BOTSFORD, J.
In this case we consider again what impact, if any, G. L. c. 94C, § 32L (§ 32L), which decriminalizes possession of one ounce or less of marijuana, has on the provisions of G. L. c. 94C, § 32C (a) (§ 32C [a]). See Commonwealth v. Keefner, 461 Mass. 507 (2012) (Keefner). The defendant was charged with cultivation of marijuana in violation of § 32C (a) and committing that violation in a school zone, G. L. c. 94C, § 32J, after police found several marijuana plants that collectively weighed less than one ounce growing in a closet in his
Background. The undisputed facts as recounted by the motion judge are the following. On September 28, 2010, officers of the Adams police department consensually entered the defendant's residence and arrested him on active warrants. While searching for the defendant in his home, the officers observed in plain view several marijuana plants growing in a closet.
A criminal complaint issued from the Northern Berkshire Division of the District Court Department charging the defendant with cultivation of marijuana and a school zone violation.
Discussion. The question presented is what effect, if any, § 32L, inserted by St. 2008, c. 387, "An Act establishing a sensible State marihuana policy" (Act), has on the offense of cultivation under § 32C (a), where the amount of marijuana cultivated weighs one ounce or less. We begin with the text of the relevant statutes. Section 32C (a), provides, in pertinent part: "Any person who knowingly or intentionally manufactures, distributes, dispenses or cultivates, or possesses with intent to manufacture, distribute, dispense or cultivate [marijuana] shall be imprisoned ...." On November 4, 2008, the voters approved the Act, which changed the status of the offense of possession of one ounce or less of marijuana from criminal to civil. See Commonwealth v. Cruz, 459 Mass. 459, 464 (2011). Section 2 of the Act, codified at § 32L, provides in relevant part:
Additionally, § 5 of the Act specifically amended G. L. c. 94C, § 34 (§ 34), a statute that renders criminal the knowing or intentional possession of any controlled substance. Pursuant to this amendment, the possession of marijuana under § 34 remains criminal "[e]xcept as provided in [§] 32L."
In the Keefner case, we addressed the effect of § 32L on the offense of possession with intent to distribute, which, like cultivation, is a crime defined by § 32C (a). We concluded that § 32L did not repeal the criminal status of, or penalties applicable to, the crime of possession with intent to distribute where the amount of marijuana so possessed is one ounce or less. Keefner, 461 Mass. at 514. The defendant argues that Keefner does not control because cultivation does not implicate distribution and, by definition, the cultivation of one ounce or less of marijuana means possession of that quantity. Accordingly, the argument goes, because § 32L decriminalizes possession of one ounce or less of marijuana, it also decriminalizes its cultivation in that amount.
It is well established that "[a] statute is not to be deemed to repeal or supersede a prior statute in whole or in part in the absence of express words to that effect or of clear implication." Commonwealth v. Harris, 443 Mass. 714, 725 (2005), quoting Commonwealth v. Hayes, 372 Mass. 505, 512 (1977). See Keefner, 461 Mass. at 513-514. Here, as in the Keefner case, the offense for which the defendant is charged, cultivation of marijuana, § 32C (a), and the offense of simple possession of marijuana, § 34, are "listed separately in the General Laws, have different elements, and are distinct." Keefner, supra at 511.
By its terms, the Act decriminalized only "possession of one ounce or less of marihuana" and correspondingly amended only § 34, the statute defining the crime of simple possession, to exempt possession of one ounce or less of marijuana from criminal status and penalties. See Keefner, 461 Mass. at 512. The Act did not decriminalize any other type of conduct proscribed by G. L. c. 94C, and it did not amend any other provision in c. 94C other than § 34. We adhere to our view, see Keefner, supra at 511-512, that the Act's specific amendment of § 34 and of no other criminal penalty provision in c. 94C — including, notably, § 32C (a) — is persuasive evidence that the Act was not intended to decriminalize any offense defined in c. 94C other than simple possession of one ounce or less of marijuana.
Moreover, the defendant offers no persuasive argument for why we should find an implied repeal of the provision in § 32C (a) proscribing cultivation when we declined to do so in relation to the provision in the very same section that proscribes possession with intent to distribute. Keefner, 461 Mass. at 513-514. Adhering to the principle that "a statute must be interpreted `as a whole,'" we conclude that § 32L did not repeal the offense of cultivation of marijuana under § 32C (a) where the amount of marijuana cultivated is one ounce or less.
We address briefly the interpretation of §§ 32C (a) and 32L proposed by Justice Duffly's concurring opinion, which is different from that offered by the defendant but is also flawed. The concurrence posits that (1) the term "cultivat[ion]," as used in § 32C (a), does not include (and apparently has never included) cultivation of marijuana for "personal use," see post at 780; (2) cultivation only comes within § 32C (a)'s prohibition if it is undertaken with the intent to distribute (i.e., sell), see id. at 780-781; and (3) with the passage of § 32L, cultivation of one ounce or less of marijuana for personal use "is not a crime." See id. at 782. This interpretation ignores the plain language of § 32C (a) and flies in the face of our guiding principles of statutory construction.
Section 32C (a) uses the word "cultivate" by itself. The section contains no language creating an exception for cultivation for "personal use" or indeed any exception at all. In interpreting a statute, "[w]e will not add words to a statute that the Legislature did not put there, either by inadvertent omission or by design." Commonwealth v. Callahan, 440 Mass. 436, 443 (2003), quoting Commonwealth v. McLeod, 437 Mass. 286, 294 (2002). Moreover, as the concurrence acknowledges, post at 780, the word "cultivate" has a plain, ordinary meaning: "To grow or tend (a plant or crop)." American Heritage Dictionary of the English Language 454 (3d ed. 1992). Our rules of statutory construction counsel that when the meaning of a word used in a statute is clear, we should interpret it in accordance with that meaning, without more.
Conclusion. The allowance of the defendant's motion to dismiss is reversed, and the case is remanded to the District Court for further proceedings consistent with this opinion.
So ordered.
DUFFLY, J. (concurring, with whom Gants and Lenk, JJ., join).
When read in the context of G. L. c. 94C in its entirety, it is evident that the offense of cultivation excludes the growing of marijuana when it is done only for personal use. Section 32C (a) makes it a crime to manufacture, distribute, dispense, or cultivate marijuana, or to possess marijuana with the intent to manufacture, distribute, dispense, or cultivate it.
Each of the first three terms connotes significant steps in the course of drug trafficking, and possession solely for personal use of the drugs is not included in their definitions. By statute, the term "manufacture" explicitly "does not include the preparation or compounding of a controlled substance by an individual for his own use." G. L. c. 94C, § 1. Distribution is "the facilitation of a drug transfer from seller to buyer" in furtherance of the drug trafficking business. Commonwealth v. Jackson, ante 758, 764 (2013). See G. L. c. 94C, § 1. And the term "dispense" means the delivery of a controlled substance to an end user by a "practitioner" who is "registered." Id. Just as possession for personal use is excluded from the definitions of manufacturing, distributing, and dispensing drugs, the term "cultivate" should also be read to exclude the growing of marijuana only for personal use.
The legislative history of § 32C (a) supports this interpretation. The Legislature enacted § 32C (a) to target those "in the drug business." 1980 House Doc. No. 6652, at 1. See Commonwealth v. Jackson, supra. As the Governor explained when proposing the 1980 legislation that added this statute to the General Laws, "The time has come to launch a new, more aggressive campaign against those who operate and profit from the death-dealing traffic in drugs.... We need major changes in the way our criminal system deals with these dealers in drugs." (Emphasis added.) Id. Growing marijuana for personal use does not implicate such concerns. Indeed, growing marijuana for personal use arguably undermines the drug trafficking business, along with its attendant violence, see Commonwealth v. Cannon, 449 Mass. 462, 470 (2007), quoting Commonwealth v. Moses, 408 Mass. 136, 143 (1990) ("drug trafficking is fraught with violence"), by allowing marijuana users to obtain marijuana without supporting the drug trafficking market.
Moreover, the offense of cultivation must be considered in light of § 32L, which makes the simple possession of one ounce or less of marijuana a civil infraction. See Commonwealth v. Keefner, 461 Mass. 507, 511 (2012), quoting Wolfe v. Gormally,
In light of the enactment of § 32L, I believe it is clear that the growing of one ounce or less of marijuana for personal use is not a crime. Section § 32L was enacted as a result of the voters' adoption in 2008 of "An Act establishing a sensible State marihuana policy." St. 2008, c. 387. The goal of this initiative was to decriminalize possession of marijuana while keeping in place "other marijuana-related crimes, like sales." Information for Voters: 2008 Ballot Questions, Question 2: Law Proposed by Initiative Petition, Possession of Marijuana.
Treating marijuana cultivation for personal use in the same manner as simple possession is treated under § 32L, a civil infraction, is also consistent with the recent enactment of G. L. c. 94C Appendix §§ 1-1 et seq., inserted by St. 2012, c. 369. That statute, which legalizes the medical use of marijuana by qualifying patients, also recognizes the interconnection between possession, use, and cultivation of marijuana for personal use. Pursuant to G. L. c. 94C Appendix § 1-11, a "qualifying patient" may in certain circumstances obtain a "cultivation registration," which "shall allow the patient or the patient's personal caregiver to cultivate a limited number of plants, sufficient to maintain a 60-day supply of marijuana, and shall require cultivation and storage only in an enclosed, locked facility."
Where the language of two statutory provisions must be considered, we interpret their meaning "in a manner that, to the greatest extent possible, serves the policies underlying both." Commonwealth v. Harris, 443 Mass. 714, 726 (2005). Interpreting the term "cultivate" in § 32C (a) to exclude growing marijuana for personal use respects both the policies underlying § 32L (decriminalizing possession of marijuana while continuing to criminalize the sale of marijuana) and § 32C (a) (targeting drug trafficking). By adopting a broader interpretation of the offense of cultivation than is necessary to resolve this case, the court's decision fails to advance these legislative goals.