Commonwealth v. Trotto

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation169 N.E.3d 883,487 Mass. 708
Docket NumberSJC-11930
Decision Date24 June 2021

487 Mass. 708
169 N.E.3d 883

Matteo TROTTO.


Supreme Judicial Court of Massachusetts, Worcester.

Argued December 2, 2020.
Decided June 24, 2021.

Robert F. Shaw, Jr., Cambridge, for the defendant.

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

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


169 N.E.3d 890

In May of 2014, the defendant was convicted of murder in the first degree on a theory of joint venture felony-murder, with aggravated kidnapping as the predicate felony, in connection with the disappearance of Kevin Harkins in Worcester in February of 1994. As the Commonwealth now concedes, the conviction of murder in the first degree was invalid, because at the time of the offense, the felony of aggravated kidnapping did not exist, so the defendant could have been found guilty only of felony-murder in the second degree. The defendant challenges in this direct appeal the sufficiency of the evidence of murder in the second degree. He also raises issues related to the substantive use of grand jury testimony after a finding that a witness was feigning loss of memory, certain inadmissible hearsay statements, and improper Bowden evidence. See Commonwealth v. Bowden, 379 Mass. 472, 485-486, 399 N.E.2d 482 (1980). In addition, the defendant asserts a number of other errors at trial, including improper cross-examination by the prosecutor and incorrect jury instructions.

Having carefully examined the record, we affirm the conviction of felony-murder, and decline to exercise our authority under G. L. c. 278, § 33E, to reduce the verdict or to order a new trial. Nonetheless, due to the issue with the predicate felony of aggravated kidnapping, we vacate the conviction of murder in the first degree and remand the matter to the Superior Court for entry of a verdict of guilty of murder in the second degree and for resentencing.

1. Background. We recite the facts the jury could have found, viewing them in the light most favorable to the Commonwealth and reserving certain details for later discussion. Commonwealth v. Salazar, 481 Mass. 105, 107, 112 N.E.3d 781 (2018).

a. The incident. In February of 1994, the victim was working at a pub in Worcester and living in an apartment above it. He was a frequent user of cocaine and would obtain cocaine from the defendant. The defendant was close friends with John Fredette and Elias Samia; they referred to each other as "brothers."

On the evening of February 15, 1994, the victim was a patron at the pub. At around 10:30 P.M. , a dark sedan driven by Fredette pulled up across the street from the pub. The defendant got out of the vehicle, entered the pub, and gestured to the victim to come outside. The victim did so, leaving behind a half-finished bottle of beer, a package of cigarettes, keys, and a jacket. The victim and the defendant crossed the street to the sedan. The victim started to get into the rear passenger's side seat, but the defendant opened the front passenger door; the victim got into the front seat, followed by the defendant,

169 N.E.3d 891

and the sedan drove off. A fourth individual was sitting in the rear seat.

About three and one-half hours later, at around 2 A.M. on February 16, 1994, now-retired Millbury police Chief Mark Moore, then a patrol officer, observed a dark Chevrolet Impala traveling northbound through Millbury on Route 146, from the direction of Rhode Island, at ten miles per hour above the speed limit; the location where Moore first saw the sedan is about three miles south of Worcester and approximately thirty-six miles from Providence, Rhode Island. After following the vehicle for a short distance, Moore decided to execute a traffic stop. The vehicle was a 1985 Chevrolet Impala that was registered to Samia. When Moore made the stop, Samia was driving, and Fredette was in the front passenger seat; the defendant was not in the vehicle. After Moore asked Samia for his driver's license and the vehicle's registration, Samia provided his license but said that he did not have the registration with him because he recently had had the Impala repainted and had given the registration to his insurance company.

When Moore requested consent to search the vehicle, Samia did not give a clear answer. Moore went around to the passenger's side, asked Fredette to get out, and entered the vehicle himself to look at the inspection sticker on the windshield from the interior; he discovered that the sticker did not match the license plate. While inside the vehicle, Moore smelled marijuana. Consequently, he searched the entire vehicle, as well as Fredette and Samia. The search of the vehicle produced a small film canister containing marijuana residue. Moore then observed what he believed to be blood on the front passenger seat, the floor in front of that seat, the driver's side door, and Fredette's clothing. Fredette told a second police officer, who had joined Moore at the scene, that he had been punched in the face during a bar fight; there were no apparent injuries on Fredette's face. Moore did not search the glove compartment or the trunk, because Samia stated that he did not have a key to open them. Eventually, Moore allowed Samia and Fredette to continue on their way in the Impala, without issuing a traffic citation for speeding or for the invalid inspection sticker. The entire stop lasted approximately fifty minutes.

A few hours later, at around 5:30 A.M. on February 16, 1994, James Whalen, a mechanic, received a call from the owner of the automobile sales, salvage, and repair shop in Charlton where he worked, asking him to report to work early. Whalen knew Samia and the defendant and had worked on their vehicles in the past. Whalen remembered working on a 1985 Chevrolet Impala belonging to Samia, which originally had been painted blue, but later was painted black. When Whalen reached his workplace, a black Chevrolet Impala was parked outside the shop. Shortly thereafter, the defendant arrived and told Whalen that Whalen had to help in getting rid of the Impala, and to "keep [his] mouth shut" or his "family would never be safe."

Whalen began dismantling the Impala, placing the interior parts in a Dumpster behind the shop. Larger pieces were taken to a private garage to be cut up with a torch. Whalen and some of his coworkers then discarded the pieces in various places, including a wooded area and a Dumpster behind a different shop. One passenger door was thrown into a pond behind that shop.1 That same day, the license plate for

169 N.E.3d 892

a 1985 Chevrolet Impala belonging to Samia was returned to the registry of motor vehicles.

b. Investigation. In March of 2002, Anthony Carlo, an acquaintance of the defendant, made a statement to Worcester police asserting that he had talked to the defendant about the victim's disappearance. In 2006 and again in 2012, Carlo was called to testify before a grand jury about what he had heard. Testifying under a grant of immunity at the defendant's trial, Carlo said that he no longer remembered anything about the matters. The prosecutor thereafter was allowed to introduce substantively Carlo's testimony before the second grand jury. Carlo had testified before that grand jury that the defendant told Carlo that the defendant, Fredette, and Samia had picked up the victim at the pub; while they were in the vehicle, a gun the defendant had been holding accidentally discharged, killing the victim and spreading blood everywhere; the three men dumped the victim's body at a location Carlo was not told; and the vehicle subsequently was destroyed.

c. Trial. At trial, multiple witnesses, including the victim's sister and the mother of his daughter, testified that they had not seen or heard from the victim after February 15, 1994. A State police research analyst explained that searches of certain public records databases had not revealed any indication of the victim being active after February 1994. The Commonwealth also introduced a "delayed return of death" certificate that had been issued in 2012; the certificate declared the victim to be dead as of February 15, 2001.

The Commonwealth's theory of the case was that the victim had not cooperated in a scheme organized by the defendant to procure false testimony to help Fredette, who had been arrested in a "sting" operation in September 1993 and charged with drug trafficking and related offenses. John Mayotte, the victim's roommate, testified that on February 11, 1994, the defendant and Fredette visited the victim's home.2 Mayotte overheard their conversation and saw the victim being given a large bag of cocaine. The defendant wanted the victim to appear at Fredette's trial and "say that he was the informant, and that he had lied." Apparently as a result of a weekend of heavy use of cocaine, however, the victim ultimately did not appear in court to testify.

Several witnesses offered testimony about the victim's statements to the effect that, as a result of having flubbed the scheme to present false testimony, he now feared the defendant. The victim told John Mayotte, for instance, that the defendant and Fredette were going to "come after him." Dawn Mayotte, John Mayotte's sister, who previously had dated the defendant, testified that the victim confided in...

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    ...not followed could raise a reasonable doubt as to the defendant's guilt in the minds of the jurors"). See, e.g., Commonwealth v. Trotto, 487 Mass. 708, 722 n.6, 169 N.E.3d 883 (2021) (describing Bowden defense).6 On April 26, 2017, the defendant filed an ex parte motion for DNA expert funds......
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