McLaughlin v. Vinzant

• Decision Date: 01 August 1975
• Docket Number: No. 74-1376,74-1376
• Citation: 522 F.2d 448
• Parties: George P. McLAUGHLIN, Petitioner-Appellant, v. Douglas VINZANT, Superintendent, etc., Respondent-Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 448

522 F.2d 448

George P. McLAUGHLIN, Petitioner-Appellant, v. Douglas VINZANT, Superintendent, etc., Respondent-Appellee.

No. 74-1376.

United States Court of Appeals, First Circuit.

Argued March 4, 1975.

Decided June 18, 1975.

Rehearing Denied Aug. 1, 1975.

Lois M. Lewis, Newton, Mass., by appointment of the Court, for petitioner-appellant.

Barbara A. H. Smith, Hingham, Mass., and John J. Irwin, Jr., Asst. Atty. Gen., Chief, Crim. Div., and Francis X. Bellotti, Atty. Gen., Boston, Mass., were on brief, for respondent-appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

In 1965, following a jury trial in the Massachusetts Superior Court, appellant George P. McLaughlin was convicted of murder in the first degree and of unlawfully carrying a firearm. The judgment was subsequently affirmed upon direct review in the Supreme Judicial Court. Commonwealth v. McLaughlin, 352 Mass. 218, 224 N.E.2d 444, Cert. denied sub nom., McLaughlin v. Massachusetts, 389 U.S. 916, 88 S.Ct. 250, 19 L.Ed.2d 268 (1967), and McLaughlin later filed a motion for a new trial. While his appeal from the trial court's denial of this motion was pending in the Supreme Judicial Court, he petitioned the District Court for the District of Massachusetts for a writ of habeas corpus. Final action with respect to this petition was not taken until after the Supreme Judicial Court affirmed the denial of McLaughlin's new trial motion. Commonwealth v. McLaughlin, Mass., 303 N.E.2d 338 (1973). McLaughlin thereafter amended his petition for habeas corpus, raising only two issues and substituting his present custodian as respondent. The district court denied the amended petition, but issued McLaughlin the certificate of probable cause necessary to bring this appeal. 28 U.S.C. § 2253.

I

McLaughlin contends that the admission of testimony as to a codefendant's out-of-court statement violated his rights under the confrontation clause of the sixth amendment, as made mandatory upon the states by the fourteenth. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). This claim requires us to relate some of the proceedings and testimony at McLaughlin's trial.

McLaughlin was charged with having shot and killed William J. Sheridan. McLaughlin, Sheridan, and others had attended a party held in a second floor apartment at 55 Yeoman Street, Roxbury, Massachusetts, and there was testimony that Sheridan had left the apartment following an argument with another guest. McLaughlin and his companion, Maureen Dellamano, left the party together and in the hall landing encountered several other guests who had been ejected from the party shortly after Sheridan departed. McLaughlin asked these persons to "clear the hallway" and got into an altercation with one of them. He then went downstairs and entered the first floor apartment where Dellamano lived. Within a very short time thereafter Sheridan was shot while standing in the open doorway of the entrance to 55 Yeoman Street. A witness, Josselyn, who had been standing in the courtyard of 55 Yeoman Street at that time, testified to having seen McLaughlin fire the fatal shot.

The testimony to which appellant directs his sixth amendment argument related for the jury statements made by Maureen Dellamano immediately after the shooting. Three witnesses, who had remained in the second floor apartment where the party was still breaking up, recounted that after they heard what they described as a "loud bang," a "bang," and "a noise like a firecracker," Dellamano came running through the door of that apartment and said "George shot someone" or "George shot somebody." The witnesses estimated that this occurred from "a couple of seconds" to "a minute or so" after they heard emed "shaken up," "nervous," or "hysterical."

Dellamano was indicted as an accessory after the fact in the murder of Sheridan, and she was tried jointly with McLaughlin and two other alleged accessories. She did not take the stand, and thus appellant was unable to cross-examine her concerning her alleged remarks. McLaughlin, relying principally upon Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), contends that the admission of testimony as to Dellamano's statement denied him the right "to be confronted with the witnesses against him." U.S.Const. amend. VI. We disagree.

Appellant's confrontation clause argument, like the other claim presented in his petition for habeas corpus, was fully considered by the Supreme Judicial Court on his motion for a new trial. That court held that the testimony repeating Dellamano's declaration, although hearsay, was admissible against appellant under the spontaneous utterance exception to the hearsay rule. Mass., 303 N.E.2d at 347-48. We are of course bound by the Massachusetts court's interpretation of state evidentiary law; and we note, as a feature distinguishing this case from Bruton, that the codefendant's declaration in Bruton was "clearly inadmissible against him under traditional rules of evidence." 391 U.S. at 128 n.3, 88 S.Ct. at 1623. Such was not true here.

The distinction does not end our inquiry, however, for while both the confrontation clause and the hearsay rule are intended to provide similar safeguards to the integrity of judicial fact-finding, the Supreme Court has rejected the suggestion that the sixth amendment codified common law hearsay principles. California v. Green, 399 U.S. 149, 155-56, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); See Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); Cf. Green, 399 U.S. at 173, 90 S.Ct. 1930 (Harlan, J., concurring). Justice Stewart's plurality opinion in Dutton described "the mission of the Confrontation Clause (as advancing) a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that 'the trier of fact (has) a satisfactory basis for evaluating the truth of the prior statement' " 400 U.S. at 89, 91 S.Ct. at 220 (quoting Green, 399 U.S. at 161, 90 S.Ct. 1930).

Although appellant was unable to cross-examine Dellamano he, like the defendant in Dutton, was able to effectively exercise his right of confrontation on the factual question of whether the three witnesses had actually heard her make the statement inculpating him in the crime. Cf. 400 U.S. at 89, 91 S.Ct. 210. Thus, we look to see whether the circumstances surrounding the utterance gave it sufficient "indicia of reliability" to place it before the jury. Id.; Mancusi v. Stubbs, 408 U.S. 204, 213, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972).

The remark followed hard upon an event a shooting likely to produce the utmost in excitement and shock and to ensure the utterance's spontaneity and, presumably, its truthfulness. Dellamano appeared shaken at the time of her statement. Appellant argues that Dellamano's nervous or hysterical condition might have made her an inaccurate reporter of what had just transpired. However, while the danger has been recognized that excited utterances may be lacking in precision, See, e. g., Hutchins & Schlesinger, Some Observations on the Law of Evidence, 28 Colum.L.Rev. 432, 437-39 (1928), Dellamano's recitation in this case was not factually complex and presented little opportunity for the type of inaccuracy as to details which excitement might cause. The spontaneous exclamation exception to the hearsay rule is one of long standing and is embodied in the newly adopted Federal Rules of Evidence, See Fed.R.Evid. 803(2). We think that neither this exception in general nor its application permitting the admission of testimony as to Dellamano's utterance contravenes the Appellant's alternate contention is that there is a fatal inconsistency in the state's supposition that the statement was both sufficiently spontaneous to come within the hearsay exception and necessarily represented a reporting of Dellamano's own observations. In McLaughlin's view, the physical layout of 55 Yeoman Street makes it impossible for Dellamano to have witnessed the shooting on the first floor and then reentered the second floor apartment within a few seconds. But a court was entitled to understand the stated time intervals as shorthand expressions indicating a "very short time" and not as literal measurements. ² Appellant admits that the testimony of one of the witnesses to the effect that Dellamano reentered the apartment "a minue or so" after the shot would be consistent with her being in a position to actually witness the shooting. It is true that there is no evidence of precisely where Dellamano was and what events she witnessed leading her to announce that McLaughlin had shot Sheridan. But, it was permissible to draw an inference not only from the force of the statement itself but from the fact that she was accompanying McLaughlin and was somewhere in the immediate vicinity of the fatal event, that she possessed firsthand knowledge of the killing. See McCormick on Evidence § 297 at 705 (2d ed. 1972).

policy embodied in the confrontation clause. ¹

If so, McLaughlin is left with the argument that the passage of a minute necessarily refutes any finding that Dellamano was still acting under the effect of the shooting. However, we find no reason to disagree with the Supreme Judicial Court's conclusion that the facts permit a finding that Dellamano's statement was sufficiently spontaneous to come within the accepted hearsay exception for declarations made before there has been time to contrive or misrepresent. See Mass., 303 N.E.2d at 347. Moreover, while there was some ambiguity in the transcript concerning the trial court's ruling on these issues, nothing has been suggested to us indicating that Dellamano had any reason for falsifying her statement.

We thus conclude that the sixth amendment was not violated by placing Dellamano's excited utterance before the jury.

II

Appellant also claims that his fourteenth amendment right to a fair...