Com. v. McDuffee

• Decision Date: 13 December 1979
• Citation: 398 N.E.2d 463,379 Mass. 353
• Parties: COMMONWEALTH v. James R. McDUFFEE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 463

398 N.E.2d 463

379 Mass. 353

COMMONWEALTH v. James R. McDUFFEE.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 11, 1979.

Decided Dec. 13, 1979.

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

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

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, LIACOS and ABRAMS, JJ.

LIACOS, Justice.

The defendant appeals under the provisions of G.L. c. 278, §§ 33A-33G, from convictions in November, 1977, on two indictments charging perjury under G.L. c. 268, § 1A. He was sentenced on one indictment to a term of eighteen months in a house of correction, six months of which to be suspended, and, on the other indictment, to a term of two and one-half years in a house of correction, sentence suspended for three years. Execution of sentence was stayed, pending appeal, by a Justice of the Appeals Court. The Appeals Court affirmed the judgments of the Superior Court. ¹ We granted defendant's application for further appellate review. We reverse.

The defendant argues 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 consider only the arguments presented on the third claim of error, being content that the decision of the Appeals Court properly determined the other claims adversely to the defendant.

We briefly summarize the evidence. The defendant, James R. McDuffee, had been doing business as the James R. McDuffee Insurance Agency, Inc., since 1963. In 1974 and 1975 the defendant submitted applications for the renewal of his insurance broker's license to the Division of Insurance of the Department of Banking and Insurance. The renewal procedure consisted of completing and filing with the Division of Insurance a form, supplied by the Commissioner of Insurance (Commissioner). Question number seven on the renewal application form asked the applicant, "Have you within the past year been convicted of, 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 violation of such laws?" The defendant's applications filed for the years 1974 and 1975 included a negative response to this question. In fact, the defendant was then under indictment for larceny and fraudulent procurement of insurance premiums. The defendant signed his name at the end of each application, in the space provided therefor, immediately below the phrase: "I hereby verify the foregoing statements and answers and declare that they were made under the penalties of perjury."

There was evidence that the effect of a "Yes" answer to question number seven would have been to cause the head administrative clerk who processed renewal applications to decline to renew the defendant's license as a matter of course. She would have referred the matter to the Deputy Commissioner of Insurance who was her superior. Additionally, the former Commissioner of Insurance, who held office for at least part of the relevant period, testified that the fact of indictment by itself would not preclude renewal of a broker's license, although it might serve as the basis of an administrative inquiry. The evidence also showed that no such inquiry took place in this instance (or in any other case), even though the Commissioner had actual knowledge of the indictments outstanding against the defendant and that the defendant's license was renewed for the years in question. The defendant was acquitted July 29, 1977, on the indictments charging him with larceny and fraudulent procurement of insurance premiums.

The judge ruled, and so charged the jury, that two of the elements of perjury under G.L. c. 268, § 1A, were satisfied as a matter of law. ² The answer to question number seven of the renewal form being admittedly false, and the form being admittedly signed by the defendant, the only factual issue left to the jury to resolve was whether the false statements were wilfully made.

The defendant assigns as error the ruling and charge by the judge that the statement made was (a) required by law and (b) material. He argues before us, as he did before the Appeals Court, that by the judge's ruling and charge as to these two elements of the crime, he improperly invaded the fact-finding function of the jury, and, hence, deprived defendant of his right to trial by jury.

In responding to these claims of error, we must consider first whether the issues sought to be argued were properly raised at trial. It is a fundamental rule of practice that where a party alleges error in a charge he must bring the alleged error to the attention of the judge in specific terms in order to give the judge an opportunity to rectify the error, if any. Commonwealth v. Freeman, 352 Mass. 556, 563, 227 N.E.2d 3 (1967). Absent a proper objection and exception to the charge, an assignment of error brings nothing for review to an appellate court. Commonwealth v. Underwood, 358 Mass. 506, 509, 265 N.E.2d 570 (1977). ³

Our review of the transcript reveals that no objection was taken to the judge's ruling that materiality was established as matter of law, nor was any objection or exception taken to this portion of the charge. The defendant's assignment of error seeking to raise this and the related issue of the propriety of ruling that the statement was "required by law" relies on the same exception, set forth in the margin. ⁴ Taken in context, the exception to the extent that it deals with "immateriality," challenges the propriety of another ruling to the effect that evidence of a subsequent acquittal on the indictments pending when question number seven was answered was immaterial to the issue of perjury at the time of the answers. The validity of that ruling is not questioned by the defendant in this appeal. Such an exception does not suffice to focus the issue of whether materiality is a question for the judge or for the jury as the defendant now argues. ⁵ To the extent, however, the defendant assigns and argues error as to the ruling as matter of law that the statement was "required by law," the exception, in its second part, appears sufficient. We must decide whether the error as to materiality, if any "was of a type and seriousness which should lead us to reverse in the absence of a proper exception. The test is whether there is a substantial risk of a miscarriage of justice." Commonwealth v. Freeman, 352 Mass. 556, 563-564, 227 N.E.2d 3, 9 (1967).

Defendant bases his claim of error, in part, on the constitutional principles enunciated in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1886, 44 L.Ed.2d 508 (1975). He argues that the long-standing rule that materiality is a question of law for the court to decide is an impermissible distortion of the principle that the prosecution is required as a matter of constitutional due process to prove beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged. In Commonwealth v. Stokes, --- Mass. --- ^A, 374 N.E.2d 87 (1978) the trial of which occurred before Mullaney was decided, we considered a defendant's argument that the judge's instructions were constitutionally inadequate under Mullaney v. Wilbur, supra, even though trial counsel had not taken exception to the judge's charge. In that case we said, "to hold otherwise would be tantamount to requiring clairvoyance on the part of defense counsel." STOKES, SUPRA AT --- , 374 N.E.2D AT 91^B.

Similar considerations make it appropriate for us to consider this alleged error despite the absence of a specific exception. The rule that materiality in respect of perjury is a matter for the court to decide seemed so firmly established in the case law of this Commonwealth (see Commonwealth v. Giles, 350 Mass. 102, 110, 213 N.E.2d 476 (1966)) that, as a practical matter, it is extremely unlikely that the judge would have modified the charge. As the rationale behind the requirement of a specific exception is to enable the judge to make any necessary correction (see Squires v. Fraska, 301 Mass. 474, 477-478, 17 N.E.2d 693 (1938)), ⁶ we do not feel that the purpose behind the requirement would be served by our refusal to decide this issue. ⁷ While this alone may be insufficient reason for considering a purported error in the judge's charge to which no specific exception was taken at trial, the substantial constitutional questions raised by the defendant on appeal compel the conclusion that a substantial risk of a miscarriage of justice does exist. Commonwealth v. Franks, 365 Mass. 74, 309 N.E.2d 879 (1974).

We consider first the defendant's contention that the judge erred in instructing the jury that the defendant's statements, contained in his application, were material as matter of law. In Commonwealth v. Giles, 350 Mass. 102, 213 N.E.2d 476 (1966), this court held, "(W)hether questions, allegedly falsely answered, were relevant and material is a question of law. . . . Materiality in respect of perjury means relevance in the sense that the answer might tend in reasonable degree to affect some aspect or result of the inquiry. . . . (T)he Commonwealth must prove facts from which it can be determined that any allegedly false answer was directly or circumstantially relevant and material to the . . . inquiry." Id. at 110-111, 213 N.E.2d at 482-483. ⁸ The holding in Giles that materiality is a question of law is predicated on ancient authority which must be reexamined in light of recent constitutional doctrine, as well as later decisions of this court.

Early English case law presents a split...