Com. v. Dabrieo

Decision Date03 August 1976
Citation370 Mass. 728,352 N.E.2d 186
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

John C. McBride, Chelsea (Alfred P. Farese, Everett, with him), for defendant.

Richard J. Kelleher, Asst. Dist. Atty., for the Commonwealth.


QUIRICO, Justice.

The defendant was indicted for the crime of murder in the first degree, tried and found guilty by a jury of the crime of murder in the second degree, and sentenced to imprisonment for life at the Massachusetts Correctional Institution at Walpole. The trial was held under the provisions of G.L. c. 278, §§ 33A--33G. The case is now before us on the defendant's appeal. The record on appeal consists of a summary of the trial court record, a transcript of the evidence, and an assignment of alleged errors. The alleged errors which have been argued by the defendant in his brief relate to (1) certain motions made by the defendant prior to and during the trial which were denied, (2) certain evidentiary rulings made by the trial judge, and (3) an instruction given by the trial judge in his charge to the jury. 1 We hold that there was no error. Moreover, on review of the case under G.L. c. 278, § 33E, we conclude that there shall be no relief thereunder.

We summarize some of the evidence which the jury could have believed in arriving at their verdict, but we do not suggest that there was no evidence different from or inconsistent with that summarized.

On Saturday, March 27, 1971, about 5 P.M., the defendant and one Fred Szybiak, whom he had known for about ten years, met in Beverly and rode in the defendant's red Volkswagen automobile to a restaurant in Saugus. On arrival the defendant told Szybiak that he was going to see John McCormack (hereinafter referred to as the victim) and went into the restaurant. A few minutes later he came out and told Szybiak that they would have to meet the victim at 9 P.M. at the Roadhouse, a cocktail lounge in Peabody. They drove back to Beverly, separated for a short while and met again in Beverly about 6 P.M.

They then drove around in the defendant's car, with Szybiak driving, until they arrived at the Roadhouse about 8:45 P.M. There Szybiak remained in the car while the defendant walked toward the building and stopped at the victim's car, a Cadillac (variously described as being white beige, gray, silver blue, or blue in color), which was parked next to the entrance to the building. About this time the victim came out of the building, approached the defendant, and the two men talked. The defendant returned to his car and said to Szybiak, 'Follow us.' Szybiak did so, driving the defendant's car, while the defendant rode with the victim in his car. They went to an apartment complex in Peabody, arriving about 9:15 P.M. Szybiak parked the defendant's car about four or five carlengths behind the victim's car. From his position in the defendant's car Szybiak saw and heard the following. The defendant and the victim left the victim's car and walked toward an apartment building, laughing and talking as they did so. They did not enter the building but returned to the victim's car, the victim entering on the driver's side and the defendant on the passenger's side, with the heads of the two men facing each other. Szybiak saw 'some flashes of a gun' and he 'heard like fire cracking noises . . ..' The defendant then got out of the victim's car, and as he did so he was tugging at the victim's hand.

The defendant went to his own car and told Szybiak that the victim was dead and said further, 'We have to get the car out of there.' He asked Szybiak to drive the victim's car. Szybiak entered that car on the driver's side and saw the victim's body on the floor of the passenger's side. He saw no movement by the victim, but he heard the sound of a bowel movement from him. He drove the victim's car and followed the defendant, who was driving his own car, to an area in Peabody known as Cedar Pond, where a YMCA camp was located. The two cars entered the road to the camp and continued to a clearing in a wooded area. The defendant indicated to Szybiak to park the victim's car in that area and Szybiak did so. The defendant told Szybiak that they had to get a can of gasoline because he wanted to burn the victim's car. With the defendant driving his car, they went to a filling station in Salem and purchased a couple of gallons of gasoline. They returned to the victim's car and, while Szybiak stood by, the defendant poured the gasoline into the victim's car and threw a lighted match in the car causing the gasoline to explode.

The defendant then drove Szybiak to some point in Peabody where, for the first time that evening, Szybiak saw a gun in the defendant's possession. The two men took the gun apart after which the defendant placed a part of it under some rocks in a litle creek while Szybiak threw the cylinder of the gun across a field. They then went to a restaurant in Swampscott where Szybiak overheard the defendant tell one Byron Vorgeas that 'it was all taken care of.' The actions of these two men later that night need not be described in detail. Briefly, they partook of some heroin at an apartment in Beverly, made some other stops, and then parted company about 12:30 A.M. on March 28, 1971, when the defendant dropped Szybiak off at the latter's apartment.

The evidence summarized to this point came primarily from the testimony of Szybiak, who accompanied the defendant throughout most of the evening of March 27, 1971. Certain other evidence merits mention.

A young man testified that he and a young lady were parked at the YMCA camp in Peabody about 10 P.M. on the evening of March 27, 1971, and that at that time he saw a red Volkswagen followed by a dark Cadillac enter the area and proceed further into a wooded area. At one point in his testimony he described the Cadillac as 'dark colored,' and at another point he described it as 'white.'

A State police trooper testified that about 11:10 P.M. on March 27, 1971, he observed the defendant's car in Salem, proceeding toward Beverly, with the defendant driving and Szybiak in the passenger's seat.

The victim's burned car, still smoldering, and the victim's body inside were found at the YMCA camp property on March 28, 1971. The medical examiner for Suffolk County who performed the autopsy testified that he 'found the body to be badly charred with many heat fractures. . . . The body was so badly burned and charred that it was separated in two parts.' On examination of the left side of the chest, he found a bullet embedded in muscle at approximately the sixth rib, but because of marked charring of the body he could not determine whether there were any entrance or exit wounds caused by gunshot. It was his opinion that the victim 'came to his death as a result of a gunshot wound to the chest, conflagration in automobile with charring of body.' A ballistician testified that the bullet found in the victim's body was a .38 caliber projectile.

About 6:20 P.M. on Sunday, March 28, 1971, the defendant, Syzbiak, and a third person were observed by police officers in Peabody pushing the defendant's car toward a filling station because it had run out of gasoline. At the request of the officers the three men went to the police station for questioning. The defendant was informed of his rights under the decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), after which he said that he understood his rights and that he was willing to talk with the officers at the station. When he was questioned by Lieutenant-Detective Leo McNulty of the Massachusetts State police about the victim's death, the defendant admitted that he dealt in narcotics for the victim and that he owed the victim money for narcotics, but he said that the amount which he owed the victim 'wasn't very much.' He admitted further that he had seen the victim on the previous day, first at a restaurant in Saugus where they discussed the money which he owed the victim, and then later in the parking lot of the Roadhouse where, the defendant maintained, he paid the victim the money and then left. The defendant denied killing the victim, and he stated that Szybiak was with him throughout the evening.

Visual examination and chemical testing of the defendant, with his consent, by a police chemist disclosed the presence of blood on his boots, on certain money in his possession, and on his hans, upper arms, and upper chest. The presence of blood was also detected on the hands and arms of Szybiak.

One Kathleen Day Irving testified that the following statements were made to her by the defendant. About a week before March 27, 1971, he told her that he owed the victim 'a lot of money,' that he, his wife and child were being threatened by the victim, that he didn't know what he was going to do about it, and that '(s)ooner or later it was going to come down . . . to him or (the victim), something was going to happen. He had no money to pay (the victim).' On March 28, 1971 the defendant inquired of her whether Szybiak was a trustworthy person and said that 'he was very nervous about Szybiak . . . (a)nd that he couldn't leave loose things around.' He requested that she tell anyone who talked to her that the victim called her at 9 P.M. on March 27, 1971, and that she not mention anything about a gun. He further told her that a 'dope deal' involving herself, the defendant, the victim, and another person would not be going through because the victim 'wouldn't be around,' and when she inquired why, he replied that 'it will be in the newspaper.' In the summer of 1971 the defendant told her that 'he was afraid and that he had to do with (the victim's) death.' and further admitted to her that he shot the victim.

1. Having completed a summary of the pertinent evidence, we think this is an appropriate point at...

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