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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Jones, 372
Supreme Judicial Court of Massachusetts,
Argued
Decided
Robert S. Potters,
Joseph E. Coffey, Asst. Dist. Atty. (Timothy M. Burke,
Before QUIRICO, BRAUCHER, WILKINS, LIACOS and
ABRAMS, JJ.
[372
Pursuant
to G.L. c. 278, ss 33A‑‑33G,
the defendant appeals from a conviction for carrying a firearm in violation of G.L. c. 269, s 10(a).
There was no evidence to show that the defendant did not have a license
to carry a firearm, and the defendant argues that there was error in the denial
of his motion for a directed verdict and in the instructions to the jury on the
subject of licensing. We hold that G.L. c. 278, s 7, (FN1) establishing a presumption that the
defendant, until he proves a license, is not so authorized, is
constitutional. We further hold that the
instructions, taken as a whole, fairly presented the case to the jury. We therefore affirm the conviction.
There was
evidence that on
The
conviction could be affirmed on the authority of Commonwealth v. Davis, 359
Mass. 758, 270 N.E.2d 925 (1971), and cases cited. But the defendant contends that the decisions
in In re Winship, 397 U.S.
358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct.
1881, 44 L.Ed.2d 508 (1975), require ree xamination of the Davis case. Similar arguments have been successful in
other courts. Johnson v. Wright, 509
F.2d 828, 830 (5th Cir.), cert. denied, 423 U.S. 1014, 96 S.Ct.
445, 46 L.Ed.2d 384 (1975). State v. Beauton, 170 Conn. 234, 240, 365 A.2d 1105 (1976). Head v. State, 235 Ga. 677, 679, 221 S.E.2d
435 [372 Mass. 405] (1975). Commonwealth v. McNeil, 461 Pa. 709, 714‑‑716,
337 A.2d 840, 843‑‑844 (1975).
We therefore undertake the suggested ree xamination.
1. Interpretation of our statute. Our story begins with Commonwealth v. Thurlow, 24 Pick. 374, 381 (1837), where a conviction for
selling liquor without a license was reversed because no evidence was produced
that the defendant was not licensed.
That case was followed in Commonwealth v. Kimball, 7 Metc.
304, 306 (1843), but the proof there was held sufficient. A presumption that a defendant had not been
licensed was established by St.1844, c. 102, for prosecutions for selling
spirituous or fermented liquors; by St.1859, c. 160, such a presumption was
extended to all criminal prosecutions.
In Commonwealth v. Boyer, 7 Allen 306, 308 (1863), the court explained
that in the Thurlow case, because of the way in which
licenses were granted and recorded, 'it was as easy for the Commonwealth to
show the negative, as for the defendant to show the affirmative.'
Subsequent
cases have applied the statute and its successors both to cases involving
intoxicants and to other offenses.
Commonwealth v. McCarty, 141 Mass. 420, 422, 6 N.E. 102 (1886)
(suffering a billiard table to be kept).
Commonwealth v. Brunelle, 361 Mass. 6, 9, 277
N.E.2d 826 (1972) (license to practice medicine). COMMONWEALTH V. LAWRENCE READY‑MIX
CONCRETE CORP., ‑‑‑ MASS.APP. ‑‑‑, 345 N.E.2D 919 (1976)(FNA)
(permit to operate vehicle of certain weight).
'As matter of statutory construction, the prohibition is general, the
license is exceptional.' Commonwealth v.
Nickerson, 236 Mass. 281, 305, 128 N.E. 273, 283 (1920). In Commonwealth v. Davis, 359 Mass. 758, 270
N.E.2d 925 (1971), involving conviction for carrying a gun in an automobile, we
said, 'General Laws c. 269, s 10, proscribes certain inherently dangerous acts,
and G.L. c. 278, s 7, allows the defendant to show
that his conduct is within an exception to the proscription.'
General
Laws c. 269, s 10(a), was rewritten by St.1975, c. 113, s 2, effective April
11, 1975. See Commonwealth v. Jackson, ‑‑‑
Mass. ‑‑‑, ‑‑‑, (FNb)
344 N.E.2d 166 (1976). The amendments do
not affect the present question. The
statute as rewritten provides for the punishment of a person who, 'except [372 Mass. 406] as provided by law, carries on his person . . . a firearm . . .'
without having in effect a license issued under G.L.
c. 140, s 131 or 131F, or complying with G.L. c. 140,
ss 129C and 131G, or with G.L.
c. 269, s 12B. The cross references
bring into play not only exceptions for holders of licenses but also the
'exempted persons and uses' in G.L. c. 140, s 129C(a)
through (s), some of which do not involve a license. See Commonwealth v. Jackson, supra at ‑‑‑
n.3, (FNc) 344 N.E.2d 166.
[1] [2] We
sum up the established interpretation of G.L. c. 278,
s 7, as it applies to prosecutions under G.L.
c. 269, s 10(a). The holding of a valid
license brings the defendant within an exception to the general prohibition
against carrying a firearm, and is an affirmative defense. Cf. Mass.
Proposed R.Crim.P. for Dist. & Super.Cts. 11(a)(1)(C), 11(b)(1)(C), 14(b)(3) (July 30,
1976). Absence of a license is not 'an
element of the crime,' as that phrase is commonly used. In the absence of evidence with respect to a
license, no issue is presented with respect to licensing. In other words, the burden is on the
defendant to come forward with evidence of the defense. If such evidence is presented, however, the
burden is on the prosecution to persuade the trier of
facts beyond a reasonable doubt that the defense does not exist. Cf. Commonwealth v. Kostka,
‑‑‑ Mass. ‑‑‑, ‑‑‑ ‑
‑‑‑, (FNd) 350 N.E.2d 444 (1976)
(defense of insanity); Commonwealth v. Rodriguez, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ‑ ‑‑‑, (FNe)
352 N.E.2d 203 (1976) (self‑defense).
This
interpretation, at least so far as it places on the defendant the burden of
coming forward with evidence, is in accord with the great weight of
authority. Seattle v. Parker, 2 Wash.App. 331, 337, 467 P.2d 858 (1970). See Annots., 153 A.L.R. 1218, 1258‑‑1261 (1944), 69 A.L.R.3d
1054 (1976); Model Penal Code s 1.12(2), (3) (Proposed Official Draft, 1962),
and s 1.13, Comment (Tent. Draft No. 4,
1955). Cf. Rossi v. United States, 289
U.S. 89, 91‑‑92, 53 S.Ct. 532, 77 L.Ed. 1051 (1933) (registration of still). The principal contrary decision, other than
the recent constitutional decisions cited above, is Brown v. United States, 66
A.2d 491, 494 (D.C.Mun.Ct.App.1949), where the court said, 'Here, in a
relatively small geographical area, only one licensing authority exists,[372 Mass. 407] who issues only a small
number of licenses each year.' Hence,
'the circumstances in the District of Columbia do not justify the rule followed
in most states.' Contrast Williams v.
United States, 237 A.2d 539, 541 (D.C.Ct.App.1968) (burden on defendant to
bring himself within statutory exceptions).
As applied
to the facts of the present case, the statute treats absence of a license just
as it treats, for example, exemption under G.L. c.
140, s 129C (s), for possession by a local historical society open to the
public, provided the firearm is unloaded, properly housed and secured from
unauthorized handling. If there was no
evidence with respect to the defendant's connection with such a society, there
was no issue for the jury as to the application of the exemption. Similarly, if there was no evidence as to a
license, there was no issue for the jury as to licensing.
[3]
2. Constitutionality. We turn to the constitutional question. In re Winship, 397
U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368
(1970), tells us that 'the Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every fact necessary
to constitute the crime with which he is charged.' But in Mullaney v.
Wilbur, 421 U.S. 684, 701 n.28, 95 S.Ct. 1881, 1891,
44 L.Ed.2d 508 (1975), where absence of passion in a murder case was held to be
a fact subject to that rule, the Court said, 'Many States do require the
defendant to show that there is 'some evidence' indicating that he acted in the
heat of passion before requiring the prosecution to negate this element by
proving the absence of passion beyond a reasonable doubt. (Citations omitted.) Nothing in this opinion is intended to affect
that requirement.' (Citations
omitted.) Further, with respect to presumptions
and inferences, the Court said at 702 n. 31, 95 S.Ct.
at 1892: 'These procedural devices require (in the case of a presumption) or
permit (in the case of an inference) the trier of
fact to conclude that the prosecution has met its burden of proof with respect
to the presumed or inferred fact by having satisfactorily established other
facts. Thus, in effect they require the
defendant to present some evidence contesting the otherwise presumed or
inferred fact. Since they shift the [372 Mass. 408] production burden to the defendant, these devices must satisfy
certain due process requirements.'
(Citations omitted.)
A classic
statement of the 'limits of reason and fairness' in casting the production
burden on the defendant in a criminal case is found in Morrison v. California,
291 U.S. 82, 88‑‑89, 54 S.Ct. 281, 284,
78 L.Ed. 664 (1934): 'The limits are in substance
these, that the state shall have proved enough to make it just for the
defendant to be required to repel what has been rpoved
with excuse or explanation, or at least that upon a balancing of convenience or
of the opportunities for knowledge the shifting of the burden will be found to
be an aid to the accuser without subjecting the accused to hardship or
oppression.' Such a shift may be proper
if there is a 'manifest disparity in convenience of proof and opportunity for
knowledge as, for instance, where a general prohibition is applicable to every
one who is unable to bring himself within the range of an exception.' Id. at 91, 54 S.Ct.
at 285. That standard has been applied
to uphold the casting of the production burden on the defendant in
circumstances much like those of the present case. Rossi v. United States, 289 U.S. 89, 91‑‑92,
53 S.Ct. 532, 77 L.Ed. 1051
(1933) (registration of still). United
States v. Chodor, 479 F.2d 661, 663 (1st Cir.), cert.
denied, 414 U.S. 912, 94 S.Ct. 254, 38 L.Ed.2d 151
(1973) (authority to possess simulated currency). People v. Henderson, 391 Mich. 612, 615‑‑616,
218 N.W.2d 2 (1974) (license to carry gun).
Under G.L. c. 140, s 131, as amended through St.1974, c. 649, s
1, effective April 1, 1975, under St.1975, c. 4, s 1, the chief of police of
any city or town may issue a license to carry firearms to an applicant residing
or having a place of business there, for a period of four to five years. Although the issuing authority is to notify
the Commissioner of Public Safety, and the license holder is to notify the
State and local authorities of any change in his address, it seems clear that a
requirement that the prosecutor prove that no such license was issued would
impose an extravagant burden. Proof of a
license by the defendant, on the other hand, would be a very simple task and
would not require his testimony. Cf.
Barnes v. United States, 412 [372 Mass.
409] U.S. 837, 846‑‑847,
93 S.Ct. 2357, 37 L.Ed.2d 380 (1973) (no violation of
privilege against self‑incrimination where a defendant's testimony is not
required to rebut inference); Commonwealth v. Pauley, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑,
(FNf) 331 N.E.2d 901 (1975) appeal dismissed for want
of substantial Federal question, 423 U.S. 887, 96 S.Ct.
181, 46 L.Ed.2d 119 (1975); State v. Blanca, 100 N.J.Super.
241, 248, 241 A.2d 647 (1968).
Under G.L. c. 140, s 129C, a person licensed to carry a firearm
shall on demand of a police officer exhibit his license, or his firearm
identification card or receipt, or a valid hunting license. On failure he may be required to surrender
the firearm, but the failure is not made criminal. It could be.
Cf. G.L. c. 269, s 10(h) (requirements as to
firearm identification card); Commonwealth v. Brady, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑,
(FNg) 351 N.E.2d 199 (1976) (requirement to carry
bill of sale for new car); People v. Brownlee, 17 Ill.App.3d 535, 540, 308
N.E.2d 377 (1974) (firearm identification card). A requirement that he exhibit his license in
court is less stringent, and avoids the possibility of conviction for the minor
mistake of leaving the license at home.
See COMMONWEALTH V. PAULEY, SUPRA AT ‑‑‑ N.17, 331 N.E.2D 901(FNH).
In sum, we
think G.L. c. 278, s 7, as applied to a license to
carry a firearm, satisfies due process requirements. The defendant did not make any suggestion
that he had a license. We find it nearly
impossible to believe that he had such a license but withheld it, subjecting
himself to the risk of a mandatory term of imprisonment. If he did so, for example, for the purpose of
establishing a legal principle, the words of the Supreme Court in Williams v.
Florida, 399 U.S. 78, 82, 90 S.Ct. 1893, 1896, 26 L.Ed.2d
446 (1970), are apposite: 'The adversary
system of trial is hardly an end in itself . . ..' Such an absurd game does not contribute to a
search for truth; instead, it increases the risk of convicting the innocent and
acquitting the guilty. We find no
unfairness in our traditional rule.
Notwithstanding the decision in Mullaney v.
Wilbur, supra, 'we cannot with assurance predict with 'near certainty' the
impending doom' of the principles of Morrison v. California, supra. See Buzynski v.
Oliver, 538 F.2d 6, 10 (1976).
[4] [5]
[6] 3. The charge to the jury. The judge charged the jury [372 Mass. 410] (see note 2, supra) substantially in the terms of G.L. c. 278, s 7, and the defendant contends that the
result was an impermissible shift to the defendant of the burden of proof on an
element of the crime and an invasion of the fact finding function of the
jury. A verdict may not be directed
against a defendant in a criminal prosecution, and the trier
of fact cannot be compelled to find against the defendant as to any 'element of
the crime.' See COMMONWEALTH V. PAULEY,
SUPRA AT ‑‑‑ ‑ ‑‑‑, 331 N.E.2D 901.(FNI) But the charge in the present case did not
direct a verdict against the defendant, and the absence of a license, as we
have pointed out, was not an 'element of the crime,' in the sense of the Pauley
case. In the language of Mullaney v. Wilbur, quoted above, G.L.
c. 278, s 7, establishes a 'presumption' rather than an 'inference.' (FN3)
In the absence of any evidence on the issue of licensing, it was
appropriate to withdraw that issue from consideration by the jury. We do not encourage the use of the words
'presume' and 'presumption' in jury instructions. See Commonwealth v. Kostka,
‑‑‑ Mass. ‑‑‑, ‑‑‑ n.5 (FNj) 350 N.E.2d 444 (1976).
It might have been better simply to state that in the absence of
evidence the jury should not consider the question whether the defendant had a
license to carry a gun. Cf. People v.
Henderson, 391 Mich. 612, 615, 218 N.W.2d 2 (1974). But no harm was done of which the defendant
can complain. Taken as a whole, the
instructions fairly presented the case to the jury.
Judgment
affirmed.
FN1. 'A defendant in a criminal prosecution,
relying for his justification upon a license, appointment, admission to
practice as an attorney at law, or authority, shall prove the same; and, until
so proved, the presumption shall be that he is not so authorized.'
FN2.
'Now in this case, you have no evidence whatsoever as to whether or not
the Defendant had a license to carry the gun, and under the statute, you must
presume that the carrying was not so authorized, under those facts.'
FNa. Mass.App.Adv.Sh. (1976) 508.
FNb. Mass.Adv.Sh. (1976) 735, 738.
FNc. Mass.Adv.Sh. (1976) at 739 n.3.
FNd. Mass.Adv.Sh. (1976) 1608, 1630‑‑1632.
FNe. Mass.Adv.Sh. (1976) 1864, 1868‑‑1872.
FNf. Mass.Adv.Sh. (1975) 2224, 2241‑‑2242.
FNg. Mass.Adv.Sh. (1976) 1781, 1783‑‑1784.
FNh. Mass.Adv.Sh. (1975) at 2243 n. 17.
FNi. Mass.Adv.Sh. (1975) at 2230‑‑2231.
FN3.
If such a 'presumption' were authoritatively held to be
unconstitutional, we would hold that the unexplained possession of a firearm
permits an 'inference' that the possessor has no license. But see Ashford & Risinger,
Presumptions, Assumptions, and Due Process in Criminal Cases: A Theoretical
Overview, 79 Yale L.J. 165, 201 (1969).
FNj. Mass.Adv.Sh. (1976) 1608, 1621 n.5.