Appeals court hears dispute over manslaughter instruction and coconspirator hearsay in Muscaritolo case

The court heard oral argument in docket SJC13575, Commonwealth v. Michael Muscaritolo, where defense attorney Patty De Junius urged reversal of all convictions or, at minimum, a remand for a manslaughter jury instruction. De Junius told the court the record supports a view that Muscaritolo played a different, more passive role than the other two co-defendants and that "a juror could at least infer that he was the one who was doing the stealing while the other two were in the main part of the house."

De Junius focused on sequencing and scene evidence: she pointed to the location of bloody shoe prints, the frying pan with blood drips found in the master bedroom, and blood smears in drawers and a closet to argue a juror reasonably could find Muscaritolo arrived after the principal violence and was engaged in theft rather than the assault. "So I think it's fair to say he ends up in the kitchen," she acknowledged about the victim's movement, but maintained the record leaves room for a manslaughter instruction. De Junius also argued that testimony from a witness identified as Romani was admitted in a way that prejudiced the defense because it provided the strongest evidence of planning.

Assistant District Attorney Melissa Johnson, arguing for the Commonwealth, rejected that framing and defended the admission and weight of the contested testimony. Johnson said the statements at issue were not hearsay because they fall under layered exemptions, including statements of a party-opponent and co-venturer communications to a trusted recipient. "That is exactly what happened here," Johnson said of the circle-of-trust analysis, pointing to precedent the Commonwealth cited in briefing. She also listed corroborating evidence: the defendant's DNA on a latex glove found near the dining room and close to the body, a wearer's DNA and shoe print in the bedroom where the frying-pan blows occurred, cell-site location information placing the defendant at the scene, and testimony from witnesses Gunning and Savoli that corroborated the defendant's interest in the victim's guns and marijuana.

Johnson urged the court that Romani's testimony was helpful but unnecessary to the Commonwealth's case: "If we didn't have it, we still would have obtained a conviction in this case," she told the justices. She also argued the factual record does not support reducing the verdict to involuntary manslaughter, saying all three co-venturers were present as the victim moved through rooms and therefore could not be found unaware of repeated assaults. "There's no way that they are not aware of what is going on at all times here," Johnson said.

The justices repeatedly questioned both sides about the timing of footprints, the meaning of blood-drip patterns on the frying pan, the proximity of a glove with the defendant's DNA to the body, and whether trial counsel raised the manslaughter theory to the trial judge. De Junius acknowledged the defense had requested a lesser-included instruction in the trials but said the specific manslaughter theory was not argued to the trial judge because counsel did not expect the instruction would be given. The hearing record also includes that the first trial resulted in a hung jury on the murder count.

Neither side reported a decision from the bench during the argument. The justices pressed for clarifications on evidentiary sequencing and legal doctrines; the case is under advisement following argument.