Com. v. Makarewicz

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before QUA; COUNIHAN
• Citation: Com. v. Makarewicz, 132 N.E.2d 294, 333 Mass. 575 (Mass. 1956)
• Decision Date: 15 February 1956
• Parties: COMMONWEALTH v. Peter William MAKAREWICZ.

Page 294

132 N.E.2d 294

333 Mass. 575

COMMONWEALTH v. Peter William MAKAREWICZ.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Oct. 4, 1955.

Decided Feb. 15, 1956.

Louis Goldstein, Roxbury, for defendant.

Myron N. Lane, Dist. Atty., Wallaston (Edward H. Libertine, Ass't Dist. Atty., Quincy, with him), for Commonwealth.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and COUNIHAN, JJ. COUNIHAN, Justice.

On December 10, 1954, the grand jury for the county of Norfolk returned an indictment against the defendant, the first count of which charged that the defendant on or about November 4, 1954, at Norwood 'did assault and beat Geraldine Annese, with intent to murder her, and by such assault and beating did kill and murder the said Geraldine Annese'; the second count is substantially the same as the first except that after the words 'with intent to murder her' are added the words 'by manually strangling her.'

The defendant pleaded not guilty and was put on trial before a jury. The trial was subject to G.L. (Ter.Ed.) c. 278, §§ 33A-33G, as amended by St.1939, c. 341, and St.1954, c. 187, § 1. The jury returned a verdict of guilty of murder in the first degree with a recommendation that the death sentence be not imposed. G.L.(Ter.Ed.) c. 265, § 2, as appearing in St.1951, c. 203. Thereafter the judge imposed a sentence of life imprisonment at the State prison. The case comes here upon the defendant's appeal accompanied by fifteen assignments of error based upon exceptions taken at the trial and a transcript of the evidence. G.L.(Ter.Ed.) c. 278, §§ 33A-33G. The assignments of error will be considered hereinafter in their numerical order. There was no error.

In our discussion hereafter we shall refer to the defendant as Peter and the deceased as Gerry. There was evidence that they were both about fifteen years old and had attended the same school in Norwood. Gerry lived with her parents on the day of the alleged murder at No. 13 Tremont Street in Norwood and Peter lived with his parents at the corner of Tremont Street and Washington Street about three hundred feet away. They were neighbors and friends. On that day Gerry was menstruating and did not attend school. In company with a friend, Cynthia Savage, a girl of about the same age, Gerry spent most of the day at her sister's home in Walpole. They left there about 4 P. M. and each went home. As a result of a telephone call from Gerry they met about 7 P. M. at Wiseman's store in Norwood. Cynthia was there first and Gerry came in and told her that the boys with whom they had a 'date' that evening were outside waiting for them and that she had to be home by ten o'clock. Peter was in the store at the time within easy hearing distance of the girls.

The girls left the store and went for an automobile ride with three boys. They stopped at several places including 'Doug's' where Gerry had a milk shake. After driving around for a while they drove Gerry to the corner of Tremont and Washington streets where they let her out of the automobile about five or ten minutes of ten. Gerry then walked along Tremont Street toward her house. Adjacent to the building in which she lived and to the rear of it was a two car garage with two overhead doors. On the evening of the alleged crime the garage was occupied by two automobiles. As one looked at the garage from the street the automobile of one Kalliel occupied the left side and the automobile of one Freund occupied the other side. Kalliel left his automobile in the garage at about 7 P. M. on November 4, 1954, and closed the door. Freund left his automobile in the garage about 6:45 P. M. the same evening.

At about 6:30 A. M. on November 5 Kalliel went to the garage to get his automobile to go to work. Both doors of the garage were then closed. He opened the left door of the garage and entered it. He looked over the left side of his automobile, got in the left door, and backed out. He saw nothing unusual in the garage at that time presumably because he did not look to the right side of his automobile. About 7:25 A. M. Freund approached the garage to get his automobile. Through the open door on the left side he saw a body lying on the floor of the garage. Its position was in the space between the two automobiles as they had been parked there. He ran home and told his wife to have the landlord call the police. He then went back to the garage and observed the body of a 'woman,' clad only in white stockings, lying on the floor. The right door of the garage was closed. Female clothing was strewn all over the garage. He went back a third time and saw the family of Gerry in the garage. They identified the body as that of Gerry.

The police arrived shortly. Soon the medical examiner came, and soon thereafter Dr. Bjornson, a pathologist, who was attached to the Harvard Medical School and to the State police. After they made a 'gross examination' of the body they removed it to the Norwood Hospital where Dr. Bjornson in the presence of the medical examiner performed an autopsy. The examinations disclosed that the nail of the left middle finger of Gerry was broken off close to the nail bed. There was dirt on her upper lip and in her nostrils. There was a laceration in the vagina although the hymen was intact. The anus was dilated and spermatozoa were present in the rectum. The pathologist gave his opinion that death was caused by asphyxiation as the result of manual strangulation. As he testified the pathologist illustrated what he saw by the use of enlarged color photographs produced upon a screen.

Peter was taken to the Norwood police station shortly after midnight of November 5 and put under arrest about 10:10 A. M. on November 6. From the time he arrived at the station he was questioned on three separate occasions by District Attorney Lane, Chief of Police Folan of Norwood, Lieutenant Delay and Sergeant Bogdanchik, both of the State police, and several other officers. Mr. Kenney, a stenographer attached to the office of the district attorney, took what was said and later testified from a transcript of his notes. The first interrogation was from 12:15 A. M. to 1:45 A. M.; the second from 3:18 A. M. to 3:45 A. M.; and the third from 9:12 A. M. to 10:07 A. M. In the meantime he was permitted to rest and sleep and was given some coffee and doughnuts.

About 2 A. M. on November 6 one Topjian, an expert chemist of the department of public safety, came to the police station where he saw and talked with Peter. Later, after Peter had removed his clothing, Topjian applied benzidin tests to the body of Peter who willingly submitted to such tests. This test is to discover the presence of human blood which may not be seen upon 'gross examination.' The test showed blood on Peter's left wrist, his upper left arm, the back of his neck, and the entire area of his groin. He took the dungarees and gloves which Peter was wearing at the time of the crime to a laboratory and applied the same tests. He found the presence of blood on the fly and on the lower right leg of the dungarees and on the finger of the left glove. This blood was consistent with the blood of Gerry but not with that of Peter. Between the second and third interrogations of Peter, Topjian reported the results of his tests to the police and returned the clothing to the police station.

There were inconsistencies in the statements of Peter in his first two interrogations at the police station as well as in his talk with Topjian.

Peter was brought into the chief's office at 9:12 A. M. for further questioning. There were then present District Attorney Lane, Chief of Police Folan of Norwood, the lieutenant and the sergeant of the State police, a lieutenant of the Norwood police, and Mr. Kenney. After some preliminary questions Peter was told of the results of the examination of the chemist and the discovery of his fingerprints on the fenders of the automobiles which were in the garage at the time of the murder. His dungarees and gloves were placed on the chief's desk. He was being further questioned about these circumstances when he broke down. He violently swept the dungarees and gloves off the desk and began to cry. After he regained his composure he confessed to committing the crime. After a voir dire examination before the judge in the absence of the jury the confession was admitted in evidence.

In this confession Peter said in substance that he was lying on a bed with a younger sister whom he was trying to get to sleep when he conceived the idea of killing Gerry. He put on his dungarees which were the ones examined by Topjian and left his home about 9:35 P. M. by way of the cellar door in the rear of the house. He walked over to a barbed wire fence located at the side of 'Rocky's' garage. He jumped over this fence and then over another one and walked to the garage. He lifted the left door of the garage, went inside, and waited for Gerry. After about fifteen minutes he saw her running down the street, and as she was going along the side of her house to go up the back stairs, he hollered to her, 'Hi, Gerry, come here.' She said, 'Who is it?' He said, 'Markie.' She said, 'What do you want?' and he said, 'Come over here. I want to tell you something.' She then came over and into the garage. He pulled the door down and told her to go into the space between the automobiles and turn around. When she did so he put his hands around her throat and strangled her. He held his hands around her throat for fifteen or twenty minutes, and when her hands ceased to move he released his hands. She fell to the dirt floor of the garage, and as she was lying there he took off all of her clothes except her stockings and had intercourse with her. She was then dead. After that he turned her body over on her face. He 'noticed Kotex on her panties.' He said that when he was getting up from the ground he put his hands on the fenders of the automobiles. During the struggle with Gerry she...