Lead Opinion
After trial before a jury of six in District Court, the defendant appeals from her conviction of larceny by check, in violation of G. L. c. 266, § 37 (1984 ed.). She claims that the statute is unconstitutional and raises numerous other arguments for reversal of her conviction. We transferred the case to this court on our own motion. We affirm.
The charge stemmed from the defendant’s purchase on June 7, 1983, of $79.71 worth of merchandise from a Zayre department store by means of a check that was returned for lack of sufficient funds. The defendant waived her right to an initial bench trial in favor of a jury trial in the first instance.
On January 20, 1984, the scheduled trial date, the defendant chose to be represented by court-appointed counsel, an opportunity she had rejected at the time of arraignment. After appointment, counsel conferred with the defendant and the assistant district attorney regarding possible disposition of the case. The trial judge was then informed that the defendant would be willing to make restitution and to refrain from instituting a civil action against Zayre. On the basis of that representation
At trial, the defendant was again represented by counsel, although she initially requested to “proceed in a dual capacity” and declined her attorney’s assistаnce for the opening statement. The Commonwealth presented sufficient evidence to support her conviction.
1. On appeal, the defendant pro se argues that the judge’s revocation of his order continuing the case without a finding upon payment of restitution and execution of a release amounted to a denial of the defendant’s rights under the Massachusetts Declaratiоn of Rights, arts. 11 and 12, and the Fourteenth Amendment to the United States Constitution. It is true that disposition of criminal cases conditioned on the execution of releases as to related civil claims has been deemed improper. See Foley v. Lowell Div. of the Dist. Court Dept.,
In those cases, howеver, the judge or prosecutor proposed that a release be executed in exchange for a dismissal or a prosecutor’s agreement to nolle prosequi. Here there is no evidence that the judge or prosecutor attempted to interfere with the defendant’s exercise of her right to file a civil action. The judge informed the defendant that she had “a right to procеed against Zayre’s and I would not interfere with that in any way, shape, or manner ... if that was your option then I won’t interfere with the option.” Of equal significance is the fact that the condition of a release was not imposed upon the defendant in the course of trial, against her wishes. The pro-
The upshot of the judge’s rulings was that the defendant was afforded her right to a jury trial. The defendant cannot fairly argue that she was entitled to a dismissal as a matter of right.
2. The defendant also challenges the constitutionality of the statute governing larceny by check, G. L. c. 266, § 37.
General Laws c. 266, § 37, provides in relevant part: “Whoever, with intent to defraud, makes, draws, utters or delivers any check, draft or order for the payment of money upon any bank or other depositary, with knowledge that the maker or drawer has not sufficient funds or credit at such bank or other depositary for the payment of such instrument, although no express representation is made in reference thereto ... if money or property or servicеs are obtained thereby shall be guilty of larceny.”
The statute further provides that: “As against the maker or drawer thereof, the making, drawing, uttering or delivery of such a check, draft or order, payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in, or credit with, such bank or other depositary, unless the maker or drawer shall have paid the holder thereof the amount due thereon, together with all costs and protest fees, within two days after receiving notice that such check, draft or order has not been paid by the drawee.”
The defendant argues that the statute lacks the “[cjonstitu-tional requirements of structural soundness and specificity,” which we interpret as a claim that the statute is impermissibly vague. She also contends that the “operative fact” of failing to pay a check within two days of notice of dishonor also creates fatal ambiguity and vagueness.
The “operative fact” which must be found for conviction under the statute is not an omission, as the defendant laments, but the act of writing a check with knowledge of insufficient funds with intent to defraud. Failure to pay within two days
The defendant’s further contention that the statute is vague as to the concurrence of the “acts and omissions [and] . . . culpable knowledge and intent” adds nothing. General Laws c. 266, § 37, renders a defendant guilty not for the bank’s acts but, rather, for the defendant’s use of the check to obtain money, property, or services with the knowledge of an insufficiency of funds and with a fraudulent intent.
The defendant’s remaining constitutionally based argument characterizes c. 266, § 37, as “overbroad” and its application as a violation of “equal protection.” She cites no case in support of this argument. The overbreadth doctrine is essentially a modification of traditional rulеs of standing and is applicable only to First Amendment claims. Broadrick v. Oklahoma,
Although the defendant has used the words “equal protection,” she fails to raise an equal protection argumеnt meriting our attention. We only note that the defendant has not established that a decision was made not to prosecute other offenders and that “failure to prosecute [other offenders] was either consistent or deliberate . . . and that the decision not to prosecute was based upon an impermissible classification such as race, religion, or sex” (citations omitted). Commonwealth v. Franklin,
3. The defеndant also argues that the judge’s jury instructions were improper. Defense counsel indicated his approval and failed to object after they were presented to the jury. In such a case we need not consider the objections now raised to the judge’s instructions. We review the judge’s instructions only
The record reveals no instructiоn informing the jury of an evidentiary presumption (or irrebuttable presumption, as claimed by the defendant). Rather, the trial judge referred to the language of (he statute, stating: “If the defendant is the maker or drawer and has received a notice that such check, draft, or whatever has not been paid by the drawee bank and she has not paid the holder of the check or draft the amount due thereоn plus costs and protest fees within two business days after such notice, it shall be prima facie evidence of the intent to defraud and an acknowledge [szc] of insufficient funds or credit with such depository bank.” The word “presumption” was never used, except to inform the jury of the presumption of the innocence of the defendant.
The instruction the judge did give with respect to prima facie evidence was in terms of a permissive inference. The judge explained with reference to prima facie evidence that “[i]n the absence of competing evidence the jury is permitted, though not required, to find that the inferred act was true beyond a reasonable doubt.” The term prima facie evidence as used in the statute has been interpreted to mean the kind of inference that doеs not disappear on the introduction of evidence to the contrary; it remains evidence throughout the trial. See Fuller v. Home Indem. Co.,
In reaching the result here, we have not considered any possible constitutional weakness in the statutory language creating a prima facie inference of intent to defraud from the fact of failure to pay within two days of notice of dishonor.
4. The defendant raises numerous arguments with respect to the conduct of her trial which may be categorized as objections regarding (1) assistance of counsel, and (2) rulings of the judgе. Commonwealth v. Rondeau,
Finally, the defendant raises before this court a list of complaints concerning pretrial procedure, the conduct of the trial, and the trial judge’s rulings as to various motions. The judge conducted the proceedings with great tolerance for the defendant’s behavior, which several times bordered on contempt. Furthermore, the defendant has failed either to indicate thе nature of any alleged prejudice resulting from the actions and rulings she complains of, or to support such allegations with argument. Where the defendant merely lists alleged errors and complaints, without proper argument, that list does not merit our attention. Mass. R. App. P. 16 (a) (4), as amended,
Judgment affirmed.
Dissenting Opinion
(dissenting, with whom Liacos, J., joins). The jury reasonably could have understood from the judge’s instructions that the defendant’s failure tо pay Zayre the amount of the check, plus additional costs and fees, within two business days after notice of dishonor, by zYseZ/permitted them to find beyond a reasonable doubt that, when the defendant issued the check, she knew there were insufficient funds for its payment, and she intended to defraud Zayre. In my opinion, such inferences were not warranted, and
The judge instructed the jury that, under the statute, failure to pay within two business dаys after notice of dishonor is prima facie evidence that the check was issued with knowledge of an insufficiency of funds for its payment and with an intent to defraud. The judge then told the jury that, in the absence of competing evidence, they were permitted, though not required, to find that the inferred facts were true beyond a reasonable doubt. The court states, ante at 314, that, even if the inference was not constitutionally permissible, there was no miscarriage of justice because the judge limited the use of the inference to situations where there was no competing evidence. The court reasons that, because in this case there was competing evidence, the jury could not have been improperly influenced by the instruction even if it was constitutionally infirm. I do not agree. In my view, fairness requires that the impact of that instruction on the jury should not so readily be dismissed.
Since the defendant did not object at trial to the jury instructions, appellate review is confined to whether an error has occurred that creates a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, supra at 561-564. In my view, if the instruction was constitutionally infirm, there is a substantial risk that it influenced the jury in a way unfairly
It is necessary to consider, therefore, whether the judge’s instruction about the prima facie evidence provision in G. L. c. 266, § 37, was constitutionally sound. I believe that it was not. In several cases, the United States Supreme Court has discussed the use in criminal trials of inferences permitted by statute. See Ulster County Court v. Allen,
As I have stated, the judge’s instruction might reasonably have led the jury to believe that the statutory inference by itself would permit them to find that, at the time of issuance, the defendant knew the check would not be paid, and she intended to defraud Zayre. Therefore, the critical question is whether, standing alonе, the defendant’s failure to make the check good within the statutory period would satisfy any rational trier of fact beyond a reasonable doubt that the defendant had issued the check dishonestly. Commonwealth v. Latimore,
Notes
I believe that it also would have been error for the judge to instruct the jury that they could consider the defendant’s failure to reimburse Zayre along with other evidence in deciding the elements of knowledge and intent. In my view, failure to make the check goоd and to pay related costs simply had no tendency whatsoever, on the record in this case, to show an earlier criminal intent.
My review of the record indicates that there is a serious question whether the evidence was sufficient as a matter of law to warrant a guilty finding. However, although the defendant raised that issue by motion at trial, she has not pursued it on appeal. The Commonwealth, therefore, has not had a fair opportunity to confront the issue. For that reason, I do not argue that the court should order the entry of judgment for the defendant.