COMMONWEALTH vs. ROBERT DUPREE.

KASS, J. We hold that under Mass.R.Crim.P. 24(a)(1), 378 Mass. 895 (1979), [Note 1] the choice whether to open after the Commonwealth's opening statement or after the Commonwealth has rested belongs to the defendant alone (assuming

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he has established, under principles reviewed below, the right to make an opening) and that it is error to restrict the timing of the defendant's opening statement until after the prosecution has presented its evidence.

The defendant, Robert Dupree, was convicted of possession with intent to distribute cocaine. [Note 2] Two officers at trial testified that they had witnessed the defendant exchange drugs for currency in front of a Roxbury bar; the defendant and his girlfriend, who accompanied him the evening of the arrest, testified that no such transaction took place. Dupree did not contest that 2.8 grams of cocaine were seized from his jacket pocket; rather he argued that this small quantity of drugs and the paraphernalia removed during a subsequent search of his apartment (a kitchen strainer, spoons, some tin foil, and a glassine bag) were equally consistent with personal use of the drug.

At trial the assistant district attorney made a brief opening statement introducing himself and outlining the evidence he expected to present. The judge then dismissed the jury for morning recess and informed them that the Commonwealth would present its case upon their return. Defense counsel immediately stated his intention to make an opening at that time. Without inquiring into the content of the proposed opening, the trial judge stated he would not permit the defendant to open until after the Commonwealth had rested. [Note 3]

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Nothing in Mass.R.Crim.P. 24(a)(1) grants the judge this discretion. In fact, language designed so to do, included in an earlier version of the rule, [Note 4] was specifically deleted in that version of the rule finally promulgated by the Supreme Judicial Court. We presume that such a revision was made deliberately and with the intention of effectuating some change in the proposed rule. See Rein v. Marshfield, ante 519, 522 (1983).

The function of a defendant's opening statement is to inform the court and jury what he expects to prove. United States v. Freeman, 514 F.2d 1184, 1192 (10th Cir. 1975). We have held that the defendant's right to elect when to make his opening is subject to the limitations of self-restraint imposed by S.J.C. Rule 3:08, DF 12, as appearing in 382 Mass. 807 (1981). Commonwealth v. McJunkin, 11 Mass. App. Ct. 609, 615-616 (1981). Thus, where the opening would present "no more than [the defendant's] hope to puncture the Commonwealth's case somehow through cross-examination," the right to open may properly be denied. Commonwealth v. Medeiros, 15 Mass. App. Ct. 913 (1983). Here, however, the defendant not only was reasonably certain of the facts he would elicit on cross-examination, [Note 5] see United States v. Hershenow, 680 F.2d 847, 858 (1st Cir. 1982), but he planned to, and did, present direct evidence on his behalf. In these circumstances there is no question but that the defendant was entitled to make an opening statement before the Commonwealth presented its evidence.

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Whether to open at the beginning of the trial or after the Commonwealth had rested is a tactical decision resting with the defense attorney. As one commentator has noted:

"[T]he jury is apt to attach undue weight to the prosecutor's opening statement which is left uncontradicted until the close of the state's evidence. Since the jury is highly attentive and impressionable at the outset of the trial, it may be unfair to deny counsel the opportunity to present the other side of the case until the middle of the trial when the effect of an opening statement is likely to be abated."

Decof, Art of Advocacy, Opening Statements Section 2.02, at 2-5 & 2-6 (1982). See also United States v. Hershenow, supra at 858; State v. Olson, 156 Mont. 339, 346 (1971).

On the other hand, "defense counsel may not know what evidence, if any, he will present until he has heard and evaluated the government's" case. Hampton v. United States, 269 A.2d 441, 443 (D.C. 1970). It may, therefore, be prudent to reserve opening until after the government has rested, but the freedom to make the choice, under our rule, is that of defense counsel alone. The trial judge, of course, retains the authority to monitor the statement to prevent its wafting into argument, United States v. Hershenow, 680 F.2d at 858, as part of the court's responsibility to insure a fair trial for all litigants. Commonwealth v. McJunkin, 11 Mass. App. Ct. at 615-616. The authority, discussed in McJunkin and Medeiros, to deny an opening upon determination that defense counsel has no evidence to present does not justify the action of the trial judge in this case. To deny the defendant the right to open at the commencement of the trial without inquiry into the context of the proposed statement was error. To attempt to evaluate the extent of the prejudice which ensued would be an exercise in speculation, [Note 6] and, therefore, we reverse. See Commonwealth

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v. Johnson, 365 Mass. 534, 547 (1974); Commonwealth v. Tabor, 376 Mass. 811, 819 (1978). Cf. Commonwealth v. A Juvenile (No. 2), 384 Mass. 390, 392-393 (1981); Commonwealth v. McJunkin, 11 Mass. App. Ct. at 616-617. [Note 7]

There exists a rule of the Superior Court, rule 7 (1974), which appears to repose in the trial judge discretion as to the timing of an opening in a criminal case. It provides, in pertinent part, "The court in its discretion may permit, or in a civil action require, a defendant to make an opening statement of his defense before any evidence is introduced." This apparent conflict with Mass.R.Crim.P. 24(a)(1) is resolved by the last paragraph of S.J.C. Rule 1:01, as appearing in 382 Mass. 699 (1981), which provides that to the extent the Massachusetts Rules of Criminal Procedure conflict with the rules of a court, the rules of criminal procedure shall control.

Since it will arise on a new trial, we have considered the defendant's argument that G. L. c. 94C, Section 32A(a), which defines the crime of which the defendant was convicted, contains a provision for punishment which is unconstitutionally vague. Unlike G. L. c. 94C, Section 32(a) (as in effect prior to 1982), declared unconstitutional in Commonwealth v. Gagnon, 387 Mass. 567, 574 (1982), the statute applied to Dupree contains no internal inconsistencies. Notably, it does not contain a minimum period of incarceration inconsistent with a lesser penalty, as was the case with Section 32(a), the provision considered in Gagnon. The question raised by this appeal is whether c. 94C, Section 32A(a) (as in effect prior to 1982), can be construed consistently with G. L. c. 279, Section 24, [Note 8] a question left undecided by Gagnon. 387 Mass. at

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573. We think that this case does not present a conflict with G. L. c. 279, Section 24.

The crux of the defendant Dupree's argument is that the punishment provision in G. L. c. 94C, Section 32A(a), viz., "imprisonment in the state prison for not less than one, not more than ten years, or by a fine of not less than $1,000" is inconsistent with G. L. c. 279, Section 24, which prescribes that a minimum sentence to State prison shall be for two and one-half years. [Note 9] Only Massachusetts Correctional Institution, Walpole (M.C.I., Walpole), is a State prison. G. L. c. 125, Section 1(o). Dupree was not, however, sentenced to State prison. He was sentenced to ten years at Massachusetts Correctional Institution, Concord (M.C.I., Concord), a sentence the judge had the power to impose under G. L. c. 279, Section 31. See Commonwealth v. Hayes, 372 Mass. 505, 508-510 (1977); Commonwealth v. Graham, 388 Mass. 115, 123-125 (1983). In making the crime punishable by a sentence to State prison, the Legislature has placed offenders on notice that transgression of the statute (i.e., G. L. c. 94C, Section 32A[a]) is a felony. G. L. c. 274, Section 1. The reference to State prison "may well indicate the Legislature's use of the statutory shorthand for a felony, rather than an intent to preclude a Concord sentence," Commonwealth v. Hayes, 372 Mass. at 511, quoted in Commonwealth v. Graham, 388 Mass. at 124. It did not compel a sentence to State prison.

We are at a loss to understand how a person such as Dupree (if again found guilty) may claim he has not had notice of the punishment alternatives. He knows that: the

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crime is a felony; the period of incarceration may be from one to ten years; incarceration may be in M.C.I., Walpole, but, by reason of G. L. c. 279, Section 31, it may be at a correctional institution other than Walpole, e.g., at Concord; or there may be a fine and no incarceration at all. There is, upon analysis of this case, no conflict between G. L. c. 94C, Section 32A(a), and G. L. c. 279, Section 24. It is not incumbent upon us to conjure up unlikely abstract inconsistencies, such as might occur were a judge to attempt, in the face of G. L. c. 279, Section 24, to sentence a person convicted under G. L. c. 94C, Section 32A(a), to less than two and a half years at M.C.I., Walpole. That is, perhaps, one reason why the court in Commonwealth v. Marrone, 387 Mass. 702, 705-706 (1982), said G. L. c. 94C, Section 32A(a), was consistent with G. L. c. 279, Section 24. We are to indulge every rational presumption in favor of a statute's validity. Commonwealth v. Gagnon, 387 Mass. at 569. As there is no need, on the facts before us, to find the punishment provisions of Section 32A(a) void for vagueness, we do not do so.

Judgment reversed.

Verdict set aside.