Chapter 3: Criminal Law and Procedure

Volume 1986

Article 6

1-1-1986

Chapter 3: Criminal Law and Procedure

Stephen W. Bernstein

Kevin W. Clancy

Royal C. Gardner

Richard L. Gemma

John A. Gordon

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Authors

Stephen W. Bernstein, Kevin W. Clancy, Royal C. Gardner, Richard L. Gemma, John A. Gordon, and

Constance J. MacDonald

CHAPTER 3

Criminal Law and Procedure

SURVEY Stafft

§ 3.1. Violations of Pretrial Conference Reports and Preservation of

Evidence- Criminal Defendant's Right to New Trial.* Under Rule 11

(a)(2)(A) of the Massachusetts Rules of Criminal Procedure, pretrial

con-ference reports must contain statements on matters agreed to by the

parties, including agreements to produce evidence for inspection and

stipulations of fact.

_{These agreements must be in writing, are binding}

on the parties

_{and may sometimes be classified as discovery orders.}

Should a party fail to abide by the terms of the agreement, the judge may

enter an "order as he deems just under the circumstances. "

Remedies

include an order to suppress evidence obtained or offered in

contraven-tion of the agreement.

Prior case law involving violations of pretrial agreements or discovery

orders where there has not been a showing of prejudice have not resulted

in the suppression of evidence.

_{In contrast, where a prosecutor's failure}

to disclose exculpatory evidence in contravention of a discovery order

t Stephen W. Bernstein, Kevin W. Clancy, Royal C. Gardner, Richard L. Gemma, John

A. Gordon, Constance J. MacDonald.

*Stephen W. Bernstein, staff member, ANNUAL SURVEY OF MASSACHUSETTS LAW.

§ 3.1. 1 _{MASS. R. CRIM. P. ll(a)(2)(A) states in pertinent part:}

... The conference report shall contain a statement of those matters upon which the parties have reached agreement, including any stipulations of fact, and a state-ment of those matters upon which the parties could not agree which are to be the subject of pretrial motions. Agreements reduced to writing in the conference report shall be binding on the parties and shall control the subsequent course of the proceeding.

2 /d.

3 Commonwealth v. Pope, 19 Mass. App. Ct. 627, 630 n.3, 476 N.E.2d 969,972 n.3 (1985)

(pretrial conference reports may rise to level of discovery orders); Commonwealth v. Scalley, 17 Mass. App. Ct. 224, 230 n.8, 457 N.E.2d 298, 302 n.8 (1983) (pretrial conference reports "may be the equivalent of a 'discovery order"').

4 _{MASS. R. CRJM. P. 14(c)(l), (2). See also Commonwealth v. Cundriff, 382 Mass. 137,}

148-51, 415 N.E.2d 172, 178-80 (1980) (Court affirms trial judge's denial of motion to exclude evidence disclosed in violation of pretrial agreement because defendant failed to show prejudicial harm), cert. denied, 451 U.S. 973 (1981).

5 _{See MAss. R. CRIM. P. 14(c)(2).}

6 _{See Cundriff, 382 Mass. at 151, 415 N.E.2d at 180; Pope, 19 Mass. App. Ct. at 630,}

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§

3.1

does prejudice the defendant, then a new trial will be granted.7 Moreover,

if the prosecutor fails to comply with the pretrial agreement causing

irremediable harm to the defendant and precluding the possibility of a

fair re-trial, the judge may dismiss the criminal charge completely.8

During the

Survey year, the Supreme Judicial Court, in Commonwealth

v. Gliniewicz clarified the standard of review where the prosecution

violates a pretrial agreement to produce physical evidence for inspection.

In

Gliniewicz, the Court specifically addressed the issue of the destruction

of evidence during the process of testing after the prosecution had agreed

to permit the defendant to inspect the evidence. 10 The

Gliniewicz Court

held that where the prosecution makes use of such evidence to the

prejudice of the defendant, the judge may order a new trial."

In

Gliniewicz, the defendants

_{were indicted on charges of assault and}

battery with a dangerous weapon and breaking and entering a building

in the nighttime.

_{On January 27, 1982, the defendants broke into a}

restaurant and entered the owners' living quarters during the night. 14 A

confrontation occurred and both owners were stabbed by the

defen-dants.15

During the investigation, the police located and photographed

boot-prints left at the scene. 16 Workboots were later seized from the defendants

which matched the photographs. 17 Pursuant to Rule 11, a pretrial

confer-ence report contained an agreement requiring that the defendants be

allowed to inspect materially relevant evidence, including the boots. 18

7 _{See Commonwealth v. Lam Hue To, 391 Mass. 301, 310-11, 461 N.E.2d 776, 782-83.}

(1984) (Court remands case for determination of harm to defendant "caused by prosecution's late disclosure of exculpatory evidence").

8 _{See id. at 312-13, 461 N.E.2d at 784. See also Commonwealth v. Murchison, 392 Mass.}

273, 276,465 N.E.2d 256, 258 (1984) (Court remanded in order to determine whether finding of irremediable harm was justified). This standard of review comports with that in most

jurisdictions. See J. FRIEDENTHAL, CIVIL PROCEDURE § 8.3 (1985).

9 _{398 Mass. 744, 500 N.E.2d 1324 (1986).}

10 _{Id. at 746, 500 N.E.2d at 1325-26.}

11 _{/d. at 746-47, 500 N.E.2d at 1326.}

12 The circumstances of this case involved two defendants, Gliniewicz and Durning who

were tried together in superior court. Gliniewicz, 398 Mass. at 744 n.1, 500 N.E.2d at 1324

n.1. On appeal, both defendants raised the issue discussed herein regarding the suppression

of evidence destroyed during testing. /d. at 746, 500 N.E.2d at 1325. Gliniewicz, in addition,

raised two separate arguments. /d. See infra note 29 for a discussion of these two additional

issues.

13 _{Gliniewicz, 398 Mass. at 745, 500 N.E.2d at 1325.}

14 Id. at 746, 500 N.E.2d at 1325.

"/d.

16 Id.

17 Id.

§

3.1

57

The agreement also required the Commonwealth to provide the

defen-dants with written reports of scientific tests conducted by its experts.

Subsequently, the boots were chemically tested by the Boston

De-partment of Public Safety and the examiner found no blood on either

pair.

_{The boots were later delivered to a forensic serologist}

_who

conducted tests designed to detect smaller quantities of blood than the

tests performed by the Boston Department of Public Safety.

_{When the}

boots were delivered, the assistant district attorney authorized the expert

"to do whatever he needed to [them] including cutting into them. "

_The

expert's report indicated the presence of human blood.

Because the

boots were wiped with filter papers in addition to being cut and used in

a liquid solution, any remaining blood "was insufficient for further

test-ing.

At trial, each defendant filed a motion to suppress the results of these

serological tests, but both motions were denied.

_{The trial judge found}

that the defendants suffered no prejudice because the results of the

serological tests had been preserved.27 Both defendants were found guilty

and sentenced to consecutive terms of eight to ten years for assault and

battery and twelve to twenty years for breaking and entering.

_The

defendants appealed their convictions and moved for new trials claiming

that the destruction of evidence violated both the terms of the pretrial

agreement and their due process rights.

19Jd.

20 _{Id. at 746, 500 N.E.2d at 1325.}

21 _{A serologist is a trained specialist who examines serums and their reactions with}

various antibodies and other materials. WEBSTER'S THIRD NEW INTERNATIONAL DICTION-ARY 2074 (unabridged ed. 1981).

22 _{Gliniewicz, 398 Mass. at 746, 500 N.E.2d at 1325. This test involved a two step process.}

ld. at 748, 500 N.E.2d at 1326. First, a small section of the boot was wiped with filter

papers and then the papers were treated with chemicals to determine the presence or

absence of blood. I d. The results of this first step, called ortho-tolidine testing "require[d]

a subjective determination regarding the rapidity of development and intensity of the change in color in assessing the presence of blood." ld. (emphasis added). The second step, electrophoresis, involved cutting a piece of boot and creating a liquid extract. ld. The extracts "were then poured into a gel substance and treated with electric current to detect the presence of protein material." Id .

• 23 Gliniewicz, 398 Mass. 748, 500 N.E.2d at 1326.

24Jd.

25 _{Id. at 748, 500 N.E.2d at 1327.}

26_{/d. at 746, 500 N.E.2d at 1325.}

27 _{Id. at 748, 500 N.E.2d at 1327.} 2BJd. at 745, 500 N.E.2d at 1325.

29_{/d. at 746, 500 N.E.2d at 1325. In addition, Gliniewicz raised two other objections.ld.}

at 749, 500 N.E.2d at 1327. First, Gliniewicz claimed that he was subjected to an invalid

warrantless seizure of his boots when he was arrested. I d. After a policeman observed that

the boots had a tread similar to the prints found at the victims' restaurant, the officer seized

58

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3.1

The Supreme Judicial Court, hearing the case on its own motion,

reversed and remanded the defendants' convictions to the superior

court.

The Court held that the prosecution's violation of the pretrial

agreement resulted in the destruction of the boots depriving the

defen-dants' the opportunity to conduct their own tests

.3' According to the

Court, this inability to conduct independent tests or at least the

oppor-tunity to observe the Commonwealth's tests sufficiently prejudiced the

defendants to warrant a new trial.

The Court began its analysis by depicting the relevant parameters

associated with the disclosure of evidence in contravention of a discovery

order or pretrial agreement.

_{First, the Court described precedent}

hold-ing that where evidence is belatedly disclosed to defendants in

contra-vention of a discovery order yet does not prejudice the defendant, the

and tagged the boots as evidence. ld. at 749-50, 500 N.E.2d at 1327. This was pursuant to official policy. Id. at 749, 500 N.E.2d at 1327.

In reviewing Gliniewicz's illegal seizure claim, the Supreme Judicial Court held that the seizure was valid and that Gliniewicz's motion to suppress the boots was not in error on

this ground. Jd. at 750, 500 N.E.2d at 1327-28. The Court relied on United States v.

Edwards for the principle that clothing constituting evidence may be taken from an accused

upon arrest. 415 U.S. 800, 808-09 (1974). Second, the Court held that because the seizure

was part of a regularly conducted inventory search, no warrant was required. Gliniewicz,

398 Mass. at 750, 500 N.E.2d at 1327 (citing Commonwealth v. Hason, 387 Mass. 169, 177-78, 439 N.E.2d 251, 257 (1982)).

Gliniewicz also claimed that the imposition of consecutive sentences violated his right

to be free from double jeopardy. Gliniewicz, 398 Mass. at 750, 500 N.E.2d at 1328.

Mas-sachusetts Jaw disallows consecutive sentences where one crime can be proven "completely by evidence forming part of the necessary proof of the other crime." Commonwealth v.

Hogan, 379 Mass. 190, 194, 396 N.E.2d 978, 981 (1979). See also Commonwealth v. Jones,

382 Mass. 387, 395, 416 N.E.2d 502, 507 (1981) (Court distinguishes between consecutive and concurrent sentences); Commonwealth v. Stewart, 375 Mass. 380, 391, 377 N.E.2d 693, 701 (1978) (Court accepts same evidence test for consecutive sentencing). Further, where the prosecution must prove additional facts not required for conviction for other offenses, consecutive sentences are allowed. Commonwealth v. Ford, 397 Mass. 298, 302, 490 N.E.2d 1166, 1169 (1986) (Court upholds lower court ruling that three crimes did not overlap and therefore consecutive sentences were appropriate).

In Gliniewicz, the defendants were charged and sentenced with breaking and entering in

the nighttime as well as assault and battery with a dangerous weapon. Gliniewicz, 398

Mass. at 750-51, 500 N.E.2d at 1328. The Court, in utilizing the standard set forth in Ford,

properly held that Gliniewicz's sentences did not deny his right against double jeopardy because the elements needed to sustain a conviction of breaking and entering were not the

same as those needed for assault and battery. Gliniewicz, 398 Mass. at 751, 500 N.E.2d at

1328 (citing Ford, 397 Mass. at 302, 490 N.E.2d at 1169).

30 _{Gliniewicz, 398 Mass. at 745, 500 N.E.2d at 1325.} 31 _{Id. at 748, 500 N.E.2d at 1327.}

32 _{Id. at 749, 500 N.E.2d at 1327.}

evidence will not be suppressed.

_{In comparison to these cases, the}

Court cited instances where the total failure to disclose exculpatory

evidence resulted in prejudice to the defendant and thus, required a new

triaJ.3

In Gliniewicz, the Court asserted that because this case involved

nei-ther the belated disclosure of evidence nor the failure to disclose

excul-patory evidence in contravention of a pretrial agreement, the Gliniewicz

case presented a different situation.

_{Nonetheless, the Court concluded}

that the prosecution's violation of the pretrial agreement prejudiced the

defendants because it denied them the ability to duplicate the tests or to

monitor the original testing.

Contrary to the trial judge's ruling, the Court refused to credit the

Commonwealth's assertion that because the expert's report was

avail-able, the defendants were not truly harmed.

The Court maintained that

the ability to conduct independent, comparable tests, and not the

avail-ability of the results was crucial under the pretrial agreement.

_{The Court}

noted that because sections of the boots were destroyed during testing,

the tests could not be duplicated.

_{In addition, the Court reasoned that}

because the defendants never received notice of the tests, they lacked

the opportunity to have their own experts examine and potentially refute

"the subjective aspects of the testing. "

_{According to the Court, the}

prosecutor's condonation of the boots destruction prejudiced the

defen-dants and thus, held that the test results should have been suppressed.

34/d. (citing Cundriff, 382 Mass. at 148-51, 415 N.E.2d at 178-80; Pope, 19 Mass. App.

Ct. at 630, 476 N.E.2d at 972).

35 _{/d. (citing Lam Hue To, 391 Mass. at 310, 461 N.E.2d at 785).}

36_{/d. at 747, 500 N.E.2d at 1326.}

37 _{/d. at 748-49, 500 N.E.2d at 1327.}

38Jd. at 748, 500 N.E.2d at 1327.

39 /d.

4(j /d.

41 _{!d. at 749, 500 N.E.2d at 1327.}

42 _{/d. The Court's ruling in Gliniewicz rests entirely on the prejudice to the defendants}

resulting from the prosecution's violation of the pretrial agreement. The Court explicitly

stated that it did not reach the defendants' due process claims. /d. at 747, 500 N.E.2d at

1326. In the absence of a pretrial agreement, however, the prosecution's destruction of evidence may not result in re-trial or acquittal even though the defendant suffers prejudice.

See California v. Trombetta, 467 U.S. 479, 486-87 (1984).

Under the due process clause of the fourteenth amendment, the prosecutor has a duty to disclose to defendants evidence that is material to their guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). See also United States v. Agurs, 427 U.S. 97, 112 (1976) (Even without a request from the defendant, the prosecutor has a constitutional duty to disclose evidence that would raise doubt regarding the defendant's guilt). The Massachu-setts courts have recognized this duty of disclosure in several cases. See e.g., Lam Hue

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3.1

The Court then focused on the terms of the pretrial agreement.

_The

agreement called for the production of evidence for inspection.

Ac-cording to the Court, the prosecution failed to comply with the

agree-ment's terms because it had authorized the destruction of material

evi-dence precluding inspection of the boots by the defendants.

_{Under the}

Court's interpretation of the Rules of Criminal Procedure, a failure to

comply with the terms of a pretrial agreement may result in suppression

of evidence.

_{Thus, because the destruction of the boots contravened}

the terms of the pretrial agreement as well as denied the defendants the

ability to refute the prosecution's expert testimony,

_{the Supreme}

Judi-cial Court reversed the trial judge's ruling and granted the defendants

new trials.

The Court's decision to grant new trials for the defendants turned on

three separate factors. First, the Court concluded that the binding nature

whether prosecutor violated constitutional duty to disclose: exculpatory nature of evidence, materiality of evidence, and whether failure to disclose evidence prejudiced the defendant). The prosecutor's duty to preserve evidence, on the other hand, is limited to evidence that has exculpatory value apparent before it is destroyed and is of such a nature that no comparable evidence is obtainable by reasonable means. Trombetta, 461 U.S. at 489. In

Trombetta, the United States Supreme Court held that the prosecutor need only preserve evidence that is both exculpatory and unavailable to the defendant by other reasonably available means. Id. The Court's rationale stemmed from precedent where it rejected the idea that prosecutor's have a constitutional duty to disclose their entire "file" to the defense.

Id. at 488 n.8 (Citing Agurs, 427 U.S. at 97). The Court added that state courts and legislatures may adopt more rigorous safeguards governing evidence than those provided under the Federal Constitution. ld. at 491 n.12.

Had the Supreme Judicial Court explicitly applied the standard prescribed in Trombetta,

because the boots were not both exculpatory and unobtainable, they would have been ruled admissible evidence. ld. Clearly, when the boots were destroyed during testing they became "unobtainable" and thus met the second tier of the standard. Nevertheless, even if the boots had not been blood-stained, the test results would not have exculpated the defendants. Thus, the first tier is not met and therefore the test results would be admissible. By strictly enforcing pretrial agreements, the Gliniewicz Court imposes a duty upon the prosecution beyond the duty that exists under Trombetta. Where such agreements exist, the Gliniewicz standard thus creates a more rigorous test for prosecutors to meet in order to offer into evidence test results on materials which are later destroyed. Under Gliniewicz,

when either the destruction of unobtainable evidence or the destruction of exculpatory evidence occurs, and precludes defendants from observing tests or conducting their own, suppression of the prosecution's test results seems likely.

43 _{Gliniewicz, 398 Mass. at 746, 500 N.E.2d at 1326.}

44Jd.

"" I d. at 748, 500 N .E.2d at 1326. 46_{ld. at 747, 500 N.E.2d at 1326.}

47 _{The Court expressed strong disapproval of the prosecutor's statements during his}

closing argument that the positive test results were "not . . . refuted by any expert testi-mony." Gliniewicz, 398 Mass. at 749, 500 N.E.2d at 1327.

61

of pretrial agreements entitled the defendants to new trials.

Focusing

on the terms agreed upon in the pretrial conference report, the Court

affirmed the implicit policy behind Rule 11 (a)(2)(A) to hold parties to

their representations regarding litigation strategy. In addition, the Court

stressed its commitment to enforcing pretrial agreements by ruling against

the prosecutor.

As a policy matter, binding parties to their stated plans seems desirable

because it precludes parties from gaining an advantage by agreeing on

one term and acting on another. In

Gliniewicz,

the Court stressed the

prosecution's knowledge that the serologic testing might indeed destroy

the boots.

_{By granting the defendants a new trial, the Court not only}

protected them from undue prejudice, but it also demonstrated the

c!ffec-tiveness of pretrial agreements in driving efficient discovery. Had the

prosecutor given notice to the defendants, thus complying with the

pre-trial agreement's terms, additional evidence would have been available

for trial.

Also underlying the Court's ruling was the defendants' inability to

refute adequately the prosecutor's expert test results.

_{This aspect of}

the Court's reasoning focused on the inherent unfairness of allowing the

prosecution to offer the results of tests which could only be performed

once.

The Court concluded that the defendants were prejudiced because

the tests, by necessity, destroyed the relevant sections of the boots and

involved subjective determinations of the results.

A third factor, contributing to the Court's grant of a new trial focused

on the ethical dimensions of the prosecutor's behavior. The Court stated,

"[t]o make matters worse,

the prosecutor commented in his closing

ar-gument that the positive results obtained by [the expert] were 'not ...

refuted by any expert testimony by the defense. '"

_{In light of its}

obser-vation, the Court implicitly admonished the prosecution for its failure to

follow the general ethical duties to preserve evidence.

The

Gliniewicz

Court's emphasis on the binding nature of pretrial

agreements, the defendant's inability to refute the test results and the

unethical behavior of the prosecutor yielded an equitable result under

these facts by protecting the defendants from undue prejudice resulting

from the prosecution's error. Moreover, by granting new trials as opposed

to dismissing the actions entirely, the decision adequately protects

wronged defendants without improperly rewarding them with an acquittal

49 _{See supra notes 1-4 and accompanying text.}

50 _{Gliniewicz, 398 Mass. 748, 500 N.E.2d at 1326.}

51 /d.

52/d. at 748, 500 N.E.2d at 1327.

53 _See supra note 22 for discussion of testing procedure.

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§

3.2

based on a procedural technicality.

Consequently, the result reached by

the Supreme Judicial Court properly balances the defendant's right to a

fair trial, which includes the need to admonish the prosecution for its

failure to comply with pretrial agreements and the need to preserve

evidence, with society's ·desire to avoid acquittals based on technical

errors.

In sum,

Commonwealth v. Gliniewicz

addresses the standard of review

for evidence destroyed in contravention of a pretrial agreement.

Accord-ing

to the Court, should violation of a pretrial agreement involve the

destruction of evidence by a prosecutor, prior to inspection by the

de-fendant's experts, thereby prejudicing the defendants, the court will likely

suppress the evidence. Should the trial judge, however, fail to suppress

this prejudicial evidence, a new trial will usually be awarded. Moreover,

where that evidence is exculpatory and material, the judge is empowered

to grant a dismissal. By its award of a new trial, the Court in

Gliniewicz

warns both prosecutors and defense counsel of the consequences which

may result when evidence is destroyed in contravention of a pretrial

agreement.

§

3.2.

Jury Instructions -

Presumptions of Intent.*

Prior to 1979, the

Massachusetts courts generally disallowed defendants in criminal

pro-ceedings from making constitutional challenges to jury instructions

con-taining presumptions of intent.

_{Thus, where intent was an element of}

the crime charged, a judge's instructions which allowed the jury to

pre-sume intent from the defendant's actions alone were constitutionally

sound.

_{In the ·1979 decision}

_{Sandstrom v. Montana,}

_{however, the}

United States Supreme Court examined the constitutionality

ofpresump-55 _{Because the test results did not act to exculpate the defendants, the resulting prejudice}

did not rise to the level of irremediable harm warranting dismissal of the action. See

Murchison, 392 Mass. at 276, 465 N.E.2d at 258 (permissible for a court to dismiss criminal charges altogether in cases where the violation of pretrial agreement prevents the defendant

from ever receiving a fair trial). See also Lam Hue To, 391 Mass. at 314, 461 N.E.2d at

785 (1984). In Gliniewicz, the prosecutor's violation did not preclude the defendants from

receiving a fair trial once the test results from the destroyed boots were suppressed. Had the Court dismissed the action completely, the defendants would have gained a windfall simply due to the prosecution's procedural error. Instead, by granting a new trial, the Court properly balanced the rights of the defendants with the need of society to enforce its laws.

See Comment, The Prosecution's Duty To Preserve Evidence Before Trial, 72 CALIF. L.

REV. 1019, 1037 (1984).

*Kevin W. Clancy, staff member, ANNUAL SURVEY OF MASSACHUSETTS LAW.

§ 3.2. 1 _{Commonwealth v. Burkett, 396 Mass. 509, 512, 487 N.E.2d 478, 480 (1986).}

2 _{See Sandstrom v. Montana, 442 U.S. 510 (1979). The Sandstrom Court was the first to}

find unconstitutional a judge's instructions which the jury may have interpreted as a direction to find intent upon proof of the defendant's voluntary actions. I d. at 517, 524.

tions of intent in jury instructions and held that a judge's instructions

which create either a burden-shifting presumption or a conclusive

pre-sumption of intent violate the criminal defendant's fourteenth amendment

due process rights, by impermissably relieving the state of its burden of

proving the element of intent beyond a reasonable doubt, as is

constitu-tionally required.

_{The Sandstrom Court found the judge's instructions}

in that case

_{unconstitutional because a reasonable juror, according to}

the Court, may have interpreted them as presumptively conclusive on

the element of intent, thereby shifting the burden of proof to the

defen-dant.6

In Commonwealth v. Callahan/ the first Massachusetts decision to

apply the Sandstrom ruling, the Supreme Judicial Court held that a

judge's instruction to the jury that a person must be presumed to intend

to do that which he voluntarily does and all the natural, probable, and

usual consequences flowing from the act,

_{constituted a Sandstrom error}

because it established a presumption in favor of the Commonwealth.

The Court noted that a judge's instructions may direct the jury to infer

the defendant's actions, but they may not presume the presence of the

4 _{/d. at 524. As to the constitutional requirement, the Court has stated:}

Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

In re Winship, 397 U.S. 358, 364 (1970).

A burden-shifting presumption in a judge's instructions allows a jury to find a defendant guilty of the crime charged without hearing evidence bearing on an element of the crime, thereby relieving the government of the burden of proving that element, and alternatively placing the burden of disproving that element on the defendant, thus violating his due process guarantees. Sandstrom, 442 U.S. at 517, 519-21.

A judge's instructions to a jury creates a conclusive presumption as to an element of the crime charged if the instruction constitutes an irrebuttable [conclusion] by the judge to the jury to find the presence of that element once convinced of the facts triggering the pre-sumption. /d. at 517.

5 _{The judge's instruction read, in relevant part, that "[t]he law presumes that a person}

intends the ordinary consequences of his voluntary acts." /d. at 513.

6 _{/d. at 517, 524.}

7 _{380 Mass. 821, 406 N.E.2d 385 (1980).}

8 /d. at 822, 406 N.E.2d at 386. The judge's instruction read, in relevant part, that:

Our Supreme Court has said that where the killing is caused by the intentional use of a deadly weapon, there arises the presumption of malice aforethought, as that term has been used ami understood in this state . . . . This rule is founded on the plain and obvious principle that a person must be presumed to intend to do that which he voluntarily and wilfully does in fact do, and that he must intend all the natural, probable and usual consequences of his own act.

/d. at 822-23 n.l, 406 N .E.2d at 386 n.l.

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3.2

element from those actions alone.

_{According to the Callahan Court,}

the judge's use of the word "presumption," instead of inference,

in

the

instructions had a "mandatory effect" on the jurors,

_{directing them to}

find that the mental element of the criminal charge was satisfied merely

from the defendant's actionY The Court found that the use of

"pre-sumption" in the instructions favored the Commonwealth by shifting the

burden of proof to the defendant.

_{This shifting, according to the Court,}

violated the Sandstrom rule because a reasonable juror could have

inter-preted the instruction so as to relieve the state of some portion of its

constitutional burden of proof.

Similarly, in DeJoinville v. Commonwealth,

_{the Court ruled that the}

trial judge committed a Sandstrom error where he instructed the jury

that a person is "presumed to have intended the natural or probable

consequences of his voluntary acts . . . in the absence of evidence to the

contrary."

_{The Court found that a juror could reasonably have}

inter-preted the charge, like the instructions in Sandstrom,

_{as establishing}

either a conclusive presumption or a mandatory presumption,

_because

the jurors were not permitted to infer the mental element of the crime

from all the circumstances, but rather were told that the defendant was

presumed to have possessed the requisite element as a consequence of

his actions.

_{Thus, the judge's instructions were unconstitutional,}

ac-cording to the Court, because the jury may have interpreted them as

relieving the Commonwealth of its constitutional burden of proving every

element beyond a reasonable doubt.

10 _{Id. at 823-24, 406 N.E.2d at 387.} 11 _{Id. at 824, 406 N.E.2d at 387.} 12 Id.

13 Id. at 824-25, 406 N.E.2d at 387. 14 _{Id. at 825, 406 N.E.2d at 387.}

15 381 Mass. 246, 408 N.E.2d 1353 (1980).

16 Id. at 247,408 N.E.2d at 1354. The judge's instruction read, in relevant part, that:

[I]t is a general rule that every man of sufficient mental capacity to know what he is doing is presumed to have intended the natural or probable consequences of his voluntary acts.

ld. at 247 n.1, 408 N.E.2d at 1354 n.l.

17 _{See supra note 5 and accompanying text.}

18 _{The Court defined mandatory presumption as follows:}

Mandatory presumption. A jury is required to find an ultimate fact to be true upon proof of another fact unless they are otherwise persuaded by a preponderance of evidence offered in rebuttal.

Id. at 252 n.12, 408 N.E.2d at 1357 n.12 (quoting Mcinerney v. Berman, 473 F. Supp. 187,

188 (D. Mass. 1979)). This is the same as the burden-shifting presumption. Compare Sandstrom, 442 U.S. at 517.

19 _{DeJoinvillf!, 381 Mass. at 254, 408 N.E.2d at 1358.}

DeJoinville represents the first Massachusetts case to apply the

Sand-strom ruling retroactively. 21 The Court noted that although the defendant

failed to raise the presumed intent charge either at trial or on direct

appeal, he was not precluded from raising the claim after those

proceed-ings.22 According to the Court, a petitioner is not barred from raising

claims whose constitutional significance was not established until after

his trial and direct appeal. 23 Thus, because the constitutional theory

enunciated in Sandstrom, on which the defendant's claim rested, was

not established until after his trial and appeal, the defendant was entitled

to a "genuine opportunity" to raise his constitutional claim, according to

the Court. 24

In Commonwealth v. Burkett,

_{decided during the Survey year, the}

Supreme Judicial Court, following the DeJoinville decision, retroactively

applied the Sandstrom rule to find that a judge's instructions26 deprived

the defendant of his due process rights because they created a conclusive

presumption of intent to murder, 27 and therefore relieved the

Common-wealth of its constitutional burden of proving the element of specific

intent. 28 The Burkett Court noted that the conclusive presumption was

21 /d. at 251, 408 N.E.2d at 1356.

22 /d.

23 _{/d. at 248, 408 N.E.2d at 1354. See also LeBlanc v. Commonwealth, 363 Mass. 171,}

173-74, 293 N.E.2d 260, 261 (1973).

24 _{DeJoinville, 381 Mass. at 251, 408 N.E.2d at 1356.}

25 _{396 Mass. 509, 487 N.E.2d 478 (1986).}

26 The judge's instruction read, in relevant part:

Now, the next indictment against George Burkett is that he is charged with assault with intent to murder, chapter 265, section 18. In order for the Commonwealth to prove the defendant Burkett guilty of that particular charge they must prove that he did assault with a dangerous weapon one James Bickerton with intent to murder him

Of course, you must find, first, that George Burkett was in possession of a dangerous weapon, to wit, a pistol, a handgun, and you must find that he raised that handgun in the direction of Mr. Bickerton, which would be a form of an assault. As far as the intent is concerned- that is, the intent to murder- if you find that the handgun was loaded at the time and that if the handgun had been fired more accurately in the direction of James Bickerton that death would have resulted or serious bodily harm, that would be evidence of assault with intent to murder.

In other words, if death had resulted, if you find that Burkett fired one or more shots in the direction of James Bickerton and if death had resulted to Bickerton from the firing of those shots, then the defendant would have been guilty of murder.

/d. at 510-11 n.2, 487 N.E.2d at 479 n.2.

27 _{/d. at 513, 487 N.E.2d at 481. The defendant was charged with assault while armed}

with a dangerous weapon with intent to murder pursuant to G.L. c. 265, § 18(b) which

states that, "Whoever, being armed with a dangerous weapon, assaults another with intent to rob or murder shall be punished by imprisonment in the state prison for not more than

twenty years." /d. at 510, 487 N.E.2d at 479.

66

1968

§

3.2

created by the instructions, even though the judge did not use the word

"presume"

or instruct the jury that the defendant intended the "natural

or probable consequences of his voluntary acts. "

The conclusive

pre-sumption, according to the Court, arose because the judge allowed the

jury to find intent to murder solely from the undisputed actions of the

defendant.

Three years before the

Sandstrom

decision, the defendant in

Burkett

had been convicted of armed robbery, kidnapping, unlawfully carrying a

firearm, and assault while armed with a dangerous weapon with intent to

murder.

The indictment for assault while armed with a dangerous

weapon with intent to murder resulted from the robbery of a shop on

Newbury Street in Boston.

After committing the robbery, the defendant

was seen entering a car by two police officers sitting in an unmarked

cruiser.

_{The officers followed the car until the defendant pulled over to}

a curb and got out, armed with a gun.

_{A chase ensued, during which}

the defendant allegedly stopped, turned, and fired his gun in the direction

of James Bickerton, who was one of the officers in pursuit.

_{At trial,}

Bickerton testified that the defendant fired the shot from a considerable

distance in his "direction," and that the defendant stopped two more

times during the chase, aimed the weapon at him, but did not fire the

gunY The pursuing officer, Bickerton, was not wounded, nor were any

shells subsequently recovered by police investigators who searched the

area.

The defendant was convicted in 1976 by a jury in superior court, and

the conviction was affirmed by the Appeals Court.

In 1984, the

defen-dant moved for a new trial pursuant to Mass. R. Crim. P. 30(b}

on the

29 _{See Sandstrom, 442 U.S. at 517.}

30 _{Burkett, 396 Mass. at 513, 487 N.E.2d at 481. See Deloinvil/e, 381 Mass. at 247, 408} N .E.2d at 1354 (a person is presumed to have intended the natural or probable consequences of his voluntary acts).

3 ' Burkett, 396 Mass. at 513, 487 N.E.2d at 481.

32 _{Id. at 509-10, 487 N.E.2d at 479.}

33 _{Id. at 510, 487 N.E.2d at 479.}

34 ld.

35 ld.

36 ld.

37 _{Id. at 513-14, 487 N.E.2d at 481.}

38 _{Id. at 514, 487 N.E.2d at 481.}

39 _{ld. at 509-10, 487 N.E.2d at 479. See Commonwealth v. Burkett, 5 Mass. App. Ct.}

901, 370 N.E.2d 1017 (1977) (conviction for assault while armed with a dangerous weapon with intent to murder affirmed).

40 _{MASS. R. CRIM. P. 30(b) states that:}

indictment charging him with assault while armed with a dangerous

weapon with intent to murder. 41 The trial judge denied the defendant's

motion without hearing, but the Appeals Court, by summary disposition,

reversed the judge's order.42 In his motion for a new trial, the defendant

contended that the trial judge's instructions to the jury on the crime of

assault while armed with a dangerous weapon with intent to murder4

created a conclusive presumption of intent to murder from that fact that

the defendant had fired his gun.

_{The Appeals Court granted the}

defen-dant's motion, concluding that the judge's instruction deprived the

de-fendant of due process of law by relieving the Commonwealth of its

burden of proof on the issue of specific intent to murder.45 The Supreme

Court granted the Commonwealth's application for further appellate

re-view on the issue. 46

The Court began its analysis by noting that the defendant failed to

object to the instruction either at trial or on direct appeal, and that

normally it will not review such an issue raised by a petition for

post-conviction relief where the issue could have been raised during the

orig-inal proceedingsY The Court stated, however, that this rule does not

prevent the defendant from raising claims whose constitutional

signifi-cance was not established until after his trial and appeal.

_{The Court}

explained that prior to the United States Supreme Court's

1979

ruling in

Sandstrom v. Montana,

_{constitutionally based challenges to}

presump-tions of intent in jury instrucpresump-tions were not generally available to

defen-dants.50 The Court reasoned that because the defendant's trial and direct

appeal both occurred prior to the

Sandstrom

decision, the defendant did

not have a "genuine opportunity" to raise his constitutional claim during

those proceedings, and was thus entitled to raise the issue for the first

time in a motion for a new trial. 51

Having determined that the

Sandstrom

decision applied retroactively,

such findings of fact as are necessary to resolve the defendant's allegations of error of law.

MASS. R. CRJM P. 30(b), 378 Mass. 900 (1979). 41 _{Burkett, 396 Mass. at 510, 487 N.E.2d at 479.}

42 /d. See Commonwealth v. Burkett, 19 Mass. App. Ct. ll05, 472 N.E.2d 1390 (1985).

43 _{See supra note 26 and accompanying text.}

44 _{Burkett, 396 Mass. at 510-ll, 487 N.E.2d at 479-80 .}

., /d. at 51l, 487 N.E.2d at 480.

46 _{/d. at 510, 487 N.E.2d at 479.}

47 _{/d. at 511, 487 N.E.2d at 480. See LeBlanc v. Commonwealth, 363 Mass. 171,}

173-74, 293 N.E.2d 260, 261.

48 _{Burkett, 396 Mass. at 511,487 N.E.2d at 480. See LeBlanc, 363 Mass. at 173-74,293}

N.E.2d at 261. 49 _{442 U.S. at 510 .}

so Burkett, 396 Mass. at 512, 487 N.E.2d at 480.

68

1968

3.2

the Court then considered whether the trial judge in

Burkett

impermis-sibly relieved the Commonwealth of its burden of proof by allowing the

jury to presume the intent to murder from the fact that the defendant had

fired his gun in the direction of the officer.

_{Relying on the test enunciated}

in

Sandstrom,

the

Burkett

Court stated that the constitutionality of the

presumption depended on what a reasonable juror could have interpreted

the instruction to mean.

_{The Court held that although the trial judge}

did not use the word "presume,"

_{or instruct the jury that the defendant}

intended the "natural or probable consequences of his voluntary acts,"

his instruction nevertheless created an unconstitutional presumption of

intent, because a reasonable juror could have interpreted the charge to

create a conclusive presumption of intent upon proof that the defendant

had fired his gun in the officer's direction.

The Court noted that the

judge instructed the jury, under the indictment for assault while armed

with a dangerous weapon with intent to murder, that "you must find . . .

that if the bullet had struck [the police officer] and had killed him, then

he could have been charged with murder. "

_{The Court stated that this}

attempt to define intent to murder, a separate element of the crime

charged, by reference to what crime the defendant would have been

guilty of had the bullet struck and killed the police officer, had the effect

of informing the jury that they could presume intent to murder from the

fact that the gunshot, more accurately fired, might have killed the

offi-cer.

_{According to the Court, a reasonable juror could have interpreted}

the charge as creating a conclusive presumption of intent based upon

proof that the defendant had fired his gun.

Thus, the Court found that

the trial judge committed a

Sandstrom

error because the conclusive

presumption relieved the Commonwealth of the burden of proving

spe-cific intent to murder.

The Court further noted that the impermissible instruction did not

constitute a harmless error,

_{which would not have contributed to the}

guilty verdict and would have barred a new trial on the issue.

_{The fact}

52 _{Burkett, 396 Mass. at 512, 487 N.E.2d at 480.}

53 _{Id. at 513, 487 N.E.2d at 480-81.}

54 _{See Commonwealth v. Zezima, 387 Mass. 748, 754-55, 443 N.E.2d 1282, 1285-86}

(1982) (judge's instruction using word "presume" created mandatory presumption of intent).

55 _{See DeJoinville, 381 Mass. at 254, 408 N.E.2d at 1358.}

56 _{Burkett, 3% Mass. at 513, 487 N.E.2d at 481.} 57 _{ld. See supra note 26 and accompanying text.} 58 _{Burkett, 396 Mass. at 513, 487 N.E.2d at 481.} 59 ld.

60 _{ld. See Commonwealth v. Henson, 394 Mass. 584, 476 N.E.2d 947 (1985). In Henson,}

the Court held that the element of intent to murder requires proof of both malice and a

specific intent to kill. ld. at 591, 476 N.E.2d at 952.

61 _{Burkett, 396 Mass. at 513, 487 N.E.2d at 481.}

62 _{See Commonwealth v. Lee, 383 Mass. 507, 513, 419 N.E.2d 1378, 1382 (1981)}

that the defendant fired a single shot from a considerable distance in the

"direction" of the officer, that he missed the officer, and that he stopped

two more times during the chase, aimed the weapon at the pursuing

officer, but did not fire the gun, raised a question as to the defendant's

specific intent to murder, according to the Court.

_{Taken as a whole, the}

Court noted that these facts raise a reasonable doubt as to whether the

defendant intended to murder the police officer.

_{Thus, the judge's}

bur-den-shifting instruction on intent to murder was not found harmless, and

consequently the Court held that the defendant was entitled to a new

trial on the indictment charging assault while armed with a dangerous

weapon with intent to murder.

The Burkett Court properly found that the judge's instructions created

a conclusive presumption of intent, even though the word "presume"

was never used. The judge instructed the jury that if it found that the

gun had been fired more accurately in the direction of the pursuing officer

and had killed the officer, such actions would suffice as evidence of

assault with intent to murder.

_{This instruction had the effect of}

inform-ing the jury that they could presume the defendant intended to commit

murder because he did fire the gun and could have killed the officer if he

had aimed more accurately.

_{A reasonable juror could have interpreted}

the charge as creating a conclusive presumption of intent to murder

because the shot could have killed the officer, but did not because the

defendant was a poor aim. As the Court noted, the evidence is susceptible

to the inference that the defendant was merely trying to frighten the

officer into breaking off the pursuit.

_{This finding would indicate a lack}

of intent to murder, and the Court was therefore correct in granting a

new trial on the issue of intent to murder, because the Commonwealth

never proved intent at trial.

Although not the first Massachusetts case to apply the Sandstrom rule

retroactively,

_Burkett

_{does suggest that other defendants may be}

suc-cessful in filing motions for new trials, after their trial and direct appeal,

where the judge's instructions created a conclusive presumption of intent

without necessarily using the word "presume". The Burkett Court noted

that although the judge did not use the word "presume" in the instruction,

he did direct the jury to find intent to murder solely upon proof that the

defendant fired in the direction of the officer.

_{This finding suggests that}

63 Burkett, 396 Mass. at 513-14, 487 N.E.2d at 481.

"'Jd. at 514, 487 N.E.2d at 481.

6S ld.

66 /d. at 511 n.2, 487 N.E.2d at 479 n.2. See supra note 2 and accompanying text.

67 ld.

68 Burkett, 396 Mass. at 514, 487 N.E.2d at 481.

70

1986

§

3.3

where a judge phrases the instruction in a manner that allows the jury to

presume the presence of the mental element merely from the defendant's

actions, and regardless of the judge's choice of words, the judge has

committed a

Sandstrom

error by relieving the Commonwealth of its

constitutional burden of proof. Should a defendant be the victim of such

a conclusive presumption, that defendant may be able to seek a new trial

on the issue of intent. As the

Burkett

Court noted, however, a new trial

will be granted only if the

Sandstrom

error is not a harmless error.

Thus, if intent is a particular element to be proven at trial by the

Com-monwealth, defense attorneys may be able to file petitions for new trials

where the judge's instructions are conclusively presumptive and

inappro-priately shift the burden of proof on the issue of intent, thereby violating

the defendant's constitutional rights.

The decision of the

Burkett

Court gives hope to those defendants whose

convictions require the element of intent. If the judge's instructions create

a conclusive presumption of the element, from whatever choice of words,

then the defendant may be successful in his or her petition for new trial.

If the instruction in

Burkett

had allowed the jury to infer intent, instead

of presuming it, then the instructions would have been permissible.

How-ever, because the instructions did not do this, they violated the

defen-dant's due process rights and the Court was therefore correct in granting

a new trial.

§

3.3. Drug Paraphernalia Law Not Unconstitutionally Vague.* In 1981,

the Massachusetts legislature amended the Controlled Substances Act

to include prohibitions against drug paraphernalia.

_{The Massachusetts}

"anti-drug paraphernalia" law, which was patterned after the Drug

En-forcement Agency's Model Drug Paraphernalia Act (Model Act),

pun-71 _{ld. at 514, 487 N.E.2d at 481.}

*Royal C. Gardner, staff member, ANNUAL SURVEY OF MASSACHUSETTS LAW.

§ 3.3. ; O.L. c. 94C (1972).

2 _{The statute defines drug paraphernalia as}

[A]ll equipment, products, devices, and materials of any kind which are used, or intended for use, in planting, propagating, cultivating, growing, harvesting, manu-facturing, compounding, converting, producing, processing, preparing, testing, an-alyzing, packaging, r.paekaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter.

G.L. c. 94C, § I.

3 _{Drug Enforcement Agency, Model Drug Paraphernalia Act (Aug. 1979). For the}

re-printed text of the Model Act, see Note, Anti-Drug Paraphernalia Laws: Void for

ishes any person who sells drug paraphernalia, who possesses drug

par-aphernalia with the intent to sell, or who manufactures drug parpar-aphernalia

with the intent to sell.

_{To violate the statute, the person selling or}

intending to sell the drug paraphernalia must have known or had reason

to know that the drug paraphernalia would be used in illegal drug

activ-ities.

Other jurisdictions have adopted drug paraphernalia statutes, also

pat-terned after the Model Act, that have been challenged on vagueness

grounds.

_{Vague laws can violate due process requirements in two ways.}

First, a law is unconstitutionally vague if it fails to provide fair warning

as to what ty_pe of conduct is prohibited; otherwise, persons who had no

intent to commit a crime will find themselves arrested.

_{The United States}

Supreme Court has stated, however, that a requirement of intent mitigates

a vagueness challenge based on lack of notice.

_{Second, a law is}

uncon-stitutionally vague if it fails to provide explicit standards for its

applica-tion; the lack of guidelines encourage arbitrary enforcement.

During the Survey year, in Commonwealth v. Jasmin, the

Massachu-setts Supreme Judicial Court joined a host of other jurisdictions in

up-holding an anti-drug paraphernalia law against a vagueness challenge.

In interpreting the drug paraphernalia statute, the Court noted that the

specific intent of the owner or possessor of the paraphernalia was the

crucial element of the offenseY Although the Court never explicitly

Supp. 29, 38 (N.D. Ga. 1978), aff'd, 614 F.2d 1295 (5th Cir. 1980) (county ordinance

authorizing the revocation of business licenses of those who sell objects which could be

used for illegal drug activity unconstitutionally vague).

4 _{G.L. c. 94C, § 321(a). Section 321(a) ofG.L. c. 94C in relevant part reads:}

No person shall sell, possess with intent to sell, or manufacture with intent to sell drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest; manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter.

5 _{!d. See supra note 4 for the text of the statute.}

6 _{These challenges have been unsuccessful. See, e·.g., State v, Newman, 696 P.2d 856,}

864 (Idaho 1985); Opinion of the Justices, 121 N.H. 542, 545, 431 A.2d 152, 155 (1981); Town Tobacconist v. Attorney Gen., 94 N.J. 85, 107, 462 A.2d 573, 595 (1983). See also cases cited in People v. Nelson, 171 Cal. App. 3d Supp. I, 13 n.ll, 218 Cal. Rptr. 279, 286 n. I I. (1985).

7 _{See infra notes 8-IO and accompanying text.}

8 _{See Grayned v. City of Rockford, 408 U.S. I04, 108} (1~72). _{The Supreme Court also}

noted that a vague statute could infringe upon first amendment rights if it inhibits one's

freedom of expression. !d. at I09.

9 _{Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (I982).}

10 _{Grayned, 408 U.S. at 108-09.}

11 _{396 Mass. 653, 658 & n.5, 487 N.E.2d 1383, 1387 & n.5 (1986).}

72

1986

3.3

stated how the requisite intent must be proven, a finding of intent can be

based on reasonable inferences from an individual's conduct.

The defendant in Jasmin was arrested when Springfield police officers,

pursuant to a search warrant, entered the Phoenix Smoke Shop and

seized a number of items, such as scales, pipes and rolling papers, most

of which had price tags attached.

_{While some of the seized objects were}

"dual purpose items," capable of being used in both a lawful and unlawful

manner,

_{other objects could only be used for the unlawful purpose of}

weighing, preparing or ingesting controlled substances.

_{The officers}

charged the defendant, who was behind the shop's counter when the

officers entered the store, with possessing drug paraphernalia with the

intent to sell when he knew or reasonably should have known that the

drug paraphernalia would be used in an illegal manner.

The defendant

was indicted on August 12, 1982 and convicted of violating section 32I(a)

of the Controlled Substances Act.

The defendant appealed on the

grounds that section 32I(a) of the Act, which prohibited possession of

drug paraphernalia with intent to sell, and section 1 of the Act, which

defined drug paraphernalia, were unconstitutionally vague.

On its own

initiative, the Supreme Judicial Court transferred the case from the

Ap-peals Court and affirmed the conviction.

The Supreme Judicial Court began its analysis of the case by examining

the relevant principles in vagueness challenges.

_{The Court reasoned}

13 _{See infra notes 62-79 and accompanying text.}

14 _{Jasmin, 396 Mass. at 654, 487 N.E.2d at 1384.}

15 ld. Rolling paper, for example, can be used for both the legal purpose of smoking

cigarettes and the illegal purpose of smoking marijuana.

16 /d. Although the Supreme Judicial Court noted that at least scales, pipes and rolling

papers were seized, it did not expressly distinguish which were dual purpose items and

which were single purpose items. See id.

17 _{/d. at 654, 487 N.E.2d at 1384.}

's/d. at 654, 487 N.E.2d at 1384-85.

19 _{Id. at 655-56, 487 N.E.2d at 1385.}

20 _{/d. at 654, 487 N.E.2d at 1385.}

21 /d. at 655, 487 N.E.2d at 1385. First, how~ver, the Supreme Judicial Court rejected

the Commonwealth's argument that since the defendant did not raise the vagueness issue in a pretrial motion under Massachusetts Rule of Criminal Procedure 13(c), he should be prevented from presenting this issue here for the first time. /d. at 654-55, 487 N.E.2d at 1385. Massachusetts Rule of Criminal Procedure 13(c) states:

/d.

MOTION TO DISMISS OR TO GRANT APPROPRIATE RELIEF

(I) All defenses available to a defendant by plea, other than not guilty, shall only

be raised by a motion to dismiss or by a motion to grant appropriate relief. (2) A defense or objection which is capable of determination without trial of the general issue shall be raised before trial by motion.

The Court stated that although the defendant did not present the vagueness issue until his motion for·a required finding of not guilty, the defendant was not procedurally barred

that one who has fair warning that his or her conduct is criminal may

not challenge a statute on the basis that it does not give others fair

warning unless first amendment rights are implicated.

The Court noted

that the defendant's vagueness challenge in

Jasmin involved no claim

that first amendment interests were threatened by the Act.

The Court defined an unconstitutionally vague law as one which denies

a person due process because the law does not give a person of "ordinary

intelligence" a "reasonable opportunity" to know what conduct is

pros-cribed, or because the law fails to provide explicit guidelines to those

who apply it.

_{The amount of vagueness permissible in a particular law,}

the Court stated, depends upon the interests which are implicated.

The

Court noted, for example, that the test for vagueness is less strict when

applied to laws which involve economic regulation and which do not

affect any area of constitutionally protected rights.

_{Additionally, the}

Court concluded that the Constitution of the Commonwealth does not

require any stricter standard in vagueness issues than does the United

States Constitution.

Next, the Court applied these principles to the defendant's claims that

the drug paraphernalia law was unconstitutionally vague.

_{The Court}

reviewed the defendant's first contention that section 1 was vague

be-cause it defined "drug paraphernalia" to include objects which are used

or "intended for use" in illegal drug activities.

_{Arguing that the "intent"}

referred to a buyer's intent, the defendant asserted that a seller cannot

reasonably know whether a purchaser will use the object, such as rolling

paper, for the legal activity of smoking cigarettes or the illegal activity

of smoking marijuana.

The defendant contended, therefore, that the

seller of such dual purpose items cannot know whether his or her conduct

is criminalY Rejecting the defendant's argument, the Court stated that

the words "intended for use" referred to the "seller's intention as to the

use of the item he possesses for sale, not to the purchaser's intended

challenges of criminal statutes are usually presented in pretrial motions, the Court never-theless concluded that the defendant may wait to raise such issues until the Commonwealth has given its evidence detailing the circumstances in which the statute applied to the defendant's conduct. /d.

22 _{Jasmin, 396 Mass. at 655, 487 N.E.2d at 1385.} 23 /d.

24 /d. (citing Grayned v. Rockford, 408 U.S. 104, 108-09 (1972)).

25 _/d. (citing Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 498-99 (1982)).

26 /d.

27 /d.

28 _{/d. at 655-58, 487 N.E.2d at 1385-87.}

29 /d. at 655-56, 487 N.E.2d at 1385-86. For the Act's definition of drug paraphernalia,

see supra note 2.