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State v. Lastarza

Supreme Court of Rhode Island

March 29, 2019

Daniel Lastarza.


          Providence County Superior Court, Associate Justice Kristin E. Rodgers

          For State: Virginia M. McGinn Department of the Attorney General

          For Defendant: Lara E. Montecalvo Office of the Public Defender

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.



         The defendant, Daniel Lastarza (defendant), is before the Supreme Court on appeal from a judgment of conviction following a jury finding of guilty of second-degree murder, in violation of G.L. 1956 § 11-23-1. The trial justice sentenced defendant to fifty years at the Adult Correctional Institutions, with forty years to serve and ten years suspended, with probation for the entirety of his sentence. On appeal, the defendant advances two arguments. First, he contends that the trial justice erred when she failed to instruct the jury on the lesser-included offense of voluntary manslaughter. Next, the defendant assigns error to the trial justice's refusal to grant a mistrial based on alleged improper comments by the state's attorney during closing argument. For the reasons set forth in this opinion, we affirm the judgment of conviction.

         Facts and Travel

         On July 23, 2014, defendant and Christopher Tucker (Tucker), a neighborhood acquaintance of about two months, devised a plan whereby they would perpetrate a scam upon a scrap-metal salvage company known as "I Buy Junk Cars, LLC" (the company) by selling a broken down 2001 Ford Expedition-a vehicle that neither man owned-to the company. This scheme was neither well-planned nor carefully executed, and had a catastrophic conclusion. It began when defendant arrived by bicycle at 149 Ridge Street, a multifamily building located in Providence, where Tucker resided. After he gave the Ford Expedition a cursory inspection in the backyard, defendant called the company and spoke with the owner, Jonathan Stack (Stack). The defendant described the make, model, and characteristics of the vehicle to Stack, and the two agreed that the company would purchase the Expedition and tow it away for $400. One of Stack's drivers was dispatched to retrieve the vehicle.

         Approximately ten minutes later, Jerry Nassi, Jr. (Nassi), a tow-truck driver and employee of the company, received a text message from Stack with a phone number to call and schedule a time to buy and tow the vehicle. When Nassi contacted defendant, a meeting was arranged at the Ridge Street location to complete the transaction. However, Nassi's arrival was postponed by defendant when the true owner of the Ford Expedition, John Rocha (Rocha), a maintenance worker for 149 Ridge Street, showed up to work at the property.

         At approximately 3 p.m., when the coast was clear, defendant notified Nassi that he could come and tow the vehicle. The defendant had falsely identified himself as "Peter" when he spoke to both Stack and Nassi because, according to his trial testimony, he was "scamming [Stack] out of a junk car"; he also told Nassi when he arrived that he owned the building and that the "owner" of the vehicle lived on the third floor. The defendant explained to Nassi that he was coordinating the sale because the "owner" was behind on rent. Nassi proceeded to the third floor of the building, where he met Kristen Litzenberger (Litzenberger), Tucker's wife, and the putative owner of the vehicle. Together, Nassi and Litzenberger filled out the bill of sale for the vehicle, and Nassi paid her $400 in cash. Nassi then went back downstairs, intending to tow the vehicle. It did not go well.

         As Nassi backed his tow truck into the driveway, an irate Rocha suddenly reappeared and informed Nassi that the vehicle belonged to him, not Litzenberger, and that he was going to call the police. As Rocha was calling the police, however, Tucker came out of the building and sought to turn the tables by accusing Nassi of trying to steal the vehicle and saying that Nassi "set his girl up" and had not given them the money. Nassi thereupon produced the signed bill of sale, and Tucker attempted to grab it out of his hands. Tucker then took a swing at Nassi, just grazing him; and, failing that, Tucker retreated inside the building. Unfortunately, the events of this failed caper spiraled out of control.

         While Nassi and Rocha waited for the police, Nassi called Stack and explained the situation. When Stack arrived on scene, Tucker and defendant were nowhere in sight. This was the first in a series of disappearances and reappearances by this felonious duo. Approximately two hours later, the police arrived; took statements from Nassi, Stack, and Rocha; and arrested Litzenberger. As Nassi and Stack left 149 Ridge Street together at approximately 5:30 p.m., Stack spotted Tucker, who he apparently recognized from the description that Nassi had given to the police, standing on Atwells Avenue; Nassi pulled the truck over, just past The $3 Bar, a drinking establishment located on Atwells Avenue (the bar). Stack jumped out of the truck and ran to confront Tucker. The confrontation moved inside the bar, with Tucker and Stack arguing; Stack threatened to call the police and have Tucker arrested. As they continued to argue, Nassi appeared and the men moved deeper into the bar; eventually, the trio left through the back door. In the rear parking lot of the bar, the dispute became violent.

         Stack and Tucker began pushing and shoving each other when, suddenly, Tucker grabbed Stack in a headlock and flipped him over, onto the ground. Tucker began to choke Stack by pressing his forearm across Stack's throat. Up until this point, Nassi was a bystander until he heard Stack say, "he's biting me, he's choking [me], get him the F off of me." When Nassi's efforts to ...

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