Com. v. Love

• Decision Date: 29 December 1988
• Docket Number: Nos. 87-896,88-P-389,s. 87-896
• Parties: COMMONWEALTH v. Alvin LOVE.
• Court: Appeals Court of Massachusetts

Page 176

530 N.E.2d 176

26 Mass.App.Ct. 541

COMMONWEALTH v. Alvin LOVE.

Nos. 87-896, 88-P-389.

Appeals Court of Massachusetts,

Middlesex.

Argued Sept. 20, 1988.

Decided Nov. 15, 1988.

Further Appellate Review Denied Dec. 29, 1988.

Steven J. Rappaport (Rosanne L. Ciardiello, Boston, with him), for defendant.

Judith C. Knight, Boulder, Colo. (Catherine E. Sullivan, Asst. Dist. Atty., with her), for the Com.

Before PERRETTA, KAPLAN and WARNER, JJ.

KAPLAN, Justice.

An indictment charged the defendant, Alvin Love, with a violation of the "bail-jumping" statute, G.L. c. 276, § 82A. The statute, inserted by St.1965, c. 396, provides: "A person who is released by court order or other lawful authority on bail or recognizance on condition that he will appear personally at a specified time and place and who fails without sufficient excuse to so appear shall be punished...." ¹

At trial to a Middlesex jury, the Commonwealth established the following through Robert McDade, an assistant clerk at the Superior Court in Cambridge. The defendant on June 10, 1985, was awaiting trial on an indictment charging him with breaking and entering. That day he was released from detention upon depositing $500 as surety and entering into a "recognizance" in the usual form to appear at places and times that might be specified. The recognizance stated: "A defendant who fails without sufficient excuse to appear in court after release on bail or recognizance may be punished [stating the penalty]." The breaking-and-entering case came to trial on December 2, 1985, with the defendant in attendance. Trial was continued to the next day at 10:00 A.M. The defendant was on notice that he was required to appear at that time. He failed to appear. The judge consulted with the prosecutor and defendant's counsel. They had no information about the defendant's whereabouts. An officer in open court called the defendant to the bar. There was no response. A default issued, a default capias went to the district attorney's office, and bail was revoked and ordered forfeited. Trial resumed on December 4 with the defendant still absent, and a conviction followed.

When McDade completed his foregoing testimony, the Commonwealth called Lieutenant Donald Whalen of the Wellesley police. Whalen testified that on January 30, 1986, he had an interview with the defendant at the Wellesley police station where he was being detained after an arrest. Miranda warnings had been given. When the Commonwealth inquired whether Whalen had asked the defendant where he was on January 6, 1986, ² defense counsel interposed, raising the question whether the defendant had given his response voluntarily. Upon voir dire, Whalen testified at some length. The judge ruled that the defendant's statement should be excluded. ³ Thereupon, without offering further evidence, the Commonwealth rested.

No motion for a required finding of not guilty was offered by the defense. The defendant took the stand. He said, in effect, that he believed the breaking-and-entering trial was unfair to him because his lawyer had declined to urge a defense of "diminished capacity" and also because there were witnesses whom the defense had not reached in time for the trial. Under pressure of this feeling, he had decided to quit the trial (not knowing how the trial might proceed) and to try to raise money to get better legal representation. He went to Florida, then returned and lived at various addresses until apprehended on January 30, 1986. ⁴ On cross-examination the defendant was impeached by the record of his several criminal convictions. The defense rested, again without moving for a required finding.

After closing speeches, the judge instructed that the Commonwealth had the burden to prove, beyond a reasonable doubt, that the defendant was released by court order on bail, that it was a condition of his release that he appear at places and times as specified, that he failed to appear at a place and time specified, and that his failure to appear was without sufficient excuse. With respect to the last element, the judge said in substance: he could not supply a pat definition, but he could give illustrative examples on either side of the line of "sufficient excuse," and he did so; ⁵ he left it to the jury, applying their judgment, to decide whether the defendant's explanation (if believed), which suggested a kind of duress, ⁶ would be regarded by a reasonably prudent person as a sufficient excuse for failing to appear in court or would rather be thought an arbitrary act. There was no objection to the charge. The jury brought in a verdict of guilty on September 9, 1986, and judgment of conviction followed. ⁷

On November 13, 1987, represented by new counsel, the defendant moved for postconviction relief, claiming that trial counsel had provided him with "ineffective assistance" under the rule of Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974), on the following grounds: first, counsel failed to move to dismiss the bail-jumping indictment as being based on a statute void for "vagueness" through its use of the words "without sufficient excuse"; second, passing the question of vagueness, counsel failed to move at the close of the Commonwealth's case (or at the close of all the evidence) for a required finding of not guilty on the ground that the Commonwealth had not proved beyond a reasonable doubt that the defendant acted without sufficient excuse. The judge (who had also presided at the trial) denied the postconviction motion with a memorandum dated March 16, 1988, and the present appeal is from the denial. ⁸

We agree with the judge that there was no merit in the constitutional claim and that a motion for a required finding would have been futile. Accordingly any question of the effectiveness of counsel becomes inconsequential.

1. Moving under Mass.R.Crim.P. 30(a) and (b), 378 Mass. 900 (1979), the defendant claimed that his counsel erred in failing to apply before trial (see Mass.R.Crim.P. 13[a], 378 Mass. 871 [1979] ) for dismissal of the indictment on the "vagueness" ground. This, presumably, would have been an attack on the statute "on its face," and such, indeed, is the line of argument pursued in the defendant's brief. By a settled rule in the Commonwealth, however, so broad a contention, which asks the court to consider all situations to which the statute might be applied, and to void it if any of the applications would be unconstitutional, is reserved for cases where the statute appears to trench on First Amendment (or similar) rights. See United States v. National Dairy Prod. Corp., 372 U.S. 29, 36, 83 S.Ct. 594, 599, 9 L.Ed.2d 561 (1963); Kolender v. Lawson, 461 U.S. 352, 359 n. 8, 103 S.Ct. 1855, 1859 n. 8, 75 L.Ed.2d 903 (1983); Commonwealth v. Bohmer, 374 Mass. 368, 371 n. 6, 372 N.E.2d 1381 (1978). ⁹ The present statute is not of that type, so the question whether it could withstand "facial" scrutiny is irrelevant. Rather the question is whether the statute, or, more closely, the particular words objected to, identify for citizens and law enforcement authorities a core of condemned conduct, and whether this case, as it shaped up, appears to be within the core: the inquiry is contextual. See United States v. National Dairy Prod. Corp., 372 U.S. at 32-33, 83 S.Ct. at 597-598; Commonwealth v. Adams, 389 Mass. 265, 270-271, 450 N.E.2d 149 (1983); Commonwealth v. Williams, 395 Mass. 302, 304, 479 N.E.2d 687 (1985); Commonwealth v. Jasmin, 396 Mass. 653, 655, 487 N.E.2d 1383 (1986).

As the judge instructed, the expression "without sufficient excuse" conveys the meaning of deliberate conduct contrary to that which was required--this in distinction from conduct which the actor did not will, or was unable to control. Thus the statute resembles, if, indeed, it is not equivalent to, a common kind of bail-jumping statute that speaks of "willful" failure to appear as required. ¹⁰ There is, no doubt, an ineradicable element of imprecision in either statutory formulation. But the vagueness doctrine "is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited." Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972). A statute is not vague in the outlawed constitutional sense "if it requires a person to conform his conduct to an imprecise but comprehensible normative standard...." Commonwealth v. Williams, 395 Mass. at 304, 479 N.E.2d 687, quoting from Commonwealth v. Orlando, 371 Mass. 732, 734, 359 N.E.2d 310 (1977). Such a standard is not impermissibly vague even though reasonable minds might differ whether particular conduct at the periphery of the "core" comports with it: the jury decide the question under instructions, as they do in easier cases to which the standard speaks more clearly. See Hygrade Provision Co. v. Sherman, 266 U.S. 497, 502, 45 S.Ct. 141, 142, 69 L.Ed. 402 (1925). Cf. Robinson v. United States, 324 U.S. 282, 283, 285-286, 65 S.Ct. 666, 668-669, 89 L.Ed. 944 (1945). The present defendant, in reason, could apprehend within rough bounds where his duty lay, and these would correspond with the scope of the statute as described by the judge. ¹¹ Law enforcement officials would similarly understand what conduct was proscribed. ¹²

We are fortified in our view that the present statute is valid by the fact that statutes in the same or a comparable sense have been long on the books and enforced without serious criticism on supposed vagueness grounds. Cf. People v. Garcia, 698 P.2d 801, 808 (Colo.1985); State v. Vogel, 315 N.W.2d 324, 326-327 (S.Dak.1982). The defendant points to a decision by the Washington Supreme Court, State v. Hilt, 99 Wash.2d 452, 662 P.2d 52 (1983), invalidating a bail-jumping statute which used...