Commonwealth v. Canon

368 N.E.2d 1181, 373 Mass. 494, 1977 Mass. LEXIS 1104

• Court: Massachusetts Supreme Judicial Court
• Decided: October 19, 1977
• Status: Published

Opinions

By the Court.

The defendant was convicted of violating the conflict of interest law, G. L. c. 268A, § 17 (a) .1 He contends: (1) There was no evidence that he rendered any services to the individuals interested in a real estate venture in which he invested, and their interest was not adverse to the interest of the city where he was a city engineer. (2) His constitutional right to a speedy trial was denied. (3) The testimony of a coindictee at a previous civil trial was erroneously admitted in evidence. (4) The judge erroneously instructed the jury on the meaning of reasonable doubt. We affirm his conviction.

On April 8, 1974, the defendant was indicted for violation of G. L. c. 268A, §§ 2 (b), 3 (b), 17 (a), and 19. He was convicted under § 17 (a) but acquitted of the other three charges. He was sentenced to probation for a year, and the probation was terminated on his motion in October, 1975. The case was made subject to G. L. c. 278, §§ 33A-33H, and we transferred the appeal to this court on our own motion.

The following facts are not in dispute. For several years ending in August, 1968, the defendant was the city engineer of Marlborough. Curley was a real estate broker, and Lynch was an attorney. In January, 1968, the three agreed to contribute $500 each to an investment in an option on land in the city, with a view to obtaining a special permit for apartments. The defendant gave Curley a check for $500, the permit was obtained, the land was bought for $40,000 and resold for $100,000, and the defendant received $5,500 in the summer of 1968, the return of his investment and part of his share of the profit. Later he sued Curley and Lynch for the balance of his share, and they defended on the ground that the agreement was illegal under G. L. c. 268A. At trial of the civil action in 1974 the judge directed a verdict for the defendants and referred the case to the district attorney. Further facts will be stated in connection with the claims of error.

1. Directed verdict. The defendant’s motion for a directed verdict was made and denied at the close of the Commonwealth’s case, at the end of all the evidence, and again, at the invitation of the judge, after the verdict. The following evidence, viewed in a light most favorable to the Commonwealth, is pertinent. Lynch was attorney for the owner of the land, and told the owner that a local broker, Curley, was interested in buying it. In 1967 the defendant and Lynch discussed pooling their professional talents and money, and in December, 1967, the defendant advised Curley and Lynch that the land could be connected to Marlborough sewerage, giving them a rough cost figure. Lynch told Curley that he had been to the defendant’s office and that the deal would not go through unless the defendant “was aboard.” Thereafter Curley went to the defendant’s office to examine a plot plan and a topographical survey with respect to the extension of sewer lines. The defendant told Curley the property could be serviced by sewers “if I say it can be,” but “unless I’m aboard on this thing, this doesn’t go.” On January 9, 1968, the defendant met with Curley and Lynch and declared that “there’s no way this is going any place without me aboard.” He then executed his check and left it on the table, and it was agreed that the defendant would contribute general engineering advice to the project. The agreement was not put in writing because of the defendant’s position as city engineer and Lynch’s association in law practice with the mayor and city solicitor. The next day, January 10, Curley and the owner of the land executed a purchase and sale agreement for a price of $40,000 with a $1,000 deposit, contingent on the special permit.

The defendant’s responsibilities as city engineer included evaluating plans for the installation of utilities including sewer and water service in new housing developments. A plan of the project was seen on a drafting table in his office, and he said he had made a study of the project and had reached certain conclusions about sewer and water service. But his superior told him he need not become involved, since the project had been assigned to a private consulting firm.

The statute, G. L. c. 268A, § 17 (a), provides: “No municipal employee shall, otherwise than as provided by law for the proper discharge of official duties, directly or indirectly receive or request compensation from anyone other than the city or town or municipal agency in relation to any particular matter in which the same city or town is a party or has a direct and substantial interest.” It is beyond question that the evidence warranted findings that the defendant was a “municipal employee,” that he received an economic benefit from persons other than the city, that he received it “in relation to” the special permit for the apartment project, that the granting of the permit was a “particular matter,” and that he was not acting “as provided by law for the proper discharge of official duties.” It is contended, however, that the economic benefit was not “compensation,” defined in G. L. c. 268A, § 1, as “any money, thing of value or economic benefit conferred on or received by any person in return for services rendered or to be rendered by himself or another.” It is further contended that the city was not a “party” and did not have “a direct and substantial interest” in the permit.

As to “compensation,” the contention is that the defendant received money as a return on his investment rather than “in return for services rendered or to be rendered.” But we think the jury were warranted in finding that the defendant requested and received compensation in the form of an opportunity to participate in the realty investment, and that he received that compensation, at least in part, in return for his promise of general engineering advice “to be rendered” by him. That was enough to make it “compensation,” even if no services were ever rendered or if the investment produced no profit. Moreover, there was evidence that some services were actually rendered, and that the investment did produce profit. The value of the investment was contingent on the granting of the special permit, which occurred on April 15, 1968, and the defendant received money on account of the profit the following summer. We think he may properly be said to have “received” compensation after April 8, 1968. Cf. Commonwealth v. Dutney, 4 Mass. App. Ct. 363, 368-369 (1976) . He was indicted within the six-year limitation period thereafter. G. L. c. 277, § 63. We need not pass on the Commonwealth’s contention that he was paid for the negative service of not blocking the project.

As to the city’s “interest” in the granting of the special permit, we think it is clear that the “interest” need not be financial. Cf. G. L. c. 268A, § 4, where there is explicit reference to a “financial interest.” It is hard to hypothesize a “particular matter” involving municipal action in which it can be said with assurance that the municipal interest is indirect or insubstantial. Certainly the city’s interest in the proper sewerage for a major apartment development was neither remote nor inconsequential. It is contended, however, that the city’s interest was not adverse to that of the developers, since there was testimony that the project was a “good deal” for the city. We need not consider whether there is any requirement that the interest of the city be adverse to that of the person paying the compensation. For any such requirement is fully met when the payor is applying for a municipal decision and the city is cast in the role of objective and impartial arbiter.

The defendant suggests, though he does not argue in any comprehensible way, that the judge’s instructions were somehow inadequate. The judge outlined what the statute says, using the statutory language, and the defendant took no exception to the charge. Though the charge may not have been as complete nor as helpful as it might have been, we think it was adequate. As the judge said to counsel, the jury probably had no choice but to come back with a verdict of guilty, since the defendant had admitted the essential elements of the crime.

2. Speedy trial. The pre-indictment delay from 1968 to April, 1974, seems to be attributable to the secrecy of the venture. See United States v. Lovasco, 431 U.S. 783 (1977) . More than two months after the indictments the defendant filed several discovery motions, accompanied by a motion for speedy trial, but his counsel did not appear on the date scheduled for a hearing on those motions. Without objection, the hearing was postponed until October, 1974. At that time the prosecutor expressed willingness to try the case in November, but the defendant’s motion to sever his trial from those of Curley and Lynch was allowed and the prosecutor wanted to try one or both of them before the defendant. The defendant made a renewed motion for speedy trial in November, but for reasons not disclosed it was not heard until January, 1975. Trial of Curley and Lynch had been scheduled for January 20, and the defendant’s case was scheduled as the first case out on February 3. On January 28, however, the judge vacated that order. A motion filed on April 2 to dismiss for want of a speedy trial was denied on April 8, and trial began April 16, 1975, about a year after the indictments. In the absence of any showing of prejudice, we think no denial of the defendant’s constitutional right to a speedy trial is shown by this sequence of events. Barker v. Wingo, 407 U.S. 514, 530-531 (1972). Although the delay was substantial, the defendant was not incarcerated, and there was no problem of loss of witnesses or failure of memory during the period of delay attributable to the prosecutor. That period was a little over six months, and is explained in part by the problems arising from the allowance of the defendant’s motion to sever.

3. Recorded testimony. At the trial, out of the hearing of the jury, Curley invoked his privilege against self-incrimination, and the judge allowed a motion to introduce his recorded testimony at the civil trial. It is now claimed that the admission of this evidence violated the defendant’s constitutional right to confront the witnesses against him.

Although the defendant does not argue the point, we note that prior recorded testimony is admitted when the witness is unavailable. We have applied this rule to witnesses who were dead, missing, or physically unable to testify. Commonwealth v. Clark, 363 Mass. 467, 470 (1973), and cases cited. We now apply it to a case where the witness makes a plausible claim of his privilege against self-incrimination, and is excused from testifying by the judge. United States v. Elmore, 423 F.2d 775, 778 (4th Cir.), cert, denied, 400 U.S. 825 (1970). United States v. Mobley, 421 F.2d 345, 350-351 (5th Cir. 1970). See McCormick, Evidence § 253 (2d ed. 1972); 4 J. Weinstein & M. Berger, Evidence par. 804 (a) [01] (1976); Annot., 45 A.L.R.2d 1354 (1956).

The defendant contends that evidence given at a prior civil trial is not admissible at a subsequent criminal trial, since the parties and issues are not the same. We disagree. There is no requirement of “privity,” “reciprocity,” or “mutuality”; it is only the party against whom the prior testimony is now offered whose presence in the prior suit is significant. See McCormick, Evidence § 256 (2d ed. 1972); 5 J. Wigmore, Evidence § 1388 (Chadbourn rev. 1974). The significant feature is whether that party had an adequate opportunity for cross-examination at the prior trial. Cf. Travelers Fire Ins. Co. v. Wright, 322 P.2d 417, 421 (Okla. 1958) (testimony in prior criminal case admitted in civil action). See McCormick, supra, § 257; Fed. R. Evid. 804 (b) (1) (1975).

Actual cross-examination at the prior trial is not required, but the party against whom the testimony is now offered must have had an adequate opportunity to exercise the right to cross-examine if desired. See 4 J. Weinstein & M. Berger, supra, par. 804 (b) (1) [02]. The defendant in the present case called Curley as a witness in the prior civil case, and was entitled to cross-examine him as an adverse party. G. L. c. 233, § 22. The substantial question is whether the defendant then had an adequate motive for the testing on cross-examination of the credibility of Cur-ley’s testimony. See 4 J. Weinstein & M. Berger, supra, par. 804 (b) (1) [04]; McCormick, supra, § 257. The defendant was the plaintiff in the civil case, and Curley as one of the defendants in the civil case was defending on the ground that the agreement of the parties was illegal by reason of violation of G. L. c. 268A. That issue was substantially the same as the issue tried in the present case. It is not fatal that, as a tactical matter, the examination of Curley at the civil trial was primarily directed to the formation and terms of the agreement rather than to its illegality. Cf. Poe v. Turner, 490 F.2d 329, 331 (10th Cir. 1974) (cross-examination waived “on a matter that was not a real issue”). The formation and terms of the agreement were very damaging to the defendant on the issue of illegality in both trials.

The defendant argues that his constitutional right to confront the witnesses against him imposes more rigorous limitations than the general law of evidence. He relies particularly on Mancusi v. Stubbs, 408 U.S. 204, 216 (1972), where the Court said that the prior testimony there in issue bore sufficient “indicia of reliability” and afforded “the trier of fact a satisfactory basis for evaluating the truth of the prior statement.” In that case the defendant’s first conviction had been set aside by reason of denial of the effective assistance of counsel, and at his second trial an important witness had become unavailable. Recorded testimony given by that witness at the first trial was admitted in evidence, and the defendant contended that the cross-examination at the first trial had been inadequate. The Court held that constitutional requirements were satisfied, since “there was an adequate opportunity to cross-examine” at the first trial, and counsel “availed himself of that opportunity.”

We do not think the Court intended to lay down an absolute requirement of actual cross-examination as well as adequate opportunity for cross-examination for cases like the present in which there was no problem of ineffective assistance of counsel. In the present case “indicia of reliability” are furnished by the fact that the defendant, as plaintiff in the civil case, had called Curley as a witness to provide part of the basis for his claim, and by the fact that the defendant’s own testimony at both trials corroborated much of Curley’s testimony.

4. Reasonable doubt. In his charge on reasonable doubt, the judge instructed the jury that they must be convinced of the defendant’s guilt with “the kind of certainty you have when you are involved in those matters of the highest importance to you in your own life.” We have several times criticized such instructions as confusing degree of certainty with degree of importance. As in many other such cases, we think the charge in this case, taken as a whole, adequately conveyed the concept of proof beyond a reasonable doubt. See, e.g., Commonwealth v. Fielding, 371 Mass. 97, 116-117 (1976). Contrast Commonwealth v. Ferreira, ante, 116, 128-129 (1977).

Judgment affirmed.

1 General Laws c. 268A was inserted by St. 1962, c. 779, § 1. Subsequent amendments do not affect the present case.