Com. v. Sinnott

• Decision Date: 13 May 1987
• Parties: COMMONWEALTH v. Jeffrey A. SINNOTT (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 699

507 N.E.2d 699

399 Mass. 863

COMMONWEALTH v. Jeffrey A. SINNOTT (and a companion case ¹ ).

Supreme Judicial Court of Massachusetts,

Worcester.

Argued January 5, 1987.

Decided May 13, 1987.

Patricia A. O'Neill, Committee for Public Counsel Services, Boston, for Gary E. Mosso.

Francis R. Fecteau, Worcester, for Jeffrey A. Sinnott.

Harry D. Quick, III, Asst. Dist. Atty., for the Com.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and NOLAN, JJ.

LIACOS, Justice.

The defendants, Jeffrey Sinnott and Gary Mosso, were indicted on March 8, 1984, for the murder of Anthony Tamburro. Their pretrial motions for severance were denied. Their motions for mistrial, based on allegations of juror misconduct, were also denied. On June 26, 1984, the jury found both men guilty of murder in the first degree, on the basis that Tamburro's death was inflicted with "extreme atrocity or cruelty." ²

The prosecutor's case against the defendants was drawn largely from the testimony of four eyewitnesses, no one of whom claimed knowledge of the circumstances surrounding the assault on Tamburro from start to finish. We summarize the testimony of each in turn.

James Peloquin. A "very good" friend of the victim, Peloquin gave the most inclusive account. On December 8, 1983, about 9 P.M., Tamburro joined Peloquin and other mutual friends at the Kastle's Keep, a bar in Oxford.

At 1:30 A.M. on December 9, Tamburro and Peloquin talked with the lead singer of the band in the bar about listening to a "demonstration tape" recorded by another band, with whose members they were friendly. Tamburro and Peloquin then went to the victim's automobile to get the tape. They were approached in the parking lot by the defendants, Sinnott and Mosso, and by Daniel Blanchard. Blanchard asked to buy cocaine from Tamburro. Mosso, Blanchard, and Tamburro then entered the latter's automobile. ³ All three emerged several minutes later. Peloquin retrieved the tape from the automobile, then led the way back into Kastle's Keep. Peloquin noticed that Tamburro was no longer with him. He returned to the parking lot.

Peloquin found Tamburro arguing with the defendants and Blanchard. Mosso was complaining about the quality of the "stuff" he had bought, demanding a "taste" from Tamburro's personal supply. Tamburro protested that there was no difference, but Mosso pressed the point. Tamburro put a "taste" from his personal vial on Mosso's outstretched hand, but Tamburro did not offer to let Mosso inhale directly from the vial. An argument ensued, and Mosso then hit Tamburro on the left side of the face. Tamburro swung back. The two began wrestling, with the smaller Tamburro "back stepping" until both fell to the ground with Mosso on top. Mosso pinned Tamburro's left arm and head with his knees, then drove his elbow into the victim's eyes five or six times, "really hard.... Like a ramrod."

While Tamburro struggled to retaliate and to wriggle free from Mosso, Peloquin rushed to intervene; but Sinnott knocked him to the ground with a blow to the head. As Peloquin fell, Mosso was getting up. When Tamburro tried to follow, Sinnott kicked him "right square" in the face, knocking him back to the ground. Mosso then kicked the victim repeatedly in the abdomen and legs, while Sinnott kicked him repeatedly about the upper body and face. Peloquin got the victim in a "bearhug" and tried to drag him several feet while yelling at him to get up, but Tamburro did not respond. Mosso and Sinnott now turned to pummeling Peloquin. Sinnott's kick to Peloquin's ribs forced him to drop the victim. In pain, Peloquin returned to the bar for help.

Entering the bar, he looked back and saw Sinnott kick Tamburro in the face. When Peloquin returned to the parking lot with friends and several of the club's bouncers, he saw Sinnott and Mosso in Blanchard's automobile, which "peel[ed] out" with Blanchard at the wheel. Tamburro's face was puffy and bleeding, his mouth "all cut up," and Peloquin could not rouse him. Police arrived, and the victim was taken to a hospital. ⁴ On cross-examination, Peloquin acknowledged his awareness at the time that Tamburro had sold cocaine to Mosso and Blanchard for $50.

Stephen M. Amaral. Like Gary Ducharme, his companion at the Kastle's Keep on the night in question, Amaral did not know any of the participants in the drug deal or the fight. When he left the club about 1:45 A.M., he was, by his own admission, very "drunk." ⁵ He was in the parking lot and saw, from a distance of forty feet, a group of five or six people. His testimony substantially corroborated that of Peloquin, although there were some variations in his description of the fight.

Amaral testified that he saw Mosso punch downward with his fist, attacking the victim's groin with three blows. He also testified that Mosso kicked the victim twice in the head, then kicked him in the head twice more while Sinnott did the same. The victim's head was observed to bounce. He was kicked "as if you were going to kick a football on a kickoff."

Amaral then saw the victim get up, try to run, then fall on his back. Sinnott delivered a final kick "half-heartedly" to the head; Mosso lifted the victim's hand and held it for a moment by the wrist. When a group of people came running towards them from the bar, they entered an automobile and drove away "[f]ast." The whole incident, as Amaral observed it, lasted two minutes.

Gary J. Ducharme. Before leaving the Kastle's Keep with Amaral at 1:50 A.M., Ducharme had consumed two or three beers. He testified that the alcohol did not affect him. While trying to fix the radio in his truck, he looked up and saw a large person fighting and wrestling with a smaller person. Ducharme saw Mosso punch the smaller man three times in the groin. When the victim tried to rise, Mosso got up and kicked him in the face several times. After the victim fell back, Mosso kicked him again. Sinnott then joined the fray, kicking the victim in the face several times. As he did so, Mosso delivered several more kicks. Ducharme estimated that the fight lasted three or four minutes.

Douglas Richard Cassidy. Cassidy knew Tamburro as a former schoolmate, but they were not friends. Cassidy had had several beers before reaching the Kastle's Keep at 11 P.M., and he had had three mixed drinks before he left at 1:30 A.M. He conceded that the alcohol he had consumed was sufficient to affect his capacity as a witness.

Passing through the parking lot on his way to his automobile, Cassidy saw Sinnott and Mosso kicking the victim, who remained motionless, lying face up on the ground. He saw Sinnott and Mosso kick the victim repeatedly in the area of his upper body and head, but he did not see any kicks actually hit Tamburro's head. After ten or twenty seconds, Cassidy approached, looked at the victim, then told Sinnott, "You're a loser for what you've done. You're a loser." Without response, Sinnott and Mosso entered an automobile and "took off." Cassidy confirmed that Sinnott was drunk. Cassidy testified that the victim's face had been beaten and bloodied beyond recognition.

There was also testimony from police officers and forensic experts. Richard P. Hanlon, a State police trooper, testified that, in the days following the assault, Peloquin identified photographs of Mosso and Sinnott as those of Tamburro's assailants. He reported that Mosso, when first approached by him on December 13, had initially denied he was Gary Mosso. He testified further that Mosso, when first interviewed at police headquarters, admitted that he had spoken to Sinnott outside the Kastle's Keep on the night in question but claimed nothing else happened. When he advised Mosso that he had been identified as one of Tamburro's assailants, Mosso denied any involvement, but, when pressed, asked to see his lawyer; and, after consulting with his attorney, Mosso gave a signed statement, admitting to a scuffle with Tamburro after a cocaine deal soured, but denying that he hit Tamburro at all and blaming Sinnott for all the damage resulting from kicks.

Bradley Mullen, also a State police officer, testified that Sinnott, when first approached by police, threw his hands out in resignation and said he had been expecting them. Robert Meier, another State police officer, testified that he took Sinnott's statement at police headquarters, that Sinnott was "cooperative," and that he never changed his story--which was, in essence, that he had helped Mosso in the fight that broke out over cocaine, but only to the extent of kicking Tamburro once in the ribs and keeping "other people from jumping into the fight."

A pair of Mosso's cowboy boots was delivered to police by Mosso's wife and was entered in evidence. Expert testimony established that the boots were stained with human blood. Pre-autopsy photographs of the victim's body were also admitted in evidence.

Dr. Edward B. Sussman, chief of pathology at Worcester City Hospital and a board-certified forensic pathologist, testified concerning the autopsy he performed on Tamburro's body. It was his opinion that death was caused by no less than twelve separate blunt traumas, including one injury to the abdomen and another to the back of the neck, at least two to the chest and five to the face, and at least one each to the shoulder, back, and testes. ⁶ The presence of hemorrhaging led Dr. Sussman to conclude that Tamburro had been alive when he suffered these injuries. The most likely causes of death, he testified, were the injuries to Tamburro's head, but the injuries to his neck, chest, abdomen, or testes were such that they "potentially could cause or contribute to the death of the decedent."

The defendants argue that (1) the judge erred by denying their pretrial motions to sever; (2) the jury were erroneously instructed concerning malice aforethought; (3) the judge erred by denying their motions for mistrial; (4) the charge to the jury was inadequate in various ways having to do...