Commonwealth v. Weichell

• Citation: 446 Mass. 785,847 N.E.2d 1080
• Parties: COMMONWEALTH v. Frederick WEICHELL.
• Decision Date: 22 May 2006
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1080

847 N.E.2d 1080

446 Mass. 785

COMMONWEALTH v. Frederick WEICHELL.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued April 4, 2006.

Decided May 22, 2006.

Robert C. Cosgrove, Assistant District Attorney, for the Commonwealth.

Carol A. Fitzsimmons, Boston, for the defendant.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, SOSMAN, & CORDY, JJ.

GREANEY, J.

Although James J. Bulger, Jr. (alias "Whitey"), has long evaded the grasp of pursuing domestic and international law enforcement officers seeking to bring him to account for crimes too numerous and too craven to be summarized here, his malevolent tentacles have once again reached into the Commonwealth and have led to the grant of a motion for a new trial for the defendant, Frederick Weichell, who was convicted by a jury of murder in the first degree and whose conviction was affirmed by this court in Commonwealth v. Weichell, 390 Mass. 62, 453 N.E.2d 1038 (1983), cert. denied, 465 U.S. 1032, 104 S.Ct. 1298, 79 L.Ed.2d 698 (1984). The ground for the grant of the new trial motion is encapsulated in the bizarre circumstances that we shall describe below (material worthy of a crime novella). The circumstances persuaded the judge (not the trial judge, who had retired) that the defendant had happened on newly discovered evidence that called the validity of his conviction into question. We disagree with the judge's conclusion and vacate the order granting the defendant a new trial.

1. (a) The background of the case is set forth in our opinion in Commonwealth v. Weichell, supra at 65-67, 453 N.E.2d 1038, as follows: "The shooting. [The victim, Robert W. LaMonica,] worked for the Boston Water and Sewer Commission. He worked from 4 P.M. to midnight. He would usually drive straight home from his job to his [Braintree] apartment, customarily arriving there between 12:15 A.M. and 12:30 A.M. He would turn off Faxon Street to park his [automobile] in a parking lot adjacent to his apartment building. Faxon Park is across from the entrance to the parking lot. [The victim] followed this routine on the morning of May 31, 1980. He parked and got out of his [automobile]. Four shots were fired, two of them hitting [the victim]. A bullet entered through his neck and penetrated the brain. A second bullet entered his back and lodged in his right rib cage. [The victim] died in the parking lot.

"Identification. Shortly before midnight on May 30, 1980, John Foley, Jean Castonquay, Frederick Laracy, and Lisa Krause went to Faxon Park, after attending a drive-in movie together. Foley testified the group had been drinking and that he had consumed four or five beers during the movies. At 12:15 A.M., Foley was walking away from a wooded area of the park. He heard four `bangs' and saw a man run out of the parking lot and turn up Faxon Street to a waiting [automobile]. Krause screamed. The man looked toward the group briefly but continued running. Foley testified that he had a full-face view of the man for approximately one second as the man passed under a street light. Foley and Laracy went across Faxon Street to the parking lot where they found the body of the victim on the ground. The police arrived shortly thereafter.

"Foley described to the police the man he saw running as being five feet, nine inches tall, 175 pounds, wearing jeans and a pullover shirt. [At the time of his arrest, the defendant was five feet, seven inches tall, and weighed 155 pounds.] He said that the man had dark curly hair, bushy eyebrows, and sideburns. He also stated that the man had a slightly crooked nose, `as if it had been broken.' At trial, he identified the defendant as the man he saw running that night.

"Later that morning, Foley assisted Detective Wilson of the Braintree police department in making a composite drawing. After indicating that he could not draw a face by himself, Foley gave Wilson a general description. With the aid of an Identikit, Wilson and Foley assembled a composite. Foley examined the composite and asked for changes. Wilson then changed elements of the composite and put together a different face. Wilson used a pencil to alter the nose. After Foley altered the hair style, he declared that the composite `looks like him.' A photostatic copy of the composite was introduced in evidence at trial.

"The next day, Foley was shown an array of nine photographs. He picked the defendant's picture as `a pretty good likeness' of the man. Several months later, he again identified the defendant's photograph out of the same array but which now included one additional photograph.

"On June 12, 1980, two State troopers, Foley, and the victim's two brothers drove through the streets of South Boston in a van. The [two brothers] gave directions, but did not speak to Foley. Eventually, Foley picked, out of a group of young men, an individual whom he thought was the man he saw running. The van was driven around the corner and passed the group for a second time. Foley stated, `That's the guy.' A State trooper took a photograph of the individual which was introduced in evidence and identified as a photograph of the defendant.

"Jean Castonquay also testified that she heard four shots and saw a man running. At trial, she was unable to say whether the defendant was the man she saw. Moments later, she tentatively identified another person sitting in the back of the courtroom as the man [the victim's brother]. On three occasions Castonquay was shown the same array of photographs as Foley, but was unable to pick out any one photograph. Instead, she picked out two or three photographs each time, always including that of the defendant. Neither Laracy nor Krause made any identification."¹

"Other evidence offered by the Commonwealth was admitted to create an inference that the defendant was conscious of his guilt. After the shooting, but before his arrest, the defendant asked Francis Shea and Dennis King [whose connection with the defendant and the victim is explained below] if the police were looking for him." Id. at 67 n. 4, 453 N.E.2d 1038.

On the issue of motive, the Commonwealth submitted evidence that in the weeks preceding the victim's death, the defendant and his friend, Thomas Barrett, had a series of confrontations, some involving physical altercations and threats, with Shea and Shea's friends, which included the victim, King, and Chuckie Carr. Id. at 64-65, 453 N.E.2d 1038.

We summarized the defendant's case in Commonwealth v. Weichell, supra at 67-68, 453 N.E.2d 1038, as follows: "At trial, the defendant's counsel [Anthony M. Cardinale], through cross-examination, attempted to bring out whatever discrepancies existed in Foley's testimony. He emphasized that Foley had indicated that the man he saw running had thick side-burns and bushy eyebrows. Foley admitted, however, that the defendant's eyebrows were different. It also appears that the defendant did not have any side-burns. Despite some evidence to the contrary, the jury could have concluded that the defendant had curly hair at the time of the murder. The defendant also attempted to show that the lighting in the area was poor [evidence to the contrary was proffered by the Commonwealth] and that the identification process was unreliable. The defendant did not testify.

"The defendant also sought to establish a defense of alibi. Three witnesses testified on his behalf. One witness's testimony [Kevin McCormack²] placed the defendant in downtown Boston until midnight. The other witnesses [Leo Mahoney and Kevin J. Weeks³] placed the defendant at the Triple O Lounge in South Boston at, or shortly after, the time of the shooting."

We then pointed out that, "[i]n rebuttal, the Commonwealth introduced evidence that the defendant could have left downtown Boston shortly before midnight and driven to [the victim's] apartment by the time of the shooting. A trip to the Triple O Lounge from the victim's apartment would have taken only another fifteen or twenty minutes. The Commonwealth also attacked the credibility of the two witnesses who placed him at the Triple O Lounge. Both were long-time friends of the defendant, and one [Mahoney] was engaged to Thomas Barrett's sister. The other witness [Weeks] failed to explain why he never came forward until one week before the trial." Id. at 68, 453 N.E.2d 1038.

The defendant was represented by his trial counsel in his direct appeal. Id. at 63, 453 N.E.2d 1038. In affirming the defendant's conviction, we rejected his claims that "the trial judge erred in (1) denying his motions in limine to exclude certain evidence relating to motive; (2) granting the Commonwealth's motion in limine to exclude evidence which tended to show that third parties had a motive to commit the crime; (3) refusing to exclude a `mugshot' photograph of the defendant's profile; (4) permitting the Commonwealth to introduce in evidence a composite drawing; (5) allowing the Commonwealth to introduce in evidence an enlarged copy of a photograph of the defendant taken by the Braintree police at the time of his arrest; and (6) excluding photographs of the scene of the crime and the testimony of the photographer who took them." Id. We also denied relief under G.L. c. 278, § 33E. Id. at 64, 453 N.E.2d 1038.

(b) In August, 1991, the defendant, represented by new counsel, filed a motion for a new trial arguing that his trial counsel had deprived him of his right to testify. The trial judge denied the motion without a hearing. A single justice of this court, acting under the gatekeeper provision of G.L. c. 278, § 33E, did not permit the defendant to appeal from this order.

(c) Over a decade later, in January, 2002, the defendant, represented by his current counsel, filed his second motion for a new trial, which is before us. The motion was based on alleged newly discovered evidence and ineffective assistance of trial and appellate counsel. The alleged newly discovered evidence consisted of a confession letter authored by the...