Com. v. McDuffee

• Decision Date: 05 March 1979
• Citation: 7 Mass.App.Ct. 129,386 N.E.2d 754
• Parties: COMMONWEALTH v. James R. McDUFFEE.
• Court: Appeals Court of Massachusetts

Page 754

386 N.E.2d 754

7 Mass.App.Ct. 129

COMMONWEALTH v. James R. McDUFFEE.

Appeals Court of Massachusetts, Suffolk.

Argued Nov. 15, 1978.

Decided March 5, 1979.

Herbert D. Lewis, Boston, Howard J. Alperin, Boston, with him, for defendant.

Paul W. Shaw, Asst. Atty. Gen., for the Commonwealth.

Before KEVILLE, GOODMAN and BROWN, JJ.

BROWN, Justice.

The defendant appeals under the provisions of G.L. c. 278, §§ 33A-33G, from convictions on two indictments charging perjury (see G.L. c. 268, § 1A). The defendant argues on appeal that the trial judge erred in (1) denying his motion for a continuance; (2) denying his motions to dismiss and for a directed verdict; (3) withdrawing matters from the jury's consideration; and (4) denying his motion to revise and revoke the sentences imposed.

We conclude that there was no error. We briefly summarize the evidence presented at trial by the prosecution before turning to the defendant's assignments of error.

The defendant, James R. McDuffee, has been doing business as the James R. McDuffee Insurance Agency, Inc., since 1963. In 1974 and 1975 the defendant submitted to the Division of Insurance of the Department of Banking and Insurance an application for the renewal of his insurance broker's license. The renewal procedure consisted of completing and filing with the Division of Insurance a form, supplied by the Commissioner of Insurance (commissioner), which the applicant was required to sign under the pains and penalties of perjury. Question number seven on the renewal application form asked whether the applicant had "within the past year been convicted of, or arrested or prosecuted for, any crime or offense against the laws of this or any other state or country, or pleaded nolo to any indictment or complaint for any such crime or offense or been placed upon probation therefor, or is there pending against you any indictment, complaint or proceeding for a violation of such laws?" The defendant's applications filed for the years 1974 and 1975 included a negative response to this question, while in fact, the defendant was under indictment for larceny and fraudulent procurement of insurance premiums. At the end of each application the defendant signed his name in the space provided therefor which was immediately below the phrase: "I hereby verify the foregoing statements and answers and declare that they were made under the penalties of perjury."

1. The defendant argues that the trial judge erred in denying his motion for a continuance of the trial because of the substantial likelihood that prospective jurors had been prejudiced by pretrial adverse publicity.

On the day prior to the beginning of trial the defendant moved for a continuance, claiming that a televised news item, broadcast ten days before the scheduled opening of trial, referred to the defendant as a principal of a corporation allegedly involved in improprieties regarding the awarding of contracts by the real property department of the city of Boston for the operation of the city's municipal parking garages. The defendant claimed his picture was shown during the broadcast and that he was referred to as being under indictment for perjury involving potential insurance frauds. He also claims that he was identified as the principal of the Century Fire and Marine Insurance Corporation which was said to have been in receivership for allegedly writing illegal bonds. The defendant further complained that on two subsequent days there were television broadcasts which referred to the alleged improprieties involving the municipal garages. It does not appear that the defendant's picture was used or that he was referred to by name in these later broadcasts.

Whether a jury has been prejudiced by pretrial publicity is a question for the trial judge, who, in such circumstances, has discretion in deciding whether to allow a motion for a continuance. Commonwealth v. Jackson, --- Mass. ---, --- ^A, 383 N.E.2d 835 (1978). See Commonwealth v. Eagan, 357 Mass. 585, 588-589, 259 N.E.2d 548 (1970); Commonwealth v. Stanley, 363 Mass. 102, 104-105, 292 N.E.2d 694 (1973). Following the empanelling of the jurors and prior to their being sworn the judge, in detailed language directed to the publicity issue, addressed a series of questions to them regarding any exposure they may have had to any pretrial publicity. Cf. G.L. c. 234, § 28, as amended through St.1975, c. 335; Commonwealth v. Dickerson, --- Mass. ---, --- ^B, 364 N.E.2d 1052 (1977). When asked if they had heard or seen anything on radio or television or had read anything in the newspapers regarding the defendant, none of the jurors responded. See Commonwealth v. Vitello, 367 Mass. 224, 236-237, 327 N.E.2d 819 (1975). The judge received no response to any of the other questions he directed to the panel relative to the issue of pretrial publicity. See Commonwealth v. Gilday, 367 Mass. 474, 492, 327 N.E.2d 851 (1975). These actions taken by the judge adequately protected the defendant's right to a fair trial before "an impartial jury free from outside influences." Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966). In light of the steps taken by the judge we find no indication that the defendant was tried before a biased jury. We thus conclude that the defendant has not met his burden of showing that he was denied a fair trial by the pretrial publicity. Commonwealth v. Nolin, --- Mass. ---, --- ^C, 364 N.E.2d 1224 (1977).

2. (a) The defendant assigns as error the judge's denial of his motion to dismiss and his motion for a directed verdict. He claims it was an unlawful breach of his right to privacy for the Division of Insurance to inquire into his criminal background. He thus concludes that as he could not properly be asked about it, he cannot be found guilty of perjury for falsely answering the question. Nothing in the information requested of the defendant is in conflict with the privacy rights the Supreme Court has recognized under the Bill of Rights of the Federal Constitution. Compare Opinion of the Justices, --- Mass. ---, -- - ^D, 376 N.E.2d 810 (1978). The defendant's reliance on such cases as Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), and Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), is misplaced. Those cases provided protection against unwarranted governmental intrusion into such personal and private matters as marriage, procreation, contraception, and family relationships. Fourteenth Amendment protection of personal privacy has been limited to those rights which have been categorized as "fundamental" or " 'implicit in the concept of ordered liberty' ". Paul v. Davis, 424 U.S. 693, 713, 96 S.Ct. 1155, 1166, 47 L.Ed.2d 405 (1976). Hastings & Sons Pub. Co. v. City Treasurer of Lynn, --- Mass. ---, --- ^E, 375 N.E.2d 299 (1978). The defendant's claim is based, not upon any challenge to the State's ability to restrict his freedom of action in a sphere contended to be "private", but instead on a claim that the State may not require him to disclose "private" (as he defines it) information contained in official records concerning an arrest or an indictment. We have found no "substantive privacy decisions (that) hold this or anything like this, and decline to enlarge them" (Paul v. Davis, supra, 424 U.S. at 713, 96 S.Ct. at 1166) in circumstances such as the present. ¹

(b) Similarly, we are not persuaded by the defendant's argument that inquiry into his criminal history violated his right to privacy under G.L. c. 214, § 1B, inserted by St.1974, c. 193, § 1. The requirement that the defendant disclose the fact of his indictment when applying for the renewal of his insurance broker's license did not constitute an " 'unreasonable, substantial or serious interference with (his privacy).' " See Hastings & Sons Pub. Co. v. City Treasurer of Lynn, supra at --- - --- ^F, 375 N.E.2d at 304. Cf. Broderick v. Police Commr. of Boston, 368 Mass. 33, 44, 330 N.E.2d 199 (1975), cert. denied, 423 U.S. 1048 (1976) (a privacy claim under G.L. c. 214, § 1B, may be surrendered by public display).

(c) The defendant further argues that the information sought by the commissioner constituted "criminal offender record information" within the meaning of G.L. c. 6, § 167, inserted by St.1972, c. 805, § 1. We do not agree. That statute restricts the dissemination of "records and data compiled by criminal justice agencies." Here the commissioner did not seek access to any records or data in the possession of a criminal justice agency which would require compliance with G.L. c. 6, § 172 (which sets forth the procedure for the dissemination of such information). As we read §§ 168-178 of G.L. c. 6, they do not bar the commissioner from asking the defendant about his criminal history. In any event, we are certain that nothing in those sections justifies the defendant in responding falsely to such an inquiry.

(d) The defendant also claims protection under G.L. c. 276, § 100C, which applies to the sealing of criminal records under certain circumstances. It is not asserted that the defendant's records were sealed at the time the defendant submitted his renewal application, but it is argued that the statute embodies a policy of ensuring confidentiality and non-disclosure of records concerning past criminal proceedings not resulting in convictions. We need not decide the point as we are confident in our belief that, even if such a policy behind sealing criminal records did come into play in these circumstances, the broad authority of the commissioner to regulate insurance brokers as well as insurance companies (see, e. g., Rockland Mut. Ins. Co. v. Commissioner of Ins., 360 Mass. 667, 672-673, 277 N.E.2d 493 (1971)) for the protection of the public is paramount and therefore must prevail. See G.L. c. 175, § 166. See generally Commonwealth v....