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07/05/77 COMMONWEALTH v. MICHAEL P. SCANLON

July 5, 1977

COMMONWEALTH
v.
MICHAEL P. SCANLON



Norfolk. Indictment found and returned in the Superior Court on January 13, 1975. The case was tried before Brogna, J. The Supreme Judicial Court granted a request for direct appellate review.

Hennessey, C.j., Quirico, Braucher, Kaplan, & Liacos, JJ.

SYLLABUS BY THE COURT

Homicide. Accessory. Practice, Criminal, Charge to jury, Directed verdict. Witness, Immunity.

The opinion of the court was delivered by: Quirico

At a murder trial, there was no error in the Judge's instructions on accomplice responsibility. [17-19]

Testimony of an immunized witness at a murder trial was sufficiently corroborated by other evidence to warrant a finding that the defendant was guilty of murder in the second degree. [19-20]

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 "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 ...


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