Com. v. Perez

• Citation: 357 Mass. 290,258 N.E.2d 1
• Parties: COMMONWEALTH v. Jose PEREZ.
• Decision Date: 15 April 1970
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1

258 N.E.2d 1

357 Mass. 290

COMMONWEALTH v. Jose PEREZ.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Jan. 5, 1970.

Decided April 15, 1970.

Kent B. Smith, Springfield (S. Thomas Martinelli, Springfield, with him) for defendant.

Matthew J. Ryan, Jr., Dist. Atty. (Leonard E. Gibbons, Asst. Dist. Atty., with him) for the Commonwealth.

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

KIRK, Justice.

The defendant, Jose Perez, was tried under indictments charging murder in the first degree, armed robbery, and breaking and entering in the nighttime with intent to commit a felony. The jury returned verdicts of guilty on all three indictments, with the recommendation that the death penalty be not imposed. The case is before un on the defendant's appeals under G.L. c. 278 §§ 33A--33G. He assigns as error the denial of his motions to suppress evidence and for directed verdicts, certain findings of fact made by the judge, and a supplementary charge given the jury in response to a question.

We summarize the evidence. On Tuesday morning, January 3, 1967, about 1:45 A.M., the body of Charles Alpert, seventy-one years of age, was discovered by police in his hardware store at 1860 Main Street, Springfield. Alpert had left his home about 9 P.M. Monday night to check on the store. When he had not returned by midnight, his wife called the police. The police went to the store, and saw that the lights were on and that both the front and rear doors were unlocked. A rope was hanging from a skylight above the center of the store. A pane of glass was missing from the skylight. The police observed behind a counter, a safe, the dial of which had been pried off. A crowbar was in front of the safe. Alpert's body lay in a pool of blood behind the counter, to the rear of the store. He had received multiple blunt-force injuries to the head, causing seventeen wounds, fractures of the skull and nose bones and hemorrhage and laceration of the brain. Near his body was a claw hammer which had blood and hair on it. Alpert's wallet was not on his person or in the store.

Officer Persico, the policeman who discovered the body, testified that he saw five or six bloody footprints leading from the body toward the rear door. Deputy Chief McCarthy, who arrived about 2 A.M., saw a '(f)ew little marks like steps.' The medical examiner, who arrived after the deputy chief, testified that the footprints which appeared in colored slides shown to the jury were 'probably (h)is,' because he 'was the only one who got that close,' and he had blood on his shoes. The body had not been touched or examined by anyone until the medical examiner arrived. The time of death was estimated at approximately 10 P.M. on Monday, January 2, 1967.

On Tuesday morning, January 3, at some time between 7 and 8 A.M., a man brought a blue velour sweater and three shirts to Norman Sorrell, the manager of the Carew One-Hour Cleaners at 2225 Main Street, Springfield. The man pointed out to Sorrell bloodstains on the blue sweater, and asked if they could be removed; Sorrell told him that they could be. Sorrell made out two claim slips on which he identified the man only as 'Joe.' A few minutes later, Abraham Kay, the owner of the Carew Cleaners, visited the shop, and Sorrell asked Kay to bring him some special blood remover.

At 8 A.M. that morning, police detectives began calling cleaning establishments in Springfield to request them to report any bloodstained clothing. When they called Kay, he told them of the clothes at the Carew Cleaners., The police asked if they could pick up the clothes, and Kay consented. Kay called Sorrell and told him to put the clothes to one side until the police arrived. At 9:30 A.M., Lieutenant Moriarty and Detective Tighe arrived at the Carew Cleaners and identified themselves. Sorrell took the clothes from under the counter and gave them to the officers. The police officers had no warrant, although they knew the District Court was open. They took the clothes to the police station, where Deputy Chief McCarthy put them in plastic bags and placed them in a cabinet. On Thursday, January 5, they were taken to the State police laboratory in Boston by Detectives O'Connor and Sears.

On the morning of Friday, January 6, Detective O'Connor applied for a search warrant. The affidavit in support of the application stated that the blue sweater and the three shirts were at the Carew Cleaners. The return on the warrant stated that a search of the cleaners was made on January 6, and that the clothes were taken pursuant to the warrant. Both O'Connor and Sears knew that the clothes were in Boston.

Commencing Wednesday, January 4, Lieutenant Moriarty and Detective Tighe kept watch on the Carew Cleaners for the man who had left the clothes. On January 5 they learned that the State police chemist, in addition to the blood on the blue velour sweater, had determined that there were also rope fibers and particles of a granular material on the sweater. At 3:30 P.M. the next day, Friday, January 6, the defendant Perez entered the Carew Cleaners and gave two slips to a female employee behind the counter. The woman nodded to the detectives, indicating that the slips were for the seized clothing. Sorrell, however, shook his head, indicating that the defendant was not the man who had left the clothing. ¹ When told that the shirts were not ready, the defendant left the shop. Lieutenant Moriarty watched for a moment and, after observing that no one had accompanied Perez, called to him to return. The defendant complied, and Moriarty asked him if the claim slips were his. The defendant said they were. Moriarty then asked him what the slips were for, and the defendant described the blue sweater and the shirts. Moriarty thereupon identified himself as a police officer, told the defendant that he was under arrest on 'suspicion of the murder of Charles Alpert,' and warned him of his rights.

The police arrived with the defendant at the police station about 3:45 P.M., and he was again advised of his rights. He said that he did not want to talk to a lawyer, but wanted to talk to one Packard, his parole officer. The defendant spoke in broken but understandable English. He again told the police that the claim slips were his, and said that the blood on his shirt came from a fight he had been in a few nights before. He told the police that he lived at 47 Bradford Street. The clothes he was then wearing, including a pair of new black goves, were taken from him.

Deputy Chief McCarthy ad three other officers left the station at 4 P.M. for Perez's residence. Detective Tighe remained with the defendant, who asked him to call someone who spoke Spanish and also asked him for Packard's telephone number. They were unable to reach Packard. Perez asked if he were being held for the killing 'in the north end.' He said that he stayed home every night because he was on parole. He also told Tighe that two Puerto Ricans had tried to rob him a few nights before, and had kicked and punched him, and that his nose had bled onto his blue sweater.

Deputy Chief McCarthy returned with clothing taken from the defendant's closet. Tighe related the foregoing conversation to him. McCarthy asked Perez what clothes he was wearing when he received the bloody nose. Perez pointed to a pair of black trousers and a pair of black shoes. These were segregated and placed in separate plastic bags, and later sent to the State police laboratory.

On January 10, 1967, one Landry, while working near the bank of the Connecticut River in Springfield, found a portion of a wallet containing papers bearing the name of Charles Alpert. As a result of this discovery, the police searched the area, and on January 12, found a black left-hand glove on a log near the river. The glove was also sent to the State police laboratory.

Joseph V. Lanzetta, the State police chemist, examined Perez's clothing, the clothes worn by Alpert, the glove found on the river bank and samples of various materials taken from the hardware store. On the blue velour sweater he found a heavy concentration of stains caused by human blood, type A, which was the blood type of both Alpert and the defendant. He also found fibers which microscopic examination showed to be manila rope fibers consistent in color and soiling with the fibers of the rope found hanging from the skylight. The fibers in both instances were brownish-yellow, but soiled with a black material which Lanzetta could not identify. He also found on the sweater some particles of a yellow-white granular material, which were 'similar in color, in appearance, and stained in the same manner as the outer portion of the glazing compound on the window or skylight.'

On the defendant's black trousers Lanzetta found bloodstains, type A, and fibers that 'were similar in color, in type, and in staining' with the fibers from the rope. He found also a white granular material similar in appearance to the putty or glazing compound from the skylight. X-ray diffraction tests produced similar results with both materials. On the defendant's black shoes Lanzetta found 'a fairly large strip of white granular material' which produced X-ray diffraction test results similar to the putty in the skylight. Examination of the strip showed it to be consistent with having been pressed against ribbed glass, as the putty in the skylight had been. On the upper portion of the shoes Lanzetta found blood smears of insufficient quantity to enable him to determine whether the blood was human. He found no bloodstains on the bottom parts of the shoes. On the soles and heels Lanzetta found brass particles, which were on the average a little larger than a pinhead. Microscopic examination and X-ray diffraction tests showed the particles to be similar to brass particles from the dial of the safe, and to brass filings from the floor under a key-making machine in the hardware store.

Lanzetta found in...