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07/25/77 COMMONWEALTH v. JAMES A. DOYLE

July 25, 1977

COMMONWEALTH
v.
JAMES A. DOYLE



Middlesex. Indictments found and returned in the Superior Court on December 13, 1974. The cases were tried before Prince, J.

Keville, Armstrong, & Brown, JJ.

SYLLABUS BY THE COURT

Practice, Criminal, Trial of indictments together. Evidence, Other offense, Immunized witness, Corroborative evidence, Collateral matter. Witness, Immunity.

The opinion of the court was delivered by: Keville

At the trial of eleven indictments each charging the defendant with procuring the burning of a building, the Judge did not abuse his discretion in refusing to sever trial on one of the indictments where the crimes alleged differed only in the date, buildings, and identities of accomplices. [546-547]

At the trial of eleven indictments each charging the defendant with procuring the burning of a building, in which a teenage neighbor of the defendant testified that he had started ten of the fires at the defendant's instigation, there was no error in the admission of certain testimony by three other teenagers that the defendant had solicited them to start fires. [547-548]

Where an unindicted accomplice voluntarily waived his Fifth Amendment privilege without a grant of immunity under G. L. c. 233, § 20E, no corroboration of his testimony was required under § 20I, even though the witness had been given non-binding representations by the assistant district attorney that he would not be prosecuted if he chose to testify. [548-550]

After a witness for the Commonwealth had given testimony bearing upon a collateral issue, the Judge did not abuse his discretion in excluding evidence seeking to disprove the testimony. [550]

The defendant Doyle was tried on eleven indictments charging him with "procuring the burning of a building in the town of Holliston." A jury found him guilty on eight of the eleven indictments and he was sentenced. He brings this appeal pursuant to G. L. c. 278, §§ 33A-33G. The Commonwealth's chief witness on ten of the eleven indictments was William Canavan, a teenage neighbor of the defendant. Canavan had been acquainted with Doyle for approximately a year before the first of the fires involved here. During that time they went bowling together regularly and participated together in other activities. Canavan frequently accompanied Doyle in chasing fires locally and in Boston and went with him to the SPARKS Club *fn1 headquarters. Doyle drove a red car with five radio scanners in it for monitoring fire and police calls and had additional scanners in his home. He also had a part-time job as a fire insurance adjuster.

Most of Canavan's testimony involved the circumstances of eleven fires in the Holliston area which occurred at various intervals between April, 1973, and September, 1974. Canavan testified that the first fire took place after he and three of his friends, Mark Bomchak, Billy Boston and Michael Potter had been at James Doyle's house on April 17, 1973. Doyle remarked to them: "It's a little dull around here, why doesn't somebody go out and do something exciting like light a fire." Potter and Boston agreed to start one and Doyle showed them how to light it. After the fire had been started, they all drove around for a while in Doyle's car to avoid suspicion and returned to the scene of the fire to watch it after it had been reported over the radio. Later testimony of Boston and Bomchak substantiated the details of this incident.

Canavan testified that the other ten fires were lighted by him after conversations with Doyle in which the defendant suggested that Canavan should light a fire to alleviate the lack of excitement. Doyle either proposed a site or asked Canavan to do so. He would then discuss with the teenager how the fire was to be lighted. Sometime after January, 1974, Canavan started lighting the fires with Dura Flame logs which Doyle provided. When the alarms for the fires came over the scanner radios, Doyle and Canavan watched the buildings burn.

Gregg Spiller, another teenage neighbor of Doyle, who was sixteen at the time of trial, told the jury of a conversation he had had with Doyle in approximately April, 1973, in which Doyle asked Spiller if he would light a fire in a tree house for which action Spiller would be paid ten dollars. Spiller declined.

The fire chief of Holliston testified for the Commonwealth concerning the details of the fires alleged in the indictments. He had investigated all of them and had confirmed the locations and dates specified by Canavan. He found traces of Dura Flame type logs at three of the fires. However, a number of the buildings had burned completely. In these instances there remained no evidence of the cause of the fires which were then reported as of "undetermined" origin.

The defendant presented several witnesses to impeach the testimony of Canavan; but they furnished no substantial contradiction of his testimony. Two of the defendant's witnesses testified that Canavan did not have a good reputation for truth and ...


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