Com. v. Dellelo

• Decision Date: 08 July 1965
• Parties: COMMONWEALTH v. Robert G. DELLELO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 303

209 N.E.2d 303

349 Mass. 525

COMMONWEALTH v. Robert G. DELLELO.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 3, 1965.

Decided July 8, 1965.

Helen Mejan, Boston, for defendant.

Angelo Morello, Asst. Dist. Atty., Paul F. Cavanaugh, Legal Asst. to Dist. Atty., for the Commonwealth.

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

KIRK, Justice.

At the trial of the defendant on an indictment charging him with murder in the first degree the jury returned a verdict of guilty with a recommendation that the death penalty not be imposed. G.L. c. 265, § 2. All proceedings were subject to G.L. c. 278, §§ 33A-33G, inclusive. The case is before us on the defendant's appeal which is accompanied by a summary of the record, a transcript of the evidence and the assignments of error. The only assignment of error relied upon and argued before us is the denial of the defendant's motion for a directed verdict of not guilty of murder in the first degree. ¹

The question presented is whether the evidence in the case supported the verdict of murder in the first degree. Some facts are not in dispute. The defendant admits that about noon on November 6, 1963, he, in concert with one Yasaian, now deceased, ², both armed with guns, assaulted with intent to rob certain persons in a jewelry store located on the floor above the street level in the Dexter Building, 453 Washington Street, Boston. It is not disputed that Yasaian, in circumstances later to be narrated, shot and killed George J. Holmes, a Boston police detective in plain clothes. It is not disputed that the killing of Holmes by Yasaian was murder.

The evidence, which included testimony by the defendant, tended to show the following. The defendant and Yasaian had known each other for about six years. They had been 'partners' in 'deals' before. The defendant expected to share in the 'loot of this deal.' By prearrangement the defendant and Yasaian met at a restaurant on Charles Street, Boston, about 10:30 A.M. on November 6, 1963, where they talked. When they left the restaurant each had a seaman's knitted watch cap and a nylon stocking. Both were armed. The defendant had two automatic pistols of different calibers. The smaller of the two weapons was concealed in his underwear. Both weapons were fully loaded, i. e., there were seven bullets in the magazine and one bullet in the firing chamber of each weapon. Yasaian had an automatic pistol which was similarly loaded. The defendant, in addition, had on his person a box containing forty-two bullets. The defendant knew that all weapons were fully loaded, capable of firing, and ready to fire.

The two ment walked from the restaurant to the Dexter Building where they arrived around noontime. They went up the stairs and, when at the top, drew the nylon stockings over their heads, put on the watch caps, and then, with drawn guns, entered the jewelry store. Yasaian went to the left toward a counter where some customers and employees were standing and said, 'This is a holdup, stand still everybody.' Simultaneously the defendant, crouching down to avoid observation through the window by people in a department store across the street, proceeded directly to the diamond room where an employee and a customer were talking. He ordered them to leave the room, saying, 'I'll blow your brains out.'

In the meantime, Officer McGrail of the Boston police was directing traffic at the intersection of Washington and Summer streets. He was talking with Detective George J. Holmes. McGrail saw Sergeant Chennette coming along Washington Street in a patrol car.

The alarm in the jewelry store sounded.

Dellelo, still in a crouched position in the diamond room, jumped up and yelled, 'It's gone off, let's beat it.' ³ Both men dashed for the stairs, Dellelo in the lead, removing the nylon stocking and cap as he ran. When he reached the door leading out of the building, he ran into Officer McGrail who had responded to the alarm. Dellelo poked a gun into McGrail's stomach, then drew back and kicked him in the groin. He ran along Washington Street in a northerly direction, turned left on Winter Street, and ran as fast as he could up Winter Street, pointing the gun at the crowd to make them move out of his way. He was pursued by Sergeant Chennette and Officer McGrail.

Yasaian ran from the building, turned in a southerly direction on Washington Street and encountered Holmes at a point thirty-four feet from the doorway of the Dexter Building. Holmes, who had a shopping bag in one hand and nothing in the other, raised his arms to shoulder level and said, 'Stop.' Yasaian stopped 'for a split second,' looked at Holmes, drew his gun from his jacket, took direct aim at Holmes and shot him. He shot him twice more. He pushed Holmes who fell bleeding to the street. Yasaian then resumed his run in a southerly direction on Washington Street and disappeared in the crowd.

Sergeant Chennette and Officer McGrail captured the defendant at gunpoint at the intersection of Winter and Tremont streets, where after having been tripped by a bystander, he had entered a cab and 'put the gun to the side of * * * [the driver's] face.' The defendant and the pursuing officers heard the sound of three shots as they ran up Winter Street.

The autopsy disclosed that Detective Holmes died from a gunshot wound of the chest, with massive internal bleeding. There were also two entrance wounds in the back of his left shoulder.

The defendant contends that on the foregoing evidence he was entitled to a directed verdict of not guilty of first degree murder. As already noted he concedes that the killing of Holmes by Yasaian was murder. He could scarcely do otherwise on any theory of law in the light of the discussion and holding in Commonwealth v. Lussier, 333 Mass. 83, 92-93, 128 N.E.2d 569. He expressly concedes that he and Yasaian were engaged in the attempted commission of a crime punishable with imprisonment for life. G.L. c. 265, §§ 1, 21. The defendant argues that it was error to deny his motion for a directed verdict because at the time the shooting of Holmes took place, the crime of attempted robbery, which was punishable with life imprisonment, was completely over, and because the defendant had already withdrawn from the criminal enterprise.

We consider the first of these contentions. Whether the attempted crime was completely over, so as to make inapplicable the third clause of G.L. c. 265, § 4, ⁴ is a question of fact, to be looked at objectively, and its beginning and end are marked by what is done, rather than what is thought. Commonwealth v. Green, 302 Mass. 547, 555, 20 N.E.2d 417. The jury, viewing the events objectively, could reasonably conclude that the two men broke off the undertaking upon the sounding of the alarm, not because they did not wish to proceed with it, but because they knew that if they persisted in it they faced imminent capture; that both had a common purpose to resist capture, whether with the expected loot or without it, and that resort to shooting was likely as a means to accomplish that common purpose. An attempted robbery is not ended merely because one or both of the robbers cease to desire to proceed, has in mind only a purpose to escape, and shoots in furtherance of that purpose. There must be an appreciable interval between the alleged termination and the fatal shooting. Commonwealth v. Green, 302 Mass. 547, 555, 20 N.E.2d 417. Even though the attempted or accomplished crime of robbery may technically...