Commonwealth v. Fitzpatrick

Decision Date24 October 2012
Docket NumberSJC–10638.
Citation977 N.E.2d 505,463 Mass. 581
PartiesCOMMONWEALTH v. Sean FITZPATRICK.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Leslie W. O'Brien for the defendant.

Loretta M. Lillios, Assistant District Attorney (Jamie M. Charles, Assistant District Attorney with her) for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, DUFFLY, & LENK, JJ.

DUFFLY, J.

After a mistrial at which the jury were deadlocked, the defendant was retried and convicted of two indictments charging murder in the first degree on a theory of deliberate premeditation.1 On appeal, the defendant claims that his motion to dismiss the indictments, filed before retrial, should have been allowed because the Commonwealth had not presented legally sufficient evidence at his first trial; a second trial in these circumstances, he contends, violated constitutional and common-law prohibitions against double jeopardy. The defendant argues further that the Commonwealth's evidence at the second trial was legally insufficient to support the convictions, and that his motions for required findings of not guilty therefore should have been allowed. Additionally, the defendant challenges various evidentiary rulings, claims that the judge erred in failing to instruct the jury pursuant to Commonwealth v. Bowden, 379 Mass. 472, 485–486, 399 N.E.2d 482 (1980) (permitting defense theory of inadequate police investigation), and contends that other errors at trial warrant reversal of his convictions under G.L. c. 278, § 33E. After reviewing the entire record, we affirm the convictions and decline to grant relief pursuant to G.L. c. 278, § 33E.

1. Background. Because the defendant challenges the sufficiency of the evidence, we recite the facts the jury could have found in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676–677, 393 N.E.2d 370 (1979), reserving certain details for our discussion of the specific issues raised.2

Just before 8 a.m. on Monday, March 13, 2006, Michael Zammitti, Sr., arrived at Allstate Concrete Pumping, Inc. (Allstate), on New Salem Street in Wakefield. He owned and operated the business with his son, Michael Jr. 3 As Michael Sr. entered the building, he discovered the body of Chester Roberts, Jr., one of his employees, on the floor in a pool of blood. Michael Sr. telephoned police and rushed upstairs to look for Michael Jr.; he found his son with an apparent gunshot wound to the head, seated at his desk in an upstairs office. Each victim had died as a result of a sixteen-gauge shotgun wound4 inflicted only minutes before Michael Sr. arrived.5

In the early hours of their investigation, police received numerous potential leads. Bystanders described seeing at least two suspicious vehicles in the area of New Salem Street that morning, and Michael Sr. provided police with several names of people with whom he had had contentious business dealings. Police quickly determined that many of these leads were not viable, and focused their investigation on the defendant, who had been romantically involved with Michael Jr.'s wife, Michele.

Beginning in 2004, the defendant and Michele developed what was initially a close friendship. The defendant was a year-round resident of a small community of predominately seasonal homes in Freedom, New Hampshire. Michael Sr. and his wife, Patricia, had owned a vacation home there for many years; Michael Jr. and Michele had recently purchased a vacation home in that area as well. Because Michael Jr. worked long hours in Wakefield, Michele and the couple's three young children often traveled to Freedom without him. The defendant, whose relationship with a live-in girl friend had ended some years before, became friendly with Michele and her children, and the group often participated in recreational activities together. When Michele was away from her New Hampshire home, she and the defendant talked frequently by telephone. In January, 2005, the defendant told Michele that he had fallen in love with her; shortly thereafter, they became sexually intimate.

During the summer of 2005, Michele and Michael Jr. recognized that their relationship had become strained and began to participate in marriage counselling; Michele became increasingly committed to repairing her marriage. In August, 2005, Michele's mother-in-law discovered Michele and the defendant in an “embrace.” After discussing the incident with her mother-in-law, Michele began to distance herself from the defendant, although she attempted to remain on cordial terms with him for the sake of the children, who had grown fond of him, and in order to deflect the suspicions of her in-laws and neighbors. The defendant continued to urge Michele to leave her husband; in December, 2005, Michele informed the defendant that she wanted to end the relationship.

A few weeks before the shootings, Michele acquiesced to the defendant's requests that they meet in February, when she and the children would be on vacation in New Hampshire. The defendant had prepared for a romantic interlude and, during the meeting, again tried to persuade Michele to leave her husband. Michele made clear that she would not leave her husband, stating that the only way she and the defendant could be together would be if her husband left her or if “something happened to him.” The defendant became angry; he pounded his fist on the table and shoved Michele into her automobile, slamming the door shut. In the weeks leading up to the murders, the defendant continued to press Michele to leave her husband; he told his best friend, David Spears, whose father also owned a home in Freedom, that a job offer he had recently received was not enough to support a family of five and that he was trying to figure out a way to salvage his relationship with Michele.

After learning about Michele's relationship with the defendant, police suspected that the defendant might have been responsible for the shootings, but initially had no evidence connecting him to the scene of the shootings. On March 29, 2006, Detective Richard F. Cass of the Wakefield police department, accompanied by State police Trooper Kevin Baker, traveled to Freedom to “look into” a series of suspicious housebreaks because they were “of interest.” Two houses were of particular interest to Cass: the home of Michael Sr., from which a sixteen-gauge shotgun was discovered to be missing, and the summer home of Fred Martin, who lived across the street from Michael Sr. and next door to the defendant.

When Cass looked at Martin's property, he saw a green Ford F150 pickup truck with an extended cab parked outside. The vehicle was similar to a green truck Cass had observed in surveillance footage recorded by the cameras of three businesses on New Salem Street on the morning of the shootings. Baker contacted Martin at his seasonal home in Florida and obtained permission to take possession of the truck.6 Following his conversation with Baker, Martin used the Internet to check for activity on his “E–ZPass” account. 7 Although Martin had been in Florida for several months, his account showed that a single transaction had occurred in a northbound lane at New Hampshire's Dover toll plaza on the morning of March 13, 2006.

Martin executed a written waiver of any privilege or right of confidentiality he might have had in his E–ZPass records, which enabled police to obtain toll data for March 13 from the New Hampshire Department of Transportation. The data revealed that, on the morning of the shootings, Martin's E–ZPass had traveled southbound in New Hampshire through toll plazas in Rochester at 6:40 a.m., Dover at 6:51 a.m., and through the Hampton toll plaza at 7:04 a.m. At each toll plaza, however, the driver of the vehicle paid cash, and the electronic transaction was canceled.8 Martin's transponder also was recorded traveling northbound through the same three toll plazas later on the morning of March 13: Hampton at 8:29 a.m., Dover at 8:41 a.m., and Rochester at 8:51 a.m. The driver again paid cash at each northboundtoll plaza, but an attendant at the northbound Dover toll plaza inadvertently failed to cancel the transaction, creating the entry Martin later discovered on his account statement.

After receiving this information, State police Trooper Robert Manning drove from Freedom to Wakefield to determine whether the activity on Martin's E–ZPass was consistent with someone arriving at Allstate just before 8 a.m. Manning testified that he left Freedom at 5:44 a.m. and arrived at Allstate just over two hours later, at 7:54 a.m.9 Manning's toll receipts from that trip reflect that he drove southbound through the toll plazas in Rochester at 6:48 a.m., Dover at 6:57 a.m., and Hampton at 7:14 a.m.

Detectives also reviewed surveillance footage from cameras at businesses located along New Salem Street to determine whether this timing was consistent with the presence of the green pickup truck with an extended cab that was recorded traveling down New Salem Street on the morning of the shootings. The footage first shows the green truck traveling along New Salem Street at approximately 7:38 a.m.,10 when it appears to continue past Allstate without stopping. Approximately one minute later, a white pickup truck resembling the one driven by Michael Jr. appears on New Salem Street and enters the Allstate parking lot. At approximately 7:44 a.m., the green truck appears again as it travels down New Salem Street a second time and enters the Allstate parking lot.11 In the footage, a pedestrian walks from the area of a neighboring business toward Allstate about one minute later. 12 At 7:48 a.m., the green truck can be seen leaving the Allstate parking lot and driving northbound along New Salem Street.13 A red pickup truck resembling the one driven by Michael Sr. enters the Allstate parking lot at approximately 8:02 a.m.

Although Martin had never authorized the defendant to be in his truck...

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