COMMONWEALTH vs. MARY ELLEN KLEIN.
Supreme Judicial Court of Massachusetts
June 22, 1987
400 Mass. 309
Plymouth. November 5, 1986. — June 22, 1987. Present: HENNESSEY, C.J., WILKINS, LIACOS, ABRAMS, LYNCH, & O‘CONNOR, JJ.
Where a District Court judge had ordered a charge of larceny by check continued without a finding on the conditions that the defendant make restitution to the payee and release any civil claims that she might have against the payee, and where the judge thereafter revoked his order on learning that the defendant intended to commence a civil action against the payee, the defendant was not entitled to dismissal of the complaint on the ground that the judge‘s actions infringed her rights under arts. 11 and 12 of the Massachusetts Declaration of Rights or the Fourteenth Amendment to the Federal Constitution in the absence of any evidence that either the prosecutor or the judge attempted to interfere with the defendant‘s right to sue the payee, and in view of the fact that the proposal that the defendant release her civil claims had been made at the suggestion of her own counsel in order to achieve an amicable disposition of the case. [311-312]
At the trial of a defendant charged with larceny by check, no substantial risk of a miscarriage of justice was created by language in the judge‘s charge to the jury that, under the appliсable statute, failure to pay within two business days after notice of dishonor was prima facie evidence that the check was issued with knowledge of an insufficiency of funds for its payment and with an intent to defraud and that, in the absence of competing evidence, they were permitted, though not required, to find the inferred facts beyond a reasonable doubt where, since there was
O‘CONNOR, J., with whom LIACOS, J., joins, dissenting.
The defendant in a criminal case failed to demonstrate that the conduct of her trial counsel fell measurably below that which might be expected from an ordinary fallible lawyer and that prejudice resulted thеrefrom. [315-316]
COMPLAINT received and sworn to in the Hingham Division of the District Court Department on October 11, 1983.
On transfer to the jury session, the case was tried before Charles E. Black, J.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Mary Ellen Klein, pro se.
Marjorie R. Corman, Assistant District Attorney, for the Commonwealth.
LYNCH, J. After trial before a jury of six in District Court, the defendant appeals from her conviction of larceny by check, in violation of
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 сapacity” and declined her attorney‘s assistance 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
In those cases, however, 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 proceed 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 uрon 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,
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 duе 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 “[c]onstitutional 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 alsо 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 сontention that the statute is vague as to the concurrence of the “acts and omissions [and] . . . culpable knowledge and intent” adds nothing.
The defendant‘s remaining constitutionally based argument characterizes
Although the defendant has used the words “equal protection,” she fails to raise an equal protection argument 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, оr sex” (citations omitted). Commonwealth v. Franklin, 376 Mass. 885, 894 (1978).
3. The defendant 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 instruction informing the jury of an evidentiary presumption (or irrebuttable presumption, as claimed by the defendant). Rather, the trial judge referred to the language of the 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 thereon 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 [sic] 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 cоmpeting 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 does not disappear on the introduction of evidence to the contrary; it remains evidence throughout the trial. See Fuller v. Home Indem. Co., 318 Mass. 37 (1945). Therefore, the judge‘s instruction was more favorable to the defendant than an instruction consistent with this court‘s prior interpretation of the term prima facie evidence as used in the statute. Moreover, even if the statute is susceptible to constitutional attack, as is contended in the dissent, infra at 318-319, no miscarriage of justice results because the judge limited its use to situations where there was no competing evidence. Competing evidence in the form of the defendant‘s denial of fraudulent intent existed, so the judge‘s instruction concerning the inference was not prejudicial, although it had no relevance to their case, and no miscarriage of justice could have resulted from the instruction.
In reaching the result here, we have not considered any possible constitutional weakness in thе 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 judge. Commonwealth v. Rondeau, 378 Mass. 408, 412 (1979), sets forth a “two step inquiry” to be used in evaluating claim of ineffective assistance of counsel: the defendant must demonstratе “both (1) that the conduct of his trial counsel fell ‘measurably below that which might be expected from an ordinary fallible lawyer,’ Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), and (2) that ‘prejudice result[ed] therefrom.‘” Commonwealth v. Sellon, 380 Mass. 220, 223 (1980), quoting Commonwealth v. Rondeau, supra. The defendant has satisfied neither requirement. Defense counsel‘s advocacy at trial was well within the standards of Saferian.
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 sеveral times bordered on contempt. Furthermore, the defendant has failed either to indicate the 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.
Judgment affirmed.
O‘CONNOR, J. (dissenting, with whom Liacos, J., joins). The jury reasonably could have understood from the judge‘s instructions that the defendаnt‘s failure to pay Zayre the amount of the check, plus additional costs and fees, within two business days after notice of dishonor, by itself 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 days 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 evidencе. 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 а 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
As I have stated, the judge‘s instruction might reasonably have led the jury tо 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 alone, 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, 378 Mass. 671, 677-678 (1979). I would answer that question in the negаtive. Common sense and experience tell us that the issuance of a check for which, at the time of presentation, there are insufficient funds for payment, is as likely to result from the drawer‘s erroneous bookkeeping or other mistake, or inattention, as from the drawer‘s fraudulent intent. That balance of probabilities is not tilted in favor of the Commonwealth by subsequent nonpayment after notice of dishonor. That is because common sense and expеrience also tell us that, once the mistake or inattention has occurred, for many individuals financial embarrassment and inability to pay are likely to follow. Surely, a defendant‘s inability to make restitution for a bad check within two business days after notice of dishonor does not warrant a finding beyond a reasonable doubt that an honest mistake or inattention was not the genesis of the check. In my view, whatever other evidence of the defendant‘s state of mind there may have been, it was far from overwhelming. I believe that the judge‘s instruction on prima facie evidence seriously undermined the jury‘s responsibility to find the several elements of the crime with which the defendant was charged beyond a reasonable doubt, and thus created a substantial risk of a miscarriage of justice.