Com. v. Edgerly

Decision Date19 April 1978
CourtAppeals Court of Massachusetts

P. J. Piscitelli, Brockton (Elaine M. Epstein, Boston, with him), for defendant.

James W. Sahakian, Asst. Dist. Atty., for the Commonwealth.

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

HALE, Chief Justice.

The defendant was tried before a sequestered jury on an indictment charging larceny by false pretenses of more than one hundred dollars from the Chevrolet Motor Division of the General Motors Corporation (G.M.). He was found guilty and sentenced. The trial was subject to G.L. c. 278, §§ 33A-33G. Initially we shall relate briefly facts which could have been found by the jury, and we shall then provide such further details as are necessary to discussion of the defendant's various assignments of error.

During the time period covered by the indictment, March 1, 1969, through February 19, 1975, Edgerly was employed as the director of service at Butler Chevrolet, Inc. (Butler), in Lowell. As such he was responsible for signing warranty claims (form 970) and submitting them to G.M. 1 Each mechanic who performed the work for which a credit was claimed was paid a percentage of the amount of those repairs. Supervisory employees (including Edgerly) were given, in addition to their salaries, a percentage of the total amount of warranty claims for each month.

In addition to the genuine warranty claims he submitted, the defendant prepared and submitted 970 forms in connection with cars brought in for service for work which was never done and for parts which were never used. This procedure was known as "hitting the tickets" with an "add on." Warranty repair claims were also submitted on cars which had not been brought in for service.

The defendant was active in this scheme and took certain actions to ensure that it would go undetected. He kept records to make certain that vehicles were not the subject of the same false warranty claim more than once. He directed the mechanics as to the types of repairs to claim in order to avoid the same kinds of repair being claimed too often. He made payments and gave gifts to G.M. representatives to ensure the continuation of the scheme without interference by G.M. When two field representatives from G.M. asked too many questions and supervised the mechanics too closely, the defendant staged a walkout of the mechanics, instructing them to complain that they felt they were being interfered with in their work by the constant presence of G.M. personnel.

Edgerly based his defense principally on his lack of criminal intent to defraud G.M. His cross-examination of witnesses was directed mainly toward showing that during the period covered by the indictment it was common practice in the industry for service writers to inflate repair orders for work not actually performed on automobiles or for parts not actually used and that during that period employees of G.M. were aware of the warranty padding and not only condoned it but encouraged an arrangement between G.M. and Butler whereby Butler was allowed to pad its warranty claims in exchange for which (among other things) it would market undesirable used cars and "production line mistakes," which are cars difficult to sell because of their color combinations. The theory of the defense was that, if the jury believed such testimony, they would find that the defendant had formed a belief that his actions were not criminal because G.M. had participated in and condoned them and the jury would conclude that the defendant lacked the intent to steal required for a conviction.

At the outset we note that the trial lasted twenty days and that the transcript fills twenty-eight volumes. The defendant has made thirty-three assignments of error and has argued twenty-two of them. Neither at trial nor on appeal has defense counsel left unturned any stone which he could possibly move. While we do not fault aggressive representation, we do caution against argument of frivolous or contrived issues. In the course of a hard fought trial such as this, many small errors will occur. Those errors do not call for reversal if it is clear that they in no way affected the outcome of the trial. It has been said that "(a) defendant is entitled to a fair trial, but not a perfect one." Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 490, 97 L.Ed. 593 (1952). Our review of the entire record has convinced us that the defendant did receive a fair trial consistent with the standards set out in the United States Constitution and the Massachusetts Declaration of Rights. For the reasons outlined in this opinion we affirm the defendant's conviction.

We turn now to our consideration of 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, 3 Mass.App. ---), and which merit discussion.

The Witness Donald Tremblay

A voir dire was held for the purpose of determining whether Donald Tremblay, a prosecution witness who had been granted immunity pursuant to G.L. c. 233, §§ 20C-20I, had been threatened and intimidated by the prosecutor. Tremblay was the office manager and "controller" of Butler during much of the time relevant to the indictment. At trial he proved to be a recalcitrant witness. Under cross-examination he gave testimony favorable to the defendant in several respects. The next day under redirect examination by the prosecutor, Tremblay became evasive and forgetful and was declared a hostile witness. On recross-examination defense counsel asked Tremblay whether he had consulted at length with the prosecutor regarding his testimony. Instead of responding, Tremblay asked to speak with his attorney and was allowed to do so. When the trial resumed the prosecutor requested a voir dire. At the voir dire it was adduced that the witness felt threatened and intimidated by certain remarks made by the prosecutor. 2 At the close of the voir dire the judge stated that he found no intimidation and no pressure, that the prosecutor's statements were an "admonition to speak the truth and that if the witness were indeed not telling the truth, . . . (the prosecutor) would present the matter before the grand jury." 3 The defendant excepted to that ruling.

When Tremblay resumed the stand in the presence of the jury he testified to the same effect as on voir dire. At one point in his testimony the judge interrupted the questioning and informed the jury that there had been an extended voir dire hearing on the question of intimidation and that "the court has determined as a matter of fact that the conversation between the district attorney and the witness was to the effect that the district attorney told him that if he was not telling the truth, or conversely, if he was lying, that he would be faced with possible grand jury action for perjury. Subjectively, the witness took this as a threat or an intimidation; but the court has determined that the action of the district attorney in informing him if he was not telling the truth, that he'd be liable for perjury, in no way constituted a threat or intimidation." The defendant excepted to that statement and continued with his examination.

The defendant argues (1) that the judge abused his discretion in granting a voir dire on the issue of Tremblay's testimony, (2) that the judge improperly curtailed cross-examination of the witness before the jury by excluding a line of questioning, and (3) that the judge usurped the function of the jury by "ruling" as a "matter of fact" that the witness had not been intimidated. We discuss those arguments seriatim.

1. The judge acted within his discretion in granting the voir dire. See Commonwealth v. Douglas, 354 Mass. 212, 225, 236 N.E.2d 865 (1968), cert. denied, 394 U.S. 960, 89 S.Ct. 1301, 22 L.Ed.2d 562 (1969); Commonwealth v. Kelly, 1 Mass.App. 441, 445, 300 N.E.2d 443 (1973).

2. We have reviewed the transcripts of Tremblay's testimony on voir dire and in the presence of the jury, and we do not find any material difference. Tremblay was permitted to tell the jury what the prosecutor had said to him and that he had felt threatened by it. The judge excluded only hearsay statements and cumulative or redundant testimony. See Commonwealth v. Smith, 329 Mass. 477, 479, 109 N.E.2d 120 (1952); Commonwealth v. Underwood, 358 Mass. 506, 513, 265 N.E.2d 577 (1970); Commonwealth v. Turner, --- Mass. ---, --- b, 359 N.E.2d 626 (1977).

3. The judge did not usurp the function of the jury in making the ruling which is being challenged. Questions of law are for the court. G.L. c. 278, § 11. The legality of the prosecutor's conduct was a question of law. The judge did not instruct the jury that they were not to consider the evidence they heard. To the contrary, he told them that the words of the prosecutor might well have had the effect on Tremblay which the witness and the defendant were claiming. He did not withdraw from the jury the critical issue of Tremblay's credibility, contrast Commonwealth v. McCauley, 355 Mass. 554, 560, 246 N.E.2d 425 (1969), nor did he tell them that the witness did not feel intimidated. He merely told the jury that the prosecutor's conduct did not constitute unlawful intimidation. While we consider it probable that the judge intended to use the word "law" rather than the word "fact," in the circumstances it was not improper for him to state his preliminary finding of fact to the jury. Cf. Commonwealth v. White, 353 Mass. 409, 418, 232 N.E.2d 335 (1967), cert. denied, 391 U.S. 968, 88 S.Ct. 2039, 20 L.Ed.2d 881 (1968); Commonwealth v. Polidoro, --- Mass.App. --- c, 344 N.E.2d 187 (1976).

On the day after Tremblay completed his testimony the judge spoke to the jury regarding the weight they might choose to place on...

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