Com. v. Pauley

• Decision Date: 02 July 1975
• Citation: 331 N.E.2d 901,368 Mass. 286
• Parties: COMMONWEALTH v. Joseph C. PAULEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 901

331 N.E.2d 901

368 Mass. 286

COMMONWEALTH

v. Joseph C. PAULEY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 5, 1975.

Decided July 2, 1975.

Sumner B. Gillette, Quincy, for defendant.

Kevin W. Knouri, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and QUIRICO, BRAUCHER, HENNESSEY and KAPLAN, JJ.

KAPLAN, Justice.

On March 19, 1974, Alfred W. Blago, a State police officer on duty at the East Boston exit from the Callahan Tunnel, heard one of the automatic toll collection machines signal that a vehicle had passed through on its way out of the tunnel without a deposit by the operator of the proper twenty-five cent toll. Blago noted the license plate number of the car, but having no more than a side and back view of the operator, who was alone in the vehicle, he could only observe that the operator had long shoulder length hair and wore glasses. Blago did not stop the car and apprehend the operator. It may be surmised he was not in a position to do so.

Blago retrieved a copper slug from the machine, further assuring himself that the operator had violated Part Two, Section 4, of the 'Rules and Regulations for the Use of the Sumner Tunnel and the Lt. William F. Callahan, Jr., Tunnel' (as amended by Amendment No. 1 effective June 22, 1967), which provides that '(n)o person shall do . . . any act with intent to evade payment of toll . . ..' ¹ This rule was promulgated by the Massachusetts Turnpike Authority, which has responsibility for operation of the Sumner and Callahan tunnels, under the power granted to it by St.1958, c. 598, § 5(d), 'To establish rules and regulations for the use of the . . . tunnel(s), and to provide penalties for the violation of said rules and regulations not exceeding fifty dollars for each offence, which may be recovered by indictment or complaint before a district court and shall be . . . paid to the Authority.' ²

From the license plate number it was learned that the car was registered to the defendant, Joseph C. Pauley. Blago accordingly swore out a complaint in the East Boston District Court charging that Pauley, 'being the driver of a motor vehicle which had used the Callahan Tunnel . . . did . . . deposit a copper slug . . . in a meter at the end of the tunnel with intent to evade payment of toll.' After trial, Pauley was found guilty and fined the maximum $50, with costs of $12.50. Pauley appealed to the Jury of Twelve Session of the Municipal Court of the City of Boston. He then duly waived a jury. At the trial in the Municipal Court, Blago was the only witness. He testified to the incident at the tunnel as recounted above. The defendant, who was present in court, had short hair and was not wearing glasses. Blago said he could not, 'under oath,' make positive identification of the defendant as the operator. It was, however, stipulated that the defendant was the registered owner, and that the operator at the time and place testified to had attempted to evade payment of the toll in violation of the tunnel regulation. The Commonwealth finally offered the tunnel rules and regulations in evidence, directing the court's attention to Part Five, Section 2, which provides that '(i)f a vehicle is operated within tunnel property in violation of any provision of these rules and regulations and the identity of the operator of such vehicle cannot be determined, the person in whose name such vehicle is registered shall be deemed prima facie responsible for such violation.' ³ The regulation was received over the defendant's objection and exception. The defendant offered no evidence. The judge found him guilty and fined him $25, with costs of $6.25. No findings were made. The case is before us on a substitute bill of exceptions, and the issue is the validity as a matter of due process of the last quoted regulation, ⁴ particularly the use made of it to furnish an evidential link to prove that the defendant was the person who committed the act with intent to evade the toll. ⁵

1. We turn to a closer reading of the regulation to ascertain the meaning of the expression 'prima facie responsible.' Cognate expressions such as 'prima facie evidence' occur often in Massachusetts in civil contexts and have acquired a well settled meaning there. See Cook v. Farm Serv. Stores, Inc., 301 Mass. 564, 566, 17 N.E.2d 890 (1938); Leach and Liacos, Handbook of Massachusetts Evidence 52--62 (4th ed. 1967). According to the Massachusetts view, when, by statute or common law, one fact probative of another is denominated prima facie evidence of that second fact, proof of the first or basic fact requires a finding that the second, the inferred or presumed fact, is also true. The finding is mandatory. To avert this result, production (the burden of persuasion remains with the proponent). It is only the opponent must assume the burden of when the opponent has introduced sufficient evidence, which, cast against the natural inferential value of the basic fact, creates an issue of fact for the trier, that the opponent has satisfied his burden and the mandatory effect disappears. In a case tried by jury where the opponent does not assume his burden, the judge should charge that if the jury find the basic fact, they are required to find the inferred fact; if the basic fact is admitted or otherwise undisputed, the judge should charge that the jury must find the inferred fact, and if the inferred fact encompasses the substance of the case, the judge should direct a verdict. ⁶

The expression 'prima facie evidence' or the like also appears in criminal contexts. The effect of such evidence, unrebutted, cannot be so strong as in civil cases because of the established principle that a verdict may not be directed against a defendant in a criminal prosecution, see Wigmore, Evidence, § 7495, p. 312 (2d ed. 1940), with the corollary proposition that the trier of fact, judge or jury, cannot be compelled to find against the defendant as to any element of the crime. The handling of unrebutted 'prima facie evidence' in a criminal case in the Commonwealth is illustrated by the judge's charge to the jury in Commonwealth v. Anselvich, 186 Mass. 376, 71 N.E. 790 (1904). In that case a junk dealer was tried for violating a statute, R.L. c. 72, § 17, forbidding the trafficking in so called registered bottles; the statute provided that 'possession by any junk dealer . . . of any such vessels, without the written consent of, or purchase from, the owner thereof, shall be prima facie evidence of unlawful . . . traffic in the same.' The judge instructed the jury that 'if this party was a junk dealer . . . the possession of these articles without the written consent of the owner, or without their having been purchased from the owner, is sufficient, and nothing else appearing, to warrant the jury in finding that he has done the things that the law prohibits him from doing. The words 'prima facie' mean practically this: That on that evidence alone, nothing else appearing, you would be warranted in finding . . . in the words of the statute, that there was an unlawful . . . traffic in them.' Record, p. 45. Thus, in the absence of competing evidence, the jury were permitted, but not required, to find that the inferred or presumed fact was true beyond a reasonable doubt. See Commonwealth v. Harvard, 356 Mass. 452, 253 N.E.2d 346 (1969) (certificate of result of official chemical analysis of narcotic drug is prima facie evidence of its composition; judge's charge at Record, pp. 89--90); cf. Brightman v. United States, 7 F.2d 532 (8th Cir. 1925) (citing the Anselvich case).

As the present case is criminal (see Commonwealth v. Federico, 354 Mass. 206, 236 N.E.2d 646 (1968)), it is to be assumed that the judge understood and applied the term 'prima facie responsible' in the sense just mentioned: 'nothing else appearing,' the regulation permitted, but did not oblige him, to draw from the basic agreed fact that the defendant was the registered owner of the car, the inferred or presumed fact that the defendant was 'responsible' for the undisputed intentional evasion of the toll by the operator of the car. ⁷

2. A line of cases in the Supreme Court of the United States has discussed the constitutional validity of the use in criminal trials of permissive inferences or presumptions structurally the same as the Massachusetts prima facie inference at bar. The court has upheld such inferences as applied to certain situations, and struck them down as applied to others. It has had trouble developing a rationale for its decisions. But the problems encountered are clear. If too loosely allowed, permissive inferences would tend to compromise the constitutional canon in criminal cases that 'the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.' In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). ⁸ On the other hand, suppose the natural probability underlying the inference is strong, yet the defendant may easily produce evidence to rebut it, if false, without infringing his privilege against self-incrimination. Much can then be said for permitting the fact finder to draw the inference if persuaded that the combination of natural chance and absence from the evidence of an explanation consistent with innocence shows the defendant to be guilty beyond a reasonable doubt. See Barnes v. United States, 412 U.S. 837, 845--846, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973). Cf. Ashford & Risinger, Presumptions, Assumptions, and Due Process in Criminal Cases: A Theoretical Overview, 79 Yale L.J. 165, 180--186 (1969). It should be emphasized that the permissive inference or presumption involves no shift in the burden of persuasion, which remains on the State throughout, ⁹ and that the weight to be accorded the inference in all the circumstances of a particular case is for the trier in...