State v. Capone

• Decision Date: 20 November 1975
• Docket Number: No. 74-308-C,74-308-C
• Citation: 115 R.I. 426,347 A.2d 615
• Parties: STATE v. Michael CAPONE. A.
• Court: Rhode Island Supreme Court

Page 615

347 A.2d 615

115 R.I. 426

STATE v. Michael CAPONE.

No. 74-308-C.A.

Supreme Court of Rhode Island.

Nov. 20, 1975.

[115 R.I. 439] Julius C. Michaelson, Atty. Gen., William Granfield Brody, Special Asst. Atty. Gen., for plaintiff.

Joseph L. Breen, Providence, Philip J. Murphy, Fitchburg, Mass., for defendant.

OPINION

PAOLINO, Justice.

On March 6, 1972, the Grand Jury returned an indictment ¹ charging that the defendant:

'* * * did unlawfully accept a gift and gratuity from Robert Byrne, a person who gave, offered and promised said gift and gratuity with intent to influence improperly the conduct of said Michael Capone, alias John Doe, in the running and promotion of a horse race, the said Michael Capone, alias John Doe, then and there being a trainer of race horses, in violation of the provisions of Title 11, Chapter 7, Section 10 of the General Laws of Rhode Island, 1956, (Reenactment of 1969).'

The defendant pleaded not guilty and filed certain motions which were heard and denied. None of those motions is pertinent to this proceeding.

The case was heard before a justice of the Superior Court and a jury. The defendant filed motions for judgment of acquittal at the close of the state's case ² and also at the close of all the evidence. The trial justice denied both. After the jury returned a verdict of guilty, defendant filed motions for arrest of judgment and for a new trial. These were denied; defendant was sentenced and judgment of conviction was entered. The sentence was stayed pending appeal to this court. The case is here on defendant's appeal from the judgment of conviction.

The Facts

The state's principal witness, Robert Byrne, testified as follows. On the evening of March 16, 1971, and the morning of March 17, 1971, he met in a motel in Pawtucket with certain named individuals from whom he received a list of names. He then proceeded to the stable area of Lincoln Downs Racetrack. He had with him a list of names of horse trainers whose horses were stabled in the area and he was carrying in his jacket pocket 12 hypodermic needles and syringes, each of which he had filled with a liquid drawn from bottles labeled 'Acepromazine.'

While in the stable area Byrne approached two racehorse trainers and to each he announced, 'I'm Bob, Adolph sent me.' He then proceeded to inject their horses with the needles and syringes he was carrying. He then approached a third trainer whom he identified as defendant and asked him if he was Michael Capone. Receiving an answer in the affirmative Bryne said to defendant, 'I'm Bobby, Adolph sent me.' The defendant then asked 'where the $200 was.' Byrne answered 'I don't know nothing about any $200. I get paid to hit the horses, you'll have to take that up with him-with them. I'm here to hit that horse one way or another, with you or without you.' After some further conversation, defendant said he would inject his horse himself. Byrne then handed one of the syringes to defendant and watched as defendant injected it into the neck of the horse. The defendant made inquiry regarding the 'live combinations' and was told that 'they'll tell you in time.' After leaving defendant, Byrne met one of the men he had met in the motel in Pawtucket. This man gave him a sum of money an asked Byrne to pay $200 to each trainer, including defendant. Later that day Byrne paid the $200 to defendant.

The defendant testified in his own defense. He denied knowing Byrne, ever receiving anything from him and denied injecting anything into the horse.

I

The defendant's first contention is that the trial justice erred in denying the motions for acuittal. As pointed out in note 2, supra, the denial of the motion made at the close of the state's case is not before us. The only question here is whether the trial justice erred in denying the motion for acquittal made at the close of all the evidence.

The defendant bases his argument on two grounds: first, that the state has failed to prove an essential element of the charge, namely, any intent on the part of Byrne to influence improperly defendant's conduct by gift or gratuity; and, second, that the $200 given to defendant could not constitute a 'gift under G.L.1956 (1969 Reenactment) § 11-7-10 as the money was paid after the horse was injected.'

Before passing on the merits of defendant's contention, it may be helpful to discuss briefly the standard to be applied in passing on a motion for judgment of acquittal made pursuant to Rule 29 of the Superior Court Rules of Criminal Procedure. Although Rule 29 changes the nomenclature of this motion from directed verdict to motion for acquittal, the standard to be applied to the new motion for judgment of acquittal remains the same. In considering such a motion, the trial justice must view the evidence in a light most favorable to the prosecution, give full credibility to the prosecution's witnesses, and draw from the evidence every reasonable inference consistent with guilt. State v. Howard, R.I. 339 A.2d 259 (1975).

With this standard to guide us, we review the trial justice's ruling.

The trial justice passed on the precise issues raised by defendant. With respect to the question of intent, after reviewing Byrne's testimony in some detail, he concluded that the state had presented ample evidence from which the jury could infer that Byrne intended to influence defendant's conduct in the running of the first race on March 17, 1971. The evidence supports his finding on this issue; defendant's argument to the contrary is without merit and requires no further discussion.

The trial justice also passed on defendant's argument that the $200 payment to defendant after all the horses were 'hit could not be described as a payment with intent to influence defendant's conduct. In ruling against defendant's argument the trial justice said that the record clearly showed defendant's expectancy of payment and further that defendant was in fact paid. The trial justice ruled that the law forbids acceptance of a gift or gratuity intended to influence the running of a horserace. He found that although the gift to defendant followed the administration of the injection, it was clear that the injection was given with the expectation that the trainer would be entitled to a quid pro quo, namely, $200 and information regarding the 'live combinations' for that race or other races. The trial justice felt that both the money and the information regarding the 'live' (undrugged) horses were of value to defendant and that both fulfilled the definition of gift or gratuity within the Act. He concluded on the basis of the foregoing that the state had presented sufficient evidence to support a finding of guilt beyond a reasonble doubt and therefore denied defendant's motion for judgment of acquittal.

The weakness of defendant's argument on this point is apparent. There is nothing in the language of § 11-7-10 prescribing the time when the gift or gratuity must be made, but there is competent evidence in the record to support the trial justice's finding that the $200 payment was made with intent to influence defendant's conduct, even though the money was paid to defendant after all the horses were 'hit.' We find no error in the denial of defendant's motion for judgment of acquittal.

II

We consider next defendant's contention that the trial justice erred in denying the motion to dismiss on the ground that § 11-7-10 is unconstitutional. He argues that the statute under which he has been convicted is unconstitutional because it is so vague and lacking in ascertainable standards of guilt that, as applied to defendant, it fails to give 'a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.' He cites United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, 996 (1954) and Palmer v. City of Euclid, 402 U.S. 544, 91 S.Ct. 1563, 29 L.Ed.2d 98 (1971). Specifically, he argues that the words 'conduct' and 'improperly' are so vague and indefinite in meaning that they render the statute unconstitutional. Further he argues that trainers are not involved in the running of a horserace; that 'running * * * of such horse race' means from the starting gate to the finish line; and that any use of the words 'running * * * of such horse race' that would include preparation of, formal entry into, etc., would reflect a species of equivocalness which would render the statute obviously vague. For the reasons that follow we find no merit in any of defendant's arguments on this issue.

Statutes enacted by the General Assembly are presumed to be constitutional in form and in application, State v. Lerner, 112 R.I. 62, 88, 308 A.2d 324, 340 (1973), until they are shown to be unconstitutional beyond a reasonable doubt, In re Buxton, 111 R.I. 480, 483, 304 A.2d 350, 352 (1973), and the burden of establishing the unconstitutionality of a statute rests on the party who is challenging the constitutionality of the statute, State v. Lerner, supra. The mere assertion that a statute is vague, without supporting authority, is not sufficient to sustain a challenger's burden of proof. State v. Berker, 112 R.I. 624, 630, 314 A.2d 11, 15 (1974).

Has defendant here sustained his burden of proving § 11-7-10 unconstitutionally vague and indefinite? We answer this question in the negative for the simple reason that, in our judgment, the pertinent language of § 11-7-10 is clear, definite and unambiguous. The relevant portion of § 11-7-10 reads as follows:

'Any * * * trainer * * * or other person participating in any horse race, or in any manner engaged in conducting, arranging or promoting any horse race * * * who accepts any gift or gratuity, directly or indirectly, from any person who gives, offers or promises any such gift or gratuity with intent to influence improperly the conduct of such person in * * * the running or promoting of such horse race * * * shall be punished * * *.'

The words used in a statute...