SJC to hear bid for new trial in 2004 slaying of CVS clerk

A short time later, Giambrone was dead from a single stab wound to the neck, and his manager had two stab wounds in his chest — all over 11 tubes of toothpaste.

The accused shoplifter, Daniel Rogers, was convicted of firstdegree murder and other charges in the six-year-old killing and was sentenced to life in prison.

Next month, the state’s highest court is scheduled to hear an appeal by Rogers, who is seeking a new trial.

According to testimony at his first trial, the deadly encounter on Feb. 16, 2004, began when Rogers, a longtime drug user and frequent shoplifter, went to a CVS store in Boston’s Longwood medical district.

A female shopper told Giambrone she saw a man wearing a puffy, red jacket stuffing items from the store into his jacket. Giambrone, store manager Henry Young, and another store clerk chased Rogers down the street.

During the trial, witnesses gave varying descriptions of the confrontation. Some said the CVS employees threw Rogers against a wall, punched, and kicked him. Others said it looked as though the employees were scuffling with him.

Showky Lara, the third employee who chased Rogers, said he saw Rogers reach into his pocket, then tackle Young and punch him several times in the chest. Prosecutors said Rogers stabbed Young twice, then stabbed Giambrone once in the neck.

When medical technicians arrived, Giambrone was unconscious. He had lost at least three liters of blood and was later pronounced dead. Young survived his wounds.

In his appeal, Rogers’s lawyer, Peter Krupp, contends that the judge at the first trial erroneously told the jury that state law permits store employees to detain people suspected of shoplifting if they “use no more force than . . . is reasonably necessary.’’

The defense said the “shoplifting statute,’’ developed from court rulings in earlier cases, allows merchants to detain suspected shoplifters for a reasonable amount of time to investigate or call police, but does not permit them to use force.

Krupp maintains that the judge’s instruction undermined Rogers’s claim that he was defending himself as he was being beaten by three CVS employees.

“Had the court omitted the erroneous instruction, or correctly instructed the jury on the law, the jury may well have found that Rogers was acting in self-defense,’’ Krupp argues in a legal brief filed with the Supreme Judicial Court.

Prosecutors, however, rejected the argument that Rogers was acting in self-defense when he stabbed Young and Giambrone.

“The evidence at trial was clear. The defendant stole property and murdered the young man who tried to reclaim it,’’ said Jake Wark, a spokesman for Suffolk District Attorney Daniel F. Conley.

“Blaming the victim on appeal doesn’t undo the wrongfulness of either action. It seems that he’s trying to justify the use of deadly force against the use of appropriate force to try to recover that property.’’

The trial judge rejected a defense request to introduce evidence of a CVS policy prohibiting employees from chasing shoplifters and trying to apprehend them.

Young acknowledged during the trial that CVS employees were generally told not to chase shoplifters.

In a statement released Wednesday, the Woonsocket, R.I.-based retailer declined to comment on Rogers’s appeal.

“We respect the jury’s decision in 2007 to convict Mr. Rogers for the first-degree murder of Cristian Giambrone,’’ said Michael DeAngelis, a spokesman for the company.

“Our security policies and procedures are designed to ensure the safety and well-being of our customers and employees, and we regularly review them to ensure effectiveness. However, we do not comment on specific security measures so as not to undermine them.’’