Supreme Judicial Court of Massachusetts, Middlesex
Heard: September 9, 2016.
found and returned in the Superior Court Department on March
pretrial motion to suppress evidence was heard by Charles M.
Grabau, J., and the case was tried before him.
A.F. Lewis for the defendant.
Jessica Langsam, Assistant District Attorney (Elizabeth
Dunigan, Assistant District Attorney, also present) for the
Present: Gants, C.J., Botsford, Gaziano, Lowy, & Budd,
January 20, 2000, Sandra Berfield, the victim, received a
package containing a pipe bomb, which exploded when she
opened it, blowing her body asunder and killing her
instantly. A jury in the Superior Court found the defendant,
Steven Caruso, guilty of murder in the first degree on
theories of deliberate premeditation and extreme atrocity and
defendant appeals from his conviction, claiming that (1) the
admission of testimony by a jailhouse informant violated the
defendant's confrontation rights; (2) a ballistics expert
improperly testified to a report prepared by an unavailable
expert; (3) the testimony of the Commonwealth's wire
expert should have been excluded; (4) the Commonwealth failed
to establish adequately the reliability of computer forensics
evidence; and (5) the admission of the victim's prior
recorded testimony and limitations on the defendant's
ability to attack its veracity violated the defendant's
confrontation rights. We conclude that no reversible error
occurred, and we affirm the jury's verdict.
recite the facts the jury could have reasonably found in the
light most favorable to the Commonwealth, reserving certain
details for our analysis of the issues.
Defendant's relationship with victim.
defendant was a long-time regular customer at a restaurant in
Medford where the victim worked as a server. The defendant
often patronized the restaurant more than once daily, and
typically requested a particular server. When the defendant
became angry after a long wait for his previously preferred
server, the victim became the defendant's server of
choice. The defendant and the victim established an amicable
defendant was closely connected with many events taking place
at the restaurant and with many of the people who worked
there. The defendant, a handyman by trade, did repair work at
the restaurant and in the homes of its employees. He also
attended some social events organized for employees of the
the relationship between the defendant and the victim took a
negative turn. The defendant asked the victim on a date. The
victim declined, and the defendant's demeanor changed.
Although the defendant had a reputation among the
restaurant's staff for staring at people, he began to
stare exclusively at the victim and in a hateful manner.
between the defendant and the victim escalated. On two
occasions, the defendant poured battery acid into the
gasoline tank of the victim's motor vehicle, for which
the defendant was convicted of destroying the victim's
property. He was sentenced to eighteen months in the house of
correction, with six months to serve and the balance
suspended for two years. He also was ordered to make monthly
restitution payments. A payment was due in January, 2000. The
defendant also was charged with, but not convicted of,
slashing the victim's tires.
addition, the victim had obtained a restraining order against
the defendant after the first battery acid incident. After
the second battery acid incident, the victim returned to
court regarding the restraining order violation. At the end
of the ensuing proceeding, the judge told the defendant the
restraining order was still in full effect. Nevertheless,
immediately after the hearing, the defendant approached the
victim, coming within about two feet of her in a nearby
parking lot. A few months later, the defendant drove by the
morning of Thursday, January 20, 2000, at approximately 12:30
A.M., the victim was instantly killed in her apartment when
she opened a package containing a pipe bomb. The victim lived
on the second level of an owner-occupied home in Everett.
defendant left the package containing the pipe bomb on the
victim's porch just after 9:30 A.M. At around 12:30
A.M. , the homeowner retrieved the mail and, on her way back
into her apartment, examined the package containing the bomb.
She saw the name "Passanisi" with a Maiden return
address. Her husband heard the victim go down to the basement
and then return to her apartment. Shortly thereafter, they
felt the explosion.
homeowner and her husband responded with alacrity. They went
to the second-floor apartment and opened the door. They saw
smoke, smelled an odor, and saw the victim's body on the
floor. They telephoned 911.
arrived at the scene promptly. A responding officer
identified the odor as similar to gunpowder. From the doorway
to the apartment, the officer saw human tissue and blood
spatter on the wall, floors, and ceiling. He called to the
victim, whose body he saw at the end of a hallway. There was
no response. The cause of death was later determined to be
massive blast injuries.
on the defendant's troubled history with the victim, the
police promptly sought to question him that same day. The
defendant provided police with two inconsistent descriptions
of his whereabouts on earlier that morning. First, he told
the police he had gone from his home to a library around 10
A.M., then to a cafe. Later, he told the police that he had
gone to the cafe first, followed by the library.
that same evening, the police returned to the defendant's
home to secure it, pending the issuance of a warrant, which
was subsequently executed. Again, the defendant voluntarily
answered the questions policed asked. He knew that the police
were there "about that girl that got blown up in
Everett, " who had "caused [the defendant] a lot of
problems." He also stated that he did not like the
victim anymore. When asked what he thought should happen to a
person who committed such a crime, the defendant responded,
"Well, you don't know all the facts. "
Search of crime scene and defendant's home.
the crime scene, police recovered, among other things,
battery parts, pieces of pipe, metal fragments with human
tissue or blood on them, pieces of copper, and wires. After
the police conducted their search, a private company cleaned
the premises and delivered additional items in bags to the
executing the warrant at the defendant's home, the police
discovered a number of items that were introduced as evidence
at trial. The police found drill bits, an electronics wiring
tool kit, batteries, copper wire, pieces of pipe, and
ammunition. The wire, pipe fragments, batteries, and
gunpowder obtained at the defendant's home were
consistent with similar materials found at the scene of the
defendant's bedroom, police recovered various documents
containing detailed information about the victim, her family
and past boy friends, including documents with the
victim's date of birth, Social Security number, home
address and place of employment. Police also recovered
correspondence between a former boy friend and the victim,
and a document containing a postal service code referring to
the mail route to the victim's home. Shortly after the
search, the defendant's sister informed police that she
had discovered a booklet entitled, "High-Low Boom
Explosives, " in the defendant's room.
a forensic investigation of the defendant's computer,
police discovered information related to the victim and her
family that had been accessed by the defendant in the days
leading up to her death, including that the defendant had
used an astrology program and a family tree program
containing the victim's personal information, such as her
telephone number and former addresses. Through the family
tree program, the police accessed a mailing label containing
the name "Sebastiano Passanisi, " the victim's
brother-in-law, with a Maiden address, consistent with the
return address on the package containing the bomb. Neither
the victim's sister nor her brother-in-law had lived in
Maiden for approximately thirty years. Police found no
information related to any other family in the program.
Testimony of jailhouse informant.
his arrest, the defendant encountered Michael A. Dubis,
another prisoner, in a holding cell at a
hospital. Dubis recognized the defendant's name
and face from the newspaper and asked him questions about the
victim's death. For approximately ninety minutes, Dubis
talked to the defendant, intending to find out what had
happened. Dubis sought to win the defendant's trust and
asked questions to elicit information he could pass on to law
defendant made numerous incriminating statements to Dubis.
The defendant told Dubis that he had learned about making
bombs from a friend, that he had used batteries and a pipe,
and that the package would only explode when it was opened
due to a "basic separation device." The defendant
also said that he "got [the bomb] there, " that he
used the return address of the victim's sister on the
package, and that he knew the bomb would kill anyone who
opened it. In addition, the defendant described his
relationship with the victim, including the incidents
involving damage to the victim's vehicle and that the
victim had a video recording of him "messing with"
her vehicle. The defendant said that the victim would not go
out with him and that he was mad at her and called the victim
relayed this information to a State trooper, Sergeant James
Plath, to whom Dubis had previously provided information.
Plath informed law enforcement officials involved in the
defendant's case. Following a motion to suppress, which