COMMONWEALTH
vs.
ROBERT L. BIANCHI, JR.
SJC-07266
Massachusetts Supreme Court
September 14, 2001
November 9, 2001
County: Suffolk.
Present: Marshall, C.J., Greaney,
Ireland, Sosman, & Cordy, JJ.
Summary: Homicide. Practice, Criminal, Capital case,
Hearsay, State of mind, Instructions to jury. Evidence,
Hearsay, Spontaneous utterance, State of mind. Intent.
Malice. Controlled Substances.
Indictments found and returned in the Superior Court
Department on May 26, 1994.
The cases were tried before Sandra L. Hamlin, J., and a
motion for a new trial was heard by her.
Dana Alan Curhan for the defendant.
Amanda Lovell, Assistant District Attorney, for the
Commonwealth.
CORDY, J.
In the early morning hours of April 17, 1994, Donna
Bianchi was beaten and choked with a night stick and
sprayed with mace in her home by her estranged husband,
Robert L. Bianchi, Jr. She became fearful that Bianchi
was going to kill her and her child, and obtained an
abuse prevention order against him the following day.
On May 6, 1994, Donna dropped her seven-month old son
off at her sister-in-law's house on her way to work. As
she left the house, Bianchi, who had been following her
for several days, confronted her. She began screaming
and running away from him. As he pursued her, she
tripped and fell. He picked her up by the hair, prodded
her in the back with a gun, and herded her toward the
street where he shot her twice in the back. After she
fell to the ground, paralyzed by one of the first two
bullets, Bianchi placed the muzzle of the gun on her
chest, and fired three more times, pausing between
shots.
A jury convicted Bianchi of murder in the first degree
on theories of deliberate premeditation and extreme
atrocity or cruelty. He was also convicted of violating
a protective order issued pursuant to G. L. c. 209A, §
7.
Bianchi filed a timely notice of appeal which was stayed
to allow him to file a motion for a new trial, later
denied by the trial judge. Bianchi appealed from the
denial of his motion, which has been joined with his
direct appeal in this court.
Bianchi's defense was, in essence, that he lacked the
requisite malice to commit murder due to a mood disorder
caused by steroid abuse. On appeal he claims that the
judge erred by: (1) permitting testimony about the April
17 assault; (2) permitting several witnesses to testify
to statements made by the victim about her fear of
Bianchi in the weeks following April 17 and prior to her
murder on May 6; (3) excluding a purported suicide note
written by Bianchi after the murder; and (4) failing to
instruct the jury on voluntary manslaughter. Bianchi
also asks that we exercise our plenary power under G. L.
c. 278, § 33E, to reduce the verdict to manslaughter or
murder in the second degree.
All of the errors claimed by Bianchi were either
preserved or resurrected by the trial judge in her
decision on the motion for a new trial. Accordingly, we
review them to determine whether any error was
prejudicial. See Commonwealth v. Vinnie, 428 Mass. 161,
163, cert. denied, 525 U.S. 1007 (1998). For the reasons
set forth below, we affirm the convictions and decline
to exercise our power under G. L. c. 278, § 33E.
1. Facts. We summarize the facts in the light most
favorable to the Commonwealth, reserving certain details
for discussion in conjunction with the issues raised.
See Commonwealth v. Fowler, 431 Mass. 30, 31 (2000).
The victim began dating Bianchi when she was fifteen
years old and he was twenty-two years old. They were
married in 1992. She gave birth to a son in September,
1993. They struggled financially, and in February, 1994,
moved to the victim's father's home in Medford. Sometime
around April 10, 1994, the victim asked Bianchi to move
out of the house. He moved out for a day or two, but
returned even though the victim insisted that he sleep
in a separate room.
At approximately 2 A.M. on April 17, 1994, Officer
Caesar Delatorre of the Medford police department
received a radio call instructing him to respond to the
victim's address. When he arrived, he found the victim
lying on the hallway floor. She was hysterical - shaking
and crying -- and had bruises on her neck and torso. She
also had lacerations on the back of her head that were
bleeding profusely. Delatorre observed blood on the
floor and walls, and he smelled mace in the air.
The victim told Delatorre that Bianchi hit and choked
her with a night stick and had sprayed mace at her, and
that in order to stop the beating she told Bianchi that
she loved him and would never leave him. Delatorre
recovered the night stick and the mace canister from one
of the rooms on the second floor. Bianchi was arrested
and the victim was transported to a hospital where
photographs of her injuries were taken. On April 19, she
obtained an abuse prevention order from the Somerville
District Court pursuant to G. L. c. 209A.(1)
That same day, a victim-witness advocate (advocate) was
referred to the victim by the District Court. During
their initial telephone conversation, the victim told
the advocate that she was terrified of Bianchi and that
there was no doubt in her mind that he would kill her.
On April 22, 1994, the advocate met with the victim and
saw the bruises on her neck and torso. The victim
described Bianchi as jealous, suspicious, and
controlling. She reiterated her fear that Bianchi would
kill her.
On April 26, Officer Matthew Insogna received a call to
go to the victim's home. Insogna approached the front of
the house and he saw the victim standing in the doorway
with her son in her arms and tears in her eyes. She told
Insogna that she was afraid Bianchi was near her home
and was going to kill her, and that she also feared for
her son's life. She asked Insogna to walk her to her
automobile, and as they began down the walkway, she
stayed so close to him that she was touching the back of
his body and he could feel her shaking. Once she was
inside her vehicle, she asked Insogna to follow her to
the main street, which he did.
On April 27, Officers Paul Covino and John Zifaris were
instructed to go to the victim's home so that Bianchi
could collect his belongings. The victim described the
April 17 incident to Covino and said that she was afraid
that Bianchi would assault her again. When Bianchi
arrived at the house, the officers explained to him that
the protective order was in place and he responded that
he understood.
On April 28, the victim met with the advocate for a
second time and repeated her fear that Bianchi was going
to kill her. She also told the advocate that when
Bianchi came to her house to collect his belongings, he
had taken a pair of her underwear, as well as a used
condom from the trash.(2) The victim interpreted this
conduct as a threat.
On May 5, the victim spoke with the advocate for the
last time. She told the advocate that she and Bianchi
had gone to court and Bianchi had been awarded
visitation rights with their son. The victim again
stated that she feared Bianchi was going to kill her.
On the morning of May 6, the victim brought her son to
her sister-in-law's house. They talked for ten or
fifteen minutes and discussed the fact that Bianchi was
scheduled to visit the baby around 11 A.M. The victim
told her sister-in-law that she was afraid that Bianchi
would kidnap her son and try to kill her. She then left
the house to go to work.
As the sister-in-law was taking the baby's sweater and
hat off, she heard screaming outside, as did her next
door neighbor. When the neighbor went to the window, she
saw two adults facing each other in the backyard. She
initially turned away from the window, but when the tone
of the screaming changed, she ran back and saw the
victim trying to run away but tripping on tree stumps
and old chicken wire that were along the side of the
house. The victim appeared desperate and was screaming,
"[N]o, no, please, no."
She also saw Bianchi following behind the victim,
holding her by the hair and prodding her in the back
with a gun. He appeared to be calm, composed, and
determined. The neighbor started to scream as Bianchi
herded the victim back toward the street, and she then
telephoned 911. As she dialed, she heard a shot. She
looked back out the window and saw the victim lying on
her back on the sidewalk. The defendant knelt over her
and looked directly in her face. The sister-in-law came
out of her house and yelled to Bianchi to leave the
victim alone. Bianchi looked over, made eye contact with
the sister-in-law, and then turned back and shot the
victim three more times at point blank range,(3) taking
his time in between shots. After the shooting, Bianchi
drove away in a white Budget rental van.
At 4 P.M. that same day, a police officer in Elizabeth,
New Jersey, and his partner received a radio call and
responded to a gasoline station where they saw Bianchi's
rental van. Bianchi was vomiting into a barrel. He told
the officers that he had killed his wife. He also told
the officers that he was sick and needed help.(4) An
ambulance took Bianchi to a hospital. The officers
recovered Bianchi's gun concealed in the bathroom of the
gasoline station.
At trial, Bianchi asserted that his conduct in April and
May, 1994, was the result of his use of steroids. He
testified that he started using steroids in 1988 to help
improve as a competitive power weight lifter. The
steroids increased his strength and aggressiveness, but
made him "excitable," increased his appetite, and
disturbed his sleep. In July, 1988, he received medical
treatment at Lemuel Shattuck Hospital after complaining
of side effects of steroid use, but following his
release from the hospital he continued using steroids.
In late 1992, Bianchi stopped using steroids while he
and the victim were trying to conceive a child, but he
resumed using them in January, 1993, and consistently
increased the doses and types of steroids that he took,
which caused him to become "a little wild eyed," develop
a "huffy attitude," feel depressed, and experience a
change in his eating and sleeping habits. He testified
that by the end of 1993, he weighed over 300 pounds(5)
and was capable of "bench pressing" 465 pounds; that in
early 1994, he increased his use of steroids to the
point where he had tripled his dosage; and that this
increase caused him to become increasingly paranoid,
depressed, and suicidal. His mood became "like a roller
coaster."
Bianchi offered expert testimony about the effects of
steroid use on his state of mind, and, in particular,
that in April and May, 1994, he suffered from a
"substance-induced mood disorder."(FN6) The expert based
his opinion on Bianchi's self-reports of his steroid
use, including a chart Bianchi had created from memory
almost one year after the killing, which chart purported
to document his steroid use during 1994, and on nine
hours of interviews, during which Bianchi described his
steroid use and his moods. The expert did not conduct a
physical examination of Bianchi or interview anyone who
knew him at the time of the killing. The expert admitted
that one of the dangers of relying on self-reports of
steroid use is that such reports are open to selective
and biased recall.
2. Evidence of the April 17 assault. Bianchi argues that
the judge erred in allowing witnesses to testify about
the April 17 assault because the testimony was unduly
prejudicial and largely hearsay. The jury heard two
types of testimony about the April 17 incident:
testimony recounting what the victim said about the
assault, and testimony from witnesses describing their
observations of the victim's demeanor and injuries after
the assault. Evidence of the assault was relevant and
both types of evidence were properly admitted.(FN7)
The April 17 assault was relevant to show the hostile
nature of the relationship between Bianchi and the
victim. See Commonwealth v. Seabrooks, 425 Mass. 507,
512 n.6 (1997), S.C., 433 Mass. 439 (2001); Commonwealth
v. Andrade, 422 Mass. 236, 239-240 (1996); Commonwealth
v. Gil, 393 Mass. 204, 215-217 (1984).(FN8) It was also
relevant evidence of Bianchi's state of mind and motive
to kill the victim. Commonwealth v. Todd, 394 Mass. 791,
798 (1985), and cases cited.(FN9)
The victim's statements about the April 17 incident were
admissible under the spontaneous exclamation exception
to the hearsay rule. Immediately after the April 17
incident, while she was shaking, crying, and bleeding,
the victim told Officer Delatorre that Bianchi had hit
her and choked her with the night stick and sprayed mace
at her. When the victim's sister-in-law arrived at the
emergency room shortly thereafter, the victim said, "I
can't believe [Bianchi] did this to me. He's never done
anything like this to me before." She also told her
sister-in-law that she believed that Bianchi was trying
to kill her. These statements were made "while the
victim remained in pain and emotional distress."
Commonwealth v. Tevlin, 433 Mass. 305, 319 (2001). There
was no evidence that the victim had been influenced by
factors other than the trauma of the event. Accordingly,
the statements that the victim made immediately after
the April 17 incident were properly admitted in evidence
as spontaneous exclamations.
The testimony of witnesses concerning the victim's
demeanor and injuries after the April 17 assault were
also admissible. Officer Delatorre, the first officer to
respond to the victim's home, noticed the injuries to
the victim's head, neck, and torso. At the emergency
room immediately after the April 17 incident, the
victim's sister-in-law saw that the victim was "bruised
from her head to her feet," and she saw blood on the
pillow and bruises and cuts on the victim's neck,
shoulder blades, chest, and arms.(FN10) This testimony
was not hearsay and was properly admitted. P.J. Liacos,
Massachusetts Evidence § 8.1, at 463 n.2 (7th ed. 1999).
The determination by the judge that evidence regarding
the April 17 assault was more probative than prejudicial
is a determination left to her sound discretion.
Commonwealth v. Cyr, 425 Mass. 89, 95-96 (1997), S.C.,
433 Mass. 617 (2001). On the record before us, we do not
find that she abused that discretion in admitting the
evidence, and therefore find no error.
3. Evidence of the victim's fear. Bianchi next argues
that the judge erred in allowing witnesses to testify
about the victim's fear after the April 17
assault.(FN11) Bianchi contends that this evidence
strongly undermined his theory of defense that the
killing resulted from a sudden loss of control brought
on by his steroid use. The Commonwealth concedes that
the victim's statements that she was afraid Bianchi was
going to kill her should not have been admitted. "The
question, then, becomes whether the error caused
prejudice to the defendant, requiring reversal of the
verdict." Commonwealth v. Andrade, supra at 239. The
erroneous admission of hearsay testimony is not
prejudicial where it is merely cumulative of properly
admitted evidence, does not undermine the defense, and
where the evidence of the defendant's guilt is
overwhelming. Commonwealth v. Johnson, 429 Mass. 745,
749-750 (1999).
We have reviewed the entire record and conclude that the
evidence of the victim's fear was merely cumulative of
properly admitted evidence in this case from which the
jury would inevitably infer that the victim was afraid
of Bianchi. See Commonwealth v. Andrade, supra at 240.
See also Commonwealth v. Jenner, 426 Mass. 163, 165
(1997). The jury properly heard descriptions and saw
photographs of the victim's injuries from the April 17
incident. They learned that the victim obtained a
protective order against Bianchi. They also properly
heard Officer Insogna testify that the victim was
shaking when he walked her to her car on April 26, and
that on April 27, while Officer Covino waited in the
victim's home for Bianchi to gather his belongings, he
noticed the victim's frightened demeanor.
The testimony also did not undermine Bianchi's defense
that increased steroid use had had an impact on his mood
and impulse control, negating malice. Bianchi and his
expert testified that the deleterious effects of steroid
abuse changed Bianchi's mood and behavior during the
period in which both assaults on the victim occurred.
That the victim began to fear for her life after the
brutal assault on April 17 is not inconsistent with
Bianchi's assertion that he was losing control and his
mood was like a "roller coaster" during this same
period. Indeed, evidence that the victim told both her
sister-in-law and the advocate that before April 17
Bianchi had never been physically violent toward her
tended to support the theory of the defense, and was so
characterized by defense counsel in his closing
argument.
This case is distinguishable from Commonwealth v. Cyr,
supra, where we found that hearsay evidence admitted to
show that the victim feared her assailant prior to the
murder both undermined the defense of provocation and
was prejudicial to the defendant. In that case, the
improper evidence was not cumulative of properly
admitted evidence. Id. at 94. In this case, unlike in
Cyr, the evidence negating provocation and loss of
control included the testimony of eyewitnesses to the
murder that Bianchi was careful, calm, and composed
during the shooting. Finally, the evidence of the
victim's fear was not inconsistent with the defense, as
we held in Cyr, because the victim's fear did not
predate the period during which, Bianchi asserts, he was
not in control of himself as the result of steroid use.
The evidence that Bianchi planned the murder was
overwhelming. There was also substantial evidence that
undermined the defense, unrelated to any testimony about
the victim's fear. The evidence of planning began with
Bianchi's trip to Maine on May 1 to purchase a gun that
he would not be required to register in Massachusetts.
There was evidence that Bianchi telephoned three rental
companies to obtain information about the availability
and price of different vans, and that when he rented the
van on May 3, he scheduled its return on May 7, the day
after the murder. The contents of the van on the day of
the murder also provided evidence of planning. When the
police searched the van, they found notes in Bianchi's
handwriting about the victim's daily habits, a
flashlight, wire, duct tape, a knife, "nunchucks," and
binoculars. Although Bianchi testified that he rented
the van to take photographs of the victim with another
man to use in the divorce and custody proceedings, no
camera was found in the van.
In contrast to the strength of the evidence of
premeditation, Bianchi's defense of steroid use was
substantially undermined by his own testimony and that
of his expert. Bianchi provided inconsistent
descriptions of his steroid use. After his arrest, he
told a Massachusetts State trooper that he had not used
steroids for six months before the murder, but at a
later date, he told a doctor that he had not used
steroids for six weeks before the murder. Almost one
year after that, he told his expert that he was
"tapering" down his steroid use in May, 1994. Bianchi's
expert testified that these inconsistencies raised
questions regarding the credibility of his self-reports.
Moreover, Bianchi testified that he was spending
approximately $1,000 a week on steroids in 1994, even
though he had lost his job in December, 1993, and he and
the victim were struggling financially.
Bianchi's expert testimony did not bolster his defense.
His expert testified that there are certain physical
characteristics that are indicative of steroid
use,(FN12) but that he did not conduct a physical
examination of Bianchi and did not know whether such
characteristics were present. He also testified that the
New Jersey hospital records indicated that Bianchi's
blood pressure was normal on May 6, 1994, and that a
February, 1993, testicular examination was also normal,
both of which would be inconsistent with steroid abuse.
Although the expert testified that Bianchi suffered from
a "substance-induced mood disorder" in April and May,
1994, which may have caused him to become "hypomanic,"
he could not conclusively link Bianchi's steroid use
with a loss of control or an inability to reason,
understand, or plan, explaining only that: "[W]hen
people are in a hypomanic state, they are often much
more irritable, much more impulsive. . . . Impulsivity
means you act without much contemplation. They tend to
be more impulsive, and they tend to be maybe more
aggressive."
In the circumstances of this case, the error in
admitting hearsay evidence of the victim's fear was not
prejudicial.
4. Excluded suicide note. When the police officers
searched Bianchi's van, they found a pad of blue-lined,
letter-sized paper. The judge allowed the Commonwealth
to introduce the first two pages from the pad, which
contained Bianchi's handwritten notes about his search
for a rental van and information about the victim's
health insurance, credit cards, payroll checks, and
schedule. Bianchi wrote these two pages around April 28
or April 29.(FN13) Also written on the blue-lined pad
were a second set of pages containing a purported
suicide note that Bianchi apparently wrote after the May
6 murder.(FN14) The judge denied on hearsay grounds
Bianchi's requests to admit these latter pages. There
was no error.
Bianchi contends that these two pages were admissible
because they were relevant to his state of mind at the
time of the killing.(FN15) However, a suicide note
purporting to explain past conduct is not admissible
under the state of mind exception to the hearsay rule.
See Commonwealth v. Pope, 397 Mass. 275, 281 (1986). The
pages were not admissible under the penal interest
exception to the hearsay rule, because Bianchi was
available to testify. See Commonwealth v. Charles, 428
Mass. 672, 677-678 (1999).(FN16) Finally, the pages were
not admissible under the doctrine of verbal
completeness,(FN17) because they are not the same
statement or writing as the two pages admitted in
evidence. The only relationship between the pages was
that the paper was from the same pad. The second set of
pages does not in any way "clarify the context" of the
first set of pages. Accordingly, they are not admissible
under the doctrine of verbal completeness. Commonwealth
v. Carmona, 428 Mass. 268, 272 (1998), quoting
Commonwealth v. Robles, 423 Mass. 62, 69 (1996).
5. Manslaughter instruction. Bianchi contends that the
judge erred in refusing to instruct the jury on
voluntary manslaughter, given that he testified that he
and the victim were involved in a heated argument on May
6 during which the victim punched Bianchi in the face
and swore at him, thus raising the issues of adequate
and reasonable provocation and sudden combat.
"In deciding whether the judge should have charged on
manslaughter, we assume the version of the facts most
favorable to the defendant." Commonwealth v. Rosado, 434
Mass. 197, 204, cert. denied, S. Ct. (2001), quoting
Commonwealth v. Maskell, 403 Mass. 111, 116 (1988). Even
if there is evidence of hostile verbal or physical
interaction between the parties preceding the killing, a
manslaughter instruction is not required unless the
evidence of provocation is 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. Pierce, 419 Mass. 28,
31 (1994), quoting Commonwealth v. Halbert, 410 Mass.
534, 538 (1991). "A jury must be able to infer that a
reasonable person would have become sufficiently
provoked, and that the defendant was in fact provoked"
in order to warrant a manslaughter instruction.
Commonwealth v. Pierce, supra. In other words, "[t]here
must be evidence that would warrant a reasonable doubt
that something happened which would have been likely to
produce in an ordinary person such a state of passion,
anger, fear, fright, or nervous excitement as would
eclipse his capacity for reflection or restraint, and
that what happened actually did produce such a state of
mind in the defendant." Commonwealth v. Walden, 380
Mass. 724, 728 (1980).
The evidence here was inadequate as a matter of law to
constitute provocation. Even though Bianchi testified
that immediately before shooting the victim she told him
that there had always been someone else in her life and
called him a "fucking prick," insults and quarreling
alone do not provide reasonable provocation. See
Commonwealth v. Masello, 428 Mass. 446, 449 (1998), and
cases cited. Moreover, his testimony that he had
suspected the victim was seeing someone else well before
he confronted her on May 6,(FN18) and that while her
words "upset" him, he "wasn't mad or anything," belies
any argument that he acted in the heat of passion, or
that the shooting was the product of this alleged
provocation. Bianchi's further testimony that the victim
punched him in the face during their "argument" adds
little to his claim of provocation, where he
intentionally precipitated the confrontation in
violation of the protective order, was a weightlifter
who outweighed the victim by more than 170 pounds, and
was armed with a fully loaded weapon. Commonwealth v.
Rembiszewski, 363 Mass. 311, 321 (1973), S.C., 391 Mass.
123 (1984) (victim's scratching defendant's face
insufficient to warrant manslaughter instruction).(FN19)
On this state of the evidence, a reasonable jury could
not have found that "a reasonable person would have
become sufficiently provoked, and that the defendant was
in fact provoked" by the victim's conduct. Commonwealth
v. Pierce, supra at 31.
6. Section 33E. Bianchi argues that pursuant to G. L. c.
278, § 33E, we should reduce the murder verdict because
there is reason to doubt that Bianchi acted with
deliberate premeditation or malice. After reviewing the
entire record of the case, we decline to do so.
Judgments affirmed.
Order denying motion for a new trial affirmed.
Notes:
(FN1) The order directed Bianchi not to abuse the
victim, not to contact her, to leave and stay away from
her residence, to stay away from her workplace, and to
surrender custody of their son.
(FN2) These items were found in Bianchi's van after his
arrest for the murder.
(FN3) The medical examiner testified that the victim was
shot five times, the first two in the back, one of which
would have paralyzed her.
(FN4) Bianchi told an emergency medical technician that
he had tried to commit suicide by taking 150 aspirin.
(FN5) The victim weighed approximately 130 pounds in
1994.
(FN6) On cross-examination, the expert testified only
that it was "probable" that Bianchi's reported steroid
use "may have affected his mood," but could not render
an opinion that the steroid use definitely affected his
mood.
(FN7) The judge gave the jury limiting instructions
relating to the April 17 incident several times during
trial: "[Y]ou may consider it solely on the limited
issue as you may find it relates to motive and/or state
of mind of the defendant"; "you may consider it on
limited issues as you find they may reflect on the
defendant's motive, his state of mind on the issue of
malice and deliberate premeditation if you find it to be
relevant."
(FN8) See also Commonwealth v. Magraw, 426 Mass. 589,
599 (1998) (evidence that victim found defendant's rifle
on her bed properly admitted "to show discord between
the defendant and the victim in the face of the
defendant's claim that he and the victim 'were so
happy'"); Commonwealth v. Haley, 363 Mass. 513, 524
(1973), S.C., 413 Mass. 770 (1992) (evidence not offered
to show bad character of defendant but to show intensity
of discord between him and his wife).
(FN9) See also Commonwealth v. Squailia, 429 Mass. 101,
105 (1999) (prior bad act evidence properly admitted,
within judge's discretion, to show defendant's intent or
state of mind); Commonwealth v. Arce, 426 Mass. 601, 602
(1998) (evidence of hostile relationship admissible to
show motive to kill).
(FN10) The jury also saw photographs of the victim's
injuries.
(FN11) The victim's brother testified: "She knew that
[Bianchi] was going to kill her if he found her" and
that "[s]he was scared to death." The sister-in-law
described several conversations in which the victim said
that she feared that Bianchi was going to kill her and
kidnap the baby. Officer Insogna described a
conversation with the victim on April 26 in which she
said that she feared that Bianchi would kill her and the
baby. Officer Covini described a conversation with the
victim on April 27 in which she described the April 17
incident and said that she feared it would happen again.
The advocate testified about conversations she had with
the victim on April 19, April 22, and May 5, during
which the victim said that she was terrified of Bianchi,
that he had threatened her, and that she had no doubt
that he would kill her.
(FN12) These characteristics include an increase in lean
muscle mass, gynecomastia (occurrence of female-like
breast tissue in males), male pattern baldness, acne,
stretch marks around the muscles, high blood pressure,
and testicular atrophy.
(FN13) Bianchi does not challenge the admission of these
two pages.
(FN14) Although the record does not indicate precisely
when Bianchi wrote the second set of blue pages, the
context indicates they were written after the victim was
already dead:"I've lost all hope and took it out on her,
the one I love most. I can't bear being away from her[.]
. . . I can't live with myself any longer[.] What have I
done[.] God have mercy on me. Donna please forgive me. .
. . My only wish is that we be buried together for the
sake of my son. Please tell him we went in an accident.
If he finds out he [sic] be like me."
(FN15) In support of this argument, Bianchi cites
Commonwealth v. Fernandes, 427 Mass. 90, 94 (1998),
where we examined a declarant's threat to "get" or kill
someone, and found it to be admissible "to show that the
declarant had a particular state of mind and that he
carried out his intent." Id. at 95.
(FN16) "A statement is admissible under the penal
interest exception if (1) the declarant's testimony is
unavailable; (2) the statement so far tends to subject
the declarant to criminal liability that a reasonable
person in his position would not have made the statement
unless he believed it to be true; and (3) the statement,
if offered to exculpate the accused, is corroborated by
circumstances clearly indicating its trustworthiness."
Commonwealth v. Charles, 428 Mass. 672, 677 (1999).
(FN17) See Commonwealth v. Carmona, 428 Mass. 268,
271-272 (1998), quoting Commonwealth v. Robles, 423
Mass. 62, 69 (1996) ("When a party introduces a portion
of a statement or writing in evidence the doctrine of
verbal completeness allows admission of other relevant
portions of the same statement or writing which serve to
'clarify the context' of the admitted portion . . . .
The rule prevents a party from presenting a fragmented
and misleading version of events to the finder of
fact.")
(FN18) Among other things, when he went to the victim's
home on April 27 to collect his belongings, Bianchi
found a used condom in the victim's trash can. He took
the condom, along with a pair of the victim's soiled
underpants, as proof that the victim had been unfaithful
to him. In addition, Bianchi testified that he had been
secretly following the victim for several days in his
rental van to get a photograph of her and "this
gentlemen" for use in divorce and custody proceedings.
(FN19) See Commonwealth v. Parker, 402 Mass. 333, 344
(1988), S.C., 412 Mass. 353 (1992), and 420 Mass. 242
(1995) (although defendant testified that victim struck
him twice, no reasonable jury could have accepted
suggestion that he was provoked into brutal killing).
See also Commonwealth v. Curtis, 417 Mass. 619, 629
(1994) (attempt by victim to strike defendant with
bottle of liquor inadequate provocation); Commonwealth
v. Garabedian, 399 Mass. 304, 313-314 (1987) (scratches
to face of male attacker by female victim inadequate);
Commonwealth v. Brown, 387 Mass. 220, 227 (1982)
(evidence that victim choked defendant with shirt
insufficient).