Com. v. Glowacki

• Decision Date: 03 November 1986
• Citation: 398 Mass. 507,499 N.E.2d 290
• Parties: COMMONWEALTH v. Thomas R. GLOWACKI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 290

499 N.E.2d 290

398 Mass. 507

COMMONWEALTH v. Thomas R. GLOWACKI.

Supreme Judicial Court of Massachusetts,

Berkshire.

Argued Sept. 10, 1986.

Decided Nov. 3, 1986.

Imelda C. LaMountain, Pittsfield, for defendant.

Daniel A. Ford, Asst. Dist. Atty., for Com.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

The defendant was found guilty of murder in the first degree, unarmed robbery, breaking and entering in the nighttime with intent to commit a felony, and larceny in a building. He now asserts error in the denial of his motion to suppress evidence found at the scene of the murder; in the admission in evidence of photographs of the victim; and in the judge's failure to instruct the jury on the lesser included offense of larceny from the person in connection with the indictment charging unarmed robbery and the Commonwealth's theory of felony-murder. He also argues that this court should exercise its special power under G.L. c. 278, § 33E (1984 ed.), by reducing the conviction of murder in the first degree to murder in the second degree or manslaughter. We conclude that there was no error. We also conclude that we shall not grant the relief requested under § 33E. We affirm.

All five indictments arose out of a single incident which occurred in Sheffield on September 25, 1984. The evidence may be summarized as follows. The victim, John W. Bennetton, was an antique dealer who lived next to his antique shop in Sheffield. Behind the antique shop, farther away from the highway, was a mobile home which Bennetton rented to a young couple, Laurie Griffin and Richard Robarge. The defendant lived in the Bennetton home "for a while," and was seen by Griffin mowing Bennetton's lawn or working on the house being built next door.

Approximately one month before Bennetton's death, Robarge and Griffin invited the defendant to go with them to a party at Bennetton's request. The defendant became intoxicated at the party, and on the way home said that Bennetton was a "faggot" and had made sexual advances toward him. He went on to say, "I'm going to kill that guy. Don't be surprised if you come here and find him dead.... Some morning you'll wake up and you won't be able to find Jack and you'll know I killed him." Shortly thereafter, the defendant moved out of Bennetton's home approximately two weeks before the homicide. ¹ Two days before the homicide, another witness testified, the defendant stated that Bennetton had "kicked him out of the house" and had sent him to jail. He went on to say, "I'm going to get that son-of-a-bitch. I'm going to kill him."

On the afternoon of September 25, 1984, the defendant, his cousins Richard and Mark Glowacki, one Kevin Campbell, and one Denise Costa ² set out from Enfield, Connecticut, for Sheffield. The defendant stated that someone owed him "a lot of money" and that he was going to Sheffield to collect it. They went first to the Sheffield House, where the defendant told Denise to stay, "[i]n case there was a fight or something." Before leaving the Sheffield House, the defendant told another resident, one Leigh Whitney, that they were going to get some beer and some money "and that he might have a little trouble getting the money." He asked Whitney to go with them, but Whitney declined. Between 8 and 8:30 P.M., the defendant and his three companions went to the Sheffield Package Store, where Laurie Griffin was working. She sold the defendant a single quart of beer, which she put into a brown "liquor" bag. She noticed that the defendant seemed to be "in a hurry" and that he was not intoxicated. The four men drove off toward the Bennetton house.

At approximately 9:10 P.M., Robarge returned to the trailer behind the Bennetton house. As he drove into the driveway, he noticed that the lights in the antique shop were suddenly turned off, and then he saw the defendant and the others loading things into Bennetton's station wagon. The defendant told Robarge that he was moving some antiques to New York for Bennetton. The defendant yelled toward the antique shop, "Okay, guys, it's cool"; at that point, the lights came back on. Robarge then observed two men get into Costa's vehicle, and the defendant and another man get into Bennetton's station wagon. Both cars then sped away. Robarge also noticed that the defendant appeared "kind of wary, kind of nervous." Robarge became suspicious when he saw that they had left the antique shop unlocked. Bennetton failed to respond when Robarge called his name, rang the doorbell, and telephoned; he then telephoned the Sheffield police.

Shortly thereafter, Officer Robert Ulrich arrived, and found the antique shop in disarray. Bennetton did not respond when Officer Ulrich called his name, and the door was locked. Officer Ulrich found a ladder, and he and Robarge entered the Bennetton home through a second floor porch above the garage. The porch was "a general mess" with papers and broken glass on the floor, and the telephone was off the hook. Robarge noticed that a number of items were missing from the antique shop and the house, including a television set and a video cassette recorder. Officer Ulrich then entered the living room, which was also in disarray, with the curtains drawn and the wires cut. A trail of blood led up a set of stairs to a third floor bedroom, where the officer found Bennetton's body lying in a pool of blood with a pillow over his head.

A pathologist, Dr. Jeffrey S. Ross, testified that Bennetton had been severely battered about the head, neck, and chest, and had been stabbed twice, once on each side of the neck. Dr. Ross was of the opinion that Bennetton was alive when the stab wounds were inflicted, and that Bennetton bled to death. ³ Finally, Dr. Ross testified that, apart from the stabbing, Bennetton's injuries were severe enough to create a substantial risk of death.

After they left the Bennetton home, the defendant and his three companions returned to the Sheffield House. Leigh Whitney watched the defendant divide a large sum of money among the members of the group. The defendant told Whitney that he had gone to the antique shop, and had "done a guy in." He even showed Whitney the switchblade knife he had used, and said that he had slit the man's throat as the man was reaching for the telephone. He also said that he had grabbed the man's hair and smashed "his face into [my] knee." According to Whitney, the defendant seemed cool and calm, and said he was going to Florida to have a good time until he got caught. He also told Whitney that he had to do most of the work, and that his "little cousins were worth ____." Finally, the defendant commented to Whitney that he had to go back to the scene and "do in the guy who lived out back" (Robarge) because he was afraid Robarge would "rat them out."

At approximately 3:30 A.M. on September 26, the defendant was arrested by the Connecticut State police near Hartford where he was seen driving the Bennetton vehicle. The police transported the defendant to the Hartford barracks, where he was given his Miranda warnings. He waived his rights and spoke to Trooper Ronald Ruel. The conversation continued for several hours, and amounted to a full and complete admission of guilt. ⁴ The defendant acknowledged that he knew Bennetton and that Bennetton owed him money for work he had done. He said that three or four months earlier he had heard some talk that Bennetton was "gay," prompting him to move out of Bennetton's home and into the Sheffield House. He went on to say, "It's all my fault, I beat him. I beat him bad. They're going to fry me for this." He stated that he went to Bennetton's home that night because Bennetton owed him some money, and because he wanted to "settle the score" with Bennetton, whom he believed had "dropped a dime" on him, leading to his arrest on an escape charge. He brought the others along "as backup," and because he would have "less of a problem with [Bennetton] with all these people present." Upon entering the house, he stated, he and Bennetton began to argue, and he hit Bennetton with a beer bottle. From there, it was "like a gang bang," with everyone beating and kicking Bennetton repeatedly. Bennetton tried to cover his face with his hands "but we kicked his ____ head in. He was a ____ mess." They carried Bennetton upstairs, and looked around for a rifle to "finish him off." When he realized there was no ammunition, he took out his knife and stabbed Bennetton in the neck. When asked why he stabbed him, he replied, "We knew he was going to die anyway, he was roughed up bad, I decided to put him out of his misery." He rolled Bennetton's body over to get the wallet, took all the cash out of it, and then proceeded to "rip off" the house and the antique shop.

1. The defendant's first contention on appeal is that the motion judge erred in denying his motion to suppress the evidence seized in the warrantless search of the victim's house. The defendant had the burden of establishing that he had a reasonable expectation of privacy in the victim's house before he could properly assert that the search was illegal and the evidence should be suppressed. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979). Commonwealth v. D'Onofrio, 396 Mass. 711, 714-715, 488 N.E.2d 410 (1986). The judge found, on evidence which warranted that conclusion, that the defendant lived in a rooming house approximately two miles from the victim's house. The judge correctly ruled that the defendant had no basis to challenge the constitutionality of the search of the victim's house, and properly denied the defendant's motion to suppress.

2. The defendant claims that the trial judge erred in admitting in evidence photographs of the victim. The admissibility of photographic evidence is a matter left to the sound discretion of the judge, and the defendant bears a heavy burden of demonstrating an abuse of that discretion....