Commonwealth v. George

• Decision Date: 09 September 1999
• Citation: 717 NE 2d 1285,430 Mass. 276
• Parties: COMMONWEALTH v. RICHARD T. GEORGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

430 Mass. 276

717 NE 2d 1285

COMMONWEALTH v. RICHARD T. GEORGE.

Supreme Judicial Court of Massachusetts, Essex.

September 9, 1999.

October 20, 1999.

Present: ABRAMS, GREANEY, MARSHALL, & IRELAND, JJ.

David W. Rifkin for the defendant.

Adam J. Bookbinder, Assistant District Attorney, for the Commonwealth.

IRELAND, J.

The defendant was indicted by an Essex County grand jury in March, 1997. Two indictments charged the defendant with three counts of rape of a child, and one indictment charged indecent assault and battery on a child under the age of fourteen years, all occurring between January, 1977, and January, 1979. The defendant moved to dismiss the indictments, arguing they were time-barred. In a written memorandum, a Superior Court judge denied the motion.¹ Following a jurywaived, stipulated-evidence trial, the defendant was convicted on all charges. We granted the Commonwealth's application for direct appellate review of the defendant's appeals.

Arguing that his motion to dismiss the indictments should have been allowed, the defendant contends that (1) the portion of G. L. c. 277, § 63, which tolls the statute of limitations for "any period during which the defendant is not usually and publicly a resident within the commonwealth" (tolling provision) does not apply to the crime of rape of a child; and (2) application of the tolling provision in general violated his constitutional rights. For the reasons set forth below, we hold that the tolling provision of G. L. c. 277, § 63, is applicable to the crime of rape of a child. We further hold that application of the tolling provision to the defendant did not violate his constitutional rights. Accordingly, we affirm the convictions.

According to the victim's statement, the sexual assaults in question occurred in the summer of 1977 or 1978, when the victim was ten or eleven years old. The defendant was a coworker of the victim's father and had invited the victim to accompany him on a fishing trip to New Hampshire. It was during that trip that the assaults occurred. The victim did not come forward until January, 1997, first telling his family about the assaults and later reporting them to the authorities. At the time the indictments in this case were filed, the defendant was living in Florida and had not resided in Massachusetts since 1980.

At the time of the assaults, the statute of limitations provided:

"An indictment for murder may be found at any time after the death of the person alleged to have been murdered. An indictment for the crime or crimes set forth in sections seventeen, eighteen, nineteen and twenty-one of chapter two hundred and sixty-five [robbery and related crimes], or for conspiracy to commit such crime or crimes, or as accessory thereto, or any one or more of them may be found and filed within ten years of the date of commission of said crime or crimes. An indictment for any other crime shall be found and filed within six years after such crime or crimes has been committed; but any period during which the defendant is not usually and publicly resident within the commonwealth shall be excluded in determining the time limited."

G. L. c. 277, § 63, as amended through St. 1955, c. 781, § 1. As the crimes of rape of a child, G. L. c. 265, § 23, and indecent assault and battery on a child under the age of fourteen years, G. L. c. 265, § 13B, were not one of the crimes specified in the second sentence, they fell under the catchall "any other crime" category. The statute of limitations for both of those crimes was six years. Due to the tolling provision, however, the statute of limitations was tolled for both crimes from the time the defendant moved out of State in 1980.

In 1985, while the statute of limitations was still tolled on the defendant, the Legislature amended the statute. See St. 1985, c. 123.² The crime of rape of a child, among other crimes, was inserted in the second sentence of the statute, thus increasing the statute of limitations for that crime from six years to ten years. Because the statute of limitations for the crime of rape of a child was thereafter contained in the second sentence of the statute, it was no longer in the same sentence as the tolling provision. According to the interpretation urged by the defendant, this change rendered the tolling provision inapplicable to the crime of rape of a child, and the statute of limitations expired on that crime in 1995, ten years from the effective date of the amendment.

1. Applicability of the tolling provision. The defendant correctly points out the general rule that criminal statutes are to be strictly construed against the government. This rule arises out of the prohibition against vagueness and requires that "a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct in prohibited." Commonwealth v. Twitchell, 416 Mass. 114, 123 (1993), quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983). See Commonwealth v. Slome, 321 Mass. 713, 715 (1947). Any ambiguities in penal statutes are to be strictly construed against the government. See Commonwealth v. Wotan, 422 Mass. 740, 742 (1996) (use of "repeatedly" as element of crime created ambiguity as to whether word meant more than once, as urged by the Commonwealth, or whether it meant at least three times, as urged by defendant — both interpretations were reasonable but rule of strict construction required interpretation in favor of defendant). Statutes of limitation do not define criminal conduct, are not penal statutes, and may not be subject to such strict construction against the Commonwealth. Cf. Commonwealth v. Bargeron, 402 Mass. 589, 594 (1988) (extension of statute of limitations was procedural, not substantive). Even under the strict construction rule, however, "we do not reject `an available and sensible interpretation ... in favor of a fanciful or perverse one.'" Commonwealth v. Richards, 426 Mass. 689, 690 (1998), quoting Commonwealth v. Wotan, supra at 743.

Before the 1985 amendments, which added rape and other crimes to the category of crimes with a ten-year period of limitations, the statute of limitations had last been amended in 1955. Before the 1955 amendments,³ the statute of limitations was comprised of only two sentences and provided:

"An indictment for murder may be found at any time after the death of the person alleged to have been murdered. An indictment for any other crime shall be found and filed within six years after the crime has been committed; but any period during which the defendant is not usually and publicly resident within the commonwealth shall be excluded in determining the time limited."

G. L. (Ter. Ed.) c. 277, § 63. Thus, prior to 1955 there existed only two categories of statutes of limitations for crimes: murder, for which there was no statute of limitations, and all other crimes, for which there was a six-year statute of limitations, which was tolled during any period the defendant did not reside in Massachusetts. The 1955 amendment created a new, third category of crimes, at that time only robbery and related crimes, with a ten-year statute of limitations. The amendment accomplished this by inserting a new sentence into the middle of the statute.⁴ The Legislature did not otherwise amend the statute, thereby leaving the tolling provision attached, by a semicolon, to the "any other crime" category. The tolling provision, which up to that point had applied to all crimes except murder, was not directly connected to the new sentence. We think this is indicative not of intent to remove the specified crimes from the ambit of the tolling provision, but was instead simply a lengthening of the statute of limitations relating to certain crimes. Commonwealth v. Bargeron, 402 Mass. 589, 592 (1988) (principal thrust of 1955 amendment to § 63 was extension of time period and purpose of 1985 amendment was "simply the addition of new crimes to the list of those which carried a ten-year statute of limitations"). Indeed the legislation ultimately adopted as law was titled "An Act extending the statute of limitations relating to robbery and certain related crimes." 1955 Senate Doc. No. 868. See 1955 House Doc. No. 3173. A semicolon is sometimes used in an inartful manner. Properly read, however, this semicolon acts as a period and concludes the "any other crime" statute of limitations, and the tolling clause is an independent provision which applies to the previous limitations provisions.

Reading the tolling provision to apply only to the last sentence would lead to an absurd result — the defendant could not be prosecuted on the rape of a child charges but could still be prosecuted on the less serious charge of indecent assault. See Champigny v. Commonwealth, 422 Mass. 249, 251 (1996), quoting Attorney Gen. v. School Comm. of Essex, 387 Mass. 326, 336 (1982) ("We will not adopt a literal construction of a statute if the consequences of such construction are absurd or unreasonable"); Lexington v. Bedford, 378 Mass. 562, 570 (1979), quoting Bell v. Treasurer of Cambridge, 310 Mass. 484, 489 (1941) ("A literal construction of statutory language will not be adopted when such a construction will lead to an absurd and unreasonable conclusion, and the language to be construed `is fairly susceptible to a construction that would lead to a logical and sensible result'"). While reiterating the maxim that criminal limitations statutes are to be construed liberally in favor of repose, see United States v. Habig, 390 U.S. 222, 227 (1968), we decline to adopt such an absurd reading of the statute, and hold the tolling provision is applicable to the crime of rape of a child.

2. Constitutional analysis.⁵ Having determined that the tolling provision applies to the crime of rape, we turn now to the defendant's constitutional claims. The defendant claims that the tolling provision violated his due process right to a fair trial because the eighteen...