COMMONWEALTH vs. DAVID S. GREEN.

DREBEN, J. The primary issues in the defendant's appeal from his conviction for operating under the influence of narcotic drugs (G. L. c. 90, Section 24) relate to the proof needed to show that codeine is a narcotic as defined in G. L. c. 94C, Section 1. General Laws c. 90, Section 24(1)(a)(1), as appearing in St. 1982, c. 373, Section 2 ("driving under" statute), defines the offense as operating a motor vehicle "while under the influence of . . . narcotic drugs . . . as defined in section one of chapter ninety-four C . . . ."

1. Codeine as a narcotic. Since the defendant claims that his motion for a required finding of not guilty should have been allowed, we narrate the events of April 12, 1988, taking the evidence most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). On that evening, at 11:40 P.M., Detective Foulds of the North Andover police department noticed a white pickup truck parked in the middle of Waverly Street in that town. The lights were on, the engine was running, and the operator was slumped over the wheel. As Foulds approached the truck on foot, it drove off. Following in his cruiser, Foulds saw the truck weave to the wrong side of the road and ultimately hit a telephone pole. Foulds opened the truck's door, whereupon the defendant "fell out into [his] hands." He was "thick-tongued"; his eyes "appeared beady"; he had trouble standing up; he leaned against the truck to keep his balance. Upon questioning, he stated that he was on pain medication -- codeine -- for which he had a prescription.

Later, when the defendant was taken to the police station and booked, the police during an inventory search found a pharmacist's label, indicative of a filled prescription for the defendant. The label, in addition to the defendant's name, included the words:

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"Take one capsule four times a day as needed for pain Drug Exp. 4-89 Cod. Caps."

While at the station, the defendant stated that, although he was supposed to take one pill four times a day, he had taken four at once.

Shawn Conway, another North Andover policeman who had joined Detective Foulds at the scene of the accident, testified that he had attended a basic course in narcotics in which he learned about drug classifications and the effects of the general type of drugs found "on the street." It was his opinion, based on his observations of the defendant, including the "very little scent of alcohol," that the defendant was operating under the influence of narcotics.

We turn to the relevant statutes. As indicated earlier, the "driving under" statute, G. L. c. 90, Section 24 (1)(a)(1), refers to "narcotic drugs . . . as defined" in G. L. c. 94C, Section 1. The relevant part of c. 94C, 1, is set forth in the margin. [Note 1]

The Commonwealth introduced no evidence that codeine is a narcotic drug or that it is derived from opium. On this ground -- namely lack of evidence that codeine is a narcotic -- the defendant moved for a required finding of not guilty. In denying the defendant's motion, the judge noted that c. 94C, Section 31, which establishes classes of controlled substances for purposes

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of violations of c. 94C, lists codeine as a Class A narcotic [Note 2] and, referring to Class E, subsection (b), [Note 3] ruled: "The law states that prescription drugs are narcotics." Indeed, the judge charged the jury in accordance with his ruling.

While the judge was not correct in equating prescription drugs with narcotics, we concur in his conclusion that, despite a lack of evidence that codeine is a derivative [Note 4] of opium, the defendant was not entitled to a required finding of not guilty.

Prior to its amendment by St. 1971, c. 1071, Section 1, the definition of narcotic drug, referred to in the "driving under" statute, listed specific drugs which, among others, included opium, morphine, heroin and codeine. See G. L. c. 94, Section 197, as appearing in St. 1957, c. 660, Section 1. [Note 5] In 1971, Massachusetts substantially adopted the Uniform Controlled Substances Act, 9 Uniform Laws Annot. Section 101(o) (Master ed. 1988), including its definition of "narcotic drug." The Uniform Act had, in turn, adopted the definition contained in the Federal act. See 21 U.S.C. Section 802 (17) (1982 & Supp. V 1987).

The reason for defining narcotics more generally is evident in G. L. c. 94C, Section 2, as amended by St. 1972, c. 806, Section 7 (set forth in the Appendix to this opinion). Section 2(a) provides that the Commissioner of Public Health shall establish five schedules of controlled drugs. Section 2 (a 1/2) requires him to include by regulation those controlled substances which are from time to time designated as controlled substances under the Federal act, 21 U.S.C. Sections 801 et seq. In other words, as scientific data regarding drugs are developed, the commissioner is to update the lists of controlled substances to reflect current

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knowledge; he is also to include in the lists all substances which are controlled under the Federal act. To effect these purposes and to expedite conformance with the Federal act, [Note 6] the Legislature substituted a general definition of narcotic drugs in place of the list of specific narcotic drugs. Clearly, there was no intent to change the elements of the offense in the "driving under" statute.

Chief Justice Shaw's discussion in Commonwealth v. Herrick, 6 Cush. 465, 468-469 (1850), albeit in a somewhat different context, is persuasive. In that case the defendant claimed that a law, enacted subsequent to the date of his offense, which changed the statutory definition in the liquor law from "spirituous liquors" to the broader term "intoxicating liquors" required his acquittal. Shaw wrote:

"Suppose the prior act had made the offence consist in retailing rum, brandy, and so on, enumerating all the common strong drinks; but in consequence of the changes in the modes of compounding mixed liquors, and the invention of new names, the statutes were in danger of being evaded, and a law should pass, similar to the one in question, substituting the general term, `intoxicating liquors,' for the specific kinds named, it would not, we think, repeal the existing law, because the substituted enactment would embrace all which were expressed in the previous one, and some more."

Just as Chief Justice Shaw found there could be no ground to hold that a person convicted under the prior law for selling "spirituous liquors" would not be punishable in the same manner under the new law and that its operation would be the same, we find it difficult to hold that the Legislature by substituting a general definition of "narcotic drug" has effected a change in the elements of the offense of "operat[ing] a motor vehicle while under the influence of . . . narcotic drugs."

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When looked at as a whole, it is without doubt that G. L. c. 94C treats codeine as a narcotic. Section 31 establishes the classes of controlled substances for purposes of setting penalties, and, as we have already indicated, Class A includes two forms of codeine. See note 2, supra. "Codeine" is also specifically included as a narcotic drug in G. L. c. 94C, Section 31, Class E, subsection (a)(1). [Note 7]

The defendant contends that since the "driving under" statute refers only to Section 1 of c. 94C, we cannot look to the other sections of that chapter to import meaning into the definition of "narcotic drug." We think this is too confining a reading of Section 1 in light of the legislative history and purpose of c. 94C.

We need not, however, rely on the statutory classifications to conclude that the defendant was not entitled to a required finding of not guilty because of lack of evidence that codeine is a narcotic. The ordinary lexical meaning of codeine [Note 8] is in accord with the classifications of c. 94C. That codeine is a derivative of opium appears "indisputably true" and is either a matter of "common knowledge" or a subject of "generalized knowledge . . . readily ascertainable from authoritative sources." It thus falls within the group of facts of which a judge

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may appropriately take judicial notice. Liacos, Massachusetts Evidence 19 (5th ed. 1981). See McCormick, Evidence Sections 329-330 (3d ed. 1984). See also Commonwealth v. Marzynski, 149 Mass. 68, 72 (1889) (court could take judicial notice that ordinarily cigars are not medicines); Commonwealth v. Nickerson, 236 Mass. 281, 308 (1920) (whiskey is an "intoxicating liquor"); Proposed Mass.R.Evid. 201(b) ("A judicially noticed fact must be one not subject to reasonable dispute in that it is either [1] generally known within the territorial jurisdiction of the trial court or [2] capable of accurate and ready determination by resort to resources whose accuracy cannot reasonably be questioned").

Numerous courts elsewhere in determining the sufficiency of evidence have taken judicial notice that specific drugs are narcotics. See, e.g., People v. Robinson, 14 Ill. 2d 325, 330 (1958) (heroin, even when found in a compound, is a derivative of opium); State v. Yanez, 89 N.M. 397, 398 (1976) (morphine is an opium derivative); People v. Vaughn, 35 A.D.2d 889, 889 (N.Y. 1970) (cocaine is a narcotic); State v. Brock, 34 Ohio App. 2d 175 (1973) (heroin is a habit forming drug); Kovash v. State, 519 P.2d 517, 522 (Okla. Crim. App.), cert. denied, 419 U.S. 830 (1974) (barbiturate is a salt of barbituric acid). See also United States v. Chiarelli, 192 F.2d 528, 532 (7th Cir. 1951), cert. denied, 342 U.S. 913, reh. denied, 342 U.S. 950 (1952) (heroin is a derivative of opium); Jordan v. United States, 345 F.2d 302, 304 (10th Cir. 1965) (heroin derivative of opium and hence a narcotic); United States v. Gould, 536 F.2d 216, 218-219 (8th Cir. 1976) (cocaine hydrochloride is a derivative of coca leaves). [Note 9] Contra White v. State, 161 Ind. App. 568, 572-575 (1974) (refusal to take judicial notice that methadone is a narcotic drug).

Judicial notice of similar facts has also been taken to uphold the sufficiency of indictments or informations. See, e.g., Commonwealth v. Gabhart, 160 Ky. 32, 34-35 (1914) (morphine is a derivative of opium);

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State v. Stavricos, 506 S.W.2d 51, 55-56 (Mo. Ct. App. 1974) (morphine is a derivative of opium); State v. Vallie, 82 Mont. 456, 461 (1928) (morphine is a derivative of opium); State v. McDuff, 691 S.W.2d 569, 570-571 (Tenn. Crim. App. 1984) (cocaine is a derivative of coca leaves); James v. United States, 61 F.2d 912 (5th Cir.), cert. denied, 288 U.S. 613 (1932) (morphine is a derivative of opium); Melanson v. United States, 256 F. 783, 786 (5th Cir. 1919) (judicial notice taken of facts of chemistry contained in the United States Pharmacopoeia).

In sum, we think that the judge, particularly in light of c. 94C when examined as a whole, could, in his discretion, have taken judicial notice that codeine is a derivative of opium and hence a narcotic drug. [Note 10] Thus, while the judge declined to reach the question of judicial notice, and incorrectly relied on the portion of c. 94C relating to prescription drugs, the absence of proof that codeine is a narcotic did not entitle the defendant to a required finding of not guilty.

2. Statutory exception. Subparagraph (b) of the definition of "narcotic drug" set forth in G. L. c. 94C, Section 1, contains an exception for substances which are "isoquinoline alkaloids of opium." See note 1, supra. [Note 11] Approximately a month prior to trial, a District Court judge (who was also the trial judge) heard the defendant's motion to suppress which was based in part on the claim that codeine, a derivative of morphine, fell within the statutory exception. The motion was denied, and the defendant was not permitted to introduce evidence to substantiate his claim. On the day of trial (at the voir dire hearing), the defendant was granted leave to file an offer of proof to support his contention that codeine fell within the statutory exception. The offer of proof included an excerpt from a book entitled "Medicinal Chemistry, A Biochemical Approach" by Thomas Nogrady (Oxford University Press, 1985) [Note 12] and advised

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the court that at trial the defendant "intended to bring further documentation and testimony to establish that codeine was in fact an isoquinoline alkaloid of opium."

It was error to preclude the defendant from introducing evidence to show that codeine came within the statutory exception. However unlikely the defendant's contention, he was entitled to offer evidence on this issue. Because of this error a new trial is required.

3. Other matters. We comment only briefly upon other issues raised by the defendant which may arise on retrial.

(a) Jury instructions. As indicated earlier, the judge was wrong in charging the jury, that "it's the law of this Commonwealth that narcotic drugs are controlled substances and, further, that prescription drugs, other than those listed in certain categories which, you know, are not applicable, are considered, you know, Class E drugs."

On retrial, the Commonwealth may choose to introduce evidence that codeine is a narcotic. If it does not, and if the judge, in his or her discretion, takes judicial notice that codeine is a derivative of opium, it appears from our cases that the jury should be instructed that they may but are not required to accept any matter of which the judge has taken judicial notice. See Commonwealth v. Kingsbury, 378 Mass. 751, 755 (1979); Proposed Mass.R.Evid. 201(g) ("In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed"). Cf. Commonwealth v. Golston, 373 Mass. 249, 252-253 (1977). Contra United States v. Gould, 536 F.2d at 219-221. For a comprehensive discussion of the differences of opinion as to the conclusive effect of judicial notice see 9 Wigmore, Evidence Sections 2567, 2567a (Chadbourn rev. 1981).

(b) Requests for instructions. We need not consider the prejudicial effect, if any, of the judge's failure to inform counsel prior to closing argument of his rulings on the defendant's requests for instructions. We emphasize, however, the importance

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of complying with the mandatory requirements of Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979). "[C]ounsel is entitled to know the Judge's treatment of each proposed request in order that counsel may frame their closing arguments accordingly." Smith, Criminal Practice and Procedure Section 1845 (1983).

(c) Voluntariness of the defendant's statements. We are troubled by the lack of findings to support the judge's implicit rulings that the defendant knowingly waived his Miranda rights and that his statements were voluntary. Although the evidence as to his physical and emotional condition seems to raise serious questions, see Commonwealth v. Hosey, 368 Mass. 571, 574 n.1, 577-579 (1975), we are not prepared, in the absence of findings, to hold that the rulings were wrong. The judge on remand should hold a new hearing on these questions and should, if he finds a waiver of Miranda rights or that the statements were voluntary, make careful written findings of fact.

(d) Corroboration. We mention in passing Commonwealth v. Leonard, 401 Mass. 470, 472 (1988), only to rule it inapplicable. The defendant's admission that he had taken codeine was not the only evidence that he was operating his motor vehicle under the influence of narcotic drugs. His erratic driving, his demeanor, and the prescription label all corroborated his statement.

Because of the error in precluding the defendant from introducing evidence that codeine fell within the statutory exception and because of the erroneous instructions of the judge, the judgment is reversed, the verdict is set aside, and the matter is remanded to the District Court for a new trial.

So ordered.

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APPENDIX.

General Laws c. 94C, Section 2.

(a) For the purpose of administration and regulation of the manufacture, distribution, dispensing, and possession of controlled substances by persons authorized under this chapter, the commissioner shall establish by regulations pursuant to the provisions of chapter thirty A five schedules incorporating the five schedules of controlled substances under the "Comprehensive Drug Abuse, Prevention and Control Act of 1970" or any amendment thereof. In addition thereto the commissioner shall by regulation as aforesaid establish a sixth schedule which shall include all prescription drugs not included in the first five schedules.

(a 1/2) The commissioner may, pursuant to the provisions of chapter thirty-A, delete or reschedule all substances enumerated in the schedules established pursuant to the provisions of subsection (a), except that if any substance which has not been scheduled pursuant to the provisions of this section is designated a controlled substance under the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970 or any amendment thereof, or if any substance which has been scheduled pursuant to the provisions of this section is designated a controlled substance of greater abuse liability under the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970 or any amendment thereof, the commissioner, pursuant to the provisions of chapter thirty A, shall, not more than thirty days after publication of final notice in the federal register or not more than thirty days after the effective date of any federal statute affecting the scheduling of controlled substances under said federal act or any amendment thereof, issue a regulation controlling the substance in a schedule corresponding to the federal schedules.

(b) In making any finding under subsection (a) of this section or under subsection (a) of section three, the commissioner shall consider the following factors with respect to each drug or other substance proposed to be controlled or removed from the schedules.

(1) Its actual or relative potential for abuse.

(2) Scientific evidence of its pharmacological effect, if known.

(3) The state of current scientific knowledge regarding the drug or other substance.

(4) Its history and current pattern of abuse.

(5) The scope, duration and significance of abuse.

(6) What, if any, risk there is to the public health.

(7) Its psycological or psysiological dependence liability.

(8) Whether the substance is an immediate precursor of a substance already controlled under this chapter.

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(c) The commissioner acting jointly with the board of registration in pharmacy shall by regulation pursuant to the provisions of chapter thirty A exclude any non-narcotic substance from a schedule if such substance may, under the Federal "Comprehensive Drug Abuse, Prevention and Control Act of 1970" and the Food, Drug, and Cosmetic Act, be lawfully sold over the counter without a prescription.

(d) Authority to control under this section shall not extend to distilled spirits, wine, malt beverages, or tobacco, as those terms are defined or used in subtitle E of the Internal Revenue Code of 1954.