Commonwealth v. Fredette

• Decision Date: 25 March 2020
• Docket Number: No. 19-P-384,19-P-384
• Citation: 97 Mass.App.Ct. 206,145 N.E.3d 171
• Parties: COMMONWEALTH v. John FREDETTE.
• Court: Appeals Court of Massachusetts

97 Mass.App.Ct. 206

145 N.E.3d 171

COMMONWEALTH

v.John FREDETTE.

No. 19-P-384

Appeals Court of Massachusetts, Worcester..

Argued November 8, 2019.

Decided March 25, 2020.

Joseph A. Hanofee, Northampton, for the defendant.

Ellyn H. Lazar, Assistant District Attorney, for the Commonwealth.

Present: Kinder, Neyman, & Wendlandt, JJ.

NEYMAN, J.

In this consolidated appeal from a conviction of murder in the second degree and from an order denying his motion for a new trial, the defendant contends that (1) the judge erred in declining to instruct the jury on accessory after the fact to murder, and on assault and battery as a lesser included offense; (2) there was insufficient evidence of force to prove the underlying felony of kidnapping; (3) the judge erred in admitting hearsay evidence under the state of mind exception; and (4) trial counsel rendered ineffective assistance. For the reasons set forth below, we affirm.

Background. 1. Prior proceedings. Following a trial in the Superior Court in 2014, a jury convicted the defendant, John Fredette, of murder in the first degree on a theory of felony-murder. During the pendency of his appeal to the Supreme Judicial Court, the defendant filed a motion for a new trial contending that the trial judge erred in not providing a merger doctrine instruction to the jury sua sponte, and that trial counsel rendered ineffective assistance. The defendant also filed an amended motion for a new trial alleging further instances of ineffective assistance of trial counsel. The motion judge, who was also the trial judge, allowed the motion because she concluded that the omission of an instruction on the merger doctrine created a substantial risk of a miscarriage of justice.¹ The Commonwealth appealed, and the Supreme Judicial Court held that the judge erred in allowing the motion for a new trial. Commonwealth v. Fredette, 480 Mass. 75, 79, 101 N.E.3d 277 (2018). However, the court vacated the conviction of murder in the first degree "because it was predicated on a theory of aggravated kidnapping ... that did not exist at the time of the homicide."² Id. at 88, 101 N.E.3d 277. The court remanded the case to the Superior Court to determine whether the record supported a finding of murder in the second degree or whether a new trial was "necessary and appropriate in these circumstances." Id.

On remand, the judge denied the motion for a new trial³ and issued an order reducing the defendant's conviction to murder in the second degree "based on a theory of felony-murder, with [unaggravated] kidnapping being the predicate felony." The defendant timely appealed therefrom.

2. Facts. In Fredette, 480 Mass. at 77-78, 101 N.E.3d 277, the Supreme Judicial Court summarized the facts the jury could have found as set forth by the judge in her decision on the defendant's motion for a new trial, supplemented with uncontroverted testimony from the trial. Those facts were as follows:

"On the evening of February 15, 1994, the victim walked out of a bar in Worcester, leaving behind his favorite Boston Celtics jacket, house keys, a package of cigarettes, and an unfinished beer. He was never seen again. The victim's disappearance remained unsolved for eighteen years. On February 15, 2012, a Worcester County grand jury returned an indictment charging the defendant with murder. Matteo Trotto and Elias Samia, two of the defendant's cohorts in his illegal drug operation, were also indicted for the murder.

"The defendant had been arrested for trafficking in cocaine a few months before the victim disappeared, following an undercover investigation into the defendant's drug operation. The defendant and Trotto believed that the victim might have been the informant who provided the police with information leading to the defendant's arrest. To evade conviction, the defendant and Trotto concocted a scheme to have the victim testify on the defendant's behalf and offer an exculpatory, perjured story. According to this plan, the victim would testify that he was the confidential informant who provided the information to the police that established probable cause to arrest the defendant, and explain that the information he provided was false. To ensure that the victim would testify, the defendant and Trotto gave him copious amounts of cocaine, while also threatening his life.

"On the day of the defendant's trial, the victim never appeared in court to testify. As a result, on February 14, 1994, the defendant pleaded guilty to a reduced offense. He was sentenced to a State prison sentence, but execution of that sentence was stayed.

"On the evening of February 15, 1994, the victim was sitting in the bar when Trotto appeared, coaxed the victim outside, and ushered him into a motor vehicle occupied by the defendant and Samia. Soon after the victim entered the vehicle, the defendant and Samia began severely beating him. In the course of the beating, Samia shot and killed the victim. The defendant, Samia, and Trotto buried the victim's body in a shallow grave. The victim's body was never recovered." (Footnote omitted).

Id. at 77-78, 101 N.E.3d 277. In addition to the foregoing, the Commonwealth introduced abundant corroborative evidence, motive evidence, and consciousness of guilt evidence, including information regarding the dismantling and disposing of a 1985 Chevrolet Impala, the motor vehicle in which the crime occurred.⁴ There was also evidence that the defendant told a witness that he would kill the victim if the victim "didn't show up in court" and "give false testimony for [the defendant's] benefit." Further, the Commonwealth introduced testimony regarding a 2008 conversation between the defendant and Samia during which they acknowledged beating the victim, and admitted to the shooting.⁵

Discussion. 1. Jury instructions. a. Accessory after the fact. The defendant contends that the absence of a jury instruction on accessory after the fact to murder constituted prejudicial error. See G. L. c. 274, § 4 (providing, in relevant part, that "[w]hoever, after the commission of a felony, harbors, conceals, maintains or assists the principal felon or accessory before the fact, or gives such offender any other aid, knowing that he has committed a felony or has been accessory thereto before the fact, with intent that he shall avoid or escape detention, arrest, trial or punishment, shall be an accessory after the fact ..."). The argument fails at the outset because the defendant did not specifically request an instruction on accessory after the fact at trial. Rather, he "object[ed] to not including language in the joint venture instruction indicating that an action taken by the defendant[ ] to assist the perpetrator of a crime after the crime was completed, in and of itself, is not sufficient to convict the defendant under a theory of joint venture." Accordingly, we limit our review to whether the absence of an instruction on accessory after the fact was error, and if so, whether that error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13, 712 N.E.2d 575 (1999).

We begin with the principle that "accessory after the fact is not a lesser included offense of murder." Commonwealth v. Talbot, 35 Mass. App. Ct. 766, 777, 625 N.E.2d 1374 (1994). "[T]here is a substantial difference between the crime of murder and the crime of accessory after the fact to murder," Commonwealth v. Clark, 378 Mass. 392, 407 n.16, 393 N.E.2d 296 (1979), and "one cannot be both a principal in a crime and an accessory after the fact to the same crime." Commonwealth v. Berryman, 359 Mass. 127, 129, 268 N.E.2d 354 (1971). Thus, the judge was not obligated to give such an instruction. Compare Commonwealth v. Gould, 413 Mass. 707, 715, 603 N.E.2d 201 (1992) ("When the evidence permits a finding of a lesser included offense, a judge must, upon request, instruct the jury on the possibility of conviction of the lesser crime").

Faced with this hurdle, the defendant argues that the refusal to instruct as to accessory after the fact deprived him of his constitutional right to present a defense. Our courts have rejected this argument, so long as the jury instructions established the Commonwealth's obligation to prove the defendant's participation in the murder beyond a reasonable doubt. See Commonwealth v. Newson, 471 Mass. 222, 234, 27 N.E.3d 1282 (2015) ("the judge's instructions clearly established that the defendant could not be found guilty of murder if his only participation consisted of aiding another person after the fact in escaping from the police and disposing of weapons"); Talbot, 35 Mass. App. Ct. at 777, 625 N.E.2d 1374 ("any danger that the defendant would be found guilty of murder on a joint venture theory based merely on evidence that he participated in the disposition of the body was avoided by the judge's clear and comprehensive instructions on joint venture" [quotation and citation omitted] ). Here, as in Newson and Talbot, the judge's comprehensive instructions on murder and joint venture negated any risk that the jury convicted the defendant based on his conduct after the murder.⁶ The instructions, set forth in note 6, supra, stated and reiterated the Commonwealth's obligation to prove the defendant's participation in the murder beyond a reasonable doubt.

Finally, "[t]he judge could have concluded that charging the jury on a crime with which the defendant was not charged could serve to mislead or confuse the jury." Commonwealth v. Deane, 458 Mass. 43, 59, 934 N.E.2d 794 (2010). See Talbot, 35 Mass. App. Ct. at 777, 625 N.E.2d 1374 (same). Therefore, the absence of an instruction on accessory after the fact did not create a substantial risk of a miscarriage of justice.⁷

b. Assault and battery. Next, the defendant contends that the judge erred in refusing to instruct the jury on assault and battery as a lesser included offense of murder. The argument is unavailing.

The jury convicted the defendant of felony-murder,...