NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Porter, 462 Mass. 724 (2012)

CONTRIBUTING EDITOR: ERIN GORMLEY I. Procedural History

A grand jury indicted the defendant on ninety-three counts of failing to timely pay her employees.1 A Superior Court judge presided over three hearings on the issue of whether the defendant was indigent.2 The judge found the defendant “not indigent” and “certified the correctness of her decision to the Appeals Court.”3 The Supreme Judicial Court granted the defendant’s application for direct appellate review.4 II. Facts The defendant was indicted on ninety-three counts of “failure to pay wages timely.”5 At the time the defendant was arraigned, she filed an affidavit of indigency and “sought appointment of counsel at public expense.”6 Three hearings were held regarding whether the defendant satisfied indigency status.7 The defendant appeared at the hearings without counsel, where she argued that: (1) “she had little to no discretionary income,” and (2) two of the three properties she owned were “subject to mortgages and tax liens, hindering their conversion to cash.”8 At the hearings, the judge “inquired about the nature of the properties owned by the defendant and her husband” and “encouraged the defendant to introduce any evidence” to show the “illiquidity” of her properties.9 The
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Commonwealth v. Porter, 462 Mass. 724, 725-726 (2012). Id. Id. at 725. Id. Id. at 725. Id. Commonwealth v. Porter, supra at 726. Id. at 725. Id. at 726-727.

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defendant and her husband owned the first property jointly.10 The defendant stated that the property was subject to a mortgage and to State and Federal tax liens; however, the defendant did not provide any evidence of the liens “despite the judge’s warning that she had the burden to do so.”11 The defendant stated that the second property, which was owned by the defendant’s husband, was also subject to a mortgage and tax liens.12 The defendant did not provide any record of such liens.13 The defendant stated that the third property, a single-family home inherited by the defendant’s husband, was not subject to any mortgage or encumbrances and that it was rented for $1,500 per month.14 Holding that the burden of proving indigency rests with the defendant, the judge found the defendant “not indigent and thus ineligible for courtappointed counsel.”15 III. Issues Presented 1. Was the Superior Court judge correct in holding that a criminal defendant who seeks the “appointment of counsel at public expense bears the burden of proving indigency by a preponderance of the evidence”?16 2. Were the defendant’s rights under the U.S. Constitution and the Massachusetts Constitution violated by the Superior Court’s application of S.J.C. Rule 3:10, which allows for “the income of a defendant’s spouse to be attributed to the defendant” when determining indigency status for purposes of appointing counsel?17 IV. Holdings and Reasoning The Superior Court correctly held that a criminal defendant who seeks the appointment of counsel at public expense “bears the burden of proving indigency by a preponderance of the evidence.”18 When allocating the burden of proof, an appellate court must determine which party should hold the risk of “failure of proof.”19 In the present case, “neither party offered proof regarding whether the three properties were liquid assets.”20
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Id. at 727. Id. 12 Id. 13 Commonwealth v. Porter, supra at 727. 14 Id. 15 Id. at 725, 729. 16 Id. at 730. 17 Id. at 734. 18 Id. at 730. 19 Commonwealth v. Porter, supra at 731, citing 2 McCormick on Evidence § 337, at 564 (K.S. Brown ed., 6th ed. 2006).
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Id.

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A majority of Federal and State courts have ruled that the burden of proof lies with the defendant who is claiming indigency.21 Further, because a criminal defendant is the party with “all the material proof” concerning her own wealth and is “asserting a negative” (i.e., “lack of funds”), it is logical that she should be required to bear the risk of failure of proof.22 The defendant’s State and Federal constitutional rights were not violated by the Superior Court’s application of S.J.C. Rule 3:10.23 Although there is no Federal constitutional standard by which to determine indigency, the applicable state standard is the “rational connection” test for rebuttable presumptions.24 The test requires that there be “some rational connection between the fact proved and the ultimate fact presumed” and that it “must not, under guise of regulating the presentation of evidence, operate to preclude the party from the right to present his defense to the main fact thus presumed.”25 Here, the test is “easily satisfied” because: (1) the defendant can rebut the Rule 3:10 presumption that a spouse who resides with the defendant and contributes to living expenses will contribute to the cost of counsel by proving, by a preponderance of the evidence, that the spouse is unwilling to contribute; (2) there is a plainly rational connection between one’s status as a spouse and one’s “willingness to pay for [the] defendant’s counsel,” as a spouse has a duty to contribute to the costs and necessities of his or her fellow spouse; and (3) nothing in the record suggest that the presumption was “under guise” of denying the defendant “her right to appointed counsel.”26

Id. Id. at 732-733. 23 Id. at 736. 24 Id. at 734-735. 25 Commonwealth v. Porter, supra at 734, quoting Mobile, Jackson & Kan. City R.R. v. Turnispeed, 219 U.S. 35, 43 (1910).
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Id. at 734-735.

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