Com. v. Gurney

• Decision Date: 02 April 1982
• Citation: 13 Mass.App.Ct. 391,433 N.E.2d 471
• Parties: COMMONWEALTH v. Allan M. GURNEY.
• Court: Appeals Court of Massachusetts

Page 471

433 N.E.2d 471

13 Mass.App.Ct. 391

COMMONWEALTH v. Allan M. GURNEY.

Appeals Court of Massachusetts, Suffolk.

Argued Jan. 8, 1982.

Decided April 2, 1982.

Thomas J. Keaney, Asst. Atty. Gen., for the Commonwealth.

Kevin M. Glynn, Dorchester, for defendant, submitted a brief.

Before GRANT, GREANEY and DREBEN, JJ.

GREANEY, Justice.

The defendant was charged, in a four-count indictment, with giving perjured testimony before a grand jury. G.L. c. 268, § 1. He waived trial by jury and, after a bench trial in the Superior Court, was found guilty on all counts. On each count, he was sentenced to a one-year term in the house of correction, the terms to run concurrently and with the sentences suspended and probation imposed for one year.

On appeal, the defendant argues four claims of error, only one of which has substantial merit. That argument presents the question whether the defendant has been subjected to multiple punishment ¹ in violation of the double jeopardy clause. Specifically, the defendant argues that the four statements charged as separate perjuries so overlapped in content as to bar conviction on all four counts.

The facts are not in dispute. In November, 1978, a special grand jury was convened to investigate allegations of fraud by parties providing services to the Medicaid program of the Department of Public Welfare (Department). One provider under investigation was Bay State Management Company, Inc. (Bay State), which owned and operated eight long term care facilities in Massachusetts, including the Quincy Nursing Home (Quincy). Since at least 1969, Quincy had paid wages to one Emma Boynton as a kitchen employee. The grand jury had information, however, that Boynton did not actually work at Quincy for a number of years when she was on its payroll. Rather, it was alleged that she worked during those years at the personal residence of one Michael Minkin, a director of Bay State.

The vice of this arrangement arises from the fact that Quincy was being reimbursed by the Department for wages paid to its employees. Under regulations of the Rate Setting Commission (Commission), a nursing home providing services for Medicaid is required to file an annual financial report on a form denominated RSC-1. 114.2 Code Mass.Regs. § 2.03 (1978). The Commission uses these reports to determine the rate at which the nursing home will be reimbursed by the Department. See generally Commonwealth v. Cerveny, 373 Mass. 345, 348-349, 367 N.E.2d 802 (1977). Although several factors enter into the calculation, that rate is largely determined by the operating expenses, including wages, reported by the nursing home each year. 114.2 Code Mass.Regs. § 2.06(1). These expenses are apparently reimbursed on a dollar for dollar basis in most instances.

Commission regulations, however, forbid reimbursement of any "(e)xpenses which are not directly related to the provision of patient care." 114.2 Code Mass.Regs. § 2.06(5)(f). Thus, if Emma Boynton did not actually work at Quincy for a number of years when she was paid as an employee, the expenses reported by Quincy, and consequently the payments made by the Department, would have been improperly inflated for those years. If established, these facts would have been grounds for initiating prosecutions under G.L. c. 266, § 30(1) (larcency by false pretense), G.L. c. 268, § 1A (perjury by written instrument), and G.L. c. 6A, § 35 (falsifying information required to be filed with the Commission). See Commonwealth v. Cerveny, supra at 346-347 & nn.2-4, 367 N.E.2d 802.

On April 10, 1979, the defendant, accompanied by counsel, appeared before the grand jury. He first testified that he had worked at Quincy since May, 1971, that he was head chef and kitchen supervisor, and that he scheduled the hours which Emma Boynton worked. The assistant attorney general (prosecutor) then asked the defendant a series of questions directed at various periods of Boynton's employment. In substance, the defendant was asked whether Boynton worked at Quincy:

(1) from January 1 through December 31, 1972;

(2) from January 1 through December 31, 1973; ²

(3) from January 1, 1972, through December 31, 1975; ³

(4) from May, 1971, through the present (i.e., April 10, 1979). ⁴

The defendant answered each question in the affirmative. Each numbered response formed the basis for the perjury charged in the count similarly numbered in the indictment.

At trial, the defendant stipulated that the prosecutor's questions were material to the grand jury's investigation. See, e.g., Commonwealth v. Borans, 379 Mass. 117, --- - ---, Mass.Adv.Sh. (1979) 2349, 2371-2374, 393 N.E.2d 911. The defendant also stipulated that the preliminary elements required to prove perjury were present. See Commonwealth v. Geromini, 357 Mass. 61, 63-64, 255 N.E.2d 737 (1970). The case was tried on the issues whether the four statements were false, and whether any falsity was wilful and intentional. The defendant does not question the sufficiency of the Commonwealth's proof on those elements. ⁵

1. The defendant's principal argument is that the convictions on all four counts are flawed on grounds of multiplicity. ⁶ This argument proceeds on the view that the substance of the perjuries charged in counts 1 and 2 are included within count 3, and the substance of counts 1, 2 and 3 are included within count 4. Because of this, the defendant urges that the convictions on three of the counts should be vacated, leaving one conviction on either count 3 or count 4.

We have found no Massachusetts case which addresses the problem of multiple punishments in the context of perjury. There is considerable case law elsewhere, both Federal and State. Proper analysis of the case calls for a review of those decisions first, followed by discussion of the parties' contentions seeking (improperly in our opinion) to apply jeopardy principles involving lesser included offenses under the "same evidence" test. We then look to the statute itself to determine whether it was the Legislature's intent to allow separate convictions for the perjuries here (concluding that it was and that the prosecutor's choice of questions did not result in improper fragmentation of the offenses). We conclude that, since each count involves a lie about a period of time which is separate and distinct, the four perjuries are not substantially identical and the convictions can stand.

A. Cases on multiplicity of perjury convictions.

The defendant relies on the leading case of Gebhard v. United States, 422 F.2d 281 (9th Cir. 1970), which states the prevailing view as follows: "If (the defendant) in fact told separate lies, each of which could have hindered the grand jury in its investigation, then he could properly be separately charged for each lie. On the other hand, we do not think it proper that the government bludgeon a witness who is lying by repeating and rephrasing the same question, thus creating more possible perjury counts .... (By so doing,) a prosecutor could run up a possible perjury sentence indefinitely merely by repeating the same question. Single punishment for a single lie should suffice." Id. at 289-290.

The Commonwealth concedes that "(t)he offense of perjury may not be compounded by the repetitious asking of the same question." Masinia v. United States, 296 F.2d 871, 880 (8th Cir. 1961). See also Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187 (1977); Commonwealth v. Winter, 9 Mass.App. 512, ---, Mass.App.Ct.Adv.Sh. (1980) 685, 699, 402 N.E.2d 1372. It maintains, however, that the four convictions are not based on the same perjury, as the defendant's answer to each successive question involved a new lie about a different period of Boynton's employment. In this view, the defendant told four "separate and distinct lies," and "the proof of each falsehood required the establishment of different facts." United States v. Nixon, 634 F.2d 306, 313 (5th Cir. 1981). For that reason, it is argued, "each answer constituted a separate incident of perjury." United States v. Masters, 484 F.2d 1251, 1253 (10th Cir. 1973).

As to the overlapping portions of the periods charged, the Commonwealth relies on United States v. Doulin, 538 F.2d 466, 471 (2d Cir.), cert. denied, 429 U.S. 895, 97 S.Ct. 256, 50 L.Ed.2d 178 (1976), which viewed a similar circumstance as follows: "In situations such as this where the grand jury is focusing its attention upon a series of related acts occurring over a period of time, it is inevitable that its questions will overlap to a certain degree. (See Bursey v. United States, 466 F.2d 1059, 1079 (9th Cir. 1972) (some repetition inevitable, even desirable, if not excessive).) But such overlapping alone is not enough to require that the allegedly false responses of the witness be consolidated into a single perjury count where, as here, each of the critical inquiries was directed to a separate facet of the overall transaction being investigated."

Based on these and other cases, the rule which emerges is a strict one. As a practical matter, it appears that individual lies will only constitute the same perjury, thereby barring multiple convictions, where they involve facts which are "substantially identical." Masinia v. United States, supra. Likewise, close analysis reveals that multiple convictions will be allowed to stand even where the factual difference between the perjuries is slight. In sum, it appears from these cases that convictions for perjury will only be held reversible on the ground of multiplicity where individual falsehoods are "so related ... (in) subject-matter ... (and) so linked and blended together in point of time, as to constitute but one act or transaction, and therefore constitute but one offense." Commonwealth v. Davenport, 255 Pa.Super. 131, 146, 386 A.2d 543 (1978), quoting State v. Anderson, 35 Utah 496, 503, 101 P. 385 (1909).

The application of these principles is best illustrated in decisions...