State v. Scott

• Decision Date: 31 December 1974
• Docket Number: No. 73-278-C,73-278-C
• Citation: 330 A.2d 66,114 R.I. 132
• Parties: STATE v. Loyan Dan SCOTT, Jr. et al. A.
• Court: Rhode Island Supreme Court

Page 66

330 A.2d 66

114 R.I. 132

STATE v. Loyan Dan SCOTT, Jr. et al.

No. 73-278-C.A.

Supreme Court of Rhode Island.

Dec. 31, 1974.

[114 R.I. 141] Richard J. Israel, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., R. Raymond Greco, Sp. Asst. Atty. Gen., for plaintiff.

William F. Reilly, Public Defender, Moses Kando, Asst. Public Defender, for defendant Loyan Dan Scott, Jr.

OPINION

DORIS, Justice.

These are two indictments, one No. 70-1198 charging the defendant Loyan Dan Scott, Jr. with the murder of Dennis Joseph Mulhern, and the other No. 70-1199 charging the defendant with the kidnapping of Mulhern. On a motion by the state, the indictments were consolidated for trial with two other indictments, No. 70-1139 charging one John Domenick Euart with the murder of Mulhern and No. 70-1140 charging Euart with the kidnapping of Mulhern. The defendant, Scott, filed a motion for severance which was denied. After a trial before a Superior Court justice and a jury, Scott and Euart were each convicted of manslaughter and kidnapping, and following a denial of their motions for a new trial both were sentenced to the Adult Correctional Institutions. The defendant, Scott, seasonably filed his appeals which are now before this court.

The record discloses that on July 6, 1970, defendant and two companions, Donald J. Picard and Elbert B. Bowden, Jr., members of 'Hell's Angels,' a national motorcycle club, arrived in Bristol from Lowell, Massachusetts, in a red Ford to talk to the victim, Dennis J. Mulhern, concerning his claim that he was a member of the Hell's Angels. At about the same time Euart, Richard J. Harris, and William Moss, members of a Providence motorcycle club called the 'East Coast Motorcycle Federation' sometimes referred to as 'E.C.M.F.', arrived in Bristol in a blue Cadillac convertible. Three other members of the Providence club had earlier arrived in Bristol. They were Richard Rose and Lawrence Moosey, who arrived on a motorcycle driven by Rose, and Andrew Bergeron, who arrived on another motorcycle. The latter three entered an establishment called Bond's Restaurant and after making inquiries as to the whereabouts of Mulhern, left the restaurant. Bergeron, on his motorcycle, drove to the apartment where Mulhern was staying and then drove Mulhern to Denny's Tap where they met Rose and Moosey. Mulhern was offered a drink of beer, and shortly thereafter the group left the Tap and crossed the street to a parking lot where the red Ford and the blue Cadillac convertible, with the top down, were parked. The occupants of the Ford and the Cadillac left their cars and were joined by the men who had left the bar.

The members of the Hell's Angels, Scott, Picard, and Bowden, then questioned Mulhern to determine whether or not he was a member of the California chapter of the Hell's Angels. After a short time, Picard, Euart and Moosey left the parking lot and entered Denny's Tap to make a phone call in an attempt to learn whether Mulhern was in fact a member of Hell's Angels. When Picard returned to the parking lot, he told Mulhern that he did not believe he was a member of Hell's Angels. He then punched Mulhern, knocking him to the ground. Thereupon the Hell's Angels members began to kick and continued to kick Mulhern when he was on the ground. After asking for and receiving permission to 'get a piece of the action', the E.C.M.F. members joined in the beating.

After a short time Harris and Moss picked up the bleeding Mulhern from the ground and placed him in the back of the Cadillac, which then left the parking lot and drove off toward Providence, with Moss, Harris, Euart, and the victim Mulhern inside. The Ford, carrying Picard, Bowden and defendant Scott, also left the parking lot and following the Cadillac, headed toward Providence. Richard Rose, driving his motorcycle on which Moosey was a passenger, followed the cars toward Providence. Bergeron, on his motorcycle, was riding side-by-side with Rose. Richard Rose testified that he observed Moss, Euart, and Harris, the persons in the Cadillac, making punching motions toward the location where Mulhern was sitting, but that he was not able to see where the blows landed. There was also testimony that one of the E.C.M.F. members were shouting 'keep quiet' or words to that effect.

At a point on the Wampanoag Trail, the highway to Providence, the cars and motorcycles stopped, and Rose and Bergeron were directed to return to Bristol to look for a knife and other articles that may have fallen from the pockets of one of the members. Rose and Bergeron did in fact return to Bristol, and thereafter they drove to the E.C.M.F. clubhouse in Providence. Rose testified that when he arrived at the Providence clubhouse he did not see the victim Mulhern there, nor did he see Scott or Euart. The body of the victim, Mulhern, was found floating in the Providence River by members of the East Providence Police Department some four days later.

I Severance

The defendant first contends that the trial justice's denial of his motions for severance constituted prejudicial error. He concedes that the law is clear in this state that severance is not a matter of right but is within the sound discretion of the trial justice, and that denial of such a motion is not sufficient reason for ordering a new trial absent a showing of prejudice. State v. Mastracchio, 112 R.I. 487, 312 A.2d 190 (1973); State v. Kieon, 89 R.I. 320, 152 A.2d 531 (1959).

In State v. Patriarca, 112 R.I. 14, 308 A.2d 300 (1973), we said that a denial of a motion to sever is not grounds for reversal, unless it is affirmatively shown that defendant did, in fact, suffer prejudice sufficiently substantial to impinge upon his right to a fair trial.

The defendant points to the fact that he was a member of Hell's Angels and that Euart was a member of E.C.M.F., and argues that the absence of direct evidence that the Hell's Angels group returned to the Providence clubhouse of E.C.M.F., would render the evidence presented against him extremely weak if he were tried alone. He also points out that it was conceivable he would not offer any evidence in his defense after the state rested its case, and that Euart might wish to offer testimony which could create prejudice in the minds of the jury toward him.

Here, the trial justice avoided the possibility that evidence against Euart would be considered against Scott by properly instruction the jury that deliberations regarding each defendant were to be carried on separately as to each charge and that evidence against one defendant could not be used to convict the other. These instructions in our judgment prevented any prejudice to defendant Scott. State v. Mastracchio, supra.

The fact that it was conceivable that Scott would not offer any evidence after the state had rested its case, does not supply the type of prejudice necessary under State v. Patriarca, State v. Mastracchio, and State v. Kieon, all supra. The defendant has failed to affirmatively show prejudice and has not demonstrated that the trial justice abused his discretion in denying his motions for severance.

II Statements By The Prosecutor

The defendant next argues that the trial justice committed prejudicial error in denying his objections to statements made by the prosecutor in final arguments to the jury. The prosecutor said in his closing statement:

'Let me point out that the savage beating that Dennis Mulhern received there in the parking lot in Bristol, Rhode Island, the kicking, the stomping, the punching about the face, and Richard Rose said when he was lifted up he appeared to be-I believe the word was 'dazed'. And who wouldn't be? And as a result of that beating, and another beating, Dennis Mulhern died. And who...