522 F.2d 448 (1st Cir. 1975), 74-1376, McLaughlin v. Vinzant

Docket Nº:74-1376.
Citation:522 F.2d 448
Party Name:George P. McLAUGHLIN, Petitioner-Appellant, v. Douglas VINZANT, Superintendent, etc., Respondent-Appellee.
Case Date:June 18, 1975
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 448

522 F.2d 448 (1st Cir. 1975)

George P. McLAUGHLIN, Petitioner-Appellant,

v.

Douglas VINZANT, Superintendent, etc., Respondent-Appellee.

No. 74-1376.

United States Court of Appeals, First Circuit

June 18, 1975

Argued March 4, 1975.

Rehearing Denied Aug. 1, 1975.

Page 449

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."

Page 450

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...

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