Com. v. McCarthy

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtBefore WILKINS; WHITTEMORE
Citation348 Mass. 7,200 N.E.2d 264
Decision Date13 July 1964
PartiesCOMMONWEALTH v. Robert L. McCARTHY et al. (and two companion cases).

Page 264

200 N.E.2d 264
348 Mass. 7
COMMONWEALTH

v.
Robert L. McCARTHY et al. (and two companion cases).
Supreme Judicial Court of Massachusetts, Suffolk.
Argued May 4, 1964.
Decided July 13, 1964.

[348 Mass. 9]

Page 265

F. Lee Bailey, Boston, for defendant William E. McCarthy.

Robert A. Barton, Boston, for defendant Robert L. McCarthy. John F. McAuliffe, Asst. Dist. Atty., for the Commonwealth.

Before [348 Mass. 7] WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER KIRK, SPIEGEL, and REGARDON, JJ.

[348 Mass. 9] WHITTEMORE, Justice.

These are appeals under the provisions of G.L. c. 278, §§ 33A-33G, as amended through St.1962, c. 453. Both defendants were tried before a jury on indictments charging murder in the first degree, conspiracy to commit armed robbery, and assault with intent to rob. The defendants, Robert L. McCarthy and William E. McCarthy, were charged with assault and battery by means of a dangerous weapon, and William was charged with unlawfully carrying a firearm. Robert and William were both convicted of murder in the second degree. Robert was convicted of assault and battery by means of a dangerous weapon, and William of unlawfully carrying a firearm. Both defendants were acquitted on all other charges.

There was testimony that on October 19, 1962, at 9:30 or 10 P.M. the decedent, Irving Sandman, accompanied by Kathleen Anderson, entered a vacant house which Robert owned in the Roxbury section of Boston. The house was almost totally dark. Robert, armed with a club, and William, armed with a gun belonging to Robert, were waiting inside. Anderson preceded Sandman into the house. When Sandman entered, Robert struck him with the club; Sandman resisted the assault and for an indeterminate period the two men wrestled in the hallway and the front room adjacent to it. In the scuffle, Robert, according to his testimony, received a kick in the groin; in serve pain, he opened the front door, went to the gutter and attempted to vomit. During most of the struggle, William had been in another room, but before the fight was finished William entered to front room into which Sandman and Robert then tumbled during their struggle. After Robert had left, Sandman attempted to grab William or drag him to the [348 Mass. 10] floor. In the ensuing fracas, or as William was leaving the scene, he fired the fatal shot.

Sandman, who was shot in the abdomen, managed to drive his car to a police station. Taken to a hospital he died the next morning. Robert was arrested the day after the incident. The grand jury returned indictments on November 5, 1962, embodying the charges upon which William and Robert were later convicted. William, who fled from Boston after the shooting, was apprehended in Illinois in May, 1963.

Anderson was a tenant and part time employee of Robert. Robert's office and her apartment were at 84 Cottage Street. On the evening of October 19, according to her testimony, Robert and William were riding with her in a taxicab. She was on her way to an engagement with Sandman. William then told her to be sure to check the vacant house, and Robert told her to bring Sandman back to 84 Cottage Street so that they could discuss business.

Anderson's son testified that earlier that evening he had heard Robert tell his mother 'something about having Irving take her to check the house, something like that.'

Other facts are stated below.

I. William E. McCarthy.

Before trial, counsel for William moved to suppress a statement made by William to two Boston police officers. The motion was denied without prejudice and when the prosecution sought later to place the statement in evidence in the motion to suppress was

Page 266

renewed. The judge then excused the jury and held a hearing on the admissibility of the statement. Undisputed evidence showed that the statement was made in Oak Forest, Illinois, on the evening of May 23, 1963, more than six months after the indictment naming William had been returned. The officers who interrogated William were called and testified that they spoke with William for approximately three quarters of an hour before taking William's statement. One of the officers testified that at the time of the interrogation he knew that a Boston [348 Mass. 11] attorney represented William. The attorney had stated during a pretrial hearing that he had been retained by William's mother at a time when the whereabouts of William were unknown. The officers also testified that William first asked about legal counsel after he had made his statement to the stenographer. This was contradicted by William who testified that he had requested a lawyer at some time during the discussion prior to the time he made the formal statement. William and the two officers also testified as to facts bearing on whether the statement had been coerced. The judge found that the statement was voluntarily made and that it was admissible against William notwithstanding the claimed deprivation of counsel. The judge instructed the jury to disregard the statement if they found it was not voluntarily given. See Jackson v. Denno, 84 S.Ct. 1774.

The case of Massiah v. United States, 84 S.Ct. 1199, decided after the trial of these defendants, establishes that it was error to admit William's statement.

In the Massiah case, the court held that a damaging admission 'which federal agents had...

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32 practice notes
  • Com. v. French
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 4, 1970
    ...343 Mass. 299, 303--305, 178 N.E.2d 584; Commonwealth v. Sullivan, 354 Mass. 598, 609, 239 N.E.2d 5. Cf. Commonwealth v. McCarthy, 348 Mass. 7, 11--12, 200 N.E.2d 264 (deliberate, direct police interrogation after 33 One could hardly say that reference to the F.B.I. or the Internal Revenue ......
  • United States ex rel. Allison v. State of New Jersey, No. 17394.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • October 29, 1969
    ...Hancock v. White, 378 F.2d 479 (1st Cir. 1967); State v. Cowans, 10 Ohio St.2d 96, 227 N.E.2d 201 (1967); Commonwealth v. McCarthy, 348 Mass. 7, 200 N.E.2d 264 While the California Supreme Court has ruled that Massiah applies to convictions not final as of the date of the Supreme Court deci......
  • United States v. State of New Jersey, No. 14833
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 20, 1965
    ...remain silent requires that the confession be suppressed. State v. Neely, 395 P.2d 557 (1964). See also Commonwealth v. McCarthy, Mass., 200 N.E.2d 264 (1964); State v. Dufour, 206 A.2d 82 (R.I.1965); State v. Hall, 397 P.2d 261, 268 (Idaho 1964) (opinion of McQuade, J.); Campbell v. State,......
  • Com. v. Negri
    • United States
    • United States State Supreme Court of Pennsylvania
    • September 29, 1965
    ...cert. denied, 381 U.S. 946, 85 S.Ct. 1793, 14 L.Ed.2d 710 (1965); Oregon v. Neely, 395 P.2d 557 (Or.1964); Massachusetts v. McCarthy, 200 N.E.2d 264 (Mass.1964); Campbell v. Tennessee, 384 S.W.2d 4 (Tenn.1964); and, United States v. Guerra, 334 F.2d 138 (2d Cir. 1964), cert. denied, 379 U.S......
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32 cases
  • Com. v. French
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 4, 1970
    ...343 Mass. 299, 303--305, 178 N.E.2d 584; Commonwealth v. Sullivan, 354 Mass. 598, 609, 239 N.E.2d 5. Cf. Commonwealth v. McCarthy, 348 Mass. 7, 11--12, 200 N.E.2d 264 (deliberate, direct police interrogation after 33 One could hardly say that reference to the F.B.I. or the Internal Revenue ......
  • United States ex rel. Allison v. State of New Jersey, No. 17394.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • October 29, 1969
    ...Hancock v. White, 378 F.2d 479 (1st Cir. 1967); State v. Cowans, 10 Ohio St.2d 96, 227 N.E.2d 201 (1967); Commonwealth v. McCarthy, 348 Mass. 7, 200 N.E.2d 264 While the California Supreme Court has ruled that Massiah applies to convictions not final as of the date of the Supreme Court deci......
  • United States v. State of New Jersey, No. 14833
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 20, 1965
    ...remain silent requires that the confession be suppressed. State v. Neely, 395 P.2d 557 (1964). See also Commonwealth v. McCarthy, Mass., 200 N.E.2d 264 (1964); State v. Dufour, 206 A.2d 82 (R.I.1965); State v. Hall, 397 P.2d 261, 268 (Idaho 1964) (opinion of McQuade, J.); Campbell v. State,......
  • Com. v. Negri
    • United States
    • United States State Supreme Court of Pennsylvania
    • September 29, 1965
    ...cert. denied, 381 U.S. 946, 85 S.Ct. 1793, 14 L.Ed.2d 710 (1965); Oregon v. Neely, 395 P.2d 557 (Or.1964); Massachusetts v. McCarthy, 200 N.E.2d 264 (Mass.1964); Campbell v. Tennessee, 384 S.W.2d 4 (Tenn.1964); and, United States v. Guerra, 334 F.2d 138 (2d Cir. 1964), cert. denied, 379 U.S......
  • Request a trial to view additional results

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