Commonwealth v. Fredette

• Decision Date: 13 July 2018
• Docket Number: SJC-11931
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. John FREDETTE.

480 Mass. 75

101 N.E.3d 277

COMMONWEALTH

v.John FREDETTE.

SJC-11931

Supreme Judicial Court of Massachusetts, Worcester..

Argued November 7, 2017

Decided July 13, 2018

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

Joseph A. Hanofee, Northampton, for the defendant.

Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

LOWY, J.

In 2014, a Superior Court jury convicted the defendant, John Fredette, of murder in the first degree on a theory of felony-murder, with aggravated kidnapping as the predicate felony. ¹

The jury based their finding of aggravated kidnapping on the third paragraph of the current version of the kidnapping statute, which punishes a kidnapping committed "while armed with a dangerous weapon and inflict[ing] serious bodily injury thereby upon another person." G. L. c. 265, § 26, third par.

The defendant appealed and, after his appeal was entered in this court, he filed a motion for a new trial, arguing that the trial judge erred in not providing a merger doctrine instruction to the jury sua sponte. As discussed infra, the merger doctrine limits the application of the felony-murder rule by requiring the Commonwealth to prove that the defendant committed or attempted to commit a felony that is independent of the conduct necessary to cause the victim's death. This prevents every assault that results in a homicide from serving as the predicate for felony-murder. The defendant claimed that because a single act of violence (a shooting) caused the victim's death and satisfied an element of the aggravated kidnapping, the felony of aggravated kidnapping merged with the killing and could not serve as the predicate for felony-murder. The motion judge, who was also the trial judge, agreed. The judge concluded that a new trial was required because the omission of an instruction on merger created a substantial risk of a miscarriage of justice. The Commonwealth appealed from that ruling, which is the matter presently before us.² We conclude that because the underlying predicate felony—kidnapping—has an intent or purpose separate and distinct from the act causing physical injury or death, aggravated kidnapping is sufficiently independent of the resulting homicide and, therefore, the merger doctrine is inapplicable. Accordingly, the omission of a merger instruction was not an error, and the defendant's motion for a new trial should not have been granted on that ground.

In the course of deciding the Commonwealth's appeal, however, we discovered that the current version of the kidnapping statute, G. L. c. 265, § 26, under which the defendant was prosecuted, is materially different from the version that was in effect when the killing occurred in 1994. Specifically, in 1994, G. L. c. 265, § 26, did not include the form of aggravated kidnapping that the Commonwealth relied on as the predicate for murder in the first degree on a theory of felony-murder (i.e., kidnapping aggravated by being armed with a dangerous weapon and inflicting serious bodily injury on the victim).³ Moreover, G. L. c. 265, § 26, as it existed in 1994, carried a maximum sentence of ten years in prison and, as it relates to the defendant's case, could not have supported a conviction of murder in the first degree on a theory of felony-murder because it was not a felony punishable by up to life imprisonment (i.e., a life felony). The Commonwealth now acknowledges that, because of this error, the defendant's conviction of murder in the first degree cannot stand. Accordingly, we also vacate the defendant's conviction of murder in the first degree and remand the case to the trial judge to determine whether, on this record, a conviction of murder in the second degree should enter or whether the defendant is entitled to a new trial.⁴

Background. 1. Facts. We summarize the facts the jury could have found as set forth by the judge in her written decision on the defendant's motion, supplemented with uncontroverted testimony from trial. 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.⁵

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.

2. The jury instructions. Insofar as relevant here, the judge instructed the jury on murder in the first degree as a joint venturer on the theories of deliberate premeditation and felony-murder, with aggravated kidnapping as the predicate felony.⁶ Specifically, she instructed the jury that the Commonwealth had the burden to prove beyond a reasonable doubt that

"the defendant committed the kidnapping while armed with a dangerous weapon and inflicted serious bodily injury against [the victim], or knowingly participated with Matteo Trotto and Elias Samia in doing so, with the knowledge that Elias Samia possessed a weapon and that the defendant knew Elias Samia would or could use that weapon in the commission of the crime."

See G. L. c. 265, § 26, third par.⁷

The judge also instructed the jury that the Commonwealth had to prove beyond a reasonable doubt that the defendant committed the kidnapping while armed with a dangerous weapon and that a firearm was a dangerous weapon.⁸ The defendant did not request a merger instruction, and the judge did not provide such an instruction sua sponte. The jury convicted the defendant of murder in the first degree on a theory of felony-murder.

3. The defendant's motion for a new trial. Although the defendant did not request a merger instruction at trial, he contended in his motion for a new trial that the trial judge's failure to provide the instruction, sua sponte, created a substantial risk of a miscarriage of justice. Specifically, he claimed that because a single act of violence (the shooting) caused the victim's death and thus completed an element of aggravated kidnapping (inflicting serious bodily injury), the felony of aggravated kidnapping merged with the killing and could not have served as the predicate for felony-murder. As mentioned, the judge agreed, and the Commonwealth appealed from that ruling.

Discussion. We review the disposition of a motion for a new trial to determine whether there has been "a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307, 491 N.E.2d 246 (1986). We conclude that the judge erred in granting the defendant's motion for a new trial because the intent or purpose underlying the felony of aggravated kidnapping was separate and distinct from the assault that resulted in the homicide; thus, the merger doctrine was inapplicable.

Before we explain the reasons for our conclusion, we reiterate the analytical framework required to determine whether a felony merges with a subsequent killing, as it applies to cases tried prior to Commonwealth v. Brown, 477 Mass. 805, 807, 81 N.E.3d 1173 (2017), where this court prospectively abolished the concept of constructive malice, which in turn eliminated our common-law felony-murder rule as an independent theory of murder.⁹

1. The merger doctrine. "The effect of the felony-murder rule is to substitute the intent to commit the underlying felony for the malice aforethought required for murder. Thus, the rule is one of ‘constructive malice.’ " Commonwealth v. Gunter, 427 Mass. 259, 271, 692 N.E.2d 515 (1998), quoting Commonwealth v. Matchett, 386 Mass. 492, 502, 436 N.E.2d 400 (1982). The merger doctrine functions as a constraint on the application of the felony-murder rule by limiting the circumstances in which a felony may serve as the predicate for felony-murder. See Commonwealth v. Morin, 478 Mass. 415, 430, 85 N.E.3d 949 (2017). Specifically, the doctrine requires the Commonwealth to prove that the defendant committed or attempted to commit a felony that is independent of the act necessary for the killing. See Commonwealth v. Holley, 478 Mass. 508, 519, 87 N.E.3d 77 (2017) ; Morin, supra. This requirement ensures that not every assault that results in a death may serve as the predicate for felony-murder. Morin, supra. Without the merger doctrine, the distinction between...