Commonwealth v. Fritz

• Decision Date: 29 July 2015
• Docket Number: SJC–07763.
• Parties: COMMONWEALTH v. Shawn T. FRITZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

472 Mass. 341

34 N.E.3d 705

COMMONWEALTH

v.Shawn T. FRITZ.

SJC–07763.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 4, 2015.

Decided July 29, 2015.

Rosemary Curran Scapicchio, Boston, for the defendant.

Paul B. Linn, Assistant District Attorney, for the Commonwealth.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, & HINES, JJ.

Opinion

HINES

, J.

On October 24, 1996, a jury convicted the defendant, Shawn T. Fritz, of murder in the first degree of Albert Tyler Titcomb, III, on the theories of deliberate premeditation and extreme atrocity or cruelty, and of unlawful possession of a firearm.¹ The defendant's appeal from his convictions was consolidated with his appeals from the denial of his first two motions for a new trial.² He raises a plethora of appellate issues and also asks that we exercise our power under G.L. c. 278, § 33E

, to grant him a new trial or to reduce the verdict.³ We affirm his convictions and the orders denying his motions for a new trial, and discern no basis to reduce the verdict or to order a new trial.

Background. We summarize the facts the jury could have found. The victim was shot in the head five times at close range in the hallway of 17 Carney Court, an apartment building in the Charlestown section of Boston, at approximately 4 p.m. on November 22, 1994. He died as a result of his wounds

. The murder weapon was never recovered. Five discharged .32 caliber automatic cartridge casings and two spent .32 caliber bullets were recovered in the vicinity of the victim's body. Three spent bullets and one fragment of a spent bullet were recovered from the victim's body during his autopsy. A firearms identification expert testified regarding his opinion that, based on his microscopic

examination, all of the discharged cartridge casings and spent bullets had been fired from the same weapon.

The victim had a lengthy history of drug addiction. He owed the defendant fifty dollars. When unable to pay, the victim fabricated a story that he had been arrested and had used the fifty dollars to post bail. This story was reported to the defendant by the victim's cousin and again by the victim on the morning of the shooting, but the defendant did not believe it.

The victim spent much of the day on November 22 with his friend, William Barends, in Charlestown. The two smoked marijuana with other acquaintances and consumed other drugs. The medical examiner who conducted the victim's autopsy testified that at the time of the victim's death, he had a large amount of morphine

in his blood, which was the result of ingesting either morphine or heroin.

A woman who lived across from 17 Carney Court testified that she saw the defendant, Barends, the victim, and others near her apartment on the afternoon of November 22; heard shots fired at approximately 3:50 p.m. ; saw the defendant walk out of the entryway of 17 Carney Court; and then saw him run toward Bunker Hill Street. When she walked to the hallway of 17 Carney Court, she discovered the victim lying on his stomach. A boy testified that on November 22, when he was fourteen years of age, he was waiting for friends near 17 Carney Court; saw four “kids” enter the hallway at 17 Carney Court and close the door; heard shots; and saw one of the “kids,” whom he later identified as the defendant from a photographic array, then run from the hallway. Mary Johnson, the mother of one of the victim's children, testified that the defendant had admitted to her that he had been present near the scene of the shooting on the day the victim was killed and that the victim owed him money, but he denied committing the murder.

The Commonwealth also called Mark Duggan, who testified as follows. A young woman Duggan had been dating at the time lived across from 17 Carney Court, and on November 22, he had been working on an automobile in a lot behind that address. Duggan saw the defendant, the victim, Barends, and two others in the area on the afternoon of the shooting and observed that the victim was unsteady on his feet. Later, as Duggan was leaving in a taxicab, he observed this group, including the victim, Barends, and the defendant, enter the building across the way (17 Carney Court). Subsequent to the victim's death, in 1995, while Duggan

was being detained after an arrest on an unrelated matter, he spoke with the defendant, who also was being detained. The defendant stated that he “didn't understand why everyone was coming down on [him]” and that “[h]e wasn't the only one there that day.”

Barends provided the testimony that most directly tied the defendant to the shooting. After describing the activities in which he and the victim had engaged in on November 22, Barends testified that the defendant suggested to the group that had formed, which included the victim, Frederick Stearns, and Timothy McLaughlin (see note 1, supra ) that they smoke some “angel dust” together. Although Barends told the defendant that the victim did not “need [ ] any more of that,” the defendant and the victim went into the hallway of 17 Carney Court presumably to smoke. Barends then followed the two inside. While Barends was near the door to the exterior, he heard gun shots and turned to see the defendant pointing a gun at the victim. Barends then ran from the hallway. About ten minutes later, the defendant approached Barends, who was visibly shaken, gave him a hug, and stated, “How do you think I feel? I just took a father from his son.”

The defendant attempted to escape while awaiting trial. In connection with a disciplinary hearing following the escape attempt, the defendant stated that he was only twenty-two years of age; was facing life in prison; and, were he to have the opportunity, he would try to escape again.

The defendant did not testify, and he did not present any evidence. Rather, his defense counsel attacked the credibility of Barends and Duggan, pointing out during cross-examination that they were criminals who had received benefits from the prosecutors in this case and in Federal cases, including placement in the witness protection program and payment of living expenses.

Discussion. 1. Pretrial issues. a. Severance. Contrary to the defendant's contention, there was no abuse of discretion in the judge's declining to sever the defendant's case from those of McLaughlin and Stearns. There was no showing that the defenses at trial were mutually antagonistic and irreconcilable. See Commonwealth v. Siny Van Tran, 460 Mass. 535, 543, 953 N.E.2d 139 (2011)

.

b. Public trial. In 2011, the defendant filed a second motion for a new trial claiming a violation of his right to a public trial under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights when court officers excluded the public and his family from the court room during jury empanelment. A Superior Court judge

(who was not the trial judge and was not the judge who decided the first motion for a new trial) conducted an evidentiary hearing at which the defendant's trial counsel and sister testified, and also a newspaper reporter. In her written memorandum of decision and order, the judge made the following findings of fact.

Jury empanelment in this case took place during the course of two days, and the court room was closed during at least the first day of empanelment. On the first day of empanelment, court officers asked everyone, including the defendant's sister and mother, to leave, and they were not permitted to reenter.

At the time of the defendant's trial in 1996, it was a well-established custom and practice at the Superior Court in Suffolk County to exclude members of the public, including members of the media, from the court room during empanelment. Court officers would clear the court room of the public before the venire was escorted in because of space constraints. A court officer would be posted at the court room door, which bore a sign reading, “Jury Selection—Do Not Enter,” during jury empanelment.

The defendant's trial counsel, who had many years of experience and was known by the judge to be “a most capable, skilled, and reputable attorney,” had no specific memory of a court room closure in the defendant's trial. The defendant's trial counsel would not have had any tactical reason to ask that the defendant's family members be excluded from the court room. His focus would have been on the various aspects of the jury selection process. He would not have objected to the practice of clearing the court room for jury empanelment because he was not aware that it raised an issue of constitutional dimension until the publication of Commonwealth v. Cohen (No. 1), 456 Mass. 94, 921 N.E.2d 906 (2010)

. As such, defense counsel did not think to discuss the matter with the defendant or his family. Regardless, it was not defense counsel's practice even to have the defendant at sidebar during empanelment.

The judge correctly concluded that a procedural waiver occurred in this case and that the case stands on all fours with our decisions in Commonwealth v. Morganti, 467 Mass. 96, 4 N.E.3d 241

, cert. denied, ––– U.S. ––––, 135 S.Ct. 356, 190 L.Ed.2d 251 (2014), and Commonwealth v. Alebord, 467 Mass. 106, 4 N.E.3d 248, cert. denied, ––– U.S. ––––, 134 S.Ct. 2830, 189 L.Ed.2d 793 (2014). The lack of defense counsel's specific memory on what occurred during the jury empanelment in the defendant's case is not significant, as he testified to knowledge of the general practice at that time. See

Commonwealth v. Jackson, 471 Mass. 262, 268–269, 28 N.E.3d 437 (2015)

(finding procedural waiver despite fact that neither defendant nor defense counsel had been aware of closure). Further, any knowledge would not have altered his practice, as Cohen (No. 1), supra, had not yet been decided. Thus, in the circumstances, defense counsel was not ineffective for failing to object to the closure. See Alebord, supra at 114, 4 N.E.3d 248 ; Morganti, supra at 104–105, 4 N.E.3d 241. Last, we...