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13-P-959 Appeals Court

COMMONWEALTH vs. CHRISTOPHER L. GOPAUL.

No. 13-P-959.

Middlesex. October 16, 2014. - December 2, 2014.

Present: Berry, Hanlon, & Carhart, JJ.

Controlled Substances. "School Zone" Statute. Statute, 

Construction.

Complaint received and sworn to in the Marlborough Division 

of the District Court Department on January 12, 2012. 

The case was reported by Robert G. Harbour, J. 

S. Anders Smith for the defendant.

Jennifer Bernazzani (Kevin J. Curtin, Assistant District 

Attorney, with her) for the Commonwealth.

CARHART, J. This case was reported to us by a District 

Court judge after the judge denied a motion by the defendant 

Christopher Gopaul to dismiss one count of a fourteen-count 

criminal complaint against him. The count alleges that the 

defendant sold marijuana within one hundred feet of a "public 

park or playground" within the meaning of G. L. c. 94C, § 32J, 
2

as amended by St. 1993, c. 335. The issues presented are

whether § 32J applies only to "public" playgrounds and whether 

that category excludes playgrounds located on private property,

even if accessible to members of the public.

Background. The following facts are agreed upon for 

purposes of the reported questions:

"On October 28, 2011, the defendant is alleged to have sold 

marijuana to an undercover officer. The sale is alleged to 

have taken place within 100 feet of the outdoor playground 

at the Windsor Meadows Apartment Complex, a private 

apartment complex, located at 135 Broadmeadow Street, 

Marlborough, Massachusetts. . . . The playground has a 

fence that does not completely surround it and thus anyone 

can enter the playground without needing to open any gate 

or door. . . . There are no signs regarding who may access 

the playground. Among other play structures, there is a 

slide, climbing structure, and swing set with four swings 

within the playground."

After the defendant was arrested and the complaint issued,

the defendant moved to dismiss one count alleging violation of 

§ 32J, on the basis that the playground at the Windsor Meadows 

Apartment Complex is not "public."

1 After a hearing, the judge 

denied the motion, ruling "that the law was clearly intended to 

protect children and the word "playground" should not be so 

narrowly construed to only include playgrounds open to the 

 

1 In their briefs, both parties state that the defendant's 

motion to dismiss also applied to a second count under § 32J, 

one involving Vicodin on a different date. However, the motion 

included in the record appendix refers only to the marijuanarelated count and the agreed statement of facts refers only to 

marijuana. We need not resolve the disparity. For discussion 

purposes we refer only to the marijuana-related charge.
3

general public but should and does include playgrounds where 

children [play on private property]." The judge then agreed to 

report the following questions:

"1. With reference to the phrase 'public park or 

playground' in G. L. c. 94C, § 32J, does the word public 

modify both park and playground?

"2. Is it within the purview of G. L. c. 94C, § 32J, if 

the incident occurs within 100 feet of a playground on 

private property?"

Discussion. "If, prior to trial, . . . a question of law 

arises which the trial judge determines is so important or 

doubtful as to require the decision of the Appeals Court, the 

judge may report the case so far as necessary to present the 

question of law arising therein." Mass.R.Crim.P. 34, as 

amended, 442 Mass. 1501 (2004). Whether to report a question is 

within the judge's discretion. Commonwealth v. Eagleton, 402 

Mass. 199, 208 (1988). Reported questions are appropriate for 

appellate court review only where, as here, "it appears that 

they present serious questions likely to be material in the 

ultimate decision, and that subsequent proceedings in the trial 

court will be substantially facilitated by so doing." 

Commonwealth v. Henry's Drywall Co., 362 Mass. 552, 557 (1972), 

quoting from John Gilbert Jr. Co. v. C.M. Fauci Co., 309 Mass.

271, 273 (1941). 

1. The first question in this case is whether § 32J 

applies only to playgrounds that are "public" within the meaning 
4

of the statute. The defendant argues that it does, asserting 

that the word "public" should be read to modify both "park" and 

"playground." The Commonwealth contends that because the word 

"public" directly precedes only the word "park," the statute 

applies to any playground, public or private. 

"As with all matters of statutory interpretation, we look 

first to the plain meaning of the statutory language." 

Commonwealth v. Mogelinski, 466 Mass. 627, 633 (2013). See 

Commonwealth v. Daley, 463 Mass. 620, 624 (2012) ("The ordinary 

language of the sentence guides our interpretation"). "[W]here 

the language of a statute is plain and unambiguous, it is 

conclusive as to legislative intent." Thurdin v. SEI Boston, 

LLC, 452 Mass. 436, 444 (2008). On the other hand, where 

ambiguity exists in a criminal statute we must resolve it in 

favor of the accused. See Commonwealth v. Hamilton, 459 Mass. 

422, 436-437 (2011), and cases cited.

The applicable version of § 32J requires an automatic from 

and after sentence when a person commits any of certain drug 

offenses

"while in or on, or within one thousand feet of the real 

property comprising a public or private accredited 

preschool, accredited headstart facility, elementary, 

vocational, or secondary school whether or not in session, 

or within one hundred feet of a public park or playground

. . ." (emphasis supplied).
5

G. L. c. 94C, § 32J, as amended through St. 1998, c. 194, § 146.

2 

The statute contains no definitions for the operative terms. No 

Massachusetts appellate opinion has decided whether the final 

quoted phrase of § 32J applies to a private playground, and the 

only case we have found touching on this part of the statute 

dealt with its constitutionality. See Commonwealth v. Davie, 46 

Mass. App. Ct. 25 (1998). In Davie, we were asked to decide 

whether the word "park" is void for vagueness and, in response 

to a defense argument that the statute applied only to parks 

which contain playgrounds, we held that "the use of the 

disjunctive 'or' [between the words 'park' and 'playground'] 

unambiguously serves to distinguish places in or near which an 

offense may be committed under the statute." Id. at 27. We 

were not asked in that case to interpret the full language at 

issue here; rather, "[w]e look[ed] to whether the word 'park' 

would permit a person of average intelligence to know what the 

statute proscribes." Id. at 28.

Here, we must interpret the statute to decide whether the 

Legislature intended it to apply only to "public" playgrounds. 

"In the absence of specific precedent on the meaning of a word 

or phrase in a statute, we are guided by accepted principles of 

construction." Commonwealth v. Baker, 368 Mass. 58, 68 (1975).

 

2 The crimes alleged in this case predate St. 2012, c. 192, 

§§ 30, 31, which amended the quoted language of § 32J in ways 

not relevant to the issues before us.
6

"As a matter of statutory construction, 'ordinarily the coupling 

of words denotes an intention that they should be understood in 

the same general sense.'" Commonwealth v. Hamilton, 459 Mass. 

at 432, quoting from 2A Singer, Sutherland Statutory 

Construction § 47:16, at 352-353 (7th ed. 2007). Additionally, 

"[w]here general words follow specific words in a statutory 

enumeration, the general words are construed to embrace only 

objects similar in nature to those objects enumerated by the 

preceding specific words." Id. at 432 n.12, quoting from 2A 

Singer, Sutherland Statutory Construction § 47:17, at 358-360 

(7th ed. 2007). 

Another principle of statutory construction "leads us to 

relate the words in question to the associated words and phrases 

in the statutory context." Commonwealth v. Baker, supra. We 

must "construe the various provisions of a statute in harmony 

with one another, recognizing that the Legislature did not 

intend internal contradiction." DiFiore v. American Airlines, 

Inc., 454 Mass. 486, 491 (2009). In § 32J, the phrase "or 

within one hundred feet of a public park or playground" follows 

language applying the statute to "real property comprising a 

public or private accredited preschool, accredited headstart 

facility, elementary, vocational, or secondary school." We have 

held previously that the word "accredited" applies only to

private preschools and private headstart facilities, because 
7

public institutions had been covered by the statute since its 

1989 enactment. Commonwealth v. Thomas, 71 Mass. App. Ct. 323, 

325 (2008). Thus, while the term "accredited" modifies only 

"private . . . preschool" and "[private] headstart facility," 

the words "public or private" modify every type of institution 

listed prior to the phrase at issue here (which tellingly 

includes the word "public" but omits the word "private"). 

These considerations lead us to conclude that the general 

term "playground" must be understood in conjunction with the 

more specific term "public park." The modifier "public" is not 

separated by a comma from the word "playground," and the words 

"public or private" modify every entity listed in the first part 

of the statute. Accordingly, and as a matter of plain meaning, 

we interpret the word "public" to modify both "park" and 

"playground," such that the statute applies only to public 

playgrounds.

This conclusion is also supported by the fact that 

"playground," while not defined in c. 94C, is defined in the 

Federal school zone statute, the precursor and counterpart to

§ 32J, as follows:

"any outdoor facility (including any parking lot 

appurtenant thereto) intended for recreation, open to the 

public, and with any portion thereof containing three or 

more separate apparatus intended for the recreation of 

children including, but not limited to, sliding boards, 

swingsets, and teeterboards" (emphasis supplied).
8

21 U.S.C. § 860(e)(1) (2012). "When a statute does not define 

its words we give them their usual and accepted meanings," 

deriving such meanings "from sources presumably known to the 

statute's enactors, such as their use in other legal contexts 

and dictionary definitions." Commonwealth v. Zone Book, Inc.,

372 Mass. 366, 369 (1977). See G. L. c. 4, § 6, Third. 

Moreover, while dictionary definitions of "playground" do not 

contain a public/private distinction, this court recognizes 

"that public facilities had been included within the zone of 

protection [under § 32J] . . . from the time of the statute's 

adoption" (emphasis supplied). Commonwealth v. Thomas, supra. 

Finally, "[O]ur respect for the Legislature's considered 

judgment dictates that we interpret the statute to be sensible, 

rejecting unreasonable interpretations unless the clear meaning 

of the language requires such an interpretation," DiFiore v. 

American Airlines, Inc., 454 Mass. at 490-491, and it would be 

unreasonable to interpret § 32J to require an automatic minimum 

two-year sentence for selling drugs within one hundred feet of 

someone's backyard play area. See Commonwealth v. Vega, 449 

Mass. 227, 233 (2007) ("[A] court does not interpret a statute 

so as to produce an illogical result"). Because § 32J applies 

only to "public" playgrounds, we answer the first reported 

question in the affirmative. 
9

2. We turn briefly to the second reported question, 

whether the statutory category "public . . . playground" may 

include a playground located on private property. According to 

the Commonwealth, a privately owned playground such as the one 

in this case may nonetheless be sufficiently open to the public 

as a factual matter that it should be considered "public" under

§ 32J. While plausible, this construction does not flow 

inevitably from the plain language. The phrase may as 

reasonably be read to draw a simple, easily applied distinction 

between playgrounds owned by public and private parties. Either 

result is justifiable as a matter of policy, but it is up to the 

Legislature to pronounce its judgment clearly on the subject. 

Absent that, because we must resolve the ambiguity in the 

meaning of "public . . . playground" in the defendant's favor,

see Commonwealth v. Hamilton, 459 Mass. at 436-437, we conclude 

that privately owned playgrounds fall outside the scope of 

§ 32J, and we therefore answer the second reported question in 

the negative.

3. In conclusion, we answer the first and second reported 

questions "yes" and "no," respectively. Furthermore, 

"[t]reating the reported question[s] as raising the issue of the 

correctness of the judge's ruling[] on the motion[] to dismiss," 

we conclude the defendant's motion to dismiss should have been 

allowed. Commonwealth v. Davie, 46 Mass. App. Ct. at 29. We 
10

remand the matter for further proceedings consistent with this 

opinion.

So ordered.