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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. Tart, 408
Supreme Judicial Court of Massachusetts, Essex.
Argued
Decided
Michael J. Traft,
S. Jane Haggerty, Asst. Dist. Atty., for Com.
Before LIACOS,
C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.
LIACOS, Chief Justice.
The
defendant, Wesley P. Tart, appeals from his conviction by a jury for landing
raw fish in the Commonwealth for the purpose of sale without a State commercial
fisherman permit. G.L. c. 130, § 80
(1988 ed.) The defendant asserts
various claims of error, each of which we address below. We affirm the conviction.
The jury
would have been warranted in finding the following facts. On
Five days
later, on November 23, 1986, Arena was again patrolling the Gloucester docks,
this time accompanied by Officer Ramsey of the environmental police and Officer
Carracho of the Gloucester police department, when he saw fish being unloaded
from the Jeromi at the J.B. Wright Fish Company. Arena approached to determine whether the
defendant had obtained a State fishing permit since the previous
encounter. In response to Arena's
request, the defendant told.Arena that he did not have a State fishing
permit. Arena arrested the defendant and
seized the fish on the Jeromi. The
defendant's case was set for a jury trial in Salem District Court.
Prior to
trial, the defendant filed a motion to dismiss the complaint against him and a
motion to suppress the statements made by him.
In support of his motions, the defendant filed memoranda of law claiming
that the requirement of a State fishing permit under G.L. c. 130, § 80, is
preempted by Federal law, and that the defendant's statements to Officer Arena
on November 23, 1986, were obtained in violation of rights guaranteed under the
Fourth and Fifth Amendments to the Constitution of the United States and art.
14 of the Massachusetts Declaration of Rights.
Both of the defendant's motions were denied. The case proceeded to trial on January 19 and
20, 1988. The jury found the defendant [408 Mass. 252] guilty of violating G.L. c. 130, § 80, and he was sentenced to
thirty days in a house of correction with seven days to be served and the
balance suspended for one year, and a fine of $50.
The
defendant filed a notice of appeal on January 20, 1988. A single justice of the Appeals Court granted
the defendant a stay of the execution of the sentence pending the resolution of
the defendant's appeal. We took the case
on our own motion.
The defendant
claims that the motion judge erred in denying his motion to suppress because
the evidence obtained from the November 23, 1986, encounter between the
defendant and Officer Arena was obtained as the result of an unjustified
warrantless search conducted on November 18, 1986. The defendant also argues that the
defendant's statements to Officer Arena on November 23, 1986, should have been
suppressed because Arena did not inform the defendant of his rights under Miranda v. Arizona, 384 U.S. 436, 477‑478,
86 S.Ct. 1602, 1629‑1630, 16 L.Ed.2d 694 (1966), prior to asking the
defendant whether he had obtained a State fishing permit. The defendant contends further that his
motion to dismiss should have been granted because the requirement of a State
fishing permit under G.L. c. 130, § 80, is preempted by Federal law. The defendant claims that his motion for a
required finding of not guilty was denied erroneously because the evidence
presented was insufficient to demonstrate a violation of G.L. c. 130, § 80.
The defendant also argues that various errors in the trial judge's
instructions to the jury require a reversal of his conviction. Finally, the defendant argues that, in the
circumstances of this case, his sentence should be vacated as improper and as
cruel and unusual punishment in violation of the Eighth Amendment to the United
States Constitution.
[1] 1. Motion to suppress. a. Warrantless search. The defendant claims that Arena's visit to
the Jeromi and his inquiry of the defendant on November 18, 1986, constituted
an impermissible warrantless search in violation of the Fourth Amendment and
art. 14. He argues that Officer Arena
had no right to conduct a search of the Jeromi on that date because[408 Mass. 253] Arena had no reasonable
cause to believe that any illegal activity was occurring or had occurred, and
lacked any statutory authority to conduct a search in such circumstances. The Commonwealth responds, in part, that no
Fourth Amendment or art. 14 concerns were implicated by Arena's visit on November
18, 1986, because Arena came aboard the Jeromi with the defendant's
consent. The motion judge made no
finding on the issue of consent. Thus,
without deciding whether the defendant's acquiescence to Arena's
request to come aboard the Jeromi on November 18, 1986, constituted consent
sufficient to alleviate any Fourth Amendment or art. 14 concerns, we conclude
that Arena's visit to the Jeromi was a permissible administrative search for
which no warrant was required. As such,
Arena's inquiry of the defendant on November 18, 1986, did not violate the
defendant's rights under either the Fourth Amendment or art. 14.
In Commonwealth v. Eagleton, 402 Mass.
199, 521 N.E.2d 1363 (1988), this court examined the requirements of the Fourth
Amendment in the context of a warrantless administrative inspection of an
automobile body shop. In that case, the
defendant owner of the body shop refused to allow police officers to inspect
his shop despite G.L. c. 140, § 67 (1986 ed.), which made it unlawful to hinder
an inspection of an automobile body shop or to fail to produce on demand
"all such motor vehicles, parts thereof, and books, papers and inventories
relating [to the shop]." The
defendant was convicted of violating G.L. c. 140, § 67, and for storing inflammable
fluids without a license in violation of G.L. c. 148, § 13 (1988 ed.). Id.
at 200‑201, 521 N.E.2d 1363.
Eagleton challenged his convictions on the ground that the police
officers' attempt to conduct a warrantless inspection of his auto shop was a violation
of the Fourth Amendment. Id. at 201‑202, 521 N.E.2d
1363. In response, this court applied
the analysis of the United States Supreme Court in New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601
(1987), and affirmed the convictions.
[2] In New York v. Burger, supra at 700, 107
S.Ct. at 2642, the United States Supreme Court stated that an individual's
expectation of privacy in commercial premises was "particularly
attenuated" [408 Mass. 254] when the premises were utilized in
the context of a "closely regulated" industry. Therefore, the Court reasoned, "the
warrant and probable‑cause requirements, which fulfill the traditional
Fourth Amendment standard of reasonableness for a government search ... have
lessened application in [the context of such premises]" (citation
omitted).
Id. at 702, 107 S.Ct. at 2643.
A warrantless administrative search of the commercial premises of a
"closely regulated" industry would be considered reasonable, and
therefore permissible, under the Fourth Amendment so long as three criteria are
met. First, the State must have a
"substantial" interest in the regulatory scheme pursuant to which the
administrative search is made.
"Second, the warrantless inspections must be 'necessary to further
[the] regulatory scheme.' " Id., quoting Donovan v. Dewey, 452 U.S. 594, 600, 101 S.Ct. 2534, 2538, 69
L.Ed.2d 262 (1981). "Finally, 'the
statute's inspection program, in terms of the certainty and regularity of its
application, [must] provid[e] a constitutionally adequate substitute for a
warrant.' " New York v. Burger, supra 482 U.S. at
703, 107 S.Ct. at 2644, quoting Donovan
v. Dewey, supra 452 U.S. at 603, 101 S.Ct. at 2540. See
Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 109 S.Ct. 1402,
1418, 103 L.Ed.2d 639 (1989); Commonwealth v. Blinn, 399 Mass. 126,
128, 503 N.E.2d 25 (1987).
During
oral argument before this court, the defendant conceded that the fishing
industry in the Commonwealth is "closely regulated." Therefore, for the purposes of our Fourth
Amendment analysis in the present case, we assume that the fishing industry in
Massachusetts is sufficiently "closely regulated" to trigger an
examination of the three criteria for a permissible warrantless administrative
inspection outlined in New York v.
Burger, supra. (FN2)
[3][4] It
is undisputed that the Commonwealth has a "substantial" interest in
the fishing industry. "The States
hold [fisheriess[408 Mass. 255]
in trust for the public; but they exercise not only the rights of sovereignty
... but also the right of property as to everything which remains in common for
all the people." Commonwealth v. Hilton, 174 Mass. 29, 31,
54 N.E. 362 (1899). General Laws c. 130,
with its focus on the regulation of fishing, including the determination of
size limits, appropriate fishing methods, and fishing seasons, serves to
protect the Commonwealth's substantial interest in maintaining the vitality of
the fishing industry in the Commonwealth.
We stated in Barlow v. Wareham,
401 Mass. 408, 413, 517 N.E.2d 146 (1988), that "the [G.L. c. 130,] § 80
permitting process is primarily intended to safeguard public health and ensure
the acceptability of Massachusetts fish and shellfish in interstate
commerce." We conclude that the
first criterion of Burger has been
met in the present case.
[5]
Additionally, we conclude that a warrantless administrative search to determine
the permit status of a fishing vessel which is landing raw fish in the
Commonwealth is "necessary to further [the] regulatory scheme [of c.
130]." New York v. Burger, supra 482 U.S. at
702, 107 S.Ct. at 2643, quoting Donovan
v. Dewey, supra 452 U.S. at 600, 101 S.Ct. at 2538. A permit for landing raw fish in the
Commonwealth is required of a person who lands raw fish, or is in the process
of landing raw fish, in the Commonwealth.
Due to the mobile nature of fishing vessels and the fact that a fishing
vessel might unload its catch in a relatively short period of time, the
opportunity to determine the permit status of a vessel necessarily is limited,
and the fishing vessel may well have left the docks and the Commonwealth's
waters by the time an officer was able to obtain a warrant. Indeed, those fishing vessels which lacked
the proper permit would have the greatest incentive to dock, unload their
catch, and return to sea as quickly as possible in order to escape the
possibility of a search pursuant to a warrant.
"[I]f inspection is to be effective and serve as a credible
deterrent, unannounced, even frequent, inspections are essential. In this context, the prerequisite of a
warrant could easily frustrate inspection." Donovan v. Dewey, supra at
603, 101 S.Ct. at 2540, quoting United States v. Biswell, 406 U.S. 311,
316, 92 S.Ct. 1593, 1596, 32 L.Ed.2d 87 (1972).
See Skinner v. Railway Labor [408 Mass. 256] Executives' Ass'n, supra 109 S.Ct. at 1416. Therefore, the option to conduct a
warrantless administrative inspection of a vessel landing raw fish in the
Commonwealth is crucial to the enforcement of the Commonwealth's regulatory scheme
regarding the fishing industry.
[6] We
consider whether G.L. c. 130, § 80, provides a "constitutionally adequate
substitute for a warrant." New York v. Burger, supra 482 U.S. at
711, 107 S.Ct. at 2648, quoting Donovan
v. Dewey, supra 452 U.S. at 603, 101 S.Ct. at 2540. We conclude that it does. General Laws c. 130, § 80, informs any
individual who lands raw fish in the Commonwealth that he may have demanded of
him a State permit. "Thus, the
[individual] knows that the inspections to which he is subject do not
constitute discretionary acts by a government official but are conducted
pursuant to statute." New York v. Burger, supra. Additionally, G.L. c. 130, § 80, puts a
fisherman on notice as to how to comply with the statute. A State permit must be obtained prior to
landing raw fish in the Commonwealth and must be surrendered on the demand of
an authorized person.
[7]
Finally, the time, place, and scope of the warrantless inspection are limited
sufficiently to "restrain the discretion of the inspectors" in their
exercise of warrantless inspections. Commonwealth v. Eagleton, supra 402 Mass.
at 205, 521 N.E.2d 1363. See New York v. Burger, supra 482 U.S. at
711, 107 S.Ct. at 2648. An
environmental police officer may not ask to see a vessel's permit to land raw
fish in the Commonwealth until that officer knows, or has reason to know, that
the vessel has landed, or is about to land, raw fish. The place of the inspection usually will be
the vessel when it is docked. The scope
of the inspection is clear and narrowly defined; its sole purpose is to determine whether the
vessel has a proper State permit.
Therefore, the discretion of the inspector is limited. See
Donovan v. Dewey, supra 452 U.S. at 600, 101 S.Ct. at 2539. The warrantless administrative search in the
present case did not violate the Fourth Amendment.
[8] This
court has not yet been squarely presented with the constitutionality of a
warrantless administrative inspection under art. 14. See
Commonwealth v. Eagleton, supra 402 Mass. at 202 n. 5, 521 N.E.2d
1363. However, we stated in a different
context that "[a] warrantless[408
Mass. 257] search conducted without consent, without
probable cause, and without exigent circumstances justifying the intrusion ...
but conducted pursuant to standard procedures, will have a greater chance of
meeting constitutional requirements than an ad hoc practice.... A search pursuant to standard procedures will
eliminate any element of discretion in the decision to conduct [a] ...
search." Commonwealth v. Ford, 394 Mass. 421, 427,
476 N.E.2d 560 (1985). We note that the
unique characteristics and mobility of the commercial vessel, the Jeromi,
present the possibility that a warrant requirement could frustrate the
Commonwealth's ability to enforce its regulation of the fishing industry.
[9][10]
The defendant here had clear notice that he was required to have a State permit
and that his vessel would be subject to inspections to determine his permit
status. See Commonwealth v. Blinn, supra 399 Mass. at 128, 503 N.E.2d 25. See also
Skinner v. Railway Labor Executives' Ass'n, supra 109 S.Ct. at 1415. A fisherman's expectation of privacy is not
unduly impinged upon by an environmental police officer's request to produce a
permit which by State law the fisherman is required to have. In these circumstances, we see no reason why
our analysis regarding the constitutionality of the warrantless inspection in
this case under art. 14 should differ from that under the Fourth
Amendment. (FN3) Article 14 does not prohibit a warrantless
administrative search to determine whether a fishing vessel has a State permit
to land raw fish in the Commonwealth.
Officer Arena's November 18, 1986, and November 23, 1986, inquiries of
the defendant were not prohibited by either the Fourth Amendment or art.
14. Accordingly, the defendant's
motion to suppress evidence obtained as a result of these visits appropriately
was denied.
b. Miranda warnings. The defendant alleges a separate error in
the denial of his motion to suppress evidence of his statements to Officer
Arena on November 23, 1986. The
defendant[408 Mass. 258]
claims that Arena's inquiry of the defendant on that date was a
"custodial interrogation," and required Arena to inform the defendant
of his Miranda rights before asking the defendant whether he had obtained a
State fishing permit. The defendant
argues that Arena's failure to do so required the judge to suppress any
subsequent statements made by the defendant to Arena.
[11][12]
"Miranda warnings are only necessary for 'custodial interrogations.'
"
Commonwealth v. Bryant, 390 Mass. 729, 736, 459 N.E.2d 792
(1984). The defendant places particular
emphasis on the fact that Officer Arena testified that, as he approached the
Jeromi, he intended to arrest the defendant if he did not produce a State
fishing permit. "The [United
States] Supreme Court has never endorsed a subjective standard of 'custody,'
and other courts have explicitly rejected such a test. 'Although the officer may have an intent to make
an arrest, either formed prior to, or during the questioning, this is not a
factor in determining whether there is present "in‑custody"
questioning. It is the officer's
statements and acts, the attending circumstances, gauged by a "reasonable
man" test, which are determinative.' Lowe v. United States, 407 F.2d 1391,
1397 (9th Cir.1969). United States v. Booth, 669 F.2d 1231,
1235 (9th Cir.1981). We likewise adhere
to an objective standard." Commonwealth v. Shine, 398 Mass. 641,
648, 500 N.E.2d 1299 (1986), quoting
Commonwealth v. Bryant, supra 390 Mass. at 739 n. 11, 459 N.E.2d 792.
[13] An
important factor to be considered in the determination whether the defendant
reasonably could have been considered to be in custody is the place of the
interrogation. Commonwealth v. Bryant, supra at 737, 459
N.E.2d 792. In the present case, the
defendant was questioned on board his own fishing vessel, surrounded by his
employees. See Commonwealth v. Accaputo, 380 Mass. 435, 452, 404 N.E.2d 1204
(1980). "Questioning in such an
environment is far removed from the 'incommunicado interrogation of individuals
in a police‑dominated atmosphere' for which the Miranda protections were
tailored." Commonwealth v. Bryant, supra 390 Mass.
at 737, 459 N.E.2d 792. Furthermore,
the questioning of the defendant was extremely brief; only one question was [408 Mass. 259]
asked. There is no testimony to suggest
that the questioning was conducted in an aggressive manner. See id.
at 737‑738, 459 N.E.2d 792. While
it is true that the defendant was clearly the focus of Officer Arena's inquiry
whether unlicensed activity was taking place, " '[f]ocus' alone does not
trigger the need for Miranda
warnings." Commonwealth v. Valliere, 366 Mass. 479,
486, 321 N.E.2d 625 (1974).
Based on a
consideration of the facts of this case and the factors we have just described,
we will not say that the trial judge erred in concluding that Officer Arena's
questioning of the defendant on November 23, 1986, did not constitute
"custodial interrogation."
Accordingly, the defendant's motion to suppress his statements for a
failure to give Miranda warnings was denied appropriately.
[14] 2. Federal preemption. Prior to his trial, the defendant filed a
motion to dismiss the complaint against him, arguing that the permit
requirement of G.L. c. 130, § 80, was preempted by 46 U.S.C. App. § 122
(1982). (FN4) The judge denied the motion. The defendant claims error. In support of his argument the defendant
directs our attention to: (1) the fact that
the defendant held a valid Federal fishing permit at the time of his
arrest; (2) the undisputed testimony
that the fish which the defendant held in his boat on November 23, 1986, were
caught in Federal waters, and; (3) the
defendant's testimony [408 Mass. 260] and the testimony of the vice
president of the J.B. Wright Fish Company that the defendant had requested that
his catch be sold outside Massachusetts.
Section
122 of 46 U.S.C. App. states that "[n]o vessel belonging to any citizen of
the United States, trading from one port within the United States to another
port within the United States, or employed in the bank, whale, or other
fisheries, shall be subject to tonnage tax or duty, if such vessel be licensed,
registered, or enrolled." A
"tonnage tax or duty" is defined as a "charge for the privilege
of entering, or trading or lying in, a port or harbor."
Transportation Co. v. Parkersburg, 107 U.S. 691, 696, 2 S.Ct. 732,
736, 27 L.Ed. 584 (1882). The defendant
argues that, because the fish he caught were taken outside the Commonwealth's
waters and were to be sold outside the Commonwealth's boundaries, the State
permit requirement is akin to a tax or duty for the privilege of passing his
catch through the Commonwealth. As such,
he argues, the permit requirement is prohibited. See
Toomer v. Witsell, 334 U.S. 385, 403‑406, 68 S.Ct. 1156, 1165‑1167,
92 L.Ed. 1460 (1948) (South Carolina statute requiring that shrimp boats fishing
off the coast of South Carolina dock in South Carolina and pay "stamp
tax" before shipping shrimp to another State held to be impermissible
burden of interstate commerce in violation of art. I, § 8, of United States
Constitution).
[15] We
are of the opinion that the State permit requirement in this case was directed
at protecting the State's interest in its fisheries and did not operate as
either a tonnage duty or tax. Therefore,
the bar of 46 U.S.C. App. § 122 does not apply to the State permit requirement
involved in this case. The permit
requirement serves to promote the enforcement of the State's regulation of the
fishing industry. This requirement
serves the State's substantial interests in conserving its fisheries,
safeguarding public health, and ensuring the acceptability of Massachusetts
fish and shellfish in interstate commerce.
The parties do not dispute that the State's police power extends to
these interests. See, e.g., Bayside Fish Flour Co. v. Gentry, 297
U.S. 422, 426, 56 S.Ct. 513, 515, 80 L.Ed. 772 (1936) (State statute limiting
manufacture of flour from sardines in State regardless of origin of [408 Mass. 261] sardines is "well within" police power of State to
conserve its sardine fishery). The fact
that the permit requirement may have some marginal effect on interstate
commerce through the imposition of a fee to obtain a State fishing permit does
not require its invalidation in the face of the legitimate exercise of the
State's police power. "If the
enforcement of the act affects interstate or foreign commerce, that result is
purely incidental, indirect, and beyond the purposes of the legislation." Id.
Even if we
accept the defendant's contention that he caught the fish at issue in this case
in Federal waters and that he intended to have the fish sold outside the
Commonwealth, these facts do not require us to conclude that the State's
exercise of its police power over the landing of fish is precluded. (FN5)
Officer Arena was not in a position to determine whether the fish had
been caught in the waters of the Commonwealth or in Federal waters, or in
both. While the defendant testified that
all the fish were caught in Federal waters, the enforcement of the permit
program and its concomitant effect on the enforcement of the State's fishing
regulations would be weakened dramatically if fishermen could avoid the permit
requirement on the basis of their affirmation that their catch had not been
taken in State waters. The State's
permitting scheme would be rendered virtually ineffective in such a situation. "[T]o the extent that the act deals with
the use or treatment of fish brought into the state from the outside, its legal
justification rests upon the ground that it operates as a shield against the
covert depletion of the local supply, and thus tends to effectuate the policy
of the law by rendering evasion of it less easy." Id. at 426, 56 S.Ct. at
515. The requirement that the defendant
obtain a State fishing permit [408
Mass. 262] to land raw fish in the
Commonwealth is not prohibited by 46 U.S.C. App. § 122. (FN6)
[16] 3. Sufficiency of the evidence. At the close of the Commonwealth's case
against him, the defendant moved for a required finding of not guilty. This motion was denied. The defendant claims error. In reviewing the denial of a motion for a required finding of not guilty, "the
question is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt" (emphasis in original). Commonwealth v. Merola, 405
Mass. 529, 533, 542 N.E.2d 249 (1989), quoting Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370
(1979). In the present case, the
Commonwealth had to present evidence sufficient to allow the jury to conclude
beyond a reasonable doubt that: (1) the
defendant landed raw fish in the Commonwealth;
(2) for the purpose of sale; (3)
without a valid State permit. See G.L.
c. 130, § 80. The defendant does not
dispute that he lacked a proper State permit.
He does claim, however, that the Commonwealth failed to establish that
he landed raw fish in the Commonwealth or, in the alternative, that the landing
of any fish was for the purpose of sale.
[17] In
the context of the regulations of the division of marine fisheries, to
"[l]and" is defined as "to transfer the catch of fish or
shellfish from any vessel to any other vessel or onto any land, pier, wharf,
dock or other artificial structure."
322 Code Mass.Regs. § 7.01(1) (1989).
Officer Arena testified that on November 23, 1986, he observed a large bucket
loaded with raw fish being hoisted from the Jeromi onto the [408 Mass. 263] dock of
the J.B. Wright Fish Company. Officer
Arena estimated that the bucket contained approximately one hundred pounds of
fish. This testimony allowed the jury to
conclude beyond a reasonable doubt that the defendant had "landed"
raw fish in the Commonwealth.
[18]
Regarding the issue whether the fish had been landed in the Commonwealth
"for the purpose of sale," the Commonwealth presented the testimony
of Brian Wright, the vice president of the J.B. Wright Fish Company, that the
defendant previously had discussed with Wright the possibility of selling the
catch of November 23, 1986, through the J.B. Wright Fish Company. This testimony, coupled with testimony that
the defendant earned his living through fishing and that on November 23, 1986,
the defendant began to unload his catch on the dock of a wholesale fish
company, entitled the jury to conclude beyond a reasonable doubt that the
defendant landed his catch for the purpose of sale.
[19] The
defendant argues that a violation of G.L. c. 130, § 80, cannot be found unless
a sale of the raw fish is completed
at the time the fish are landed. We see
no reason to adopt such an interpretation of G.L. c. 130, § 80.
"[S]tatutory
language, when clear and unambiguous, must be given its ordinary meaning."
Bronstein v. Prudential Ins. Co., 390 Mass. 701, 704, 459 N.E.2d 772
(1984). See Hashimi v. Kalil, 388 Mass. 607, 610, 446 N.E.2d 1387 (1983). General Laws c. 130, § 80, refers to the
landing of raw fish in the Commonwealth for "the purpose of
sale." Webster's New Int'l
Dictionary 2018 (2d ed. 1959), defines "purpose" as "[t]hat
which one sets before himself as an object to be attained; the end or aim to be kept in
view in any plan, measure, exertion or operation " (emphasis
added). By using the phrase "for
the purpose of sale," the Legislature intended that G.L. c. 130, § 80,
apply not only to situations in which the sale of landed fish had been
completed, but also to situations in which fish not yet sold had been landed as
part of a process whereby the fish eventually would be sold by the person who
had landed them. To adopt the
interpretation of G.L. c. 130, § 80, suggested by the defendant would be to
allow unlicensed fishermen to [408
Mass. 264] evade the penalties of
G.L. c. 130, § 80, merely by postponing the sale of their catch. Such an approach clearly would be
inconsistent with the Legislature's interest in seeing the regulatory scheme of
c. 130 enforced. The defendant's motion
for a required finding of not guilty appropriately was denied.
4. Jury instructions. The defendant claims that the judge's
instructions to the jury were erroneous in several respects. First, the defendant argues that the judge
erred in failing to instruct the jury that the Commonwealth must prove that the
defendant intended to violate G.L. c. 130, § 80. The defendant also claims that the judge's instructions
improperly placed the burden of proof on the defendant to prove that he had a
permit, thereby relieving the Commonwealth of its burden to prove every element
of the crime beyond a reasonable doubt.
(FN7)
[20]
"[L]egislatures generally have broad power to define and limit the mens
rea element of criminal offenses." Simon v. Solomon, 385 Mass. 91, 103, 431
N.E.2d 556 (1982). "[T]he
Legislature may make criminal an act or omission even where the person
responsible has no 'blameworthy condition of the mind.' "
Commonwealth v. Buckley, 354 Mass. 508, 511, 238 N.E.2d 335
(1968). These types of offenses have
been described as "public welfare offenses." Commonwealth v. Murphy, 342
Mass. 393, 397, 173 N.E.2d 630 (1961).
"[Public welfare offenses] are often offences [408 Mass. 265] where
the punishment is by 'penalties commonly ... relatively small' and where
'conviction does no grave damage to an offender's reputation.' "
Commonwealth v. Buckley, supra 354 Mass. at 511, 238 N.E.2d 335,
quoting Morissette v. United States,
342 U.S. 246, 256‑258, 72 S.Ct. 240, 246‑247, 96 L.Ed. 288 (1952). It is our opinion that a violation of G.L. c.
130, § 80, is defined properly as a "public welfare offense," and
therefore may be punished without proof of an intention to violate.
[21]
General Laws c. 130, § 80, is "primarily intended to safeguard public
health." Barlow v. Wareham, 401 Mass. 408, 413,
517 N.E.2d 146 (1988). The maximum
penalties for a violation of G.L. c. 130, § 80, imprisonment for thirty days
and a $50 fine, are "relatively small." Compare
Commonwealth v. Jackson, 369 Mass. 904, 917, 344 N.E.2d 166 (1976) (one‑year
sentence for "public welfare offense" of failure to obtain firearm
license upheld despite "absence of knowledge as to the existence of a
license"). Cf. Commonwealth v. Buckley, supra 354 Mass. at 511‑512, 238
N.E.2d 335 (imposition of five‑year prison sentence described as
"severe penalty"). Finally, we
are of the opinion that a conviction for a failure to obtain a State fishing
permit is not likely to do "grave damage to [the defendant's]
reputation." Commonwealth v. Buckley, supra at 511,
238 N.E.2d 335. Based on our
consideration of the Buckley factors,
we conclude that the Legislature was entitled to allow for a conviction under
G.L. c. 130, § 80, without proof that the defendant intended to violate the
statute. Therefore, the judge's failure
to instruct the jury regarding the defendant's intent was not error.
[22] The
defendant claims that the judge improperly shifted the burden of proof as to
the existence of a State fishing permit from the Commonwealth to the defendant
by instructing the jury that, "until it is proven, you can draw an
inference that the license or permit does not exist." We note that the defendant raised no
objection to this instruction at the time it was given. See Mass.R.Crim.P. 24(b), 378 Mass. 895
(1979). Therefore, we review the charge
as a whole to determine whether it created a "substantial risk of a
miscarriage of justice." Commonwealth v. Pickles, 393 Mass. 775,
776, 473 N.E.2d 694 (1985).
[408 Mass. 266] Prior to the challenged instruction, the judge properly
instructed the jury regarding the Commonwealth's burden of proof: "Under our law a Defendant is presumed
by law to be innocent. Under our law it
doesn't require a Defendant to prove his innocence, nor does it require him to
produce any evidence at all. It's the
Commonwealth's responsibility to prove him guilty beyond a
reasonable doubt of each and every element of the crime in which he's charged,
otherwise you have to acquit him."
In addition, immediately after the judge issued the instruction to which
the defendant now objects, the judge told the jury that "it has to be
proved to you beyond a reasonable doubt that that person did not have a
commercial license to fish."
Therefore, the judge bracketed the challenged instruction with proper
statements of the law regarding the Commonwealth's burden of proof.
Furthermore,
there was sufficient evidence from which the jury could have concluded that the
Commonwealth met its burden to prove beyond a reasonable doubt that the
defendant did not have a State permit on the day he was arrested. Officer Arena testified that, when asked, the
defendant failed to produce a State permit.
Arena also testified that the defendant told Arena that he did not have
a State permit. The defendant made no
attempt to rebut these aspects of Arena's testimony. In the circumstances of this case, we
perceive no substantial risk of a miscarriage of justice due to the challenged
instruction.
[23] 5. Sentencing. The defendant claims that the sentence
imposed on him by the judge was "particularly harsh" and was
motivated by a desire on the part of the judge to punish the defendant for
exercising his right to a trial. We note
that there is nothing in the record to indicate that the defendant objected to
the sentence or that he filed a motion to revise or revoke the sentence
imposed. See Mass.R.Crim.P. 29(a), 378
Mass. 899 (1979). Aside from his bald
assertion that the judge acted improperly, the defendant presents nothing to
support his allegation. Based on our
review of the record in this case, we conclude that the defendant's claim in
this regard is without merit.
[408 Mass. 267] [24] The defendant also claims that the sentence imposed on him
constituted cruel and unusual punishment in violation of the Eighth Amendment
to the United States Constitution. We
disagree.
"This
court has recognized that it is possible that imprisonment for a long term of
years might be so disproportionate to the offense as to constitute cruel and
unusual punishment." Commonwealth v. Sanchez, 405 Mass. 369,
379, 540 N.E.2d 1316 (1989), quoting
Cepulonis v. Commonwealth, 384 Mass. 495, 496 & n. 2, 427 N.E.2d 17
(1981), appeal dismissed, 455 U.S. 931, 102 S.Ct. 1416, 71 L.Ed.2d 640
(1982). To constitute cruel and unusual
punishment, a sentence must be "so disproportionate to the crime that 'it
shocks the conscience and offends fundamental notions of human dignity.' "
Commonwealth v. Jackson, 369 Mass. 904, 910, 344 N.E.2d 166 (1976),
quoting In re Lynch, 8 Cal.3d 410,
424, 105 Cal.Rptr. 217, 503 P.2d 921 (1972).
The
defendant appears to rest his argument in this regard on the theory that,
"[a]bsent a showing of repeated and deliberate violations of [G.L. c. 130,
§ 80], imposition of a jail sentence is cruel and unusual
punishment." This argument must
fail. The notion that no jail sentence can be imposed in the
absence of multiple violations of G.L. c. 130, § 80, suggests that the
interests protected by the enforcement of G.L. c. 130, § 80, are so trivial that
we should allow each member of the fishing industry one "free"
violation. Our earlier discussion of the
Commonwealth's "substantial" interests in regulating its fisheries
makes it clear that this is not the case.
The
imposition of a thirty‑day jail sentence, of which twenty‑three
days were suspended, is not so disproportionate to the offense charged in this
case that it "shocks the conscience." This is particularly so when, five days
prior to his arrest for the violation of G.L. c. 130, § 80, the defendant had
been instructed by an environmental police officer that he was required to have
a State fishing permit. The sentence in
this case does not constitute cruel and unusual punishment.
[408 Mass. 268] 6. Conclusion. We perceive no error requiring a new trial
or the reversal of the defendant's conviction.
The conviction is affirmed.
Judgment affirmed.
(FN1.) A check for the fish issued by the J.B.
Wright Fish Company was held in escrow by the department pending disposition of
the complaint against the defendant.
(FN2.)
We note that in New York v. Burger,
supra, the United States Supreme Court stated that the proper focus in
determining whether a particular industry is "closely regulated" is
on whether the regulatory presence is "sufficiently comprehensive and
defined that the owner of commercial property cannot help but be aware that his
property will be subject to periodic inspections undertaken for specific
purposes." Id. 482 U.S. at 703, 107 S.Ct. at 2644,
quoting Donovan v. Dewey, supra 452
U.S. at 600, 101 S.Ct. at 2538.
(FN3.)
We express no opinion whether art. 14 would require more stringent standards
for a warrantlesss administrative inspection which involved more than a request
to produce a State permit.
(FN4.) "The Supremacy Clause of Art. VI
of the Constitution provides Congress with the power to pre‑empt state
law. Pre‑emption occurs when
Congress, in enacting a federal statute, expresses a clear intent to pre‑empt
state law, Jones v. Rath Packing Co.,
430 U.S. 519 [97 S.Ct. 1305, 51 L.Ed.2d 604] (1977), when there is outright or
actual conflict between federal and state law, e.g., Free v. Bland, 369 U.S. 663 [82 S.Ct. 1089, 8 L.Ed.2d 180]
(1962), where compliance with both federal and state law is in effect
physically impossible, Florida Lime &
Avocado Growers, Inc. v. Paul, 378 [373] U.S. 132 [83 S.Ct. 1210, 10
L.Ed.2d 248] (1963), where there is implicit in federal law a barrier to state
regulation, Shaw v. Delta Air Lines,
Inc., 463 U.S. 85 [103 S.Ct. 2890, 77 L.Ed.2d 490] (1983), where Congress
has legislated comprehensively, thus occupying an entire field of regulation
and leaving no room for the States to supplement federal law, Rice v. Santa Fe Elevator Corp., 331
U.S. 218 [67 S.Ct. 1146, 91 L.Ed. 1447] (1947), or where the state law stands
as an obstacle to the accomplishment and execution of the full objectives of
Congress.
Hines v. Davidowitz, 312 U.S. 52 [61 S.Ct. 399, 85 L.Ed. 581]
(1941)." Louisiana Pub. Serv. Comm'n v. FCC, 476
U.S. 355, 368‑369, 106 S.Ct. 1890, 1898‑1899, 90 L.Ed.2d 369
(1986).
(FN5.) While the defendant claims that the
fish were to be sold outside the Commonwealth, there was testimony that the
defendant had not yet contractually bound himself to a sale outside the
Commonwealth and that he remained free to change his mind as to this
arrangement. Therefore, at the time
Officer Arena arrived at the Jeromi on November 23, 1986, he would not have
been able to determine conclusively that the fish would not be sold in the
Commonwealth.
(FN6.) In his brief to this court, the
defendant appears to argue that other Federal laws in addition to 46 U.S.C.App.
§ 122 preempt the permit requirement of G.L. c. 130, § 80. See, e.g.,
Bateman v. Gardner, 716 F.Supp. 595 (S.D.Fla.1989) (State enforcement of
shrimp fishing regulations preempted by 50 C.F.R. § 658); State v. Lauriat, 561 A.2d
496 (Me.1989) (State enforcement of lobster fishing regulation preempted by 16
U.S.C. §§ 1801‑1882). However, in
his motion to dismiss, the defendant raised only the issue of the preemptive
force of 46 U.S.C.App. § 122. We will
not address the preemptive effect of those Federal laws raised by the defendant
for the first time on appeal.
(FN7.) The defendant also challenges two other
aspects of the judge's instructions to the jury. The defendant claims that the judge erred in
instructing the jury that the "purpose of sale" element of G.L. c.
130,§ 80, could be proven by a showing that the sale process had merely begun
rather than been completed. Our
discussion in part 3 of this opinion,supra,
makes unnecessary any further elaboration on this issue. The judge's instruction was proper.
The
defendant also claims that the judge erred by instructing the jury that either
the defendant or his employees could have "landed" the fish without
also instructing the jury that the Commonwealth was required to prove that the
defendant authorized his employees' actions.
The defendant, however, cites no authority for his argument, which is
presented in one sentence. The
defendant's brief statement regarding this issue does not rise to the level of
appellate argument and will not be considered in this opinion. See Mass.R.A.P. 16(a)(4), as amended, 367
Mass. 921 (1975).