Com. v. Kendrick

Citation351 Mass. 203,218 N.E.2d 408
Decision Date24 June 1966
CourtUnited States State Supreme Judicial Court of Massachusetts

F. Lee Bailey, Boston for defendant.

L. Barry Tinkoff, Asst. Dist. Atty., for the Commonwealth.


KIRK, Justice.

The defendant was convicted of murder in the second degree on an indictment which charged him with the murder of Thomas D. Giangreco at Barnstable on September 20, 1964. The case is here on his appeal under G.L. c. 278, §§ 33A--33G.

The judge, after a full hearing at the outset of the trial, denied the defendant's motion to suppress certain statements made by the defendant to the police. Although the denial was among the assigned errors, it was not mentioned in his brief or in oral argument. Rule 13 of the Rules for the Regulation of Practice before the Full Court, 345 Mass. 787.

Of the three assignments of error which have been argued, the principal one relates to the judge's ruling that a verdict of manslaughter could not be returned by the jury, and to his refusal to instruct the jury on the law of homicide as it pertains to manslaughter. The issue presented is whether, on the evidence, the jury were precluded as matter of law from finding the defendant guilty of manslaughter. The principles of law are settled and well understood. The application of them, however, sometimes requires, as here, consideration in detail of the evidence bearing on the gone to work. On these occasions he did 403, 413, 58 N.E.2d 241. Most of the evidence now to be stated originated with the defendant, either as statements to the police or as testimony by him at the trial.

The defendant was forty-four years of age, married, and the father of three children. He was employed as a rural mail carrier in Dennisport on Cape Cod. With his family he lived in Dennisport as the terms of his employment required. Commencing in May, 1963, an amorous relationship developed between the defendant and Mrs. Giangreco, who lived with her husband, he deceased, in Centerville. The defendant had known Mrs. Giangreco since she was three or four years old; or at least since grammar school. During the spring of 1963 he visited her daily, usually in the morning, after her husband had gone to work. Oin these occasions he did not park his car in front of the Giangreco house, but in a road or driveway near by. Together, they took frequent rides in her husband's car. The defendant was admittedly the father of a child born to Mrs. Giangreco in June, 1964.

The deceased, Thomas Giangreco, was sixty years old. He owned and operated on a seasonal basis, a small restaurant in Hyannisport. The defendant and the deceased had known one another since 1956. They had played golf together but were not close friends. The intimacy between the defendant and Mrs. Giangreco was known to the defendant's wife, and to many people in the community. The deceased did not suspect the infidelity of his wife, if indeed he ever suspected it, until two weeks before hsi death. If he had then suspected it, he gave no indication of it to the defendant when they once met in the interval. There had never been an argument between the defendant and the deceased. The defendant had never talked with the deceased about his relations with Mrs. Giangreco or about the baby.

For about a year prior to the fatal event the defendant had planned to get a divorce. He hoped that the deceased would permit Mrs. Giangreco to get a divorce so that he and Mrs. Giangreco could marry. As a step in the execution of the plan, the defendant on September 13, 1964, hired a cottage in Dennisport where Mrs. Giangreco and the baby were to live. During the following week, he stocked the cottage with food. On Sunday morning, September 20, 1964, he took Mrs. Giangreco and the baby, and many personal effects, including the crib, to the Dennisport cottage. In the cupboard were placed three cups, bearing the names Charles, Ruth, and Robert, the names, respectively, of the defendant, Mrs. Giangreco and the infant. Following a tour of the Cape, including a stop where the two adults played minature golf, the party returned in the early evening to Centerville where the defendant dropped off Mrs. Giangreco and the baby at their residence. The defendant left for Hyannis. It was the defendant's purpose to go back to Centerville later in the evening and discuss with Giangreco in the presence of Mrs. Giangreco the prospect of the latter getting a divorce. He did go back and he drove past the Giangreco house several times wondering just how he would 'break the news' to Tom. He was attired then, as he had been all day, in Bermuda shorts, a shirt, and rubber soled canvas shoes.

About 8:45 P.M. the defendant parked his motor vehicle at a palce nearby, and took from it and put in his pocket or belt a German army knife and scabbard which he had brought home from Germany as a souvenir of his service in World War II as an infantry platoon sergeant. The blade of the knife, of Solingen steel, was seven and one-half inches long and, at the hilt, almost an inch wide. It had one keen edge and came to a point at the tip of the blade. The handle was slotted to make the weapon adaptable for use as a short bayonet. The defendant used his motor vehicle in his duties as a rural mail carrier. The car had a folding sign on the top identifying its use. The knife, as the Commonwealth conceded, had always been kept in the defendant's car and was used by the defendant to cut bundles of mail. The defendant took the knife with him as he went to the Giangreco house because ht throught there might be trouble with Tom when he brought up the subject of Tom's wife and the baby, and because he wanted to protect Mrs. Giangreco and the baby if Tom 'got mad.' He had seen Tom 'get mad' with people on other occasions. Tom had 'quite a temper.'

The defendant went to the front door of the Giangreco dwelling. Although darkness had descended, the area in front of the house was sufficiently lighted by a nearby street light to permit recognition of persons. The front door is in a recessed area or alcove. The defendant knocked at the door and waited for an answer. When no answer came, he walked along the front of the house and looked in the windows. Through one window he saw the deceased, seated at the kitchen table, wearing a bathrobe and working on some papers. The defendant leaned over the bushes near the house, tapped on the window, and called out loudly, 'Tom, will you let me in?' While the defendant was leaning forward, the light from the kitchen fell on his face. Tom looked directly at him, got up from the table and went into the living room. The defendant returned to the front door which was locked, and faced it, expecting the deceased to open it. He knew that the door opened inward. He soon heard footsteps behind him. He turned in the alcove and saw Tom with a fireplace poker in his right hand and a flashlight in his left hand. While the defendant was still in the alcove, Tom raised the poker and struck the defendant on the shoulder. The defendant said, 'What's the matter with you, Tom?' The deceased answered, 'I will show you what's the matter with me,' and struck at him again with the poker. The defendant partly deflected the blow with his left arm, but he was hit on the nose. The defendant tried to hold off the deceased with his fists; he tried to grapple with him with his hands and could not; he then pulled his knife and said, '(S)tay away from me.' The deceased advanced again, and the next thing the defendant knew, the deceased was on the ground. He could not recall stabbing the deceased, or the number of times he stabbed him.

Giangreco was dead upon the arrival of the police in response to a telephone call at 9:01 P.M. from Mrs. Giangreco who reported that there had been a fight outside her house. The deceased was lying near some bushes along the foundation of the house at a point at least fifteen feet from the front door area. A fireplace poker protruded from under his right arm. A flashlight was five feet away from the body. The cause of death was stab wounds in the neck and chest. Some of the wounds were three inches deep and were obviously inflicted with plunging force rather than as slashes with the edge of the blade. There was a complete severance of the left vertebral artery. The deceased's left hand was cut. There were also some relatively superficial wounds and abrasions on his body.

The defendant had left the scene immediately. He threw away the knife and scabbard, which were later recovered with his help. He went to the Dennisport cottage where he washed and attempted to dress his 'wounds.' He then went to a public telephone and called the Giangreco house. A police officer answered. The defendant asked for Tom and weas told that Tom was busy. The defendant then returned to his own home where at 12:50 A.M. on September 21, 1964, the police, who in the interim had questioned two other rural mail carriers, interviewed him. The defendant told the police that he had played golf with a friend on September 20. In response to an inquiry whether the injuries to his face were caused by having been hit with a club, he explained that his face had been scratched by the bushes while playing golf. A telephone call by the police, made in the defendant's presence, to the man with whom he said he had played golf, disclosed that the man had been out of the State on September 20. At this point, the defendant was told by the police that he was suspected of a serious crime, that he did not have to answer any questions, but that if he did answer, the answers could be used against him, and that if he wanted a lawyer he could get one. The defendant replied that he did not need a lawyer, that he had done nothing wrong. He then gave the narrative as heretofore stated. At 2:45 A.M. the defendant told his...

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