Com. v. Rembiszewski

• Decision Date: 15 March 1973
• Parties: COMMONWEALTH v. Joseph P. REMBISZEWSKI, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 919

293 N.E.2d 919

363 Mass. 311

COMMONWEALTH v. Joseph P. REMBISZEWSKI, Jr.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Nov. 6, 1972.

Decided March 15, 1973.

Albert L. Hutton, Jr., Boston, for defendant.

Manuel Morse, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, HENNESSEY, KAPLAN, and WILKINS, JJ.

KAPLAN, Justice.

Joan Rembiszewski was killed in the early morning of October 12, 1969. Her body was found lying beside a station wagon on a cart path in a wooded area off Route 146 in Sutton, Massachsetts.

Her husband, a Worcester school teacher, was indicted for murder and was tried by a jury who found him guilty of murder in the first degree but recommended that the sentence of death be not imposed. Subsequently the defendant made a motion for a new trial which the judge denied after hearing. The case was taken under G.L. c. 278, §§ 33A--33G, and is here upon assignments of error of which all but six have been waived by the defendant. We give here a sketch of so much of the case as is needed to orient the several assignments.

Around 2 A.M. on Sunday, October 12, the defendant was discovered on his hands and knees on the edge of Route 146 about 200 feet from the entrance to the cart path. He had signaled feebly and attracted the attention of two couples passing in a car. They stopped and tried to help the defendant, then flagged another passing car and asked the occupants to summon the police, which they did. The defendant meanwhile, in a seemingly hysterical condition, kept repeating 'Help Joan. They hit her with a hammer,' or words to that effect. The defendant's station wagon and a woman's body were found upon brief search, and the identities of the defendant and the dead woman quickly ascertained.

The police took the defendant to St. Vincent Hospital in Worcester where Dr. Arthur S. Giroux examined him as well as X-rays that were taken of his head. He had complained of facial and head pains and continued in a disturbed condition, lapsing into some incoherence when the recent episode was broached. A police officer known to the defendant attempted to carry on an interrogation or conversation; the officer recited the Miranda formulas although the defendant was not under arrest. Later that morning the defendant was taken from the hospital to the State police barracks at Grafton and interrogated. In the afternoon of the same day the defendant returned to the hospital where he was examined by a Dr. Walsh.

On October 16 the defendant went voluntarily to the office of the State police for interrogation. The police confronted the defendant with facts about his relations with two women which raised the possibility that he might have had a motive or impulsion to become violent toward his wife. It appeared that the defendant had spoken to each of the women of marrying her after divorcing his wife; the second woman, whom he had seen on the day before the murder, may have become possessive even though he indicated at trial that on his part he had not had serious intentions. On October 15, a hammer had been found near the scene which could qualify as the murder weapon. Upon further police investigation, the defendant was charged with the killing.

It was established that on the fatal night the defendant and his wife had dinner at the house of friends in Auburn, Massachusetts. They left in the station wagon about 12:30 A.M. for their home in Grafton.

Beginning at this point, the defendant told a story--his testimony at trial being consistent in outline with his statements to the police, but inconsistent or vaguer in details--which suggested that his wife was murdered by two unidentified clack men who were conceivably intending robbery. ¹ The jury evidently disbelieved the story, for which there was virtually no corroboration, and on the evidence concluded instead that the defendant had committed the crime.

The defendant said that on the drive from Auburn, reaching a point on Grafton Street just west of the Millbury-Grafton town line, he saw a black car ahead, parked at an angle on the road, with a man, apparently burt, lying face down near the car. Intending to offer help, the defendant stopped his car and he and his wife began to alight, whereupon the man stood up and advanced on the defendant, while another man approached his wife brandishing a knife. The defendant described these men as black, wearing black clothes, and at most six feet tall. ² They forced his wife and himself into the front seat of the station wagon and seated themselves in the rear seat. They ordered the defendant, who was at the wheel, to drive around the area on an erratic course. During the drive one of the men told Mrs. Rembiszewski to stop crying and slapped her. Finally the defendant was ordered to pull off Route 146 and go down the cart path. The car was stopped when it reached a clearing alongside a heap of junked car frames, car parts, and debris The defendant and his wife were told to get out of the car. As the defendant stepped out, one of the men pulled him by the shirt and he lost his glasses. He saw his wife being struck with some instrument. ³ Then the defendant ran away, pursued by one of the men who hit him over the head with a stick and knocked him down. He said he remembered nothing from that time until he was discovered on the shoulder of the road. ⁴

For the Commonwealth, one Warner P. Peters testified that on the night of the crime, about 1 A.M., he was traveling in his car with a companion, Ellen T. M. Robert. He saw a station wagon, which he later with difficulty identified as the Rembiszewskis', pass him in a dangerous fashion ⁵ and pull off Route 146 into the path where the body was later found. He swore that a man was driving, a woman was in the passenger's place on the front seat, and the rear seat was empty.

Mrs. Rembiszewski's body was found alongside the station wagon, on the driver's side, head to the front of the car, her legs extended, and clothing in place. According to medical testimony, death had been caused by a number of severe blows with an instrument crushing her forehead and upper face. There was a pool of blood under her head, the clothing about her neck was bloodstained, and a small amount of blood had spattered the lower part of the exterior left front door of the car and the panel below. No blood was found on the defendant's person or clothing. ⁶ After three days search of the area by the police, a ballpeen hammer was found in three inches of water in a swampy spot about 185 feet from the car and some fifty-six feet from a dry place from which it could have been thrown. There was expert opinion that the hammer had been in the water less than a week. A small quantity of human blood was detected where the handle of the hammer met the hammer head. This hammer, according to the doctors, could have been used to inflict the massive lacerations of the victim's head.

1. A police officer testified to events at St. Vincent Hospital to which the defendant was brought from the scene. He said: 'We asked the doctor (Dr. Giroux) is there was any injuries to Mr. Rembiszewski's head, or anything like that, which showed up on the x-rays. He showed us the film; there wasn't. . . . At the time he told him there was no injuries, no visible injuries on him. . . . He told him he hadn't found any injuries at all except what was on the foot.' As indicated, the defendant was present and heard Dr. Giroux's statement. Defence counsel objected and excepted to the allowance of the officer's testimony apparently on the ground that it was hearsay. The judge may have conceived of Dr. Giroux's statement as being accusatory, since it tended to contradict the defendant's claim that he was suffering pains of the head and face, so that the statement could be expected to provoke a reply; thereby the officer's testimony might become admissible as an adoptive admission by silence. Commonwealth v. Boris, 317 Mass. 309, 317, 58 N.E.2d 8; Refrigeration Discount Corp. v. Catino, 330 Mass. 230, 237--238, 112 N.E.2d 790; Commonwealth v. Wallace, 346 Mass. 9, 14, 190 N.E.2d 224. See Wigmore, Evidence (Chadbourn rev.) §§ 1071, 1072; McCormick, Evidence (2d ed.) § 270. But the doctor's remarks referred in large part to the objective results of the X-ray pictures, hence a protest on the defendant's part was not likely because it would seem futile; moreover the defendant was, or was feigning to be, incoherent at the time. Add that Miranda advice had just been given to the defendant that he could case coo erating with the police whenever he chose: this suggests caution in allowing an adverse use of his failure to speak. See McCormick, supra, § 161. Cf. Commonwealth v. McDermott, 123 Mass. 440, 441; Commonwealth v. Burke, 339 Mass. 521, 532, 159 N.E.2d 856; Commonwealth v. McCambridge, 351 Mass. 516, 519--521, 222 N.E.2d 763; Commonwealth v. Freeman, 352 Mass. 556, 561--563, 227 N.E.2d 3; Vitali v. United States, 383 F.2d 121, 123 (1st Cir.). This court's general wariness of adoptive admissions should here be recalled. Refrigeration Discount Corp. v. Catino, supra, 330 Mass. at 237, 112 N.E.2d 790. We think the judge should have rejected the officer's testimony on the particular point. ⁷ Yet considering that nothing was made of the defendant's silence at any later stage of trial, and that Dr. Giroux was himself called and testified fully about his findings, we cannot believe that the error was material. What emerged from Dr. Giroux's testimony was that the X-rays showed no fracture of the skull; that there were visible but minor scratches or abrasions of the face; and that there was a visible puncture of one feel which was cleaned and bandaged at the hospital. ⁸ Thus the defendant's condition as verified was not inconsistent with his protestations, the absence of a fracture of the skull being compatible with a headache and even with a brain concussion, as the doctor himself said.

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