Commonwealth v. Caruso, SJC–09656

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtLOWY, J.
Citation67 N.E.3d 1203
Docket NumberSJC–09656
Decision Date13 January 2017

67 N.E.3d 1203

Steven CARUSO.


Supreme Judicial Court of Massachusetts, Middlesex..

Argued September 9, 2016.
Decided January 13, 2017.

David A.F. Lewis , Woburn, for the defendant.

Jessica Langsam , Assistant District Attorney ( Elizabeth Dunigan , Assistant District Attorney, also present) for the Commonwealth.

Present: Gants, C.J., Botsford, Gaziano, Lowy, & Budd, JJ.


On January 20, 2000, Sandra Berfield, the victim, received a package containing a pipe bomb, which exploded when she opened it, blowing her body asunder and killing her instantly. A jury in the Superior Court found the defendant, Steven Caruso, guilty of murder in the first degree on theories of deliberate premeditation and extreme atrocity and cruelty.

The defendant appeals from his conviction, claiming that (1) the admission of testimony by a jailhouse informant violated the defendant's confrontation rights; (2) a ballistics expert improperly testified to a report prepared by an unavailable expert; (3) the testimony of the Commonwealth's wire expert should have been excluded; (4) the Commonwealth failed to establish adequately the reliability of computer forensics evidence; and (5) the admission of the victim's prior recorded testimony and limitations on the defendant's ability to attack its veracity violated the defendant's confrontation rights. We conclude that no reversible error occurred, and we affirm the jury's verdict.

Background. We recite the facts the jury could have reasonably found in the light most favorable to the Commonwealth, reserving certain details for our analysis of the issues.

1. Defendant's relationship with victim. The defendant was a long-time regular customer at a restaurant in Medford where the victim worked as a server. The defendant often patronized the restaurant more than once daily, and typically requested a particular server. When the defendant became angry after a long wait for his previously preferred server, the victim became the defendant's server of choice. The defendant and the victim established an amicable relationship.

The defendant was closely connected with many events taking place at the restaurant and with many of the people who worked there. The defendant, a handyman by trade, did repair work at the restaurant and in the homes of its employees. He also attended some social events organized for employees of the restaurant.

Eventually, the relationship between the defendant and the victim took a negative turn. The defendant asked the victim on a date. The victim declined, and the defendant's demeanor changed. Although the defendant had a reputation among the restaurant's staff for staring at people, he began to stare exclusively at the victim and in a hateful manner.

Tension between the defendant and the victim escalated. On two occasions, the defendant poured battery acid into the gasoline tank of the victim's motor vehicle, for which the defendant was convicted of destroying the victim's property. He was sentenced to eighteen months in the house of correction, with six months to serve and

67 N.E.3d 1210

the balance suspended for two years. He also was ordered to make monthly restitution payments. A payment was due in January, 2000. The defendant also was charged with, but not convicted of, slashing the victim's tires.

In addition, the victim had obtained a restraining order against the defendant after the first battery acid incident. After the second battery acid incident, the victim returned to court regarding the restraining order violation. At the end of the ensuing proceeding, the judge told the defendant the restraining order was still in full effect. Nevertheless, immediately after the hearing, the defendant approached the victim, coming within about two feet of her in a nearby parking lot. A few months later, the defendant drove by the restaurant again.

2. Victim's death. On the morning of Thursday, January 20, 2000, at approximately 12:30 P.M. , the victim was instantly killed in her apartment when she opened a package containing a pipe bomb. The victim lived on the second level of an owner-occupied home in Everett.

The defendant left the package containing the pipe bomb on the victim's porch just after 9:30 A.M. 1 At around 12:30 P.M. , the homeowner retrieved the mail and, on her way back into her apartment, examined the package containing the bomb. She saw the name "Passanisi" with a Malden return address. Her husband heard the victim go down to the basement and then return to her apartment. Shortly thereafter, they felt the explosion.

The homeowner and her husband responded with alacrity. They went to the second-floor apartment and opened the door. They saw smoke, smelled an odor, and saw the victim's body on the floor. They telephoned 911.

Police arrived at the scene promptly. A responding officer identified the odor as similar to gunpowder. From the doorway to the apartment, the officer saw human tissue and blood spatter on the wall, floors, and ceiling. He called to the victim, whose body he saw at the end of a hallway. There was no response. The cause of death was later determined to be massive blast injuries.

Based on the defendant's troubled history with the victim, the police promptly sought to question him that same day. The defendant provided police with two inconsistent descriptions of his whereabouts on earlier that morning. First, he told the police he had gone from his home to a library around 10 A.M. , then to a café. Later, he told the police that he had gone to the café first, followed by the library.

Later that same evening, the police returned to the defendant's home to secure it, pending the issuance of a warrant, which was subsequently executed. Again, the defendant voluntarily answered the questions policed asked. He knew that the police were there "about that girl that got blown up in Everett," who had "caused [the defendant] a lot of problems." He also stated that he did not like the victim anymore. When asked what he thought should happen to a person who committed such a crime, the defendant responded, "Well, you don't know all the facts."

3. Search of crime scene and defendant's home. From the crime scene, police recovered,

67 N.E.3d 1211

among other things, battery parts, pieces

of pipe, metal fragments with human tissue or blood on them, pieces of copper, and wires. After the police conducted their search, a private company cleaned the premises and delivered additional items in bags to the fire marshal.

In executing the warrant at the defendant's home, the police discovered a number of items that were introduced as evidence at trial. The police found drill bits, an electronics wiring tool kit, batteries, copper wire, pieces of pipe, and ammunition. The wire, pipe fragments, batteries, and gunpowder obtained at the defendant's home were consistent with similar materials found at the scene of the explosion.

In the defendant's bedroom, police recovered various documents containing detailed information about the victim, her family and past boy friends, including documents with the victim's date of birth, Social Security number, home address and place of employment. Police also recovered correspondence between a former boy friend and the victim, and a document containing a postal service code referring to the mail route to the victim's home. Shortly after the search, the defendant's sister informed police that she had discovered a booklet entitled, "High–Low Boom Explosives," in the defendant's room.

During a forensic investigation of the defendant's computer, police discovered information related to the victim and her family that had been accessed by the defendant in the days leading up to her death, including that the defendant had used an astrology program and a family tree program containing the victim's personal information, such as her telephone number and former addresses. Through the family tree program, the police accessed a mailing label containing the name "Sebastiano Passanisi," the victim's brother-in-law, with a Malden address, consistent with the return address on the package containing the bomb. Neither the victim's sister nor her brother-in-law had lived in Malden for approximately thirty years. Police found no information related to any other family in the program.

Discussion. 1. Testimony of jailhouse informant. Following his arrest, the defendant encountered Michael A. Dubis, another prisoner, in a holding cell at a hospital.2 Dubis recognized the defendant's name and face from the newspaper and asked him

questions about the victim's death. For approximately ninety minutes, Dubis talked to the defendant, intending to find out what had happened. Dubis sought to win the defendant's trust and asked questions to elicit information he could pass on to law enforcement.

The defendant made numerous incriminating statements to Dubis. The defendant told Dubis that he had learned about making bombs from a friend, that he had used batteries and a pipe, and that the package would only explode when it was opened due to a "basic separation device." The defendant also said that he "got [the bomb] there," that he used the return address of the victim's sister on the package, and that he knew the bomb...

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    • United States State Supreme Judicial Court of Massachusetts
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    ...and ‘the defendant has had an adequate prior opportunity to cross-examine the declarant.’ " Commonwealth v. Caruso, 476 Mass. 275, 293, 67 N.E.3d 1203 (2017), quoting Commonwealth v. Hurley, 455 Mass. 53, 60, 913 N.E.2d 850 (2009). The initial inquiry is whether the declarant is unavailable......
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