State v. Murphy

• Decision Date: 05 August 1974
• Docket Number: No. 73-111-C,73-111-C
• Citation: 113 R.I. 565,323 A.2d 561
• Parties: STATE v. William MURPHY. A.
• Court: Rhode Island Supreme Court

Page 561

323 A.2d 561

113 R.I. 565

STATE v. William MURPHY.

No. 73-111-C.A.

Supreme Court of Rhode Island.

Aug. 5, 1974.

Reargument Denied Sept. 25, 1974.

Richard J. Israel, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., for plaintiff

McKinnon & Fortunato, Stephen J. Fortunato, Jr., Pawtucket, for defendant.

OPINION

KELLEHER, Justice.

In June 1972, the grand jury for the Counties of Providence and Bristol returned two indictments against the defendant. The first indictment charged Murphy with conspiring with one Robert Fontaine to bribe a person summoned to serve as a petit juror. The second indictment charged Murphy with the substantive offense of actually offering to bribe the potential juror. Fontaine was also indicted as a co-conspirator and charged with bribery. The cases were consolidated for a jury trial in the Superior Court. The jury returned guilty verdicts on all of the indictments. Motions for new trials were denied. In this appeal, Murphy challenges the trial justice's denial of his motion for a judgment of acquittal and his motion for a new trial.

The records of the jury commissioner and the clerk of the Superior Court disclose that on May 25, 1972, John J. Gilbert, Jr. was notified that he had been chosen to serve as a petit juror in the Superior Court at any time up to and including the second Monday in July 1972. Gilbert, a resident of Providence, owns and operates a bar in Woonsocket. The bar is called the Gridiron Club. On May 30, 1972, a deputy city sergeant served a summons at Gilbert's residence telling him to appear in the Superior Court on Tuesday, June 6, 1972.

At the Murphy-Fontaine trial, Gilbert testified that shortly after noon on Sunday, June 4, 1972, he was at the Gridiron Club when he received a telephone call from Murphy. According to Gilbert, Murphy, who is a Providence city councilman, wanted to come to the bar with someone who desired to meet Gilbert. Gilbert informed Murphy that he would not be available until sometime later that evening. Gilbert then left his place of business to attend a testimonial dinner given for an employee who had retired. When he returned to the club, it was close to 8 p.m. Upon entering the premises, Gilbert observed Murphy and another man seated at the bar. Gilbert went to the bar. Murphy introduced Fontaine as 'Bobby.' Introductions over, Murphy told Gilbert that Bobby preferred to talk to him away from the bar. The trio went to a corner table located at the extreme opposite end of the premises. Murphy returned to the bar.

At this point, Gilbert said, Fontaine told him that he would be selected as a member of the jury that would hear the first degree murder case of State v. Richard Callei. He further informed Gilbert that he could earn $2,000 if he influenced the jury, $3,000 if there were a hung jury, and that if everything went right for Callei, it was worth $5,000. After first expressing shock at such an offer, Gilbert agreed to meet Fontaine the following evening in a Pawtucket diner to discuss the matter in greater detail. The conference ended. Fontaine rejoined Murphy at the bar. They finished their drinks and drove back to Providence. After their departure, Gilbert contacted Inspector Raymond Tempest, a veteran member of the Woonsocket Police Department, and informed him of the evening's events. The inspector and Gilbert are friends.

Murphy testified and gave a completely different reason as to why he and Fontaine went to Woonsocket on Sunday, June 4, 1972. He insisted that he did not call Gilbert. Rather, he said, it was Gilbert who called his home once on June 3 and again on June 4 when he told Murphy that he had 'some information pertaining to his (Callei) forthcoming trial.' Murphy also said that Gilbert wanted to know if the councilman knew 'anyone close to Dick.' Murphy acknowledged his friendship with Callei and agreed to go to the Woonsocket bar. The appointment was scheduled for 7:30 p.m. Murphy then left his home and while walking on Pocasset Avenue, he hailed Fontaine who was driving by. Murphy told Fontaine about his conversation with Gilbert. Fontaine agreed to go to Woonsocket.

Murphy told the jury that all three individuals participated in the corner conference. According to Murphy, Gilbert stated that he would guarantee a hung jury in the Callei trial but that the guarantee would cost $10,000. Murphy replied, 'Are you crazy or something?' Fontaine and he left the premises and returned to Providence.

Having reported the contradictory versions of what occurred in the Gridiron Club on the mid-evening of June 4, 1972, we shall consider the motions for judgment of acquittal and a new trial. As we do, we shall relate these issues to other pertinent portions of the testimony.

In determining a motion for a judgment of acquittal, the trial justice does not weigh the evidence or assess credibility. He views the evidence in a light most favorable to the prosecution, and draws therefrom all reasonable inferences favorable the prosecution. We must do likewise on review. State v. Moretti, R.I., 319 A.2d 342 (1974). The denial of such a motion which is made at the conclusion of the prosecution's case is reviewable only if the defense has rested at the time it makes the motion. Here, the defense did not rest but offered evidence and thereby waived any appellate review of the initial denial of its acquittal motion.

We shall first dispose of the bribery indictment. Simply stated, the record is devoid of evidence that would serve as any basis for the bribery charge lodged against Murphy. By the testimony of Gilbert himself, Murphy was not present when Fontaine offered the bribe. He was at the bar. In this jurisdiction, the common-law distinction between a principal and an accessory is still preserved. State v. Colvin, 82 R.I. 212, 107 A.2d 324 (1954); State v. patriarca, 71 R.I. 151, 43 A.2d 54 (1945). There is nothing in the evidence which would support any inference that Murphy had participated as a principal in the substantive offense of bribery. ¹ Compare, State v. Hart, 106 R.I. 213, 258 A.2d 70 (1969). Accordingly, the trial justice should have granted Murphy's motion for a judgment of acquittal on the bribery indictment.

However, the conspiracy indictment presents a different picture.

Initially, we shall consider Murphy's contention that, assuming the truth of all the evidence adduced against him, the prosecution has failed to prove the commission of a crime that violates any of the laws of this state. He emphasizes that on the date of the alleged conspiracy, Gilbert was not a member of the jury that would hear the Callei case. In taking this position, he relies on State v. Nadeau, 81 R.I. 505, 105 A.2d 194 (1954). Nadeau was a Woonsocket councilman who allegedly sought a payoff from an applicant who was seeking an appointment to the city's police department. The relevant statute in Nadeau is now cited as G.L. 1956 (1969 Reenactment) § 11-7-3. This statute bans the solicitation of a bribe by public officials. The court in Nadeau ruled that the statute did not apply to acts that were beyond the scope of the accused's power. Since the power of appointment was vested exclusively in the Woonsocket police commission, the court held that Nadeau's motion for a directed verdict should have been granted. Murphy argues that the rationale of Nadeau is equally applicable to him because on Sunday evening, June 4, at the time of the alleged bribe, Gilbert was not sitting in judgment of Callei and thus was unable to influence the jury's actions in the pending murder indictment. Such a contention might have some validity if Murphy stood charged with violating the terms of § 11-7-3. He is not so charged and therein lies the difference between Nadeau and Murphy.

The controlling statute here is § 11-7-1. It reads as follows:

'Bribery of juror or person exercising judicial function.-Every person who shall give any sum of money or any bribe, present or reward, or any promise or security for any, to obtain or influence the opinion, judgment, verdict, sentence, report or award of any judge, justice of the peace, warden, juror, auditor, referee, arbitrator, master in chancery, or person summoned as a juror, in any matter or cause pending or to be tried before him alone or before him with others, shall be imprisoned not exceeding seven (7) years or be fined not exceeding one thousand dollars ($1,000).'

The language is plain, unambiguous and all encompassing. The pertinent portions of this statute tell one and all that it is a criminal offense to offer a bribe to influence the verdict of a 'juror' or a '* * * person summoned as a juror, in any matter or cause pending or to be tried before him alone or before him with others * * *.' The entire thrust of § 11-7-1 is a legislative admonition that once a person is summoned for duty as a juror he is to be considered as unapproachable, and that one who approaches him with bribery in mind comes within the reach of the statute. The argument that the statute does not become operative until a bribe is made to a juror who has been chosen to try a specific case is meritless.

Murphy, in seeking to establish a paucity of evidence which would indicate his participation in the Fontaine fix, has cited numerous cases in his brief concerning the necessity of proof of knowledge and the effect of mere presence, friendship or acquaintance, and relationship with one who has been charged as a codefendant or a co-conspirator. We have no reason to disagree with the ruling in those cases. However, the evidence in this case justifies a finding of something more than a mere friendship or association. We had occasion only last year to discuss the conspiracy question in State v. Gilman, 110 R.I. 207, 291 A.2d 425 (1972). We said in that case:

'In considering the conspiracy indictment, it must be kept in mind that the gist of a conspiracy is the unlawful combination of two or more persons to do an unlawful act...