State v. Tarvis
| Decision Date | 30 August 1983 |
| Docket Number | No. 82-202-C,82-202-C |
| Citation | 465 A.2d 164 |
| Parties | STATE v. John James TARVIS and Thomas M. Porraro. A. |
| Court | Rhode Island Supreme Court |
This is an appeal from judgments of conviction in the Superior Court for first-degree murder and other violent crimes, enumerated below. On appeal the defendants set forth a multiplicity of errors that they attribute to the trial justice and assert as the basis for reversal of their convictions. The facts as disclosed by the record are as follows.
The unfortunate events that underlie the convictions that are being challenged in this case occurred on November 18, 1980. The defendants, Thomas M. Porraro (Porraro) and John J. Tarvis (Tarvis), were drinking and playing pool at the Bonefero Club, which is located on Salmon Street near the Manton Avenue housing development in Providence. Porraro became involved in an argument with Jody Petrarca (Jody), who had been accompanied to the club by Bruce R. Ottiano (Bruce). Eventually, a fight erupted between Jody and Porraro. The altercation spilled into the hallway and then out onto the street. Although Tarvis, Bruce, and Porraro's brother-in-law were present, the record does not clearly reflect who, if any, of the men, other than Jody and Porraro, actively participated in the fight. In any event, Jody prevailed, the fight ended, and Jody and Bruce started to leave the scene after Bruce retrieved an article of clothing that Jody had left behind.
As Jody and Bruce walked away, Tarvis and Porraro moved the car that Tarvis had been driving from the side parking lot to the street in front of the club. Tarvis emerged from the car carrying a rifle and fired it twice in the direction of Jody and Bruce, who quickly fled to a point near Bruce's residence at 470D Manton Avenue. They then parted; Jody went to a friend's house, and Bruce went to the apartment of his sister, Gail C. Ottiano (Gail), at 479 Manton Avenue. Bruce stayed at Gail's briefly, then went to Caesar's Bar before returning to his parents' home.
At some point after Bruce had left his sister's apartment, Porraro and Tarvis arrived. They rang Gail's doorbell, and she responded so far as to descend the stairs to the single glass door that separated the porch from the stairwell. Seeing that Porraro was carrying a weapon, Gail fled back up the stairs into her bedroom, with defendants close behind. Porraro pointed a gun at Gail and demanded to know where her brother and his friends were. Gail asked Porraro why he wanted to find Bruce. Porraro replied that he was going to kill him.
In the meantime, Tarvis searched the apartment. Gail denied knowing her brother's whereabouts and pleaded with defendants to leave. Tarvis suggested to Porraro that he leave Gail alone because she knew nothing about the fight. Eventually defendants left the apartment. After reporting the incident to the police and her family, Gail went to her mother's apartment for the evening.
Porraro and Tarvis drove from Gail's apartment to the apartment on 272 Manton Avenue where Tarvis was then living with Deborah A. Pierro (Deborah). When defendants arrived at the apartment, Deborah, her sister, her brother-in-law, her nephew, and Paula Trofi (Porraro's wife), were present. Apparently, Porraro's face was swollen and covered with blood from injuries that he had suffered during the fight with Jody. Deborah testified that as Tarvis helped Porraro clean himself, Tarvis said that "[i]t's not worth it, you know." Porraro was not dissuaded, however, and replied that Deborah then approached Tarvis to ask what was happening. Tarvis said that "[Porraro's] in trouble * * * and if he has to go to jail, I'll go with him * * *."
The defendants left the apartment but quickly returned with weapons and ammunition. Tarvis carried a rifle and Porraro brandished a handgun until Tarvis told him not to point it at anyone. Evidently the handgun was jammed so defendants went to another room to fix it. At about this time Roland E. Bourdeau (Bourdeau) came upon the scene. He and his brother had twice visited the apartment earlier that evening because Tarvis had been planning to give them a car battery. On the third visit, however, Bourdeau entered the apartment alone.
Porraro was upset and appeared to Bourdeau to be threatening him with the rifle. According to Bourdeau, Tarvis attempted to calm Porraro down and explained what had occurred at the Bonefero Club. Porraro interjected that whoever was responsible for his beating had to be "taken out of the box." Bourdeau interpreted this as an expression of Porraro's intention to kill someone. Tarvis reinforced this impression by saying to Bourdeau: "You know, Ron, they do that to one of the 'bros,' they got to go."
The defendants then enlisted Bourdeau's aid as their driver. The evidence indicates that the voluntariness of Bourdeau's assent to defendants' request was questionable at best. Bourdeau testified that he felt threatened by Porraro and agreed to drive defendants only after they assured him that they would not bring any weapons along and that they only wanted him to drive them to Porraro's house. Deborah, on the other hand, claimed that Bourdeau helped defendants fix the jammed pistol and that when Tarvis asked Bourdeau if he wanted to get involved, he replied, "Sure, why not?"
In any event, the trio left in Bourdeau's car after Porraro had escorted Deborah's sister, brother-in-law, and nephew to their car at gunpoint, had admonished them not to return, and had warned them not to call the police. Bourdeau first drove to his house to drop off his brother-in-law, who had been waiting for Bourdeau to come out of Tarvis's apartment. Bourdeau claimed that he then attempted to proceed to Porraro's house but that Porraro threatened him with a gun and ordered him instead to return to 272 Manton Avenue. Once there, Tarvis went inside to get the rifle.
After Tarvis returned, Bourdeau exited from the driveway and drove straight up Manton Avenue. At a point near the Ottiano residence at 470 Manton Avenue, defendants told Bourdeau to stop the car. They then began to fire out of the driver's window in the direction of the apartment located in that building. Bourdeau testified that Porraro said "that he lived right there in that end apartment indicating the * * * apartment."
Mr. Leonard J. Vitucci and Mrs. Ellen A. Vitucci, tenants at 470C Manton Avenue, testified that the sound of gunfire startled them and that they contacted the police. No bullets entered their apartment but several bullets entered the adjacent apartment (470B) where Mrs. Mary Wendolowski lived. Mrs. Wendolowski was uninjured during this attack.
The defendants then returned to Tarvis's apartment where, with some difficulty, Tarvis obtained more ammunition from Deborah. Bourdeau then drove defendants by a circuitous route back to the street in front of 470 Manton Avenue. Porraro fired the rifle out of the driver's-side window at the building, Bourdeau drove around the block, and Porraro again shot at the building, this time from the passenger's-side window. Bourdeau claimed that Tarvis did not participate in this part of Porraro's shooting activity.
Mr. Vitucci testified that as the car passed by 470 Manton Avenue, he was standing near the front door of his apartment. He accidentally hit a light switch, Bourdeau's car backed up, and a shot was fired at him. According to Mr. Vitucci, the bullet missed his apartment but entered Mrs. Wendolowski's apartment. It was later discovered that Mrs. Wendolowski was killed by this bullet. Bourdeau admits that he stopped the car momentarily while Porraro fired but denies that he ever backed up. In either event, the bullet that struck and killed Mrs. Wendolowski was fired sometime during defendants' second trip to 470 Manton Avenue.
The defendants returned briefly to Tarvis's apartment and were then pursued by a state trooper. During the chase, one of defendants threw the rifle from Bourdeau's car. They evaded the police and arrived at Porraro's Douglas Avenue apartment. Porraro left the pistol at the apartment. Deborah testified that the next day Paula Trofi placed the weapon in a tube sock and hid it on some railroad tracks. After they left Porraro's apartment, defendants drove to a nearby gas station where they left Bourdeau's car. According to Bourdeau, both defendants threatened the safety of his wife and child while warning him not to report the evening's activities.
Eventually, police recovered the rifle and the handgun, and an investigation resulted in the arrest of both defendants. A ten-count indictment charged Porraro, Paula Trofi, Tarvis, and Bourdeau with various crimes arising from the events of November 18, 1980. Because Bourdeau testified for the state, the charges against him were dropped. The charge of harboring against Paula Trofi has not yet been prosecuted. We shall therefore delineate the other nine counts only as they relate to Porraro and Tarvis. The indictment jointly charged defendants as follows: count 1--the murder of Mary Wendolowski; count 2--an assault on Leonard J. Vitucci with a rifle; count 3--possession of a loaded rifle in a motor vehicle; count 4--an assault on Gail C. Ottiano in a dwelling house with intent to murder; count 5--an assault on Bruce R. Ottiano with a rifle; count 6--an assault on Jody Petrarca with a rifle; count 7--an assault on Robert W. Savitsky (Deborah Pierro's brother-in-law) with a pistol; and count 8--an assault on Robin M. Savitsky (Deborah's sister) with a pistol. In addition, count 9 charged Tarvis alone with possession of a rifle after...
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