Com. v. McGrath
| Citation | 264 N.E.2d 667,358 Mass. 314 |
| Parties | COMMONWEALTH v. George McGRATH (and a companion case 1 ). |
| Decision Date | 08 December 1970 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Edward M. Sullivan, Boston, for defendant Robinson.
James A. O'Donovan, Somerville, for defendant McGrath.
John T. Gaffney, Asst. Dist. Atty., for the Commonwealth.
Before SPALDING, CUTTER, KIRK, SPIEGEL and QUIRICO, JJ.
At a trial subject to G.L. c. 278, §§ 33A--33G the defendants George McGrath and Paul G. Robinson were respectively found guilty on indictments charging each with murder in the first degree (two indictments against each) and assault with intent to rob (two indictments against each). On the murder convictions the jury recommended that the death penalty be not imposed. The cases are before us on the defendants' appeals with summaries of the record, a transcript of the evidence, and assignments of error.
The argued assignments of error relate to the denials of the motions of both defendants for directed verdicts, to the denial of Robinson's motion for a severance, to the refusal to give certain instructions requested by the defendants, and to instructions given by the judge.
We summarize the evidence, as culled and synthesized by us from the fragments scattered throughout the several volumes of testimony.
On December 21, 1966, at approximately 7:45 P.M., Patrick A. Hughes, aged sixty-five, and his nephew Patrick A. Hughes, aged twenty-seven, were found on the floor of the elder Hughes' drug store in Roxbury. They were lying, one on top of the other, behind the counter. Both had severe gunshot wounds in the head. The sound of gunshots was heard by a witness who was in the Mission Church across the street from the drug store, a few minutes before 7:45 P.M. There was no eyewitness testimony of the actual shooting. There was no evidence of anything having been stolen. The younger Hughes died en route to the hospital. The elder Hughes died six days later.
A ballistics expert testified that the bullet which was removed from the head of the elder Hughes was fired from a .22 caliber revolver. The .22 caliber bullet which had been removed from the brain of the younger Hughes was so badly distorted as to preclude its identification with the .22 caliber revolver.
About five minutes before the shooting the defendant Robinson was seen by a witness who had known him for about ten years, in a doorway about two doors from the drug store. Robinson was with another man. As the witness passed, he said 'Hi, Paul' and Robinson responded, 'Hi, John.' The other man in the doorway was not the defendant McGrath.
A police officer assigned to the Roxbury division, while responding to a call to go to the drug store about 8 P.M. on December 21, 1968, saw a read and black Chevrolet turn into Parker Street from Tremont Street. The vehicle had three occupants. Robinson was in the front seat on the passenger's side.
Robinson, McGrath and one John McNeil 2 were seen by a witness (Mahoney) at the Pond Cafe in the Hyde Square area of Jamaica Plain about one hour before the fatal shooting and were again seen by Mahoney upon Mahoney's return to the cafe about forty-five minutes after the shooting. Shortly after 8:30 P.M., Robinson, McGrath, NcNeil and Mahoney went to a liquor store in Jamaica Plain in McGrath's car. McGrath's car was a red 1966 Chevrolet with a black vinyl top. Mahoney and Robinson went into the store to make a purchase. As they were reentering the car Mahoney saw a .22 caliber revolver fall from Robinson's pocket. The .22 caliber revolver had been borrowed by McGrath from one Jordan on December 19, 1968, two days before the slayings. Eight or nine days after the crimes the weapon was returned to Jordan by McGrath and McNeil. Eventually it came into the hands of the police and was in evidence as an exhibit.
About 10:30 P.M. on the night of the crimes, Robinson, McGrath and McNeil went to an apartment in Dorchester occupied by McNeil's girl friend and her roommate. Three weapons were placed on the coffee table in the middle of the room. Shortly after the eleven o'clock television news broadcast started, Robinson and McGrath told the group in another room that the younger Hughes had died and that the older man was in critical condition. One of the guns on the table was the .22 caliber revolver. Another of the guns was one which had been seen by the witness Mahoney in McGrath's car on the evening of December 21, 1968, when Mahoney rode with Robinson, McGrath and McNeil to a liquor store shortly after 8:30 P.M. It was the same gun Mahoney had seen in McNeil's possession a week before the crime at the Pond Cafe. 3 The third gun was a shotgun. It had previously been seen by the witness Jordan in the trunk of McGrath's car when McGrath borrowed the .22 caliber revolver from Jordan. At that time, McGrath told Jordan that the shotgun 'was a handy baby to have around.'
Robinson was arrested on January 2, 1969, at his girl's apartment in East Boston. A box of .22 caliber cartridges was seized at the time of his arrest. The bullets were capable of being fired from the .22 caliber revolver.
On or about January 8, 1969, McGrath planned to visit relatives in Pennsylvania. On January 11, McGrath said that he and McNeil were going to Pennsylvania but that he would return later that night. On January 12, McGrath said he did not want McNeil to go along because it would make it difficult for McGrath if he 'got caught' to explain why he was there.
1. There was no error in denying the defendants' motions for directed verdicts.
In order to prove first degree murder, the Commonwealth proceeded on the theory that the Hughes men were killed in the course of an armed robbery. At common law, a homicide committed in the commission or attempted commission of a felony is murder. Commonwealth v. Chance, 174 Mass. 245, 252, 54 N.E. 551. Commonwealth v. Madeiros, 255 Mass. 304, 310, 315, 151 N.E. 297. By statute, murder committed in the commission or attempted commission of a crime punishable by death or life imprisonment is murder in the first degree. G.L. c. 265, § 1. Commonwealth v. Balliro, 349 Mass. 505, 209 N.E.2d 308. Armed robbery is punishable by life imprisonment.
The defendants contend that since there was no eyewitness account of what took place in the drug store, and no money was proved to have been taken, there could be no inference drawn that a robbery was attempted and that, consequently, the felony murder rule could not be applied. We disagree.
From the evidence we have recounted, an inference could reasonably be drawn that the defendants shot the two men while engaged in an armed robbery or attempted robbery. Both defendants had procured and were armed with guns on the night of the crime. Robinson was in a doorway just two doors from the drug store five minutes before the murders. Fifteen minutes later he was seen near the drug store in a car similar to that operated by McGrath. Approximately an hour after the crime, Robinson was in possession of the revolver which was proved to have been the one that killed the elder Hughes. The jury could reasonably infer that the same weapon was the one used to kill the younger Hughes.
Although proof of motive is not required there was no indication of any motive for the killings other than robbery. See Commonwealth v. Nassar, 354 Mass. 249, 265, 237 N.E.2d 39. The victims had been engaged in their business all day. The younger Hughes moments before had been mopping the floor, inferably a closing up chore. The shootings took place toward the close of the business day when the total receipts were at hand. The bodies were behind the counter near the cash register.
There was also sufficient evidence to connect McGrath with the killings as a principal, aiding and abetting the actual perpetrator, Robinson, in a common criminal enterprise. McGrath was seen in the company of Robinson shortly before and after the shootings. McGrath obtained and returned the weapon that killed the Hughes men. A vehicle similar to McGrath's was seen near the crime fifteen minutes after it occurred. Robinson and two others were in it. McGrath's statement concerning flight to Pennsylvania was evidence of consciousness of guilt and thus of guilt itself. The trial judge rightly submitted the case to the jury based on the felony murder rule. See Commonwealth v. Nassar, 354 Mass. 249, 265, 237 N.E.2d 39; Commonwealth v. White, 353 Mass. 409, 413, 421--425, 232 N.E.2d 335.
2. Robinson assigns as error the refusal of the judge to give certain requests on the issue of sanity and charging the jury that the defence...
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