State v. Leavitt

• Decision Date: 16 January 1968
• Docket Number: No. 10848,10848
• Citation: 237 A.2d 309,103 R.I. 273
• Court: Rhode Island Supreme Court
• Parties: STATE v. Barry K. LEAVITT. Ex. &c.

Page 309

237 A.2d 309

103 R.I. 273

STATE v. Barry K. LEAVITT.

Ex. &c. No. 10848.

Supreme Court of Rhode Island.

Jan. 16, 1968.

Herbert F. DeSimone, Atty. Gen., Richard J. Israel, Asst. Atty. Gen, for plaintiff.

F. Lee Bailey, Boston, Mass, Ira L. Schreiber, Raul Lovett, Providence, for defendant.

OPINION.

POWERS, Justice.

This indictment for first degree murder was tried to a superior court justice and a jury which returned a verdict of guilty as charged. After the denial of his motion for a new trial and within the time and manner prescribed by G.L.1956, § 9-24-17, as amended, the defendant duly commenced prosecution of a bill of exceptions, for the purpose of securing in this court a review of assigned errors, allegedly amounting to denials of due process.

A summary of the salient circumstances which led to the arrest, indictment and conviction of defendant is desirable, if not indispensable, to an intelligent comprehension of the issues presented for our consideration.

On December 1, 1963, defendant, his wife and infant son moved into the second floor tenement of a house located at 40 Amsterdam street in Providence. At that time, and for some time prior thereto, the first floor tenement was occupied by Mrs. Elizabeth Pono and her three school-age children of whom Michael, age 12, was the eldest.

The first floor apartment had a front door entrance, which, however, was always locked and not used by the Ponos. They, the Leavitts and a Mrs. D'Arezzo who lived on the third floor, used a common entrance at the rear of the house. This rear door opened into a hallway on the left side of which was the Pono kitchen door, while to the right were the stairs that led to the second and third floor tenements.

At about eight o'clock on the morning of March 23, 1964, defendant, his wife and infant son drove to the home of Mrs. Leavitt's mother at 3 Samoset avenue in Providence, where the boy was left in the care of his grandmother. The defendant then drove his wife to the Rhode Island Hospital where she was employed in office work. About 8:20 they arrived at the hospital where Mrs. Leavitt reported for work and defendant drove back to the Amsterdam street house. He reached there about 8:45 and was observed entering by the postman with whom defendant exchanged greetings.

Mrs. Pono left her home on the morning in question at or about 6:45. A registered nurse, she was in service at the Jane Brown Hospital from seven in the morning until three in the afternoon. Before leaving, she awakened the three children, saw that they were up and preparing for school and gave Michael a five-dollar bill and some change. A Mrs. Schroder who had been regularly engaged to be with the children when Mrs. Pono was not at home had not arrived when Mrs. Pono left for work.

Before leaving she told Michael that he was to go to the store to buy bread and milk. It was for these purchases that she gave him the change. The five-dollar bill was to pay for the children's weekly school lunch tickets.

Mrs. Pono arrived at the hospital on time and after ministering to her patient, called home where she talked with Michael at about 8:15. She learned that he had been to the store, but that Mrs. Schroder had not arrived.

It is further established that Michael duly arrived at school. There he found that he had forgotten to bring the money for the school luncheon tickets. Between 8:45 and 8:50 he was given permission by a school employee in the office of the principal to return home for the school luncheon money with the understanding that he would be back in school by 9 o'clock.

It was defendant's story to the police that shortly after reaching home about 8:45, he was in its kitchen on the second floor when he heard sounds of the downstairs doors being closed. It seemed to him that he first heard the outside door close, followed by the closing of an inside door. Very shortly thereafter he heard the same sounds repeated and in the same order. Immediately thereafter he heard high pitched screaming coming from downstairs. He left his kitchen and started down to investigate. When he reached the second or third step from the bottom, defendant saw a man come out of the Pono kitchen. At the same time defendant lost his footing and fell as the man fled. On getting up he became aware that his left hand was bleeding profusely.

Continuing his statement to the police, defendant related how he attempted to enter the Pono kitchen, but was unable to do so because the door was locked.

The defendant then drove to the house on Samoset avenue. He sketchily related his experience to his mother-in-law and told her to call the Providence police. She did so and defendant spoke with the officer on duty.

Officer Thomas Gibalerio received defendant's call at about 9:18. Acting on defendant's information, officer Gibalerio dispatched a police car and the rescue squad to the Samoset avenue address. At the same time other police officers were sent to the house at 40 Amsterdam street.

Within minutes of defendant's call, a police officer as well as a member of the firemen's rescue squad were at the Samoset avenue address. The defendant received emergency aid and was then taken to the accident room of the Roger Williams General Hospital for more thorough examination and treatment. These ministrations completed, he agreed to accompany the police officers to the central station to assist in the investigation of the assault on defendant by means of questioning and possible identification of his assailant through photographs in the police files.

Meanwhile, about simultaneously with the arrival of the police officer and rescue squad at the Samoset avenue address, sergeant Joseph F. Nerney and two other police officers reached the Amsterdam street house to which they had been directed by officer Gibalerio. They found the front door locked, but the door to the rear entrance ajar. Entering, they observed a substance resembling blood on the floor of the hallway and on the stairs leading up to the second floor.

They found the door to the Pono kitchen closed but not locked. Inside the kitchen, the three officers discovered the body of Michael Pono, fully clothed, lying on the floor. The boy's jacket and trousers appeared to be bloodstained and torn. There was also evidence of blood on the kitchen floor, walls and on a telephone stand in one of the bedrooms.

Immediately following these discoveries, sergeant Nerney called police headquarters on the car radio, reported on the conditions found and requested assistance. In response to this call, captain John Eddy, commander of the detective division, accompanied by lieutenant Vincent J. O'Connell, left headquarters at approximately 9:25. Also responding were lieutenant Stanley Andrukiewicz, several detectives, technicians from the bureau of criminal identification, and Earl J. Higham, Jr., of the rescue squad. He felt the boy's wrist, found no pulse, but called the Rhode Island Hospital. Doctor Brian C. Carroll, connected with the accident room of that hospital, responded to the call and pronounced the boy dead.

Doctor Joseph A. Palumbo, a county medical examiner, arrived at the Amsterdam street house about 10:30. On turning the body over, he noticed on the floor what he described as an 'elongated washer' having the consistency of leather. Near the washer there was a basket of clean clothing, some of which had spilled over onto the floor. Simultaneously with the finding of the washer, Dr. Palumbo and the police noticed a man's wrist watch partially concealed in the clothing on the floor. The watch had a metal expansion bracelet which had become separated from the watch at one end. The watch and bracelet, as well as the washer, were turned over to captain Eddy who was present at their discovery.

His investigation at the scene completed, Dr. Palumbo ordered the body taken to the state morgue where an autopsy was performed by Dr. Harold Beddoe, the state medical examiner. It disclosed that the boy had sustained fourteen stab wounds, caused by a pointed, sharp-edged instrument. The heart and lungs had been penetrated in the stabbing and Dr. Beddoe attributed death to hemorrhage and shock resulting from multiple stab wounds.

During the investigation conducted by Dr. Palumbo and the police in the Pono kitchen, lieutenant O'Connell learned that another victim of the stabbing had gone from the Amsterdam street house to a house at 3 Samoset avenue where the report to the police had originated. About ten minutes to eleven, lieutenant O'Connell left the Amsterdam street house and went to the 3 Samoset avenue address. There he talked with two police officers, who pointed out the car driven by the informant from the Amsterdam street house to 3 Samoset avenue. Lieutenant O'Connell ordered the car towed to the garage at the police station, as a matter of policy, not knowing to what extent the car might be significant.

The lieutenant then went to police headquarters where he learned from captain Eddy that the informant's name was Leavitt and that he was then being questioned at the station regarding the reported stabbing. Joining in the questioning of Leavitt, lieutenant O'Connell learned that he was claiming not to have entered the Pono kitchen because the door was locked. Knowing this to be contrary to the fact that sergeant Nerney and his men had found the kitchen door unlocked, lieutenant O'Connell concluded that Leavitt was a prime suspect. Leaving defendant momentarily, he went to captain Eddy's office, picked up the watch and returned to the room where defendant was being questioned.

At this point in the presentation of the state's case to the jury, lieutenant O'Connell testified that on returning from captain Eddy's office, he advised defendant that he was under no obligation to answer any further questions; that anything he did say from there on could be used in evidence against him; and that he could have the assistance of c...