Commonwealth v. Bianchi
| Decision Date | 14 September 2001 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | COMMONWEALTH v. ROBERT L. BIANCHI, JR. |
Present: MARSHALL, C.J., GREANEY, IRELAND, SOSMAN, & CORDY, JJ.
Dana Alan Curhan for the defendant.
Amanda Lovell, Assistant District Attorney, for the Commonwealth.
In the early morning hours of April 17, 1994, Donna Bianchi was beaten and choked with a night stick and sprayed with mace in her home by her estranged husband, Robert L. Bianchi, Jr. She became fearful that Bianchi was going to kill her and her child, and obtained an abuse prevention order against him the following day.
On May 6, 1994, Donna dropped her seven-month old son off at her sister-in-law's house on her way to work. As she left the house, Bianchi, who had been following her for several days, confronted her. She began screaming and running away from him. As he pursued her, she tripped and fell. He picked her up by the hair, prodded her in the back with a gun, and herded her toward the street where he shot her twice in the back. After she fell to the ground, paralyzed by one of the first two bullets, Bianchi placed the muzzle of the gun on her chest, and fired three more times, pausing between shots.
A jury convicted Bianchi of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty. He was also convicted of violating a protective order issued pursuant to G. L. c. 209A, § 7.
Bianchi filed a timely notice of appeal which was stayed to allow him to file a motion for a new trial, later denied by the trial judge. Bianchi appealed from the denial of his motion, which has been joined with his direct appeal in this court.
Bianchi's defense was, in essence, that he lacked the requisite malice to commit murder due to a mood disorder caused by steroid abuse. On appeal he claims that the judge erred by: (1) permitting testimony about the April 17 assault; (2) permitting several witnesses to testify to statements made by the victim about her fear of Bianchi in the weeks following April 17 and prior to her murder on May 6; (3) excluding a purported suicide note written by Bianchi after the murder; and (4) failing to instruct the jury on voluntary manslaughter. Bianchi also asks that we exercise our plenary power under G. L. c. 278, § 33E, to reduce the verdict to manslaughter or murder in the second degree.
All of the errors claimed by Bianchi were either preserved or resurrected by the trial judge in her decision on the motion for a new trial. Accordingly, we review them to determine whether any error was prejudicial. See Commonwealth v. Vinnie, 428 Mass. 161, 163, cert. denied, 525 U.S. 1007 (1998). For the reasons set forth below, we affirm the convictions and decline to exercise our power under G. L. c. 278, § 33E.
1. Facts. We summarize the facts in the light most favorable to the Commonwealth, reserving certain details for discussion in conjunction with the issues raised. See Commonwealth v. Fowler, 431 Mass. 30, 31 (2000).
The victim began dating Bianchi when she was fifteen years old and he was twenty-two years old. They were married in 1992. She gave birth to a son in September, 1993. They struggled financially, and in February, 1994, moved to the victim's father's home in Medford. Sometime around April 10, 1994, the victim asked Bianchi to move out of the house. He moved out for a day or two, but returned even though the victim insisted that he sleep in a separate room.
At approximately 2 A.M. on April 17, 1994, Officer Caesar Delatorre of the Medford police department received a radio call instructing him to respond to the victim's address. When he arrived, he found the victim lying on the hallway floor. She was hysterical — shaking and crying — and had bruises on her neck and torso. She also had lacerations on the back of her head that were bleeding profusely. Delatorre observed blood on the floor and walls, and he smelled mace in the air.
The victim told Delatorre that Bianchi hit and choked her with a night stick and had sprayed mace at her, and that in order to stop the beating she told Bianchi that she loved him and would never leave him. Delatorre recovered the night stick and the mace canister from one of the rooms on the second floor. Bianchi was arrested and the victim was transported to a hospital where photographs of her injuries were taken. On April 19, she obtained an abuse prevention order from the Somerville District Court pursuant to G. L. c. 209A.1
That same day, a victim-witness advocate (advocate) was referred to the victim by the District Court. During their initial telephone conversation, the victim told the advocate that she was terrified of Bianchi and that there was no doubt in her mind that he would kill her. On April 22, 1994, the advocate met with the victim and saw the bruises on her neck and torso. The victim described Bianchi as jealous, suspicious, and controlling. She reiterated her fear that Bianchi would kill her.
On April 26, Officer Matthew Insogna received a call to go to the victim's home. Insogna approached the front of the house and he saw the victim standing in the doorway with her son in her arms and tears in her eyes. She told Insogna that she was afraid Bianchi was near her home and was going to kill her, and that she also feared for her son's life. She asked Insogna to walk her to her automobile, and as they began down the walkway, she stayed so close to him that she was touching the back of his body and he could feel her shaking. Once she was inside her vehicle, she asked Insogna to follow her to the main street, which he did.
On April 27, Officers Paul Covino and John Zifaris were instructed to go to the victim's home so that Bianchi could collect his belongings. The victim described the April 17 incident to Covino and said that she was afraid that Bianchi would assault her again. When Bianchi arrived at the house, the officers explained to him that the protective order was in place and he responded that he understood.
On April 28, the victim met with the advocate for a second time and repeated her fear that Bianchi was going to kill her. She also told the advocate that when Bianchi came to her house to collect his belongings, he had taken a pair of her underwear, as well as a used condom from the trash.2 The victim interpreted this conduct as a threat.
On May 5, the victim spoke with the advocate for the last time. She told the advocate that she and Bianchi had gone to court and Bianchi had been awarded visitation rights with their son. The victim again stated that she feared Bianchi was going to kill her.
On the morning of May 6, the victim brought her son to her sister-in-law's house. They talked for ten or fifteen minutes and discussed the fact that Bianchi was scheduled to visit the baby around 11 A.M. The victim told her sister-in-law that she was afraid that Bianchi would kidnap her son and try to kill her. She then left the house to go to work.
As the sister-in-law was taking the baby's sweater and hat off, she heard screaming outside, as did her next door neighbor. When the neighbor went to the window, she saw two adults facing each other in the backyard. She initially turned away from the window, but when the tone of the screaming changed, she ran back and saw the victim trying to run away but tripping on tree stumps and old chicken wire that were along the side of the house. The victim appeared desperate and was screaming, "[N]o, no, please, no."
She also saw Bianchi following behind the victim, holding her by the hair and prodding her in the back with a gun. He appeared to be calm, composed, and determined. The neighbor started to scream as Bianchi herded the victim back toward the street, and she then telephoned 911. As she dialed, she heard a shot. She looked back out the window and saw the victim lying on her back on the sidewalk. The defendant knelt over her and looked directly in her face. The sister-in-law came out of her house and yelled to Bianchi to leave the victim alone. Bianchi looked over, made eye contact with the sister-in-law, and then turned back and shot the victim three more times at point blank range,3 taking his time in between shots. After the shooting, Bianchi drove away in a white Budget rental van.
At 4 P.M. that same day, a police officer in Elizabeth, New Jersey, and his partner received a radio call and responded to a gasoline station where they saw Bianchi's rental van. Bianchi was vomiting into a barrel. He told the officers that he had killed his wife. He also told the officers that he was sick and needed help.4 An ambulance took Bianchi to a hospital. The officers recovered Bianchi's gun concealed in the bathroom of the gasoline station.
At trial, Bianchi asserted that his conduct in April and May, 1994, was the result of his use of steroids. He testified that he started using steroids in 1988 to help improve as a competitive power weight lifter. The steroids increased his strength and aggressiveness, but made him "excitable," increased his appetite, and disturbed his sleep. In July, 1988, he received medical treatment at Lemuel Shattuck Hospital after complaining of side effects of steroid use, but following his release from the hospital he continued using steroids.
In late 1992, Bianchi stopped using steroids while he and the victim were trying to conceive a child, but he resumed using them in January, 1993, and consistently increased the doses and types of steroids that he took, which caused him to become "a little wild eyed," develop a "huffy attitude," feel depressed, and experience a change in his eating and sleeping habits. He testified that by the end of 1993, he weighed over 300 pounds5 and was capable of "bench pressing" 465 pounds; that in early 1994, he increased his use of steroids to the point where he had tripled his dosage; and that this increase caused him to become increasingly paranoid,...
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