COMMONWEALTH vs. ARNOLD C. COMINS.

WILKINS, J. The defendant, a licensed osteopathic physician, appeals from seven convictions for dispensing controlled substances in violation of G. L. c. 94C, Section 32. [Note 1] He challenges (1) the denial of his motions to dismiss each indictment, (2) the denial of his motions for judgments of acquittal, and (3) certain evidentiary rulings made during the course of his jury waived trial. This case is concerned principally with the proper form of an indictment which charges a prescribing physician with violation of the controlled substances act (G. L. c. 94C) and with the proof necessary to sustain a conviction of a physician for the unlawful prescribing of a controlled substance. We granted the defendant's application for direct appellate review. We affirm the convictions.

1. The defendant moved to dismiss the indictments, relying on several grounds. [Note 2] Of those grounds which the defendant still pursues, some may be disposed of briefly.

The fact that the indictments were issued solely on the basis of hearsay evidence is not in itself a ground for their dismissal. Commonwealth v. Gibson, 368 Mass. 518, 522-525 (1975). Commonwealth v. Lammi, 310 Mass. 159, 163-164 (1941). Costello v. United States, 350 U.S. 359 (1956). See Commonwealth v. Lincoln, 368 Mass. 281, 285-286 n.2 (1975), for a discussion of a preferred procedure. These authorities indicate that, in the absence of extraordinary circumstances, an indictment based exclusively on hearsay will not be overturned. There are no extraordinary circumstances shown in the grand jury proceedings.

The indictments did not have to allege in the words of Section 32 that the defendant "knowingly or intentionally" dispensed

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a controlled substance unlawfully. Although a knowing or intentional delivery is clearly an element of the crimes charged, as Section 32 states, the form of these indictments was proper by reason of G. L. c. 277, Section 38, as appearing in St. 1971, c. 1071, Section 8, which states that "[i]n a prosecution under any provision of [G. L. c. 94C], for unlawfully . . . dispensing . . . a controlled substance . . . it shall be sufficient to allege that the defendant did unlawfully . . . dispense . . . such alleged substance, without any further allegations . . . but the defendant shall be entitled to a bill of particulars under [Section 40]." This language, adopted as part of the same act which inserted G. L. c. 94C, answers any claim that the indictment had to allege that the defendant acted "knowingly or intentionally." See Commonwealth v. Baker, 368 Mass. 58, 75-76, 77 (1975); Commonwealth v. McClaine, 367 Mass. 559, 560 (1975), and cases cited. Here, there is no question that the defendant had sufficient notice of the nature of the charges against him. The indictments stated that his conduct was "not for a legitimate medical purpose, in violation of [G. L. c. 94C, Section 32]," and the defendant's motions for particulars were allowed and bills of particulars were filed to which the defendant has raised no objection.

We come then to the defendant's major challenge to the indictments. He contends that a registered physician cannot be guilty of "dispensing" a controlled substance in violation of G. L. c. 94C, Section 32. He argues that a licensed physician cannot "dispense" a controlled substance in violation of G. L. c. 94C because only when the delivery of a controlled substance is a lawful delivery can one "dispense" that substance as the word "dispense" is defined in G. L. c. 94C, Section 1, as amended by St. 1972, c. 806, Section 3. Consequently, so the argument goes, no unlawful "dispensing" by a physician may occur under G. L. c. 94C. The inference is that a physician may be charged under G. L. c. 94C, Section 32, with unlawful "distributing" of a controlled substance but not with "dispensing." [Note 3]

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The premise of the defendant's argument fails on a literal reading of the definition of "dispense." If "dispensing" only can be a lawful act under G. L. c. 94C, it is difficult to explain why the word appears in Section 32 to describe unlawful conduct.

A physician who unlawfully issues a prescription for a controlled substance may "dispense" a controlled substance. "Dispense" means "to deliver a controlled substance to an ultimate user or research subject . . . by a practitioner . . . including the prescribing and administering of a controlled substance . . . ." G. L. c. 94C, Section 1, as amended by St. 1972, c. 806, Section 3. There is nothing in this definition which indicates that the controlled substance or the prescription must be delivered lawfully. The definition of "practitioner" includes a physician even when he is acting outside of his lawfully authorized role. G. L. c. 94C, Section 1, inserted by St. 1971, c. 1071, Section 1. [Note 4]

The question whether a licensed physician who has delivered a controlled substance unlawfully under the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. Sections 801 et seq. (1970), should be charged with "dispensing" or with "distributing" that substance has attracted divergent views in the United States Courts of Appeals. [Note 5] Some courts have indicated that a physician is "dispensing" when he prescribes a controlled substance

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outside of the lawful scope of his practice. See United States v. Hicks, 529 F.2d 841, 844 (5th Cir. 1976); United States v. Green, 511 F.2d 1062, 1072 (7th Cir. 1975), cert. denied, 423 U.S. 1031 (1976); United States v. Leigh, 487 F.2d 206, 207-208 (5th Cir. 1973); United States v. Bartee, 479 F.2d 484, 486-488 (10th Cir. 1973). Other courts have indicated that a physician does not "dispense" a controlled substance in such a circumstance; he "distributes" it. See United States v. Ellzey, 527 F.2d 1306, 1308 (6th Cir. 1976); United States v. Rosenberg, 515 F.2d 190, 200 (9th Cir. 1975), cert. denied, 423 U.S. 1031 (1976); United States v. Black, 512 F.2d 864, 866 (9th Cir. 1975); United States v. Badia, 490 F.2d 296, 298 (1st Cir. 1973). [Note 6]

We do not face, and need not decide, the issue which has divided the Courts of Appeals. A 1972 amendment of the definition of "dispense" in G. L. c. 94C, Section 1, has undercut the reasoning lying behind those Federal opinions which have held that a physician "distributes" but does not "dispense" a controlled substance when he exceeds his professional authorization. Prior to its amendment in 1972, G. L. c. 94C, Section 1, defined "dispense" in much the same language as "dispense" is defined in the Federal law. Compare G. L. c. 94C, Section 1, inserted by St. 1971, c. 1071, Section 1, with 21 U.S.C. Section 802 (1970). In the original Massachusetts law, and still under the Federal law, the definition of "dispense" includes the delivery of a controlled substance "pursuant to the lawful order of a practitioner" (emphasis supplied). See St. 1971, c. 1071, Section 1. The 1972 amendment of the Massachusetts definition eliminated the word "lawful" so that delivery of a controlled substance pursuant to an unlawful order of a physician could constitute "dispensing." St. 1972, c. 806, Section 3. The absence of the word "lawful" in the Massachusetts definition of dispense makes the reasoning of the First Circuit Court of Appeals in the

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Badia case seem inapplicable under the present Massachusetts law. [Note 7] The elimination of the word "lawful" with respect to a physician's order when another person acts pursuant to that order gives substantial support to our view that a literal reading of the definition of "dispense" is the correct one: that a physician "dispenses" whether lawfully or unlawfully. [Note 8]

2. We turn next to the defendant's argument that the evidence did not warrant a conviction under any of the indictments and that, consequently, each motion for judgment of acquittal should have been allowed.

The judge would have been warranted in finding that, on March 27, 1973, one Garrison, a State police officer assigned to the Criminal Information Bureau, Narcotics Unit, went to the defendant's office, which was located on the ground floor of his home in Orleans. The defendant was conversing with several adolescents in the reception area. Posing as a patient, Garrison stated that he wished to discuss a personal matter with the defendant. They went into an adjoining consultation room where Garrison told the defendant that he had a drug problem of which he wanted to be free. The defendant asked Garrison whether he used "scag," a street name for heroin, and Garrison replied that he "shot up a couple of bags every two or three days." The defendant then noted that Garrison had taken an important step and asked what he wanted. Garrison replied that he wanted something to help him over the "hard times." The defendant then asked which drug he wanted. Garrison made a request for numorphan,

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which the defendant refused "because a pharmacist would report a prescription for that to the police . . . ." Garrison rejected the defendant's offer of robitussin and countered with a request for percodan, to which the defendant acceded. They then returned to the reception area where the defendant wrote out a prescription for percodan and another prescription not the subject of an indictment here. When he gave the prescriptions to Garrison, the defendant stated, "I have to write the Percodan 4 to 6 hours per day for pain, but you know how to use it," and suggested that he fill the prescriptions in Hyannis instead of Provincetown. No medical history was taken by the defendant, and he made no physical examination of Garrison. Garrison did not see the usual items associated with a medical practice when he was in the defendant's office.

On March 30, 1973, a female police officer, Phinney, also posing as a patient, went to the defendant's office and found the defendant engaged in a nonmedical discussion with three adolescents, which lasted over an hour. During this time, Garrison returned to the defendant's office, and the defendant issued another prescription for percodan to him. Garrison had spoken with the defendant by telephone earlier that day, and the defendant had agreed to have Garrison return for a second prescription. In the course of sitting in the defendant's office, Phinney observed the doctor issuing a prescription for a controlled substance to each of the two adolescent girls who were present. One girl was able to get a prescription for percodan when she said she was on "junk." Phinney then stated that she was on "junk," and the defendant wrote a prescription for percodan for her. He asked her to fill the prescription in Boston. At no time on March 30 did the defendant either take a medical history or conduct a physical examination of either Garrison or Phinney.

On April 3, 1973, Garrison went to the defendant's office again. Phinney arrived shortly thereafter. Phinney requested another prescription of percodan, telling the defendant that the prescription he had given her on March thirtieth had been used up. When the defendant asked her

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if she wanted anything else, she said she wanted some "T-20's," a reference to biphetamine T-20, a substance which at the time should not have been made available by a pharmacist. A short conversation ensued between Garrison, Phinney, and the defendant as to whether T-20's were "good to get off on," after which the defendant issued Phinney a prescription for percodan and one for biphetamine T-20. When Phinney left, Garrison asked the defendant for another prescription for percodan and for something to help him sleep, and the defendant gave him another prescription for percodan and a prescription for tuinal. The defendant requested that he fill these prescriptions off the Cape. At no time on April 3 did the defendant take a medical history or physically examine either police officer.

At each office visit, each officer paid the defendant $10. The prescriptions were never filled. Percodan, biphetamine T-20, and tuinal are all controlled substances under G. L. c. 94C. There was expert medical testimony that proper medical practice required a medical history and physical examination before prescribing these drugs for any medical purpose.

We reject as without merit the defendant's argument that the Commonwealth's proof was insufficient because the various prescriptions were not filled. The definition of "dispense" appearing in G. L. c. 94C, Section 1, includes "prescribing" within the act of dispensing. The words "including the prescribing and administering of a controlled substance" appearing in the definition of "dispense" mean that either "prescribing" or "administering" are intended to be acts of dispensing. See United States v. Leigh, 487 F.2d 206, 208 (5th Cir. 1973). A disjunctive reading of the word "and" is called for in the context. See United States v. Bartee, 479 F.2d 484, 487 (10th Cir. 1973), where a similar conclusion was reached as to parallel language in 21 U.S.C. Section 802 (10) (1970).

The defendant continues, arguing that the delivery must be to "an ultimate user or research subject" (G. L. c. 94C, Section 1) in order to constitute a dispensing of a controlled substance

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and contends that the police officers were neither. An "ultimate user" is defined in G. L. c. 94C, Section 1, inserted by St. 1971, c. 1071, Section 1, as "a person who lawfully possesses a controlled substance for his own use . . . ." The defendant argues that the undercover police officers did not "possess" a controlled substance "lawfully" and "for [their] own use." As we have already indicated, the prescribing itself constitutes a delivery of a controlled substance within the definition of the word "dispense." There is thus "possession" of a controlled substance without the necessity of going through the needless expense of filling the prescription. Cf. United States v. Green, 511 F.2d 1062, 1072 (7th Cir. 1975), cert. denied, 423 U.S. 1031 (1976). We think also that the possession was "lawful." Police officers acting undercover received the prescriptions in pursuit of their work, and, therefore, their possession was lawful, even if the physician was not acting lawfully in delivering those prescriptions. By the same token, the prescriptions were received for the police officers' own use, in the sense that they received them while acting in the role of a consumer, the purpose of the words "for his own use" in the definition of an "ultimate user" in G. L. c. 94C, Section 1.

If undercover police operations such as were conducted here could not lead to convictions under G. L. c. 94C because the police officers were not "ultimate user[s]," the investigation and prosecution of drug violators would be limited severely and unnecessarily. We do not attribute to the Legislature an intention to prohibit undercover police operations of the type involved in this case. The defendant's argument in effect requires us to do so, and we reject it. See Commonwealth v. Miller, 361 Mass. 644, 655 (1972); United States v. Bartee, supra at 487, where a contention that the drug must be used was rejected under the parallel definition of an "ultimate user" in the Federal act.

We come then to the defendant's argument that the evidence of the circumstances in which the defendant delivered the prescriptions was insufficient to warrant a conviction of a physician for unlawful dispensing of a controlled

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substance. This argument requires us to analyze the standard to which a physician is held under G. L. c. 94C when he dispenses a controlled substance.

Section 32 of G. L. c. 94C provides in part that "[e]xcept as authorized by this chapter, no person shall knowingly or intentionally . . . dispense . . . a controlled substance . . . ." Clearly a statutory exception is necessary for persons who practice medicine, and for other professionals who make legitimate uses of drugs. For that reason, G. L. c. 94C, Section 19 (a), inserted by St. 1971, c. 1071, Section 1, states (in part) that "[a] prescription for a controlled substance to be valid shall be issued for a legitimate medical purpose by a practitioner acting in the usual course of his professional practice."

A physician who issues a prescription not intending to treat a patient's condition in the usual course of his practice of medicine does not issue a valid prescription, and he thus violates Section 32. Such a physician violates Section 32 because he acts in bad faith, in the sense that his purpose is not to treat the patient in accord with accepted medical practice. Although the physician's failure to comply with accepted medical practice is an element of the crime and evidence is admissible that the physician failed to adhere to accepted medical practice, mere malpractice in the prescribing of drugs has not been made a crime. To prove the crime, the physician's purpose, his state of mind, must be shown to have been such that he was not intending to achieve a legitimate medical objective. United States v. Rosenberg, 515 F.2d 190, 193, 194-195 (9th Cir. 1975), cert. denied, 423 U.S. 1031 (1976). United States v. Collier, 478 F.2d 268, 272 (5th Cir. 1973). Cf. United States v. Moore, 423 U.S. 122, 138-139, 142-143 (1975).

We have no question that the evidence summarized above warranted a finding that the defendant acted in bad faith in delivering the prescriptions which are the subject of the indictments in this case. Also, there was evidence that the defendant's conduct was not in accord with accepted medical practice. He took no medical histories and

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conducted no physical examinations. These facts support an inference that the defendant did not have medical needs in mind when he issued the prescriptions and that he was not interested in finding physical indications of such needs. United States v. Ellzey, 527 F.2d 1306 (6th Cir. 1976). United States v. Rosenberg, 515 F.2d 190, 199 (9th Cir. 1975), cert. denied, 423 U.S. 1031 (1976). United States v. Green, 511 F.2d 1062, 1066, 1073 (7th Cir. 1975), cert. denied, 423 U.S. 1031 (1976). United States v. Badia, 490 F.2d 296, 297 (1st Cir. 1973). United States v. Bartee, 479 F.2d 484, 489 (10th Cir. 1973).

There was other evidence to support the judge's findings. The defendant permitted Garrison to name the drug he wanted. See United States v. Ellzey, 527 F.2d 1306 (6th Cir. 1976). The defendant expressed concern about where the prescriptions would be filled. See United States v. Larson, 507 F.2d 385, 387-388 (9th Cir. 1974); United States v. Bartee, 479 F.2d 484, 489 (10th Cir. 1973). The issuing of additional prescriptions for percodan at short intervals to Garrison and Phinney could have been found to be inconsistent with accepted medical treatment and support an inference that the prescriptions were not intended to serve a medical purpose. See United States v. Green, 511 F.2d 1062, 1066, 1073 (7th Cir. 1975), cert. denied, 423 U.S. 1031 (1976); United States v. Larson, 507 F.2d 385, 387-388 (9th Cir. 1974); United States v. Bartee, supra. The defendant's remarks and actions in the course of the officers' visits, which need not be summarized here, also support the conclusion that the prescriptions were not issued for a medical purpose.

3. There was no prejudicial error in any rulings on the admission of evidence.

It was within the judge's discretion to permit an osteopathic physician, who did not treat drug dependent patients, to give his opinion that it was not consistent with accepted medical practice to prescribe the drugs which the defendant prescribed without obtaining some medical history or background and without first conducting a physical

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examination. See Commonwealth v. Boyd, 367 Mass. 169, 182-183 (1975). W.B. Leach & P.J. Liacos, Massachusetts Evidence 97 (4th ed. 1967). The physician's opinion concerning proper medical practice in treating drug dependent patients in certain circumstances was also admissible. His lack of detailed experience with the treatment of drug dependent patients went to the weight, but not to the admissibility of his testimony.

Admission of evidence from a pharmacist that six of the seven prescriptions of the defendant were "fillable" is no ground for reversal of the convictions. In the absence of any contention by the defendant that the seven prescriptions were not in fact orders for drugs, as they appeared to be on their face, the question whether the prescriptions were in proper form, and hence fillable, was immaterial to the prosecutor's case, as we have interpreted G. L. c. 94C. However, the admission of testimony that certain prescriptions would have been filled by a pharmacist if presented seasonably did not prejudice the defendant in any way. [Note 9]

We find no impropriety in permitting the undercover police officers to testify concerning statements made by the defendant in their presence during the course of their visits to the defendant's office. Some of these statements were made to third persons who were in the doctor's waiting room. Some of the statements were profane; some were trivial; and some indicated that the defendant had young persons in the area of his office with whom he engaged in general discussions of sex and drugs. All these statements were made by the defendant in the presence of the witness. There is, therefore, no valid hearsay objection to the admission of the testimony.

The issue of the relevancy of this evidence is a more substantial one. However, the question whether the defendant was acting in the usual course of his practice and

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in accord with accepted medical practice was an important issue in the case. In such a situation, the conduct and remarks of the physician in the patient's presence may be helpful in assessing the physician's good faith or bad faith in prescribing the drugs. Although in a case tried to a jury, some of the defendant's comments might have been so prejudicial as to distract the jury from their proper fact-finding duties, where this case was tried to a judge we see no overriding prejudice which makes the admission of otherwise relevant evidence improper.

There was no error in admitting testimony from one of the police officers that the defendant gave him two prescriptions not the subject of indictments. As we have said the circumstances of the purported physician-patient relationship are relevant to the basic question of the bona fides of the defendant's conduct in prescribing the controlled substances which are the subject of the indictments. Thus, evidence of the circumstances under which other drugs are prescribed at the same time is admissible.

Judgments affirmed.