Appendix — Donnelly v. DeChristoforo

Supreme Court brief1974

Ask Donna

What actually matters in this document.

Text

LIBRARY.

SUPREME COURT, U. &

APPENDIX

In the

Supreme Court of the United States

OctoBER TERM, 1972

ROBERT H. DONNELLY,

PETITIONER,

Vv.

BENJAMIN A. DECHRISTOFORO,

RESPONDENT.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Petition for Writ of Certiorari Filed May 23, 1973

Certiorari Granted October 13, 1973

TABLE OF CONTENTS

Page

PROCEEDINGS IN MasSACHUSETTS SUPERIOR CouRT

Docket Entries of the Massachusetts Superior Court... 1

Indictment ©... 0.2. eee 10

Indictment .......0 0.0.00. 11

Excerpts from State Trial Transcript

Testimony of :

Patrick Carr, ................ Direct .......... 13

Cross .......... 25

George Katsas, ............ Direct .......... 33

Cross .......... 41

John P. Brady, .............. Direct .......... 46

Cross .......... 60

Redirect. ...... 61

William Modugno,........... Direct ......... 61

Walter Dello Russo,......._.. Direct .......... 65

Cross .......... 69

Susan Morrison, ............ Direct .......... 70

OPOOR: ices ne 72

William F. Cummings, ...... Direct .......... 73

Cross .......... 84

Joseph A. Sarno,....._....... Direct .......... 85

OPOGS. os six 87

Philip Anthony LaMonaca, ... Direct. ......... 88

| Cross .......... 89

| Walter J. Lindsay, ........... Direct... ..... 91

William Petrigno, ..... venues Direct .......... 96

| gohn. G,. Traut, ...224.%i40005 Direct .......... 97

| Closing Argument of Mr. Smith .................. 99

Closing Argument of Mr. Irwin................... 119

Defendant’s Unsworn Statement ................ 140

Charge to Jury .......................000.0005. 142

Defendant’s Request for Instructions ............... 145

a a a a

Ptres. nm * RRR EOE MET SCENE IE EOE GE CRT EERE

OE PAO ee A ates

il Table of Contents

Page

Claim of Appeal ......-.-------:srcerrrr 146

Motion for New Trial .......--------s sc 146

Defendant’s Assignment of Errors ....------) 148

PROCEEDINGS IN THE SUPREME JvpricraL CourT FOR THE

ComMMONWEALTH OF MassaCHUSETTS

Opinion, December 7, sy 6 cc 149

ProceEpINcs IN THE Unitep STATES District CovuRT

Docket Entries .......-------e cc crcct 177

Petition for Writ of Habeas Corpus ...-.--- 178

Retour. .<<ccucscuw ceases pee eeeret eee sta ate nets 184

Motion to Dismiss .......----------s stn 185

Magistrate’s Memorandum, August 28,1972 .......... 186

Stenographie Transcript of Hearing .....--------°: 196

Order Denying Petition for Writ of Habeas Corpus... 231

Certificate of Probable Cause ....--------- 5-00 232

Notice of Appeal ......0-.-----2 scree rect 233

PROCEEDINGS IN THE UNITED STATES Court oF APPEALS

Docket Entries ........---::- sect rer 233

Stipulation of Counsel... 6-5 235

QpiON, «ceca ges y cba espana tg ete tens seer eee 236

Judgment .. .....sssees esas ee venwesseereseee teres 244

COMMONWEALTH OF MASSACHUSETTS

SUPERIOR COURT

No. 77689

COMMONWEALTH

BENJAMIN A. DeCHRISTOFORO

DOCKET ENTRIES

Charge—Ind.—Murder

Atty. for Deft.

PAUL T. SMITH, ESQ.

89 State Street

Boston, Mass.

No. of

Paper Date of Entry Docket Entries

1. 1967, May 10 Indictment.

1967, May 10 Indictment ordered recorded and ser-

vice ordered to be made upon defend-

ant forthwith by order of Lappin, J.

Notice sent to Chief Justice, Attorney

General and Sheriff.

2. 1967, May 10 Certificate of Notice to the Depart-

ment of Mental Health. .

3. 1967, May 12 Request for Capias and Capias issued

to the District Attorney.

4. 1968, Nov. 20 Return of service on defendant.

5. 1968, Nov. 20 Capias returned with service endorsed

thereon. |

1968, Nov. 20 Defendant is arraigned and stands

Mute.

A Plea of Not Guilty is entered by

order of the Court. Defendant is ord-

aha le. Saath tet a

A Sin ee ie Oia) oo OR eb

1968,

1969,

. 10

ered held without bail or mainprise.

Mittimus issued.

Thirty-five days allowed for the filing

of Special Pleas.

Mittimus—To Common Jail returned

with service endorsed thereon.

Defendant’s Motion for Inspection of

Grand Jury Minutes.

Defendant’s Motion to Inspect and

Copy Police Department Reports.

Defendant’s Motion for Exculpatory

Material.

Defendant’s Motion for Copies of Sci-

entific Reports.

Defendant’s Motion to Inspect and

copy Statements of the Defendant.

Defendant’s Motion for Names of

Witnesses.

Defendant’s Motion for Particulars.

Defendant’s Motion for Autopsy Re-

port.

Defendant’s Motion for Severance.

Defendant’s Motion (see #15) After

hearing, motion denied. Defendant’s

exceptions saved. By the Court,

Spring, J.

Continued until April 22, 1969 for

Trial.

Defendant remanded.

Habeas Corpus to receive issued.

Defendant’s Motion (see #8) After

hearing, motion allowed. By the

Court, Good, J.

Defendant’s Motion (see #9) After

hearing, motion allowed. By the

Court, Good, J.

16.

17.

18.

21.

ERLE, eae: a

1969, Mar.

1969, Apr.

Defendant’s Motion (see #10) After

hearing, motion allowed. By the

Court, Good, J.

Defendant’s Motion (see #11) After

hearing, motion allowed. By the

Court, Good, J.

Defendant’s Motion (see #12) After

hearing, motion allowed. By the

Court, Good, J.

Defendant’s Motion (see #13) After

hearing, motion allowed. By the

Court, Good, J.

Commonwealth to File answers with-

in Ten Days. By the Court, Good, J.

Defendant’s Motion (see #14) After

hearing, motion allowed. By the

Court, Good, J.

Habeas Corpus returned’ with service

endorsed thereon.

Defendant’s Motion to Suppress filed

late by leave of Court. By the Court,

Good, J.

Defendant’s! Motion for Severance,

Number Two filed late by leave of

Court. By the Court, Good, J.

Commonwealth’s Answers to Bill of

Particulars.

Commonwealth’s Motion for Leave to

Proceed with Trial under General

Laws (Ter. Ed.) Chapter 277, Sec-

tion 57A.

Continued until April 18, 1969.

Habeas Corpus to receive issued.

REPORTING EVIDENCE: under

the provisions of General Laws (Ter.

Ed.) Chapter 278, Section 33A to G

inclusive, as amended, the Superior

Court appoints,

Santo J. Aurelio, Stenographer

I RE OEMRLIET 9S

25 LPOG SS

22.

24. 1969, Apr.

23.

1969, Apr.

1969,

Apr.

CE RBs Car

to take the evidence on Pre-Trial Mo-

tions. By the Court, Sullivan, J.

Defendant’s Motion (see #7) denied

without prejudice. By the Court, Sul-

livan, J.

Defendant’s Motion (see #17) After

hearing, motion denied. Defendant’s

exceptions saved. By the Court, Sul-

livan, J.

Defendant’s Motion for Severance

Number Two (see #18) motion de-

nied. Defendant’s exceptions saved.

By the Court, Sullivan, J.

Commonwealth’s motion (see #20) al-

lowed. Defendant’s exceptions saved.

By the Court, Sullivan, J.

Defendant’s Motion to Strike Certain

Answers to Bill of Particulars and

for Further Answers. Motion allowed

as per agreement in Open Court. Dis-

trict Attorney to make necessary

changes upon his original Answer to

the Defendant’s Bill of Particulars.

By the Court, Sullivan, J.

Habeas Corpus returned with service

endorsed thereon.

Defendant remanded.

Continued until April 22, 1969.

REPORTING EVIDENCE: under

the provisions of General Laws (Ter.

Ed.) Chapter 278, Section 33A to H

inclusive, as amended, the Superior

Court appoints,

Alice McDonald—Santo J. Aurelio,

Stenographers Ps

to take the evidence. By the Court,

26.

27.

28.

29.

30.

1969, Apr.

1969,

Apr.

. 28

Sullivan, J. 1969, Apr. 22 Certificate

in Re; Jurors. (see #43 case +77686)

Questions to Jurors, filed in Court.

By the Court, Sullivan, J. (see #44

case #77686)

Defendant’s Challenge to the Petit

Jury, filed in Court. Defendant’s

Challenge denied. Exceptions saved.

By the Court, Sullivan, J.

Defendant’s Motion for Directed Ver-

dict, filed in Court and after hearing,

Motion denied. Defendant’s excep-

tions saved. By the Court, Sullivan, J.

Defendant committed into the custody

of the Sheriff of Suffolk County, Mit-

timus issued.

Request for writ of Habeas Corpus

and Habeas Corpus to receive issued

to the Keeper of the Charles Street

Jail.

Habeas Corpus returned with service

endorsed thereon.

Defendant’s Request for Instructions

to the Jury, filed in Court. Defendant

remanded. |

Request for writ of Habeas Corpus

and Habeas Corpus to receiveissued

to the Keeper of the Charles Street

Jail.

Custody of Sheriff of Suffolk County

is revoked. Jurors — Burton F. Reyn-

olds and Donald N. Goldthwaite were

excused from the panel after the

Judges charge and before delibera-

tion in accordance with Chapter 234,

PAG IEE OTP EGET LP

31.

32.

36.

1969, Apr.

1969, May

Section 26B of the General Laws, as

amended.

Question from Jury, filed in Court.

VERDICT—GUILTY OF MURDER

IN THE FIRST DEGREE with rec-

ommendation that death penalty not

be imposed.

Defendant’s Waiver of Mental Exami-

nation.

COMMONWEALTH MOVES FOR

SENTENCE.

SENTENCE—Massachusetts Correc-

tional Institution Walpole for a Term

of LIFE. This sentence is deemed by

the Court to have commenced on Nov-

ember 20, 1968. The defendant having

been in confinement one hundred and

sixty-two days.

Mittimus issued. By the Court, Sul-

livan, J. -

Copy of indictment mailed to Super-

intendent at Massachusetts Correc-

tional Institution, Walpole.

Mittimus to Massachusetts Correc-

tional Institution, Walpole, returned

with service endorsed thereon.

Defendant’s CLAIM OF APPEAL.

Notice mailed to Judge Sullivan and

District Attorney.

Defendant’s Motion for NEW TRIAL

and Affidavit. Copy of Motion mailed

to Judge Sullivan.

ORDER: it is hereby ordered that

Santo J. Aurelio, Stenographer desig-

nated by the Court prepare four

re alana . PDL, eer ore,

37.

41.

42.

1969, May

1969, July

copies of the Transcript of Testimony

(on Pre-Trial Motions) heard on

April 18, 1969 under the provisions

of Chapter 278, Section 33A to H of

the General Laws. By the Court,

Sullivan, J.

ORDER: it is hereby ordered that

Alice C. MeDonald and Santo J. Au-

relio, Stenographers designated by

the Court prepare two copies of the

Transcript of Testimony, under the

provisions of Chapter 278, Section

33A to H of the General Laws. By

the Court, Sullivan, J.

Request for writ of Habeas Corpus,

Habeas Corpus to receive issued to

the Superintendent, Massachusetts

Correctional Institution, Walpole.

Request for writ of Habeas Cerpus

and Habeas Corpus to receive issued

to the Superintendent, Massachusetts

Correctional Institution, Walpole.

Request for writ of Habeas Corpus

and Habeas Corpus to receive issued

to the Superintendent, Massachusetts

Correctional Institution, Walpole.

Mittimus committing defendant into

custody of Sheriff of Suffolk County

returned with service endorsed there-

on.

Habeas Corpus returned with service

endorsed thereon.

Defendant’s Motion (see #35) con-

tinued to September 1969 list for

hearing.

2. TP RNARRS n Tgt

47.

49.

1969, July 18

1969, July 22

1969, Oct.

1969, Nov.

Defendant remanded.

Habeas Corpus returned without ser-

vice.

Request for writ of Habeas Corpus

and Habeas Corpus to receive issued

to the Superintendent of the Mass-

achusetts Correctional Institution,

Walpole.

Request for Writ of Habeas Corpus

and Habeas Corpus to receive issued

to the Superintendent of the Mass-

achusetts Correctional Institution,

Walpole.

Habeas Corpus returned without ser-

vice.

Request for writ of Habeas Corpus

and Habeas Corpus to receive issued

to the Superintendent of the Mass-

achusetts Correctional Institution,

Walpole.

Habeas Corpus returned without ser-

vice.

Reporting Evidence: under the pro-

visions of General Laws (Ter. Ed.)

Chapter 278, Section 33A to @ inclu-

sive, as amended, the Superior Court

appoints,

Mary C. Haran, Stenographer

to take the evidence. (On Motion for

New Trial.) (Sullivan, J.)

Defendant’s Motion (see #35) after

hearing, motion taken under advise-

ment.

Defendant remanded.

Habeas Corpus returned with service

endorsed thereon.

58.

59.

1969, Dee. 2

1969, Dee. 8

1969, Dee. 9

1969, Dee. 12

1970, Feb. 25

Defendant’s Motion for New Trial

(see #35) after examination of Affi-

davits and after hearing the Motion

for New Trial is denied. By the Court,

Sullivan, J.

Notice mailed to Attorney and deliv-

ered to District Attorney.

Motion to Amend Defendant’s Motion

for New Trial and Affidavit, after

hearing Motion denied. By the Court,

Sullivan, J.

Affidavit of Fred DeChristoforo.

Affidavit of Carmen Gagliardi.

Affidavit of Joseph Carl DiFronzo.

Affidavit of Paul T. Smith.

Defendant’s Claim of Exception to

the Denial of Motion for New Trial.

Notice mailed to Judge Sullivan and

delivered to District Attorney.

Defendant’s Claim of Appeal to the

denial of his Motion for New Trial.

Notice mailed to Judge Sullivan and

delivered to District Attorney.

ORDER: it is hereby ordered that

Mary C. Haran, Stenographer desig-

nated by the Court prepare four

copies of the Transcript of Testimony

(on Motion for New Trial) under the

provisions of Chapter 278, Section

33A-33H.

Two sets, one volume in each set of

the ‘‘Transcript of Evidence’’ (on

Pre-Trial Motions) delivered to the

office of the Clerk of Courts this day.

61.

62.

63.

MIDDLESEX, TO WIT:

1970, Feb. 25

1970, May 21

1970, May 26

Two sets, seven volumes in each set

of the ‘‘Transcript of Evidence’’

delivered to the office of the Clerk of

Courts this day.

Two sets, one volume in each set of

the ‘‘Transcript of Evidence’’ (Hear-

ing on Motion for New Trial) deliv-

ered to the office of the Clerk of

Courts this day.

Summary of the Record.

Written notice sent to Counsel of

Record and District Attorney.

Certificate of Calvin A. Burger, As-

sistant Clerk of the Superior Court of

the Completion of the Summary of

the Record and notice sent to Coun-

sel of Record and District Attorney.

Defendant’s Assignment of Errors.

COMMONWEALTH OF MASSACHUSETTS

Superior Court

[Title Omitted in Printing]

INDICTMENT

Docket Number 77689

COMMONWEALTH

BENJAMIN A. DE CHRISTOFORO

On the eighth day of the May Sitting, A. D., 1967, the

Grand Jury for the County of Middlesex returned the

following:

COMMONWEALTH OF MASSACHUSETTS

At the SUPERIOR COURT, begun and holden at the

CITY OF CAMBRIDGE, within and for the County of

Middlesex, on the first Monday of May in the year of our

Lord one thousand nine hundred and sixty-seven

THE JURORS for the COMMONWEALTH OF MAS-

SACHUSETTS on their oath present, That Benjamin A.

DeChristoforo on the eighteenth day of April in the year

of our Lord one thousand nine hunderd and sixty-seven

at Medford, in the County of Middlesex aforesaid, did

assault and beat one Joseph F. Lanzi, with intent to

kill and murder him, and by such assault and beating

did kill and murder Joseph F. Lanzi.

Against the peace of said Commonwealth, and contrary

to the form of the statute in such case made and pro-

vided.

A true bill.

JOHN F. GRIFFIN

Foreman of the Grand Jury.

JOHN J. DRONEY

District Attorney

COMMONWEALTH OF MASSACHUSETTS

Superior Court

[Title Omitted in Printing]

INDICTMENT

Docket Number 77690

COMMONWEALTH

vs.

BENJAMIN A. DE CHRISTOFORO

On the eighth day of the May Sitting, A. D., 1967, the

Grand Jury for the County of Middlesex returned the

following:

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, TO WIT:

At the SUPERIOR COURT, begun and holden at the

CITY OF CAMBRIDGE, within and for the County of

, Middlesex, for the transaction of Criminal Business on

the first Monday of May in the year of our Lord one

thousand nine hundred and sixty-seven

— e

THE JURORS for the COMMONWEALTH OF MAS-

SACHUSETTS on their oath present, That Benjamin A.

DeChristoforo on the eighteenth day of April in the year

of our Lord one thousand nine hundred and sixty-seven

at Medford, in the County of Middlesex aforesaid, did

unlawfully carry under his control in a vehicle a firearm

as defined in section one hundred and twenty-one of

chapter one hundred and forty, without authority and

permission so to do.

Second Count

AND THE JURORS aforesaid for the ComMoNnWEALTH

oF MassacHusETts on their oath aforesaid, do further

present That Benjamin A. DeChristoforo on the eighteenth

day of April in the year of our Lord one thousand nine

hundred and sixty-seven at Medford, in the County of

Middlesex aforesaid, did unlawfully carry’ under his con-

trol in a vehicle a firearm as defined in section one hun-

dred and twenty-one of chapter one hundred and forty,

without authority and permission so to do.

Against the peace of said Commonwealth, and contrary

to the form of the statute in such case made and pro-

vided.

A true bill.

JOHN F. GRIFFIN

Foreman of the Grand Jury.

JOHN J. DRONEY

District Attorney

EAN ATT LRN ELIT OLN EN LIN TT VE NER A eee cena

COMMONWEALTH OF MASSACHUSETTS

Superior Court

[Title Omitted in Printing]

[EXCERPTS FROM STATE TRIAL TRANSCRIPTS |

[333] | Patrick Carr, Sworn

Direct Examination by Mr. Irwin:

Q. Sir, would you identify yourself please. A. Patrick

J. Carr, Police officer, City of Medford.

[334] The Court: Speak up, Officer Carr. Please speak

into the microphone so you can be heard by everyone.

Q. Would you tell us your home address, sir. A. 54

Everett Street, Medford, Mass.

Q. And, how long have you been a police officer in the

City of Medford? A. Eight years, and ten month.

Q. Directing your attention back to the early morning

of April 18, 1967, were you on duty that morning? A. Yes,

I was.

Q. What were your duties that particular morning and

what time did you commence them? A. I was assigned

to Sector car, Sector 1. I started working that morning

at 12:15 a.m.

Q. And, you were operating a cruiser, were you? A. Yes,

I was.

Q. Was there somebody in that cruiser with you? A. Yes,

there was.

Q. Who was that? <A. Officer Brady.

Q. Officer Carr, at sometime that morning, April 18,

1967, did your duties take you down Middlesex [335]

Avenue in Medford in the direction of Malden? A. Yes,

they did.

Q. Could you tell the jury, if you would, please, ap-

proximately what time that was? A. This was 3:55 a.m.

on the morning of Tuesday, April 18, 1967.

Q. Where were you on Middlesex Avenue that morning?

ee EER OEP Ren SUEDE ¥ negnerpens PEE ORR DOR ROO SLES

be ad

al a A ee ee ee

What were you doing on Middlesex Avenue? A. I was

checking buildings and patrolling the area.

Q. And, would you take take a look behind you, Officer,

over your left shoulder and take a look at that particular

map behind you which is marked already as Exhibit 1 in

this trial, and see whether or not you are familiar with

that? <A. Yes, sir, lam. ;

Q. Now, can you take that pointer that’s in_front of

you on the stand there, keeping your voice up, and tell

the jury if you would please where, you were patrolling?

A. I was patrolling this area in here. This is Middlesex

Avenue, up in here; down this section here are businesses.

At 3:55 that morning, after checking this area, I continued

on Middlesex [336] Avenue, into Malden, on Highland

Avenue. I proceeded up to this intersection, Medford

Street, which is in Malden. I made a left turn, went up

Medford Street, to get back over to the City of Medford.

At this point, approximately this point, a Ford, color

red, passed us in the opposite direction. I looked at this

car; I noticed there were four men in this car, as it

passed. I proceeded up a little further and I looked back

and I could see this car make a right turn onto Highland

Avenue.

I then turned the cruiser around, proceeded back in the

same direction. I made a right turn on Highland Avenue.

As I made the turn, I could see the taillights of this car

down here at the bend in this road.

Q. Now, Officer, before you get down to that point:

You say at some point up here you turned your cruiser

around after you spotted this car? A. Yes, sir.

Q. What was it that you observed about the other car

that made you turn your cruiser around? [337] A. There

were four men in this car; they appeared to be young,

and because of the hour of the morning they aroused my

suspicions.

AEP LO AE SDE OE MRE Kee QPP: BI a rT ROR St A pcre

Q. With reference to the traffic controls there, could you

tell us what they were that night? A. Yes, sir. It was

a flashing red light.

Q. Was that with reference to traffic on Medford Street?

A. Yes, sir.

Q. Coming into Highland Avenue? A. Yes, sir.

Q. Did you observe whether or not this particular ve-

hicle stopped for that flashing red light? A. It did not.

Q, Now, when you got back to the corner and took a

right on Highland Avenue, would you tell the jury what

you were able to observe, if anything? A. After I made

the right turn onto Highland Avenue, I observed taillights

of this car down here at the bend in the road. I proceeded

down Highland Avenue. I accelerated up to sixty miles

an hour. When I made the bend at the turn, right here,

there were no automobiles coming or going in either

[338] direction. I proceeded on up to this point where I

noticed tire tracks in the wet pavement.

I continued passed Third Street. This is where I saw

these tire tracks leading from Middlesex Avenue onto

Third Street.

Q. Officer Carr, would you stand back a little bit more

so counsel can see where you are pointing to, please.

A. I continued passed Third Street. I made a left turn

down Fourth, where about half-way down I shut the lights

out; continued on down. A little further down I observed

this Ford pass Fourth Street on Cradock Avenue with

its lights out.

I continued on down, made a right turn onto Cradock

Avenue, and a right onto Fifth Street. As I made the

right turn I saw this car stop in front of No. 6 Fifth Street.

The car was heading in this direction, it was facing Mid-

dlesex Avenue, parked on the left-hand side of the street.

I pulled alongside this car, just a little past it and

stopped the cruiser.

PRY a Se RR OY AUT FA Pe ea» “ * RADE RL RE EE

0 TE EFS

Q. Now, would you turn back here so we can hear you

[339] in the microphone.

When you pulled abreast of that car, what did you do

then, Officer Carr? A. I stepped out of the cruiser with

my partner, Officer Brady.

Q. Would you tell the jury, if you would, please, what

the weather was like that night? A. It was raining very

heavy.

Q. What were you wearing? A. I was wearing my

dress blue uniform.

Q. And, when you got out of the car were you aware

at that time where this other car was parked with re-

ference to numbers on Fifth Street? A. Yes, sir.

Q. Where was it parked? A. It was parked in front

of No. 6 Fifth Street.

Q. And, as you got out of the cruiser, with your part-

ner, John Brady, would you tell the jury if you would,

please, what you.observed when you got out of the cruiser.

A. As I stepped out of the cruiser, the operator of this

car, this Ford, stepped out onto the sidewalk.

[340] Q. Did you see what door he got out of? A. Yes,

sir, he stepped out of the left front door, the driver’s

side of the car.

Q. Did you recognize this particular man? A. Yes, sir,

I did.

Q. Did you know him by name? A. Yes, sir, I did.

Q. Who was he? A. Carmen Gagliardi.

Q. And, is that Carmen Gagliardi in the courtroom

today? A. Yes, sir, he is.

Q. Would you indicate where he is seated in the court-

room. A. He is sitting in the dock to my left.

Mr. Irwin: May the record indicate that the witness

has identified the defendant Gagliardi.

Q. Now, at this point was there anybody else out of

thatcar? A. No, sir.

NA NE ROIS ONE RRP RENTS 9g The NOY ARON NMP OOO mage Crap yr prene PRI TE 98 FR ery

1 ROR RI pR RET 1

Q. Did you then have some conversation with the de-

fendant Gagliardi? <A. Yes, sir, I did.

* * *

[342] Q. At that time, were you under the impression —

Mr. Balliro: I object.

Q. Did you know where Mr. Gagliardi lived? A. I knew

he lived in the area but I didn’t know which house.

Q. And, as a result of your investigation did you find

that he actually lived at No. 11 Fifth Street? A. Yes, sir.

Q. Now after you saw Gagliardi go up to No. 9 Fifth

Street, what did you do then, Officer Carr? A. I re-

turned to the cruiser. I opened the door and I reached

in and I took out a light, what we call a wheat lamp. It’s a

light run on a battery, has a lens of four or five inches in

diameter.

Q. It is called a wheat lamp? A. A wheat lamp.

Q. W-h-e-a-t? A. Yes, sir.

[343] Q. All right. A. I then turned and I shined the

light into the front of the car, and I saw a man in the

front of the car with his head slumped bacék and to the

left. He appeared to me to be asleep.

Q. After making this observation what did you do?

A. I directed my attention to the two men in the back of

the car. I asked these men if they would step out of the

car.

Q. Where were you standing where you asked these

two men to step out of the car? A. At the side of the

Ford, the left side, and at the rear of the police car.

Q. Were you in the street? A. Yes, sir, I was.

Q. And, which way was the Ford headed with reference to

Middlesex Avenue? A. The Ford was heading in the di-

rection of Middlesex Avenue. Actually, the Ford was

parked on the wrong side of the street.

Q. Headed toward Middlesex Avenue? A. Yes, sir.

Q. Now, you were standing in the street when you spoke

to these two men in the back?

we ol Pm eccnenmnnnncnennenenmer IE ch © NT ORIIN BARE TINE De OF io wont OSMOSIS HOE T IR

[356] (The Court came in at 11:45 a.m,/* The jury is now

present. Both defendants were present.)

The Court: All right, Mr. Irwin.

Q. (Mr. Irwin, continuing direct) Officer Carr, I think

we were at the point where you went to the rear door

of this car after having got a wheat lamp, what you de-

scribed as a wheat lamp, and you went to the rear, right

rear door of this car where the window was turned down,

and you spoke to two people in it, is that right? <A. Yes,

sir.

Q. And those two people were who? A. Mr. Frank

Oreto and Mr. Benjamin DeChristoforo.

Q. All right. Is Mr. DeChristoforo here in the court-

room? A. Yes, he is.

Q. Would you indicate where he is seated? A. Yes, He

is seated next to Mr. Gagliardi in the box (indicating),

to my right.

Q. All right.

Mr. Irwin: I would like the record to show that he

identified him in the courtroom, [357] the defendant De-

Christoforo.

The Court: It may so reflect.

Q. Now, did these men get out of the car at your re-

quest? A. Yes, sir.

Q. All right. And would you explain to the jury the

manner in which they got out of the car? Who came first?

A. Both men left the car and got out of the car from

the right rear door. Mr. Frank Oreto was the first one

out of the car, followed by Mr. Benjamin DeChristoforo

on the same side of the car.

Q. All right. Now, I think in your testimony with re-

ference to Mr. Gagliardi you indicated that you knew

Mr. Gagliardi before that night, is that right? A. Yes,

sir.

wth ROGAN oR Cs ere ra” sea

YR PRATT RO TRU NEN RREY DH He NRT ADT MTEC ROR Ww 44

Q. Did you know either one of these two men by name?

A. In the back of the car?

Q. Yes. A. No, sir.

Q. Now, at this point when they got out of the car,

did you have some conversation with Mr. DeChristoforo

or Mr. Oreto? [358] A. Yes, I did.

Q. At this point Mr. Gagliardi had walked off in the

direction of 9 — A. Yes, he had.

Q. Would you tell the jury, if you would, please, what

conversation you had with Oreto and with DeChristoforo

at that point?

Mr. Balliro: My objection, if Your Honor please.

The Court: Your objection is overruled and your rights

are saved.

Exception No. 52

Mr. Balliro: I would ask Your Honor for limiting in-

structions with regard to this testimony.

The Court: I decline to give limiting instructions.

Mr. Balliro: My exception.

Exception No. 53

A. I asked both the men who got out of the back of

this car for identification. They said they had none. I

asked them who they were. Mr. Frank Oreto gave me a

name at the time.

Q. What did he tell you his name was? A. He said his

name was Joseph Rigo from Boston. [359] I asked Mr.

DeChristoforo who he was. He gave me a name.

Q. Do you remember what name it was that he gave

you? A. No, sir, I don’t.

Q. All right. Do you remember whether it was De-

Chistoforo or not? A. No. It wasn’t DeChristoforo.

Q. And you’re sure of that? <A. Yes, sir.

Q. All right. What else did you say to these two at that

time, if anything? A. I asked who the man in the front

seat was.

]

y : —_ . — savers RAY FE PRI OE RE

a FEV aR WOMACNTE EE neon CORAM mye ° , eames .

Q. Now, did either one of those gentlemen answer that?

A. Yes, sir.

Q. Well, — A. Mr. DeChristforo answered.

Q. And what did he say to you in reply to your question

of who the man in the front seat wast A. He said his

name was Johnny Simeone from Boston. In regards to

what had happened to him, his reply was that they were

involved in a fight in a joint in Revere and that he would

be all right. They were going to take him to a hospital.

([360] Q. All right. A. And that he wished to join Mr.

Gagliardi at his house, and he walked away in the same

direction that Mr. Gagliardi did.

Q. All right. Now, would you tell us, if you would,

please, what you did after Mr. DeChristoforo walked

away in the direction that you saw Carmen Gagliardi go?

What did you do next? A. I directed my attention back

to the third man called Frank Oreto, and with my partner,

John Brady, we walked to the other side of this car,

up onto the sidewalk. I shined the light into the rear

of this car, and the light hit a small derringer on the

rear floor of this car. This gun was on the floor behind

the driver’s seat. I moved the light around and I saw

another gun on the seat where Mr. Frank Oreto had been

sitting. I opened the door, removed both guns, and I asked

Mr. Oreto if either of these guns belonged to him, and

he said: no, I took the guns and I placed them in the

cruiser and I returned. I opened the driver’s door of this

car and I went inside. I leaned inside and I examined the

man in the front seat, who is now known to us as [361]

Joseph Lanzi.

I took my left hand and [| put it on the man’s chest,

He was not breathing. I removed my hand and there was

blood on it. In my opinion at this time this man appeared

to be dead to me. I turned to my partner, Officer Brady,

and I asked John Brady if he would examine this man

BAER SOE TN TING SEED SL RICE :

himself, which he did. He went into the car and he come

out and he said in his opinion he thought the man was

dead.

We then placed the remaining party, Mr. Frank Oreto,

under arrest.

Q. All right. Did you have an occasion at this point,

Officer Carr, to communicate with the Medford Police

Station as a result of what you found then? A. Yes.

Q. All right. And at some time, in response to that

communication, did other police officers come to the scene?

A. Yes, sir, they did.

Q. All right. And you indicated that you took the re-

maining person known to you as Frank Oreto, to the

Medford Police Station? [362] A. Yes, sir.

Q. All right. Up until that time, he had identified him-

self to you as Joseph Rigo, is that correct? A. Yes, sir.

Q. I show you this picture. Would you look at that

photograph, if you would, Officer? Do you recognize the

person depicted in that photograph? A. I do.

Q. All right. And do you recognize who he ist A. Yes,

sir, I do.

Q. Will you tell us who he is, please? A. This is a

picture of Frank Oreto.

Q. All right. And is that the man that you put under

arrest there that morning? A. Yes, sir, it is.

Q. All right. And does that fairly represent, Officer

Carr, the way he appeared in the police station after you

took him to the police station? A. He was wearing dif-

ferent clothes.

Q. All right. So this photograph shows him after some

of his clothing had been removed? A. Yes.

Q. What type of clothing had he worn? A. He had

worn a topcoat.

= = =

([366] Mr. Balliro: I object.

z= we "

The Court: Well, is Oreto going to take the stand?

Mr. Irwin: I don’t propose to call Mr. Oreto. The de-

fendants may.

Mr. Balliro: I object to that statement.

Mr. Smith: Yes.

The Court: Well,—

Mr. Balliro: The Commonwealth has the burden of

proof, I might say, in this case.

Mr. Irwin: Weare fully aware of what our burden is.

Mr. Balliro: I don’t want to get into colloquy.

The Court: Come over here.

(Bench conference, during which the following tran-

spired :)

The Court: Mr. Irwin, I would like to hear you in

support of your question. Oreto is not here on trial.

Mr. Irwin: I understand that, if Your Honor please.

The Court: His case has been disposed of.

=. * -

[380] (William Cummings withdrew from the court-

room.)

Q. Officer Carr, I draw your attention to this particular

weapon here which is for the purpose of the record a

Rohm derringer, two shot pistol.

Have you ever seen that weapon before? A. Yes, I have.

Q. Where? A. On the rear floor of a 1967 Ford G73-

751. This car was parked on Fifth Street of which the

defendants Mr. Gagliardi and DeChristoforo got out.

Q. You say the gun was on the rear floor. <A. Yes, it

was.

Q. Can you tell the jury where on the rear floor? A. On

the rear floor behind the driver, the driver’s seat.

Q. And, I take it then that would be in front of the left

passenger side of the rear, is that correct? A. Yes, sir,

it was.

Q. On the floor? A. On the floor.

Q. Could you tell us anything else about the gun [381]

as you saw it that particular morning on the floor of that

eart A. After removing the gun from this car I noticed

that this gun was in a half-cocked position.

Q. Could you show the jury what you mean by that.

A. Yes, sir. The gun was in this position, like this: the

handle being half cocked back. In order to fire it, you

would continue back and squeeze the trigger.

Mr. Irwin: [offer this.

The Court: Do you object?

Mr. Smith: No objection.

The Court: It may be marked as an exhibit. I think

this is Exhibit No. 2.

(Gun received and marked Exhibit No. 2)

Q. What did you do with this particular weapon which

is marked Exhibit 2 right now? A. I turned that gun

over to William Cummings of the State Police at the

Medford Police Station.

Q. On the same day? A. Yes, sir, on the same morning,

it was around six o’clock.

[382] Q. At the Medford Police Station. A. Yes, sir.

Q. Was Lieutenant Collins present at that time?

A. Captain Collins was, yes, sir.

Q. Now I show you this weapon here. Would you tell

us if you would please whether or not you can identify

that? A. Yes, sir. This was the same gun that was in

the car. This was on the rear seat where Mr. Oreto had

been sitting.

Q. At the time, this gun was actually on the seat in

the rear? A. That is right. ;

Q. You took that out of the car together with Exhibit 2,

is that right? A. That’s right.

Q. Did you make any examination of either one of

these weapons to see whether or not they were loaded?

A. I did not, no.

= — ' EE

Q. You just took them, and put them in the cruiser is

that correct? <A. Yes, sir.

* * *

[385] Q. Did you search another building, numbered 11

Fifth Street? A. Yes, sir, I did.

Q. In the company of other police officers, I assume?

A. Yes, sir.

Q. Did you find Carmen Gagliardi on those premises?

A. I did not.

Q. Or, did you find Benjamin DeChristoforo on those

premises? <A. No, sir.

Q. Now, you say you learned at some time that Mr.

Gagliardi actually lived at 11 Fifth Street, is that right?

A. Yes, sir.

Q. You saw him go up to the door at No. 9% A. No. 9.

Q. Did you make a determination through your investi-

gation that actually Mr. Gagliardi never went into No. 9

that night? <A. Yes, I did.

Q. And that he acutally never went into No. 11 that

night? [386] A. Yes, sir.

Q. Did you have then an occasion to examine the area

down between No. 9 and 11 Fifth Street? A. Yes, I did.

Q. Did you follow it through to Fourth Street? A. Yes,

sir.

Q. Tell the jury if you would please what you observed

in that area. A. Between No. 9 and 11 Fifth Street there

is a space between the two houses. You can walk between

the two into the rear yard, and I observed in the rear

yard footprints in the soft earth and there is a fence, a

picket fence in the back of a house No. 10 Fourth Street

which backs up to this property, and there was a gate in

this fence and this gate was open.

Q. Was it raining heavily at this time? A. At this

particular time?

Q. Yes. A. No, not too heavy.

Q. Was the area muddy? A. Yes, sir, it was.

Q. Did you make a search of Fourth Street and the

neighboring streets and yards and so on [387] and so

forth? A. Yes, sir.

Q. Did you ever see DeChristoforo or Gagliardi after

that night? A. After that night?

Q. Right. <A. No, sir.

Q. I show you a photograph, Officer Carr, would you

take that and examine it please. Would you tell us if you

would sir, whether or not that fairly represents the posi-

tion of the body of Joseph Lanzi as you checked it that

morning to see whether he was dead or alive? A. Yes,

it does.

Mr. Irwin: [I offer it.

Mr. Smith: No objection.

Mr. Balliro: No objection.

The Court: It may be marked Exhibit No. 4.

(Photograph received and marked Exhibit No. 4.)

Mr. Irwin: I request the Court’s permission to show

Exhibit 4 te the jury.

The Court: Yes.

* * =

[393] Q. All right. And, as I understand it, — just yes

or no — you had some conversation with Oreto in the

car on the way to the police station? <A. Yes.

Mr. Irwin: No other questions.

Cross-Examumation by Mr. Smith:

XQ. Officer, what was the speed of this automobile at

the time you first saw it? A. I would estimate the speed

between 20 and 30 miles an hour.

XQ. When you first sawit? A. Yes, sir.

XQ. Well, was that when it was taking the turn around

by that flashing light? A. No. This was before the car

made the turn. This is when I first saw the car.

S :

. e Sea ei Dea

(ole tA EP esol ie el ial AA phat ip BB Mi ip 0 dnb igh Vile

XQ. And what was the speed of the car, if you know,

at the time it made the turn? A. I would estimate the

speed at between 15 and 20 miles an hour.

XQ. So that it slowed down? A. Yes, sir.

* = *

[399] XQ. The man whom you now identify as Mr. De-

Christoforo? A. Yes, sir.

XQ. Well now, when you got to the automobile after

Mr. Gagliardi had left the vicinity, can you tell us, as

precisely as you reasonably can, where Mr. DeChristoforo

was seated in the automobile? A. He was seated behind

the driver.

XQ. So that would you say that he was seated to the

extreme left of the passenger side of the automobile?

A. That’s right.

XQ. And where would you say Mr. Oreto was seated?

A. He was seated next to him behind the dead man, Mr.

Lanzi.

XQ. And when you say, ‘‘behind him’’, was he, to the

best of your memory, directly behind him or was he

somewhat — was he behind him and somewhat to the

right of the deceased? A. I would say he was right be-

hind him.

XQ. Directly behind him. And the man who you saw in

the front seat who later turned out to be Mr. Lanzi, the

deceased, whereabouts in the front seat was he sitting?

[400] A. He was sitting on the passenger side of the

car.

XQ. Now, about how close, if you recall, to the right

front door of the passenger side of the car? A. He was

more, sitting more to the center of the seat than the

right door.

XQ. Then as you observed him, Lanzi appeared to be

sitting about in the center of the front seat of the car?

A. Not in the center. He was sitting on the passenger

i deg Heke *

aeraace:, eo . ERE MR RAIL OOS LOST el et DEES AI ON ANE LP

side in the seat, but more to the center of the seat than

to the right door.

XQ. Now, this automobile, does it have one large cushion

or is it separated into bucket seats? A. One large —

XQ. One large cushion. I show you Exhibit 4 and ask

you to use that exhibit, to look at that exhibit, and then

tell us whether you can give us an estimate, your best

estimate or best judgment, sir, of the distance between the

left side of the body of Lanzi and the left door on the

driver’s side? A. I would say it’s about three feet.

* . *

[405] XQ. And, asking you questions while you were

testifying under oath? A. That’s right.

XQ. Now, do you recall Mr. Irwin asking you: Did

Oreto answer when you asked him what his name was?

And, you answered: He did. And, then the question:

What name did he tell you?

Mr. Irwin: I object, if your Honor please.

The Court: What is the objection?

Mr. Irwin: The objection is that I have no objection,

of course, to the proper use of this, but he is now pro-

ceeding to read testimony from some other occasion and

some other trial; and I suggest respectfully to the Court

that the only reason he can do that is to show that the

witness made a prior inconsistent statement. And, the

only way to do that is to put the question and get the

answer from the witness and then show him what his

_ testimony allegedly was in the District Court rather than

counsel reading it.

The Court: Of course, that’s the proper way to do it.

You can ask him —

Mr. Smith: I will ask him the specific [406] question.

I was only doing this by way of preface to the next

question.

XQ. Then don’t you recall being asked: ‘‘Did you have

EVER RRR

any further conversation with Mr. Oreto?’’ And, you said

that you did. And, you were asked: ‘‘Would you tell us

if you would, please, what that was?’’ And, your answer:

‘‘T had asked Mr. Oreto and the other man who the fellow

was in the front seat.’’ And the question asked of you

was: ‘‘Did Mr. Oreto answer that?’’ Answer: ‘‘He did.’’

Question : ‘‘Would you tell us what he said when you asked

him who the fellow in the front seat was?’’ Answer: ‘‘He

said his name was Johnny Simeone.”’

Now, do you remember that testimony? A. Yes, I do.

XQ. Is it the fact that you did testify that it was Mr.

Oreto who identified the man in the front seat? A. If I

did, I meant Mr. DeChristoforo.

XQ. Is it a fact that you had testified under oath that

it was Mr. Oreto who identified the man in the front seat

as Johnny Simeone?

Mr. Irwin: I object, if your Honor please.

[407] The Court: That’s the same question you put be-

fore. I think the witness ought to be allowed to answer it.

The Witness: If I did, I mean Mr. Oreto — excuse me,

‘Mr. DeChristoforo.’’

XQ. I’m going to ask you now to read to yourself,

page 42, of that transcript, and see whether or not any-

where on that page there is any reference to a talk with

Mr. DeChristoforo. A. The only conversation on that

page 42 was that I had asked, in this book, — that I had

asked Mr. DeChristoforo the name, and he gave a name.

XQ. You had asked Mr. DeChristoforo his name?

A. Yes, sir.

XQ. And, he had given his name? A. He had given

a name, not ‘‘ DeChristoforo.”’

XQ. And, you say now that when Mr. Irwin asked you:

Did you have any further conversation with Mr. Oreto,

— after you testified that Oreto had told you that Oreto

had told you that his name — Oreto’s name — was

ER aR ELS rrbes

Johnny Rigo, — do you say that when Mr. Irwin asked

you the question, ‘‘Did you have any further conversa-

tion with Mr. Oreto,’’ and you [408] answered, ‘‘Yes, I

did,’’ and was then asked, ‘‘Would you tell us if you

please what that was,’’ and your answer, ‘‘I had asked

Mr. Oreto and the man —’’

Mr. Irwin: I object.

XQ. ‘‘... and the other man who the fellow was in the

front seat,’’ and then when you were asked, ‘‘Did Mr.

Oreto answer that,’’ and you answered, ‘‘he did,’’ you

were confused, you thought that he meant ‘‘DeChristo-

foro,’’ is that it? A. Mr. DeChristoforo made the an-

swer. If I said at the probable cause hearing or any

other hearing in Malden, that Mr. Oreto said it, it was an

inconsistent statement on my part. Mr. DeChristoforo

said it.

XQ. So, that when you said in the District Court that

it was Oreto who told you —

Mr. Irwin: I object.

The Court: Well, this is the third time you asked pre-

cisely the same question. I think the third time in the last

four questions this same question has been asked. This

is the last question, you are starting out, he already an-

swered the question.

[409] XQ. Are you leaving it now that when you said that

it was Mr. Oreto who told you that the man in the front

seat’s name was Johnny Simeone you were mistaken, and

you meant that it was Mr. DeChristoforo; is that how you

want to leave it?

Mr. Irwin: Objection.

The Court: Is your objection on the grounds of repe-

tition, because this question has been asked three times

already.

Mr. Irwin: Exactly; plus the fact, I suggest, that the

officer answered, Mr. Oreto said that. The answer in the

Sa os ee eh Ce Ee A a eet ee nn ete rs eer

transcript said he said that, with reference to conversation.

Mr. Smith: Well, then, if your Honor please, the ques-

tion was, whether Oreto answered, identified the man, and

he said he did.

The Court: Ask him the question: Did Oreto answer or

did DeChristoforo answer? I thought he already answered

the question. But, if you wish to ask the next question,

you may.

XQ. Weren’t you asked there: Did you have any further

conversation with Mr. Oreto? And, you answered, [410]

‘*Yes, I did.’? Weren’t you asked that question? A. To

the best of my recollection, yes.

XQ. And, you answered it that way. <A. Yes.

XQ. Then weren’t you asked: ‘‘ Would you tell us if you

would, please, what that was.’’ And, your answer: ‘‘I had

asked Mr. Oreto and the other man who the fellow was in

the front seat.’? And, then the question put to you was:

‘‘Did Mr. Oreto answer that?’’ And, answer: ‘‘He did.’’

Now, do you say that you didn’t testify to that? A. I did

testify to the statement, but, ‘‘He did’’ was Mr. DeChristo-

foro replying to this question.

XQ. But, you did testify, of course, that it was Oreto;

isn’t that so? A. Yes, sir.

XQ. Before you went into Court that morning, you had

spent time with Mr. Irwin in preparing what your testi-

mony was going to be, isn’t that right? A. I don’t recall.

XQ. Well, the only man that was under arrest was

Oreto? A. That’s right.

[411] XQ. And, it was a question of whether or not Oreto

was going to be held for the murder charge; isn’t that so?

A. That’s right.

XQ. So, that, at that time you were concerning yourself

with what Oreto said, isn’t that so? A. Yes, sir.

XQ. Now, I will hand you Exhibit B for identification,

and ask you whether or not it is a fact that in the filing

ae OS Ne eee a

ei Hh i

Seemann asic isin

of this handwritten report, in the drawing up of the hand-

written report, you stated that: After Gaglardi got out of

the car, and you had talked with him, that he told you that

he was going across to his house—or words to that effect?

A. That’s right.

XQ. And, it is a fact that you stated in your report,

is it not, that it was after that that you asked the two

men in the car for identification? A. That’s correct.

XQ. And, they said they had none. A. That’s right.

* * * P

[419] XQ. And, then vou next wrote immediately follow-

ing that statement: ‘‘We then examined the fourth man

in the car.’’ Is that right? A. That’s correct.

XQ. And, prior to that statement there is nothing in

your report that says that you had examined or looked

at the man in the front seat of the car, is there? A. If it’s

not in the report—

XQ. Pardon me. I am simply asking you whether you

have it in your handwritten report, prior to that? <A. No,

sir, I don’t say that.

XQ. So, that the first reference you make to examining

or looking at the man in the front seat was after DeChristo-

foro had left, and after you flashed the light in on the car

and noticed the guns. <A. On this report, yes.

XQ. Now, you testified here on direct examination, that

it was after you examined the man in the front seat that

you asked what was wrong, or words to that effect, and

that DeChristoforo told you that he had been involved

in a fight or something, or words to that effect; isn’t

that so?

[420] Mr. Irwin: Objection, if your Honor please,

The Court: What is your objection?

Mr. Irwin: The objection is that there is no such evi-

dence.

bi 4 _

SRR ee sep rcsumerescescccermimennmmenparseyn 2 UE TEENIE IIR LONI HES IIASA REENE es ee

XQ. Did you testify on direct examination here, that

after you had seen the wounds on the man, or looked at

him and saw that he had been wounded, that you then

asked DeChristoforo as to what had happened, and that

he told you that the man in the front seat had been involved

nsome fight in Revere? A. This is correct.

Mr. Irwin: I don’t have any objection to that, that’s

a different question than the first one he asked.

The Court: What was the answer? I didn’t get the

answer.

The Witness: That’s correct, yes, sir.

XQ. Now, of course, DeChristoforo couldn’t have told

you that if he wasn’t there, that’s so, isn’t it? A. He

was there.

[421] XQ. At least Oreto was there, wasn’t he? A. And

Mr. DeChristoforo.

XQ. At least Oreto was there?

Mr. Irwin: I object, if Your Honor please.

The Court: The testimony is that Oreto and DeChris-

toforo were there. That’s what he said, not once, but twice.

It goes without saying that at least Oreto was there.

Mr. Smith: All right.

XQ. Now, of course, you knew—you ‘‘know’”’ as a police

officer how long a second is, don’t you?’ A. I have got an

idea.

XQ. You have an idea. And you know how long a

couple of seconds are? A. That is right.

XQ. How long do you say you talked to DeChristoforo

while he was there? A. I guess a few seconds.

XQ. Well, do you recall testifying at some time previ-

ously that you talked to him for only a couple of seconds?

A. No, I don’t recall that.

Rial’. in’ tedden es Site Or we a =

[457] Gerorce Kartsas, Sworn

Direct Examination by Mr. Irwin:

Q. Doctor, will you please be good enough to speak into

the microphone and state your name, please. A. George

Katsas, K-a-t-s-a-s,

Q. Your home address, sir? A. 130 Prince Street, Jam-

aica Plain.

Q. And, your occupation, sir? A. I am a physician.

Q. And, do you have a specialty as a physician? A. I

am a pathologist.

Q. Where are you presently employed, sir: where do you

presently practice your profession? A. I am an associate

pathologist at the Waltham Hospital at Waltham.

Q. Tell us a little bit about your education and back-

ground? A. I graduated from the University of Athens in

[458] Greece in 1947. I served my internship, residency in

pathology in legal medicine at the University of Athens

in Greece. From July 1953 to February 1966 I was

associated with the Department of Legal Medicine at Har-

vard Medical School, and I was acting head of the Depart-

ment for the last seven months of this period.

I am qualified by the American Board of Pathology for

forensic pathology.

Q. And, you have testified in the Superior Court in

Massachusetts in connection with pathology work that you :

have done in homicide cases? A. Many times, sir.

Q. Now, Doctor, would you tell us if you would, please,

whether or not you had an occasion in your capacity as

a pathologist to examine a body at the request of the

Medical Examiner in the City of Medford on April 18,

1967? A. Yes, sir, I did.

Q. Would you tell us if you would, please, where it

was in Medford that you first observed this body and

at what time? A. First I arrived at the police station,

34 9

and in the [459] garage of the police station I observed

the body in a car, beginning at approximately 5:30 a.m.,

on April 18, 1967.

Q. You observed a body in a garage at the Medford

Police Station? A. That’s correct.

Q. At approximately 5:30 am. A. That’s correct.

Q. Would you tell us what observations you made about

this particular body at that time? A. The body was in a —

sitting position in the front passenger seat. The rear

window was approximately half way down, and through

this window I felt the body which was warm, the skin

was warm. I took pictures myself, and I was present when

the State Police took pictures. I was waiting for the police

chemist and then—

Q. Go ahead, tell us what observations you made.

A. Then I removed the body from the car with the help

of Captain Collins of the State Police Ballistics Bureau.

Q. At this point you took the body out of the car at

the police station, is that correct? A. That’s correct, sir.

[460] Q. Now, I show you this picture which is Exhibit 5.

Would you examine that photograph if you would please.

A. Yes, sir.

Q. Would you tell us, sir, whether or not that fairly

represents the position of the body in the car as you

observed it that morning? A. Yes, sir, it does.

Q. Does that indicate the right rear window through

which you felt the body to see whether it was warm or not?

A. That’s correct, sir.

Q. Was it from that door where the body is seated that

you took the body out of the car? A. That’s correct. Of

course, we opened the other door, too, on the other side.

Q. When you took the body ont of the car what did you

do then, Doctor? A. We placed the body on a blanket

next to the car. I felt the body again for temperature;

A ee ee eee

just by feeling the skin, it was warm. And, also I noticed

that the body was limp, it was not rigid.

Q. Do you mean by the fact that it was limp rather

than rigid that there was no evidence of [461] rigor mortis

at that time? A. That’s correct, sir.

Q. Now, would you tell us, if you would please, whether

or not you were able to determine at this time that this

person was in fact dead? A. The person was dead, sir.

Q. What else did you do at that time, Doctor? A. I took

a few additional pictures, sir, just as the State Police

photographer did of the body outside of the car. And, my

recollection is that several officers and law enforcement

officers who were waiting around looked at the body for

possible recognition of the face.

Q. Was there anybody able to identify the body at that

timet A. Not to my knowledge, sir.

Q. What if anything did you do then, Doctor Katsas?

A. Then Doctor Guthrie, the Medical Examiner, ordered

the removal of the body to the Gaffey Funeral Home where

I proceeded.

Q. And, you then went to the Gaffey Funeral Home your-

self? A. That’s correct, sir.

* . *

[465] Q. Did you do that? A. Yes, I did.

Q. All right. Tell us what else you did. A. Well, during

the autopsy, I make findings and make observations of

the body. I found certain foreign bodies, which I removed

from the body. I took tissues for both chemical examina-

tion and microscopic examination, and I concluded the

autopsy.

. Q. All right. Did you, in the course of your autopsy,

remove some bullets from the body of Joseph Lanzit

A. Yes, sir, I did.

Q. Would you tell the jury where it was in the body

of Joseph Lanzi that you recovered the bullets? A. One

Be aopemenemininen

bullet was recovered from the head of Mr. Lanzi, specifi-

cally from the region of the left eye. Three bullets were

found in the soft tissues of the right side of the chest wall,

close to the skin surface.

Q. So you recovered, all together, how many bullets?

A. Four bullets, sir.

Q. All right. And would you tell us, if you would, please,

with reference to the number of entrance wounds, so-called

entrance wounds, with reference [466] to these bullets

that you found in the body of Joseph Lanzit A. One

entrance wound was in the back of the head, just to the

right of the’ midline, and two bullet wounds were very

close together, almost side by side, on the left side of the

chest, of the chest wall.

Q. All right. Did you observe another entrance wound

there? A. There were three entrance wounds, sir.

Q. In the side? A. That is correct—two wounds on the

chest and one on the back of the head.

Q. All right. But you recovered three bullets from what

appeared to be these two entrance wounds? A. That is

correct, sir.

Q. Now, did you observe anything about these wounds

in the side here? A. Yes, sir.

Q. Would you please tell the jury what you observed

about those, Dr. Katsas? A. About the wounds and about

the hole in the clothing, in the overlying clothing, there was

a deposit of smoke.

[467] Q. Would you tell the jury what that represents

to you, sir, in your opinion? A. It represents that the gun

was held very close or in contact with the body when the

gun was fired.

Q. Would you tell us what injuries the deceased received

as a result of these three wounds or these three bullets

that entered through these two entrance wounds? A. The

intestines were perforated. Also, the stomach, the dia-

a IEE a Sie OE hig he EA eat ad Mt Hy So be nae

wie

phragm—which is a membrane and muscle which separates

the chest from the abdomen—and also the lungs were

perforated. :

Q. Would you tell the jury, if you would, please, what

injuries the deceased sustained as a result of the bullet

wound to the head that you observed? A. The bullet wound

of the head entered from the right back of the head and

perforated the base of the brain until it lodged in the area

of the left eye (indicating).

Q. All right. Now, with reference to these bullets that

you recovered from the body of the deceased, Joseph Lanzi,

what, if anything, did you do with those bullets? A. I

handed the bullets to Mr. Cummings of the [468] State

Police Firearms Identification Bureau.

Q. All right. And would you tell us, if you would, please,

whether or not you obtained a specimen of the blood of

the deceased, Joseph Lanzi? A. Yes, sir, I did.

Q. All right. And at some time during the course of

your autopsy, did you deliver that specimen of blood to

anybody? A. Yes, sir, I did.

Q. To whom, Doctor? A. To Mr. Talbot, Montgomery

Talbot.

Q. The State Police chemist? A. That’s correct, sir.

Q. All right. Now, Dr. Katsas, will you tell us, if you

would, please, whether or not you conducted—strike that,

please—whether or not you observed any other injuries

on the body of Joseph Lanzi apart from the bullet wounds

that you have already noted for the jury? A. There were

no other recent injuries on the body.

Q. All right. A. There were a couple of scars—one on

the abdomen and one on the left arm—but these were old.

Q. Were those old surgical scarst [469] A. One was

a surgical scar on the abdomen. The other, I am unable to

determine exactly whether it was a surgical scar or a

wound which healed.

Q. But there were no other fresh wounds on the body?

A. No other fresh wounds on the body, sir.

Q. And when you say, ‘‘old wounds’’, you mean of quite

a time before this particular date? A. That is correct, sir.

Q. A matter of years, maybe? A. A matter of months or

years.

Q. All right. Now, was there anything else significant

in the pathology that you did on the body of Joseph Lanzi?

A. No, sir.

Q. All right. And based, then, upon the autopsy that

you performed and based upon the observations that you

made when you first saw the body, do you have an opinion,

sir, as to the cause of death of Joseph Lanzi? A. Yes,

sir, I do.

Q. Would you tell the jury what your opinion is with

reference to the cause of death of Joseph Lanzi? A. It is

my opinion that Mr. Lanzi came to his death as a result

of multiple gunshot wounds of the chest [470] and head

with perforation of the brain, the liver, and the lungs.

Q. All right. Now, I draw your attention to—

The Court: Why not show all of those photographs

at one time to your Brothers and let them look at them,

if you intend to introduce them?

(Photographs shown to defense counsel.)

. * *

[473] Q. All right. And does this exhibit, which is now

Exhibit 10, indicate the blood that you saw on the [474]

T shirt of Joseph Lanzi near the wounds that you just

described in his chest? A. Yes, sir, it indicates the blood

and also the halo of smoke above the hole.

Q. The halo of smoke that you referred to in the clothing.

Will you point that out to the jury, where the halo of .

smoke is in that particular picture? A. In the black and

white it’s difficult to differentiate the red from the black,

but this round crescent-shaped area was black smoke. The

white spot is the hole in the clothing. All this smudge is

blood. The blood can be seen from the top, as the picture

is, on the top of the hole through the clothing.

Q. Dr. Katsas, in your opinion, the significance of the

so-called ring of smoke is what? A. That the gun was

held very close or in contact with the clothing and the body.

Q. All right. Now, Doctor, did you perform some tests,

in addition to the observation that you made, to determine

the time of death of the deceased, Joseph Lanzi? A. I

made observations in order to determine the time of death.

[475] Q. What observations did you make in order to

determine the time of death? A. I examined the body for

the temperature of the skin. I took the rectal temperature.

I took the liver temperature. I examined the body for

rigor mortis, for lividity, and the internal organs, their

appearance, during the autopsy.

Q. All right. Did you perform some tests, in addition to

making those observations, for the purpose of determining

the time of death of the deceased? A. No other tests.

Q. All right. Now, based on all of those things that

you just enumerated, did you form an opinion as to the

time that Joseph Lanzi met his death? A. Yes, sir, I did.

Q. Would you tell us, sir, if you would, please, what your

opinion is? A. It is my opinion that Joseph Lanzi came

to his death approximately four to six hours prior to the

conclusion of my observations at about nine a.m. on April

18, 1967.

Q. So you concluded all your tests to determine this at

approximately nine a.m. on the morning— A. I concluded

all my observations.

[476] Q. All right. And if the time that you concluded

that was nine a.m., you placed the time of his death some-

where between four and six hours earlier? A. That is

correct, sir.

The Court: Would you reduce that, please, to a time?

Ree. : . nt EE GPS Gat OP + ERR

The Witness: The only reduction I can do, Your Honor,

is closer to four hours, rather than to six.

Q. All right. So by that, do you mean—if you say,

‘*Between four and six hours before nine o’clock’’, that

would be between three and five in the morning, is that

correct, Doctor? A. That is correct, sir.

Q. All right. So you place the time of his death between

three and five o’clock in the morning? A. That is correct,

sir.

Q. All right. Now, if you assume the fact, Doctor, that

this man was seen dead by a police officer in a car at

approximately four a.m. that morning, do you have an

opinion, bearing that fact in mind, as to whether or not

the time of his death was nearer to three or four a.m.?

[477] A. My opinion is that the time of death was nearer

to four a.m.

The Court: Is that all?

Mr. Irwin: I have just a few more questions, if your

Honor pleases.

Q. Doctor, based upon the observations you made of that

particular automobile and the body in the automobile

before you removed it, and based upon the result of your

autopsy, did you form an opinion as to whether or not

this particular man, Joseph Lanzi, was shot to death in

that automobile? <A. Yes, sir, I did.

Q. And what is your opinion? A. It is my opinion that

Joseph Lanzi was shot in that automobile.

Q. In that automobile? A. That’s correct, sir.

Q. All right. Do you have an opinion as to whether or

not Joseph Lanzi was alive or dead when all of these

wounds were inflicted on his body? By that; I mean: the

total of the four bullets? A. There is evidence indicating

that he was alive when all the shots were fired.

Mr. Balliro: I ask that that answer be [478] stricken.

The Court: What are the grounds for that?

Mr. Balliro: He was asked if he had an opinion. It is

not a responsive answer.

The Court: All right.

Mr. Irwin: Yes.

Q. Do you have an opinion whether or not, bearing in

mind that there were four bullet wounds, whether or not

all of these wounds were inflicted while Joseph Lanzi was

alive? A. Yes, sir, I do.

Q. What is your opinion? A. It is my opinion that all

wounds were inflicted while Joseph Lanzi was alive.

Q. All right. Would you tell us, if you would, please,

whether or not you have an opinion as to whether or not

the wound in the head would, in and of itself, be fatal to

Joseph Lanzi? A. Yes, sir, it would.

Q. All right. And would the wounds in the chest of

Joseph Lanzi, independent of the head wound, in and of

themselves, be the cause of the death of Joseph [479]

Lanzi? A. Yes, sir, they could.

Mr. Irwin: I have no other questions.

The Court: You may cross-examine.

Mr. Smith: Yes.

Cross-Examination by Mr. Smith

XQ. Doctor, other than measuring the height of Lanzi,

did you take any other measurements? A. I estimated the

weight and I took measurements of the injuries, of the

wounds.

XQ. All right. You say his height was what? Five foot

nine? A. Sixty-nine inches, sir.

XQ. Yes, five nine? A. That is correct, sir.

XQ. He weighed about 170 pounds? A. That was my

estimate, sir.

XQ. Now, did you take any measurements of the circum-

ference of his chest? A. No, sir, I did not.

XQ. Or the circumference or the width of his shoulders?

A. No, sir, I did not.

ee we PORN ENE:

XQ. Or the circumference of his hips? [480] A. No, sir,

I did not.

XQ. Could you, Doctor, give us your best estimate of

what the circumference of his chest was? A. I don’t know,

sir. I didn’t measure it.

XQ. So that you can’t give us an opinion about that?

A. No, I can’t.

XQ. Well, Doctor, with respect to the head wound, will

you face the Court, if you will, and point with your finger,

so that the jury can see, approximately where the entrance

wound was? A. The entrance wound was approximately

in this place (pointing).

XQ. Would you turn around? A. (Witness complied.)

XQ. I see. So that it was somewhat to the left of the

right ear, of the right ear lobe? A. That is correct, sir.

XQ. And can you describe the bullet tract of that wound,

Doctor? A. The bullet went forward and to the left.

XQ. Forward and to the left? A. And to the left in

relation to the head, so that it came to the left region of

the left eye.

= * *

[482] XQ. Well, even assuming it was turned to the left,

it still would have had to come from the right-hand side

of the deceased, wouldn’t it? A. The only thing I know,

is the path of the bullet in the brain. The head can move;

the gun can move. The only thing I know is that the bullet

comes from the right part of the head to the left eye.

It could have been directed from the right side of the

decedent, or the head of the decedent might have been

turned.

XQ. Now, Doctor, assuming that the decedent was sitting

in an upright position in an automobile and is facing

forward, assuming that, and he is shot, resulting in a

bullet tract such as you describe, and that following that,

he is found with his head tilted to the left, would you say,

;

AOD ected Det at

Lakh eenboilin iene wit tbe

Doctor, that that would indicate to you that the gun was

held from the right side of the decedent’s head? A. Assum-

ing that the head, that the decedent was facing forward,

the gun should have been held to the right of the side of the

head. The tilting of the head [483] after he collapsed does

not mean anything.

* * *

[486] XQ. I know you don’t know it, Doctor, but I’m

asking you whether or not it would be inconsistent. Would

the arm have had to be raised in order to have those

type of entrance wounds? A. Either raised or forward,

placed forward or backwards, I do not know.

XQ. So, that, Doctor, if the arm were up on the back

rest, on the back of the front seat, such wounds as you

describe — strike that. .

XQ. So, that such wounds as you describe could have

been occasioned if the arm were up on the back of the

front seat of the car? A. Yes, sir, they would.

XQ. And, do you have an opinion as to whether the

body was moved after the shooting? A. Yes, sir, I do

have an opinion.

XQ. What is your opinion? A. That the body was not

moved.

Mr. Smith: Thank you, Doctor.

: * * *

[504] The Court: Having heard the voir dire, having

heard the testimony of the officer yesterday, and having

heard the complete and rather extensive cross-examination

with regard to the transcript of the record in the probable

cause hearing conducted by Mr. Smith, I find that there

is no reason for me to allow the inspection of the Grand

Jury minutes.

Mr. Smith: My exception.

Mr. Balliro: My exception.

; Exceptions 56 & 57

ESS GE ae? ER PEARS EEE IER IDS

Mr. Smith: May I for the record point out what the

inconsistent statements are?

The Court: You may for the record, but I don’t think

it is necessary to point them out at this moment. You

may if you wish. Your rights have been saved in this

matter. I have heard all the testimony that you have

heard.

Mr. Smith: Except that Your Honor hasn’t had an op-

portunity to examine his testimony at the probable cause

hearing.

[505] TheCourt: Yes, I have.

Mr. Smith: The complete testimony?

The Court: Not beginning with the name and ending

with the last question. I have examined that part of the

testimony which concerns itself with what I think you

are concerned with, and that is that part of the testimony

as to whether or not DeChristoforo was present or absent

and whether or not he directed his remark or remarks

to —

Mr. Smith: This is precisely the issue.

If Your Honor please, there are these major incon-

sistent statements. He has testified —

The Court: Isn’t this more appropriately discussed

in the exception rather than here, because I have already

ruled on it and I have heard the testimony of the officer

and I have examined the material parts of his testimony.

I have read the material part of his testimony about

which you are speaking, his testimony in the probable

cause hearing, and I see no reason in the light of all that

to allow you to view the Grand Jury minutes. I see nothing

about this case that makes it unique in that respect;

[506] so I again am denying it and saving your rights.

Mr. Smith: Except may I point out this: I think what

is unique about this case is: This is a capital case, I am

convinced, and I say to Your Honor that the testimony of

eR hy eee ae |

i I i Sy

SoM Stelle Mpa ee ye boa Gelbaat on as riabl ths Ii oA

iad tii i hala its eth

Officer Carr, and if daily conforms to the same testimony,

is in my judgment the only evidence of any significance

that might result in a conviction of this defendant. This is

a capital case and I believe that I should be afforded every

possible means of establishing that this officer’s testimony

is not credible. I therefore urge upon Your Honor to re-

consider this question. I say it’s an unusual case, this is

not the ordinary run of the mill criminal case, this in-

volves a man’s life.

The Court: Motion is denied and your rights are saved.

Mr.Smith: Exception.

Mr. Balliro: Exception.

Exceptions 58 & 59

The Court: And insofar as you have joined in the

motion, your motion is denied and your rights are saved.

[507] Mr. Balliro: I would move that Your Honor make

an in camera inspection of the Grand Jury minutes of the

testimony of the witness, Carr, for the purpose of de-

termining whether or not there is inconsistency that ought

to be brought to the attention of the jury.

The Court: No.

Mr. Balliro: My exception.

Mr. Smith: I join in that and my exception.

Exceptions 60 & 61

The Court: Your rights are saved.

The Court: We will now turn to another matter which

concerns itself with the testimony of Officer Carr and the

problems we had yesterday, and I ask the District At-

torney and you to confer on the questioning of Officer Carr

in these two regards to allow me sometime to educate

myself to the present status of the law.

My work overnight has made me determine the follow-

ing: one, Mr. Smith, if he wishes may offer the hand-

written statement of Officer Carr in its entirety and then

RE i BEE. R TENT

can be read to the jury. The District Attorney may not

offer it if he declines to offer it.

* = *

[530] Joun P. Brapy, Sworn

Direct Examination by Mr. Irwin

Q. Sir, would you speak into the microphone, please,

and give us your name and your home address, please?

A. John P. Brady, 106 Taft Street in Medford.

Q. And your occupation, sir? A. I am a police officer

in the City of Medford.

Q. How long have you been employed in that capacity,

Officer Brady? A. Approximately three and a half years.

Q. Directing your attention back to the day that the

jury is concerned with and we are concerned with here,

April 18, 1967. Were you on duty that particular morning?

A. Yes, sir, I was. .

Q. Would you tell the jury, please, what time it was

that you went to work that day? A. 12:15 a.m.

Q. And your assignment was what? A. I was assigned

to a cruiser car as the observer.

Q. Who was driving that particular car? A. Officer Pat

Carr.

[531] Q. Now sometime on that particular morning, in

your capacity as observer in a sector car, were you on

Middlesex Avenue and Highland Avenue, in the City of

Malden and Middlesex Avenue in the City of Medford at

sometime that morning? A. Yes, I was.

Q. Would you tell the jury, Officer Brady, what time it

was if you would please? A. It was 3:55 a.m.

Q. Where were you located at 3:55 am.? A. Near the

corner of Highland Avenue and Medford Street in Malden.

Q. Would you take a look please behind you at Exhibit

1, that particular map, and familiarize yourself with it

for a moment. Are you oriented to that map now, do you

+ AED Oy ae A

Cat Neda BAA NS Ste Ma iA eA a AIOE, ir NS Ai tan ig i SO ies a Selb AR NO

eset vahed.

understand the areas that are represented? A. Yes, sir.

Q. Would you point out to the jury, Officer, where you

were in that cruiser at about 3:55 a.m.? A. Approxi-

mately right here, at the corner of Highland Avenue and

Medford Street.

[532] Q. In what city? A. That is in the City of Malden.

Q. Where were you going at that time? A. We were

headed back onto our sector up in here in Medford.

Q. Having come from what direction? A. Having come

from this direction here, down Middlesex Avenue onto

Highland Avenue.

Q. Now would you tell the jury if you would please

whether or not at Highland Avenue and Medford Street

there are any traffic controls, or there were on April 18,

19671 A. Yes, there are a set of traffic lights here, and

also a stop sign.

Q. Would you tell the jury if you would please, whether

or not you went onto Medford Street at approximately

that time? A. Yes, we did.

Q. Youtookaleft? A. Took a left off Highland Avenue

onto Medford Street.

Q. As you started down Medford Street, would you

tell the jury, if you would please, whether or not you

observed anything? [533] A. Yes. As we made the turn

here I observed a 1967 Ford, reddish maroon color, with

four men in it. Just after we made the turn onto Med-

ford Street.

Q. Would you tell us what you observed? A. I observed

the red Ford with the four men in it. And I also observed

the number plate of this car.

Q. Did you make a notation as to the number plate of

thatcar? <A. Yes, I did.

Q. What did you do it on, sir? A. On a police manifold

report.

Q. At what point did you write down the number of the

48,

car, Officer? A. As we passed the car, I wrote it down.

Q. Is it safe to say that this car was going toward

Highland Avenue and you were going away from it?

A. That’s right.

Q. As you passed the car you observed four men in it,

is that correct? A. That is right.

Q. And you observed the number plate of the cart

A. That’s right.

Q. You noted the number plate? [534] A. Yes, I did.

Q. Thereafter did you make any other observations of

thatcar? A. Yes.

Q. What was that? A. I looked to the rear of the crui-

ser as we were going down Medford Street, and I ob-

served the Ford going through the red light at the corner

around onto Highland Avenue. At this time my partner

turned the cruiser around and we headed in the same

direction in which the Ford had gone.

Q. Did you observe whether of not there was a traffic

control in operation at that time at the intersection?

A. Yes, I did.

Q. Wastheret A. Yes, there was.

Q. What type of a control was itt A. A blinking red

light.

Q. Did you observe whether or not this car made a

stop at that red light? A. No, it did not, it went right

through.

Q. Now were you able to determine that there were

[535] four men in the cart A. That is right.

Q. Could you tell the jury whether or not at that time

you were able to identify or describe any of these men?

A. No, I was not.

Q. Could you tell us anything about the seating ar-

rangement of these four men in the car at that time?

A. Yes. There were two men in the front and two men

in the rear.

Q. Now this was at what time of the morning? A. 3:55

a.m.

Q. What was the weather like? A. It was pouring rain.

Q. Was there any other traffic on the street? A. None

at all.

Q. So I understand now that having made these ob-

servations, the cruiser was turned around by the driver,

Patrick Carr, and headed back in the direction of High-

land Avenue? A. That’s right.

Q. Did you take a right on Highland Avenue? A. Yes,

we did.

[536] Q. And at this time were you able to observe that

car that you had seen go through that intersection? A. I

was only able to observe the taillights of the vehicle.

They were up in here where the bend in the road would be.

Q. And there had been no intervening traffic? A. No.

Q. So you were satisfied that those taillights were the

car that you had seen? A. That’s right.

Q. How long would you say it took you, Officer Brady,

to turn that cruiser around and to go back after this cart

A. I say a matter of a few seconds, that’s about all.

Q. And did your automobile then, once you got back

to the Highland Avenue intersection and turned right,

did you accelerate the car, or did Officer Carr? A. Yes,

Officer Carr did.

Q. Ata high rate of speed? A. Yes.

Q. How fast would you say you were going? A. I say

approximately 60 miles an hour or so. ;

Q. At some point you got down to the neighborhood

(537) of Third and Fourth, and Fifth Street in through

there? <A. Yes. ,

Q. Back in the City of Medford, is that correct? A. Yes,

sir.

Q. Would you tell the jury now, Officer Brady, what

observations, if any, you made, at that point. A. At this

Wipers se. writes -

time we were traveling on Highland Avenue, and as I

said, we could see the taillights of the car just going

around the corner. My partner accelerated the cruiser to

approximately this point here, where he observed —

Mr. Smith: Well —

A. — tire marks in the road.

Q. Did youobserve them? A. Yes, I did.

Q. You observed tire marks? A. Yes.

Q. What did you do then? In what direction did the

car got A. The car then went down — the 1967 Ford

then went down Third Street.

Q. Did you see it go down Third Street? A. No. I saw

it on Third Street. But I did not [538] see it make the

corner on Third Street.

Q. You did not see it make the corner on Third Street?

A. No.

Q. Did you go down Third Street or go by itt A. We

went by onto Fourth Street.

Q. When you got by onto Fourth, what did you observe?

A. I observed the 67 Ford pass us — pass in front of

us on Cradock Avenue, which is this street here.

Q. What did you observe about the car at that time,

Officer Brady? A. There were no headlights on the car.

Q. With respect to the cruiser that you were in, was

that cruiser lighted at that time? A. No, and my partner

had shut the lights off as we made the corner onto Fourth

Street.

Q. Now after observing this 67 Ford go by the end

of Fourth Street on Cradock Avenue, what did you do

then? A. We continued on down Fourth Street to Cra-

dock Avenue. Once on Cradock Avenue, we took a right

onto Fifth Street.

Q. Would you tell the jury, if you would please, now

what happened when you took a right onto [539] Fifth

Street? A. As we made the corner I observed the same

Sin

}

lt It Mi a

ae 4

car parked in front of No. 6 Fifth Street. My partner

then pulled the cruiser alongside and a little ahead of

this car, and we both got out.

Q. Officer Brady, when you got out of the car what

was the weather like at that time? A. Pouring rain.

Q. You got out the passenger side on the right front

of the car, is that correct? A. That is correct.

Q. Officer Carr got out of the driver’s side? A. Right.

Q. At the time that you both got out of the car did you

observe anybody there then? A. Yes, I did.

Q. Whot A. Carmen Gagliardi.

Q. Did you see Carmen get out of that Ford? A. Yes,

I did. e

Q. What door did he get out? A. He got out the

driver’s door.

Q. Now at this time was Carmen Gagliardi known to

you, Officer Brady? [540] A. Yes, he was.

Q. Youknew him byname? A. Yes.

Q. After you observed him get out of the car, was there

anybody else that got out of the car, the Ford, that is, at

that point? A. No, there was not.

Q. Now at that time was there some conversation that

was had in your presence between Officer Carr and Car-

men Gagliardi? A. Yes, there was.

Q. Do you recall what that conversation was? A. Yes,

I do. .

Q. Would you tell the jury, if you would please, what

that conversation was that you heard Officer Carr have

at that point with Carmen Gagliardit A. My partner

asked Carmen what was going on. And he said, ‘*Nothing,

I am just going in the house for a minute.’? My partner

then asked who the car belonged to. He said it was his,

that it was a rental.

Q. Did you observe how Carmen Gagliardi was dressed

at thistime? A. Yes, I did.

[541] Q. Would you tell the jury what your memory is

as to how he was dressed at that time? A. He had a

rain and shine trenchcoat type thing. And he had his

hands in his pockets of the coat.

Q. Did you observe what, if anything, Carmen Gagliardi

did after he had that conversation with Officer Carr?

A. Yes. He backed away from us toward No. 9 Fifth

Street; went to the front door, where I believed he lived,

opened the door as if to go in. Then my attention was

drawn back to the vehicle.

Q. John, when you say that he backed away from you,

can you describe what you mean by that? A. Walking

backwards with his hands in his pockets.

Q. So he walked across the street backwards with his

hands in his pockets? A. Right.

Q. And at that time you were aware that he lived on

Fifth Street, is that correct? A. That’s correct.

Q. But you didn’t know what house or what number?

A. That’s right.

Q. Having seen Mr. Gagliardi do that, can you tell us,

Officer Brady, what you did next? [542] A. My attention

was drawn back to the car, and I walked to the rear of

this red Ford.

Q. You walked to the rear of the parked car? A. Yes.

Q. Did you observe what Officer Carr did at this time?

A. Yes, Officer Carr went back to the cruiser and took

out a light, a wheat lamp, we call it.

Q. At that point you were standing near the back of

the car? A. That’s right, at the back of the car.

Q. Is this police procedure? A. Yes. .

Q. So that one of you stands to the rear of the car

when another is toward the front of the car, is that right?

A. That’s right.

Q. So that you have the car under your observation,

is that it, and it’s occupants? A. Right.

Neal Selatan MLR Salle ME MO CE a hes Ptah Ta fetinrbi hog

Q. Now, when you got the lamp, when Officer Carr got

the lamp, what happened next, what did you observe next?

A. He walked to the right hand side of the car. [543] This

would be the street side of the car.

Q. By the car you mean the Ford? A. The Ford, that’s

correct, the red Ford. And he went to the rear door of

the car where the window was partially open, and he

asked the two men in the back of the car to step out.

Q. How far away were you standing from them when

they stepped out? A. Between four and six feet, I would

say. When they left the car, from the rear of the car

door to the rear fender of the ear.

Q. Asclose as weare? A. Closer.

Q. Approximately at this distance? A. Approximately

that distance, yes.

Q. You were at the rear of the car, so that as these

people stepped out, is it safe to say they came out this

way, is that right? A. Pardon me?

Q. Is it safe to say that they came out this way?

A. That’s right.

Q. With their back toward you? <A. Yes.

[544] Q. Did the two of them come out into the street?

A. Yes, they did.

Q. Did you observe whether or not they both came out

the samedoor? A. Yes, they did.

Q. And did you then put yourself in a position where

you could look at these particular men? A. Yes, I did.

Q. How did you do that? A. I moved to the right which

would be further out in the street.

Q. You moved at an angle to the right so that you

could observe who they were? A. Yes. :

Q. The two men are now standing on the street?

A. That’s right.

Q. Now, do you know which man it was, based on

these sequence of events, that was the first one that came

out of the back seat? A. Yes, I do. That was Frank

Oreto.

Q. Who was it that followed him out of the back seat?

A. Butch DeChristoforo.

[545] Q. Did you know him at that time as Butch De-

Christoforo? A. No, I did not.

Q. Did you know his name at all? A. No, I did not.

Q. Now when these two men got out of the back seat,

at this point was there some conversation that you recall,

if youdo recallany? A. Yes.

Q. Wasthere? A. Yes.

Q. Did you have any conversation with them? A. No,

I did not.

Q. Officer Carrdid? A. Yes.

Q. Incidentally, at this time, Officer Brady, you hadn’t

been a police officer very long, is that right? A. No, I

had not.

Q. So you were what, a junior man with reference to

Officer Carr? A. That’s correct.

Q. So he did the questioning? A. Right.

[546] Q. At this particular time, would you tell the jury

what conversation you recall that Officer Carr had with

the men that you identified as Oreto and DeChristoforo?

A. Yes, sir. He asked both men if they had any identifica-

tion.

Q. Did you hear whether or not either one of those

men made an answer to that or both of them? A. They

both answered they had none.

Q. They both said no, is that correct? A. That’s cor-

rect.

Q. Or, they hadnone. A. They had none.

Q. Tell us what happened then or what you shovcved

after that. A. Patrolman Carr asked them what their

names were.

Q. And do you recall whether or not either one of

os RES > EN Ca POS AO ea a

those men answered when he asked what their names were?

A. Yes, I do.

Q. Who answered? A. Mr. Oreto answered and said

his name was Joseph Rego, and that he was from Boston.

[547] Q. Did you hear whether or not Mr. DeChristoforo

answered that question? <A. Yes.

Q. Did you hear what he said? A. He gave us a name,

but I don’t know what it was.

Q. You don’t recall what that name was? A. No.

Q. Was it ‘‘DeChristoforo’’ to your best memory?

A. No, not ‘‘DeChristoforo.”’

Q. Incidentally, Officer Brady, that man that you told

the jury just a moment ago was Butch DeChristoforo,

is he seated in this courtroom? A. Yes, sir. He is.

Q. Can you indicate where he is seated, to the jury?

A. Yes, he is the one on my right in the dock.

Q. And, that is the man that you heard answer Officer

Carr’s replies together with Mr. Oreto, is that correct?

A. That’s correct.

Mr. Irwin: - May the record indicate that the witness

did identify the defendant, DeChristoforo, in the court-

room.

Q. Now, Officer Brady, after that conversation where

they gave their names, or what they purported to [548]

be their names, tell us what you remember happened next?

A. My partner asked who the man in the front seat was

and what was wrong with him.

Q. Did somebody make an answer to that? A. Yes. Mr.

DeChristoforo said his name was Johnny Simone, and

that he had been in a fight in a joint in Revere, and that

he would be all right, they were going to take him to the

hospital.

Q. Now, up until this point, had you looked at the

man in the front seat? A. Only from what I could see

from where I was standing.

PEIN TES ID

Q. And you said that at one point Officer Carr, before

any conversation with these people, had taken a wheat

lamp and walked past the front of that car, is that cor-

rect? A. That’s correct.

Q. Now, after DeChristoforo said the name was Johnny

Simone and he was in a fight over in Revere and he would

be all right, did Mr. DeChristoforo at that point say any-

thing else? A. Yes, he did.

Q. What did he say? A. He said he wanted to go over

to Carmen’s house.

[549] Q. And, did you observe what he did then? A. Yes.

He walked in the same direction in which Carmen had

gone, to Number 9 Fifth Street.

Q. Now, did you make any observations as to what

these two men, Oreto and DeChristoforo, were wearing

that particular morning? A. Yes.

Q. Could you tell us as best your recollection is as to

what they were wearing that morning? A. Yes. Mr. Oreto

had a — I believe one of these new Army type raincoats,

very light-weight plastic type, and Mr. DeChristoforo also

had a trenchcoat type of raincoat on.

Q. As you stood in the street there was it raining?

A. It was pouring, yes.

Q. Very heavy rain? A. Very heavy.

Q. Were they wearing hats at the time? A. No, they

were not.

Q. Would you tell us what else you observed that these

men were wearing, if anything? A. I observed Mr. Oreto

had a pair of black, what appeared to me was kidskin

gloves such as a woman [550] would wear. They had a

V-shaped cut in the back of the hand.

Q. Did you observe, or were you able to observe whether

or not Mr. DeChristoforo had anything on his hands, if

you recall? A. No, I don’t recall that Mr. DeChristoforo

had anything on his hands.

Q. You made no observation of that? A. No, I did not.

Q. Do you recall whether or not he had his hands in

his pockets or not? A. No, I don’t.

Q. Youdon’t remember? A. No.

Q. Incidentally, how much time elapsed in the sequence

of events that you just testified to when you stopped the

cruiser beside this car; how much time would you judge?

A. It was very fast; everything happened very fast: I say

a matter of two or three minutes at the tops.

Q. When Mr. DeChristoforo said he wanted to go get

Carmen, did you observe him walk away in a particular

direction? [551] A. Yes, sir, I did.

Q. You made no effort to stop him at that point? A. No.

Q. And, did you see where he went, Officer Brady?

A. Yes.

Q. Where did he go, in what direction? A. He also

went towards No. 9 Fifth Street.

Q. And, after you saw him go in that direction, what

did you do then? A. I, myself, and my partner, and Mr.

Oreto walked around to the other side of this red Ford.

Q. You walked around the other side of the red Ford.

As I understand it, so the jury can understand: These

conversations that you just told us about took place out

in the street? A. Yes.

Q. Which would be to the right of the parked Ford,

is that right? A. That’s right.

Q. And, to the rear of the Medford Police eruionr’

A. Yes, sir.

Q. Now, you say that after DeChristoforo walked off

in the direction of No. 9 Fifth Street, you then [552]

directed your attention back to Mr. Oreto? A. That’s

correct.

Q. And, did you walk some place with Mr. Oreto?

A. Yes, I walked around to the front of the red Ford and

around onto the sidewalk.

—— “:

Q. Up onto the sidewalk? A. Onto the sidewalk.

Q. In front of what number? A. That would be No. 6

Fifth Street.

Q. Did Officer Carr come around there with you? A. Yes,

he did. He was in front of myself and Mr. Oreto.

Q. And, at this time was Mr. Oreto saying anything

toyou? A. No, he was not.

Q. And, would you tell us that happened when you got

around to the other side of the Ford? A. My partner

shined the light through the rear window of the car, and

opened the door, and pulled out two guns. And, he asked

Mr. Oreto if these were his guns —

Mr. Balliro: I object, if your Honor please to the con-

versation.

[553] The Court: He may have it.

Mr. Balliro: Exception.

Exception No. 71

Q. Did he say something to Oreto about these guns?

A. He asked Mr. Oreto if they were his guns.

Q. Did Oreto make any answer to that? <A. He said,

‘No.’

Q. Where were you standing at this time? A. I was

closer, I would say, to the bushes on the sidewalk, between

the bushes and the car on the sidewalk.

Q. There are bushes in front of No. 6 Fifth Street, is

that correct? <A. Yes.

Q. Tell us if you would please, whether there was any

other conversation at that point about these guns. A. Not

that I can remember, no.

Q. Did you observe what Officer Carr did with those

guns? A. Yes, he took them and put them on the front

seat of our cruiser.

Q. At this time were you still standing there with [554]

Mr. Oreto? A. Yes, I was.

Q. What happened when Officer Carr came back, if he

ofl ee ae oe

—

OR BIBI CBIR AG EE i

inal ces MN te SD a Sn Peden

did come back? A. Officer Carr came back and opened

up the driver’s door of the red Ford, and reached in and

checked Mr. Lanzi’s body to see if the man was still alive

or dead.

Q. Did you observe what he did, John? A. Yes, I did.

Q. What did he do? A. He put his hand into the coat

of the man that was in the car to feel and see if he had

any heartbeat.

Q. And, did you observe him take his hand away?

A. Yes.

Q. What happened after Officer Carr did that? A. He

got back out of the car and asked me to go in and check

the man in the front seat.

Q. Did you do that, Officer Brady? <A. Yes, I did.

Q. Would you tell the jury what you did? A. I also

did the same thing: I put my hand into [555] his clothing,

and I also felt the pulse to see if I could get a pulse in

the wrist, which I couldn’t.

Q. And, at that point were you satisfied that he was

dead? A. Yes.

Q. What happened after that, after you did that? A.I ,

stepped back out of the car, told Mr. Oreto to turn around/

and put his hands on the roof of the car and I searched

him, and put handcuffs on him.

* * *

[558]. (Mr. Montgomery Talbot entered the courtroom.)

Q. Did you find any of the men that you saw that night?

A. No, we did not.

Mr. Irwin: If Your. Honor please, with the permis-

sion of the Court, I would like the chemist to turn over

to me a pair of gloves that he has in his possession right

now; and inasmuch as he is a witness, I would then ask

the Court to excuse him from the courtroom. .

The Court: All right.

(Mr. Talbot handed an object to Mr. Irwin and then

withdrew from the courtroom.)

Q. Now, Officer Brady, are those the gloves that you

saw Frank Oreto wearing that night? A. Yes, they are.

Q. And are those the gloves that, to your present know-

ledge, were recovered by Officer Walsh in front of 6 Fifth

Street that day? A. Yes.

Q. And turned over to the State Police chemist?

A. That’s correct.

Q. All right.

Mr. Irwin: If Your Honor please, I am going to offer

it.

* * *”

[565] Cross-Examination by Mr. Smith:

* * *

[566] XQ. He didn’t have his hands in his pockets when

he came out of the rear of the car, did he? A. I don’t

think so, no.

XQ. So you had an opportunity to see his hands? A. I

don’t recall.

XQ. Well, in any event, you don’t suggest that he might

have been wearing gloves, do you? A. No, I don’t.

XQ. Where did you get the name of Butch DeChristo-

foro? A. Where did I get the name? Is that what you

said?

XQ. Yes. A. Somewhere along the investigation of this

case.

XQ. You learned, didn’t you, that that was a nickname

he was known as since he was a baby, isn’t that right?

Mr. Irwin: [I object, if Your Honor please.

The Court: Excluded.

Mr.Smith: Exception, .

Exception No. 72

Sh nha ain A eh lle _——

Nonatietnateee ee uaendy &

(MBTY Be

SRNR AMEN hy ORM ie AAD

XQ. Well, you learned that he was known by his family

and friends as Butch DeChristoforo, isn’t that right?

Mr. Irwin: I object on the same ground.

* * *

a a a

[588] Redirect Examination by Mr. Irwin:

Q. Officer, at any time that night did Mr. DeChristoforo

ever tell you that his name was ‘‘Butch?’’ Do you have

amemory ofthat? A. No.

) Mr. Smith: I object. I don’t mind the last part of it.

: I object to the question.

The Court: No.

Then I take it that’s all, Officer, you may step down.

: Is that all?

4 Mr. Irwin: Yes, your Honor.

4 (Witness excused.)

; The Court: The jury may have their lunch. I hope it’s

all arranged in the jury room, and go for the walk as you

suggested; and those of you who don’t want to go for a.

walk, perhaps the Officer will arrange to have somebody

stay with the jurors.

Unfortunately, you either have to go for the walk in

toto or not go at all, because we don’t have that many

officers.

Recess until two o’clock.

(Court recessed at 12:30 p.m.)

[589] Wiuam Mopveno, Sworn

Direct Examination by Mr. Irwin:

Q. Speak into the microphone and identify yourself,

please. A. William Modugno.

Q. Would you spell your last name? A. M-o-d-u-g-n-o.

OO ODO SLIT LE ELIE IO EIT ELIE CSE III LDL SA IOI OT

Q. Where do you live, sir? A. 9 Fourth Street, Med-

ford.

Q. And your occupation, sir? A. Electronic engineer.

Q. By whom are youemployed? A. Itek Corporation.

[590] Q. All right. Sir, how long have you been living at

9 Fourth Street? A. Twenty-five years.

.Q. All right. Now, directing your attention back to July,

1967, specifically July 25, 1967, were you living at 9 Fourth

Street on thatday? A. Yes. -

Q. All right. Is that a 2-family house or — A. Yes, it is.

Q. All right. And does some other member of your

family live there with — A. My brother. He lives up-

stairs.

Q. Directing your attention to this day, the 25th day

of July, 1967, did you have an occasion to be in the back

yard of your house? A. Yes.

Q. That particularday? <A. Yes.

Q. Do you recall what time in the day it was, Mr. Mo-

dugno? A. It was late afternoon, after five o’clock.

Q. All right. And will you tell us what you were doing

in the back yard? A. I was putting up a grape arbor.

The old one fell [591] down so I was putting up a new

one.

Q. All right. You were putting up, a new grape arbor?

A. Arbor.

Q. All right. And pursuant to that effort, were you

doing some digging? A. Yes. I was starting to dig a

hole for the post.

Q. And at some time, Mr. Modugno, while you were

digging, did you find something? A. Yes. First shovel

I turned over, the gun fell out.

Q. Youfoundagun? A. Yes.

Q. And what, if anything, did you do with the gun

when you found it? A. Well, first thing, I went down

the cellar and washed it.

re, ele eee eee PS ae

nore : —

Q. You picked it up? A. Picked it up.

Q. Would you describe to the jury what it looked like

when you picked it up? A. It was caked from the mud.

Q. Cakedfullof mud? A. Yes.

The Court: What day was this now?

Mr. Irwin: July 25, if Your Honor please, [592] 1967.

Q. Now, you took it down the cellar? A. Yes.

Q. And you did something with it down there, sirt

A. Yes. I washed it.

Q. You washed it? A. I wasn’t sure it was a real gun

or not.

Q. What? A. I wasn’t sure whether it was real or not.

Q. So you washed it? A. Yes.

Q. And at this time did you make a determination that

it was a real gun? A. Yes, after I took some of the mud

off.

Q. All right. And what did you do with it then, sir,

after you made that determination? A. I wrapped it in

cloth and I called the police station.

‘Q. You called the Medford Police. All right. And did

somebody fronr the Medford Police come down to your

house? A. Yes.

Q. Do you know who it was? A. Officer Sacco.

[593] Q. Do you know Leo Sacco, of the Medford Police?

A. No, I don’t know him personally.

Q. You know him as a result of seeing him that day?

A. Yes.

Q. Is he the officer that came? A. Yes.

Q. Now, at this time did you indicate to him where you

had found this particular weapon? A. Yes. I showed him

the spot.

Q. All right. And did you also turn the weapon over

to himin thiscloth? A. Yes.

Q. I show you these —

Mr. Irwin: Excuse me. I am sorry.

(Photographs shown to defense counsel.)

Q. I show you these three photographs, Mr. Modugno,

and ask you whether or not those are fair representations

of certain areas of your back yard and your premises at

9 Fourth Street? A. Yes.

Mr. Irwin: If Your Honor please, I would like to offer

these three photographs.

(Photographs shown to the Court.) E

The Court: All right. They may be marked. 3

[594] (Three photographs marked Exhibits 15, 16, and 17,

respectively, and received in evidence.)

Q. I show you, Mr. Modugno, this photograph which is a

now marked Exhibit 16. Would you take that photograph,

sir, and, if you would, please, point out to the jury — in :

separate sections — first this half of the jury, where it

was that you found-that gun? A. Here (pointing).

* Q. And does this photograph, Exhibit 17, does that in-

dicate a closeup of that particular area that you pointed

out, where you found that gun? A. Yes, it does. 3

Q. All right. Drawing your attention to this photograph

which is marked Exhibit 15, would you tell the jury, if

you would, please, whether or not this is the side of your

house or the extension of the driveway that comes in

from Fourth Street? A, Yes. The driveway is over here.

This is just a piece of land.

Q. Now, is that driveway, or: in 1967, in April of 1967,

was that driveway there then? A. Yes.

~.Q. All right. And is there a fence to close off that [595]

driveway up there? A. Yes. When you come in from the

street, there is a gate.

Q. Did you ordinarily leave that open? A. Yes.

Q. Beeause you had a car parked there? A. Right.

Q. And, to the best of your knowledge, on April, in

April of 1967, ina eile have been left open for the

purpose of parking vehicles there? A. I do not know.

Q. You don’t know? A. No.

EP Te eT STOO SF OLE, Soe

Abita ihe

Re OWT TT

Q. Okay. Now, directing your attention back here to

this house which is in the photograph here, can you see

that house that I am pointing to? <A. Yes.

Q. And it’s on Exhibit 15. It is what appears to be a

three-decker house to the right of 9 Fourth Street. Can

you tell us where that house is located, sir? A. Fifth

Street.

Q. So your house is on a direct line behind that house

on Fifth Street? A. Yes.

[614] Water Detio Russo, Sworn

Direct Examination by Mr. Irwin:

Q. Sir, will you speak into the microphone, please, and

give us your name and your home address. A. My name .

is Walter Dello Russo, 64 Prince Street, Boston, Mass.

Q. And, would you spell your last name for the record,

please. A. D-e-]-l-o R-u-s-s-o.

Q. Are you married or single, sir?’ A. Married.

Q. Your occupation? A. I am not working right now.

Q. When you are working, sir, what is your occupa-

tion? A. Bartender.

[615] Q. Mr. Dello Russo, directing your attention back

to April 17, 1967, were you employed at that time as a

bartender any place? A. Yes.

Q. Tell the jury, please, where? A. I was working at

the Attic Lounge that night.

Q. Where is that located? A. I don’t know the address,

I forgot it. It’s on Stuart Street.

Q. Stuart Street in Boston? A. Right.

Q. How long had you been working there on April 17,

1967? A. How long? :

Q. For how long a period of time had you been there

up until April 17tht A. I was working down at the Four

Corners Lounge and once in a while they would send me

upstairs.

Q. Do I understand from that, that the Attic Lounge

was up over the Four Corners Lounge? A. Right.

Q. So, this was one bar on top of another, is that [616]

correct? A. Right.

- Q. And, you used to operate between the Four Corners

Lounge and the Attic Lounge? A. Right.

Q. How long had you been there in both of those places

as a bartender? A. About six months to a year, some-

where around there.

Q. When you were working in the Four Corners Lounge

who employed you there, do you know? A. I was em-

ployed by, I think it was Butch DeChristoforo employed

me; and I was working at the Attic first, then I went

downstairs.

Q. Well, what was this Butch DeChristoforo that you

speak of; what was his capacity there? A. He was the

manager in the Attic.

Q. He was the manager in the Attic Lounge? <A. Right.

Q. Is he here in the courtroom, Mr« Dello Russo? A. Yes.

Q. Would you indicate to the jury and to his Honor

where he is seated? [617] A. Right there, on the right.

Q. On the right as you look at those two men? A. Right.

Mr. Irwin: Will the record indicate, please, your Honor,

that he indicated the defendant, DeChristoforo. m

The Court: Yes.

Q. Now, who was in charge downstairs in the Four

Corners Lounge? A. Joey Oreto.

Q. Joey Oreto? A. Right.

Q. Do you know whether or not Joey had a brother?

A. Yes.

Q. What washisnamet A. Frank Oreto.

Q. And, did Frank work in there, toot A. Well, Frank

helped out his brother.

Ve ae es oe 2 ee, gk ee ee! Poe ae

Ma ae); | CU Ee a

od ie bee

Q. He helped out Joey? A. Yes.

Q. Where? A. In both places.

Q. Inthe Four Corners? [618] A. Yes.

Q. And, in the Attic? A. Right.

Q. Do you know Carmen Gagliardi? A. No.

Q. Do you see this man seated on the left down here?

Mr. Balliro: I object.

A. Yes.

Q. Have you ever seen him before?

Mr. Balliro: Please, I have an objection pending, Mr.

Irwin.

The Court: What is your objection?

Mr. Balliro: I object to his directing his attention to

my client, if your Honor please.

Mr. Irwin: If your Honor pleases, I don’t expect he

is going to identify him.

Mr. Balliro: I don’t know what he is going to do.

The Court: The question is — He says that he does

not know Gagliardi. Now, what is the question?

[623] Q. Would you point out in that exhibit where Mr.

DeChristoforo is, to the jury, in relationship to where

Mr. Lanziis standing. A. (Indicating to jury.)

Q. Mr. Dello Russo, were you working the night of April

17, Monday night, 1967? A. Yes.

Q. What time did you come in to work that night?

A. About 6:00, quarter of.

Q. Was Butch there then? A. Well, he opened up for

me.

Q. And, where did you work tending bar that night?

A. Up in the Attic Lounge.

Q. Do you recall what the weather was like that night?

A. Iremember when I went home it was raining.

Q. What time did you go home that night from the

Attic Lounge? A. About quarter past 2:00 — 2:00 or

quarter past 2:00.

Q. And, you worked up there tending bar until about

quarter past 2:00? A. Right.

[624] Q. When you left at quarter past two, was Butch

there? A. Yes.

Q. All right. And before you left that night at quarter

past two, could you tell us what Butch was doing at ap-

proximately quarter past two?

Mr. Smith: Pardon me, Your Honor. Now, I can under-

stand the motivation, but I assume that the District At-

torney is constantly referring to Mr. DeChristoforo as

Butch.

The Court: Rephrase the question.

Mr. Irwin: Iam sorry.

Q. When I refer to ‘‘Butch’’, I am sorry. You under-

stand that I mean Mr. DeChristoforo, is that correct?

A. Yes.

Q. Where was Mr. DeChristoforo when you left at quar-

ter past two? A. Well, as usual, he was getting every-

body out.

Q. What do you mean by ‘‘getting everybody out’’?

A. Well, he was calling, ‘‘It’s all over, fellows. Let’s go.’’

Q. ‘‘Let’s go.’? Okay. Was there anybody else near Mr.

DeChristoforo there, when you left at [625] quarter past

two, that you know? A. Not near him, like, you know

what I mean, whoever was at the front, like, I tell you,

when you get through there, you know, you’re through.

Q. Okay. You know you’re through, right? A. Well,

the go-go, I can’t stand that loud music.

Q. They have go-go dancers up there? A. At the time,

yes.

Q. All right. Now, was Mr. Frank. Oreto there when

you left at quarter past two? A. Yes.

Q. And how far away was he from Mr. DeChristoforo

at quarter past two when you left? A. Frank was at

the bar, and Mr. DeChristoforo was having, you know,

emptying the place out of customers.

Q. And Frank Oreto was standing at the bar, is that

right? <A. Yes.

Q. Did you have some money with you that night?

A. Yes.

Q. — from the bar? A. Yes. I gave the money to

Frank to give to his brother.

[626] Q. You give — you gave the money to Frank Oreto

at quarter past two to give to his brother? A. Right.

Q. All right. Do you have any idea of how much money

itwas? <A. No, I don’t. At the time, no.

Q. Noideaatall? A. No.

Q. Don’t know Carmen Gagliardi? A. No.

Q. Did you see Joseph Lanzi there that night? <A. No.

Mr. Irwin: Okay. That is all, Mr. Dello Russo..

Cross-Examination by Mr. Smith:

XQ. Mr. Dello Russo, what is the closing hour of —

A. Two o’clock.

XQ. Two o’clock. And Mr. DeChristoforo worked up

there asmanager? A. Right.

XQ. And I think you said his function,’ part of his

function, at least, was to see to it that nobody [627] was

served drinks after closing hours? A. Right.

XQ. And to have them leave, right? A. Right.

XQ. And at times there would be people there who

had a drink on the bar or at the table, if there are tables

there, before two and were allowed to finish their drinks,

is thatso? A. Oh, yes.

XQ. So that someone might not be ready to leave until

quarter past two or 20 past two or maybe half past two,

is that right? A. Yes.

XQ. And there was nothing unusual about the place

closing down and you leaving around quarter past two or

so? <A. No.

XQ. And nothing unusual about Mr. DeChristoforo

asking the people who were— A. No.

XQ. — in there to leave because — A. That is the

procedure.

XQ. All right. Had you seen — strike that.

Mr. Smith: That is all.

[628] Susan Morrison, Sworn

Direct Examination by Mr. Irwin:

[629] Q. Inwhat capacity? A. Secretary.

Q. At some particular location at Harvard? A. Grad-

uate School of Education.

Q. All right. How old are you, Miss Morrison?

A. Twenty-nine.

Q. All right. Directing your attention back to April 17

of 1967, a Monday night, did you have an occasion to be

in Boston that night? A. Yes.

Q. All right. Could you tell us, bringing your attention

to the late evening of hours going into the early morning

hours of April 18, whether or not you Hi@@ an occasion to

go to an establishment known as the Attie¢ Lounge? A. Yes.

Q. Could you tell the jury where that is located, if you

recall? A. It’s on Stuart and Tremont.

: * * ee

[632] Q. All right. And would you tell us, if you would,

please, whether or not — will you tell us, if you would,

please, whether or not when you got up there that morn-

ing, you saw anybody that you knew up there, apart from

the people that you went up with? A. What do you

mean? Who I knew?

Q. Well, let me ask you this: Let me put it another way.

At that time did you know a man by the name of Benja-

min or Butch DeChristoforo? A. I knew who he was.

Q. And by what name did you know him? A. Butch

DeChristoforo.

Q. Allright. Is he herein the courtroom? A. Yes.

Q. Would ygu indicate to the jury and to His Honor

where he is seated in the courtroom? A. Sitting over

there (pointing).

Q. Pardon? you have to speak up into that microphone,

please. A. He is sitting behind the woman leaning on

her elbow.

Q. You see the two men seated in the rear of the court-

room? [633] A. Yes.

Q. As you look at them, can you tell us which one he

is? A. The one on the right.

Q. As youlookathim? A. Yes.

Mr. Irwin: May the record show that she indicated

the defendant DeChristoforo?

The Court: Yes.

Q. So you say you knew him by the name of Butch

DeChristoforo? <A. Yes.

Q. When you got there that night at 1:15, did you see

Butch DeChristoforo? <A. Yes.

Q. All right. Do you know or did you know at the time

a gentleman by the name of Carmen Gagliardi? A. Yes.

Q. All right. Keep your voice up, please. Would «you

tell us, Miss Morrison, whether or not you saw Carmen

Gagliardi that morning at the Attic Lounge? A. Yes.

Q. And how long had you known Carmen Gagliardi?

[634] A. I had seen him, I don’t know how long.

Q. You will have to keep your voice up, please. A. I

don’t know.

Q. Allright. Is he seated in the courtroom? A. Yes.

Q. Would you indicate where he is seated? A. Here on

the left.

Q. All right. Did you speak to Carmen Gagliardi that

night? A. Yes.

Q. And was it when you first arrived? A. Yes.

Q. Keep your voice up, please. A. Yes.

Q. Do you recall what you said to him and what he

said to you? <A. He said: hello.

Q. He said hello. All right. Did you speak to Mr. De-

Christoforo that night? A. No.

Q. Pardonme? A. No.

Q. All right. Now, how long were you there, Miss Mor-

rison? [635] A. Until closing, two o’clock.

Q. Until two o’clock? <A. Yes.

Q. All right. And at the time that you left, did you say

goodnight to either one of these two men as you left?

A. I think I might have said goodnight to Carmen.

Q. ToCarmen? A. Yes.

Q. Did you know Joe Lanzi? A. No.

Q. All right. Did you know Frank Oreto? A. No.

Q. Pardonme? A. No.

Q. As you went out at two o’clock, Carmen Gagliardi

was there, is that correct? A. Yes.

Mr. Irwin: That’s all.

Cross-Examination by Mr. Smith:

XQ. Miss Morrison, did you know that Carmen Gagliardi

lived in Medford? A. No. :

[636] XQ. Did you know that? A. You mean, do I know

that now?

XQ. Well, all right. Do: you know it now? A. Yes.

XQ. Did you know what Benjamin DeChristoforo lived

in Stoneham? A. No.

Mr. Smith: That is all.

Mr. Balliro: I have no questions.

Mr. Smith: Oh, pardon me.

XQ. (Mr. Smith, continuing cross) Was it raining very

hard when you left? A. Yes.

Mr. Smith: Thatis all.

The Court: That is all.

Mr. Irwin: Thank you.

(Witness excused.)

Mr. Irwin: I call Montgomery Talbot, if Your Honor

please, the State Police chemist.

Mr. Smith: Before he starts off, may we have a 5-minute

recess?

The Court: Yes. It is about time to have a 5-minute

recess so we will take one.

(Recessed at 3:30 p.m.) »

[673] Wiuu1aMm F. Cummines, Sworn

Direct Examination by Mr. Irwin

Q. Mr. Cummings, would you speak into the microphone

and identify yourself. A. William F. Cummings.

Q. And your home address, sir? A. Main Street, Read-

ae a

Q. And you are a State Police Officer? A. Yes, sir.

Q. How long have you been a State Police Officer? [674]

A. Fifteen years.

Q. Mr. Cummings, directing your attention back to April

of 1967, you were employed, were you not, as a ballistician

by the State Police? A. Yes, sir, I was.

Q. Would you tell the jury if you would please, of your

background and experience in ballistics? A. I was‘a mem-

ber of. the State Police Officers for fifteen years and for

two years I was assigned to the Firearms and Identifica-

tion Bureau, State Police Headquarters. During this period

I had not only received specialized training from the experts

of the Commonwealth, but also in-service training in small

arms plants. I have examined approximately 800 to 1000

weapons of all descriptions. I conducted approximately 750

microscopic comparisons and examinations, consisting of

bullets, cartridge casings and related ballistics material. I

have had the privilege to qualify before the Superior Courts

of the Commonwealth as a firearms identification techni-

cian.

* * e

[676] Q. Would you describe to the jury your observa-

tions of these two weapons when you first saw them. A. The

Rohm derringer was in a half-cocked position, which means

that the hammer was halfway to the rear of the revolver.

The .38 special Smith & Wesson revolver had a closed

cylinder, and I did not know what it contained until I had

opened it.

Q. When you opened the .38 Smith & Wesson snub-nosed

revolver, what did you observe then? A. I observed that

it was loaded with four live rounds of .38 special caliber

ammunition and one discharged casing.

Q. I show you first of all this weapon here which is Ex-

hibit 2. If you would examine that Mr. Cummings please.

A. Yes, sir.

Q. Do you recognize that gun? A. Yes, sir, it’s one of

the two weapons I received from a Carr on the morning

of April 18.

Q. Now you indicated to the j jury that when you received

that particular weapon that it was in a [677] half-cocked

position. Would you indicate how that would be. A. The

hammer was halfway to the rear.

Q.. The hammer of the weapon was halfway to the rear?

A. Yes, sir.

Q. Did you examine that particular weapon Mr. Cumm-

ings that morning to see whether or not it was loaded?

A. Yes, sir, I did.

Q. And what discovery did you make with reference to

that? A. It was loaded with two .38 special caliber rounds

of ammunition.

Q. Now can that weapon hold more than two rounds of

ammunition? A. No, sir, it cannot.

Q. Will you show the jury how that weapon is loaded,

if you would please. A. I am going to have to remove

this tag to break it open.

Mr. Irwin: Do I have the permission of the Court to

have the tag temporarily removed?

The Court: Yes.

A. There is a locking device on the right side of the re-

ceiver. And when it is moved forward, [678] the derringer

pistol breaks open, and two rounds of ammunition have to

. be manually placed in the pistol.

Q. So as I understand it then, the weapon is opened in

this fashion?. A. That’s right.

Q. And then there are two rounds placed in it? A. Yes,

sir.

Q. Is this weapon an automatic weapon? A. No, sir,

it is not.

Q. What type of a weapon is it as far as firing is con-

cerned? A. It is a semi-automatic which means that each

time we want to discharge the weapon, the trigger has

to be pulled on each individual shot.

Q. Now with reference to this particular weapon, would

you explain to the jury whether or not this weapon can be

fired without the hammer being cocked? A. No, sir. To

make it operate, the hammer has to be drawn fully to the

rear, pressure exerted on the trigger allowing the hammer

to fall forward.

Q. So that in the event that after having loaded [679]

this weapon you desired to fire two shots off, you would

have to cock it fully,-is that correct? A. That’s correct,

sir.

Q. Fire the gun like that? A.) Yes, sir. _

Q. And then cock it againt. A. That’s right.

Q. Is that correct? A. Yes, sir.

ARMA

‘ 76

® ~

q Q. So that this gun will not fire from the forward posi-

tiont A. No, sir, it will not.

{680] Q. All right. Is it safe to say, then, that when the

gun is half-cocked, that expedites firing the gun to the

extent that whoever wants to use it thereafter just has

to pull it back that one step further and fire the gun?

A. Yes, sir.

j Q. All right. Now, I take it that you observed that that

particular weapon, with its two rounds of ammunition, had

: not been fired. A. No, sir, it had not. : |

Q. All right. You have the two rounds of ammunition with

you? A. Yes, I do. :

Q. Now, with reference to this 38 caliber snub-nosed

I revolver, would=you see if you can identify that, please?

Mr. Smith: What exhibit?

; Mr. Irwin: It’s Exhibit 3, I believe. (After checking)

: Exhibit 3. .

} Q. Can you identify that, Mr. Cummings? A. This is the

second of the two guns I received from Officer Carr of the

Medford Police Station.

Q. All right, And when you received this, did you make

; an investigation to see whether or not [681] that gun was

loaded? <A. Yes, sir.

* Q. All right. And, first of all, tell us whether or not the

gun was loaded? A, It was loaded with four live rounds

of .38 special caliber ammunition.

Q. Did it have anything else in it?’ A. It had one dis-

charged casing located directly underneath the firing pin.

Q. There was one discharged cartridge casing directly

under the firing pin?’ A. Yes, sir.

Q. All right. Now, how many cylinders are involved in

that particular weapon? A. There’s five in this.

-Q. All right, So that when it’s fully loaded, it contains

five rounds of ammunition? A. Yes, sir.

ay.

SPREE SERRE eS CARRE UGTA RRNA PR RS:

SIAR ee ee sae in ol en Maal ere Nase Moye ceca eae

Q. All right. Can we show it to the jury, the process of

opening the gun for the purpose of loading it? Can you

indicate to the jury how that’s doneft A. There is a

cylinder catch on the left side of the receiver. When it’s

pushed to a forward ... 7

=: o . .

[684] Q. So that this weapon had been fired? A. Which

indicates that the weapon had been fired, yes.

Q. Now, are these the only two .weapons that you re-

ceived that particular morning? A. Yes, sir, it is.

Q. Having received those particular weapons, did you

then go to the Gaffey Funeral Home? A. Yes, I did.

Q. Were you present when Dr. George Katsas performed

an autopsy on the body of Joseph Lanzi? A. Yes, sir,

I was.

Q. Would you tell the jury whether or not you observed

him remove any bullets from the body of J oseph Lanzi?

A. Yes, sir, I did.

Q. Will you tell us, would you tell the jury where or from

what parts of the body he removed those bullets in your

presence? A. He removed one spent bullet from the head

of the decedent, and he removed three bullets from the chest

cavity of the decede

7 7 >.

[688] Q. All right. Now, will you tell the jury what stria-

tions you observed on the two test specimens that you

fired from that particular Exhibit 3? A. The striations

found on the recovered bullets — and there were numerous,

many — were then compared against the markings on the

bullet recovered from the head of the decedent; and as a

result of these microscopic examinations, I am of the opi-

nion that this bullet that was recovered from the head of the

decedent was fired from this .38 Smith & Wesson revolver

and no other weapon.

Q. So it is your opinion, then, based upon your examina-

tion, that the bullet that was removed from Joseph Lanzi’s

head was fired by Exhibit 3 and no other weapont~ A. That

is right.

o * .

[693] Q. How many other bullets did you get from Dr.

Katsas? A. I received three other bullets.

Q. All right. And did you observe where those were

taken from in the body of Joseph Lanaj? A. In the chest

area, in the stomach.

Q. All right. And what, if anything, did you do with

those particular bullets? A. I conducted the same kind

of an examination on these three bullets. One of them

weighed approximately 83.7 grains. No. 2 weighed ap-

proximately 84 grains. And the third bullet weighed 84.6

grains. As a result of physical examination, I am of the

opinion that they are three spent .32 Smith & Wesson

caliber ammunition.

Q. All right. A. As a result of microscopic examination

of these three. bullets, one against each other, I am — I

was of the opinion on this date that they were fired from

the same weapon, which weapon I did not have in my pos-

session at that time.

Q. But your preliminary tests indicated that the three

.32 caliber bullets that you received from [694] the body

of Joseph Lanzi had been fired from the same weapon?

A. Yes, sir.

Q. And that weapon, as of April 18 or in April, 1967,

was not at that point in your possession, is that right?

A. No, sir, it was not.

Q. All right. Now, at the autopsy did you observe the

body of Joseph Lanzi before the doctor opened the chest

cavity? <A. Yes, sir, I did.

Q. All right. I show you this photograph which is Exhibit

8 in this trial. Do you recognize that? A. Yes, sir.

aaa 3. SR RP \w Kp atute - ,

. PHETRAL PNET ORR IRE EIS: eI RARE UE PEI TEIN LE tele

SN oak aan as

7a Gt, Sly ae eee ee

Q. And does that photograph fairly indicate the posi-

tion of the wounds that you saw in the chest of Joseph

Lanzi on that particular morning before the body was

opened? A. Yes, sir,

[695] Q. And did you observe those particular holes there?

A. Yes, sir, I did.

Q. Would you tell the jury what you observed about

them? A. I observed there were large concentrations of

powder residue around the hole on the left side.

Q. Did you observe apparently how many holes there

were there? A. Thore appeared to be two.

Q. And in fact, there were three bullets recovered, is that

right? A. Yes, sir.

Q. Based on your observations and analysis of that

particular wound, did you reach an opinion as to how

close the gun was held to that particular body when it was

fired with reference to that area of the body? A. Yes, sir,

I did.

Q. What is your opinion on that? LA. I would say within

two inches. The end of the muzzle was no more than two

inches away from the body.

Q. Was no more ‘han two inches away?

. : .

[697] he cleaning solvent. It was in a very dirty, rusty

condition. And afte; jt had soaked approximately a day

or two days, and it came cleaner, I test-fired this weapon

in the same manne; ag [| testified, and I recovered bul-

- lets.

- Q. You fired it into some cotton? A. Into the cotton

because of the test Ssecimens ; and compared those test spe-

cimens against the three .32 S & W caliber spent bullets

Thad received from Dr; Katsas on April 18, A967.

Q. And based on your comparisons, did ¥ou reach a con-

clusion with referee to those? A. Yes, sir, I did.

TR ANT

Q. Would you tell the jury what your opinion is in that

regard? A. In my opinion the three .32 caliber S & W

spent bullets recovered by Dr. Katsas from the body of the

decedent were fired from this Harrington & Richardson re-

volver, and from no other weapon.

Q. Do you have those three bullets with yout A. Yes,

sir, I do.

Q. Would you produce those please. A. (Producing

same.)

Q. Sir, these are the three .32 caliber bullets [698] that

you recovered that morning or you took from Dr. Katsas

at the Gaffey Funeral Home which you observed him

remove from the chest cavity of Joseph Lanzi? A. That

is right, yes, sir.

Mr. Irwin: If Your Honor please, I offer these three

bullets.

The Court: - They may be marked.

Why don’t you, if the legend is satisfactory to counsel,

why don’t you put them in the envelope. Were they all in

separate envelopes?

Mr. Irwin: Yes, Your Honor. I will put them in one.

The Court: ‘Show them to counsel.

Mr. Smith: No objection.

Mr. Balliro: No objection.

Mr. Irwin: I will put it in this particular envelope which

the record will show is an envelope which he removed

one of these .32 bullets, but the three are going in there

together.

(Three spent bullets received and marked Exhibit

29.) :

Q. Now with reference to this particular exhibit [699]

' which is Exhibit 18, which you just testified to in your

judgment was the weapon that fired these three bullets into

the body of Joseph Lanzi, could you tell the jury, if you

would please, how that weapon fires. A. That weapon fires

PRIMI a Reta MN 4 . . -

4 RS ERASING EES EO LN IIE STE FIN SHG TR IRCA: NY MAEM LURE SEVERE Dectareaneaa nat

on the same theory as the .38 Smith & Wesson revolver. It

can be fired either in a single action position or a double

action position.

Q. Would you tell the jury, if you would please, how

much trigger pull is required to set this gun off? A. When

I measured the trigger pull of that weapon, after I cleaned

it, it measured approximately eight to nine pounds single

action.

Q. Eight to nine pounds single action? A. Yes, sir.

Q. And how much double action? A. I didn’t measure

that one in a double action position due to the condition of

the weapon.

Q. And would you say that the eight to nine pounds was

due to the condition of the gun at the time you got it?

[700] A. I would say so. That, and its age.

Q. How old is that gun incidentally? A. Better than

fifty years old.

Q. Ordinarily, if the gun had not been in the condi-

tion that you had it, do you have an opinion as to what

the trigger pull would be? A. If the weapon is in decent

condition, it would again average three to five pounds

single action, approximately ten pounds on double ac-

tion.

Q. Were there any other things that you received from

Dr. Katsas at the autopsy? A. Yes, sir, there were.

Q. What else was there? A. I received five fragments

of lead which the doctor recovered from the head of the

decedent.

Q. Is there anything significant about those? A. Only

that they are the fragments of lead. There was no dis-

cernible impressions on the fragments, therefore, I am

unable to say from what weapon they came from.

Q. Is it safe to say that the fragments of lead would be

caused by the bullet, the .38 caliber bullet that you re-

t sor Pre, . a5 OODLE

—————— Se ee CPAP RT ASST ee ee POULIN " ss bois

covered in the lead shearing off as it hit various ob-

jects? [701] A. It would be, yes, sir.

Q. With reference to weighing the bullets, for example,

the .38 caliber bullets that you spoke of, you indicated that

they were different weights? A. Yes, sir.

Q. What would cause the variance of the weight? A. The

lead shearing off. eC .

Q. The lead shears off? A. Shears off; or it gets

damaged from whatever it hits, and there will be notice-

able weight difference even though they are all the same

caliber.

Mr. Irwin: May I have just one moment, Your Honor.

Q. Would you tell the jury, if you would please, with

reference to Exhibit 18: what you found in it when you

first opened it after having it presented to you by Lieutenant

Hanley of the Medford Police? A. I found two discharged

.32 caliber casings. I found two live rounds of .32 caliber

S & W ammunition; and one chamber in the cylinder was

completely empty.

Q. Now would you tell us, if you would please, whether

you have those discharged cartridge ...

. * *

[704] Q. And you were satisfied that the discharged cas-

ings were fired with the recovered bullets? A. That’s

right, from the same Harrington and Richardson re-

volver.

Q. And, no other weapon? A. No other weapon.

Mr. Irwin: May I have the three spent cartridge cas-

ings and bullets marked as one exhibit?

The Court: Show them to counsel.

Mr. Smith: No objection.

Mr. Balliro: No objection.

The Court: It may be marked.

Mr. Irwin: Again, this envelope bears writing, if Your

PEEL IOEEN oat . if ~

3 CEES - PREDERRE EEL AGN OF OR “ ; OK ET ea

Honor please, but it has no reference, I don’t think to any-

thing. ;

(Three spent cartridge casings and one bullet received

and marked Exhibit 30.)

Q. With reference to the three weapons, and particularly

to the Rohm derringer and to the .38 caliber snub-nosed

revolver, are those all firearms within the meaning of the

general laws of the Commonwealth of Massachusetts?

z 6 *

[708] Q. Or, did you observe any powder burns or nitrites

on the left sleeve of the raincoat? A. No, sir, not that

I recall.

Q. Assuming, Officer, that the arm of the deceased was

hanging down in a normal position, would you normally

expect to have found nitrites on the left arm or left sleeve?

A. Depending on how far away the weapon was held, yes,

sir.

Q. Having in mind it was held only two inches. A. I

would think so.

Q. You would expect it? A. Yes, sir.

Q. And then Officer, is it fair to say that your opinion

would be that the arm was probably raised at the time

of the firing? A. No, I have no opinion on where his arm

was, sir.

[709] Q. All right. But at any event — strike that. I

show you Exhibit 4, Officer. That’s upside down. I ask

you whether or not if the arm were in that position as it

appears, the left arm in that position as it appears in

Exhibit 4, that you would ordinarily expect to find nitrites

or powder burns on the raincoat of the left arm? A. If

the weapon was within —

Q. Two inches? A. — two inches.

Q. Yes. A. It’s possible, yes, sir.

Q. Well, ‘‘possible’’. Is it your opinion that you would

normally expect to find— A. You can find that, yes, sir.

PERS EEE ROE AIEEE ERIM ISL OEE

Q. Now, then, with respect to the head wound, Officer,

did you make any observations as to any powder burns or

nitrites in that area? A. I looked for them, sir, and I

did not observe any.

Q. At any event, Officer, having in mind the entrance

wound that you saw in the head and having in mind that

the bullet was recovered from in the

* * *

[715] ... or palmprints on that derringer? A. I don’t

know of any report, no, sir.

Q. At least, you don’t know of any report of any print

of DeChristoforo on that derringer, do you? A. I don’t

know of any report, sir.

Mr. Irwin: If Your Honor please, the Commonwealth

will stipulate that there were no fingerprints found on

any of these weapons.

Mr. Smith: Fine.

I have no further questions.

The Court: Mr. Balliro?

Cross-Examination by Mr. Balliro:

XQ. Did I understand you to say, Mr. Cummings, that

with regard to the entrance wound on the head you made

no observation of powder burns or nitrites? A. I didn’t

see any, no, sir.

XQ. Well, you did examine the head? A. I looked at

it, yes, sir.

XQ. You felt that that was an important part of your

duty there? <A. Positively.

XQ. And, among other things, in looking at the head...

[762] JosepH A. Sarno, Sworn

Direct Examination by Mr. Smith:

Q. How old are you, Mr. Sarno? A.I am thirty-

one.

Q. Where do you live? A. I live at 50 North Margin

Street, in Boston, Massachusetts.

Q. Is that known as the North End section of Boston?

A. Yes, it is.

Q. Are you married? A. Yes, I am married.

Q. Do you have any family? A. I have three children:

six, four, and three weeks old.

Q. What is your occupation? A. I am a project man-

ager in the computer systems department at Polaroid Cor-

poration in Waltham. ;

Q. Do you have any training? Did you have training

for that job? A. Yes, I do.

Q. What is your education?

Mr. Irwin: I object to this, if Your [763] Honor please.

The Court: What is the question?

Mr. Smith: What his education was.

The Court: Excluded.

* Q. How long have you lived in the North End section

of Boston? A. All my life except for two years in the

military service; and I have’a job in Washington, D.C.

for the Government for a six-month period.

Q. Do you know Benjamin DeChristoforo? A. Yes,

I do. |

Q. Do you recognize him in the courtroom here? A. Yes,

I see him.

Q. Is he the gentleman sitting in the dock here? A. Yes.

Q. How long have you known him? A. Most of my

life. I would say approximately 20 or more years.

Q. During the period of time that you lived in the

mane. P

i nd Srp pene A inepns ars een ert SO MEPERE ESD or age Re SRaeE NR

North End, did he live in the North End of Boston?

A. Yes, he did.

Q. Did you know a Joseph Lanzi? A. Yes, I did know

Joseph Lanzi.

[764] Q. How long did you know J oseph Lanzi? A. Ap-

proximately the same period: twenty or more years.

Q. Do you know whether or not. Benjamin A. DeChris-

toforo has the reputation in the community for honesty? .

Mr. Irwin: I object.

A. Yes, I do.

Mr. Irwin: I object.

The Court: What is the ground for your objection?

Mr. Irwin: The ground is that counsel has done noth-

ing to establish that he ever discussed it with other people.

There has been no foundation laid for this testimony what-

soever.

The Court: ~All right. The question is excluded and

the answer may go out.

You may put the question again to establish the proper

foundation.

Mr. Smith: I don’t know of any other way to put it

except to ask the preliminary question and then go on

from there, Your Honor.

Q. Do you know whether or not he has the reputation

of honesty in the community? <A. Yes, I do.

Q. And, what is that knowledge based upon? [765]

A. That is based upon my own personal feeling and dis-

cussions with other friends, and neighbors and people that

know both of us.

Q. What is his reputation for honesty in the com-

munity?

Mr. Irwin: I object, if Your Honor please.

The Court: You may have it.

The Witness: May I answer that?

The Court: Yes.

MBL MTD

CLINE IES (Cosh Wet ee

A. His reputation is an honest person.

Mr. Irwin: I object and ask that the answer be stricken.

The Court: It may stand.

Q. Do you know whether or not he has the reputation

in the community for violence or non violence? A. Yes,

I do.

Q. What is that based upon? What is your knowledge

of that based on? A. Well, it is based on a couple of

things: one, I have never known or have heard of any-

thing that involved him in any way with violence; and in

addition, the same subject as his honesty, etcetera, in con-

nection with violencevin light of recent events, especially,

has been discussed, [7 he is in my opinion and

in the opinion of others in community, to be a non

violent person. No questigf in my mind, __

Q. Do you know what his relationship was with Joseph

Lanzi? <A. Yes, they were extremely close friends.

Q. Do you whether Benjamin A. DeChristoforo has a

nickname? <A. Yes. -

Q. What is that? A. Butch.

Q. How long has he been known by that name? A. I

would say since probably before I knew him, and that

was early childhood. ;

. Mr. Smith: I have no further questions.

[767] Cross Examination by Mr. Irwin:

XQ. Mr. Sarno, when did you first realize that you were?

going to be a witness in this case? A. A couple of days

ago.

XQ. A couple of days ago? A. Yes.

XQ. That was the first time you were ever asked to be

a witness in this case, is that correct? A. I would say

about one week ago, exactly.

. XQ. After we started impanelling this jury, is that cor-

rect — after this trial started? A. I believe it was the

—— ATARI MVE SLM EON INIA AE SAN TS A TONEY RS LEIS INIT RT HI

same day as the impanelling of the jury; Tuesday it might

have been, I’m not exactly certain.

XQ. So, up until that time, bearing in mind that your

friend, Benjamin, was arrested last November, up until this

past week you had not been asked to be a witness in con-

nection with this case, is that right? A. That’s right.

XQ. Can you tell the jury some of the people that you

discussed the reputation of your friend, Mr. ...

[784] Pumir AntHoxy LaMonaca, Sworn

Direct Examination by Mr. Smith:

Q. What is your full name? A. Philip Anthony La-

Monaca.

Q. Where do you live, Mr. LaMonaca? A. 135 Salem

Street, Boston.

Q. How old are you? [785] A. I am 29 years of age.

Q. Are you married or single? A. Yes, I am married.

Q. Do you have a family? A. Yes. I have one child

and one on the way next month.

Q. What is your occupation? A. Research and develop-

ment technician for Polaroid Corporation.

Q. And you live in the North End section of Boston?

The Court: What corporation was that?

The Witness: Polaroid Corporation. —

Q. How long have you lived in the North End of Bos-

ton? A. All my life, except for two years. I moved to

Medford on Albion Street, and also my time in the service,

three years. ee

Q. Do you know Benjamin A;.DeChristoforof A. Par-—

don me? Niet

Q. Do you know Benjamin DeChristoforo? A. Yes.

Q. How long have you known him? A. Practically all

my life. |

Q. Do you know whether he has a nickname? A. Yes,

I do.

[786] Q. What isit? A. Butch.

Q. And how long has he had that nickname? A. As

far as I can remember, when we were children.

[787] Q. Do you know Joseph Lanzi? A. Yes.

Q: ‘‘Did’’? you know Joseph Lanzi? A. Yes, I do —

did.

Q. Did you know what relationship there was between

Joseph Lanzi and Benjamin A. DeChristoforo? A. Close

friends.

Q. And do you know whether or not Benjamin A. De-

Christoforo had the reputation in the community for hon-

esty? A. Yes, I do.

Q. And what do you base your knowledge of his reputa-

tion on? <A. On honesty?

Q. Yes. A. Well, some of my own past experience, as

far as specifically dealing with money, my own personal

experiences with Butch and also other experiences which

I have heard on occasion that he, you know, that he has

had with other people, other friends of mine, people

that we hung around together —

Q. What is his reputation for honesty? A. Well, I mean,

like I can cite some examples.

Q. No. What is the reputation that he had? [788] A. Oh,

he is an honest person.

Q. And do you know whether or not he has a reputa-

tion in the community for violence or non violence? A. His

reputation is that of non violence.

Mr. Smith: Ihave no further questions.

Cross Examination by Mr. Irwin:

XQ. Mr. LaMonaca, who did you discuss his reputation

with? A. His reputation?

ah RRS FO NE NS LETTE EDEN he teat pb as

dhe ve Tae sehen tbe” fbi? Dir Mi i: cht glia si

jell beh CPLR Rade tL TH

5 iad ia a lal TE cae sae S wnichl site ctl it LO Nae EY iy

XQ. Yes. A. Well, I am trying to think of, you know,

particular people that —

XQ. Thatis— A. — individuals as such.

XQ. That is what I’m interested in, too. A. I think

I can remember one example in particular.

XQ. No. Can you tell us who you discussed it with?

A. The deceased, Joseph Lanzi.

XQ. You talked with Jageph Lanzi about it? A. Yes.

XQ. And when was that? A. During summer vaca-

tion out at Butch’s cottage. ,

XQ. When?...

* . *

[793] ... that it’s the person that I did — I am trying

to recall back in my memory the people that I did dis-

cuss it with at the time. I don’t think I really would truth-

fully say that I discussed it with anybody in particular,

but I know that I have discussed it with friends of mine.

XQ. And what did you say to them? ‘‘Gee, is Benjamin

a violent fellow or a non violent fellow?’’ Is that how the

discussion came up? A. No, no. Situations like we played

sports together, such as football. One particular instance

when we played —

XQ. When was this? A. I would say about 12 years

ago.

XQ. About 12 years ago? A. Or more.

XQ. At that time Mr. DeChristoforo was about 16 years

old, is that right? A. I believe Butch is about 31. If my

math is correct, then —

XQ. If he is 31, then he was 19? When he was about age

19, that’s when you discussed his reputation for violence

or non violence in the community? A. He might have

been a little younger than 19. We... a

eo *

OME MENS SUR SaaS .

PPR BTR REAM EN SP aT ERY —

ET POE PS i LY Sy fete Be

[794] Waurter J. Lrnpsay, Sworn

Direct Examination by Mr. Smith:

Q. What is your full name? A. Walter J. Lindsay.

Q. And how old are you, Mr. Lindsay? A. Seventy.

Q. Where do you live? [795] A. 9 Franconia Street,

Dorchester.

Q. And what is your occupation? A. Retired police

officer. ;

Q. And where were you a police officer before you re-

tired? A. North End, Division 1.

Q. Police officer in the City of Boston? A. Yes, sir.

Q. And when did you retire?’ A. March 1, 1966.

Q. And for how long had you been a police officer in the

North End section of the City of Boston? A. Thirty

years.

Q. And would that cover the period immediately prior

to 1966? A. Yes, sir.

Q. Would it be 1936 to 1966? A. I was in the North

End in ’33, too, but I was up at the other end of it.

[796] Q. And, you were assigned to the North End

section of Boston? A. I was.

Q. During that period of time did you have occasion

to familiarize yourself with the residents of the neighbor-

hood? A. I did.

Q. Did you get to know the DeChristoforo family? A. I

did.

Q. Did you get to know Benjamin A. DeChristoforo?

A. I did.

| , Q. And I am pointing to the young man in the dock.

| ‘A. I know him.

Q. During the thirty odd years that you were down the

North End, did you have occasion to learn of his reputa-

tion for honesty? A. I did.

i the had OE te Mie eS oa ee >aeeers o =

” THA TN

Q. What was his reputation for honesty? A. Truthful

and honest.

Q. Did you have occasion to learn of his reputation for

violence or nonviolence? A. Non violence. Never knew

him to be a violent man. ...

* * *

[300] A. ... 1 Know where it is.

. Q. You do? a Where the section is, but I don’t know

where this place is.

Q. Do you know the Attic Lounge, or the Four Corners

Lounge? A. No.

Q. Did you know he was the manager down. there?

A. I did not.

Q. You didn’t? A. No, I didn’t.

Q. And, the last time you saw him was in 1966 when

yow retired, is that right? A. In around that time, prob-

ably 65 — or late ’69. -

Q. So, you hadn’t seen him for two years prior to this

murder, is that right? A. That’s right.

Q. So, you don’t know what his reputation was in the

community at the time the murder was committed? A. No,

I don’t, no. But, I frequent there at least once a week

for a haircut, and I do talk to all the people down there,

and there is nobody had any bad word about his reputa-

tion. .

[801] Q. During all that time nobody in the barber shop

ever told you that Benjamin was now the manager of the

Attic Lounge up on — A. No, no, they seemed to be

shocked when this happened.

Q. Were they shocked during the two years from 1966 —

Mr. Smith: I can’t hear you.

The Court: Put your question a little louder, Mr. Irwin.

_ Q. Did you say that you were shocked, or somebody else

was shocked? A. They were shocked — the residents of

the North End.

—|

of %

Le SRG OS Mole he

BAT Atte os Saree

aki, Mitt is

ft OOM 6 Ri

Q. When Mr. Lanzi got murdered? A. Shocked that

this fellow was involved in anything like that.

Mr. Irwin: That’s all.

Mr. Smith: Thank you, Mr. Lindsay.

Mr. Balliro: May we approach the bench, your Honor?

The Court: Yes.

(Witness excused.)

* * *

[825] MorninG SESSION

10:20 a.m.

(Lobby conference as follows 3)

The Court: In the trial of the above captioned case,

yesterday, April 28th, Mr. Smith proposed to offer as a

material exhibit and have it marked, the indictment con-

taining all the notations in the case of Commonwealth vs

Oreto — Oreto being one of the persons who the Common-

wealth contends was involved in the venture together with

the two defendants who are presently on trial.

The notations include, by the way, a plea of ‘ guilty,”’

which was accepted by the Court, and the life sentence which

was imposed upon — a plea of ‘‘guilty’’ to the crime of

murder in the second degree, which was accepted by the

Court, and a subsequent life sentence, which was imposed

upon Oreto. |

Mr. Smith offered this yesterday, and it was excluded

by the Court on the grounds of lack of materiality in the

instant cases, and I am marking the document, the indict-.

ment, for identification, Exhibit No. F for identification.

[826] That will constitute Mr. Smith’s offer of proof

since his rights have been saved by the Court in this re-

gard.

Is that adequate?

Mr. Smith: That’s correct.

Exception No. 95

ToL eT ORR QUEEN OF ST gE

The Court: Now, in addition, Mr. Smith in this lobby

conference proposes to offer into evidence two documents.

Would you want to describe them for the record.

Mr. Smith: For the record, I offer a photo copy of

the Commonwealth of Massachusetts Probation Department

record of —

The Court: You are offering them as material ex-

hibits?

Mr. Smith: I might as well do it now. — showing the

record of arrests and convictions of the defendant Ben-

jamin DeChristoforo.

It has been agreed that there is no objection to the form

of the document.

The Court: That is true, Mr. Irwin?

Mr. Irwin: Yes, it is, if your Honor please.

[827] The Court: And, I have ruled that such an offer

would be fruitless because it would be excluded by this

Court, again, on the grounds of materiality; and I save

the rights of Mr. Smith in this regard.

And, I will mark this G for identification.

Exception No. 96

That will constitute Mr. Smith’s offer, is that right?

Mr. Smith: Yes, your Honor.

I also will offer a photo copy of a Boston Police De-

partment record furnished in answer to a summons re-

quiring the keeper of records to bring any and all records

showing arrests and/or convictions of the defendant Ben-

jamin A. DeChristoforo.

This document is not objected to as to form.

The Court: That is true, is it not, Mr. Irwin?

Mr. Irwin: That is, if your Honor please.

The Court: In this connection, the mere fact that Mr.

Smith has not offered them [828] formally in the court-

room is of no account, and they may be viewed in the light

_—

of the circumstances, if he had offered them in the court-

room they would be excluded on the grounds of lack of

materiality. And, his rights in this regard are saved.

It is agreed that the form of the document is not at all

objected to, but it is merely the substance of it, it’s lack

of materiality — I take it is the basis of your objection?.

Mr. Irwin: Yes, it is.

The Court: Mr. Smith’s rights are saved and that

document may be marked for Identification No. H, and may

constitute Mr. Smith’s offer of proof in this matter.

Is that satisfactory?

Mr. Smith: It is, your Honor.

Exception No. 97

The Clerk: Can I have that original indictment of

Frank Oreto and have the envelope marked instead of the

original indictment?

The Court: Yes. I see no objection to that?

[829] Mr. Smith: No objection to that.

(Original indictment of Oreto marked F for Identi-

fication. )

(Photocopy of Commonwealth of Massachusetts Pro-

bation Dept. record of Benjamin DeChristoforo marked

G for Identification.)

(Photocopy of Boston Police Dept. record of Benja-

min DeChristoforo marked H for Identification.)

(End of lobby conference — 10:30 a.m.)

[830] (The Court came in at 10:40 a.m., Tuesday, April

29, 1969.)

The Court: Poll the jury.

(The jurors were polled and each answered to the

calling of his name.)

(Both defendants were present.)

The Court: All right Mr. Smith.

Mr. Smith: William Petrigno.

Spgs —

oe pueeiennmen , ; sage. RRR LOS PPS SENIOR

WitumaM PeEtricno, Sworn

SPR TR RTS a i

i Ap i se Pode

Direct Examination by Mr. Smith:

Q. What is your full name? A. William P. Petrigno.

Q. Where do you live, Mr. Petrigno? A. 34 Crystal Cir-

cle, Burlington, Massachusetts.

Q. Are you married or single? A. Married.

Q. Do you have a family?) A. No family.

Q. What is your occupation? A. I work at the House

of Representatives at the State House, assistant door-

keeper.

Q. How long have you been working up there? A. Ele-

ven years.

[831] Q. Prior to your living in Burlington — is it?

A. Yes.

Q. — where did you live?’ A. The North End. _f

Q. The North End of Boston? A. Yes. a

Q. How long had you lived in the North End of Boston

before moving to Burlington? A. 22 years.

Q. And how long ago did you move to Burlington?

A. Three years ago.

Q. Now do you know Benjamin A. DeChristoforo?

A. Yes, I do.

Q. How long have you known him? A. A long time.

Q. Well approximately how long? A. School days. From

school days.

Q. Since you moved from the North End to Burling-

; ton, did you have occasion to visit in the North End?

; A. Yes. |

Q. How frequently? A. Very frequently. Weekends.

Q. Do your parents still live there? A. Yes, they do,

my mother and my brothers.

[832] Q. Do you know whether or not Benjamin A. De-

Christoforo has a reputation in the community for honesty?

A. Yes, sir.

ROS RR es Det US ee eg A A eT a

—

Q. What is that reputation? A. I have always known

him to be very good and excellent. .

Q. During the time that you worked at the State House

did you observe Benjamin A. DeChristoforo up there?

A. Yes. .

Q. And what was his job up there? A. He was a Page

in the State Senate.

Q. Do you know for how long? A. Approximately seven

or eight years.

Q. And while he was a Page up in the Senate, do you

know whether or not he had a reputation in the State House

community for honesty? A. Yes, sir.

Q. What was that reputation? A. They all — and I

say they all, sir — the Senators, and the Representatives

and the people he worked with, they all admired him and

respected him. *

Q. Do you know whether or not while he was working

up at the State House he had a reputation for [833] being

a violent or a peaceful man? <A. Peaceful man, non-

violent.

Mr. Smith: That is all.

Mr. Irwin: No questions.

The Court: That is all. .

(Witness excused.)

Mr. Smith: John Trulli.

Joun G. Truuut, Sworn

Direct Examination by Mr. Smith:

Mr. Smith: Is there a blackboard? Your Honor, could

we use the blackboard? Well, let me see if it becomes ne-

cessary, it may not be.

Q. What is your full name? A. John G. Trulli.

Q. Where do you live? A. 52 Wentworth Street,

Malden.

i ei i i ak alain atch bi Mig el in Wes CRA Ala an RAI a ie Mt IEEE

Su Ree pre fast

Q. What is your occupation? A. My occupation is parts

and service coordinator and body shop manager.

Q. How long have you been in that business? A. 20

years, sir,

* * *

[851] The Clerk: 84,307, Carmen R. Gagliardi. 74,307,

your default is removed, and probation is revoked and ter-

minated.

77,686, Carmen R. Gagliardi. You will hearken to the sen-

tence the Court has awarded against you: The Court having

duly considered your offense orders that you be punished

by confinement in the Massachusetts Correctional Insti-

tution at Walpole for a term of life.

77,687, Carmen R. Gagliardi, you will hearken to the

having duly considered your offense orders that you be

punished by confinement in the Massachusetts Correctional

Institution at Walpole for a term not exceeding five years

nor less than four years. This sentence to be served con-

currently with the [852] sentence imposed this day on

77,686. And, on this sentence you have the right to appeal

in writing within ten days to the Appellate Division of this

Court from the sentence imposed this day; and that you

stand committed to our common jail pursuant to your

removal to said institution.

77,686 and 7, Carmen R. Gagliardi: credit of one hund-

red twenty-eight days will be so noted in the mitimus which

will accompany you to said institution.

The Court: Now, we will have a very short recess be-

fore bringing the jury down.

I would like to see Mr. Smith and Mr. Irwin in my

chambers, please.

(Recessed at 12:30)

(Court-came in courtroom at 12:40.)

(Defendant DeChristoforo is present.)

5 SELIG LE LNDY NGI IE LIE ITE OL

The Court: Mr. Foreman, madam and gentlemen of

the jury. You will notice that the defendant Gagliardi is

not in the dock. He has pleaded ‘‘guilty’’, and his case

has been disposed of.

We will, therefore, go forward with the [853] trial of the

case of Commonwealth vs DeChristoforo.

* * *

[854] AFTERNOON SESSION

(The Court came in at 2:45 p.m. )

The Court: Poll the jury.

(The jury was polled and each answered to the calling

of his name.)

(The defendant DeChristoforo is present.)

The Court: Are you now ready for argument, Mr.

Smith?

Mr. Smith: Yes, Your Honor.

May it please the Court, Mr. Foreman and members

of the jury. At this time I am called upon to make what

is known as a closing argument. Just as you have been

told that an opening argument, or an opening talk, an

opening to the jury is not evidence, so a closing argument

is not evidence.

It is my function to attempt to call your attention to

such matters that have developed during the course of

the trial as I feel will warrant, justify or require you to

return a verdict of not guilty, it is Mr. Irwin’s function,

the prosecuting attorney who will make his closing argu-

ment after I make mine, and — and to which closing ar-

gument we have no response — to convince [855] you

that you should return a verdict of guilty of murder in

this case. And I am now addressing myself to the indict-

ment involving murder.

There are, as you know, two indictments: one charging

the defendant, Benjamin A. DeChristoforo, with murder,

PD ett ES EIN oe RINE — oc COREE LTE EET SES

batik gripes, Sot Hs

MICE RI SEE NE Re ee gy seeneinenenta

100

and the other charging him with being in possession and

control of guns.

Now of course, His Honor has instructed all of you

when you were seated here as a group, and before you

were selected for service on this jury, as to various rules

of law and as to what the procedure is in a general way.

As you know, his function from what he has told you

is to make rulings of law. It is the District Attorney’s

function, as I have outlined to you, is to attempt to con-

vince you beyond a reasonable doubt that Benjamin A.

DeChristoforo is guilty of murder. My function as de-

fense counsel is also in the nature of an enforcement of-

ficer, just as Mr. Irwin is an enforcement officer attempt-

ing to enforce the law and to see to it that guilty people

are punished, found guilty by jurors and punished by the

Court — I, as a defense lawyer and as an officer of the

[856] Court also am an enforcement officer. It is my

duty and function and obligation to see to it that in the

trial of a case of a person accused of crime that he’ shall

be convicted only in accordance with the rules of evidence

and only in accordance with the law, and that the law

shall be enforced in that respect..

Now everyone deplores crime, and we especially deplore

murder. And murder is a serious and evil crime. But the

finding of a man guilty of the crime of murder, or for

that matter of any crime, unless the jury finds him guilty

in accordance with the rules of law, in accordance with

the instructions given by the Court, in accordance with

your obligations as jurors, that may well be a more evil

crime. And I shall try to explain that to you as briefly as

I can.

In this country we live under what is known as an

accusatory system as distinguished from other countries

who operate under an inquisitorial system. In this country,

as His Honor pointed out to all the panel, when a person

RELL LORE POLL EEA INE AE

101,

is charged with a crime, it isn’t the slightest evidence

that he has committed a [857] crime.

The Commonweulth here says that Benjamin A. De-

Christoforo murdered Joseph Lanzi either by personally

firing

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.