Com. v. Balliro

• Decision Date: 02 July 1965
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: , 14 A.L.R.3d 640 COMMONWEALTH v. Rocco A. BALLIRO et al.

Page 308

209 N.E.2d 308

349 Mass. 505, 14 A.L.R.3d 640

COMMONWEALTH v. Rocco A. BALLIRO et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 3, 1965.

Decided July 2, 1965.

Joseph J. Balliro, Boston, for Salvatore J. Balliro.

Neil Colicchio, Somerville, for Rocco A. Balliro.

James W. Kelleher, Boston (William C. Madden, Boston, with him), for Albert P. Ciocco.

Angelo Morello, Asst. Dist. Atty. (Paul F. Cavanaugh, Legal Asst. to the Dist. Atty., with him), for the Commonwealth.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, and KIRK, JJ.

SPALDING, Justice.

The defendants, Rocco A. Balliro (Rocco), Salvatore J. Balliro (Salvatore) and Albert P. Ciocco (Ciocco) were indicted for the murders of Toby Wagner and her young son, Mark. The indictments charged murder in the first degree. The defendants were also charged with breaking and entering a dwelling house in the night time with the intent to commit an assault by means of a dangerous weapon and with committing that assault. G.L. c. 266, § 14. The jury returned verdicts of guilty against the three defendants on both murder indictments and recommended that death sentences be not imposed. See G.L. c. 265, § 2. The defendants were also found guilty under the 'breaking and entering' indictment. The cases having been tried subject to G.L. c. 278, §§ 33A-33G, come here on the appeals of all of the defendants.

The jury could have found the following facts: Rocco met Toby Wagner (Toby) in July, 1962, at a cafe in Boston. Thereafter he lived with her and her two children, Mark and Bernice Wagner, until November 29, 1962, when he was arrested in North Attleboro. He was subsequently incarcerated in the New Bedford House of Correction where from time to time Toby visited him. During the course of these visits, she took him four hacksaw blades. Toby would write to him 'almost every day.' In January, 1963, Rocco escaped from jail, and thereafter he and Toby and her two children lived together in an apartment in Chelsea.

On February 1, 1963, Toby told Rocco that her husband, Bernard Wagner, had been discharged from the Concord Reformatory that morning. She left the apartment about 2:30 P.M., stating that she was going to see her husband in order to discuss a divorce.

Becoming anxious when Toby had not returned by 6:30 P.M., Rocco went to the home of a friend of Toby to inquire as to her whereabouts. He told the friend that he was supposed to meet Toby and that they were going away together. He was worried because he could not find her. Shortly after this conversation, Rocco went to the apartment of Toby's sister-in-law, Mary Adams, at 107 Centre Street, Roxbury. He knocked on the door, but there was no response. He could hear Bernice Wagner crying inside the apartment, so he smashed a pane of glass on the door and entered the apartment, where he found the baby lying on the floor. After putting Bernice back in her crib, he made a telephone call in an effort to locate Toby. He then left the apartment, taking with him a book containing addresses and telephone numbers. As he was about to drive away, he saw Bernard Wagner riding in a car with two men, Robert Adams (husband of Mary Adams) and one Freeman Clifford. The car was driven by Clifford.

Rocco proceeded to follow the car. Having been 'cut off' by Rocco's car, Clifford brought his to a stop. Rocco got out, pointed a '.45 automatic' at Clifford and his companions, and said he wanted to talk to Bernard Wagner. Clifford told Rocco that Bernard wanted 'to go back with his wife and kid and go straight.' Following an altercation in which each threatened the other, Clifford returned to his car and drove off. Clifford stopped his car a second time because Rocco continued to follow. Rocco insisted that Bernard go with him to talk things over with Toby, but Bernard refused. A struggle then took place between Rocco and Clifford which was broken up by Bernard. Rocco then pointed his gun at Clifford and said, 'You're dead.' Clifford returned to his car and drove away, with Rocco again in pursuit. This time, as Rocco approached Clifford's car, he fired at the occupants. The bullet lodged in the back of the right front seat.

After Rocco left the scene of the shooting, one of the tires of his car blew out. He took three guns out of the glove compartment, put them in his pockets, and left the car in the roadway. He then went by taxi to Roxbury where he put in a telephone call to the Adams apartment. Mary Adams answered the telephone. Rocco, identifying himself as Tony Russo, asked for Toby, who came to the telephone. Rocco asked Toby to meet him in Jackson Square, but she suggested that he 'come up to the house.' Rocco agreed and said that 'he would be there in a half an hour by himself in a cab.' There was also testimony that she whispered to him: 'You must be crazy Rocco, don't come out here. They're waiting for you.'

When Toby had left Rocco that afternoon, she went to the home of Mary Adams where she met her husband. About 7:30 P.M. Toby, her husband, their two children, and Mary and Robert Adams visited with the Clifford family in Dorchester. Toby left with her son about 10:45 P.M. Fifteen minutes later Mary and Robert Adams, Clifford, and Bernard left the Clifford home and went to 107 Centre Street. Mary Adams got out of the car and when to her apartment where she noticed that the glass on the door had been broken. After a discussion with Toby, who had arrived a few minutes later, the police were called. When they arrived Toby told them that Rocco had broken into the apartment; that she knew he was carrying a gun; and that he was an escapee. Shortly thereafter, Bernard Wagner telephoned the apartment and informed them that Rocco had fired a shot into Clifford's automobile. In response to a request for additional help, two more officers arrived.

It was arranged that the police officers would be stationed as follows: Officer Lovett was to remain in the 'end bedroom' with Toby and Mark. Officers Calnan and Piatkowski were to stay in the living room. Partrolmen Hoffman and Ryan were stationed across the street from the apartment.

The three defendants met in front of 107 Centre Street about 1:45 A.M., paused momentarily, and then entered the building. Rocco, who had four guns, gave Salvatore and Ciocco each a loaded gun. From his position in the apartment, Officer Lovett saw an arm come through the broken glass of the door window and reach toward the lock. Then he 'heard a noise and * * * saw the door fly open as if it had been kicked.' There was the sound of wood splintering as the door jamb was 'broken' and 'forced.' They 'came in * * * shooting and yelling.' Piatkowski called out, 'I am a police officer, drop it,' whereupon Salvatore whirled and fired at him. Piatkowski shot back. Then a hand came around the door jamb and started to fire into the living room. Piatkowski emptied his gun, shooting at the hand. A gunfight ensued, in which all the defendants participated.

Mary Adams ran behind a 'stereo set.' From there she saw the accordion door, that separated the living room from the front bedroom, open. She saw Toby, who was holding Mark on her right hip, standing in the bedroom facing Rocco. Rocco shot Toby with a gun he was holding two or three feet from her head. Then he pointed it at her stomach and fired again. Mary Adams 'thought he was shooting Toby in the stomach but it was the baby instead.' 'They both fell and the baby got up.' When Piatkowski noticed there was a man in the bedroom, he ordered him to come out, but instead, Rocco started shooting into the living room. At this point, the officer fired into the bedroom for the first time.

During a lull in the shooting, Officer Lovett saw Mark walk down the hall toward him. He pushed Mark to the floor. About a minute later, he picked him up and placed him in a crib in the last bedroom. There was blood on the linoleum where the child had been lying.

As the three defendants fled from the apartment, the last man out shot at Officer Hoffman, one of the two officers stationed outside the building. The defendants then made their escape in a Chevrolet convertible. During the chase which followed, there was an exchange of gunfire by Officers Ryan and Hoffman with the defendants. The two officers kept the escape car in constant view as they followed in the police cruiser. At one point the four guns carried by the defendants were thrown from their car. These were subsequently recovered by the police and introduced in evidence. The chase ended at the intersection of Massachusetts and Westland avenues, when the escape car collided with a taxicab. Ciocco was apprehended at the scene of the accident and taken to the police station.

Later that morning, about 2:40 A.M., Rocco, under the pretense that he was Toby's father, called the Adams apartment and asked how Toby and the baby were. 'And he asked * * * [Mary Adams] if they were dead.' Sometime later, Rocco surrendered to the police. Salvatore fled to New Jersey, where he remained for two days. Upon learning that his brother Rocco had surrendered, he did likewise.

Autopsies were performed on the two victims. The bullet which killed Mark had passed completely through his body. The track of the bullet was consistent with his being held on his mother's right hip. The examination of Toby revealed a bullet and a fragment of a bullet in her brain. It was the opinion of the medical examiner that the cause of her death was gunshot wounds of the head.

The ballistic testimony established that the fatal shots had been fired by one of the defendants. The spent bullet removed from Toby's brain was a '.32 S. & W. long Lubaloy Western.' A .32 caliber Colt, one of the four guns carried by the defendants, was the only one capable of firing that bullet. None of the pistols carried by the police could have done so. The evidence, apart from the observations of Mary Adams, tended to indicate that the murder...