Com. v. Favulli

Decision Date01 March 1967
Citation352 Mass. 95,224 N.E.2d 422
PartiesCOMMONWEALTH v. Michael J. FAVULLI et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Alvan Brody and Robert G. Clark, Jr., Brockton (Charles J. Dunn, Boston, with them), for defendant Favulli.

Stephen A. Moynahan, Springfield (Alexander E. Finger, Boston, with him), for defendant Sullivan.

Sumner H. Babcock, Sp. Asst. Atty. Gen. (John J. Madden and Harold M. Willcox, Sp. Asst. Attys. Gen., with him), for the Commonwealth.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL and REARDON, JJ.

WHITTEMORE, Justice.

These are appeals by two defendants convicted of soliciting a bribe and conspiracy to solicit a bribe. The proceedings and the trial were subject to G.L. c. 278, §§ 33A--33G.

The conspiracy indictment charged that the defendants Favulli and Sullivan, with Joseph R. Crimmins and Ernest C. Stasiun, all then being members of the Executive Council of the Commonwealth, and Foster Furcolo, then the Governor, conspired with each other and with Leo F. Benoit (not a defendant) and others not named to request and accept from Mr. Furcolo, Benoit, and others money for their votes to confirm the nomination of Anthony N. DiNatale as Commissioner of the Department of Public Works. At the close of the evidence the judge directed a verdict of not guilty as to Mr. Furcolo. There were verdicts of guilty against the other four defendants. Stasiun and Crimmins, after claiming appeals, withdrew them and began the service of their sentences. See Massachusetts BAR ASSN. V. CRONIN, MASS., 220 N.E.2D 629A.

Separate indictments charged in one count that the Councillor named therein had solicited a gift or gratuity for his vote for the confirmation of DiNatale and in a second count that he had accepted the gift or gratuity. Verdicts were directed under the second counts.

THE PLEAS IN ABATEMENT.

The ground stated in the pleas of the defendants was 'That during the proceedings before the Grand Jury, which resulted in this indictment, there was present at all times * * * counsel for the Crime Commission, who had been engaged in the preparation of the case against the Defendant; that * * * (such) presence * * * even under the guise as a so-called Special Assistant Attorney General, was in violation of the Defendant's rights under Article 12 of the Declaration of Rights.'

The pleas were dealt with as raising also an issue under art. 30 of the Declaration of Rights.

(1) The right of review on appeal.

General Laws c. 278, § 27, 1 as appearing in St. 1962, c. 480, in terms makes 'final' as to defendants the decision of the Superior Court on pleas in abatement. Section 33B provides: 'A defendant in a case * * * made subject to * * * (§§ 33A--33G) aggrieved by an opinion, ruling, direction or judgment * * *, rendered upon any question of law arising out of such case * * * but not upon a plea in abatement, who desires to appeal therefrom * * * shall * * * file a claim of appeal * * *.' The General Court in giving a right of appeal to the Commonwealth from the decision upon a plea in abatement rejected a proposal to express a right of appeal in the defendant. 1962 House Bill Nos. 1552, 3707. 1962 Senate Bill No. 691, St. 1962, c. 480.

In Commonwealth v. Hanley, 337 Mass. 384, 386, 149 N.E.2d 608, cert. den. sub nom. Hanley v. Commonwealth of Massachusetts, 358 U.S. 850, 79 S.Ct. 79, 3 L.Ed.2d 85, we said, as to an appeal under c. 278, §§ 33A--33G, 'We do not think that * * * c. 278, § 27 * * * can operate to deprive the defendant of a review of a decision so far as it involves a constitutional right.' The Commonwealth in oral argument referred to a conflict between the Hanley case and Commonwealth v. Kozlowsky, 238 Mass. 379, 391, 131 N.E. 207, where, after reviewing and declaring constitutional the overruling of a plea, this court held that, in any event, § 27 was a conclusive answer to the attempt to present the issue on exceptions.

Without consideration of the statutory provisions, this court in a number of other cases arising on exceptions or appeal has reviewed constitutional issues raised by decisions on pleas in abatement. Commonwealth v. Clune, 162 Mass. 206, 38 N.E. 435; Commonwealth v. Harris, 231 Mass. 584, 586--587, 121 N.E. 409; Commonwealth v. Geagan, 339 Mass. 487, 495--498, 159 N.E.2d 870 (cert. den. sub nom. Geagan v. Massachusetts, 361 U.S. 895, 80 S.Ct. 200, 4 L.Ed.2d 152); Commonwealth v. Monahan, 349 Mass. 139, 157--158, 207 N.E.2d 29; Commonwealth v. Slaney, 350 Mass. 400, 401--402, b 215 N.E.2d 177. In Commonwealth v. Woodward, 157 Mass. 516, 32 N.E. 939, the overruling of the plea was sustained on evidentiary, not constitutional, grounds.

The implication of an exception of constitutional issues from the statutory bar of review in due course of decisions on pleas stems from the constitutional rights of every person within the jurisdiction to be tried in accordance with the law of the land and assured the equal protection of the laws. It will not do to have an important constitutional issue resolved by this court upon report in one case (as will result if, in his discretion, a judge in the Superior Court acts under c. 278, § 30A), and yet stand decided to the Contrary for purposes of another case on the unreported decision of the judge there ruling. Equally unreasonable would be two opposing unreported Superior Court rulings on the same constitutional issue in different cases.

Nor do we think that, as to a case in which G.L. c. 278, §§ 33A--33G, have been made applicable, the defendant should be restricted to writ of error for an adjudication of the constitutional issues. For the availability of the writ, see, by analogy, the cases cited in Mackenzie v. School Comm. of Ipswich, 342 Mass. 612, 614, 174 N.E.2d 657. The issues would not stand differently if so presented. Section 33A requires that the evidence be taken and certified in 'any proceeding or trial' made subject to §§ 33A--33G. This evidence so far as necessary to determine the constitutional issues would be available on writ of error. Brown v. Commonwealth, 335 Mass. 476, 479--480, 140 N.E.2d 461; Sandrelli v. Commonwealth, 342 Mass. 129, 141--143, 172 N.E.2d 449, 88 A.L.R.2d 450. See Shoppers' World, Inc. v. Assessors of Framingham, 348 Mass. 366, 376, fn. 9, 203 N.E.2d 811. It is highly inadvisable that the resolution of threshold constitutional issues, which upon a report could have been decided before trial, be postponed any longer than our present statutes and procedures inescapably require, or that there be separate appellate procedures where no substantive purpose is served. Indeed the statutory scheme that brought in §§ 33A--33G also showed an intention that, so far as might be, reviewable issues of law should be reviewed on appeal rather than on writ of error. Guilmette v. Commonwealth, 344 Mass. 527, 529, 183 N.E.2d 298.

(2) The alleged violation of art. 30 of the Declaration of Rights following the appointment of persons who were attorneys for the commission as assistants to the Attorney General.

Resolves 1962, c. 146, creating the so called 'Massachusetts Crime Commission' provided in part: 'Upon order of the commission its counsel shall present to a grand jury for its action, or submit to the attorney general, a district attorney or other law enforcement agency, such evidence which has come to the attention of the commission as in the opinion of the commission warrants such presentation or submission.'

The judge, as the evidence warranted, found that the commission had proceeded by referral to the Attorney General and that none of its attorneys were authorized by the commission to present matters directly to the grand jury. The Attorney General had complete control of the presentation of grand jury evidence submitted by the commission. Facts peripherally related to the indictments, having been referred to the Attorney General, 'were developed by him from facts already in his possession, that resulted in the matter being presented to the Grand Jury.'

Attorneys who were or had been paid counsel for the commission participated in the presentation of the evidence to the grand jury. In this work each was acting as a duly appointed special assistant to the Attorney General without compensation. One attorney was active as such special assistant in the presentation of cases of the grand jury over an extended period during which he was on the staff of the commission. He did not charge the commission for time spent in the grand jury room but did charge it for time devoted on the same days to preparing evidence for presentation to the grand jury. These special assistants presented or assisted in presenting evidence as to matters which they had investigated for or presented to the commission.

There is no doubt that the commission was an agent of the General Court performing an appropriate investigatory function. Commonwealth v. Benoit, 347 Mass. 1, 6, 196 N.E.2d 228; Sheridan v. Gardner, 347 Mass. 8, 16--18, 196 N.E.2d 303; Gardner v. Massachusetts Turnpike Authy., 347 Mass. 552, 558--559, 199 N.E.2d 186. We have already ruled that art. 30 was not violated by the provisions of the resolve for the use by law enforcement agencies of evidence uncovered by the legislative commission. Sheridan v. Gardner, supra, 347 Mass. 17--18, 196 N.E.2d 303. The issue adverted to in Gardner v. Massachusetts Turnpike Authy., supra, 347 Mass. 558--559, 199 N.E.2d 186, but now for the first time presented for decision, is whether the legislative department was participating in presenting the evidence to the grand jury in violation of art. 30.

In Cosmopolitan Trust Co. v. Mitchell, 242 Mass. 95, 116, 136 N.E. 403, this court stated the controlling principle by quoting from Kilbourn v. Thompson, 103 U.S. 168, 191, 26 L.Ed. 377: 'It is also essential to the successful working of this system that the persons intrusted with power in any one of these...

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