Com. v. McLaughlin

• Decision Date: 09 March 1967
• Citation: 224 N.E.2d 444,352 Mass. 218
• Parties: COMMONWEALTH v. George P. McLAUGHLIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 444

224 N.E.2d 444

352 Mass. 218

COMMONWEALTH v. George P. McLAUGHLIN.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 5, 1966.

Decided March 9, 1967.

F. Lee Bailey, Boston (Charles M. Burnim, Boston, with him), for defendant.

John A. Pino, Asst. Dist. Atty. (James M. Kickham, Legal Aid to the Dist. Atty., with him), for the Commonwealth.

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

SPALDING, Justice.

The defendant, George P. McLaughlin, was indicted for the murder of Willism J. Sheridan. The indictment charged murder in the first degree. He was tried jointly with James S. O'Toole, Maureen Dellamano, and Frances Bithoney, who were charged as accessories after the fact. The jury returned a verdict of guilty. The case, having been tried subject to G.L. c. 278, §§ 33A--33G, comes here on McLaughlin's appeal.

The evidence was as follows: On the evening of March 14, 1964, a party was held in a second floor apartment at 55 Yeoman Street, Roxbury. Among the guests were McLaughlin and Sheridan. McLaughlin was accompanied by the codefendant, Dellamano, who had an apartment on the first floor of the building. Sheridan left the party sometime before midnight, after having had an argument with one of the guests. Shortly after midnight, the tenants of the apartment attempted to break up the party and asked the guests to leave. Several young men who would not leave were ejected, but they remained on the second floor landing. McLaughlin came out from the apartment, told those on the landing to 'clear the hallway,' and had an altercation with one of them. McLaughlin then went down the stairs, took a key from his pocket, opened the door to Dellamano's apartment, and entered. At this time the persons on the second floor landing fled. One of them, as he ran across the courtyard in front of the building, heard a shot and saw someone fall in the doorway.

Herbert Josselyn had been invited to the party at 55 Yeoman Street, but did not arrive there until shortly after midnight. Upon arriving, he stood in front of the building talking to various persons who had been at the party. About 12:45 A.M. he saw two men standing in the doorway of the entrance to 55 Yeoman Street. One man had his back turned toward Josselyn. The other man, standing just inside the doorway, was identified by Josselyn as McLaughlin. Josselyn testified that the two men apeared to be arguing, and that the oen identified as McLaughlin suddenly pulled out a pistol and shot the other. At the time, Josselyn was about twenty feet from the doorway. He immediately fled.

A policeman summoned to the scene found Sheridan lying in the doorway with blood spurting from a gunshot would in his head. He was taken to a hospital where he was pronounced dead. A bullet, with traces of blood upon it, was found in the hallway. Although it was too distorted for making comparisons, a ballistics expert testified that it was probably .357 or .38 calibre. No weapon was found in the vicinity.

A complaint charging McLaughlin with murder was issued by the Municipal Court of the Roxbury District on March 16, 1964. On the same day, a fugitive warrant for his arrest was issued by the United States District Court for the District of Massachusetts. McLaughlin was not found until February 24, 1965, when F.B.I. agents arrested him at 24 Duke Street, Mattapan. He was found in a third story bedroom, partially dressed, in the company of the codefendant O'Toole. Three revolvers were found in the top drawer of a dresser in the bedroom.

McLaughlin's assignments of error relate to (1) the denial of several preliminary motions; (2) certain rulings on the admission of evidence; (3) certain remarks made by the judge and the prosecuting attorney; and (4) the denial of a motion for a directed verdict to so much of the indictment as charged murder in the first degree. Other evidence will be set forth as occasion requires.

1. The indictment was in the statutory form (G.L. c. 277, § 79), the relevant portions of which were: 'McLaughlin on * * * (March 15, 1964) did assault and beat one * * * Sheridan with intent to murder him, and by such assault and beating did kill and murder the said * * * Sheridan.' McLaughlin made a motion for a bill of particulars in which he asked that the Commonwealth be ordered to specify the place and time of the alleged crime, the means and manner by which it was committed, and whether it was alleged to have been committed with premeditation, with extreme cruelty and atrocity, or in connection with a crime punishable by death or life imprisonment. The Commonwealth voluntarily answered that '(t)he murder * * * was committed * * * (at) 55 Yeoman Street, Roxbury * * * on March 15, 1964 between the hours of 12:00 A.M. and 2:00 A.M.,' and 'that the defendant * * * armed himself with a loaded revolver and without provocation from the victim * * * shot * * * Sheridan with the revolver. The bullet struck the victim * * between the eyes and passed through * * * (his) head * * *.' The Commonwealth refused, however, to answer which type of first degree murder was alleged. See G.L. c. 265, § 1. The judge who heard McLaughlin's motion refused to compel the Commonwealth to answer that question.

McLaughlin contends (assignment no. 6) that the denial of his motion for particulars, in respect to which type of first degree murder was alleged, constituted reversible error. We do not agree. The purpose of a bill of particulars is 'to describe in more detail that which is included in the allegations of an indictment in order that the defendant may be fully informed of the nature of the charge and be enabled to prepare an adequate defense.' Commonwealth v. Ries, 337 Mass. 565, 580--581, 150 N.E.2d 527, 538; Commonwealth v. Corcoran, 348 Mass. 437, 441, 204 N.E.2d 289, and cases cited. G.L. c. 277, § 40. See art. 12 of the Declaration of Rights. The particulars voluntarily furnished by the Commonwealth were such as to give McLaughlin 'reasonable knowledge of the nature and grounds of the crime charged'. G.L. c. 277, § 40. He was given all the particulars to which he was entitled as of right. Commonwealth v. Chapin, 333 Mass. 610, 617--618, 132 N.E.2d 404, and cases cited. The ordering of any further particulars was within the discretion of the judge; there was no abuse of that discretion. Commonwealth v. Welansky, 316 Mass. 383, 395--396, 55 N.E.2d 902, and cases cited; Commonwealth v. Binkiewicz, 342 Mass. 740, 747, 175 N.E.2d 473, and cases cited.

2. Josselyn, the principal witness for the Commonwealth, was by his own choice in police custody for several months prior to the trial. In March of 1965 (several months before the trial) McLaughlin's counsel, having requested an interview with Josselyn, were afforded an opportunity to confer with him in a room in the court house. At the interview the prosecutor, two police officers, and a stenographer were also present. The prosecutor introduced Josselyn to McLaughlin's attorneys. After informing Josselyn that they represented McLaughlin and desired to talk with him, the prosecutor asked Josselyn if he wanted to talk to them. Josselyn's reply was, 'No, I have nothing to say to them.' McLaughlin's counsel then started to question Josselyn but was told by the prosecutor that since Josselyn did not wish to talk to them further questioning would not be permitted.

Subsequently McLaughlin made a motion in which he asserted that he had been unable to interview Josselyn and requested that an order be issued to permit such an interview. At the hearing on this motion, the prosecutor stated that he had advised Josselyn that he could talk or refuse to talk with either representatives of the Commonweath or those of the defence, and that Josselyn had indicated that he had no desire to talk with defence counsel outside of the court room. The prosecutor then offered defence counsel an opportunity to speak with Josselyn provided a stenographer and two police officers were present during the interview. Defence counsel stated that there was no 'objection if the stenographer were present * * * (but they saw no) need of the police officers' presence.' The judge asked if they had any reason to doubt the prosecutor's statement to the effect that he had advised Josselyn that he could talk or remain silent as he saw fit. Counsel stated that they had no reason to doubt the statement. The judge thereupon exception. Assignment No. 8. exception. Assignment No. 8.

In Commonwealth v. Balliro, 349 Mass. 505, at page 516, 209 N.E.2d 308, at page 315, we said that 'counsel for a defendant should be accorded, as of right, an opportunty to interview prospective witnesses held in the custody of the Commonwealth. Witnesses belong neither to the Commonwealth nor to the defence. * * * and should be available to both parties in the preparation of their cases.' In the Balliro case, however, there was no showing that the witness had been advised that he could speak to defence counsel and had elected to remain silent; there the prosecutor simply refused defence counsel permission to interview. The holding of that case was directed at the actions of the prosecutor. Here it is conceded that the prosecutor had fully informed Josselyn of his right to talk or remain silent. Yet he stated in the presence of McLaughlin's counsel that he did not wish to speak with them. Josselyn could not be compelled to talk if he did not want to. The judge, in view of the representations concerning Josselyn's refusal to talk after having been advised of his freedom to talk to defence counsel--and the representations were not challenged--could very well have concluded that the ordering of a further interview would be futile. There was no error. See Wilkerson v. State, 57 S.W. 956, 958 (Tex.Cr.App.). Since Josselyn did not want to submit to an interview, we need not decide whether, if he had submitted, the Commonwealth's position that it must be conducted in the...