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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. Sasu, 404
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
Kurt N. Schwartz, Asst. Dist. Atty., for Com.
Camille F. Sarrouf (Frank
C. Corso with him), for defendant.
Before WILKINS, LIACOS,
ABRAMS, NOLAN and LYNCH, JJ.
LYNCH, Justice.
This is an
appeal by the Commonwealth from a decision of the Appellate Division of the
District Court vacating a finding by the Cambridge Division of the District
Court Department, that defendant George Sasu was
"responsible" for failing to file a motor vehicle accident report as
required by G.L. c. 90, § 26 (1986 ed.), and ordering
that a finding of "not responsible" be entered. We transferred the case to this court on our
own motion and now affirm.
The facts
underlying the action are not disputed.
On
On August
18, 1986, the Belmont police department notified the defendant by letter that
he had not yet submitted an accident report as required by G.L.
c. 90, § 26, (FN1) and that, unless he submitted a report within one week, the department
would apply for a civil complaint against him.
The defendant neither replied to the letter nor filed the report, and on
August 26, 1986, the Belmont police issued a motor vehicle traffic citation to
the defendant and assessed a fine of twenty‑five dollars for violation of
c. 90, § 26.
On
[1] The
Commonwealth contends first of all that the Appellate Division lacked
jurisdiction to hear the appeal because the complaint was filed with the
defendant's consent after a finding of "responsible," but without any
assessment of costs. The Commonwealth
cites, inter alia,
Commonwealth v. Delgado, 367 Mass. 432, 437‑438, 326 N.E.2d 716
(1975), for the well‑established principle that no appeal may be taken
until after judgment and that, where a complaint is filed with the defendant's
consent, the disposition is not final.
This rule evolved from criminal cases which articulate the view that
judgment in a criminal case is the sentence. Id. at 438, 326 N.E.2d 716. If a defendant wishes to appeal alleged
error in a criminal proceeding, then, a demand for sentencing must be made so
that a final disposition is reached. Id.
The Commonwealth's reliance here on this principle is misplaced, despite
the fact that the complaint in this case was filed without an assessment of
fines.
The
issuance of a citation for violation of G.L. c. 90, §
26, is governed by the provisions of G.L. c. 90C, §
2, which allows issuance of motor vehicle citations for "any violation of
any statute, ordinance, by‑law or regulation relating to the operation
or control of motor vehicles" other than those specifically excepted. G.L. c. 90C, § 1
(1986 ed.). Section 3(A) of c. 90C
expressly governs civil motor vehicle violations for which the maximum penalty
or fine is not more than $100 for the first offense and does not provide for a
penalty of imprisonment. (FN3) By the terms of the statute, after hearing
before a [404 Mass. 599] clerk‑magistrate and a de novo
appeal to a District Court judge, a defendant's appeal from a decision of the
judge "shall be governed by rules promulgated by the chief justice of the
district court" providing a "simplified method of appeal" for
civil motor vehicle infractions. Rule
VII(b)(2) of the Trial Court Rules, the Uniform Rules on Civil Motor Vehicle
Infractions, as amended (1986), provides that, if a violator "has been
found guilty and is simultaneously being sentenced upon a criminal motor
vehicle violation that arose from the same occurrence as one or more civil
motor vehicle infractions," the judge may direct that the civil complaint
be filed without imposition of a fine.
Infractions may be placed on file only in those limited circumstances
where there has been a guilty finding in a criminal case arising from the same
circumstances. The rule further provides
for an appeal to the Appellate Division on an issue of law following entry of
the District Court judge's determination of responsibility in the civil case. Rule VII(d)(1), Trial Court Rules, as amended
(1986). Such an appeal is available
"following adjudication by judges in cases heard on appeal following a
clerk‑magistrate's finding and disposition, and in cases where the civil motor vehicle infraction arose from the
same occurrence as a criminal motor vehicle violation cognizable under G.L. c. 90C, s. 3(B)," (emphasis supplied). Rule VII(a), Trial Court Rules, as amended
(1986). We conclude, from these
provisions and from the civil nature of the proceedings, that the rule permits
an appeal when an infraction has been placed on file and no fine has been
imposed.
The
Commonwealth next contends that the defendant could not assert his privilege
against self‑incrimination as a defense during his prosecution for
failure to file an accident report because he waived the privilege when he
failed to file the report within the time required, and because the privilege
does not extend to self‑reporting schemes which primarily further noncriminal regulatory objectives. We conclude that the defendant did not waive
his constitutional privilege against self‑[404 Mass. 600] and
that, as applied to the defendant in this case, G.L.
c. 90, § 26, unconstitutionally infringes on the defendant's rights under the
Fifth Amendment to the United States Constitution.
[2][3] In
determining whether a witness has properly invoked the privilege against self‑incrimination,
we apply Federal standards consistent with strict observance of the
constitutional protection. Commonwealth v. Funches,
379 Mass. 283, 289, 397 N.E.2d 1097 (1979), and cases cited. We have long held that a witness "may
refuse to testify unless it is ' "perfectly
clear, from a careful consideration of all the circumstances in the case,
that the witness is mistaken, and that the answer[s] cannot possibly have such tendency" to incriminate' "
(emphasis in original). Id., quoting Hoffman v. United States, 341 U.S. 479, 488, 71 S.Ct. 814, 819, 95 L.Ed. 1118
(1951). Although in general a defendant
must make a timely assertion of the privilege, see, e.g., Commonwealth v. Harvey, 397 Mass. 351, 357, 491 N.E.2d 607 (1986);
Walden v. Board of Registration in Nursing, 395 Mass. 263, 268, 479
N.E.2d 665 (1985), and must timely comply with statutory reporting or filing
requirements where these can be met without complete relinquishment of
constitutional rights, United States v.
Sullivan, 274 U.S. 259, 264, 47 S.Ct. 607, 608,
71 L.Ed. 1037 (1927), the defendant here was
confronted with a "real and appreciable" threat of incrimination and
thus was entitled to rely on the privilege against self‑incrimination,
even though he did not assert it in a timely‑filed accident report. Marchetti v. United
States, 390 U.S. 39, 48, 50‑51, 88 S.Ct.
697, 702, 703‑704, 19 L.Ed.2d 889 (1968).
See also Walden v. Board of
Registration in Nursing, supra 395 Mass. at 266, 479 N.E.2d 665. While criminal charges stemming from the
accident were pending against him, and where the information requested on the
accident report included, inter alia, the identity of
the operator, which was an essential element of the Commonwealth's case against
him, the furnishing of any information on the report would have constituted
"a link in the chain of evidence needed to prosecute."
Commonwealth v. Funches, supra 379 Mass.
at 289, 397 N.E.2d 1097, quoting Hoffman
v. United States, 341 U.S. 479, 486, 71 S.Ct.
814, 818, 95 L.Ed. 1118 (1951). The defendant therefore had an absolute right
to remain silent at least until the disposition of the criminal charges, and
his refusal to furnish an accident report cannot be deemed a waiver [404 Mass. 601] of his privilege against self‑incrimination; rather, his refusal was a justifiable
exercise of the privilege, as was his direct judicial challenge to the
reporting requirement.
For
substantially the same reasons, we conclude that, while a c. 90,§ 26, accident
report is in most cases nonincriminating and
primarily aimed at noncriminal, regulatory
governmental objectives (see California
v. Byers, 402 U.S. 424, 430‑431, 448, 91 S.Ct.
1535, 1539, 1548, 29 L.Ed.2d 9 [1971]; Commonwealth v. Joyce, 326 Mass. 751, 753‑754,
97 N.E.2d 192 [1951] ), where the authorities seeking to compel the defendant
to submit a report were the very authorities who had already instituted a
criminal prosecution against him, the defendant was clearly faced with a
"real [and] substantial danger that the evidence supplied" would
incriminate him. Commonwealth v. Joyce, supra at 756, 97
N.E.2d 192. Under the circumstances, any information provided by the
defendant on the report would tend to incriminate him; the threat of incrimination was not merely a
remote possibility or unlikely contingency, see id. at 754, 97 N.E.2d 192, but an actual and present danger,
against which the defendant was constitutionally protected.
The order
of the Appellate Division is affirmed.
So
ordered.
(FN1.) General Laws c. 90, § 26, provides, in
pertinent part: "Every person
operating a motor vehicle which is involved in an accident in which any person
is killed or injured or in which there is damage in excess of one thousand
dollars to any one vehicle or other property shall, within five days after such
accident, report in writing to the registrar on a form approved by him and send
a copy thereof to the police department having jurisdiction ... where such
accident occurred...."
(FN2.)
Since we decide that the defendant properly invoked his Fifth Amendment rights,
we need not discuss the protections of art. 12.
(FN3.)
In its decision, the Appellate Division noted that the schedule of assessments
promulgated by the Chief Justice of the District Court Department pursuant to G.L. c. 90C, § 3(A), sets a twenty‑five dollar fine
for failure to file a c. 90, § 26 accident report.