Commonwealth v. Palmer

Duffly, J.

(concurring, with whom Gants and Lenk, JJ., join). *780I agree with the court that the enactment of G. L. c. 94C, § 32L (§ 32L), did not repeal by implication the separate offense of cultivation set forth in G. L. c. 94C, § 32C (á) (§ 32C [a]), where the amount of marijuana grown weighs one ounce or less, but I write separately because I believe that § 32L did decriminalize the growing of one ounce or less of marijuana for personal use. Here, the criminal complaint alleges that the defendant grew marijuana with the intent to distribute it, and the facts alleged support probable cause to believe the defendant committed that offense.1 Because the allegations in the complaint suffice to withstand the defendant’s motion to dismiss, see Commonwealth v. Green, 399 Mass. 565, 566 (1987) (complaint will not be dismissed if offense is charged with sufficient clarity to show violation of law and to permit defendant to know nature of accusation against him), I concur in the court’s decision to reverse the order allowing the defendant’s motion to dismiss.

When read in the context of G. L. c. 94C in its entirety, it is evident that the offense of cultivation excludes the growing of marijuana when it is done only for personal use. Section 32C (a) makes it a crime to manufacture, distribute, dispense, or cultivate marijuana, or to possess marijuana with the intent to manufacture, distribute, dispense, or cultivate it.2 General Laws c. 94C does not define “cultivate,” but the ordinary meaning of the word is “[t]o grow or tend (a plant or crop).” American Heritage Dictionary of the English Language 454 (3d ed. 1992). As used in § 32C (a), however, the word “cultivate” must be interpreted more narrowly, in light of the first three words in the phrase: manufacture, distribute, and dispense. See Commonwealth v. *781Scott, ante 355, 359 (2013), quoting Commonwealth v. Brooks, 366 Mass. 423,428 (1974) (“words in a statute must be considered in light of the other words surrounding them”).

Each of the first three terms connotes significant steps in the course of drug trafficking, and possession solely for personal use of the drugs is not included in their definitions. By statute, the term “manufacture” explicitly “does not include the preparation or compounding of a controlled substance by an individual for his own use.” G. L. c. 94C, § 1. Distribution is “the facilitation of a drug transfer from seller to buyer” in furtherance of the drug trafficking business. Commonwealth v. Jackson, ante 758, 764 (2013). See G. L. c. 94C, § 1. And the term “dispense” means the delivery of a controlled substance to an end user by a “practitioner” who is “registered.” Id. Just as possession for personal use is excluded from the definitions of manufacturing, distributing, and dispensing drugs, the term “cultivate” should also be read to exclude the growing of marijuana only for personal use.

The legislative history of § 32C (a) supports this interpretation. The Legislature enacted § 32C (a) to target those “in the drug business.” 1980 House Doc. No. 6652, at 1. See Commonwealth v. Jackson, supra. As the Governor explained when proposing the 1980 legislation that added this statute to the General Laws, “The time has come to launch a new, more aggressive campaign against those who operate and profit from the death-dealing traffic in drugs. . . . We need major changes in the way our criminal system deals with these dealers in drugs.” (Emphasis added.) Id. Growing marijuana for personal use does not implicate such concerns. Indeed, growing marijuana for personal use arguably undermines the drug trafficking business, along with its attendant violence, see Commonwealth v. Cannon, 449 Mass. 462, 470 (2007), quoting Commonwealth v. Moses, 408 Mass. 136, 143 (1990) (“drug trafficking is fraught with violence”), by allowing marijuana users to obtain marijuana without supporting the drug trafficking market.

Moreover, the offense of cultivation must be considered in light of § 32L, which makes the simple possession of one ounce or less of marijuana a civil infraction. See Commonwealth v. Keefner, 461 Mass. 507, 511 (2012), quoting Wolfe v. Gormally, *782440 Mass. 699, 704 (2004) (“a statute must be interpreted ‘as a whole’; it is improper to confine interpretation to the single section to be construed”). Section 32L, third par., identifies only four categories of existing laws that shall not be “construed to [be] repealed] or modified].” Among the laws explicitly unaffected by the enactment of § 32L are laws concerning the “selling, manufacturing or trafficking” in marijuana. G. L. c. 94C, § 32L, third par. Significantly, “cultivation” is not included among the categories not subject to repeal or modification by the enactment of § 32L. See Commonwealth v. Russ R., 433 Mass. 515, 521 (2001), quoting Police Comm’r of Boston v. Cecil, 431 Mass. 410, 413 (2000) (“a statutory expression of one thing is an implied exclusion of other things omitted from the statute”). Although we held in Commonwealth v. Keefner, supra at 514, that this list “cannot be construed as exhaustive,” we recognized also that the passage of § 32L may have limited the reach of § 32C (a). We noted in that case that “the extent of all acts that are proscribed by the term ‘distribute’ under § 32C (a)” remained to be decided, despite the absence of any explicit amendment to § 32C (a). See id. at 512, 515. Indeed, we have decided today that the social sharing of a decriminalized amount of marijuana does not constitute the offense of distribution. See Commonwealth v. Jackson, supra at 764-765.

In light of the enactment of § 32L, I believe it is clear that the growing of one ounce or less of marijuana for personal use is not a crime. Section § 32L was enacted as a result of the voters’ adoption in 2008 of “An Act establishing a sensible State marihuana policy.” St. 2008, c. 387. The goal of this initiative was to decriminalize possession of marijuana while keeping in place “other marijuana-related crimes, like sales.” Information for Voters: 2008 Ballot Questions, Question 2: Law Proposed by Initiative Petition, Possession of Marijuana.3 By defining the offense of cultivation to cover the growing of marijuana for personal use, the court’s decision today leaves no noncriminal means by which to obtain a decriminalized amount of marijuana. I fail to see how such a policy is “sensible.” See Commonwealth *783v. Keefner, supra at 514 (“the intent expressed by the Legislature [is] that, generally speaking, controlled substances are not to be obtained ‘on the street’ ”). Cf. Herman v. Admit One Ticket Agency LLC, 454 Mass. 611, 618 (2009) (title of act can be useful tool of statutory interpretation).

Treating marijuana cultivation for personal use in the same manner as simple possession is treated under § 32L, a civil infraction, is also consistent with the recent enactment of G. L. c. 94C Appendix §§ 1-1 et seq., inserted by St. 2012, c. 369. That statute, which legalizes the medical use of marijuana by qualifying patients, also recognizes the interconnection between possession, use, and cultivation of marijuana for personal use. Pursuant to G. L. c. 94C Appendix § 1-11, a “qualifying patient” may in certain circumstances obtain a “cultivation registration,” which “shall allow the patient or the patient’s personal caregiver to cultivate a limited number of plants, sufficient to maintain a 60-day supply of marijuana, and shall require cultivation and storage only in an enclosed, locked facility.”

Where the language of two statutory provisions must be considered, we interpret their meaning “in a manner that, to the greatest extent possible, serves the policies underlying both.” Commonwealth v. Harris, 443 Mass. 714, 726 (2005). Interpreting the term “cultivate” in § 32C (a) to exclude growing marijuana for personal use respects both the policies underlying § 32L (decriminalizing possession of marijuana while continuing to criminalize the sale of marijuana) and § 32C (a) (targeting drug trafficking). By adopting a broader interpretation of the offense of cultivation than is necessary to resolve this case, the court’s decision fails to advance these legislative goals.

The statement of facts in support of the application for a criminal complaint alleges that officers of the Adams police department discovered in the defendant’s home several marijuana plants, along with several glass smoking devices, empty clear plastic bags, and a cardboard box containing several prescription bottles, some of which had no labels.

General Laws c. 94C, § 32C (a), provides:

“Any person who knowingly or intentionally manufactures, distributes, dispenses or cultivates, or possesses with intent to manufacture, distribute, dispense or cultivate a controlled substance in Class D of section thirty-one shall be imprisoned in a jail or house of correction for not more than two years or by a fine of not less than five hundred nor more than five thousand dollars, or both such fine and imprisonment.”

“We assume that before casting their votes, voters read the arguments ‘for’ and ‘against,’ as well as the new law itself.” Commonwealth v. Cruz, 459 Mass. 459, 471 (2011).