Com. v. Clemente, SJC-07824

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation452 Mass. 295,893 N.E.2d 19
Docket NumberSJC-07824
PartiesCOMMONWEALTH v. Anthony P. CLEMENTE (and fourteen companion cases<SMALL><SUP>1</SUP></SMALL>).
Decision Date05 September 2008
893 N.E.2d 19
452 Mass. 295
Anthony P. CLEMENTE (and fourteen companion cases1).
Supreme Judicial Court of Massachusetts, Suffolk.
Argued May 8, 2008.
Decided September 5, 2008.

[893 N.E.2d 26]

Robert L. Sheketoff, Boston, for Damian A. Clemente.

Rosemary Curran Scapicchio, Boston (Adam Foss with her) for Anthony P. Clemente.

David D. McGowan, Assistant District Attorney, for the Commonwealth.



452 Mass. 297

As the result of the shooting of five men in the "99" Restaurant in the Charlestown section of Boston on November 6, 1995, the defendant, Anthony P. Clemente (Anthony), was convicted in the Superior Court of four counts of murder in the first degree on the theory of deliberate premeditation. The

452 Mass. 298

victims were Roman Luisi, Robert Luisi, Antonio "Anthony" Sarro, and Anthony "Sonny" Pelosi, Jr. Anthony was also convicted of armed assault with intent to murder and assault and battery with a dangerous weapon on a fifth man, Richard Sarro, who survived the shooting. In addition, Anthony was convicted of unlawful possession of a firearm and unlawful possession of ammunition. The codefendant, Damian A. Clemente (Damian), Anthony's son, was convicted of one count of murder in the first degree on the theory of deliberate premeditation2 and two counts of murder in the second degree.3 Damian was found not guilty on a fourth count of murder.4 Damian was also convicted of armed assault with intent to kill and assault and battery by means of a dangerous weapon5; unlawful possession of a firearm; and unlawful possession of ammunition.6 We have consolidated the defendants'

893 N.E.2d 27

appeals from their convictions and from the denials of their first and second motions for a new trial. See Mass. R.A.P. 19(d)(2), as appearing in 430 Mass. 1606 (1999).7

On appeal, Anthony makes the following claims: (1) he was not permitted to present "first aggressor" evidence to corroborate his claim of self-defense, see Commonwealth v. Adjutant, 443 Mass. 649, 650, 824 N.E.2d 1 (2005) (Adjutant), and the judge did not instruct the jury properly on this issue; (2) his Federal and State rights to due process were violated because he was denied access to a "fanny pack" worn by one of the victims at the time of the shooting; (3) the judge erred in denying Anthony access to reports and grand jury testimony concerning one Alfred Sapochetti, an alleged drug dealer; (4) the judge improperly barred the admission of the grand jury testimony of an unavailable witness; (5) Anthony was denied a fair trial under the Sixth Amendment to the United States Constitution by the exclusion of certain

452 Mass. 299

testimony; (6) the judge erred in instructing the jury regarding provocation, see Commonwealth v. Acevedo, 427 Mass. 714, 695 N.E.2d 1065 (1998), and whether excessive force would mitigate murder to manslaughter; (7) it was error to deny Anthony's motion for a change of venue; (8) the judge improperly retained a juror who saw a newspaper article that was slipped under the door of the jury deliberating room; and (9) Anthony was denied the effective assistance of counsel when his trial counsel waived a motion to suppress statements and failed to file a motion to suppress a photographic identification. Finally, Anthony requests that we exercise our extraordinary power under G.L. c. 278, § 33E, to grant him a new trial.

In his appeal, Damian contends that the judge erroneously permitted Anthony's statements to the police, made after Damian's arrest, to be used against Damian and that the prosecutor unfairly exploited that error; the judge erred by refusing to allow Damian to introduce the grand jury testimony of an unavailable witness8; and the judge incorrectly instructed the jury concerning joint venture, defense of another, consciousness of guilt, and the Commonwealth's burden on the issue of provocation, see Commonwealth v. Acevedo, supra.9 Damian also joins Anthony's claims above numbered 1, 2, 3, 5, 7, and 8, as well as his request pursuant to G.L. c. 278, § 33E. We affirm the convictions and the orders denying the motions for a new trial, and we decline to exercise our power under G.L. c. 278, § 33E.

Facts and background. There is no challenge to the sufficiency of the evidence. We thus summarize the facts the jury could have found, reserving additional details for the discussion of the specific issues raised. For approximately one year prior to the shootings, Anthony was aware of problems between his son Damian and the Luisi family, and their associates, the Sarro family. The Luisis and the Sarros were following, harassing, and threatening Damian, apparently because Damian was selling

452 Mass. 300

drugs in the North End section of Boston and not being properly respectful,

893 N.E.2d 28

i.e., paying money to the Luisis.10 Anthony discussed the problem with Robert Luisi three times during the year preceding the shootings; to the last of these meetings he brought a loaded nine millimeter handgun. Roman Luisi, Richard Sarro, and Anthony Sarro were also at that meeting, and when those three men "became aggressive" (the record does not describe any specific acts of aggression), Anthony reached "in [his] back" where his gun was hidden, but he did not pull out his gun. Robert Luisi did not assure Anthony that his son was safe; quite the contrary, Anthony was convinced that the Luisis were going to kill Damian. As a result, Anthony nailed the windows in his house shut, loaded a shotgun and placed it in his bedroom, and put his loaded nine millimeter handgun in his bed. He also bought a cellular telephone for Damian.

On November 5, 1995, Damian and Vincent Perez were in a fight with Robert Luisi's nephew, Joseph Ferlito, in a North End coffee shop. Ferlito was backed into a stairwell and was later seen bleeding from a head laceration.

The following day, November 6, Damian and Perez went to the 99 Restaurant. Sometime thereafter, Robert Luisi, Roman Luisi, Anthony Sarro, Richard Sarro, and Sonny Pelosi came in. Damian telephoned his father and, in a terrified voice, reported the presence of the other group. Anthony instructed his son not to move, took his nine millimeter gun, and went to the 99 Restaurant to "get the boys out of there alive."

As he approached the restaurant at approximately 1:25 P.M., Anthony looked inside and saw the Luisis and Sarros sitting at a booth and noted that nothing had happened. Anthony entered the restaurant, went to the Luisi-Sarro group, and asked Robert Luisi, "What's going on?" Robert Luisi replied: "It's your fucking kid." Anthony asked, "Why is it always my fucking kid? This kid is nothing to you." Roman Luisi jumped from the booth, and the look in his eyes changed. Anthony stuck out his left hand and backed up somewhat, saying to Roman Luisi, "It [doesn't] have to be this way." Anthony saw Damian and Perez walking toward the Luisi table and saw Roman Luisi put both his hands

452 Mass. 301

down toward the fanny pack he was wearing in front. Roman Luisi said something about no one getting out of there alive.11, 12 Anthony shoved his son and Perez behind him and shot Roman Luisi. Sonny Pelosi yelled and Robert Luisi stood up. Anthony shot Sonny Pelosi. Robert Luisi reached for Anthony, who shot him in the head. Anthony heard the sound of shots, and believed he was being shot, but was not certain of the source. He saw Roman Luisi lying on the ground and shot him twice more, once in the back and once in the head. Anthony then saw Anthony Sarro

893 N.E.2d 29

moving and shot him again.13 Anthony went "to drop the hammer on [Richard Sarro]," but his gun was now empty.

Off-duty Everett police Officer Robert Hall was in plain clothes eating lunch at the 99 Restaurant that day with Officer Paul Durant, also of the Everett police. Hall was carrying a gun, and after hearing the gunfire, saw two men with dark jackets, identified later as Damian and Perez, running to the door. Hall gave chase. He heard three or four more shots behind, but continued to pursue the two men, yelling, "Police, stop." Both men stopped and were arrested. Damian was found with a .45-caliber pistol and Perez with a fully loaded .38-caliber gun. A bullet fired from Damian's gun was recovered from the body of Robert Luisi.

Anthony left the restaurant and discarded his sneakers, jacket, and gun in a plastic bag in a dumpster near North Station. The next morning, November 7, 1995, Anthony was at the Charlestown Division of the District Court Department to attend the arraignment of his son. Prior to the arraignment he was interviewed

452 Mass. 302

by Boston police Sergeant Detective Daniel Keeler and claimed that he had acted in self-defense at the 99 Restaurant. When Keeler asked, "How could it be self-defense? They were unarmed," Anthony answered, "How were we supposed to know?" Following the arraignment, Anthony was arrested, received and waived the Miranda rights, and explained to the police that his family had been in fear of the Luisi family and that Damian had told Anthony that there were rumors that Robert Luisi was going to hurt either his son or a friend.

The central issue at trial was whether the defendants acted in self-defense and whether Anthony acted in defense of another. The defendants presented substantial evidence of specific acts of violence by the victims. Joseph Blazo, a friend of Damian, told Damian prior to the shootings about an incident in California in which Roman Luisi had killed two people by shooting them in the back. When Giacomo Cincotti, a North End resident, learned of Damian's problems with the Luisis, Cincotti informed Damian of an episode that occurred on August 23, 1995, when Robert Luisi, Roman Luisi, and others pistol whipped him (Cincotti) and stabbed him in the face. Robert Luisi had a gun while some of the others had knives. Another man, Kenneth McCracken, tried...

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