Com. v. Winter

• Decision Date: 29 May 1980
• Citation: 402 N.E.2d 1372,9 Mass.App.Ct. 512
• Parties: COMMONWEALTH v. Howard T. WINTER (and three companion cases 1 ).
• Court: Appeals Court of Massachusetts

Page 1372

402 N.E.2d 1372

9 Mass.App.Ct. 512

COMMONWEALTH v. Howard T. WINTER (and three companion cases ¹).

Appeals Court of Massachusetts, Middlesex.

Argued Oct. 19, 1979.

Decided April 7, 1980.

Further Appellate Review Denied May 29, 1980.

Albert F. Cullen, Jr., Boston (Regina L. Quinlan, Boston, with him), for defendants.

Carol S. Ball and William L. Pardee, Asst. Dist. Attys., for the Commonwealth.

Before GOODMAN, ROSE and KASS, JJ.

GOODMAN, Justice.

The defendant Howard T. Winter appeals from convictions on two indictments, each charging that "between the first day of August (1977) . . . and the thirtieth day of September (1977)" he conspired with one Salvatore Sperlinga and one Herbert T. Foster, Sr. to "threaten an injury to the person or property of another by a verbal communication with intent thereby to extort . . . a pecuniary advantage, or with intent to compel said person to do an act against his will." See G.L. c. 265, § 25. The answer to the defendant's motions for particulars alleges as to both indictments that "(t)o the best of the Commonwealth's knowledge this offense began on or about the first day of August, 1977, and continued through the thirtieth day of September 1977." The particulars further allege that "(t)he manner and means by which th(e) crime (charged in one of the indictments) was committed were that Howard Winters, Salvatore Sperlinga and Herbert Foster conspired between and among each other to maliciously threaten an injury to Austin Griffin, and/or to the property of said Griffin, and his employer, the Disabled American Veteran's Club (DAV)" and that "(t)he manner and means by which th(e) crime (charged in the other indictment) was committed were that Howard Winters, Salvatore Sperlinga, and Herbert Foster conspired . . . to maliciously threaten an injury to Arthur Agostinelli, Sr. and/or to the property of said Agostinelli, and his employer, Somerset Vending Company (Somerset)." ² These indictments were tried with two indictments against Sperlinga and two indictments against Foster, all making the same charges. Sperlinga was also convicted on both indictments and appealed; Foster was acquitted. ³ After the oral argument of the Winter and Sperlinga appeals, Sperlinga died, and the two indictments against him are to be dismissed in the Superior Court. See Commonwealth v. Harris, --- Mass. --- ^a, 398 N.E.2d 726 (1980).

The evidence marshalled by the prosecution included testimony by Griffin, an officer of the DAV, Agostinelli, who had an interest in and was employed by Somerset, and one Robinson, engaged in the business of manufacturing and distributing coin operated machines, who testified to conversations with Foster and a meeting with Winter, Sperlinga and Foster. The Commonwealth's case also included testimony by one DelVendo, a special agent with the Bureau of Alcohol, Tobacco and Firearms of the United States Treasury Department and a member of the DAV, about conversations with Sperlinga and testimony by one Percy Sylvester, an officer of Somerset.

Griffin testified that on September 21, 1977, at about 10:00 to 10:30 A.M., he was at the DAV post ⁴ when two men, who were strangers to him and whom he identified at trial as Winter and Sperlinga, rang the doorbell; he let them in. From the prosecuting attorney's questioning the jury could have reconstructed the following scenario:

Winter (in a "louder than normal" voice as he and Sperlinga entered the premises): "Who runs this place?"

Griffin: "I do."

Winter: "Do you know who I am?"

Griffin: "No."

Winter: "I'm Howie Winters. It cost me a bundle of money to make these machines legal, ⁵ and I'm going to get it back. Those machines ⁶ are going out and mine are coming in."

Griffin: "We own those machines, we have owned them for years. We pay a Federal tax on them of $1000 a year. We spent money on those machines . . . Those are our own machines. What are you going to do about it?"

Griffin further testified that he then went on to tell Winter how much the machines were worth and Winter said, "We'll take care of that." Griffin also testified that: "I then said to him that a decision like this I couldn't make myself. I wanted to have two weeks to get the executive board together to talk it over." He further testified: "That was Wednesday. I said, 'Give me a week.' "

Winter: "I'll give you till Friday. Get them down here."

Griffin: "We'll probably close the building up."

Winter and Sperlinga left about 11:00 A.M. Griffin testified, over objection and exception, that he was "scared blue" an old fashioned expression which he explained as meaning "frightened and nervous" and that "(m)entally, I haven't had a good night's sleep since this thing." At about noon, Griffin spoke to the treasurer of the DAV and thereafter phoned the members of the executive committee, eleven or twelve in number, for an emergency meeting the next evening.

The same day at about 2:30 P.M., Winter and Sperlinga visited Somerset, which places and services coin operated machines in clubs and other establishments with which it shares the proceeds. ⁷ There they spoke with Agostinelli. The scenario which the jury could have reconstructed was as follows:

Sperlinga (as the door was opened to let Winter and him in): "Hi, we're looking for Gus."

Agostinelli: "I'm Gus."

Sperlinga: "Hi, I'm Sal (mentioning his last name which Agostinelli did not completely catch). This is Howie Winters. We'd like to talk to you. Is there some place we can go and talk?"

Agostinelli: "Yes, come in, in the back room. We can talk there." ⁸

Sperlinga: "You know why we are here."

Agostinelli: "No, I don't know why you're here."

Sperlinga: "You must have an idea why we're here."

Agostinelli: "No, I don't."

Winter: "You have been operating in this city long enough. It cost me a bundle to get these licenses passed. I'll give you two days to get your machines out of the city, or you'll be sorry."

Agostinelli: "Well, I thought when you were getting licenses passed through the city, that . . . you wanted to just put them in the barrooms."

Winter: "This is not for barrooms, only. This is for the whole city. I own this city. This is my city. You're all done now. You have two . . . alternatives. Either put a reasonable price on the machines and we'll buy them, or take them out and we'll install our own. If you don't we'll send someone down to collect back dues for all the years you have been operating in Somerville. And if you don't (pay), you'll be sorry."

Agostinelli: "You mean to say you can come in and tell someone that he's out of business?"

Winter: "As far as Somerville is concerned, you're out of business. You're all done. This is my city. I own it. We'll be back on Saturday to see you to find out what you're going to do."

Agostinelli: "I'll not be here Saturday. My wife and I are going away for the weekend, and we won't be back until Monday."

Winter: "Well, we'll be in to see you Monday."

Agostinelli testified that during much of the conversation Winter "was actually yelling at me" and "shaking his finger right at my nose." Agostinelli testified, over objection and exception, that he felt "like I was going to die or collapse," his "stomach was turning inside out," and his "head started to spin." He "didn't know what was going on or what was going to happen." At the end of the conversation he let Winter and Sperlinga out, went back to his desk, lit a cigarette and shook his head. He then went into Sylvester's office "shaking like a leaf." His voice was "(k)ind of shaky" and he was "panting." After talking to Sylvester for about ten or fifteen minutes, he returned to his desk and sat "(w)ith my feet under the desk and in a prone position, trying to relax, which I couldn't do."

This testimony was corroborated by that of Percy Sylvester, whose office adjoined the room in which the meeting among Agostinelli, Winter and Sperlinga had taken place. Sylvester testified, over objection and exception, that after the meeting Agostinelli came into his office and leaned against the door frame. It could have been found that this was about thirty seconds after Agostinelli had let Winter and Sperlinga out of the premises. Sylvester testified that the following took place: "He (Agostinelli) said, 'Did you hear what those two guys says to me?' I says, 'No, what guys?' And he names them, 'Winters,' and it was Sperlinder (sic) or whatever. I said, 'Well, what?' And he says, 'Well, he says if we don't get out of the business, they're going to break my legs, they're going to do other things.' I said, 'Forget it and go back to work.' " Sylvester testified that "he looked shook up to me, or nervous." He amplified this: "Well, it's hard to explain to another individual. A fellow says you've got cancer, how would you feel? About the same thing."

Robinson testified that in mid August, 1977, as a result of a telephone call from Foster, whom he had not previously known, he went to Foster's place of business in Somerville, which contained about fifty new coin operated machines. Foster told him, "(W)e are taking over the city"; and when Robinson asked, "Who's taking over the city," Foster replied, "Howie." Foster said, as put by Robinson, "that Howie was ranting and raving and he wanted the machines installed in all the barrooms, in all the clubs in the city. And he wanted to do it immediately." Robinson replied, "So what." Robinson further testified that "Mr. Foster wanted me to relay the message to all the other operators to get out of the city, that they were taking over the whole city." Robinson then told Foster that he was going to see Sylvester and would relay his message. Foster also said, as reported by Robinson, that "he had a meeting on Wednesday ⁹ at Winter Hill and he had to give Howie and Sal an answer." The meeting then ended, and Robinson went to see Sylvester.

In the first week in September, as a result of a call from Foster, Robinson, Foster, Winter and...