Commonwealth v. Tassinari
| Decision Date | 09 September 2013 |
| Docket Number | SJC–11049. |
| Citation | 995 N.E.2d 42,466 Mass. 340 |
| Parties | COMMONWEALTH v. John J. TASSINARI. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Robert F. Shaw, Jr., Cambridge, for the defendant.
Mary E. Lee, Assistant District Attorney, for the Commonwealth.
Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, & DUFFLY, JJ.
On November 1, 2010, a jury found the defendant guilty of murder in the first degree of his wife on the theories of deliberate premeditation and extreme atrocity or cruelty. The defendant argues error in the admission of evidence; the judge's failure to exclude a juror based on the juror's assertions of dual citizenship; portions of the prosecutor's argument; and jury instructions. He also seeks relief pursuant to G.L. c. 278, § 33E. Because we discern no error requiring reversal of the defendant's conviction, and see no reason to exercise our power under G.L. c. 278, § 33E, we affirm.
[466 Mass. 342]1. Background. The defendant admitted to shooting and killing his wife, the victim, in the driveway of their home on April 22, 2008. The main issue at trial was whether the shooting was a result of the defendant's sudden heat of passion.
a. The Commonwealth's case. We present the essential facts the jury could have found, reserving certain details for our discussion of the issues.
The defendant and the victim were married in November, 2004, after a relationship of approximately two years. At the time of the murder, the couple lived next door to the victim's brother and his wife, with whom they regularly socialized. The defendant was a licensed firearms instructor who owned six handguns and one target rifle, all of which were licensed. He stored the guns and various types of ammunition in a gun safe in the closet in his bedroom. Some of the guns in the safe were kept loaded. He also carried a gun during the day, taking it off only to shower and go to sleep at night.
In the months prior to the murder, the defendant and the victim were experiencing tension in their marriage and discussed divorce on more than one occasion. The defendant and victim discussed these difficulties in electronic communications with each other.1 According to the victim's sister-in-law, in whom the victim confided, the victim had asked the defendant for an “open marriage” because she hoped the defendant would find someone else and “would go off with that person and leave her alone.” The victim also told her sister-in-law that she had asked for a divorce about three months before her death, and that the defendant wanted to stay in the house until the divorce became final.
The defendant told the victim he “couldn't bear the thought of ... going outside the marriage.” He communicated to his coworker and parents that he and the victim had discussed having an open marriage and told his parents that he had some “pretty serious marital problems” and had researched divorce on the Internet. In an electronic communication to the victim on April 11, 2008, the defendant stated that he would “be gone in 18 months” because he believed, based on his research, that a divorce would be finalized in that period of time.2
In other electronic exchanges that month, the defendant told the victim he was concerned about her upcoming plans to go on vacation to a dog show with her best friend because he was worried about other men being there. In these communications and in his testimony at trial, the defendant also expressed his resentment concerning the time the victim spent on her computer and stated that he felt she was choosing the computer over him. The defendant conveyed his disappointment that he and the victim did not have sexual relations as often as they had in the past and accused the victim more than once of having an affair. Approximately two weeks before the shooting, the defendant acknowledged to the victim that he was “controlling,” and “need[ed] to work on trusting [her] more.” The victim repeatedly denied that she was having an affair. She told the defendant that, when she spent time on the computer with other people, “[she] was just looking for a small bit of [her] own time,” and accused the defendant of being upset when she did not acquiesce to his requests. The victim believed the defendant to be “insecure,” “obsessive,” and “controlling.”
At trial, the Commonwealth highlighted two events leading up to the murder. On April 10, the defendant had anticipated spending the evening with the victim, but the defendant became angry and left the house. The victim called her best friend on the telephone and told her that this was the first time she thought the defendant would hit her. The second event occurred on April 20, 2008, when the victim went out with a group of girl friends, which was unusual for her. The defendant telephoned or sent text messages to the victim twelve times between 8:25 p.m. and 1:48 a.m. In the electronic communications between the defendant and the victim the next day, the defendant expressed his concern that the victim “[could not] handle herself” and that other men would take advantage of her while she was on vacation.
One day later, the day of the shooting, the defendant believed the couple would spend the evening together. The victim was typing on her computer while the couple was watching television. When the defendant asked her who she was communicating with, the victim told the defendant that she was talking to some friends and that she could “talk to whoever [she] want[ed] and do whatever [she] want[ed].” The defendant left the room “to see how long it would take for her to notice that [he] had gone upstairs.” When the victim asked him whether he would be returning to watch television, he told her that it was “rude” that she “disappeared into cyberspace” when they were supposed to be spending time together. At 9:17 p.m., the victim telephoned her sister-in-law and went next door to talk with her in order to defuse the situation.
After the victim left the house, the defendant contacted her and asked whether she had worn a sweatshirt to cover the tight-fitting shirt she was wearing and when she would return home. The victim responded that she would be home after she finished her tea. At 9:50 p.m., the defendant viewed three images on his computer: one of himself with a dog baring its teeth, one of a gun, and one pornographic image. The defendant also called his mother, with whom he spoke from 9:50 until 10:02 p.m., and told her that the victim was talking about “other guys again.” At some point while the defendant was talking to his mother, the victim returned home.
At 10:08 p.m., witnesses heard multiple gunshots. A waitress from a nearby restaurant saw the defendant leave from the rear door of his house. The surrounding lights were bright enough for her to see him on the back steps of his porch. He walked very quickly down the back stairs into the yard, firing a gun. She heard several shots, a woman scream, and two more shots. She then heard metal hitting the ground and saw the defendant move quickly back up the stairs into the house. He went inside, shut off the interior lights, and came back outside. She then heard another set of shots.3
Immediately after killing the victim, the defendant telephoned 911 and told police that his wife had been cheating on him for a long time, that he killed her by shooting her more than twelve times, that there were two guns, and that he would wait for them. When police officers arrived at the home, they found the deceased victim at the end of the driveway, surrounded by casings and ammunition.
The victim had been shot eighteen times. She had wounds to her head, torso, and legs. Multiple bullets and bullet fragments were found in the victim's body and clothing. The medical examiner stated that some of the “wound tracks were consistent with [the victim] having been lying down and receiving those gunshots to the top of her head” and that the wounds to the victim's inner ankle and the back of her thigh would not have been fatal. The cause of death was injuries to the skull, brain, spine, heart, lung, kidney, spleen, stomach, intestines, and major blood vessels.
b. The defendant's case. To support his theory that the victim was involved with other men, the defendant introduced evidence about the victim's participation in an Internet chat room about dogs, as well as telephone records showing the victim communicated with two men without the defendant's knowledge. The defendant emphasized that in many electronic communications in the months prior to the murder, even after the victim and the defendant had argued, the couple expressed their love and care for each other.
The defendant testified about the night of the murder, stating that, after he saw his wife return home, he had gone into the bedroom alone, opened up his gun safe to put his gun away, and was interrupted by the victim entering the bedroom. He and the victim then had a conversation about “all these other guys,” who might take advantage of her during her vacation. When the victim screamed, and that she did not love him, he “lost control.” In the next few moments, he could only remember reaching toward the gun safe and seeing the victim's face. He next found himself in the driveway holding an empty pistol. The defendant argued that the victim's sudden statement of infidelity caused him to lose control and that learning of his wife's infidelity was reasonable provocation for the defendant to lose control in the heat of passion.
To support this theory, the defendant introduced evidence (1) that while he was in the driveway immediately after the shooting, he told his mother, father, and brother-in-law that he killed his wife because she was cheating on him; and (2) that he told police that he killed his wife because she was unfaithful. Four witnesses testified for the defendant. The defendant's mother, father, and coworker stated...
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