Com. v. Munoz
Decision Date | 08 October 1981 |
Citation | 384 Mass. 503,426 N.E.2d 1161 |
Parties | COMMONWEALTH v. Pedro MUNOZ. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Milly Whatley, Boston, for defendant.
Lynn Morrill Turcotte, Asst. Dist. Atty., for the Commonwealth.
Before HENNESSEY, C. J., and WILKINS, LIACOS, ABRAMS, NOLAN and LYNCH, JJ.
The defendant was convicted of unauthorized possession of a controlled substance, G.L. c. 94C, § 34, and of operating an uninsured motor vehicle, G.L. c. 90, § 34J, by a jury of six in a District Court. The Appeals Court affirmed both convictions. Commonwealth v. Munoz, Mass.App.Ct.Adv.Sh. (1980) 2175, 413 N.E.2d 773. The defendant sought further appellate review on the charge of operating an uninsured motor vehicle. We granted the defendant's application. The defendant asserts that the trial judge's instructions to the jury on the uninsured motor vehicle charge were improper because they shifted to the defendant the burden of proof on an essential element of the crime. We conclude that the "overall impact" of the instructions (Commonwealth v. Sellon, Mass.Adv.Sh. (1980) 789, 800, 402 N.E.2d 1329) was to place the burden of proof on the defendant as to the absence of insurance, an essential element of the crime. Therefore, we reverse the judgment of conviction of operating an uninsured vehicle.
We summarize only the facts relevant to the issue before us on appeal. The Commonwealth introduced evidence that the defendant had been observed on July 12, 1979, operating a 1972 brown Pontiac automobile on a public way. When asked for his license and registration, the defendant produced a license, a registration certificate for a 1967 Mercury Cougar automobile, and a certificate of title for the Pontiac in the name of a third person. The title certificate for the Pontiac had not been completed to indicate a proper transfer of the vehicle, although the assignment of title on the back of the title certificate had been signed by the third person and the certificate contained a notation that a bank lien on the car had been released six days prior to the incident. Copies of the registration for the Mercury and the title certificate for the Pontiac were introduced as exhibits by the Commonwealth. Neither the Commonwealth nor the defendant introduced any evidence touching the question whether the Pontiac was properly insured.
In instructing the jury on the presumption of innocence and the burden of proof, the judge stated:
The judge subsequently instructed the jury on the charge of operating an uninsured vehicle in the following language:
The defendant made a timely objection to this portion of the charge and contends that the instructions impermissibly shifted to him the burden of proof of an element of the crime and invaded the fact-finding function of the jury.
The Commonwealth contends that the judge's instructions represent a correct application of the law because G.L. c. 278, § 7, which places the burden on the defendant to produce evidence of license or authority, applies to a prosecution under G.L. c. 90, § 34J, for operating an uninsured motor vehicle. The Commonwealth argues that the instructions at issue comply with G.L. c. 278, § 7, since they did not shift the burden of proof to the defendant but merely placed on the defendant the burden of producing some evidence of automobile insurance.
General Laws c. 278, § 7, provides that "(a) defendant in a criminal prosecution, relying for his justification upon a license, appointment, admission to practice as an attorney at law, or authority, shall prove the same; and, until so proved, the presumption shall be that he is not so authorized." In Commonwealth v. Jones, 372 Mass. 403, 361 N.E.2d 1308 (1977), we discussed the history and interpretation of this statute and ruled that the statute applied to prosecutions under G.L. c. 269, § 10, which prohibits the carrying of a firearm. We indicated in Jones that, under G.L. c. 278, § 7, the burden is on a defendant to come forward with evidence of his license to carry a firearm; that, if he does, "the burden is on the prosecution to persuade the trier of facts beyond a reasonable doubt that the defense does not exist"; and that, if the defendant does not, there is no jury issue as to licensing or authority. Id. at 406-407, 361 N.E.2d 1308. In Commonwealth v. Jefferson, 377 Mass. 716, 387 N.E.2d 579 (1979), we held that the same principles apply to a prosecution under G.L. c. 94C, § 27, which prohibits the unlawful possession of hypodermic needles and syringes, and ruled that where there was no evidence bearing on the defendant's justification for possession of the needles and syringes, the judge's charge properly removed justification from the jury's consideration. As we stated in Jones, G.L. c. 278, § 7, is applicable to situations where "(a)s (a) matter of statutory construction, the prohibition is general, the license is exceptional." Commonwealth v. Jones, supra 372 Mass. at 405, 361 N.E.2d 1308, quoting from Commonwealth v. Nickerson, 236 Mass. 281, 305, 128 N.E. 273 (1920). In the absence of evidence with respect to licensing or authority, the issue of licensing or authority is removed from consideration and no jury issue is presented. Accordingly, if a defendant is relying on licensing or authority, he must come forward with evidence of license or authority. If he fails in this particular, the issue is not presented.
These considerations are inapplicable, however, in the case at bar because insurance is an element of the crime charged, not a mere license or authority. See J. R. Nolan, Criminal Law § 583 (1976). Therefore, the issue of insurance cannot be viewed as an affirmative defense and, of course, it cannot be removed from jury consideration. In a prosecution under G.L. c. 90, § 34J, the Commonwealth must prove as an element of the crime charged that the motor vehicle was in fact uninsured. The defendant cannot be under any obligation to aid the Commonwealth in its proof of this central element of the case against him. If the Commonwealth fails to carry its burden of proof on this element, its entire case must fail.
The Commonwealth, in urging us to apply G.L. c. 278, § 7, to this case and to require the defendant to bear the burden of producing evidence showing insurance, points to...
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