Com. v. O'Toole

• Decision Date: 26 January 1967
• Citation: Com. v. O'Toole, 223 N.E.2d 87, 351 Mass. 627 (Mass. 1967)
• Parties: COMMONWEALTH v. Edward P. O'TOOLE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 87

223 N.E.2d 87

351 Mass. 627

COMMONWEALTH v.Edward P. O'TOOLE.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 3, 1966.

Decided Jan. 26, 1967.

Joseph J. Balliro, Boston, for defendant.

John T. Gaffney, Asst. Dist. Atty., for the Commonwealth.

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

WHITTEMORE, Justice.

The defendant was found guilty by a jury in the Superior Court under four indictments charging him respectively with fraudulent conversions, obtaining signatures under false pretences, larceny of amounts exceeding $100, and uttering forged instruments.The trial was subject to G.L. c. 278, §§ 33A--33G.The assignments of error now argued relate to the judge's rulings on evidence and his ruling on an objection to the Commonwealth's closing argument.

Certain facts are undisputed.The defendant was city manager of Revere from January, 1953, to December, 1963.From 1959 to 1961, fifty-four checks were issued to City Hardware, Inc. for a total sum of $44,48i.The checks were issued upon requests from the building and remodeling department.City Hardware, Inc. did not receive the checks nor the proceeds and did not deliver to the city and of the materials for which the checks purportedly were issued.The indorsements on the checks were not genuine.

There was evidence that the defendant was the head of the building and remodeling department during 1959 to 1961, that the checks had been drawn to City Hardware, Inc. at the defendant's request, and that, contrary to the customary procedure, they had been delivered to the defendant personally.The defendant had then caused the checks to be cashed in the city tax collector's office and the proceeds also delivered to him.The indictments followed an extended investigation that began in 1962 when a number of taxpayers presented a petition to the district attorney under G.L. c. 44, § 62. ¹ 1.The defendant contends that the admission in evidence of conversations occurring in the course of the investigation between November 5, 1962, and October 17, 1963, violated his constitutional right to counsel.The testimony as to the conversations was given by William J. DiGiuseppe, a detective of the Metropolitan District Police, who was assigned to the district attorney's office.The testimony tended to support the charges of the indictments.

On November 5, 1962, at the defendant's City Hall office, DiGiuseppe asked the defendant for an 'explanation for his overspending' in the city budget.The defendant said he would explain on November 16 at the district attorney's office, and suggested that the petitioners were disgruntled job seekers.Testimony concerning the November 16 meeting and several subsequent meetings was excluded.

On August 1, 1963, at the defendant's office, the defendant said he had personally handled the building and remodeling account as to all matters from 1958 through 1963; he alone was responsible for each requisition to buy goods and services from the account and he had followed the required procedures.DiGiuseppe asked for the defendant's books for that account and requested that he'explain the transactions concerning' the account.The defendant replied, 'that was a big order for him to do.'DiGiuseppe said that if he kept such good records he should be able to lay hands on them right away and asked for a chance to look over the records.The defendant said 'he didn't have them right then and there.'

On October 17, 1963, again in the defendant's City Hall office, DiGiuseppe told the defendant that the district attorney's office ('we') would soon be asking the city treasurer for the cancelled checks.The defendant said that if the treasurer turned over any checks to the district attorney's office, 'he's in for a lot of trouble' and that the defendant had ordered the treasurer 'not to give * * * (the district attorney's office) anything.'The investigator asked where the defendant kept his copies of the building and remodeling transactions, and he replied that he destroyed his copies once a warrant was issued by the auditor's office, as he did not need them.

The defendant relies also on other testimony, summarized in this paragraph, that was either struck or excluded on voir dire, but which informed the judge as to the nature of the investigation.On November 16, 1962, at a conference at the district attorney's office, an assistant district attorney asked for the defendant's 'defence' for this overspending, saying it would also be his own 'defence' if the petitioners sought a writ of mandamus to compel him to take action under G.L. c. 44, § 62.He asked the defendant'to give him a reason why he should not prosecute.'The defendant said he had knowingly spent the money and thought he had a right to do so, borrowing from one account or another when he had money in the excess and deficiency account.In subsequent conversations, reference was made by the interrogator to the 'long promised report,' the report looked for 'since Thanksgiving,' the report asked for 'over six months' ago.On one occasion the defendant asked 'what report that was' and DiGiuseppe asked 'if he was kidding.'

The defendant relies on Escobedo v. State of Illinois, 378 U.S. 478, 490--491, 84 S.Ct. 1758, 12 L.Ed.2d 977, andMiranda v. State of Arizona384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694, and contends, in effect, that the compulsion of the investigation brought him within the rule requiring counsel in custodial interrogation because it deprived him of his freedom of action.We disagree.

The trial of the instant case began on July 19, 1965, after the date of the Escobedo decision(June 22, 1964) but before the date of the Miranda decision(June 13, 1966).The Miranda case explained and expanded the constitutional rule as stated in the Escobedo case.We do not apply the Miranda principle retroactively.COMMONWEALTH V. MCGRATH, MASS., 222 N.E.2D 774,^A and cases cited.SeeJohnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.But even under the rule as explicated in the Miranda case the validity of the inquiry would not depend on the presence of counsel.In that casethe court held that counsel is required in any 'custodial interrogation' and defined the term as 'questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.'384 U.S. 444, 86 S.Ct. 1612.In a footnote the court commented, 'This is what we meant in Escobedo when we spoke of an investigation which had focused on an accused.'

The defendant O'Toole was in no way physically detained or restricted.Calling a suspect's attention to circumstances that appear to require an explanation does not deprive him of his freedom of action.There was no restraint of freedom in interviewing the defendant in the district attorney's office.Stating, in effect, that the circumstances appear to require prosecution and asking that the defendant show why they did not, was not restraint.The defendant's conduct in the course of the investigation undoubtedly greatly enhanced the suspicions of the interrogators and tended to suggest violations not only of G.L. c. 44, § 62, but of other statutes.That was not enough to require the presence of counsel.It was not coercion or restraint to give the defendant full opportunity to decide whether, in the light of what was known, he cared to talk.United States v. Knight, 261 F.Supp. 843(E.D.Pa.).United States v. Spinney, 264 F.Supp. 774(D.Mass.).

There is nothing in the defendant's suggestion that, because of the absence of counsel, it is 'implicit' that his answers were not made voluntarily.

2.It was not error to admit in evidence the following cross-examination of the defendant: Q.'Did you do anything to check out these bills to determine whether or not these materials had been furnished at that time, after your attorney showed you the bills?'A.'No.'

The defendant objects that, as he had resigned as city manager in December, 1963, he was not in a position in July, 1965(the time referred to in the question), to make the investigation suggested.The jury knew the date of the defendant's resignation and also heard his testimony that he had first learned that materials had not been furnished to the city about a week prior to taking the witness stand, i.e., in July, 1965, shortly after the Commonwealth had furnished copies of the checks and bills to defence counsel pursuant to an order of the court.Obviously any checking would have required permission of city officials having custody of the records.That did not render irrelevant the absence of any effort in the premises.

3.No error is shown in the admission of testimony that in 1959 through 1961the defendant deposited $69,362.39 in bank accounts held jointly with his wife and $2,283 in his individual account.The Commonwealth had cross-examined the defendant as follows: Q.'Did you get any of that $44,482, Mr. O' Toole?'A.'No, sir.'Q.'Did you deposit any of the $44,482 in any bank account?'A.'No, sir.'Q.'Exclusive of your salary, Mr. O' Toole, can you tell us, sir, did you deposit $44,000 in any bank?'A.'No, sir.'A.'And you still want to leave it that you did not deposit $44,000-odd between the years 1959 to 1961 in the National Shawmut Bank?'A.'I will have to total up what I deposited in those years.'Q.'Was it close to $44,000?'A.'I have no idea; I would have to check it.'

The judge admitted the evidence concerning the bank accounts for the limited purpose of impeaching the defendant's credibility, and, shortly after the admission of the evidence, so instructed the jury.The defendant's testimony was reasonably construable as an assertion that, apart from his salary, he did not deposit as much as $44,000 in any bank and that he had no idea without totaling his deposits whether what he did deposit was close to...