Com. v. Schnackenberg

• Citation: 356 Mass. 65,248 N.E.2d 273
• Parties: COMMONWEALTH v. Lee J. SCHNACKENBERG.
• Decision Date: 29 May 1969
• Court: United States State Supreme Judicial Court of Massachusetts

Page 273

248 N.E.2d 273

356 Mass. 65

COMMONWEALTH v. Lee J. SCHNACKENBERG.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 3, 1969.

Decided May 29, 1969.

Walter J. Hurley, Boston, for defendant.

Marvin R. Finn, Asst. Atty. Gen. (John M. Finn, Deputy Asst. Atty. Gen., with him), for the Commonwealth.

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

SPALDING, Justice.

Lee J. Schnackenberg (hereinafter sometimes called the defendant) was tried on two indictments, one charging larceny by false pretences of more than $100 of the property of the Massachusetts Turnpike Authority (Authority), and the other charging conspiracy to commit larceny of over $100. A codefendant, Highway Traffic Engineers, Inc. (HTE), was joined in each indictment. Two officers of HTE, Thomas D. Connolly and Edgar F. Copell, were named as coconspirators, but not as defendants, in the conspiracy indictment. Verdicts of guilty on both indictments were returned against the defendants Schnackenberg and HTE. ¹ Schnackenberg appealed, the trial having been made subject to G.L. c. 278, §§ 33A--33G. The assignments of error relate to Schnackenberg's pleas in abatement concerning the proceedings before the grand jury, ² certain rulings on evidence made at the trial, and the denial of his motions for a directed verdict on each indictment.

PRE-TRIAL MATTERS.

1. At the pre-trial hearing on the pleas in abatement, Marvin R. Finn, one of the assistant attorneys general who presented the case to the grand jury, testified that he was in the grand jury room, along with two other assistant attorneys general, just prior to the convening of the grand jury on the day the indictments were voted and that they discussed only the legal aspects of the indictments. Finn further testified that he had no momory of any of the jurors being present in the room at that time. The following question was then asked and excluded: 'Would you say that, in that discussion that you had on that occasion * * * that there was no discussion of the facts or the evidence in connection with the indictments?' The question was properly excluded. Finn had already stated that the evidence had not been discussed. Moreover, even if it had been, the grand jurors would not have been affected, since they were not present during the discussion.

2. The defendant excepted to the exclusion of certain questions which might have established 'that certain Special Assistant Attorneys General had disclosed to strangers testimony which had been given in the grand jury room.' The defendant argues that such disclosures violated the requirement of secrecy imposed upon grand jury proceedings. This requirement, however, has usually been aimed at disclosures by the grand jurors (see G.L. c. 277, §§ 5, 13), although in certain circumstances even grand jurors may relate what occurred before them. Attorney Gen. v. Pelletier, 240 Mass. 264, 307--309, 134 N.E. 407. Even if such disclosures were made by the assistant attorneys general, it does not follow that this would invalidate the indictments. 'No case has been cited or discovered by us which holds that * * * (disclosure of what witnesses would testify or had testified) is a violation of the secrecy of the grand jury room.' Commonwealth v. Geagan, 339 Mass. 487, 497, 159 N.E.2d 870, 879. See United States v. Hoffa, 349 F.2d 20, 43 (6th Cir.).

3. The defendant also excepted to the exclusion of two questions designed to show 'that the Special Assistant Attorneys General made factual comments on the evidence to the Grand Jury.' As this court recently stated, 'In presenting cases to the grand jury the prosecutor and his assistants must scrupulously refrain from words or conduct that will invade the province of the grand jury or tend to induce action other than that which the jurors in their uninfluenced judgment deem warranted on the evidence fairly presented before them.' Commonwealth v. Favulli, 352 Mass. 95, 106, 224 N.E.2d 422, 430. See Attorney Gen. v. Pelletier, 240 Mass. 264, 307--309, 134 N.E. 407. But here the exclusion of the questions was not improper, since the judge specifically said that counsel could ask the witness, Mr. Finn, whether he had 'made statements without taking the witness stand.'

4. The defendant contends that the judge erred 'in excluding questions at pretrial hearing tending to establish that the Grand Jury secrecy imposed upon proceedings of the legislative commission established by c. 146 of the Resolves of 1962' was violated. That chapter provided that 'the same provisions with reference to secrecy which govern proceedings of a grand jury shall govern all proceedings of the commission.' The defendant's offer of proof was that State police officers, who had been assigned as investigators to the commission (commonly known as the Crime Commission), were present at formal hearings concerning the activities of the Authority and HTE.

An examination of witnesses by the grand jury in the presence of other witnesses or bystanders violates art. 12 of our Declaration of Rights. Commonwealth v. Harris, 231 Mass. 584, 121 N.E. 409. The presence of assistants to the prosecutor does not, however, contravene the established grand jury procedures guaranteed by art. 12. Commonwealth v. Favulli, 352 Mass. 95, 104, 224 N.E.2d 422. It is not clear from the offer of proof that the police officers were unauthorized strangers rather than assistants. See Commonwealth v. Geagan, 339 Mass. 487, 496--467, 159 N.E.2d 870. Furthermore, the offer of proof does not demonstrate any connection between Schnackenberg and the hearings in question. But even if we assume that unauthorized persons were present at the Crime Commission's hearings, this would not be a ground for dismissing the indictments, for the indictments were returned by the grand jury, not by the commission. Thus they would not be invalidated by the alleged irregularity in the commission's proceedings.

5. The remaining contention in support of the pleas in abatement is that the conduct of the commission, a legislative agency, usurped the executive functions of the Attorney General and thereby violated the doctrine of the separation of powers, as found in art. 12 and art. 30 of our Declaration of Rights. This contention is answered by our decisions in Attorney Gen. v. Brissenden, 271 Mass. 172, 183--184, 171 N.E. 82, Sheridan v. Gardner, 347 Mass. 8, 16--18, 196 N.E.2d 303, and Commonwealth v. Favulli, 352 Mass. 95, 100--103, 224 N.E.2d 422, which demonstrate that there was no such violation. In regard to pre-trial matters numbered 3, 4, and 5, the opinion is that of a majority of the court.

THE TRIAL.

6. The Commonwealth, over the defendant's objection, was allowed on direct examination to ask Stanley Britton, the Secretary-Treasurer of the Authority at the time of the trial, what his duties were at that time. Schnackenberg argues that Britton's response was inadmissible because it was not shown that his duties in 1967 were the same as Schnackenberg's in 1960, the year relevant under the indictments. Even if we assume that the judge erred in allowing the question, the defendant was not prejudiced. Britton's answer was quite general in nature and not harmful to the defendant. Moreover, the testimony of Schnackenberg and two other witnesses called by the defence confirmed that the procedures followed by Britton were similar to those followed by Schnackenberg in 1960.

7. The details of the circumstances which led HTE to do work at Schnackenberg's home were significant aspects of the charges against him. Edgar F. Copell, the president of HTE, testified for the Commonwealth that in a conversation he had with Callahan (the chairman of the Authority), the latter stated that he needed Schnackenberg's services but that Schnackenberg wanted time off to work around his home. Callahan then asked Copell to go out to see what had to be done at Schnackenberg's house. During Schnackenberg's enberg's direct examination by the defence counsel the following colloquy occurred Q. 'You did not get the vacation. And was there a reason given you by Mr. Callahan for that?' The Judge: 'We will exclude that.' Q. 'Did you tell Mr. Callahan you needed a vacation for a particular purpose?' Mr. Finn: 'Objection.' The Witness: 'No, sir.' The Judge: 'Excluded.' Mr. Hurley: 'My exception, please.' The Judge: 'Yes.'

Schnackenberg argues that both of the excluded questions were permissible solely on the ground that the general subject had been raised by the Commonwealth. But it does not follow that because the Commonwealth introduced hearsay statements, to which there was no objection, the defence then may similarly introduce such testimony over proper objections. See Parker v. Dudley, 118 Mass. 602, 605. Reliance is placed on the statement in Commonwealth v. Britland, 300 Mass. 492, 495--496, 15 N.E.2d 657, 659, 118 A.L.R. 132, that where 'the prosecution introduces statements of the defendant, tending to show that he is guilty * * * he may on cross-examination elicit from the witnesses for the prosecution the whole of the subject matter, even though statements so drawn out are favorable to him.' But this principle does not aid the defendant. In the case at bar, unlike the situation in the Britland case, the prosecution's witness, Copell, did not testify about statements made to him by Schnackenberg, and the excluded questions did not refer to the same conversation about which Copell had testified. ³ There thus was no violation of the familiar rule that 'whenever the statements, declarations or admissions of a party are made subjects of proof, all that was said by him at the same time and upon the same subject is admissible in his favor, and the whole should be taken and considered together.' Commonwealth v. Keyes, 11 Gray, 323, 324.

8. Copell was permitted to read to the jury part of the transcript of his testimony before the grand jury. The defendant objected to...