Com. v. Kiernan

Citation201 N.E.2d 504,348 Mass. 29
PartiesCOMMONWEALTH v. Francis W. KIERNAN and others. 1
Decision Date05 October 1964
CourtUnited States State Supreme Judicial Court of Massachusetts

Manuel Katz, Boston (Denial Klubock, Boston, with him), for Richard C. Simmers and another.

John D. O'Reilly, Jr., Boston (Matthew L. McGrath, Jr., Boston, with him), for Francis W. Kiernan.

Gael Mahony, Sp. Asst. Atty. Gen. (William B. Dockser, Sp. Asst. Atty. Gen., with him), for the Commonwealth.

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

KIRK, Justice.

The jury returned verdicts of guilty against the defendants on indictments 4018, charging them with larceny from the Massachusetts Parking Authority (Authority), 2 and 4020, charging them with conspiracy to commit larceny from the Authority. 3 In the latter indictment The Foundation Company and two individuals, later to be identified in this opinion, were named as coconspirators but were not named as defendants. The trial was subject to G.L. c. 278, §§ 33A-33G. The case comes to us upon appeals accompanied by twenty assignments of error by the defendants Richard C. Simmers (Simmers) and Richard K. Gordon (Gordon), 4 and twenty-two assignments by Francis W. Kiernan (Kiernan). We have a summary of the record and the transcript of evidence.

We first consider those assignments of error which do not require a detailed recital of the evidence for an understanding of our disposition of them.

1. Without intimating that there is any merit to Kiernan's assignments 1, 2 and 3, relating to the overruling of his pleas in abatement and to the denial of his motion to quash, we do not take cognizance of them because they are not based upon exceptions seasonably saved. Commonwealth v. Gray, 314 Mass. 96, 102, 49 N.E.2d 603. COMMONWEALTH V. CROWELL, MASS., 198 N.E.2D 623.A The rulings of the judge were entered on June 22 and 25, 1962. The required notices were then given to the parties. The claim of exceptions was filed on July 6, 1962. There was thus a failure to comply with Rule 72 of the Superior Court (1954). 5

2. Simmers' and Gordon's assignment 1 and Kiernan's assignment 5 challenge the judge's denial of their motions seeking to invalidate the indictments on the ground that the grand jury were prejudiced by adverse publicity prior to the return of the indictments. The subject of the motions was fully considered by this court in Commonwealth v. Geagan, 339 Mass. 487, 498-501, 159 N.E.2d 870, and the issue was resolved adversely to the defendants. What was said there applies here. Further discussion is unnecessary. There was no error.

3. There was likewise no error in the denial of Kiernan's motions for further particulars (assignment 4). The essentials of both indictments and the bills of particulars relating to them are set out in the footnote. 6 The language of both indictments complies with G.L. c. 277 § 79. Commonwealth v. Carver, 224 Mass. 42, 112 N.E. 481. Each indictment, when read with he corresponding bill of particulars, gave Kiernan fully, plainly, substantially and formally, reasonable knowledge of the crimes with which he was charged. G.L. c. 277, § 40. Commonwealth v. Welansky, 316 Mass. 383, 395-396. Commonwealth v. Iannello, 344 Mass. 723, 725-726, 184 N.E.2d 364. He was not entitled to more. The Commonwealth is under no duty to provide a defendant with a summary of its evidence against him. Commonwealth v. Lammi, 310 Mass. 159, 160-162, 37 N.E.2d 250.

4. Kiernan's assignments 6 and 7 assert that it was error for the judge to deny a pre-trial motion to suppress evidence obtained as a result of an alleged illegal search and siezure and to examine the grand jury minutes to identify that evidence. A motion to suppress is properly made before trial. Commonwealth v. Lewis, 346 Mass. 373, 382, 191 N.E.2d 753. The judge, however, is not required to make, and in the nature of things cannot be required to make, a decision on such a motion, where, as here, the evidence sought to be suppressed is not identified by the moving party. Nor may he be required to permit counsel before trial to inspect the minutes of the grand jury to ascertain what evidence the Commonwealth has and the means used to obtain it. Commonwealth v. Galvin, 323 Mass. 205, 211 80 N.E.2d 825. The judge, however, in denying the pre-trial motion to suppress, expressly reserved Kiernan's right to renew the motion 'at an appropriate time before or during trial.' Thereafter, during the trial, Kiernan excepted to the admission in evidence and to the refusal to strike from the record a resolution adopted by the Authority, authorizing and approving the execution of a contract with The Foundation Company for the construction of the garage under Boston Common (Kiernan's assignments 8 and 9). Annexed to the admitted resolution was a form of contract approved in writing by Kiernan. Both were admitted as a single exhibit (exhibit 7). Indisputably, no part of exhibit 7 was ever the property of Kiernan and was never taken from him. The contention by Kiernan, made before us for the first time, that the admitted document was the 'fruit' of an alleged 'illegal seizure' of an executed copy of the same contract is so farfetched as not to merit comment. Apart from the decisive fact that there was no showing of an illegal seizure of Kiernan's copy, there was, from independent sources, abundant evidence of the existence and content of the admitted document, executed by the Authority, so as to preclude the possibility of any prejudice to Kiernan from a prior examination, if any, of his executed copy by the prosecution. See Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 11 L.Ed.2d 171.

5. Simmers and Gordon in their assignment 3 and Kiernan in his assignment 10 claim error in the judge's denial of their motions that defense counsel be permitted to interrogate prospective jurors, or in the alternative that the judge propound questions prepared by counsel, to determine if the jurors were impartial. It is clear from our decisions that the questioning of jurors, other than as required by G.L. c. 234, § 28, rests wholly in the discretion of the judge. Commonwealth v. Taylor, 327 Mass. 641, 646-647, 100 N.E.2d 22. Commonwealth v. Bonomi, 335 Mass. 327, 333- 335, 140 N.E.2d 140. Commonwealth v. Greenberg, 339 Mass. 557, 566, 160 N.E.2d 181. The judge in fact, however, interviewed each juror separately in open court, informed each of the essentials of the indictments, inquired of each as to the matters embraced in G.L. c. 234, § 28, so far as relevant, and in addition propounded, as the particular situation commended, additional inquiries, including some suggested by counsel. In all respects the judge was meticulous to insure the empanelling of a jury free from bias. See Commonwealth v. Galvin, 323 Mass. 205, 213, 80 N.E.2d 825; Commonwealth v. Geagan, 339 Mass. 487, 502-508, 159 N.E.2d 870. There was no error.

6. The judge was not in error in denying Simmers' and Gordon's request (assignment 7) that they be permitted to examine the testimony of a coconspirator before the grand jury to determine if his testimony there was consistent with his testimony at the trial. Commonwealth v. Goldberg, 212 Mass. 88, 90, 91-92, 98 N.E. 692. Commonwealth v. Gettigan, 252 Mass. 450, 464, 148 N.E. 113. We observe, however, that before acting on the request, the judge himself examined the grand jury transcript for this purpose and concluded that there was no inconsistency.

Consideration of the remaining assignments requires that we set out the inevitably extensive evidence produced at the lengthy trial disclosing a series of involved transactions and events and the substitution or replacement of participants as the alleged conspiracy developed. We preface the detailed narrative with a synopsis of what the evidence shows: a decision by Brady, the chairman of the Authority, to profit illicitly from the construction of the garage; a statement by Brady to the prospective contractor that it would not be awarded the construction contract unless there was coperation in Brady's plan; the acquiescence or consent of the contractor to the unlawful purpose; the formulation over a period of months of a scheme whereby, upon the execution of the contract, $450,000 of construction funds, ostensibly but falsely in payment for obligations theretofore incurred by the contractor for services in preparation for the construction, would be paid to the contractor; the payment soon thereafter by the contractor of a total of $310,000 to the defendants under the guise of: (1) a finder's fee, (2) an attorney's fee, and (3) a subcontract for work on the garage, when in fact no services or work had been or were to be rendered or performed by the recipients of the money. The details follow.

By St.1958, c. 606, the Authority was created as an independent body the essential functions of which were to build, operate and maintain a garage for motor vehicles under Boston Common. It was granted the general powers necessary to accomplish its purposes including the powers to 'issue Common garage revenue bonds of the Authority,' 'make and enter into all contracts * * * necessary or incidental to the performance of its duties,' and 'employ consulting engineers.' St.1958, c. 606, § 5(f), (l) and (m). Under § 8 of the act the Authority was authorized 'to provide by resolution * * * for the issuance of Common garage revenue bonds of the Authority for the purpose of paying * * * the cost of the project,' the proceeds of which 'shall be used solely for the payment of the cost of the project, and shall be disbursed in such manner and under such restrictions, if any, as the Authority may provide in the resolution authorizing the issuance of such bonds or in the trust agreement hereinafter mentioned securing the same.' The Authority could in its discretion, under § 9 of the act, secure the bonds by a trust agreement with a corporate trustee with such...

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