Com. v. Lewinski

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before TAURO; KAPLAN
• Citation: Com. v. Lewinski, 329 N.E.2d 738, 367 Mass. 889 (Mass. 1975)
• Decision Date: 03 June 1975
• Parties: COMMONWEALTH v. Walter M. LEWINSKI.

Page 738

329 N.E.2d 738

367 Mass. 889

COMMONWEALTH v. Walter M. LEWINSKI.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 4, 1975.

Decided June 3, 1975.

Kenneth D. Weiss, Boston, for defendant.

Thomas J. Mundy, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and QUIRICO, BRAUCHER, HENNESSEY and KAPLAN, JJ.

KAPLAN, Justice.

In a case appealed subject to G.L. c. 278, §§ 33A--33G, the defendant Walter M. Lewinski was tried to a jury in the Superior Court and convicted on an indictment for murder in the second degree of a young woman. The defendant seeks reversal of the conviction for any of three claimed errors assigned and argued: (1) that the trial judge, although charging the jury on murder in the second degree and voluntary manslaughter, refused erroneously to charge them on an alternative of involuntary manslaughter; (2) that the Commonwealth deprived the defendant of a constitutional right in that the police were delinquent in failing to follow up on evidence (sperm in the body of the victim) that might have assisted the defendant in his defense, and the judge should accordingly have dismissed the proceeding; (3) that the judge mistakenly denied the defendant's motion, made before trial, to compel the prosecution to provide his counsel with access to statements given to the police by three persons who were to appear as witnesses for the Commonwealth, James Anthony Smith (charged as accessory after the fact to the murder, his case being severed from the defendant's), Patricia Thompson and Larry Fowler. None of the grounds urged has merit, but the appeal provides a proper occasion for a statement about future practice in regard to defendants' demands to examine statements in the control of the prosecution made by witnesses whom the prosecution intends to call. Compare Commonwealth v. Stewart, --- Mass. ---, --- - --- ^a, 309 N.E.2d 470 (1974) where we approved for the future a change of the practice regarding discovery of testimony before the grand jury.

1. We summarize the substance of the case against the defendant which lay in the testimony of the three witnesses above mentioned, and a fourth, Clarence W. Nassaro, and in certain physical evidence.

Smith's testimony ran thus. He occupied apartment 2B on the second floor of the premises 224 Tremont Street, Boston. The defendant, whom Smith had known for two and a half years, had stayed with him on the night of August 15--16, 1973, and Smith spent most of the next day with him. About 6 P.M. on August 16 the two dropped into apartment 2C and visited with the occupants, Miss Thompson and Fowler, whom they had known for some time. ¹ They stayed for a half hour or more. On leaving, they went from bar to bar in the neighborhood, starting at 'Jerome's' (where Smith worked as a bartender), both drinking heavily, Smith becoming more sodden than the defendant.

About 12:30 A.M. the defendant and Smith walked back to 224 Tremont Street. Smith handed the defendant a key to the street door; the defendant had earlier been given a key to the apartment door. Smith went by elevator alone to his apartment and, being quite drunk, promptly 'passed out' on one of the two cots in the 'studio' room which, with kitchenette space and a bathroom, in effect constituted the apartment.

Smith was awakened by the voice of the defendant, entering the apartment with a woman whom Smith did not recognize. The lights were not on. Smith observed or heard the defendant and the woman commencing to make love on the other cot. Smith drifted back to sleep, having been awake for perhaps five minutes.

Some time later, still in the early morning, Smith was awakened by a loud report, a gunshot. He saw the defendant standing at the bathroom door in the bathroom light with a gun in his hand--Smith believed it to be his own .357 magnum revolver--and wearing pants, but without a shirt, shoes, or socks. The defendant said, 'My God, I have shot her.' Smith, rising and walking a few steps from his cot to the bathroom, saw the naked body of a woman sprawled half in and half out of the bathtub, her face smashed and running blood. She was dead.

The defendant said, 'You are going to have to help me with the body or do something with the body.' Smith said, 'All right.' The defendant put the gun on the kitchenette counter. The two men lifted the body from the tub and laid it on the floor of the bathroom, and then contrived to wrap it (together, evidently, with some of the woman's clothing) in a sheet taken from one of the cots. The defendant went into the hallway outside apartment 2B to see whether the way was clear. Smith did the same. Back in 2B they picked up the sheeted burden between them and carried it down a back stairs opening on an alley adjacent to 224 Tremont Street and extending to Stuart Street. They laid the body, still wrapped in the sheet, on the ground some distance down the alley, and cast the articles of clothing on a trash barrel nearby (the clothing was later retrieved by the police).

The defendant and Smith then returned by the stairs to the apartment and mopped up the bathroom with towels or other material at hand. They put these things and the woman's shoes in two paper bags and, carrying the bags, left, taking the elevator to the street. They rid themselves of the bags by throwing them into a trash receptacle behind the Town House Apartments in the vicinity. (The trash was removed too soon to permit retrieval of the bags by the police.) The men then walked into the Chinatown district, had coffee at a restaurant there, and returned to the neighborhood of 224 Tremont Street. The defendant said he wanted to go upstairs, and 'Let me have a couple of hours,' or 'I will be a couple of hours.' He entered the street door of the building. Smith walked about the streets for an hour and a half or so. Returning to the apartment about 5 A.M., he noticed that his blue overnight bag was missing. The defendant was gone. Smith had encountered the building superintendent, Peter Kantos (occupant of apartment 2A), ² in the hallway, and the two met in the Saxon Coffee Shop a few minutes later. Very shortly, two unmarked police cars arrived on the scene; Smith saw Miss Thompson in one of them. Smith was picked up and let the police into apartment 2B; thereafter he was taken to police headquarters.

The testimony of Miss Thompson and Fowler may be taken in part together. Miss Thompson testified that the defendant during the visit at 6 P.M. displayed a 'western type' gun that he kept tucked in his belt. After the defendant and Smith left apartment 2C sometime before 7 P.M., Miss Thompson and Fowler went to the movies, returned, and went to bed between 11 P.M. and midnight. About 2:50 A.M., Miss Thompson was awakened by a woman's screams which continued intermittently for about thirty minutes. The woman (whose voice she did not recognize) was screaming, 'My neck, my neck, Wally, my neck, please let go of my neck. You are hurting me.' A man's voice kept saying 'Shut up'; Miss Thompson recognized this voice as the defendant's. She woke Fowler, then went into the hallway; the noise was coming from apartment 2B. As she came back, she heard a gunshot, followed by silence. She panicked, shut and locked the door. Looking through a peephole in the door, she saw the defendant come out of 2B and look up and down the hallway; a second man (whom she could not see clearly) also came out; they returned to 2B. Thereafter she heard stumbling down the rear stairs. She and Fowler opened a window from which the alleyway could be seen. She saw a person walking out into the alleyway and back into the building; the second time she looked, she saw on the ground a woman's body in a white sheet. She got dressed, as did Fowler. The elevator was heard to come up and go down.

Fowler, after being wakened, heard a woman's voice saying repeatedly, 'Please don't hurt me. You know I love you,' and the male voice saying, 'Keep it down,' or 'Shut up.' He may not have been paying close attention at the time; in all events he did not recognize the voices. He heard the shot, and the noise on the back stairs. Looking through the window, he saw the defendant come into the alley, return to the building, and back out, half carrying the body. He heard noises of people coming up the back stairs and reentering apartment 2B, and through the peephole he saw the defendant preparing to leave the building carrying a paper bag. He did not see anyone with the defendant at this time. After getting dressed, he went down to the alleyway, and tried the woman's pulses. She was dead. He rejoined Miss Thompson and together they walked or taxied to the residence of their boss at Garden Street on Beacon Hill and talked with him. Here a telephone call was made to the police (there was no telephone in apartment 2C). The police drove them to 224 Tremont Street and to headquarters.

The witness Nassaro, a bus driver for the Massachusetts Bay Transportation Authority, on the 6:33 A.M. run on August 17 from Airport station to Logan airport, had the defendant, whom he knew, as a passenger. The defendant told him he was going to Albany 'to school or something' for a company he was working for, and asked what air line he should take. Nassaro said, in a 'kidding' way, 'I won't tell anybody you are leaving town, I won't even tell . . . (the victim).' Nassaro knew the victim and had seen her numerous times; a few times with the defendant. ³

The police had started to converge on the alleyway about 5 A.M. Sergeant Detective Joseph A. Kelley of the homicide unit was in charge. A search of apartment 2B turned up a woman's pocketbook, from the contents of which the identity of the body of the victim could be traced; also a .22 caliber Colt derringer, and miscellaneous spent and live ammunition, but not a .357 magnum revolver. (It may be mentioned here that Smith was admittedly an illicit dealer in guns, who had engaged in numerous gun...