State v. Harrington

• Decision Date: 02 December 1969
• Docket Number: No. 22-69,22-69
• Parties: STATE of Vermont v. John B. HARRINGTON.
• Court: Vermont Supreme Court

Page 692

260 A.2d 692

128 Vt. 242

STATE of Vermont v. John B. HARRINGTON.

No. 22-69.

Supreme Court of Vermont.

Dec. 2, 1969.

Reargument Denied Jan. 15, 1970.

Patrick J. Leahy, State's Atty., for the State.

Eric A. Schuppin, Essex Junction, and Natt L. Divoll, Bellows Falls, for defendant.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

HOLDEN, Chief Justice.

The respondent John B. Harrington has been tried and found guilty of the offense of threatening to accuse Armand Morin of Littleton, New Hampshire, of the crime of adultery. The indictment charges that the threat was maliciously made with the intent to extort $175,000 and to compel Morin to do an act against his will in violation of 13 V.S.A. § 1701.

At the outset the respondent acknowledges that there is no serious conflict in the material evidence presented to the jury. The main effort of his appeal challenges the jurisdiction and the sufficiency of the evidence to sustain the conviction.

At the time of the alleged offense the respondent was engaged in the general practice of law in a firm with offices in Burlington, Vermont. Early in March, 1968, he was consulted by Mrs. Norma Morin, the wife of the alleged victim, Armand E. Morin. Mrs. Morin had separated from her husband because of his recent and severe physical abuse. Prior to their separation they owned and operated the Continental 93 Motel in Littleton, New Hampshire, where the Morins maintained a residential apartment. The respondent learned the marital estate of the parties had a net value of approximately $500,000. Mrs. Morin reported to the respondent that her husband had also been guilty of numerous marital infidelities with different women at the motel. Mrs. Morin also disclosed that she had been guilty of marital misconduct which apparently had been condoned.

During the first conference the respondent advised Mrs. Morin that, because of her residence in New Hampshire, she could not undertake divorce proceedings in Vermont for at least six months and for her to obtain a divorce in New Hampshire it would be necessary that she obtain counsel from that state. Mrs. Morin indicated she wished to retain Mr. Harrington to represent her.

On one of the subsequent conferences a friend of Mrs. Morin's, who accompanied her to the respondent's office, suggested that an effort should be made to procure corroborative evidence of Mr. Morin's marital misconduct. To this end, the floor plan of the motel was discussed and a diagram prepared. At this time a scheme was designed to procure the services of a girl who would visit the motel in an effort to obtain corroborative evidence of Morin's infidelity.

After some screening, a Mrs. Mazza, who had been suggested by the respondent, was selected to carry out the assignment. The respondent explained to Mrs. Mazza the purpose of her employment and the results she was expected to accomplish and provided her with a 'cover story' to explain her registration and presence as a guest at the Continental 93 Motel. Warning Mrs. Mazza against enticement and entrapment, the respondent instructed the employee to be 'receptive and available,' but not aggressive. The agreement with Mrs. Mazza was that she would be paid one hundred dollars at the time she undertook the assignment and one hundred dollars when her mission was completed.

Mrs. Morin was without funds at the time. A contingent fee agreement was signed by Mrs. Morin and the firm of Harrington and Jackson, by the respondent. The agreement was dated March 5, 1968 and provided that in the event a satisfactory property settlement was obtained, the respondent's firm was to receive twelve and a half percent of the settlement, in addition to reimbursement for expenses advanced by counsel. Electronic listening and recording equipment was ordered and delivered by air.

On the afternoon of March 6 the respondent and two office associates traveled to St. Johnsbury in two vehicles. Mrs. Mazza continued on to Littleton unaccompanied. She registered on arrival at the Continental 93 Motel under the name of Jeanne Raeder. She called the respondent at St. Johnsbury from a public telephone and informed him of her room number and location. Mrs. Mazza later delivered the key to her room to the respondent to enable him to procure a duplicate. The respondent, representing that he was a book salesman, registered at the motel and procured a room directly above that occupied by Mrs. Mazza. He was accompanied by a junior associate and an investigator,-both employed by the respondent's law firm.

During the next day Mrs. Mazza attracted Mr. Morin's attention. The sequence of events which followed led to an invitation by Morin for her to join him at his apartment for a cocktail. Mrs. Mazza accepted. Later she suggested that they go to her room because Mr. Morin's young son was asleep in his quarters. Morin went to Mrs. Mazza's room about midnight. Soon after the appointed hour the respondent and his associates entered the room. With one or more cameras, several photographs were taken of Morin and Mrs. Mazza in bed and unclothed. Morin grabbed for one camera and broke it.

During the time of her stay at the motel Mrs. Mazza carried an electronic transmitter in her handbag. By means of this device, her conversations with Morin were monitored by the respondent and his associates.

The respondent and his companions checked out of the motel at about one in the morning. Before doing so, there was a brief confrontation with Morin. According to Morin's testimony, the respondent demanded $125,000. Morin testified-'at that time I made him an offer of $25,000 to return everything he had, and in a second breath I retracted the offer.'

The following day the respondent conferred with Mrs. Morin and reported the events of the trip to New Hampshire. He asked Mrs. Morin to consider reconciliation over the weekend. On March 11, 1968, Mrs. Morin informed the respondent she decided it was too late for reconciliation. With this decision, the respondent dictated, in the presence of Mrs. Morin, a letter which was received in evidence as State's Exhibit 1. The letter was addressed to Armand Morin at Littleton, New Hampshire, and was placed in the United States mail at Burlington the same day.

The communication is designated personal and confidential. The following excerpts are taken from the full text:

'-Basically, your wife desires a divorce, and if it can be equitably arranged, she would prefer that the divorce be as quiet and as undamaging as possible.

This letter is being written in your wife's presence and has been completely authorized by your wife. The offer of settlement contained herein is made in the process of negotiation and is, of course, made without prejudice to your wife's rights.

It is the writer's thinking that for the children's sake, for your sake, and for Mrs. Morin's sake, that neither the courts in New Hampshire nor in Vermont should become involved in this potentially explosive divorce. If a suitable 'stipulation or separation agreement' can be worked out, the writer would recommend a Mexican, Stipulation-Divorce. This divorce would be based upon the catch-all grounds 'Incompatability'. A Mexican divorce of this type can be obtained when both parties have agreed as to terms of separation and have executed certain powers of attorney, etc., which this office can provide. With incompatability as the grounds, it is actually immaterial who goes down for the 48 hour period necessary to obtain the divorce in the State of Chihuahua. Mrs. Morin is willing to go; however, if a settlement can be reached, she has no objection to your going.

Mrs. Morin is willing to give up the following:

1. All of her marital rights, including her rights to share in your estate.

2. All of her right, title and interest, jointly or by reason of marital status, that she has in and to, any or all property of the marriage, including the Continental 93 Motel, the three (3) farms in Vermont, the capital stock that you own, the house in Lindenville, the joint venture in land in East Burke, all personal property except as is specifically hereinafter mentioned and in short, all rights that she may now have or might acquire in the future, as your wife. Furthermore, any such settlement would include the return to you of all tape recordings, all negatives, all photographs and copies of photographs that might in any way, bring discredit upon yourself. Finally, there would be an absolute undertaking on the part of your wife not to divulge any information of any kind or nature which might be embarrassing to you in your business life, your personal life, your financial life, of your life as it might be affected by the Internal Revenue Service the United States Customs Service, or any other governmental agency.-'

The letter goes on to specify the terms of settlement required by Mrs. Morin, concerning custody of the minor child, her retention of an automobile and the disposition of certain designated personal effects. It further provides:

'5. Mrs. Morin would waive all alimony upon receipt of One Hundred Seventy Five Thousand Dollars ($175,000)-.'

The sum of $25,000 is specified to be paid at the signing of the separation agreement, with the balance due according to a schedule of payments over the period of eighteen months.

The letter continues:

'-At the present time Mrs. Morin is almost without funds. She did have the $200 that you gave her when she left and she does have the $1500 in Canadian bills from the 'found' money. Because of her shortage of money, and, because she is badly missing David, and finally, because she cannot continue for any substantial period of time to live in the present vacuum, the writer must require prompt communication from you with respect to the proposed settlement contained herein. This letter is being dictated on March 11 and you should have it in your possession by March 13, at the latest. Unless the writer has...