Commonwealth v. Hamel
| Decision Date | 12 February 2001 |
| Docket Number | No. 99-P-913,99-P-913 |
| Citation | 52 Mass. App. Ct. 250,752 N.E.2d 808 |
| Parties | (Mass.App.Ct. 2001) COMMONWEALTH vs. JERRY HAMEL |
| Court | Appeals Court of Massachusetts |
County: Middlesex.
Present: Jacobs, Kaplan, & Duffly, JJ.
Attempt. Homicide. Practice, Criminal, Instructions to jury. Solicitation to Commit Felony.
Indictments found and returned in the Superior Court Department on August 21, 1996.
The cases were tried before Elizabeth J. Dolan, J.
Chauncey B. Wood for the defendant.
Sean Gordon, Assistant District Attorney, for the Commonwealth.
Indictments by a Middlesex grand jury charged the defendant, Jerry Hamel, with the statutory crime of attempted murder of four named individuals, G. L. c. 274, § 6,1 and with the common-law crime of soliciting others to commit those murders. A jury found the defendant guilty of all the charges.2 Upon the defendant's appeal, we reverse the judgments of conviction of attempted murder for error in denying the defendant's motions for required findings of not guilty. We affirm the judgments of conviction of solicitation.
1. Evidence in detail. In May, 1996, the defendant was an inmate at the Massachusetts Correctional Institution (M.C.I.), Concord, sharing a cell in the segregation unit with the inmate David Vermette. The defendant told Vermette he wanted to get rid of Richard Bernier, the ex-husband of the defendant's wife. The defendant was unaware that Vermette was an informant ready to serve the prison authorities. Vermette worked to persuade the defendant that he had means of evading the guarded prison telephone system and putting himself, and also the defendant, in direct communication with hitmen on the outside. On May 14, Vermette spoke with Lieutenant Randy Fisher, head of the inner perimeter security team at Concord, and told him his cellmate said he wanted to have a man killed. Fisher assumed the role of "Jack," a feigned hitman, in the evolving story.
We have Fisher's testimony about events through May 29. On May 15, Vermette made a call from the cell to Fisher and passed the phone to the defendant. The defendant identified Richard Bernier as the one to be taken care of. Fisher said he would want to check the defendant out and the job would cost a lot. The defendant was to call in a couple of days. On May 17, with the same phone arrangement, the defendant gave Fisher some particulars about Bernier (address in Baldwinville, driving a white Plymouth Horizon car) and told Fisher of his hatred of the man because he had earlier raped his wife and was currently harassing her. The defendant said he could pay for the job by giving Fisher access to a marijuana field worth, he said, between twenty and thirty thousand dollars.
Vermette phoned Fisher on May 21. He said the defendant had been talking of an accident befalling his parents as a further means of his paying for the killing of Bernier. The defendant said he wanted to make sure to raise enough money and confirmed that he wanted his parents (and a neurotic older brother who lived with the parents) disposed of, by which he would come into his parents' house and savings and other assets. He also mentioned a motorcycle, car, tools, and other things at the house. Fisher expressed unease with the defendant's "switching shit" and now adding three targets, which would naturally increase the price. Fisher appeared still interested in the marijuana field and the defendant described for Fisher in some detail the location of the field in Gardner and how to reach it. Fisher gave the defendant a name, "Brian Kelly," and a postal address, P.O. Box 1892, Boston 02205, to which the defendant could send pictures or other material needed for the job. Fisher thought the matter could be wrapped up in a month's time.
The defendant meanwhile was having conversations daily with his wife, Angela. On May 22, in the midst of a long, intimate talk, the defendant asked his wife to send him a picture of Bernier, so that, he said, "a friend" could see it. The next day, in one of a number of calls, the defendant expressed concern about Angela's coming home late at night after work: he mentioned the route would take her through Baldwinville. (Bernier was and had long been under restraining orders which he had regularly violated.)
The defendant's concern materialized. When the defendant spoke with Angela on May 24, she told him in pain and chagrin that Bernier had concealed himself in the house the previous evening and, after she arrived home from work and was asleep, had set upon her and fought with her and beaten and again raped her. After the rape Bernier told his victim to tell her husband he now had "damaged goods." Angela had been at the hospital and received treatment including the preparation of a "rape kit." Now she was at home, feeling wretched, with police present in the house. The defendant in the telephone talk was volubly supportive of his wife and enraged against Bernier.
On the twenty-seventh, the defendant and Angela excoriated Bernier. The conversation went on with how the defendant's parents, especially his mother, had mistreated or ignored him. The theme returned in a conversation on May 28. The parents ("psycho [mother] and partner") could get into a "bad car accident"; someone might "run them off the road and then take off . . . ." This would be "just income for me"; the defendant and wife "could buy a newer house" and "put their ashes in our garden out behind our house for fertilizer."
To return to the Fisher-Vermette-defendant conversations. In a call on May 26, Fisher emphasized he needed background on the parents -- their habits, routines, joint doings. With this help, all would be "set."
A warrant was out for Bernier when Fisher and the defendant talked on May 28. He was on the run, charged with heavy offenses based on the rape episode of May 24. This, said Fisher, complicated matters, but not much: Bernier was probably somewhere in his usual area and, in Fisher's judgment, would be out (presumably on bail) in any event. Fisher gave the defendant and Vermette the telephone number at which "Mark" could be reached. (Mark was the other feigned hitman, actually State Trooper Brian Connors, assigned to the case by agreement between Fisher's superiors and the State police.) Fisher said he was going out of State for some time, and they should call Mark. There was talk of how to handle the loss of telephone connection with Jack that would occur if the defendant was moved to M.C.I., Shirley, as was expected. But Mark could visit there. The defendant said he had already sent along some material, evidently through "Brian Kelly." Fisher asked, "I take it you still want to go forward?" Answer, "Oh, yeah." "Even more so, I would imagine," said Fisher, for Angela was to be avenged.
Trooper Brian Connors arranged for a special so-called "hello"-line. On May 29, Vermette (with the defendant alongside) got through to him to say the defendant was being moved that day to M.C.I., Shirley. Bernier had been found and arrested so that part of the scheme could be put "on hold." The marijuana field might serve as money "up front" and, in addition, the defendant said he had sent (to the Brian Kelly address) a "bill of sale" covering a motorcycle, a car, and tools.
On May 29, just after the phone call, Connors collected from the Brian Kelly postbox an envelope containing a rudimentary bill of sale, instructive data about Bernier, and descriptions of the family members and their habits, including the activities that might find them together.
Testimony by Connors takes over the narrative at this point. On June 3, after smoothing his way by informing the proper officer at Shirley of his undercover role, he visited the defendant there.3 A woman (in fact Angela) was visiting the defendant at the time, so Connors did no more than ask whether the defendant still wanted to talk to him, still wanted to do that; answer, yes.
On June 6, Connors visited again and was alone with the defendant. The defendant assured Connors his wife did not know anything. He still wanted to go through with the matter. Responding to the defendant's worry about providing enough up front, Connors said he would get to the marijuana field. There was discussion of just what would be available after the parents and brother were gone -- the house, any savings, life policy, etc. (but doubt as to how long realization of money might take). Vermette had spoken of a charge of $5,000 per person killed, but that might change. Connors said they were expecting sketches of the house and field and the defendant said he would supply them.
As to the family, the defendant said they didn't mean anything to him, he didn't care. A picture presented itself -- the deranged brother kills his parents and then kills himself. If the defendant was then in prison, fine, he would be clear of suspicion; if out of prison, he would try to be in New York or elsewhere at the time.
Connors with Fisher and another officer went out and found the marijuana field on June 12 and took pictures of the plot, eight by twelve feet, twenty to twenty-five plants, two to three feet tall.4
After a visit to Shirley on June 24 which was aborted when Angela was seen at the prison about to visit, Connors attended on June 28. Now Bernier was reported out of prison, and so perhaps first in line for killing. Connors said he had seen the field. He recognized the field had value, and thought the defendant would have plenty more assets in time. The defendant said it would be "well worth it" even if he had to pay out ninety percent of all he got. Connors said the price for the family would be $20,000 (because there was no cash up front) and the price for Bernier had to be considered.
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