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Beyond the shooting itself: the Robert Tessitore incident.

Situation: A justifiable homicide goes downhill when a panicked citizen flees the scene and disposes of the pistol.

Lesson: Don't leave the scene, never dispose of evidence, make sure you have a permit, and it's not enough to just get training ... you have to follow the training.

It's a rainy night in Fall River, Massachusetts in the summer of 2003, and Bob Tessitore is feeling like crap.

He's 56 years old, and a few weeks ago he underwent major surgery for prostate cancer. He doesn't know yet if they got it all. The effects of the prostatectomy and related surgery have left him physically and psychologically devastated. It hurts him to walk. Still incontinent as a result, he is wearing an adult diaper, and it is wet and he is ashamed.

He is also very sad. He is at the home of an elderly man he knows well, the father of one of his best friends, and the old man is dying, fading fast. It turns out he will not live through the night. This is the fourth straight evening that Bob has driven up from his home in Rhode Island to be with the grieving family at the bedside deathwatch, bringing food and bringing comfort with his wife Kitty and, tonight, two more friends. It's about 9:45 p.m., and rain is falling in buckets. They've had to park Kitty's minivan up the hill on a narrow one-way street, and rather than everyone getting soaked, Bob has volunteered to get the van and bring it around to the door.

As he approaches the van, he hears a chilling, incoherent scream of rage. Then he sees the high beams of a small car coming toward him, coming the wrong way down the one-way street.

The Face Of The Enemy

The Mitsubishi Eclipse sports car rolls down the one-way street in the wrong direction. It contains two violent young men who have been going in other wrong directions for a while now, one of whose trajectories is about to come to a sudden and final stop.

Wiry Kyle Dubois and hulking Jason Bourque have been chugging beer and Jack Daniels bourbon all night. At a pool hall earlier, Jason had seen a former girlfriend with another guy and lost it. Kyle has been teasing him since--"pushing my buttons," as Jason will put it later--and a miasma of fury permeates the little car. Bourque will admit later that he and Dubois were "looking for a fight" to "let off some steam."

And now they see an older man, walking slowly as if crippled, through the rain toward a van parked at their right. Dubois guns the sports car, and brings it to a sudden halt parallel to the Tessitore van and just behind it. The doors of the Mitsubishi spring open. It's on.

The Shooting

The Mitsubishi jerks to a stop next to Tessitore, who is still on the sidewalk, too far to make it to the door and unlock it because although the key ring is in his hand, he has not separated out the door key, and in the dark, he can't find the remote control door release button. Tessitore hears two male voices.

One snarls, "Let's get him!" The other growls, "He's dead." He sees a large man jump from the driver's seat and move quickly to the rear of the sports car, disappearing from his view behind the van, and realizes that one is trying to flank him. A smaller man in the passenger seat swivels, planting his feet in the street and, still sitting in the bucket seat, reaches cross draw and comes out with a shiny metal object. It looks to Bob like a huge knife, perhaps 14" long.

Tessitore thinks, "I'm going to die now." And then he realizes, "Wait--I've got my gun!"

The armed citizen's hand flashes under his oversize shirt and quick-draws a Glock 23 pistol from a Galco belt holster. He takes a two-hand Isosceles stance and screams, "Get back in the car!"

But the man with the knife stands and moves directly to the sidewalk, leering at him, the weapon waist high. They are 10 or 12 feet apart. Bob's Glock is fitted with a LaserMax, and its pulsing red dot dances wildly across the smaller man's torso because Bob's hands are shaking so badly.

The man lunges at him.

Bob fires one shot.

A 135-grain Federal Personal Defense .40 S&W hollowpoint strikes Kyle Dubois just to the side of the xiphoid process, the bottom tip of the sternum. It punches through the spleen and the left kidney, going downward through the attacker's coiled, crouching body, and comes to a stop, mushroomed, under the skin of his lower left back. Dubois jerks, takes a step and a half backwards, and falls to the ground.

Fearing that the flanking accomplice is already behind him, Tessitore spins to his left. But Jason Bourque isn't too drunk to save himself when he sees his intended victim turn victor. He has already turned and begun to sprint back to the Mitsubishi.

Tessitore realizes he has shot a man, perhaps killed him, and the only witness he knows about is trying to get away. He shuffles as fast as his pain will allow past the downed form of Dubois and toward the front of the sports car, aiming toward Bourque, by now behind the wheel, and shouting, "Get out of the car!"

Then things become Kafka-esque. Out of the corner of his eye, Tessitore sees the fallen man rise and stagger to the car, and now the driver screams at his partner Tessitore's own words: "Get out of the car!" Instead, Dubois dives into the Mitsubishi and Bourque accelerates, heading the wrong way down the oneway street until he disappears, leaving Bob Tessitore standing alone in the rain with a gun in his hand.

Tessitore shouts, "Call 9-1-1!"


Others were already calling 9-1-l. When Tessitore's wife and friends came out into the street after the shot, he hustled them into the van, and soon they too were gone from the scene. As they proceeded back to Rhode Island, Bob Tessitore numbly unloaded his pistol, field stripped it, and threw the pieces out the window one by one.

Meanwhile, Jason Bourque drove aimlessly for a while, finally leaving the Mitsubishi in the street near the local police station, abandoning his dying friend in the front seat. Fall River officers shortly captured Bourque in an impound lot near the PD, after a short but violent struggle. Despite heroic emergency surgery in which spleen and left kidney were removed, Kyle Dubois did not survive. No knife was ever found. It remains unclear whether he or Bourque disposed of it along the escape route, or whether Dubois' weapon was actually the blood-soaked telescoping baton discovered in the front seat of the Mitsubishi.

Police responded quickly to the shooting scene. Detective Anthony Elumba of Fall River PD and Trooper Eric Swenson of the Massachusetts State Police led the investigation. By the early morning hours of the first day, these highly competent and experienced investigators knew who had fired the fatal shot. Bob Tessitore cooperated fully with the police from then on.

He was indicted for manslaughter, for illegal carry of a concealed handgun, and--perhaps for good measure--for discharging a firearm within 500 feet of a dwelling.

The Trial

Two years later, Bob had been determined cancer free and all his normal bodily functions had returned. He should have been enjoying life with his family. Instead, he was on trial, with the rest of his life hanging in the balance.

The case of Commonwealth of Massachusetts v. Robert Tessitore went to trial beneath a high, chandeliered ceiling in the historic 174-year-old Bristol County courthouse in early July of 2005. Veteran prosecutor John Mahoney led for the Commonwealth, and attorney Stephen Butts defended Tessitore. A former prosecutor himself, Butts trusted cops and knew they would give honest answers if the right questions were asked. They were, and most of the state's witnesses promptly turned into defense witnesses under Butts' expert cross-examination.

The eyewitnesses had all been drawn to their windows by Bourque's maniacal scream, or by the shouting that sounded like a road-rage incident. In the dark and the rain, none had seen a weapon in Dubois' hand ... but, Steve got them to admit they hadn't seen the obvious drawn Glock in Tessitore's hand, either, which meant Bourque could indeed have had a substantial weapon out, unnoticed by all but his victim.

Dr. Jennifer Schwartz, the medical examiner who autopsied Dubois, testified that his blood alcohol content was approximately 0.12 percent at time of death, half again legally drunk. She readily confirmed on cross that the wound track was consistent with a crouching knife-wielder in an assaultive position being shot by an intended victim who was standing.

Detective Elumba, Trooper Swenson, and other officers testified to Tessitore's cooperation after the shooting, and to the details of the account of the incident he had given them. They matched his subsequent testimony before the Grand Jury. Elumba also told the jury how Bourque was so hostile and potentially violent when questioned that the detective had requested additional cops for security in the interview room.

Fall River Officer Randy Barboza testified that when he caught Bourque inside the impound lot, the man had grabbed a metal pipe and raised it to club him. The officer drew his issue S&W Model 5946, drew down on Bourque in a Weaver stance, and prepared to shoot him center-mass with 9mm Silvertip if he didn't drop the weapon. Bourque had dropped the weapon, but still fought Barboza and other cops until they subdued him and brought him, still combative, to the PD. I watched the jurors' eyes widen as Barboza spoke. They were realizing, "Tessitore was up against men so violent and dangerous that the cops almost had to shoot one of them that night!"

Throughout early proceedings, the prosecution made a big deal about Tessitore's use of hollowpoint ammo and a laser sight. With each of the police witnesses, including Sgt. Doug Weddleton of the MSP Firearms Identification unit, Butts elicited the testimony that all Massachusetts cops carried hollowpoints because they were safer for bystanders and the public, and that there was no "Rambo" thing inherent in the use of a LaserMax. Weddleton agreed that a laser sight would allow an older person with aging eyes to shoot straighter, making him less likely to endanger a bystander with a wild shot.

The prosecution took approximately three and a half days. When the state rested, Butts countered with a defense that lasted no more than two hours. Allowed to do so by recent Massachusetts's case law, Butts submitted to the jury the criminal record of the late Kyle Dubois, which included a conviction for armed robbery at knifepoint. He called Dr. Ronald Ebert, a forensic psychologist who had evaluated the defendant and determined that posttrauma confusion was the reason Tessitore had fled and attempted to dispose of the gun. In a physically and psychologically debilitated state already, the traumatic act of shooting a man and nearly being killed himself had simply been too much for him. "People avoid stimuli that reminds them of trauma," Dr. Ebert explained to the jurors. "Getting rid of the gun is a way to make it not happen, to make it go away."

I was the next defense witness. I explained to the jury how the defendant had learned to evaluate a situation that warranted shooting an attacker when he had taken a Judicious Use of Deadly Force course from me at Lethal Force Institute some 15 months before the shooting, and they were able to see clearly that his actions comported with those standards. I explained why a man with a contact weapon could have killed Tessitore in a second or less from that distance if not stopped, and cleared up some misinformation on Glock disassembly and LaserMax sights that the prosecution had left in the air.

The Verdict

The jury found Robert Tessitore Not Guilty of Manslaughter or any lesser-included offense in the shooting death of Kyle Dubois. He was found Not Guilty of firing in proximity to dwellings, since the action was justified.

However, the jury found him Guilty of carrying a handgun in the state of Massachusetts without a license to do so. Judge Susan Garsh had no choice under the circumstances but to sentence him to the minimum mandatory one-year incarceration the law demands in the Bay State. He was remanded then and there.

If convicted of Manslaughter, he would have faced a sentence of as much as 20 years hard time. The CCW charge, felony first offense, carries a one-year minimum mandatory with a three- to five-year top, the latter usually invoked with special circumstances such as an accompanying Manslaughter conviction. Looking at more than 25 years (it's three months for firing within 500 feet of a dwelling), Butts had gotten his client down to one year behind bars.

Butts had won 96-percent of the future the state was trying to take away from Bob Tessitore for defending his life. A 96-percent is an "A" on almost any grading system. Still, it doesn't feel like a victory when your client leaves the courtroom in handcuffs, bound for a cell.

Which leads us to the lessons of this incident.


Bob had been taught at LFI to memorize the commands, "Don't move! Drop that weapon!" (Or, "Don't touch that weapon!") Had he employed them, each witness coming to the window would have been looking for weapons, and probably would have seen Dubois' as well as Tessitore's. We often don't see what we aren't looking for.

Bob's blind run from the scene set the stage for the prosecution's "flight equals guilt" theory, as did his mind-numbed disassembly and disposal of the Glock parts, only half of which were later recovered. Had he remained at the scene and said a few basic things to responding officers, I have little doubt that the case would have ended with the Grand Jury proceeding.

Bob owned a landscaping and snowplowing business. Many of his contracts were at or near public housing and other high-crime areas. He paid his employees in cash, and on payday was at particular risk of armed robbery. Thus, he was licensed to carry in his native Rhode Island, a permit even more difficult to get there than in neighboring Massachusetts. At LFI, he had been told to get permits for contiguous states if he ever thought he might carry a gun there. Bob would have been eligible for the Massachusetts non-resident permit, but it cost $100 per year and since he rarely crossed the state line, he didn't think he needed it. His wife told me later that the permit application had been on Bob's desk for months before the shooting.

Massachusetts is not reciprocal with any other state. Bob was prima facie guilty of illegal CCW, and our only chance was a doctrine of competing harms defense, which Judge Garsh would not allow because of unusual Bay State case law that she interpreted to limit that defense to someone who had been specifically threatened beforehand. On the three nights of mercy trips prior to the shooting, Bob had deliberately left his carry gun at home, but on the day in question, he got rushed helping another friend, was picked up there, and didn't remember his gun was still on until he had already crossed the state line.

Bob Tessitore saved $100. He lost two years of his life to the ordeal of the legal aftermath before being acquitted of Manslaughter, and another year of his life behind bars for illegal carry. He will emerge as a convicted felon, forbidden to own a firearm. The lesson: get the permits!

Some have said, "If he just hadn't had the gun, he wouldn't have gotten into trouble." I can't buy that. The gun in all probability saved his life. Bob Tessitore himself put it best, in his testimony to the Grand Jury. "They announced what they were going to do," he said. "They announced they were going to kill me. They attempted to kill me, and but for the grace of God and the luck of having my gun with me, they were going to kill me. There's not a doubt in my mind."
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Title Annotation:The Ayoob Files
Author:Ayoob, Massad
Publication:American Handgunner
Date:Jan 1, 2006
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