Commw. v. McLaughlin, 041400

Decision Date14 April 2000
Docket NumberSJC-08142
Parties(Mass. 2000) COMMONWEALTH, v. JOSEPH E. McLAUGHLIN. No.:
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

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726 N.E.2d 959 (Mass. 2000)
No.: SJC-08142
Argued February 7, 2000.
Decided April 14, 2000.

Summary: Conspiracy. Evidence, Hearsay, Conspiracy, Operative words, Intent. Practice, Criminal, Instructions to jury, Indictment, Dismissal. Limitations, Statute of. Statute, Construction.

Indictments found and returned in the Superior Court Department on August 11, 1997.

The cases were tried before Patrick F. Brady, J., and entry of dismissal of an indictment charging conspiracy to commit murder was ordered by him.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

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Copyrighted Material Omitted

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J. W. Carney, Jr. (Andrew M. D'Angelo with him) for the defendant.

Karen A. Palumbo, Assistant District Attorney (Robert M. Griffin, Assistant District Attorney, with her) for the Commonwealth.

Marshall, C.J., Abrams, Lynch, Greaney, Ireland, Spina, & Cowin, JJ.


A jury found the defendant, Joseph E. McLaughlin, guilty of armed assault with intent to murder, G. L. c. 265, § 18 (b), conspiracy to commit murder, G. L. c. 274, § 7, First, and conspiracy to commit armed assault with intent to murder, G. L. c. 274, § 7, Second.1 After the verdicts were affirmed and recorded, the judge dismissed as time barred the indictment charging conspiracy to commit murder. On appeal, the defendant claims error in (1) the admission in evidence of a coconspirator's hearsay statements without adequate independent evidence of the existence of a conspiracy, (2) the admission in evidence of a hearsay statement by one of the coconspirators as a declaration of intent, and (3) the judge's failure to instruct the jury adequately on the prerequisite to consideration of coconspirator's hearsay evidence. The Commonwealth appeals from the order of dismissal. We transferred the appeal to this court on our own motion. We affirm the convictions and the order of dismissal.

There was evidence from which the jury could have found the following facts. The defendant and the victim, Marianne Lewis, were married in 1977. The first six or seven years of marriage were blissful, and the defendant was beginning to enjoy success in his real estate and business ventures. After the birth of the couple's second daughter, the defendant spent less time at home with the family. He took over from Marianne responsibility for handling the family's finances.

The defendant met a woman in 1985 with whom he had an affair over the next four years. During that time, they traveled to the Caribbean, Florida, Martha's Vineyard, and Vermont. The defendant bought the woman a necklace, a pair of earrings, and a diamond tennis bracelet. In February, 1988, the defendant planned a ten-day family trip to visit his parents in Florida. He left the family after two days, and yet was suntanned when he picked up the family at Logan Airport. When asked about it, he told his wife he had been to a tanning salon. Shortly thereafter, she opened his American Express credit card bill and asked him if he had been to St. Maarten. She never saw another American Express bill of his.

In late December, 1988, the defendant told his wife that he would be attending a real estate convention in Philadelphia that New Year's Eve with a particular colleague. He called her that weekend and spoke in a whisper so as to not wake his colleague. After the conversation ended, she called the colleague's local office. When the colleague answered, she asked him to call the defendant. The defendant returned home later that day but there was no discussion about the weekend. During 1989, the defendant was frequently away from home two to three days at a time, approximately twelve to fourteen days a month, and he never told his wife how she could reach him.

On April 19, 1989, during a birthday celebration for Marianne at her parents' home, the defendant gave Marianne a bracelet and tickets to see "Dream Girls" at Boston's Wang Theater on April 21. The couple often attended live theater during the early years of their marriage, but did so infrequently by this time. On April 21, she wore her hair down and wore a

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white mink coat, as the defendant requested, even though it was out of season. They arrived at the 57 Park Plaza Hotel parking garage at approximately 7:30 P.M. The performance was to begin at 8 P.M. The defendant parked his car on the fifth floor (it was the only car on that floor) at a place safely beyond all other cars in the garage, something he often did as a precautionary measure to minimize the possibility of scratches and dents caused by other drivers. The defendant asked his wife to summon the elevator while he put his car telephone, a bulky apparatus of the time, into the trunk of his car. She has no recollection of what happened next.

Between 7:30 and 7:45 P.M. a Boston police detective and a licensed security officer for the city of Boston were approached by an individual who reported that a woman had been struck by a car on the fifth floor of the parking garage. The officers rushed to that location and saw Marianne lying face down by the glass doors leading to the elevator. The defendant was standing by a white car, the only one on the fifth floor, about thirty-five feet away. The defendant was pacing with his hands in his pockets, and appeared visibly upset. He did not go near his wife, but said she had just been hit by a car.2 Paramedics arrived shortly, and attended to her. The tissue of her scalp had been pulled forward such that all of the soft tissue and bone of her face was exposed. The paramedics had to reposition the skin over her face in order to determine where to intubate her. She was taken to Massachusetts General Hospital and treated for severe neurological distress and multiple traumas involving severe complex skullfractures, one of which left her blind in one eye, a broken pelvis, and numerous lacerations and fractures about her entire body. She also suffered tears to both carotid arteries. The prognosis for death or severe neurological injury was extraordinarily high.

After Marianne was removed to the hospital, more officers arrived and began searching for the car that struck her. Tire tracks were seen extending from the sixth floor ramp in a straight line toward the glass doors where police found her. The car which struck her was found on the second floor of the garage. It showed damage on the driver's side, and blood was dripping from the undercarriage. Pieces of white fur and strands of Marianne's hair were found under the engine and on the rear wheel. The car was registered to a Stephen Mogan. No identifying fingerprints were found. Mogan had reported his car stolen while police were at the garage, and he accompanied police to the garage. He accounted for his whereabouts before and during the incident, which police verified by interviews with Mogan's friends.

Meanwhile, Marianne's life had been spared by prompt medical treatment. She was in a coma for sixteen days. During her three-month stay in the intensive care unit, the defendant's visits to his wife were infrequent and brief. He never touched her and appeared detached. She was transferred to Spaulding Rehabilitation Hospital (Spaulding) where she spent four months. The defendant's visiting pattern remained unchanged. The defendant was still seeing his paramour, who came to the marital home and met their daughters. The defendant hired a lawyer to file a civil action on his wife's behalf against the owner of the parking garage. The day Marianne was discharged from Spaulding, the defendant kept her waiting in the lobby for nearly one hour, and returned to work after dropping her off at home with their daughters. She noticed that her bed, her clothing, some personal effects, and family photographs had been removed from the home.

Some time in early fall, 1989, the defendant drove Marianne to a doctor's office and parked in a parking garage after she

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asked him not to. She said that she wondered why she lived after being struck by a car, to which the defendant said, "I don't know why you lived, why don't you tell me." Shortly thereafter, she commenced divorce proceedings. A final decree of divorce issued in 1995.

The defendant's investments in real estate had soured in the late 1980's. On April 15, 1990, a $150,000 life insurance policy he had taken out on February 25, 1986, on Marianne's life lapsed.

Stephen Mogan testified3 that some time before April 21, 1989, he received a telephone call from Brian McNeil,4 who was tried with the defendant, asking that he come to McNeil's house for a meeting with McNeil's father, William McNeil. Mogan knew Brian and William McNeil most of his life. Mogan obliged, and met with William and Brian McNeil. William asked Mogan for the use of his car for the purpose of "ram[ming] down Marianne Lewis" at the "57 Park Plaza garage." Mogan was to receive about $2,000 for his part. Mogan testified that he spoke again with the McNeils on April 21, 1989, and was instructed by William to leave his car behind the building with the keys in the ashtray under the pretext that William McNeil would take and service the car. Mogan was further instructed to go bowling with...

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