Commonwealth v. Bargeron

524 N.E.2d 829, 402 Mass. 589, 1988 Mass. LEXIS 172

• Court: Massachusetts Supreme Judicial Court
• Decided: June 14, 1988
• Status: Published

Opinions

Nolan, J.

The defendant was indicted on March 18, 1987, on three counts of assault with intent to rape. G. L. c. 265, § 24 (1986 ed.). The indictment alleged that the offenses occurred in November, 1979 (count 1), January, 1980 (count 2), and April, 1980 (count 3). Assault with intent to rape is one of the many crimes governed by the statute of limitations set forth in G. L. c. 277, § 63 (1986 ed.). On the dates of the alleged offenses, § 63 provided a six-year period of limitations. However, in July, 1985, by force of St. 1985, c. 123, § 63 was amended, effective September 30, 1985, and the period of limitations for these crimes was extended from six years to ten years. This amendment became effective on September 30, 1985, a date within six years of the alleged commission of the crimes. To contest the vitality of the indictment and the applicability of the amendment of § 63 to the indictment, the defendant filed a motion to dismiss. The issue was reported to the Appeals Court pursuant to Mass. R. Crim. P. 34, 378 Mass. 905 (1979). We granted the defendant’s application for direct appellate review.

The defendant challenges the application of the amended statute of limitations on two fronts: (1) constitutional jurisprudence; and (2) statutory interpretation.

1. Constitutional attack. In both art. 1, § 9, of the United States Constitution and art. 24 of the Declaration of Rights of the Massachusetts Constitution, there is found protection from the operation of ex post facto laws. The classical exposition of an ex post facto law is found in the primordial case of Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798): “1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. ” (Emphasis in original.)

It seems clear that the extension of the statute of limitations falls into none of these categories. It simply extends the time within which the government may prosecute. Courts have been consistently uniform in adopting this view. United States ex rel. Massarella v. Elrod, 682 F.2d 688, 689 (7th Cir. 1982). Falter v. United States, 23 F.2d 420, 425-426 (2d Cir. 1928). The defendant seeks to enlist the support of United States v. Richardson, 512 F.2d 105 (3d Cir. 1975), but it fails to deliver. Richardson was decided entirely on a divining of congressional intent and not on Federal constitutional grounds. In fact, the court there conceded that Congress had the power to extend the statute of limitations without violating the ex post facto clause.

As to the Massachusetts Constitution, no case has been discovered which applies the ex post facto provision of art. 24 to the extension of a statute of limitations, but Commonwealth v. Greenberg, 339 Mass. 557, 578-579 (1959), is instructive. In Greenberg, the Commonwealth introduced documentary evidence against the defendants by force of G. L. c. 233, § 78, the so-called business record exception to the hearsay rule. At the time of the alleged crimes, § 78 was applicable only to civil cases. Before trial, it was amended to become applicable to criminal cases, a virtual boon to the prosecution of the defendants in Greenberg. The court had no difficulty in holding that the amendment operated retrospectively because it related merely “to the remedy or procedure which do not affect such substantive rights.” Id. at 578. The same can be said for the amendment to § 63 in the present case.

The defendant’s cause is advanced no further under the banner of due process and, quite understandably, he cites no authority for deciding that the extension of the statute of limitations in these circumstances violates his due process rights.

2. Statutory interpretation. The defendant argues that the Legislature did not intend the 1985 amendment to operate retrospectively. He finds support, so he argues, in the express language of an earlier amendment to § 63, St. 1955, c. 781, § 2, where the Legislature provided for retroactivity, whereas, in St. 1985, c. 123, such language is missing. However, it should be noted that the principal thrust of St. 1955, c. 781, was the extension of the time period. The purpose of St. 1985, c. 123, was simply the addition of new crimes to the list of those which carried a ten-year statute of limitations. Significantly, the crimes added are rape of child, G. L. c. 265, § 22A (1986 ed.), rape and abuse of child (G. L. c. 265, § 23 [1986 ed.]), assault with intent to commit rape (G. L. c. 265, § 24) and assault on child with intent to commit rape (G. L. c. 265, § 24B [1986 ed.]). All but one of the crimes in this case concern sexual abuse of children. Furthermore, we have approved retrospective application of statutes which contain no language calling for their retrospective application. See Green-berg, supra at 578-579 (St. 1954, c. 442, § 1, amending G. L. c. 233, § 78, contained no language directing retrospective application).

A canvass of cases throughout the country reveals a hopeless split among the jurisdictions. Some States categorically apply a subsequent statute of limitations to offenses not already time-barred when the new statute of limitations becomes effective.¹ In other jurisdictions, the legislative intent is crucial as to whether the amended statute of limitations should apply retrospectively.² Finally, in some jurisdictions, the courts have simply declared that the statute of limitations is substantive and, hence, may operate only prospectively.³

It may be argued that the Legislature recognized the delays commonly and understandably associated with a child’s report of sexual abuse and wished to accommodate such delays by an extension of the statute of limitations. It makes good sense for the Legislature to consider what is increasingly one of the great scourges of our society — the sexual abuse of children. We have a right to consider the precise evil which is targeted in legislation under review. See Commonwealth v. Collett, 387 Mass. 424, 432 (1982). Accordingly, it is not reasonable to assume that the Legislature intended to delay the application of the new ten-year statute of limitations which would eventuate if the amendment applied only to crimes occurring after its enactment.

Moreover, apart from legislative intent, the extension of the statute of limitations is remedial and procedural, not substantive. United States ex rel. Massarella v. Elrod, 682 F.2d 688, 689 (7th Cir. 1982). “Statutes relating merely to the remedy or procedure which do not affect substantive rights are generally held to operate retroactively.” Commonwealth v. Greenberg, supra at 578-579. People v. Masry, 179 Cal. App. 3d 1149 (1986).

In conclusion, there is no constitutional or statutory barrier to the application of the amendment to § 63 to this indictment and the motion to dismiss should be denied.

So ordered.

1 See, e.g., People v. Smith, 171 Cal. App. 3d 997 (1985) (prosecution was timely based on double extension of statute of limitations where each extension was effective before then-applicable limitations period had run); People v. Whitesell, 729 P.2d 985 (Colo. 1986) (amendment extending applicable statute of limitations applied to all offenses not time-barred as of its effective date); People v. Massarella, 80 Ill. App. 3d 552 (1979) (legislature can extend statute of limitations as long as original has not expired), cert. denied, 449 U.S. 1077 (1981); People v. Liebling, 36 Ill. App. 3d 1073 (1976) (crimes were reclassified so that they fell under long statute of limitations; court held defendant could be prosecuted under the new statute of limitations because reclassification occurred before expiration of original statute); State v. Ferrie, 243 La. 416 (1962) (prior to expiration of statute of limitations effective at time of offense, defendant had no substantial right in limitations and application of longer statute of limitations was permissible); Beaird v. State, 734 S.W.2d 17 (Tex. App. 1987) (amendment permissibly extended limitation period to five years unless prosecution of offense was barred by limitations prior to the effective date of extension); Rose v. State, 716 S.W.2d 162 (Tex. Ct. App. 1986) (statute extending period of limitations applies to all offenses not time-barred; statute of limitations is procedural); Archer v. State, 577 S.W.2d 244 (Tex. Crim. App. 1979) (although statute of limitations was one year originally, defendant could be indicted more than one year but less than three years after offense where statute of limitations was extended to three years before expiration of first statute of limitations); State v. Hodgson, 108 Wash. 2d 662 (1987) (where Legislature extended statute of limitations, new period of limitations applied to offenses not already time-barred when new enactment was adopted and became effective).

2 See, e.g., State v. Creekpaum, 732 P.2d 557 (Alaska 1987) (even where there is express legislative intent that new statute be applied retroactively, statute will not be applied in that manner where it operates to detriment of accused); Martin v. Superior Court, 135 Ariz. 99 (1983) (new statute of limitations will not be applied retroactively unless that is clearly the intent of the Legislature); State v. Paradise, 189 Conn. 346 (1983) (absent clear language necessitating retroactive effect, criminal statute of limitations will be applied prospectively; court did not decide whether statute of limitations is procedural or substantive); State v. Merolla, 100 Nev. 461 (1984) (absent clear legislative intent to the contrary, amendment extending statute of limitations operates prospectively only).

3 Stoner v. State, 418 So. 2d 171, 178 (Ala. Crim. App. 1982) (statute of limitations in a criminal prosecution is a substantive right), cert. denied, 459 U.S. 1128 (1983); Rubin v. State, 390 So. 2d 322, 324 (Fla. 1980) (statute of limitations vests a substantive right, so statute of limitations in effect at time of incident is controlling); State v. Frech Funeral Home, 185 N.J. Super. 385 (1982) (statute of limitations is substantive and may not be applied to offenses commited prior to effective date).