Com. v. Rego

• Decision Date: 05 November 1971
• Parties: COMMONWEALTH v. Joseph F. REGO (and five companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 795

274 N.E.2d 795

360 Mass. 385

COMMONWEALTH v. Joseph F. REGO (and five companion cases ¹).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 13, 1971.

Decided Nov. 5, 1971.

John A. Pino, Boston, for defendants John Stokes and another.

James F. Morelli, Boston, for defendant Joseph F. Rego.

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

Before TAURO, C.J., and CUTTER, REARDON, BRAUCHER, and HENNESSEY, JJ.

HENNESSEY, Justice.

The three defendants were indicted upon charges of murder in the first degree and breaking and entering in the nighttime. The defendants were tried together on all indictments and the jury returned verdicts of guilty of murder in the first degree and breaking and entering in the nighttime against each defendant, but the jury recommended that the death sentence be not imposed. The cases are here on appeal under G.L. c. 278, §§ 33A--33G.

The defendants argue five assignments of error: (1) the judge's failure to charge upon homicide committed during the crime of breaking and entering as a basis for verdicts of guilty of murder in the second degree; (2) the exclusion from evidence of a certain check offered by the defendant John Stokes in connection with alibi testimony offered on his behalf by his aunt Patricia Stoller; (3) the denial of motions to dismiss based upon failure to afford the defendants a speedy trial of the indictments; (4) the denial of the defendants' motions for new trial; and (5) the entry of guilty verdicts after the dismissal of the jury and after verdicts previously reported by the jury.

We summarize the evidence. Armand Cerbone was fifty-two years of age and employed as a maintenance supervisor for the Joseph Pollak Corporation (Pollak's) in its factory at 195 Freeport Street in Dorchester. The factory consists of a large two floor manufacturing building and an office building, with a connecting tunnel between the two buildings. Vending machines for cigarettes, candy and tonic were located on both floors of the manufacturing building. Sanitary machines were located in the ladies' room on the second floor of that building.

During the month of January, 1969, Armand Cerbone worked at Pollak's Monday through Friday from 7 A.M. to 5 P.M. On Saturdays he worked until midafternoon and returned after dark to check the plant by going all through the buildings. Cerbone left home on the evening of Saturday, January 18, 1969, at ten minutes past seven to check the plant. Before he left his wife gave him $30 which he put in his pants pocket. His wife testified that he would usually remain at the plant for about one hour and then would return home. When he had not returned at 8:20 P.M., she telephoned the plant and received no answer. She repeated this procedure a number of times. Police were dispatched to the scene and gained entrance to the plant shortly after 11 P.M.

The police discovered the dead body of Cerbone lying on the floor of the first floor of the factory building near the bottom of the stairway leading to the second floor. On the left side of Cerbone's forehead was a splitting and gaping laceration two inches in length and about one-eighth of an inch wide. A second gaping laceration on the left side of the head was two and one-quarter inches long and about one-half inch in width. There was a third gaping laceration on the left side of the head one and one-half inches long and about one-eighth inch wide. On the right side in the temporal region there were two other gaping lacerations, one of which was three and one-half inches long and about one inch wide, and the other of which was about one inch long. The autopsy disclosed many fractures and bone chips lying in the macerated brain. The right and left sides of the skull were shattered and fractured by blows. The third finger of Cerbone's left hand had been crushed. In his clothing was found $1.28 in change.

The police at that time discovered a broken window in the cafeteria section on the first floor. They also found that the candy, cigarette and tonic machines on the first floor had been tampered with; that similar machines on the second floor had been forced open and the coins removed; and that sanitary machines in the ladies' room on the second floor had been forced open and one of them ripped from the wall.

Raymond J. DeMore testified that he had known two of the defendants, James Stokes and John Stokes, for a couple of months before January 18, 1969, and the third defendant, Joseph Rego, for 'about a year.' He first met the defendant Joseph Rego. Rego then introduced him to the defendants James Stokes and John Stokes, who are brothers. On the night of January 18, 1969, he saw Rego and the Stokes brothers at the Lucky Strike Bowling Alley about 7 P.M. He talked to James Stokes in the men's room. He saw a sawed off shotgun about a foot and a half long in a shopping bag carried by James Stokes. In a conversation admitted only against James Stokes the witness was asked by James Stokes if the witness wanted to go down with the Stokes brothers and Rego to Pollak's and break in. James Stokes said he wanted to go there to break in.

John Stokes and Rego then came into the men's room. The following conversation was admitted against all the defendants. John Stokes asked James Stokes if he had told the witness 'about it' and James Stokes answered, 'Yes.' John Stokes asked James Stokes 'if he had opened his big mouth about going down to Pollak's' and James Stokes said, 'Yes.' Rego said he did not want the witness with them; the witness said he did not want to go. The witness and Rego then had a fistfight in the men's room. All three defendants then left the bowling alley building and the witness also went outside and he saw the three defendants walk toward Freeport Street.

On the following day, Sunday, January 19, 1969, the witness again saw the three defendants on the walk of the Lucky Strike Bowling Alley. He had a conversation with James Stokes while the other two defendants stood about fifteen feet away. This conversation was admitted against only James Stokes. The witness asked James Stokes what happened, and James Stokes replied, 'Well, what do you think happened?' James Stokes was carrying a paper bag which contained change and crumpled up bills and he said, 'We got it from the machines in Pollak's.' James Stokes said that he went into Pollak's and the guard caught them; that the guard cornered him in a corner and Rego came up behind the guard and hit him and the man fell to the floor; he beat him to a pulp; John was working on machines upstairs.

In a conversation which also occurred outside the bowling alley, and which was admitted against all the defendants, John Stokes came up to James Stokes and asked James if he had told the witness what happened. James said, 'Yes.' Rego was standing right next to James when this conversation occurred.

On that same Sunday afternoon about 1:30 P.M. the witness was present when Rego had a conversation with Neil McIsaac, George Grechen and a few other boys at the Lucky Strike Bowling Alley. This conversation was admitted against only Rego. Rego stated he was in trouble; that he had 'beat up' a guard, 'him and his two cousins.'

Neil McIssac testified that on the afternoon of January 19, 1969, at the Lucky Strike Bowling Alley he and several other boys had a conversation with the defendant Rego. This conversation was admitted against Rego only. Rego said he was in trouble; that he might have killed a guard; that last night 'him and his cousins' broke into a place and that one of his cousins was cornered, that they hit the guard and he fell to the floor and that was it.

1. Assignment of error 1 deals with the judge's charge upon first degree murder. The defendants contended in their objections after the charge that the evidence did not permit an inference that the killing occurred during the commission of a robbery and that there was no evidence of deliberate premeditation. The defendants now contend that their exceptions to the charge were also broad enough to save their rights to the judge's alleged failure to charge the jury that a homicide which is considered to be murder solely because it was committed in the course of a breaking and entering can be found to be no more than murder in the second degree.

However liberally we read the colloquy which occurred between the judge and defence counsel after the charge, it cannot fairly be construed as bringing to the attention of the judge the fact that the defendants were objecting to his failure to charge the jury on second degree murder as related to the felony of breaking and entering. We defer further discussion of this issue to part 6 of this opinion.

So far as the charge related to first degree murder as a killing committed during robbery, the instructions were correct. There was evidence from which the jury could infer that the victim was possessed of money which was missing from his person when his body was discovered. From this and other evidence they could conclude that he was killed during a robbery. The Commonwealth argues that, aside from any evidence that money was taken from the person of the victim, the assault upon the victim, together with the evidence that property of the victim's employer was stolen from the vending machines, is in itself evidence of a robbery. Commonwealth v. Novicki, 324 Mass. 461, 87 N.E.2d 1; People v. Niemoth, 409 Ill. 111, 98 N.E.2d 733; State v. Butler, 27 N.J. 560, 143 A.2d 530. We need not consider the validity of this reasoning in view of the fact that the judge charged exclusively with regard to robbery of money of the victim himself and we have determined that the evidence warranted such a charge. Further discussion is also unnecessary in view of the conclusions we have reached in part 6 of this opinion.

The evidence as to the precise cause of death, considered together with the admissions of the various defendants...