section, or of a felony under any provision of this

18a

chapter, or under a provision of prior law relative to the

sale or manufacture of a narcotic drug or a harmful drug as

defined in said earlier law, shall be punished by imprison-

ment for not less than one year nor more than two years

and by a fine of not more than five thousand dollars.

19a

Appendix D.

MASSACHUSETTS RULES OF APPELLATE PROCEDURE.

Appellate Rule 27.

PETITION FOR REHEARING.

(a) Time for Filing; Content; Answer; Action by Court

if Granted. A petition for rehearing should be filed with

the clerk of the appellate court within ten days after the

date of the rescript unless the time is shortened or enlarged

by order. It shall state with particularity the points of law

or fact which it is contended the court has overlooked or

misapprehended and shall contain such argument in support

of the petition as the petitioner desires to present. Oral

argument in support of a petition will not be permitted,

except by order of the court. No answer to a petition for

rehearing will be received unless requested by the appellate

court but a petition for rehearing will ordinarily not be

granted in the absence of such a request. If a petition for

rehearing is granted the appellate court may make a final

disposition of the cause without reargument or may restore

it to the calendar for reargument or resubmission or may

make such other orders as are deemed appropriate under

the circumstances of the particular case. Action upon a

petition is wholly in the discretion of the full court; and the

court may award costs, including a reasonable attorney's

fee, to the prevailing party.

(b) Form of Petition; Length. The petition shall be in a

form of a letter to the chief justice of the Appellate Court

with seven clear and legible copies, and additional copies

shall be mailed by first class mail or delivered to all other

counsel. Except by permission of the court, a petition

20a

for rehearing shall not exceed ten pages of standard type-

written material.

(c) Revision of Decision. Upon consideration of a

petition for rehearing, a majority of the justices of the

appellate court may in writing order a decision of the court

(or a panel thereof) to be reviewed and revised by 2 major-

ity of the justices of the court.

2la

Appendix E.

[In its brief in the Supreme Judicial Court, the Common-

wealth appended the following Bill of Particulars. This Bill

of Particulars relates to only one of the indictments; but the

other Bills of Particulars, relating to the other indictments,

are similar in their descriptions of the manner in which the

alleged offenses were committed. }

COMMONWEALTH OF MASSACHUSETTS

BARNSTABLE, SS SUPERIOR COURT

No. 34242

COMMONWEALTH

VS

ARNOLD COMINS

Commonwealth’s Bill of Particulars

Now comes the Commonwealth in the above entitled

matter and states for the Commonwealth:

(1) March 30, 1973

(2) Between 2 and 5 p.m.

(3) Cellar of a dwelling house located at Kescayogansett

Road in East Orleans, occupied at the time by Arnold C.

Comins.

(4) That the defendant did write a prescription in ex-

cessive amounts and not for a legitimate medical purpose

for a Class B Controlled Substance.

(5) See #4

(7) The offense took place at what appeared to be the

defendant's professional office.

(8) Percodan

22a

(9) Tooper Roland L. Garrison, Massachusetts State

Police, 1010 Commonwealth Avenue, Boston, using alias of

John L. Arruda. |

(10) A prescription was issued on March 30, 1973.

(11) Yes

(13) Prescriptions for Percodan were signed and issued

by the defendant for the use of the Commonwealth's

agent.

(14) The prescription was for 30 tablets of Percodan.

(15) Said prescriptions were turned over to Cpl. Edmund

Souza, Barnstable District Attorney’s office to hold as

evidence.

(16) See # 14

(17) The prescriptions have not been filled at any phar-

macy to date.

For the Commonwealth:

W. JAMES O’NEILL,

Assistant District Attorney.