Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: MONDAY, February 18, 1991 TAG: 9102180114
SECTION: VIRGINIA PAGE: A3 EDITION: METRO
SOURCE: LAURENCE HAMMACK STAFF WRITER
DATELINE: LENGTH: Long
That was in 1977, and the killing of 30-year-old Beverly Autiello soon went down in the police files of Haverhill, Mass., as an unsolved murder.
Twelve years later, when Freer was 18, a police investigator came to her with a photograph of a man who had moved to Roanoke shortly after the killing.
"This is the man," Freer told police. "I saw him in the bedroom that night."
A few days later, Gary Lee Colby had just started his night shift at the front desk of the Super 8 Motel in Salem when a plainclothes police officer walked through the door.
He wanted to talk about a killing that happened 12 years earlier and 750 miles away.
Colby, 44, agreed to go to state police headquarters. There, police told Colby that Freer remembered seeing him beat Autiello to death, and that she had identified him from a photographic line-up.
Confronted with new evidence in the old slaying, Colby confessed, authorities say.
"Having lived with it for as many Police tried to get a description of the assailant, but all they got was a confused picture from two frightened children. years as he had, and given the opportunity to deal with it, he acknowledged to police" that he broke into Autiello's home and beat her to death, Essex County Assistant District Attorney Kevin Mitchell said recently.
At least, that's what Mitchell will be saying Tuesday, when Colby's murder trial starts in Salem Superior Court in Massachusetts.
Hugh Samson, a Boston lawyer who represents Colby, will be saying something entirely different.
In the 16 months that Colby has been in jail awaiting trial, Samson has built a defense consistent with the reputation his client built after moving to Roanoke in 1977 - that of a hard-working, law-abiding family man who lived a quiet life until the day he was charged with murder.
Samson points to a number of weaknesses he sees in the prosecution's case:
Important details have been obscured by time as the case nears its 14th anniversary. Colby's confession, Samson claims, was coerced. And Freer's identification, a key piece of evidence that broke the case open, is clouded by the fact that she was hypnotized in 1977 and asked to re-create the scene of the slaying.
On the night of April 9, 1977, Beverly Autiello, a widowed hairdresser, was out late playing tennis. She left her 4-year-old daughter with Kala Freer and Freer's mother, Marjorie, who agreed to baby-sit that night at Autiello's home in Haverhill, a steel-mill town about 30 miles north of Boston.
Autiello and Marjorie Freer were friends. So when Autiello returned late that night, she agreed to watch both girls.
Marjorie Freer - who Samson suggests might have been the intended target of the murderer - left the house a short time later, driving away in Autiello's car.
Shortly after midnight, someone climbed through a cellar window of the home and began to make his way upstairs. Autiello apparently heard a noise and went to the second-floor bedroom where her daughter and Kala were sleeping.
In the darkened bedroom, she was attacked. Autiello was taken to St. John Hospital in Lowell, where she died several hours later from massive head injuries.
Her 4-year-old daughter, Gina, was also struck during the attack and suffered minor injuries.
Police tried to get a description of the assailant from the girls. But all they got was a confused picture from two frightened children.
Kala told police the man used a weapon that looked like a large street broom; Gina described it as a "huge fork," Samson said.
One girl described the man as a teen-ager, and neither appeared to have gotten a good look at his face in a room lit only with a night light.
Samson attributes the "vague and contradictory" statements to the ages of the girls and the trauma they had been through.
With such a sketchy description to work with, police investigated several leads but made no arrests. Authorities say Colby was considered a possible suspect at the time, but his photograph was never shown to Kala Freer.
Within a week, Colby moved to Virginia.
Colby, who worked as a custodian in Haverhill's city hall, had planned all along to move to Virginia, where he had family, his attorney maintains. Prosecutors are expected to argue that he fled to Roanoke to hide from the law.
Eight months later, he married Mary Ellen Gruff of Roanoke. He was 31; she was 18. They moved next door to Gruff's grandparents on Kenwood Boulevard in Southeast Roanoke. A few years later, they had a son.
Colby's wife declined to be interviewed for this story. Samson said the family remains supportive.
Neighbors who were interviewed shortly after Colby was arrested Aug. 31, 1989, described him as a loving and devoted father.
Nancy Wray, who lives several doors down from the Colbys, remembered a time when Colby was out of work because of an injury. Each morning, she said, Colby walked his son with the aid of a cane to the school-bus stop, and he was there every afternoon to escort him home.
"I'd say they were an A-1 family," Wray said.
Not long after Autiello was killed, Massachusetts authorities decided to hypnotize Kala Freer in an attempt to obtain a better identification.
"Back in 1977, there was a generally accepted view that hypnosis was a marvelous instrument that would allow you to bring out all sorts of hidden information that was buried in someone's subconscious," Mitchell said.
Since then, the law has been changed to bar evidence gained through hypnosis from being presented in court.
But with no such regulations in 1977, authorities were hoping hypnosis would give them a new lead.
It didn't.
Although Freer was able to add some details to her memory of the attack, she could not say who killed Beverly Autiello.
It wasn't until a state police investigator was going through the file 12 years later that the investigation returned to Colby.
Wondering why authorities had never shown Kala Freer a photograph of Colby, the investigator located her and arranged a photographic line-up.
Assistant District Attorney Mitchell contends that Freer was able to identify Colby based solely on her memory, and that the hypnotic session 12 years ago had no effect on her recollection.
Samson thinks otherwise.
"It's fairly well accepted that hypnosis is voodoo, that a person under hypnosis is very suggestible," he said.
In asking that Freer's identification be struck as evidence, Samson has argued that it was tainted by the police hypnotist, who may have planted details in Freer's mind without her being aware of it.
"The real horror with hypnosis is that the identification is actually less reliable, but the person thinks that it is more reliable and states it with much more confidence," Samson said.
The defense attorney argued that since Freer was hypnotized, she has added details to what at first was a limited account of what she saw.
"At first it was just a flash," Samson said. "But now her story has a beginning, a middle and an end. Our position is that the first story was the truth."
But at a pretrial hearing last year, Judge John T. Ronan ruled that Freer's identification can be used as evidence against Colby. Ronan ruled that even though Freer may have added to her story after hypnosis - confabulation, as the experts call it - her identification was not affected.
Even without hypnosis, Samson plans to challenge the notion that a 6-year-old at the time could suddenly remember, more than a decade later, a man she saw for only a few seconds.
"It's pathetically weak," he said.
Samson admits he is more concerned about the statement Colby gave authorities in Virginia.
In yet another pretrial hearing, Samson sought unsuccessfully to have the statement thrown out on the basis that Colby was coerced into confessing.
Samson contends that Colby never made an outright confession; that he only succumbed to continued and coercive questions with responses such as "I guess so" and "Yeah, if that's what you say."
"He did not confess to this crime because he did not commit it," the lawyer said.
Mitchell maintains that it was a guilty conscience - not overbearing police officers - that eventually led Colby to confess. He adds that Colby confessed again to Massachusetts authorities a short time later.
But Samson claims that not only did police put words in his client's mouth, they weren't even the right words. Some of the details in Colby's statement - that no weapon was used, for example - are just plain wrong, Samson said.
"The statement does not fit the crime," he said. "It fits the facts as the Virginia police officers thought they were, but it doesn't fit the facts as they were in Massachusetts."
When the trial gets under way, Samson is sure to argue that there is no reason why Colby would want Autiello dead.
Mitchell declined to comment on a possible motive in the case. But through disclosures in court records and earlier hearings, prosecutors have hinted at a possible scenario:
Colby, who had reportedly admired Marjorie Freer from afar, went to Autiello's home that night expecting to find Freer baby-sitting.
Marjorie Freer has testified at a pretrial hearing that she was once told that Colby "had the hots for her," and that she was afraid of him.
After breaking into the home, the theory goes, Colby was confronted by Autiello in the girls' upstairs bedroom. Samson said he is not sure if prosecutors will attempt to show that Colby attacked Autiello in the dark, thinking she was Freer, or that he knew who she was and attacked her anyway.
But that explanation seems to be the prosecution's best shot at a motive, Samson said.
"That is certainly the only suggestion of a motive that they have offered," he said. "I think they're sort of stuck without a motive."
\ As if there were not enough twists to the case already, Mitchell and Samson alike are hampered by the nearly 14-year gap between the offense and the trial.
Mitchell concedes that portions of his evidence will be "skeletal," as some details have long been lost or forgotten.
Freer's long-delayed identification and the suspicious circumstances of Colby's sudden move to Virginia - by themselves - might be questioned by a jury, he said.
"But then you say: `Isn't it fascinating that the person [Freer] picks out is the same person who, when confronted, admits to the crime?'" he said.
As for Samson, "It's obviously very difficult to defend a case 13 years after the fact," he said. "It precludes the possibility of an alibi defense, and it makes it tremendously difficult to find the people you need to put together a case."
Samson fears that once-dim memories have been enlightened simply by the fact that someone has been charged in the case.
"You have these people with very vague recollections, then Colby becomes a suspect, and all of a sudden the power of accusation can slant peoples' perceptions and cause them to think differently," he said.
"I think they become very susceptible to the power of accusation."
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