Commonwealth v. Spinucci

• Decision Date: 29 September 2015
• Docket Number: SJC–10018.
• Citation: 472 Mass. 872,37 N.E.3d 1084
• Parties: COMMONWEALTH v. Joseph SPINUCCI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

472 Mass. 872

37 N.E.3d 1084

COMMONWEALTH

v.Joseph SPINUCCI.

SJC–10018.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 10, 2015.

Decided Sept. 29, 2015.

Joseph A. Hanofee, Northampton, for the defendant.

Fawn D. Balliro Andersen, Assistant District Attorney, for the Commonwealth.

Present: GANTS, C.J., BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

BOTSFORD, J.

In June, 2006, a Middlesex County jury found the defendant guilty of the murder in the first degree of Ryan Sullivan on the theory of extreme atrocity or cruelty; he also was found guilty of four related offenses involving two other victims, William

Tighe and Jules Stevens.¹

He appeals from these convictions and also appeals from the denial of his posttrial motion for relief. He argues that the trial judge erred by declining to instruct the jury on manslaughter on a provocation theory; denying his motion for a new trial on the ground that a manslaughter instruction on this theory clearly was required; in connection with the murder charge, failing to instruct the jury that before they could infer malice from the intentional use of a dangerous weapon on the part of the defendant as a joint venturer with Van Gustave (see note 1, supra ), the jury must find that the defendant knew Gustave was armed with a knife; allowing the jury to consider hearsay evidence to establish the defendant's knowledge that his alleged joint venturer Gustave possessed a knife; and denying the defendant's motion for a required finding of not guilty on the two charges relating to the victim Stevens. He also claims that he is entitled to relief under G.L. c. 278, § 33E. We affirm the defendant's convictions and decline to grant relief pursuant to c. 278, § 33E.

Background. 1. Facts. We summarize the facts the jury could have found, reserving certain details for later discussion in connection with the issues raised. On the night of July 1, 2004, the city of Somerville put on a fireworks display in Trum Field. The defendant, Gustave, and their respective girl friends, Claudine Dyer and Danielle Leblanc, met before the fireworks and went together to the event. All four were drinking before and during the fireworks display; Gustave and Leblanc also had taken a number of Klonopin pills. As they were walking together toward the fireworks, Leblanc asked Gustave if she could hold his knife in case they ran into “anybody that I had problems with.” Gustave answered, “No.” Dyer similarly asked the defendant whether he had a knife and whether she could hold it; the defendant also answered, “No.” The defendant heard the interchange between Gustave and Leblanc.

The foursome watched the fireworks from a garage roof on Albion Street, where they drank beer and smoked marijuana; the defendant and Dyer each drank approximately six beers. After the fireworks were over, the four began to walk on Cedar Street.

William Tighe came running down the street from the bicycle path near them, and Leblanc confronted him with a statement or question about her brother and drugs. A heated dispute between Leblanc and Tighe ensued, in the course of which Tighe came up very close to Leblanc, shouting and threatening her, Dyer then approached Tighe and punched him in the face, and Tighe responded by pushing Dyer down against a fence. As this confrontation was taking place, Sullivan and Stevens came walking down the street and were standing behind Tighe, whom they knew through Tighe's younger brother. Neither Sullivan nor Stevens carried a weapon, and neither said anything or joined the dispute. After Tighe pushed Dyer, the defendant and Gustave began to approach him, and they both took out their knives; Tighe did not have a weapon. Tighe began to run down Warwick Street, and told Stevens and Sullivan to run; Gustave and the defendant ran after Tighe in pursuit. Tighe stumbled as he ran; the defendant caught up to him, and stabbed him with a knife in the back, inflicting a superficial wound. Tighe got up and continued to run. The defendant and Gustave ran toward Stevens and Sullivan. Gustave grabbed Stevens by the waist and stabbed him in the side; Stevens fell to the ground. The defendant did not attack Stevens, but connected with Sullivan. At this point, the entire group was on Warwick Street. The defendant stood and then crouched over Sullivan, with his arm repeatedly stabbing him in the stomach area. Gustave then joined the defendant in stabbing Sullivan; Sullivan appeared to be fighting against them. Leblanc kicked Sullivan a few times in the head as he lay on the ground, and Dyer also may have kicked him.

As these events were unfolding on Warwick Street, Michael McCormack, Tighe's stepfather, who was in the backyard of his house on Warwick Street, heard a young male voice say, “Get off me. Leave me alone,” and came running out of his driveway. He saw the defendant and Gustave bending over Sullivan and Stevens, who were both lying on the ground. McCormack ran toward the defendant and Gustave, swearing at them, and “bowled them over.” The defendant and Gustave ran away, as did Dyer and Leblanc.

As they ran, Dyer stopped and asked Gustave and the defendant why “that kid” was bleeding, and Gustave responded, “Because we just stabbed them. We just stabbed them.” The defendant said, three times, “I'm on probation.” He also said, “I can't believe this.” Dyer was running a little behind the defendant, and as they

ran, a resident who was out on a porch heard the defendant say, “Hurry the fuck up. I just stabbed three people, three guys, and I'm going to jail for three years.” The defendant, Gustave, Dyer, and Leblanc ultimately ended up at Leblanc's house in Somerville.

In the meantime, McCormack and his wife, Elizabeth McCormack, who is Tighe's mother, tried to tend to the two prone victims; each recognized both Sullivan and Stevens. A telephone call was made to 911. Sullivan and Stevens were taken to the hospital. Sullivan died within one hour, having received at least seven stab wounds ; he was sixteen years of age. Stevens lost his kidney and spent thirty days in the hospital; he was seventeen years of age.²

2. Procedural history. On September 9, 2004, a Middlesex County grand jury returned indictments against the defendant and Gustave, charging each of them with murder in the first degree of Sullivan (count one); armed assault with intent to murder Stevens and Tighe (counts two and three); assault and battery of Stevens by means of a dangerous weapon, causing serious bodily injury (count four); and assault and battery of Tighe by means of a dangerous weapon (count five). The defendant's case was severed from Gustave's before trial. See note 5, infra. The jury found the defendant guilty of murder in the first degree of Sullivan on the theory of extreme atrocity or cruelty, as well as on counts four and five, charging assault and battery by means of a dangerous weapon of Stevens and Tighe, respectively.³ On the charges of armed assault with intent to murder Stevens and Tighe, the jury convicted the defendant of the lesser included offense of assault by means of a dangerous weapon.⁴ The defendant filed a timely appeal in this court.⁵

In November, 2007, the defendant filed, pro se, his posttrial

motion in the Superior Court.⁶ Thereafter, the defendant's appeal to this court was stayed while the defendant pursued his posttrial motion. The trial judge heard the motion, taking evidence on the defendant's claim of ineffective assistance of counsel. After that evidentiary hearing, the judge denied the defendant's posttrial motion. The defendant's appeal from the denial of that motion has been consolidated with his direct appeal of his convictions.

Discussion. 1. Manslaughter instruction. The defendant argues that the judge committed reversible error in declining to instruct the jury on voluntary manslaughter as a lesser included offense of the murder charge. He claims that, as the judge “found” in ruling on the defendant's motion for a new trial, there was evidence that Sullivan had jumped on the defendant's back and the defendant pushed him off.⁷ He then asserts that this evidence would permit the jury to find that the defendant, in stabbing Sullivan thereafter, was acting in a heat of passion on reasonable provocation or induced by sudden combat. We disagree.⁸

The defendant is correct that if any view of the evidence would

permit a finding of voluntary manslaughter, an instruction on this lesser offense must be given. See, e.g., Commonwealth v. Garabedian, 399 Mass. 304, 313, 503 N.E.2d 1290 (1987). It is also the case that such an instruction cannot be refused even if the evidence on which the claim for a manslaughter instruction is based is not “of a character to inspire belief” (citation omitted). See id. But an instruction on voluntary manslaughter is only warranted “if there is evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused's temper to cool.” Commonwealth v. Acevedo, 446 Mass. 435, 443, 845 N.E.2d 274 (2006), quoting Commonwealth v. Andrade, 422 Mass. 236, 237, 661 N.E.2d 1308 (1996). The jury also must be able to infer from the evidence “that a reasonable person would have become sufficiently provoked and that, in fact, the defendant was provoked,” and that “there is a causal connection between the provocation, the heat of passion, and the killing” (quotations and citations omitted). Garabedian, supra.

The defendant does not contend that Leblanc identified the person she saw jump on the defendant's back, but argues that by process of elimination, the unidentified person had to have been Sullivan, because Leblanc identified the person as a male and stated that the male was not McCormack; the person was not Tighe, because Tighe ran back to his home after being stabbed by the defendant; and the person was not Stevens because, the jury could find,...