Com. v. Dutney

• Decision Date: 14 June 1976
• Citation: 348 N.E.2d 812,4 Mass.App.Ct. 363
• Parties: COMMONWEALTH v. Dexter DUTNEY (and five companion cases 1 ).
• Court: Appeals Court of Massachusetts

Page 812

348 N.E.2d 812

4 Mass.App.Ct. 363

COMMONWEALTH

v. Dexter DUTNEY (and five companion cases ¹).

Appeals Court of Massachusetts, Middlesex.

Argued March 11, 1976.

Decided June 14, 1976.

Charles J. Wilkins, Boston, Earl Auerbach, Boston, with him, for defendant.

Bonnie H. MacLeod-Griffin, Asst. Dist. Atty., for the Commonwealth.

Before HALE, C.J., and KEVILLE and GRANT, JJ.

GRANT, Justice.

Dutney and Grondine (defendants) have been convicted by a jury on separate indictments laid under the provisions of G.L. c. 268A, §§ 2(b), 3(b) and 17(a), ² respectively, and both have appealed. We consider those assignments of error (G.L. c. 278, § 33D) which are grounded on exceptions (Commonwealth v. Hall, --- Mass. ---, ---, ^a 343 N.E.2d 388 (1976)), which have been argued (Rule 1:13 of the Appeals Court, as amended effective February 27, 1975, --- Mass.App. ---), which have merit, and which are directed to questions which seem likely to arise upon the retrial which we hold is required.

1. We consider first the denial of the motions for directed verdicts which were presented by both defendants at the close of the Commonwealth's case. See Commonwealth v. Kelley, --- Mass. ---, --- ---, ^b3 346 N.E.2d 368 (1976). The following is a summary of the evidence most favorable to the Commonwealth at that time.

The defendants were two of the five members of the board of selectmen (board) of the town of Dracut (town), which was also the local licensing authority of the town for the purpose of passing initially on applications for licenses to serve alcoholic beverages. See G.L. c. 138, §§ 1, 15A and 16B.⁴ The other three members In mid March, 1973, one Roland Gariepy, the manager of a restaurant in Dracut owned by himself and his brothers Robert and Normand Gariepy, filed with the board an application for a license to serve alcoholic beverages at the restaurant. Following the required statutory notices and publication, the application came on for hearing before the board on April 3, 1973. Roland and Normand Gariepy attended the hearing, at which all five members of the board were present. No one spoke against the application, and the board voted unanimously to take the matter under advisement.

of the board were Robert Gallagher (chairman), Roger Daigle and William Day.

On April 9 or 10 Robert Gallagher had a conversation with his brother Thomas in front of the Dracut town hall. Thomas, who was vice-chairman of the Dracut school committee, was a political associate of both Grondine and Dutney. He had donated money to Grondine when he had first run for selectman and had worked in that campaign. He had also donated a small amount of money to Dutney's 1972 campaign for selectman. Robert said that he had been in touch with Grondine and Dutney and that they were uneasy about the vote on the Gariepy license application. He mentioned the possibility of strong opposition from people near the restaurant, said, 'Why should I, you know--you know, put out my political career and give Bob Gariepy a vote . . .', and stated that if Gariepy were to get a license he should pay for it. Robert stated his belief that Daigle and Day would vote in favor of issuing the license. Robert and Thomas agreed that a unanimous vote would be advantageous because if any opposition to a license should arise, no member of the board would be in a position to join in any criticism of the board's action in approving the application.

At its meeting of April 10 the board gave further consideration to the application. No one spoke in opposition. Daigle, seconded by Day, moved to approve the application. Robert Gallagher moved that the application be tabled for another week because (he said) he had a few questions he wanted to clear up. Daigle withdrew his motion; Day seconded Gallagher's motion; and Gallagher's motion passed unanimously. ⁵

On Sunday, April 15, Robert Gallagher caused the Dracut police to deliver to Roland Gariepy at his home a letter in which Gallagher accused Gariepy of saying that Gallagher was 'looking for a bribe' and in which Gallagher threatened to '(take Gariepy) to court on behalf of the selectmen.' Gariepy telephoned Dutney and read him the letter. Dutney said, 'Wait, I'll make a phone call and I'll get back to you.' Dutney did not call back. However, about ten minutes later, Thomas Gallagher called Roland Gariepy, apparently as a result of a telephone call he had just received from his brother Robert. Thomas stated that he represented the majority of the selectmen and requested Robert Gariepy's telephone number Roland Gariepy advised Thomas that he would have his brother Robert call him. When Robert Gariepy did call Thomas Gallagher, the latter said, 'My brother is fighting with When they did meet on the following morning (April 16) Thomas Gallagher said to Robert Gariepy, 'If you are interested in getting . . . (the license), it will cost you $2,000', adding that he could 'guarantee' the votes of Robert Gallagher and of Dutney and Grondine. Robert Gariepy replied that getting the money would not be a problem but that he would have to discuss the matter with his brothers.

                yours.  Would it be possible to get together with you and discuss this thing?'   The two agreed to meet the following morning
                

The next morning (April 17) the three Gariepy brothers met and agreed among themselves that they would pay the $2,000. Robert Gariepy then met with Thomas Gallagher. Gariepy said, 'I understand in politics that if you have something and I want that something, I have to pay for that something. Why should I make money and you people who gave me that certain thing, not make anything on the deal?' Gallagher repeated the terms of the deal he had proposed the day before, stating again that he could guarantee the votes of his brother Robert and of Dutney and Grondine. Gariepy gave Gallagher $2,000, which Gallagher counted and put in his pocket. Gallagher left the meeting and proceeded to his brother Robert's apartment, where he gave Robert $500 of the $2,000.

That evening (still April 17) Roland and Normand Gariepy attended another meeting of the board at which the matter of the license application again came up for further consideration. Robert Gallagher said, 'We held up Mr. Gariepy long enough. We will give him his license.' The board then voted unanimously to approve the license application. Following the meeting Thomas Gallagher met Dutney in the men's room of a restaurant, apparently by chance. Gallagher said, 'What do you want to do about the money?' Dutney replied, 'No hurry on the money, no hurry.'

The next afternoon (April 18), following a visit to his brother in the latter's apartment, Thomas Gallagher went to Grondine's home, arriving between 6:00 and 7:00 P.M. Grondine's wife met Gallagher and told him Grondine was in the bathroom taking a bath. Gallagher asked if he could see Grondine in the bathroom, to which Mrs. Grondine replied in the affirmative. Gallagher went into the bathroom, gave Grondine $500 and said, 'Compliments of Mr. Gariepy. This is the Gariepy thing.' Grondine said, 'Thank you. Don't tell my wife.'

Gallagher departed and drove to Dutney's house. Gallagher gave Dutney $500 and said, 'This is from Mr. Gariepy, the Gariepy thing.' Dutney said, 'Thank you' and asked Gallagher not to say anything to his wife (Janice). Gallagher replied, 'Of course, I wouldn't say anything to Janice. I wouldn't say anything to anybody.' Gallagher added, 'As far as you know you don't even know which Gariepy I met with. All you know is: You got the money.'

There was direct evidence that $500 of the Gariepy money went to each defendant. There was ample evidence from which the jury could reasonably infer (see Commonwealth v. Barker, 1311 Mass. 82, 90--91, 40 N.E.2d 265 (1942)) that Thomas Gallagher was acting as the authorized agent (bagman) of both defendants. Compare Commonwealth v. Connolly, 308 Mass. 481, 485, 489--490, 33 N.E.2d 303 (1941). See also Commonwealth v. Mannos, 311 Mass. 94, 108, 40 N.E.2d 291 (1942). The jury could also infer (1) from the short period of time intervening between Gallagher's original assurance of the votes of both defendants (repeated by him at the time the money was first passed) and the actual casting of those votes (compare Commonwealth v. Galvin, 310 Mass. 733, 745, 39 N.E.2d 656 (1942)) and (2) from the failure of both defendants when they received their respective shares of the money to inquire as to the reason for the sudden generosity of the Gariepys (compare Commonwealth v. Kelley, 359 Mass. 77, 91--92, 268 N.E.2d 132 (1971)) that both defendants Accordingly, we have no hesitation in concluding that the motions for directed verdicts, so far as they challenged the sufficiency of the evidence, were properly denied as to all six indictments. ⁶ We shall consider at a later point in this opinion whether the defendants were properly convicted and sentenced on all three of the respective indictments against them.⁷

had solicited a bribe from the Gariepys and had voted in the expectation of receiving, and had received, the same. The inferences thus suggested were reinforced as to Dutney by his remarks to Gallagher ('No hurry on the money, no hurry') almost immediately following his vote. The consciousness of guilt inherent in the separate requests of both defendants that Gallagher not tell their respective wives could hardly have escaped the jury. The evidence was clearly sufficient to warrant findings that both defendants had violated the provisions of G.L. c. 268A, § 2(b). If the jury wished to reject the evidence of corrupt intent, they could properly find violations of G.L. c. 268A, § 3(b) and § 17(a).

2. The defendants duly excepted to and assigned as error the judge's denial of five of their virtually identical requests for instructions. Four of those requests were addressed to the alleged insufficiency of the evidence to warrant particular findings and raise no question not already...