Com. v. Ladetto

Decision Date21 May 1965
PartiesCOMMONWEALTH v. Peter J. LADETTO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Joseph J. Balliro, Boston, for defendant.

John J. Irwin, Jr., Asst. Dist. Atty. (Ruth I. Abrams, Asst. Dist. Atty., with him), for the Commonwealth.

Before WILKINS, C. J., and SPALDING, CUTTER, SPIEGEL and REARDON, JJ.

REARDON, Justice.

These are appeals under the provisions of G.L. c. 278, §§ 33A-33G. The defendant was tried before a jury on two indictments: (1) murder in the first degree; (2) assault, while armed with a dangerous weapon, on one Donald J. Lyons with intent to rob him. The defendant was found guilty of murder in the first degree. There was no recommendation by the jury (see G.L. c. 265, § 2, footnote 3, infra) and accordingly a sentence of death was imposed. As required by G.L. c. 279, § 4, execution was stayed. The jury also returned a verdict of guilty on the second indictment referred to above and a sentence of not less than eighteen nor more than twenty years was imposed upon the defendant. The cases are here with a summary of the record, a transcript of the evidence, and numerous assignments of error, many of which have been waived.

We have reviewed the evidence with care consonant with the duty laid upon us by G.L. c. 278, § 33E.

There was testimony as follows. On September 14, 1963, at about seven o'clock in the evening, Donald Lyons, nineteen years of age, was working as a 'checker at the checkstand' in a store in Malden owned by The Great Atlantic and Pacific Tea Company (A. & P.), at which time he noticed two individuals in the store, one of whom beckoned him to come over. When he reached them the defendant 'put a gun in * * * [his] stomach and told * * * [him] '[t]his is going to be a holdup and this is a real gun I have.'' Following this encounter the defendant turned him around, grabbed him by the neck, placed the gun at his back, and started walking him toward the back of the store. The defendant asked Lyons 'where the money was.' When informed that the money had been taken to the bank, the defendant replied, 'It's all right. We'll get the cash drawars.' The defendant was accompanied by his brother, Louis Ladetto. In the meantime a customer in the store noticed Lyons with the two men and observed that he was 'sweating,' 'making faces,' and 'kept rolling his eyes.' The customer left the A. & P. and flagged a police cruiser which was occupied by Officers Edward C. Callahan and George E. Hood. The cruiser drew up to the store and Officer Callahan proceeded inside to investigate. As he came through a door the defendant fired a shot at him, which ultimately proved fatal, and the officer slumped to the floor. Officer Hood then came through a door, whereupon the defendant fired at him, the projectile striking him on the lip. Immediately thereafter he backed away from the door, was hit in the knee and went down on the street. While on the ground and endeavoring to crawl to safety he was hit again in the thigh. Officer Hood emptied his service revolver and then lay face down in the street.

The car in which the defendant and his brother had driven to the store was in charge of one Lawrence Guerra. Following the exchange of gunfire a passer-by, Fred Boulter, saw Officer Hood shot down. Boulter, who was authorized to carry a gun and at that time had one with him, commenced to fire in the direction of the car where Guerra was stationed. Guerra came out of the car with his hands up and was subsequently turned over by Boulter to Sergeant Smith of the Malden Police Department. Louis Ladetto departed when it became evident that Guerra could not start the getaway car. He walked some distance from the store and disposed of a gun he was carrying in a public park. A group of boys who were playing near by recovered the gun and turned it over in due course to the police.

Meanwhile the defendant had commandeered another car and forced the owner to take him to Watertown where he robbed him of a sum of money after having told him that he had shot two policemen. The defendant deposited the gun which he was then carrying in the handbag of a girl who was at the Guerra home where the defendant went following the events at the A. & P. This gun also eventually came into police custody. There was testimony that the two Ladettos and Guerra had planned an armed robbery on the night of September 14, 1963, and that the two guns to be employed therein were carried in a Fuller brush case in Guerra's car as they drove to the store.

Officer Callahan was struck in the head by a single shot. He underwent neurosurgery on September 14, 1963, at the Massachusetts General Hospital where he died two days later. There was testimony from a ballistics expert that the bullets taken from the bodies of the two officers were fired from the Colt revolver used by the defendant in the commission of the crime. During the course of the late evening of September 14, 1963, the defendant procured from an undisclosed source a third gun. He later divested himself of this gun and made his way to Lewiston, Maine, and thence to Houlton where he applied for a job from the Farm Labor Bureau in that town and was given employment by a farmer near Houlton. Before going to the farm, however, he purchased another gun in Houlton.

On Wednesday, September 18, while driving into Houlton with the farmer who had employed him, the defendant was apprehended by agents of the Federal Bureau of Investigation and the Maine State Police. On being ordered out of the car in which he was riding he was told that he was under arrest 'on the strength of a Federal warrant issued in Boston for unlawful flight to avoid prosecution.' At the time of his arrest agent Robert F. Saunders stated to the defendant, '[Y]ou're wanted for the shooting in Massachusetts,' to which the defendant made the immediate response, 'Yes, I shot those * * * cops.' He further stated, 'If those two cops didn't come in, everything would have been all right.' He was then taken to the Houlton barracks of the Maine State Police where he asked for his travel bag. The bag was brought from the farm where he had been staying to the barracks where he again requested 'to get at it.' The agents informed him he could have it after it had been searched. It was searched and the gun which he had purchased in Houlton was found, loaded, in the bag. There was some further conversation at that point, following which he asked to see a priest, and, during the evening, before he was lodged in the Aroostock County Jail, he saw a Catholic priest.

On the following morning, September 19, 1963, at about 10:30 A.M., Lieutenant Cronin of the Massachusetts State Police first saw the defendant in the Federal court in Bangor, Maine, where proceedings took place which resulted in the defendant's appearance in a State District Court in Bangor. At the county court house the lieutenant spoke with the defendant and in a side room was told by him that he had shot two police officers in an attempted holdup of the A. & P. in Malden on September 14. Following proceedings in the Bangor District Court the defendant was returned to Malden in a police car containing three officers of the Malden police in addition to Lieutenant Cronin and himself. On the drive back to Malden, which lasted about four hours, the defendant gave in complete detail the story of his movements on the day of the crime, his involvements with his brother and Guerra in the enterprise, his estimate of the possibility of robbery of stores other than the Malden A. & P., and the chronology of events leading to his opening fire on Officers Callahan and Hood. He described fully to the officers on the automobile ride the details of the crime, the disposition of the gun which he had in his possession at that time, and his flight to Maine. There appears to have been no stenographer present at the proceedings in Maine. No notes were made by the police of the conversation which took place in the car. At the Malden police station the questioning of the defendant continued. An official court stenographer was summoned, and from 6:45 P.M. to 8 P.M. on September 19, 1963, the defendant, again in the presence of Malden officers and Lieutenant Cronin, went through the details of the crime, admitting that he fired the shots which killed Officer Callahan and wounded Officer Hood. He claimed to have acted in self-defense although other evidence indicated that Officer Callahan was shot while his gun remained in its holster from which he never removed it. The defendant in his statement under questioning made reference to the 'more than fair' manner in which he had been treated by the Federal agents, the Maine and Massachusetts State Police, and the Malden police, and expressed remorse at the result of the crime. At the conclusion of the interrogation the defendant was asked by Captain Reardon of the Malden Police, 'You want to contact an attorney?' to which his answer was, 'Yes, I believe it would be the best thing to do.' The police officer responded, 'When you make up your mind, you can use the telephone to call your mother, or an attorney, right?' Up to this point, 8 P.M. on September 19, 1963, twenty-five hours after the arrest of the defendant in Maine, there is no indication that the defendant (1) had requested counsel, (2) had been advised that he might have counsel, (3) had been refused counsel, or (4) had been advised that anything that he might say could be used against him.

1. The principal assignments of error pressed by the defendant (Nos. 18, 19, 20 and 21) relate to the admission in evidence of various conversations conducted by police and the agents of the Federal Bureau of Investigation with the defendant, in the course of which he made statements implicating himself in the crime. The first of these conversations was held at the time of arrest by the Federal agents. The second occurred in...

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