Commonwealth v. Tate

• Decision Date: 22 January 2021
• Docket Number: SJC-12133
• Citation: 486 Mass. 663,160 N.E.3d 1206
• Parties: COMMONWEALTH v. Eugene TATE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

486 Mass. 663

160 N.E.3d 1206

COMMONWEALTH

v.Eugene TATE.

SJC-12133

Supreme Judicial Court of Massachusetts, Middlesex..

Argued October 7, 2020

Decided January 22, 2021

Leslie W. O'Brien, Boston, for the defendant.

Lindsay Russell, Assistant District Attorney, for the Commonwealth.

Present: Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.¹

The cases were tried before Kathe M. Tuttman, J.

KAFKER, J.

In 2015, a jury convicted the defendant of murder in the first degree on the theory of felony-murder, armed robbery, armed assault in a dwelling, and illegally carrying a firearm.² On appeal, the defendant argues that several statements made by the prosecutor in his closing argument constitute prejudicial error. The defendant also argues that the judge erred by denying the defendant's request for a voluntary manslaughter instruction based on self-defense, reasonable provocation, or sudden combat. Finally, the defendant argues that his conviction should be reduced to murder in the second degree because of the circumstances of the crime and because he was only nineteen years old at the time of the murder.

Discerning no error, we affirm the defendant's convictions and, after plenary review of the entirety of the record, we decline to exercise our authority under G. L. c. 278, § 33E, to reduce the verdict or order a new trial.

1. Facts. We summarize the facts that the jury could have found at the defendant's trial, reserving certain details for our discussion of the legal issues.

In June 2013, the defendant approached Robert DeLuca, someone he knew from high school, looking to buy a small quantity of marijuana. DeLuca connected the defendant with Shane Corbett and introduced the defendant to Corbett as "G." The defendant purchased two ounces of marijuana from Corbett at Corbett's house. After the sale, the defendant and Corbett exchanged cell phone numbers.

On July 2, 2013, the defendant called Corbett looking to buy a pound of marijuana. Corbett did not deal in that quantity, but he knew that the defendant could buy that quantity from Steven Piro. Corbett reached out to Piro to tell him that the defendant, who would be accompanied by another person, wanted to purchase a pound of marijuana. Piro told Corbett to have the defendant contact him directly. Once the defendant contacted Piro, Piro contacted his own supplier, Mario Fiume, to arrange the transaction. Fiume agreed to do the sale at his house but told Piro that only one person would be allowed inside at a time. The terms of the sale were $3,200 for one pound of marijuana, with Corbett getting $300. Piro told Corbett the details and told him that the deal would happen later that night.

Corbett contacted the defendant and had the defendant meet him at a parking lot in Stoneham so that the defendant could follow Corbett to Fiume's house. Before meeting with the defendant, Corbett and his friend, Timothy Kinneally, stopped at Corbett's home and picked up a baton and a Taser to bring with them.³ At the parking lot, Corbett and Kinneally met with the defendant and another unidentified black male who was bigger than the defendant.⁴ The defendant showed Corbett and Kinneally a stack of money. Corbett and Kinneally then led the defendant and the unidentified male to Fiume's house in Stoneham. By the time they arrived at Fiume's house, it was nighttime.

Piro met Corbett, Kinneally, the defendant, and the unidentified male in the driveway. Piro, Corbett, and the unidentified male walked into the garage while Kinneally and the defendant stayed in their vehicles. When the three men entered the garage, Fiume and George Tecci, a friend of Piro and Fiume, were already in the garage. There were two cars in the garage - - one was covered and the other was a blue classic car. On the covered car, there were multiple air-sealed bags of marijuana. The unidentified male and Fiume discussed the marijuana while the unidentified male inspected the bags. The unidentified male told Fiume that the defendant would need to look at the marijuana before they purchased it. The unidentified male also told Fiume that he was uncomfortable doing the deal in the garage and wanted to do it outside by his vehicle. Fiume insisted that the deal take place in the garage. The two went back and forth, agitating Fiume. Fiume then told the unidentified male to leave and bring the defendant into the garage. He left and the defendant entered the garage.

The unidentified male had selected one of the bags of marijuana, and the defendant agreed with his selection. Like the unidentified male, the defendant expressed concern about doing the deal in the garage because he thought he might be robbed. He also wanted to do the deal outside. This agitated Fiume, who told the defendant to leave. The defendant and the unidentified male then drove away. Corbett, Tecci, and Piro also left.

Later that night, the defendant called Piro and told Piro that he wanted to go back to Fiume's house to complete the deal. Piro was in his car with Tecci at the time. Piro contacted Fiume, who initially did not want to do a second transaction. By this point, Fiume was with the victim, Joseph Puopolo, whom Fiume had invited to his house to smoke marijuana. Puopolo encouraged Fiume to complete the deal, so Fiume told Piro that he would do the deal as long as the defendant came to the house in Piro's car and only one person would come into the garage at a time.

Piro and Tecci met the defendant and Jesse Williams, a different individual from the unidentified male that was there earlier that night, at a gasoline station in Stoneham. The defendant and Williams got into Piro's car, with Williams sitting in the rear passenger's side seat and the defendant in the rear driver's side seat. Piro drove to Fiume's house, which was about two minutes away. Piro and Williams got out of the car and went into the garage while Tecci and the defendant remained in the car. When Piro and Williams entered the garage, Fiume and Puopolo were already in the garage. There was a single bag of marijuana on the covered car, the same bag that the defendant and the unidentified male had picked earlier. Fiume showed it to Williams. Williams wanted to confirm with the defendant that this was the right bag of marijuana. Fiume was hesitant about letting the defendant come into the garage but ultimately let him come inside. Piro left the garage and went to the driveway to tell Tecci and the defendant to come into the garage. At this point, Fiume and Puopolo were standing between the two vehicles, with Fiume closer to the entrance to the garage and Puopolo behind him.

Once the defendant entered, Williams and Fiume began negotiating over the price, which Fiume eventually lowered. Williams showed Fiume that he had money for the deal, and Fiume responded by pulling out a stack of cash and telling the defendant and Williams that he also had money. Williams then said he had to go outside to take the amount for the deal from his stack of money because he did not feel comfortable doing it in the garage. Williams went outside briefly and then came back in and told Fiume he thought he would be robbed if he tried to buy the marijuana. Fiume got angry and told the men to leave.

At this point, both Williams and the defendant pulled out guns.⁵ Williams aimed his gun at Tecci's face, ordered him to move, and then moved towards Fiume. Tecci left the garage and ran towards a friend's house. Piro unsuccessfully tried to knock the gun from the defendant's hand. The defendant then stood with his gun aimed at Puopolo. As Williams charged at Fiume, he told Fiume to give him the marijuana and the money. Fiume grabbed the bag of marijuana from the car, put it behind his back, and backed up toward the back of the garage. Fiume attempted to punch Williams. Williams then shot Fiume, who fell to the ground. Puopolo then moved towards the defendant, and the defendant shot Puopolo. Piro then ran out of the garage. Tecci testified that he heard a single gunshot as he fled. After seeing Williams and the defendant run from the garage, Piro went back into the garage and saw that the bag of marijuana that had been on the trunk of the car was gone.

Puopolo was discovered lying face down on the ground just inside the front door of the house. He eventually died from a single gunshot wound. The bullet passed through his left arm and then entered the chest cavity in his upper left chest area. The medical examiner recovered a single bullet from Puopolo's right chest cavity. A State police ballistician testified that the bullet was a .38 caliber brass-jacketed round with a lead core. This bullet was the only ballistics evidence admitted in evidence.⁶

The Commonwealth introduced substantial evidence identifying the defendant as the individual that was present on both occasions at Fiume's garage. A fingerprint recovered from the interior of the rear driver's side door of Piro's car matched the left index finger of the defendant. Fiume identified the defendant in a photographic array several days after the shooting, saying, "That's the guy that shot Joe. He was there both times. That's the guy one hundred percent. He shot Joe."⁷ At trial, Fiume identified the defendant as the person who shot Puopolo.⁸ Piro also identified the defendant at trial as the person whom he knew as "G," who shot Puopolo, and who was present on both occasions that night. Tecci similarly identified the defendant as the individual who was there both times that night. There were also surveillance video recordings introduced from the gasoline station in Stoneham and from outside Fiume's house that showed the individual identified as the defendant arrive at the house both times that night.

2. Discussion. On appeal, the defendant argues that multiple errors in the Commonwealth's closing argument deprived him of due process and a fair trial. The defendant also argues that the judge erred by failing to give the jury a voluntary manslaughter instruction. Finally, ...