COMMONWEALTH vs. JOHN A. TIRELLA.
Supreme Judicial Court of Massachusetts, Suffolk.
April 7, 1969. — June 25, 1969.
356 Mass. 271
Present: WILKINS, C.J., SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL, & REARDON, JJ.
The phrase “in the company of a person” in
At the trial of a complaint for having been “in the company of” the operator of an automobile knowing that the operator was illegally in the possession of heroin, in violation of
COMPLAINT filed in the Municipal Court of the City of Boston on November 27, 1967.
Upon appeal to the Superior Court, a motion to dismiss was heard by Fairhurst, J., and the case was tried before him.
Ronald J. Chisholm (Gerard F. Schaefer with him) for the defendant.
William J. Doyle, Assistant District Attorney (James J. Gillis, Jr., Legal Assistant to the District Attorney, with him), for the Commonwealth.
The charge arose under the second clause of
On November 25, 1967, Officer Simmons of the Boston police narcotics unit went to a building opposite the corner of West Canton Street and Tremont Street. With binoculars he observed Juan Perez, known to him, standing on the corner. An automobile containing three people stopped. Perez walked to the passenger side of the automobile. The driver and a passenger were in the front seat. Tirella (recognized by Officer Simmons) was in the back seat. The driver, later identified as Barry, passed money through the window on the passenger side to Perez. In return he received several white, glassine bags. Tirella leaned over the front seat and observed the transaction, which lasted half a minute.
Officer Simmons, by using a “walkie-talkie” radio, spoke with other officers. The automobile was stopped by Officer John J. Driscoll several blocks away. After one passenger
1. Tirella contends that the italicized portion of § 213A (the second clause following [B] in the section as set out above) is unconstitutional on the grounds (a) that it is “vague and indefinite,” (b) that it constitutes cruel and unusual punishment, (c) that it “excludes the element of intent” by punishing mere companionship, and (d) that it “interferes with the right of freedom of association.” The validity of these contentions depends upon the proper interpretation of § 213A. We must sustain the statute if it has a proper public purpose in connection with suppression of the narcotics evil and if it attempts to achieve that purpose in a reasonable manner. We also, so far as possible, must interpret § 213A in a manner which avoids doubts concerning its constitutionality. See Opinion of the Justices, 341 Mass. 760, 785.
2. In Commonwealth v. Buckley, 354 Mass. 508, we considered the first clause of § 213A (following [A] in the section as quoted above) and its legislative history.2 We there held (at pp. 509-513) that the first clause of § 213A could not be read as a “public welfare” statute (cf. Commonwealth v. Murphy, 342 Mass. 393) requiring for conviction no knowledge of the facts which constituted the offence. It was decided that, to establish guilt (under the first clause), the accused must be shown to have been present in a reasonably restricted place in which he knew a narcotic drug was “illegally kept or deposited.” No similar problem concerning knowledge arises under the second clause of § 213A for the second clause expressly requires a showing of knowledge.
The meaning of the phrase “in the company of a person” in the second clause of § 213A requires a correlatively
We consider Tirella‘s constitutional contentions in the light of this interpretation of § 213A. These contentions seem to us to be without merit.
3. The statute is not unconstitutionally vague. The phrase “in the company of” is definite enough to permit men of common intelligence to know what it means, as referring to one associating with a known possessor of narcotic drugs. We think it has a more limited and specific meaning, as interpreted in part 2 of this opinion, than the companion phrase “[w]hoever is present” found in the first clause (following [A] in the section as quoted). That phrase, in the Buckley case, 354 Mass. 508, 513, we held not to be void for vagueness.
4. The holdings in the Buckley case (354 Mass. 508, 513) that the first clause of § 213A does not violate the right of free association or impose a cruel and unusual punishment
5. Section 213A, as we interpret it, does not impose any conclusive presumption of guilt. An accused person (as has been suggested above) may explain his being in company with a possessor by showing, if he can, facts constituting justification or excuse, involving no participation or acquiescence in the violation. Of course, being in the company of a known possessor of narcotics may indicate that an accused himself is engaged in some more direct narcotics activity. Section 213A, however, does not require, or provide for, any presumption or inference of other narcotics activity.
The offence, as we have said, consists merely of the acquiescent association with the possessor. The situation thus is not like that discussed in Tot v. United States, 319 U. S. 463, 466-469. See Manley v. Georgia, 279 U. S. 1, 4-7; Colon-Rosich v. People of Puerto Rico, 256 F. 2d 393, 397-398 (1st Cir.); note, 56 Harv. L. Rev. 1324, 1325-1326. Cf. Commonwealth v. Wilbur, 353 Mass. 376, 384-385. Also, because § 213A creates no conclusive presumption of guilt of any other offences, the decision in Seattle v. Ross, 54 Wash. 2d 655, has no application.
6. In practical application, proof of association with one known by a defendant to possess narcotics illegally will warrant a conviction under § 213A. A person accused under that section, however, may present evidence (which, of course, those deciding the facts are not required to believe) tending to show that his presence with the possessor
7. The trial judge correctly refused to direct a verdict for Tirella. The evidence permitted the inference that Tirella, while in the automobile, knew that Barry had received the glassine bags containing heroin. No testimony tended to explain Tirella‘s presence or to show that he had any justification or excuse for remaining in the automobile. There was sufficient evidence that Tirella was “in the company of” Barry.
Judgment affirmed.
SPALDING, J. (dissenting, with whom Whittemore and Reardon, JJ. join). That the traffic in narcotics is an evil which the State may take strong measures to suppress is not to be doubted. But such measures, however laudable in purpose, must not transcend constitutional limits. I am of opinion that the portion of the statute under consideration transcends those limits and that the defendant‘s motion to dismiss should have been granted.
The statute creates a felony punishable by imprisonment up to five years if one “is in the company of a person, knowing that said person is illegally in possession of a narcotic drug.” To make this drastic provision less vulnerable to constitutional attack, the majority have read into it certain exculpatory provisions.1 Under the majority‘s view the
In answering the defendant‘s argument that the statute violates his right of free association, the majority state that the statute is designed to discourage the possessor of narcotics by punishing his companions, thus in effect ostracizing the possessor. I seriously doubt the constitutionality of a statute which attempts to punish the possessor by imprisoning his companions. The majority opinion also states that this is not guilt by association because it is the association itself that is punished. With deference, I find this to be a distinction without a difference. It seems to me that a statute so designed would be a classic example of guilt by association, a doctrine expressly repudiated by this court in Commonwealth v. Fancy, 349 Mass. 196, 200. See Uphaus v. Wyman, 360 U. S. 72, 79.
But I do not rest my dissent on this ground because I cannot accept the majority‘s rationale as to the statute‘s purpose. The statute, I submit, was aimed not at the possessor but at his companions. It is a dragnet statute which permits the arrest and conviction of persons (found in the company of a possessor of narcotics) who are suspected of having also illegally possessed or otherwise dealt with narcotics, but cannot be proved to have done so. Doubtless the statute brings to book many who have in fact violated the narcotic laws, but it also brings within its sweep persons who have neither committed nor intended to commit such
I think that the statute also is invalid on the ground of vagueness. Under the statute, as construed by the majority, a defendant may not be convicted if he “shows facts constituting justification or excuse (as, for example, inability to withdraw after acquiring knowledge of possession, or reasonable cause for remaining, such as that he was a relative, priest, or doctor attempting to discourage continued violation or, possibly, that other exculpatory circumstances existed.)” Under this construction it is difficult to say with any degree of certainty what the statute permits and what it forbids. A “statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Connally v. General Constr. Co. 269 U. S. 385, 391. Commonwealth v. Slome, 321 Mass. 713, 715. Commonwealth v. Carpenter, 325 Mass. 519, 521. Alegata v. Commonwealth, 353 Mass. 287, 293.
I am not so naive as to suppose that the defendant in the