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…