Com. v. Nelson

• Decision Date: 28 April 1976
• Citation: 370 Mass. 192,346 N.E.2d 839
• Parties: COMMONWEALTH v. Edwin NELSON, Jr. (and two companion cases). 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 839

346 N.E.2d 839

370 Mass. 192

COMMONWEALTH

v. Edwin NELSON, Jr. (and two companion cases). ¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 16, 1975.

Decided April 28, 1976.

Barbara A. H. Smith, Asst. Atty. Gen. (Robert V. Greco, Asst. Atty. Gen., with her), for the Commonwealth.

Donald L. Conn, Burlington, for defendant Nelson and Martin K. Leppo, Boston, for defendant Barnoski (James B. Krasnoo, Boston, with them).

Before HENNESSEY, C.J., and REARDON, QUIRICO, KAPLAN and WILKINS, JJ.

QUIRICO, Justice.

On January 19, 1972, the grand jury for Suffolk County returned separate indictments against Edwin Nelson, Jr., William Barnoski, Salvatore Macarelli, Anthony Ciulla, Barnum Sardonis and Robert Byrne, charging each with the crime of conspiracy to violate G.L. c. 128A § 13B (as appearing in St.1958, c. 86). ² Each indictment charged that on or about April 23, 1971, the particular defendant named therein 'in concert with . . . (the others named above and still others to the grand jurors unknown) did conspire to administer, and cause to be administered, a drug, to two horses, with the purpose of affecting the speed of such horses in or in connection with a race conducted under the provisions of Massachusetts General Laws, Chapter 128A.' ³ The indictment against Byrne was nol prossed in circumstances hereinafter described. The other five indictments were tried together to a jury which convicted Nelson, Barnoski, Macarelli and Cuilla, and acquitted Sardonis. The defendants Nelson (indictment No. 63608), Barnoski (indictment No. 63609) and Macarelli (indictment No. 63612) obtained appellate review by the Appeals Court on their substitute joint bill of exceptions. That court ordered that the verdicts be set aside and the judgments against all three appellants be reversed, that a judgment of acquittal be entered for Nelson, and that the indictments against Barnoski and Macarelli stand for new trials thereon. COMMONWEALTH V. NELSON, --- MASS.APP. ---, 323 N.E.2D 752 (1975)^A.

This court thereafter allowed the Commonwealth's petition for further appellate review. The Commonwealth argues that the trial judge was correct in denying the motions of Barnoski and Macarelli for a new trial and in denying Nelson's motion for a directed verdict. As to the defendants Barnoski and Macarelli we reach the same result as the Appeals Court and on the same reasoning. As to the defendant Nelson we hold that the trial judge properly denied his motion for a directed verdict, but that he too is entitled to a new trial on the same reasoning applied to the defendants Barnoski and Macarelli.

1. We consider first the contentions of Barnoski and Macarelli that it was error for the trial judge to deny their motions for a new trial on the ground of newly discovered evidence that the prosecutor, without advising the defendants thereof, had filed a nolle prosequi of the indictment against Byrne on the opening day of the trial, which was the day before Byrne took the stand as the Commonwealth's sole witness to the existence of a conspiracy. On cross-examination by defense counsel, Byrne in substance denied that he had any 'arrangement' with the Commonwealth. The assistant attorney general listened in silence while Byrne gave this testimony.

The Appeals Court determined that Barnoski and Macarelli were entitled to a new trial because of the prosecutor's failure to disclose the nolle prosequi to the defense until after the trial. We reach the same conclusion and on the same reasoning. There is no necessity for us to recreate here the Appeals Court's full discussion of this issue.

2. Nelson moved for a directed verdict of not guilty when the prosecution rested its case against him. The judge denied the motion. The Appeals Court concluded that Nelson was entitled to a directed verdict and that a judgment of acquittal should be entered in his favor. We cannot concur in the reasoning by which the court reached that result. We conclude instead that the judge properly denied the motion.

The Appeals Court reasoned in substance that, because the Commonwealth had specified the details of the alleged conspiracy, it had to prove that Nelson was aware of the details. That court said (at --- - ---, ^b 323 N.E.2d at 756): 'The sufficiency of the foregoing evidence to warrant a conviction of Nelson must be determined in the light of the principle that one cannot be found guilty of a conspiracy in the absence of a showing that he was aware of the objective of the conspiracy which has been charged. . . . (Citations omitted.) The conspiracy Nelson was charged with by the indictment and the specifications . . . was not a general one to influence the outcome of a horse race by one or more of the unlawful means enumerated in G.L. c. 128A, §§ 13B (n.2) and 13C (as inserted by St.1950, c. 111), or by some other unlawful means. . . . (Citations omitted.) The conspiracy charged and specified was extremely narrow, one 'to administer, and cause to be administered, a drug, to two horses, with the purpose of affecting the speed of such horses in or in connection with a race . . ..' § 13B. That was the conspiracy laid at Nelson's door and the one the Commonwealth was obliged to prove he was aware of before it would be entitled to a conviction.'

We agree that it must be shown that the defendant was aware of the objective of the conspiracy which was alleged. However, in our view, this does not mean that it must be shown that Nelson knew all specifics of the unlawful agreement. 'The part each is to play, the reward or satisfaction to be received by each, and the knowledge possessed by each of the scope and details of the affair may be widely at variance' (emphasis supplied). Attorney Gen. v. Tufts, 239 Mass. 458, 493, 132 N.E. 322, 328 (1971). Commonwealth v. Kiernan, 348 Mass. 29, 55--56, 201 N.E.2d 504 (1964), cert. denied sub nom. Gordon v. Massachusetts, 380 U.S. 913, 85 S.Ct. 901, 13 L.Ed.2d 800 (1965). Blumenthal v. United States, 332 U.S. 539, 556--557, 68 S.Ct. 248, 92 L.Ed. 154 (1947). It was sufficient for the Commonwealth to show here that Nelson was aware that he was a party to an unlawful agreement to affect the speed of a horse or horses in order to affect the outcome of a horse race. See G.L. c. 128A, § 13C. To conclude that the Commonwealth must show more than this would be tantamount to saying that a person who joined a conspiracy to 'fix' a horse race, but who limited his participation to supplying the funds to be used in the scheme, and who scrupulously avoided acquiring knowledge of the method and means by which his co-conspirators planned to alter the outcome of the race, could not be found guilty of conspiracy. In our view such a proposition is not in accordance with the existing law.

It is not crucial that the Commonwealth spelled out the details of the scheme in its particulars. As a consequence of the particulars, the Commonwealth was required to prove that there was an agreement as specified, but it was not required to show Nelson's total knowledge of the details.

3. We turn now to the question whether the evidence before the jury when Nelson filed his motion for a directed verdict, considered in its light most favorable to the Commonwealth, was sufficient to permit the jury to find or infer the facts which the Commonwealth was required to prove as we have defined that burden above. We hold that it was. We summarize the relevant evidence, all of which came from the testimony of Byrne, who was called by the prosecution as its only witness to the existence of a conspiracy. ⁴

At some time between 9:00 A.M. and 9:30 A.M. on April 23, 1971, Barnoski, whom Byrne had known for about eight years, called on the latter in his apartment in Somerville with the advice, 'We've got a play going today,' and an inquiry as to whether 'you want to make some money?' Byrne responded in the affirmative, dressed, and proceeded by cab (paid for by Barnoski) to Barnoski's house in Somerville. There he met Barnoski, Ciulla and Macarelli, the latter two being persons he had also known for several years. Ciulla made telephone calls while Byrne perused a racing sheet on which someone (probably Ciulla) had crossed out the names of certain horses scheduled to run that day in the ninth race at Suffolk Downs.

Barnoski, in the presence of Ciulla and Macarelli, asked Byrne if he knew how to get to Brockton, and Macarelli wrote down specific instructions for getting there. Either Ciulla or Macarelli said to Barnoski, 'We'd better get on the phone with Nelson and tell him he is on his way.' Barnoski told Byrne 'to go down and speak to no one but Nelson, and pick up an envelope with $1,000 in it, open the envelope in front of Nelson, count the money in front of him, and not to answer any questions he might ask me, just to say, if he asked me any questions, 'Billy (Barnoski) will be in touch with you,' and not to offer any information whatsoever.' Byrne was told to come right back from Brockton as fast as possible. There was '(no) talk on that occasion as to what was proposed to be done with respect to the ninth race at Suffolk.' Byrne left for Brockton in Ciulla's car, taking with him the latter's gasoline credit card. As he left, Barnoski 'was talking to someone on the phone, describing me, what I had on; and that I was leaving, on my way.'

Byrne drove to Nelson's law office in Brockton, where, according to his testimony, the following transpired with Nelson: 'He came into the room, a man came into the room, and he said, 'Are you Bobby?' And I said, 'Yes, Billy sent me.' I said, 'Are you Eddie?' And he said 'Yes.' I said, 'I'm supposed to get an envelope off you.' He then proceeded--to put his hand in his pocket, pulled out a roll of money, and he counted out ten one hundred dollar bills. He then asked me, he says, 'Are you supposed to give me the name of the horses?' And I says, 'No.' I said, 'They'll inform you about it later.' I says, ...