COMMONWEALTH vs. RODNEY M. TAYLOR.

GREANEY, J. This is the third case in which we consider challenges to G. L. c. 94C, Section 32J, as inserted by St. 1989, c. 227, Section 2, the so-called school zone statute. [Note 1] The defendant stands convicted of a violation of G. L. c. 94C, Section 32C, possession of marihuana with intent to distribute, and a violation of G. L. c. 94C, Section 32J, possession of marihuana with intent to distribute within 1,000 feet of a school. One challenge by the defendant, styled as a double jeopardy issue, concerns the manner in which he was tried on the two charges in the primary and jury sessions of the Boston Municipal Court. The defendant's other challenges are directed at Section 32J, and are constitutional in nature. There are also claims of inadequate jury instructions and ineffective assistance of counsel. We transferred the case to this court on our own motion.

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Before discussing the defendant's contentions, we summarize the facts which could have been found by the jury. On October 20, 1989, at about 11:38 A.M., Massachusetts Bay Transit Authority police Sergeant James Mulhern entered the New England Medical Center subway station to check on his officers. There, Sergeant Mulhern, who had experience in drug cases, observed the defendant to be engaged in what Mulhern believed to be a drug sale. When the defendant saw Mulhern, he tried to flee. Mulhern and other officers apprehended and arrested the defendant who was observed carrying a "beeper" (paging device). Fourteen sealed packets of marihuana, totalling 15.62 grams and having a "street value" of ten dollars a packet, were seized from the defendant. A total of $221 in cash was also seized. The defendant was first observed by Mulhern about 125 feet away from Don Bosco High School.

1. We first take up the defendant's double jeopardy argument which arises out of the following circumstances. The charges against the defendant were contained in a complaint filed in the Municipal Court for the city of Boston which alleged (in separate counts) a violation of G. L. c. 94C, Section 32C, and a violation of G. L. c. 94C, Section 32J. The defendant waived a jury trial in the first instance and was found guilty of both charges in the primary session by a judge of the Boston Municipal Court. The judge placed the defendant's Section 32C conviction on file, and sentenced him on his Section 32J conviction to two years in a house of correction. The docket on both cases in the primary session indicates that, at the time the defendant was convicted and sentenced, the defendant appealed only his Section 32J conviction to the Boston Municipal Court jury-of-six session.

In the jury session, the defendant moved to dismiss the Section 32J charge on the ground that it could not be tried independently of the Section 32C charge. A judge in that session remanded the case to the primary session for "clarification" of the record there. According to the Commonwealth, the primary court docket was then "corrected" to record an appeal to the jury session by the defendant from the Section 32C conviction

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as well. Following this, both the Section 32C charge and the Section 32J charge were set down for a jury trial. The defendant then moved to dismiss the charges on the ground of double jeopardy and on the additional ground that Section 32J was unconstitutional. That motion was denied, and the defendant was found guilty by a jury of both charges. The defendant was sentenced to a two-year term on the Section 32C conviction, and a concurrent two-year term on the Section 32J conviction. [Note 2]

The defendant maintains that he never took an appeal to a jury from his conviction in the primary session of the Boston Municipal Court on the charge of possession of marihuana with intent to distribute under G. L. c. 94C, Section 32C. Based on this assertion, the defendant argues that, because the Section 32C offense was an essential component of the Section 32J charge, he could not, consistent with double jeopardy principles, be tried anew on the Section 32J charge from which he had taken an appeal.

It cannot be clearly determined on the record before us whether the defendant had in fact taken an appeal for a de novo jury trial on the Section 32C offense. We need not resolve the ambiguity. We will assume in the defendant's favor that he did not appeal his Section 32C conviction. Even with that assumption, he was not exposed to double jeopardy on the Section 32J offense. [Note 3]

In the usual case (as Section 32J seems to contemplate), the school zone charge will be tried together with the predicate charge. This was done in this case in the primary session of the Boston Municipal Court when the defendant was tried on both the Section 32C charge and the Section 32J charge. The anomalous situation that appears to have occurred thereafter stems from the nature of the two-tiered system for trials that exists in most District and Municipal Courts. That system permits a

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defendant who is convicted in a primary session on two distinct charges to accept conviction and disposition on one by not appealing, and to vacate conviction and disposition on the other by taking an appeal to the jury session for trial de novo.

General Laws c. 94C, Section 32J, creates and punishes a distinct offense which can be charged separately from the underlying offense which gives rise to it. In this case, the defendant's appeal of his conviction on the Section 32J charge had the effect of placing only that charge before the jury session of the Boston Municipal Court for trial de novo. See Commonwealth v. Hutchins, 410 Mass. 726 (1991). However, because (on the assumption we make) the defendant did not appeal his conviction under G. L. c. 94C, Section 32C, for possession of marihuana with intent to distribute, that conviction stood. It was therefore unnecessary to retry the defendant on that charge in connection with the de novo trial on his appeal of the Section 32J conviction. [Note 4] The retrial of the Section 32C offense was of no legal significance with respect to the de novo trial of the Section 32J offense, and, as a consequence, double jeopardy principles do not prevent the latter conviction from standing.

In the interests of fairness, however, we think the defendant should not have been retried and sentenced on the Section 32C charge without a clear demonstration in the record that he took an appeal from that conviction. Accordingly, as to that charge, we will vacate his conviction and sentence in the jury session, and order restored his Section 32C conviction in the primary session. [Note 5]

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2. The defendant next argues that the school zone provision in Section 32J violates his due process rights under the Fourteenth Amendment to the United States Constitution because that provision is too vague and overbroad to be enforced properly. [Note 6] The defendant's argument is stated principally in conclusory terms to the effect that Section 32J is (as his brief puts it) "overbroad, vague and uncertain . . . because it does not equitably or sufficiently define the specific acts or conduct prohibited."

The "void for vagueness" doctrine requires that a penal statute "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Commonwealth v. Williams, 395 Mass. 302, 304 (1985), quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983). "A law is not vague . . . if it requires a person to conform his conduct to an imprecise but comprehensive normative standard so that men of common intelligence will know its meaning." Commonwealth v. Gallant, 373 Mass. 577, 580 (1977), quoting Commonwealth v. Orlando, 371 Mass. 732, 734 (1977).

As to the circumstances of this case, Section 32J meets this standard. The statute provides the possession of certain drugs with intent to distribute (or the actual distribution of drugs) within 1,000 feet of school property is prohibited. A person of average intelligence would understand the statute to prohibit such conduct, and the statute instructs the police on what is criminal, thereby deterring arbitrary and discriminatory law enforcement. Courts which have considered the question have consistently found drug-free school zone provisions not to be unconstitutionally vague. [Note 7] See, e.g., United

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States v. Agilar, 779 F.2d 123, 126 (2d Cir. 1985), cert. denied, 475 U.S. 1068 (1986) (Federal drug-free school zone statute not unconstitutionally vague); State v. Ogar, 229 N.J. Super. 459, 471-472 (1989) (same).

General Laws c. 94C, Section 32J, is also not overbroad. "A statute is . . . overbroad . . . if, even though it is clear and precise, it prohibits constitutionally protected conduct." Commonwealth v. A Juvenile, 368 Mass. 580, 586-587 n.4 (1975). There is no constitutional protection granted to the possession of illegal drugs with intent to distribute, and the defendant obviously cannot make any argument tying his conduct to any protected form of expression or conduct. Cf. Commonwealth v. Nissenbaum, 404 Mass. 575, 583 (1989).

3. The defendant states in his brief that "there is no locus within the inner city of Boston which is not also `within one thousand feet of a school zone.'" Based on this assertion, he goes on to surmise that everyone in the inner city of Boston charged with one of the offenses described in Section 32C will automatically be subject to prosecution and possible punishment under Section 32J. He perceives this as imposing on inner city drug dealers a punishment to which drug dealers elsewhere may not be subject, thereby, in his view, creating a statute with discriminatory impact. It is difficult to tell where the argument is ultimately supposed to lead. The Commonwealth treats it as a contention by the defendant that Section 32J violates the equal protection clause of the Fourteenth Amendment to the United States Constitution. We also take the argument to be so based. It is without merit.

There is nothing in the record to support the defendant's contention that there is no location within the inner city of Boston that is not within 1,000 feet of a school. Even if that fact could be proved, it would not establish an equal protectionviolation. [Note 8] The issue was succinctly discussed and disposed of by the Supreme Court of Utah in considering a location

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challenge based on equal protection grounds to Utah's drug-free school zone statute. In State v. Moore, 728 P.2d 497, 503 (Utah 1989), that court said the following:

"Defendant cannot argue that he is treated differently than any other similarly situated individual who deals drugs within the prescribed location. He resides in a small city. Consequently, the school yard may be more readily located within 1,000 feet of his residence [than] is the case with the drug dealers in larger cities. However, this increased proximity does not make defendant dissimilar and therefore entitled him to dissimilar treatment . . . The bright line test is based strictly on distance from the school, regardless of the town's population or configuration. Such a test is constitutional."

We agree with these observations. No court has concluded otherwise. See United States v. Pitts, 908 F.2d 458, 460 (9th Cir. 1990) (fact that 80% of the city of Spokane is within 1,000 feet of a school did not invalidate Federal school zone statute on equal protection grounds); United States v. Agilar, supra at 126 (Federal school zone statute did not violate equal protection principles by having disparate impact on drug dealers in urban areas); Harrison v. State, 560 So.2d 1124, 1128 (Ala. Crim. App. 1989) (disparate impact of school zone statute on urban areas did not give rise to an equal protection claim). Section 32J does not discriminate against any group; it furthers a legitimate State interest of protecting children and adolescents by establishing a drugfree school zone and treats those who would disobey the law within the zone equally. See Dickerson v. Attorney Gen., 396 Mass. 740, 743 (1986).

4. The defendant's last two arguments deserve only brief comment.

(a) There was no objection to the judge's instructions to the jury on the issue of distribution. The instructions given followed those requested by the defendant's trial counsel. We consider the instructions to be error free, and reject the defendant's

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unconvincing argument that the jury should have been told that the defendant could not be found guilty if they concluded that he intended only "to share" his marihuana with others.

(b) The defendant's trial counsel did not furnish ineffective assistance. Counsel's concession that the defendant did possess the marihuana found on him was an obvious tactical decision made to press the defense that the defendant did not have an intent to distribute. The tactic was reasonable because the defense mentioned was clearly the only strategy available to meet a very strong government case. See Commonwealth v. Sielicki, 391 Mass. 377, 382 (1984); Commonwealth v. Key, 381 Mass. 19, 33 (1980).

The defendant's conviction in the jury session of the Boston Municipal Court on the violation of G. L. c. 94C, Section 32J, is affirmed. His conviction in the jury session on the violation of G. L. c. 94C, Section 32C, is vacated, and there his conviction asentered in the primary session of the Boston Municipal Court is reinstated on that violation.

So ordered.