*1
Cоmmonwealth D. vs. Winter March —June 11, 14, 1988. 1988. Hampshire. Hennessey, Lynch, & C.J.,
Present: JJ. Abrams, Wilkins, Liacos, Nolan, O’Connor, Limitations, Law, Rape. Assault with to Intent Statute Constitutional Ex of. Law, Statute, post facto law. Due Process Retrospective statute. Construction, Retrospective statute. 277, 63, Statute which G. L. extending c. amended c. by period governed of limitations for the crimes many by including intent years assault with six to rape, years, from ten effective on 30, 1985, September on applied defendant’s indictment March 18, 1987, charging three assault rape, counts of with intent to based on November, 1979, occurring acts in allegedly January, April, against did not violate the protections post ex facto laws found 1, 9,§ art. Federal Constitution art. 24 of the Declaration Constitution; Rights of Massachusetts nor did the extension of six-year statute of limitations violate the due process defendant’s rights. [590-591] 277, 63,§ Statute which G. L. by extending period of governed by including those crimes assault rape, years, with intent from six to ten on September 30, 1985, a date within six alleged of defendant’s commission acts, of criminal was held to be a remedial and enactment procedural and, was consequently, appliedretrospectively to an indictment on March 18, 1987, chаrging the defendant three with with counts of assault November, rape occurring on acts allegedly January, based J., dissenting, 1980. April, with whom [591-594] Liacos, C.J., J., & join. Hennessey, Wilkins, found Indictment and returned Court De- Superior on March partment 1987. John F. Moriarty, J.,
A motion to "dismiss was heard the case him to the Court. The reported by Appeals Judicial Court for direct review. granted Supreme request William Newman C. for the defendant. *2 (Charles K.
Howard I. Assistant District Sajford, Attorney him) Assistant District with for the Com- Attorney, Stephenson, monwealth. March J. The defendant was indicted on
Nolan, to G. on three counts of assault with intent rape. (1986 ed.).
§ 24 The indictment that the offenses oc- alleged November, (count 1), 2), (count curred in 1979 1980 January, to one (count 3). Assault with intent April, rape the the statute of limitations set crimes many governed by ed.). the of the (1986 forth G. L. On dates offenses, of limitations. § 63 a alleged six-year provided period However, of St. force July, 30, 1985, amended, the was September period crimes extended from six of limitations these This effective on ten amendment became years. September 30, 1985, six of the commission alleged a date within the the of the indictment and of the crimes. To contest vitality indictment, the the amendment of applicability a The issue was dеfendant filed motion dismiss. reported 34, 378 Mass. R. Crim. P. to the Court pursuant Appeals defendant’s Mass. 905 We application granted direct review. appellate
The defendant challenges (1) limitations on two fronts: constitutional jurispru- statute of dence; statutory interpretation. 9,§ art. of the United
1. Constitutional attack. In both art. 24 the Declaration of Rights States Constitution Constitution, from there found protection the Massachusetts laws. The classical of ex facto exposition operation post case an ex facto law found post primordial Bull, (3 Dall.) (1798): Every “1st. U.S. Calder law, an action done before law that makes passing done, criminal; and when and which was innocent punishes crime, or makes 2d. law that aggravates such action. Every was, 3d. law than it when committed. Every it greater punishment, and inflicts greater changes punishment, crime, 4th. Every when committed. than the law annexed to less, evidence, and receives rules of law that alters legal different, than the law at the time of testimony, required ” offence, the commission of the in order to convict offender. (Emphasis original.)
It seems clear that the extension of the statute of falls into none of these It categories. extends the time simply within which the government may Courts have been prosecute. uniform in this view. consistently United States ex adopting Elrod, rel. Massarella v. (7th 682 F.2d 1982). Cir. States, Falter v. United 23 F.2d (2d 425-426 1928). Cir. The defendant seeks to enlist the of United States v. support Richardson, 512 F.2d (3d 1975), Cir. but it fails to deliver. *3 Richardson was decided on a entirely divining congressional intent and not on Federal fact, constitutional In grounds. court there conceded that had the to extend Congress power the statute of limitations without the ex facto violating post clause.
As to the Constitution, Massachusetts no case has been dis- covered which the ex facto applies of art. 24 post provision to the extension limitations, of a statute of but Commonwealth 557, Greenberg, 339 Mass. (1959), 578-579 is instructive. Greenberg, Commonwealth introduced documentary evidence against 233, 78, defendants force of § G. L. c. the so-called business record to the rule. At exception hearsay the time crimes, of the § alleged 78 was applicable only civil trial, cases. Before it was amended to become applicable cases, to criminal a virtual boon to the of the defendants in The court had no Greenberg. difficulty holding that the amendment because it related operаted retrospectively “to the merely which do not remedy affect such procedure substantive Id. rights.” at 578. The same can be said for the § amendment to 63 in the case. present The defendant’s cause is advanced no further under the ban- and, ner of due process he quite cites no au- understandably, for thority the extension of the deciding statute of limita- tions in these circumstances violates his due process rights.
2. Statutory The interpretation. defendant that the argues did not intend the 1985 amendment to operate He finds retrospectively. so he support, argues, express 63, of an earlier language 1955, 781, 2, § amendment to § St. c. Commonwealth whereas, where the retroactivity, provided 123, However, 1985, it St. c. such should language missing. 1955, 781, that the thrust of c. was the be noted St. principal c. extension time of St. рeriod. purpose new the list of addition of crimes to those simply which carried statute of limitations. ten-year Significantly, child, crimes (1986 § added G. c. 22A L. rape L. c. ed.), (G. ed.]), § and abuse of child rape [1986 24) (G. with intent commit assault rape (G. L. c. assault on child with intent to commit rape ed.]). § 24B All but one of the crimes in this case [1986 Furthermore, have concern sexual abuse of children. we ap- of statutes which contain no proved retrospective application Green- See their calling retrospective application. (St. L. berg, supra 578-579 G. amending no contained language directing retrospective application).
A canvass of
reveals a
cases throughout
country
hopeless
Some States
among
jurisdictions.
categorically
split
statute of limitations to offenses nоt
time-
already
subsequent
becomes effective.1
barred when
new statute
*4
Smith,
1 See,
(1985)
People
App.
(prosecution
v.
e.g.,
171 Cal.
3d 997
timely based on
extension of statute of limitations where each
was
double
run);
had
then-applicable
period
was effective before
limitations
extension
Whitesell,
(Colo. 1986) (amendment extending
v.
People
In other intent crucial as to is jurisdictions, legislative whether the amended statute of limitations should retros in some courts have Finally, jurisdictions, pеctively.2 declared that the statute limitations substantive simply and, hence, may operate only prospectively.3
It be that the may argued Legislature recognized delays associated with a child’s commonly understandably report of sexual abuse and wished to accommodate such delays by an extension of the statute of It limitations. makes sense good for the to consider one what increasingly — our the sexual abuse of children. great scourges society haveWe to consider the evil which is right targeted precise Collett, under review. See Commonwealth legislation 387 Mass. it is not reasonable Accordingly, to assume that the intended to delay new statute of limitations which would eventuate ten-year if the amendment to crimes after occurring its applied only enactmеnt.
could be indicted
than one year
more
but less than three
after offense
where statute
of limitations was extended to three
expiration
before
limitations);
(1987)
first statute
Hodgson,
State v.
and the to dismiss should be denied. motion
So ordered. C.J., and J. with whom (dissenting, Hennessey, Liacos, Wilkins, J., For first time this history join). Commonwealth, court effect to a today gives this, The court criminal statute of limitations. does contrаry in so the court aligns intent of Legislature; doing, addressed us with a small our sister States who have group the issue. rule, unless a
“As
statutes
general
operate prospectively
v.
shown. Yates General
contrary legislative
clearly
(1969).
356 Mass.
Welch
Corp.,
Motors Acceptance
Taunton,
(1962).”
Nantucket
v.
Mass.
Mayor of
Inc.,
Found., Inc. v. Russell
Management,
Conservation
212, 214
(1980). It is a fundamental
Mass.
precept
government
are
construed against
statutes
strictly
Clinton,
374 Mass.
See Commonwealth
favor
accused.
Moreover, “criminal
limitations statutes
”
United States
‘to be
in favor
repose.’
liberally interpreted
States
(1968),
U.S.
United
Habig,
quoting
Scharton,
(1932).1 In the absence
any
285 U.S.
States,
(1970), Justice
1 In Toussie v. United
U.S.
114-115
deciding
“In
principle:
the reasons for such
Black stated for the Court
given
consid
to run in a
case several
begins
when the statute of limitations
is to limit
of a statute of limitations
guide
purpose
decision.
erations
our
*6
reason to override the stated above. presumptions “ The court states: is not reasonable to assume that the [I]t intended to Legislature of the new delay ten-year statute of Ante at No 593. [G. 63].” for this explanation given statement. On conclusory reasonable conclusion is that the contrary, only intended In the prospective application. past thirty-five years, G. L. c. has been amended three times: once only issue; an amendment not in once in the amend- case; ment at issue in this and once in Statute 1955. “Section 1. Section 63 of provided: chapter Laws,
of the General Edition, appearing Tercentenary amended after the hereby first sentence the by inserting — sentence: An indictment following for the crime or crimes seventeen, set forth in sections nineteen and eighteen, twenty- one of two hundred and or chapter for sixty-five, conspiracy crimes, to commit thereto, such crime or or as accessory one or more of them any be found and may filed within ten of the date of commission оf said crime or crimes. Section 2. The second sentence section sixty-three two chapter Laws, hundred and seventy-seven General as appearing act, in section one this shall indictments such for crimes committed within the six next to the date this act as well as (emphasis supplied). thereafter” Thus, when the which, this statute in its 1955 enactment specifically provided retroactivity, it did not repeat providing applica- tion of amendment, the amendment. The 1985 and the legisla- tive amendment, history accompanying silent on the issue of silence, This retroactivity. statute’s light pre- exposure to criminal to a certain fixed period following of time the occurrence of those acts the legislature has decided punish by sanctions. Such a limitation designed to protect having individuals from to defend against charges themselves when may the basic facts have become obscured the passage of time and danger to minimize the of official punishment because of acts in the past. far-distant Such a time may limit also salutary have the effect of encouraging law enforcement officials promptly investigate suspected criminal activity.” *7 of volumes. It
vious retroactivity, speaks explicit that, did not so to assume because they far more “reasonable” did not want the 1985 amendment the Legislature provide, retroactively. operate
Furthermore, clear, knows it is that the Legislature generally, retroactive when it wants it to how to make a statute operate In addition to the of langauge retroactivity in that way. explicit 277, 63, § L. c. the Legislature amendment to G. for a retroactive with regard has provided explicitly Indeed, statutes.2 when the Legislature to other criminal 1964, 308, dealing 13 of St. c. following examples: the Section 2See children, by delinquent committed children and crimes delinquent with first, 22, 1964, July act shall take effect on provides: “This approved April any person apply and its shall sixty-four; provisions nineteen hundred and who, an have committed offense birthday, tо his seventeenth shall prior city or town or violated a ordinance the law of the commonwealth against prior to or sub- or violation was committed by-law, whether such offense (emphasis supplied). the date this act” sequent to of 293, 1972, sentencing of with indeterminate dealing of St. c. Section 6 18, 1972, act of this provisions “The May provides: prisoners, approved seven- under sections imposеd sentences for misdemeanors shall to all teen, two hundred thirty-three chapter eighteen, thirty-two, hundred January first, nineteen the Laws on or seventy-nine of General after seventy” (emphasis supplied). firearms, 1976, 34, licensing dealing c. with Section 2 of St. 30,1976, January take effect as provides: “This act shall March approved first, inoperative on seventy-six, and shall become hundred and nineteen first, seventy-seven.” nineteen hundred January firearms, 411, licensing dealing with 2 of St. c. Section 29, 1981, as of take effect “This act shall provides: September approved first, operative shall cease to be eighty-one, and nineteen hundred and July first, eighty-two.” hundred and January nineteen on Mass. Commonwealth v. Bargeron. 269, §
amended G. L. c. and a amendment a clause 1976 contained providing retroactivity, enacted new also for retroac- Legislature provision allowing G. as § St. tivity. Compare context, with 2. St. In this omission amendment retroactivity language amendment), to G. L. c. with (as the 1955 compared ais that did indication not intend compelling be 1985 amendment to retroactive. states, views, also court justification its was concerned with “one great scourges *8 — our the sexual abuse of children.” Ante at 593. society concerned, was so and so. Obviously, properly But court’s conclusion is a classic non While I sequitur. that a agree crime, child abuse is terrible the fact tragic that the the statute of Legislature lengthened crimes of that nature has no on the bearing retroactivity of the statute. when the nonretroactivity Normally, concerned with it will keenly invoke remedying problem, clause, emergency thereby making legislation rather than No immediately, ninety days. emergency provi- sion was attached to this amendment. Nor did the Legislature utilize its the statute ret- prior technique making explicitly roactive. date,
To no case in this Commonwealth has retroactive given effect to a criminal statute of limitations. The case cited by court, 339 Mass. Greenberg, mark; (1959), is off the that case dealt with a statute governing evidence, admissibility rule. The clearly procedural whether a statute of limitations is question or sub- procedural stantive in this context has not been addressed this Common- wealth, and there is a significant sister split opinion among noted in court’s jurisdictions, opinion. Contrary court’s assertion that the split among jurisdictions “hopeless,” my review of cases of other reveals a decided jurisdictions of a criminal statute preference prospective application I find limitations.3 logic reasoning majority the States to be I dissent.4 persuasive. give lists majority nine cases statutes limitation nine, cases, effect. Of three Texas two are Illinois those cases, Whitesell, one, (Colo. 1986), People categor- P.2d ically not infer retroactive effect to criminal statutes of limitation. does Rather, cases, People Supreme relies two Colorado Court Whitesell on Holland, (Colo. 1985), People Midgley, 714 P.2d 708 P.2d (Colo. 1986), clear which held that there must be Holland, supra against retroactivity. overcome the presumption *9 at issue in Whitesell was the same amendment the statute legislative only showing specific explicit found retroactive on a to be intent. (see jurisdictions the court ante addition to mentioned 593 3), 2 retroactive effect in the absence give notes & which do not statutes Richardson, intent, legislative see States v. clearly stated United State, 853, 859-860, (3d 1975); Cir. Reino 352 So. 2d F.2d v. (Fla. 1977); Pa. Baysore, Super. v. Commonwealth Holland, (1986); Langston, 286 People supra. See also Mullenax v. (statute in effect at offense com- Ark. of limitations time mitted applies). Thus, to criminal give retroactive effect appears jurisdictions it five Louisiana, California, Illinois, Texas, Washing- statutes limitation: absence give effect in the jurisdictions ton. refuse Eleven of limitations is substan- the basis that a statute clear or on Circuit, Alabama, Alaska, Court the Third Appeals tive: United States Arizona, Florida, Nevada, Arkansas, Connecticut, Colorado, Jersey, New
and Pennsylvania. here, the cases Commonwealth I dissent also in For the reasons stated Commonwealth, post (1988), Tigges Pellegrino, post