Com. v. Scanlon

• Decision Date: 07 December 1976
• Citation: 364 N.E.2d 1196,373 Mass. 11
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1196

364 N.E.2d 1196

373 Mass. 11

COMMONWEALTH v. Michael P. SCANLON.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Dec. 7, 1976.

Decided July 5 1977.

William P. Homans, Jr., Boston, for defendant.

Charles J. Hely, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and LIACOS, JJ.

QUIRICO, Justice.

This is an appeal under G.L. c. 278, §§ 33A-33G, from the defendant's conviction by a jury of murder in the second degree and his sentence to imprisonment for life. He was tried with John R. Murray who had been indicted as an accessory after the fact to the murder, and who was acquitted. The primary inculpatory evidence came from Paul F. Trainor, who had been granted immunity from prosecution under G.L. c. 233, §§ 20D-20G, for his complicity in the crime. This appeal raises issues regarding the responsibility of an accomplice in a joint enterprise to commit murder, and the sufficiency of evidence required under G.L. c. 233, § 20I, to corroborate the testimony of an immunized witness. We affirm the conviction.

1. Summary of Facts.

At this point we summarize the extensive evidence presented at trial. The defendant lived in and managed the William P. Trainor, Corp. apartment complex at 500 North Quincy Street in Abington. On the evening of December 4, 1974, the day before the killing, Wayne Nisby, Gary Hart and his wife Carla Hart, and the victim Jay Murphy drove to the complex. Gary Hart rang the buzzer of John Murray's apartment. When no one answered, he broke a window with a hammer. The Harts fled when discovered and were chased briefly by Scanlon, Murray, and a friend, but without success.

Scanlon complained of the broken window to a police officer who had been called, and he identified Murphy, Nisby, and Gary Hart as the persons who had run away. The officer told Scanlon to "handle it your own way, . . . figuring he would get restitution."

Paul Trainor testified that he went to Scanlon's apartment the next morning. Murray joined them and asked Scanlon to "take care of" the attempted break-in. According to Trainor, Scanlon agreed. During the conversation the group smoked marihuana and Scanlon took three or four barbiturates. Murray and Scanlon admitted being together but denied meeting with Trainor.

Later in the day, Scanlon, Trainor, and a third employee of William P. Trainor, Corp., Peter Lasordo, drove to Boston on business where they engaged in much drinking, and also had dinner with William P. Trainor, the owner of the corporation and uncle of Paul Trainor. Paul Trainor told William Trainor about the break-in at Murray's apartment. After dinner the four returned to an office of the corporation in Abington, arriving about 8:30 P. M. The attempted break-in was again discussed. As William Trainor and Lasordo were leaving, Paul Trainor told Scanlon that "(w)e are going to have to work over somebody," and suggested Murphy and Hart.

While Paul Trainor was in the bathroom, Scanlon made a telephone call and then said he had just called Jay Murphy to set him up to come to the apartment house. Scanlon told Murphy he would give him a thousand "downs" to sell. The two men returned to the apartment house.

Sheila Chaponis and Carla Hart testified that they were with Jay Murphy at the Shipbuilders bar in North Abington on the evening that Murphy received a telephone call at the bar, and that Murphy asked them for a ride to the Trainor apartments. Carla Hart testified that he said he was "getting fronted a thousand downs." The women left the bar around 8:30 P. M. and drove Murphy to the apartments. Murphy asked the women to wait a few minutes for him. They waited fifteen or twenty minutes, and when he did not return they left.

Joseph Calcagno, Scanlon's roommate, testified that Scanlon and Trainor arrived at the apartment about 8:45 P. M. Five or ten minutes after they arrived Calcagno answered the buzzer and told Scanlon that "Jay was on the phone." Scanlon and Trainor then left the apartment.

(a) Trainor's testimony regarding the shooting.

As the two men returned to Scanlon's apartment about 8:50 P. M., Scanlon asked Trainor to get his gun. On the way to get his gun from his car, Trainor met Murray and a police officer investigating a burglary at Murray's apartment. Trainor got the gun, a .38 caliber revolver, and returned to Scanlon's apartment.

Scanlon meanwhile had changed into work clothes and had armed himself with a gun in a shoulder holster and a "hunting jackknife" with a five-inch blade. Scanlon gave Trainor some ammunition for Trainor's weapon. When Murphy rang the buzzer to Scanlon's apartment they went down the stairs and grabbed him. They asked him why he had broken into Murray's apartment, and Murphy responded that he hadn't. Scanlon told Murphy "he was going to off him." Scanlon then stabbed Murphy in the side with the hunting knife, saying, "How's that, you effer."

They forced Murphy into the front seat of Trainor's car, Trainor got in the right rear, and Scanlon drove.

On the way to Rockland, Trainor asked Murphy questions, and Scanlon repeated that "we were going to off him."

They drove to the Harts' house, but left when a police cruiser drove by. They then drove to Avon, beating Murphy as they went. They pulled onto a dirt road and stopped the car. Scanlon told Murphy to get out of the car, and said that "it was all over for him." Scanlon then asked Trainor for his .38 caliber revolver. Scanlon took the gun, pulled Murphy from the car, and threw him to the ground.

Trainor testified that he leaned forward to release the front seat and heard four shots. He could not see Scanlon, but saw a shadow on the ground. He did not see Scanlon within four or five feet of that silhouette but then saw Scanlon standing beside the body. Scanlon returned to the car and said, "They never thought I would do it." He shook Trainor's hand and said, "How's that, brother." As they drove off, Trainor threw Murphy's jacket out of the car window and also threw two bullets into a manhole on their return to the apartment complex. When they arrived there Trainor noticed blood on the car, which he later cleaned with a rag. They entered Murray's apartment where Scanlon told Murray that "he just blew Jay Murphy's effen head off over in Avon," and if Murray ever said anything "he would blow his effen head off, too." Scanlon and Trainor drank a bottle of whiskey, and then fell asleep in Murray's apartment.

(b) Scanlon's testimony.

Scanlon's version was substantially the same as Trainor's until the actual shooting was recounted. He admitted that he called Murphy but said that he did so at Trainor's suggestion. He admitted that he held the knife that stabbed Murphy the medical testimony was that the wound penetrated a little over four inches but he said that he merely intended to scare Murphy, and that it was Trainor's slamming Murphy against a wall which caused the deep penetration.

Scanlon testified that he "poked" and "scratched" Murphy with the knife as they drove, but added that Trainor was beating Murphy with the pistol across the face and forehead at the time. Scanlon testified that when he stopped the car he told Murphy to get out and find his way home. Trainor was holding a gun to Murphy's head with his left hand, and holding Murphy's right shoulder with his right hand. Scanlon said he saw Trainor get out of the car but could not see the gun nor see Trainor nor Murphy from the chest up. He heard two shots, his mind "sort of went blank," and he heard a thump Murphy falling to the ground. Trainor got back into the car and said, "That mother- . . . junkie will never bother nobody again." Scanlon's testimony was that Trainor spoke to Murray back at the apartment, but he agreed he did not deny responsibility for the death. He said there had been no conversation about killing Murphy and that it was his intention "to scare him, nothing serious, and just to teach him a lesson."

(c) Further testimony.

The body was discovered that night about 10 P. M., soon after the death. The body was warm and steam was rising from the blood. The forensic experts testified that there were four gunshot wounds, three located in the area of the left ear canal which appeared to result from a gun held in direct or very close contact with the skin. A fourth wound, in the right forehead, was inflicted from a greater distance. There were numerous cuts to the body, including a two-inch stab wound in the right breast, and a four-inch wound in the left chest extending unto the abdomen. The bullets were .38 caliber bullets fired from the same gun.

When officers went to Murray's apartment the next morning, December 6, to investigate the break-ins, Scanlon was found sleeping on the couch. Scanlon and Murray went to the police station. At some point in the afternoon, a detective-lieutenant asked Scanlon about his activities the night before, and he claimed he had been eating and drinking with the Trainors until about 11 P. M. The lieutenant noticed a substance on Scanlon's left boot, and Scanlon voluntarily agreed to an examination of the boot. A chemist performed benzidine reagent tests on the boot, and on portions of Scanlon's hands and clothing, and obtained positive reactions for blood.

There was testimony that at some later time Scanlon threatened Carla and Gary Hart. He acknowledged that he told Gary Hart to "(s)top going around trying to finger people. Otherwise, you will be pushing up daisies."

Scanlon admitted deep complicity in the matter. His testimony agrees with that of Paul Trainor in virtually every particular except which one of them pulled the trigger of the gun. Trainor received immunity from prosecution in return for his testimony. If the jury believed Trainor's testimony, they could believe that Scanlon pulled the trigger on the gun. If they believed Scanlon's testimony, they could believe that Trainor pulled the trigger. The testimony of the forensic...