OF COMMONWEALTH MASSACHUSETTS

MIDDLESEX. SS

JUVENILECOURTDEPARTMENT WALTHAM DTVISION NO. DLIW r-\)

COMMONWEALTH V.

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i, ,.:: :i. MEMORANDUM SUPPLEMENTAL . ].. OF DECISION THE ON MOTIONTO DISMISS JUVENILE'S (-';
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I.

INTRODUCTION

The juvenile,I-, is charged the abovenumberedcomplaintwith in possession marihuana of with intent to distribute. This chargestemsfiom an incidentthat occurredon Septemb 6, 2009.The juvenile was arraigned this complaint on September 1 1 er on recognizance imposed underG.L. c. 276 5 87. On and released personal on subject conditions to 29,2010,the Courtheardargument thejuvenile'sMotion To Dismiss. Thejuvenile on January arguedthat as a resultof the enactment G.L. c. 94C, $ 32L, thereis no longer a crime of of possession one ounceor lessof marihuana of with the intentto distribute. The Court allowed this motion and entered written Memorandumof Decisionon January29,2010. Thereafter, a the Commonwealth movedto reconsider Court'sdecision. On March 19,2010the Court heard the argumenton the Commonwealth's Motion To Reconsider.The Court grantedreconsideration and upheld its original decision. The Court issues decisionto address one of this supplemental in the Commonwealth'sarguments reconsideration to correctone misstatement its on and it January29 Memorandumof Decision. The Court reaffirmsits decisionand incorporates herein in all otherrespects. II. ANALYSIS The Use of The Word "Selling" in $ 32L.

A.

The Commonwealth has arguedthat the useof the word "selling" in the secondparagraph of $ 32L, which word is not found elsewhere G.L. c.94C, evidences in that the offenseof possession with intent to distributewhen appliedto quantities marihuanalessthan one ounce of continuesto be unlawful. According to this argument, "the useof the term 'selling' . . . was intendedto refer to the saleof marihuana the broadersense, in i.e., distribution and possession with intent to distributemarihuana."(Memorandum Supportof the Commonwealth'sMotion in To Reconsider p. 6.) For the following reasons, Court rejectsthis argument. at the As portrayedin popularculture,the personal of marihuanais often a shared, use communalexperience.For example,the late 60'snot quite classictune, "Don't Bogart That

Joint",' (Lyrics by LawrenceWagnerand music by Elliot krgber)containsthe chorus: Don't bogart that joint my friend Passit over to me Don't bogart that joint my friend Passit over to me The somewhat closerto a classic1966Bob Dylan song,"RainyDay WomenNo. 12 &35" includesthe recurringrefrain,"They'll stoneya when . . ."2 ln the world of film, "Easy Rider", a 1969release, includeda scenein which the characters portrayed PeterFonda,DennisHopper by passingthe cigarettes and JackNicholson sit arounda campltresharingmarihuana cigarettes, betweenthemselves. The 1970 film "Woodstock"which documented 1969Woodstock the Music and Arts Festival,includesmany scenes concert-goers of sharingwhat is identified as marihuanaby passingmarihuanacigarettes other smokingimplementsto one another. [n and 2004, one of the so-called"stoner" films, "Harold and Kumar Go to White Castle" features an openingscenein which the protagonists sharemarihuana thenheadto a White Castlerestaurant. More recently,in March 2009 an episodeof the NBC drama"Parenthood", which follows the triumphs and travailsof the fictional Bravermanfamily, includeda scenein which one adult family memberheld up a bag of marihuana confiscated from his adolescent daughter(not in her presence).The girl's uncle grabsthe bag, sayingthat they shouldseewhat his niecehasbeenup to and rolls a marihuana cigarettewhich he and the other adultsthen share,passingit from one to another. Basedon thesecultural references which haveendured and beenrepeated more than for 40 years,the court understands the useof marihuana that commonlyincludessharingthe drug amongstseveralusers.

Bogart in this contextrefersto hoardingor failing to share.It is understood to refer to peoplewho would hold on to a marihuana cigarette, allowing it hang from their lip like HumphreyBogart did with a tobaccocigarette.Joint is a slangterm for a marihuana cigarette. Stonedas usedhererefersto the stateof beins underthe influenceof marihuana. ' The secondverseof the sons and the refrain are: Well, they'll stoneya when you'rewalkin' 'long the street. They'll stoneya when you'retryin'to keepyour seat. They'll stoneya when you'rewalkin'on the floor. They'll stoneya when you'rewalkin'to the door. But I would not feel so all alone. Everybody must get stoned.

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Under the currentstateof Massachusetts decisionallaw thesecommonly portrayed,and patternsof the useof marihuana the Court infers fact-based, could be prosecuted distribution. as (1992)(upholding jury v. 413 See,for example, Commonwealth Johnson, Mass.598,604-605, a instructionthat defineddistributionof a controlledsubstance include "all forms of physical to transferof the substance" and limiting the circumstances which a jury instructionon shared, in joint possession shouldbe given to thosewhen thereis evidence that, "two or lnore persons and simultaneously jointly acquirepossession a drug for their own use intendingonly to share of it together"). lnasmuchas the intent of $ 32L was to decriminalize possession use of the and "selling" in the statuterather small quantitiesof marihuana, Court concludes the that the useof than distributingor distributionwas intentionaland designed ensurethat the use of marihuana to as portrayedin thesecultural references not effectively"re-criminalized"throughthe use of is laws prohibiting distributionof marihuana. Sucha resultwould defeatthe manifestpurposeof the statute.

B.

Errata

precedingthe conclusion, ln the Court's January29 decision,on page6 in the paragraph the Court wrote,"On one hand,$ 32L expressly states possession an ounceor lessof that of marihuana lawful . . . ". (Emphasis is added.)The useof theword lawful in this sentence an was inadvertenterror. Instead, Court shouldhavewritten that possession an ounceor lessof the of marihuana not a criminaloffense.With this correction, balance the Court'sopinion is the of stands. UI. CONCLUSION

For the foregoingreasons well as thosestatedin the Court's original Memorandumof as to Decision,afterreconsideration, juvenile'smotionto dismiss ALLOWED subject the the is stated the Court'sdecision. in caveatoriginally So ORDERED.

1-{ }(ll 0 Dated:
iateJustice eth J. King, lesexCounty venile Court