Com. v. McLaughlin

• Decision Date: 01 November 1973
• Citation: 303 N.E.2d 338,364 Mass. 211
• Parties: COMMONWEALTH v. George P. McLAUGHLIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 338

303 N.E.2d 338

364 Mass. 211

COMMONWEALTH v. George P. McLAUGHLIN.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 2, 1973.

Decided Nov. 1, 1973.

Alexander Whiteside, II, Boston, for defendant.

Newman A. Flanagan, Asst. Dist. Atty. (Elizabeth C. Casey, Legal Asst. Dist. Atty., with him) for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, HENNESSEY and KAPLAN, JJ.

QUIRICO, Justice.

In October, 1965, the defendant was tried and found guilty by a jury on an indictment charging him with the murder in the first degree of one William J. Sheridan on March 15, 1964. The jury made no recommendation that the otherwise mandatory sentence of death be not imposed and the defendant was therefore sentenced to death. G.L. c. 265, § 2, as appearing in St.1951, c. 203. The sentence of death has not been executed, nor has it been vacated pursuant to the decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The case came before this court on direct appellate review and the judgment was affirmed on March 9, 1967, in Commonwealth v. McLaughlin, 352 Mass. 218, 224 N.E.2d 444, cert. den. sub nom. McLaughlin v. Massachusetts, 389 U.S. 916, 88 S.Ct. 250, 19 L.Ed.2d 268 (1967).

The case comes before before us now primarily on the defendant's appeal from the denial of his motion for a new trial filed on September 6, 1970, and supplemented on November 10, 1970. The motion appears to be based solely on the decision of the United States Supreme Court on May 20, 1968, in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, held to apply retroactively in Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968), but the defendant is attempting to raise additional questions on his appeal from the denial of the motion.

The proceedings and the evidence presented at the defendant's trial are described in our opinion in 352 Mass. 218, 224 N.E.2d 444, to which reference may be had for details not repeated in the present opinion.

On the evening of March 14, 1964, Sheridan, the defendant and others attended a party held in a second floor apartment at 55 Yeoman Street, Roxbury. The defendant was accompanied by Maureen Dellamano who had an apartment on the first floor in the same building. Sheridan left the party before midnight after an argument with another guest. Several other guests were ejected shortly after midnight but they remained on the second floor landing. The defendant left the party with Dellamano. He asked the persons on the landing to 'clear the hallway' and he had an altercation with one of them. He then went down the stairs, opened the door to the Dellamano apartment with a key and entered. The persons on the landing fled and one of them, while in a courtyard in front of the building, heard a shot and saw someone fall in the doorway. Herbert Josselyn was on his way to the party and was standing outside the building about twenty feet from the doorway at the time. He saw two men standing in the doorway. One of the men whom he identified as the defendant suddenly pulled out a pistol and shot the other man. A policeman who was summoned to the scene found Sheridan lying in the doorway with a gunshot wound in his head. Sheridan was dead on arrival at a hospital.

Two indictments were returned against the defendant, one charging him with murder of Sheridan in the first degree, and the other charging him with unlawfully carrying a firearm. Three other persons, Dellamano, Frances Bithoney and James S. O'Toole, were charged in separate indictments with the crime of being accessories after the fact to the defendant's alleged murder of Sheridan.

On October 1, 1965, O'Toole filed and argued a written motion that his trial be severed from that of the defendant. The motion was denied by the judge at the close of the argument. The defendant, although present, made no statement on the motion.

On October 5, 1965, the Commonwealth moved for a joint trial of all five indictments and of all persons named therein. O'Toole renewed his motion to sever his trial from that of the other persons indicted, and it was again denied by the judge. Counsel for Bithoney then argued a motion for severance which was opposed by the Commonwealth and was denied by the judge. The defendant and his counsel, although present, made no statement on those motions.

Counsel for the defendant then argued a motion for a change of venue and a motion for a continuance. During the course of argument he made the following statement about one or both of the motions for severance filed by O'Toole and Bithoney: '(O)n the Motion to Sever . . . I will tell you why the District Attorney is opposing it; not because of the money (required to be expended for separate trials), but there are supposed to have been alleged statements--and . . . I think it is put in just to be prejudicial--there's supposed to have been statements made by a codefendant, not in the presence of . . . McLaughlin, which would never be able to be used in evidence against . . . McLaughlin. But no matter how careful you will in your instructions to a jury, . . . they will have heard it. And I say once they heard it it's indelibly implanted in their minds; and no matter what you say or what I (or other counsel) say about disregarding it . . . the jury have heard it; and the man that will suffer is George McLaughlin. That is the reason . . . they don't want a severance. And I say it is the only reason.' Despite this statement, there is no indication in the record that the defendant or his counsel ever moved for a trial separate from the other indicted persons.

The joint trial of the defendant, Dellamano, Bithoney and O'Toole started on October 5, 1965, and all four were found guilty on October 26, 1965. Neither the defendant nor Dellamano testified at the trial.

The witnesses called by the Commonwealth at the joint trial included Bernard Flaherty, Thomas Barry and Donald Buckley. Their testimony, as pertinent to the defendant's claim that his rights under the rule of the Bruton case were violated, is summarized. Each was at the party in question and they saw the defendant there with Dellamano. Each while still in the apartment where the party was held heard a noise from the hallway between 12:15 A.M. and 12:30 A.M. after the party had started to break up. Flaherty described the noise as a 'bang,' Barry described it as a 'loud bang,' and Buckley described it as 'a noise like a fire cracker.' Each then saw Dellamano run through the door into the apartment where they were and heard her make a statement. Flaherty described her as shaken up and nervous, and he heard her say 'George shot someone.' Barry described her as hysterical, and heard her say 'George shot somebody.' Buckley heard her say 'George shot somebody, someone--George did it--he did it.' Flaherty said the Dellamano entry and statement occurred 'a couple of seconds' after he heard the shot. Barry said it occurred 'a minute or so' after he heard the loud bang. Buckley said that upon hearing the 'noise like a fire cracker' he opened the door from the apartment to the hallway and that the Dellamano entry occurred 'maybe two seconds or three seconds' thereafter.

When the witness Flaherty was asked to testify about the statement of Dellamano inculpating the defendant, the latter objected because the statement was not made in his presence, and asked that the jury be instructed that the testimony was not admitted as to him. The judge refused to impose such a limitation on the evidence saying: 'I am not ready to say that. This is all part of the res gestae. . . . I am allowing it as part of the res gestate here. He heard a bang and she said, 'George shot some one. " The defendant saved no exception at that point. Counsel for the defendant cross-examined Flaherty extensively, but did not question him about the Dellamano statement.

When the witness Barry was asked to testify about the same Dellamano statement, counsel for the defendant requested a voir dire. The request was denied and the defendant excepted. After the witness testified as to the Dellamano statement, counsel for the defendant asked that the testimony be struck as to the defendant. The judge then said, 'I will allow it de bene,' and the defendant excepted. His counsel cross-examined this witness at length, but did not question him about the Dellamano statement.

When the assistant district attorney prosecuting the case asked the witness Buckley to testify about the same Dellamano statement, he asked that the question and answer 'be admitted as against the defendant Dellamano only.' After the witness had answered the question the judge instructed the jury as follows: 'I am going to admit this statement that you have heard only as against the defendant Maureen Dellamano and against no other defendant. . . . Anything that is said or done not in the presence of a defendant is not admissible against him. The only one present when this statement allegedly was made was Maureen Dellamano. Therefore, it is admissible only against her.' Counsel for McLaughlin also cross-examined this witness at length, but did not question him about the Dellamano statement. On redirect examination this witness said that the Dellamano statement was 'George did it. He did it. Get rid of him.' The judge also limited that testimony to the defendant Dellamano.

In charging the jury the only point at which the judge made reference to the statement allegedly made by Dellamano to the effect that George shot someone was in the course of his instructions on the indictment charging Dellamano with being an accessory after the fact to the murder. He told the jury that the evidence of this statement by Dellamano indicated knowledge by her that the defendant had committed a homicide, and that it had been admitted only against Dellamano as an admission by her. He concluded this phase of the instructions by saying: 'The other defend...