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Commonwealth v. Shruhan

Appeals Court of Massachusetts

April 19, 2016

Commonwealth
v.
Timothy Shruhan

         Argued October 1, 2015.

          Suffolk. Indictment found and returned in the Superior Court Department on April 15, 2011.

         The case was tried before Thomas A. Connors, J.

         Present: Cypher, Milkey, & Massing, JJ.

          OPINION

          [48 N.E.3d 488] Cypher, J.

          The defendant, Timothy Shruhan, appeals from his conviction by a Superior Court jury on August 24, 2012, of aggravated assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A( c ). Now, with new counsel, he seeks a new trial, alleging that cumulative errors in the [48 N.E.3d 489] admission of inflammatory evidence[1] and that the prosecutor's appeals to the jury's

Page 321

emotions created a substantial risk of a miscarriage of justice. We affirm.

          Background.

          On the afternoon of September 11, 2006, Timothy Cahill stopped at The Quencher Tavern (Quencher), a neighborhood bar near a community center where he worked in the South Boston section of Boston. He met his father briefly and ordered a cheeseburger to go. While he was walking on I Street back to work, a man he did not know, later identified as the defendant, rushed out of the driver's seat of a nearby parked automobile, yelling, " Hey, Joey." The defendant, mistaking Cahill for a South Boston man (Joe Pano), apparently aimed to settle a score over a stolen item. He stabbed Cahill in the abdomen, causing life-threatening injuries. Both " kind of stumbled" and the victim, who was immediately aware that he had been stabbed, put one hand on his wound and ran to the Quencher. More than once, he exclaimed, " I'm not Joey."

         The defendant gave chase but soon quit and ran back to the car, still occupied by his companion, Robert Glavin. The defendant drove off but not before a passerby, Jessica Bianco, had memorized the car's license plate number. Upon reaching her home on East Sixth Street, Bianco telephoned the police and passed on her observations. She had noticed an Infiniti emblem on the rear of the car and described it as silver in color and bearing Massachusetts license plate number 65VB42.

         At the restaurant, several patrons and friends attempted to stop the bleeding from the stab wound and called for emergency assistance.[2] Extraordinary measures implemented by an off-duty Boston firefighter, Frederick Finn, and the quick assistance of others in the restaurant saved Cahill's life. Cahill was soon transported to the Boston Medical Center (BMC). Dr. Peter Burke, one of a team of physicians who performed emergency surgery on Cahill, testified as to the extensive injuries and complications that he had sustained. Cahill required several surgeries and some four months to recover.

         With only the information on the attacker's misidentification of Cahill as Joey Pano, and no witnesses or any physical evidence at the scene, the police were unable to find the car or determine the

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identity of the attacker until 2009, after the car had been located and their investigation led them to the defendant, Robert Glavin, and other acquaintances of the defendant.[3]

         Jill McIntyre testified that on the afternoon of September 11, 2006, the defendant and Glavin left her house in the midafternoon [48 N.E.3d 490] and returned after 3:30 p.m. She observed that they " were very sweaty and very shaky" upon their return. McIntyre overheard the defendant say ...


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