Com. v. Leonard

• Decision Date: 07 June 1967
• Citation: 227 N.E.2d 721,352 Mass. 636
• Parties: COMMONWEALTH v. Clifford T. LEONARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 721

227 N.E.2d 721

352 Mass. 636

COMMONWEALTH v. Clifford T. LEONARD.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 3, 1967.

Decided June 7, 1967.

Joseph J. Balliro, Boston, for defendant.

Howard W. Glaser and James B. Krasnoo, Sp. Asst. Attys. Gen., for the Commonwealth.

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

CUTTER, Justice.

Leonard was found guilty on five indictments, each charging him with larceny of over $100 of property from Massachusetts Turnpike Authority (Turnpike). He appealed and filed assignments of error. There was evidence which would warrant the jury in finding the facts set out below. The case is before us under G.L. c. 278, §§ 33A--33G, as amended.

Leonard did business as Colonial Contracting Company (Colonial), a sole proprietorship. Colonial's office was in Leonard's house and its equiment was kept in a four car garage near that house.

On May 2, 1957, Colonial made a contract (no. 51--962) with Turnpike to install signs along roads leading to the turnpike. Colonial was to furnish a four man work crew (a foreman, a driver, and two laborers) at $30 an hour for each hour worked by the crew with specified additional compensation for weekday and weekend overtime. Colonial was also to furnish, for a compensation of $10 an hour, such 'general supervision as may be required, subject * * * to the approval of' Highway Traffice Engineers, Inc. (Highway), supervising engineers for Turnpike.

The contract, by its terms to expire on June 15, 1957, was extended to March 31, 1958, but Turnpike and Colonial continued to treat the contract as in effect even after March 31, 1958. Colonial continued to submit invoices, and Turnpike continued to make payments, with reference to the contract.

The indictments dealt with sums paid for work done from June, 1958, to December, 1959, billed by invoices dated December 17 and 29, 1959, and paid February 25, April 14, June 23 and 30, and July 7, 1960. The aggregate amount of the payments to Colonial from Turnpike was about $147,000. Turnpike's checks to Colonial were indorsed by Leonard for deposit to Leonard's account. The Commonwealth contended that Leonard caused the invoices greatly to overstate the work done by Colonial especially with respect to (1) the number of men in the work crew, (2) the amount of overtime work, and (3) the extent of supervision.

(a) Colonial had a 'basis' crew consisting of Carroll Ivers, its foreman, and two laborers, one of whom acted as driver. On about thirty working days a fourth man was added. ¹ Ivers submitted to Leonard weekly reports of work done showing the names of workers and number of hours worked. There was overtime work on rare occasions during the entire period.

(b) Turnpike's chief engineer understood the term 'general supervision' in the contract to include 'a multitude of duties' in the field and in the office, but was unable to say what percentage of the time a 'general supervisor' would be in the field. Such a supervisors' work would 'entail being sure that the work crews are * * * in the right location * * * doing the right kind of work,' organizing the work, conferring with Highway's engineers, and checking the flow of materials. In his opinion, this work was to be done by someone not a member of the four man work crew. It was Highway's duty to get the necessary local permits to put up the signs, although Leonard did some of this. The members of the work crew reported to Leonard's house each morning before going to work and returned there each night. Leonard never accompanied Colonial's crew, but would appear at a job site about once to three times a month. Except for Leonard's visits, only Ivers supervised the work crew in behalf of Colonial while it was on the job.

William Donahue, employed by Highway, on its behalf checked the work of Colonial's crew. He made out 'daily progress reports.' These he submitted weekly to Highway. Donahue always wrote down, as the number of men in Colonial's crew, one more than had actually been in the crew during a particular week. Donahue explained that he had been told to do this by Ivers the first day he had been assigned. Ivers told Donahue that the 'fourth' (or the 'fifth' man on those occasions when a four man crew worked) was Leonard. Donahue admitted that his reports did not state 'the truth' concerning the number of men composing the crew.

Donahue's progress reports (which cover about 350 of 400 days billed) indicated only 'a couple of days' of overtime. He was 'almost always' with the Colonial crew, except on 'infrequent' occasions when he was asked by Highway's traffic engineer 'to check on something' else.

Colonial submitted invoices for work performed under 'contract #51--962.' These were typed on Colonial's letterhead but were not signed by Leonard or any other person. No direct evidence showed that Leonard prepared the invoices or directed another to do it for him. Ivers did not prepare them. Leonard's wife did clerical work and typing for Colonial. The invoices each showed for a given period the information indicated in the margin. ²

In the aggregate the invoices showed the following charges: 26,856 hours of regular time at $30 an hour; 4,055 hours of weekday ³ overtime; 2,033 hours of weekend overtime, and 26,281 hours of general supervision at $10 an hour.

The invoices (with four copies) were received by Highway. From these invoices Chester Heckman of Highway would prepare a document known as a 'pay estimate' in accordance with Turnpike procedures. This was 'a statement of work already done,' rather than an estimate of future expenses. Heckman examined the invoices and made an office check of them for internal consistency with the supporting papers and, perhaps to some extent, to see whether they were in conformity with Donahue's progress reports. Heckman, however, had no independent source of information, like Donahue's reports on field work, concerning the 'supervision' hours for which Colonial claimed payment. He relied largely upon the invoices in making out the 'pay estimates.'

The originals of the 'pay estimates' and the attached invoices, and two sets of copies, would go to Turnpike and one set of copies would go to Howard, Needles, Tammen, and Bergendoff (Howard), Turnpike's engineering consultants. Bernie Trice, an engineer with Howard, would check each pay estimate and Colonial invoice 'in every way that * * * (he) could' and recommend it for approval to Turnpike. The material available for checking the pay estimates consisted of the invoices and supporting porting material. No independent verification was made by Howard. Trice relied upon the information in the pay estimates and invoices in submitting the estimates for approval.

Howard sent each pay estimate with its supporting papers to Turnpike. Turnpike's chief engineer, Phillip Kitfield, would approve it, in reliance on Heckman's approval and on the papers sent to him, and would send the pay estimates to Turnpike's secretary-treasurer. The latter would eventually include it as one item in 'requisition certificates' presented to one of Turnpike's periodic meetings at which five such requisition certificates were approved. Mr. John R. Kewer, an attorney and survivor of the three then members of the Turnpike board, testified that he would not have voted to approve the requisition and invoices if he had known of their falsity. Five checks in payment were issued by Turnpike to Leonard.

1. Leonard first contends that the trial judge improperly refused to order a mistrial on occasions, when the judge made: (a) comments, among other matters, on what he obviously regarded as somewhat frivolous evidential objections by Leonard's counsel in the course of the presentation of the Commonwealth's case; and (b) a comment on an objection by Leonard's attorney to evidence offered by the Commonwealth concerning the typing of the Colonial invoices. This last mentioned evidence had possible relevance on the issue whether Leonard had knowledge of the contents of the invoices.

Examination of the transcript shows that the trial judge not unreasonably was trying to keep a long trial (thirteen days) moving with expedition, and to avoid confusing the jury in a somewhat complicated case, although at times his comments suggested disapproval of defense counsel's and the Commonwealth's conduct of the case. It would have been much more appropriate for the judge to have made his comments out of the hearing of the jury. He took, however, reasonable steps to see that the jury did not get an erroneous impression from what he said. We conclude that Leonard was not prejudicially affected. See Commonwealth v. McLaughlin, 351 Mass. --- - ---, ^a 224 N.E.2d 444.

2. The judge refused to strike Mr. Kewer's testimony. ⁴ By this testimony, the Commonwealth sought to prove a consecutive chain of reliance upon Colonial's invoices ending with Mr. Kewer and his associates, who acted upon the requisitions for payment of Colonial's invoices at Turnpike meetings.

The Commonwealth had introduced (through Turnpike's secretary-treasurer and custodian of its records) Turnpike's minutes of the meetings at which the requisitions had been approved, as records kept in the usual course of business. See G.L. c. 233, § 78 (as amended through St. 1954, c. 442, § 1); Commonwealth v. Greenberg, 339 Mass. 557, 578--579, 160 N.E.2d 181. An assignment of error (no. 5) based on the admission of these minutes in evidence has been waived. Because the minutes were independently in evidence, we need not decide whether the judge was warranted in regarding them as constituting a record of facts of which Mr. Kewer once had recollection, and copies of which he had approved as accurate when sent to him shortly after they were written. See Fisher v. Swartz, 333 Mass. 265, 267--268, 130 N.E.2d 575. Mr. Kewer's testimony was not offered to place the contents of the minutes before the jury.

Mr....