McLaughlin v. Vinzant

522 F.2d 448 (1975) | Cited 27 times | First Circuit | August 1, 1975


McLaughlin points out that an assertion in our opinion, also in the opinion of the Massachusetts Supreme Court, 364 Mass. 211, 303 N.E.2d 338, 341, is unsupported by testimony in the record, namely that McLaughlin and Dellamano left the party together. There is, however, evidence that McLaughlin and Dellamano were at the party with one another and that McLaughlin went to Dellamano's apartment on the first floor of the same building after he left the party. Then, after the sound of shots, Dellamano reappeared on the second floor in an excited state saying that George had shot someone and "George did it - he did it." Another witness, Josselyn, testified to having witnessed McLaughlin fire the fatal shot. These facts, even without the one lacking in testimonial support, support the inference stated in our opinion, that Dellamano "was somewhere in the immediate vicinity of the fatal event." Given "circumstances . . . consistent with opportunity" to observe the event to which declarant testifies, the jury can infer from the statement itself an opportunity to observe. McCormick on Evidence § 297, at 707 (2d ed. 1972).

McLaughlin asserts in his petition for rehearing that McCormick's view "conflicts" with Wigmore and others "as to the necessity of the declarant being a participant, a bystander or an observer to the startling event." We see no conflict. There must be an apparent opportunity to observe. The question is the proof necessary to establish adequate observation. In People v. Poland, 22 Ill. 2d 175, 174 N.E.2d 804, 808, cited in the 1972 Supplement to 6 J. Wigmore, Evidence § 1751 (3d ed.), it is stated by Hershey, J.,

"The cases suggested by Wigmore are clearly distinguishable from the instant situation. In each of Wigmore's illustrations, it is obvious that the declarant did not and could not have observed personally the matters stated in the declaration. Here, on the contrary, there is nothing to indicate that Sophia Poland could not have seen or did not see the killing, and there is a strong inference from the declaration itself and the surrounding circumstances that she did. We do not understand the requirement to be that the party seeking to have the declaration admitted must prove by direct evidence beyond any possibility of speculation that the declarant personally observed the matters. If such were the rule, there would hardly ever be a case in which a declaration would be admissible. Rather, we think it is sufficient if it appears inferentially that the declarant personally observed such matters and that there is nothing to make a contrary inference more probable."

While the facts from which to infer that Dellamano witnessed the shooting are not quite as detailed as in Poland (otherwise a very similar case), we think they were a sufficient predicate to meet constitutional requirements.

The other matters set forth in the petition for rehearing were fully considered in the course of the appeal, and do not warrant a rehearing.

Petition for rehearing denied.


Petition for rehearing denied.

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