Commonwealth v. John F. Petetabella.

459 Mass. 177

944 N.E.2d 582

COMMONWEALTH

v.John F. PETETABELLA.

SJC–10720.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Dec. 10, 2010.Decided March 30, 2011.

Richard J. Shea, Boston, for the defendant.Rachel J. Eisenhaure, Assistant District Attorney, for the Commonwealth.Present: IRELAND, COWIN, CORDY, BOTSFORD, & GANTS, JJ.CORDY, J.

In the early morning hours of December 28, 1963,¹ Jean Thibeault was shot and killed during a robbery of the bar he owned in Fall River. The defendant and two other men ² were convicted of his murder and other offenses ³ on July 2, 1964. On his conviction of murder in the first degree, the jury recommended that the death penalty, then in effect, not be imposed, and the defendant was sentenced to life in prison.⁴ He did not appeal. Nearly forty-four years later, on May 21, 2008, he filed a motion for new trial under Mass. R.Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001). After an evidentiary hearing, a Superior Court judge denied an amended motion. The present appeal from that denial was filed in this court where it was docketed as a direct entry of an appeal from a conviction of murder in the first degree.

As a threshold matter, and for the reasons that follow, we conclude that the defendant's case is not here on direct appeal, but rather as an appeal from a collateral attack on a final conviction.⁵ We further conclude that the motion judge's decision denying the motion for a new trial was not manifestly unjust, nor was the trial infected with prejudicial constitutional error. Accordingly, we affirm.

1. Background.⁶ a. The murder. On the night of December 27, 1963, the defendant and Joseph Robideau were in Fall River to attend a bachelor party for their friend, Gerald Sousa. After drinking heavily, the defendant and Robideau robbed three employees of a Fall River market at gunpoint. During the robbery, the defendant “pistol whipped” a male employee, breaking the trigger guard of his pistol in the process.

After the robbery, the defendant and Robideau rejoined their friends to continue celebrating. During the celebration, the defendant suggested that they “hit” a bar before closing time because, on a Friday night, a bar would be full of patrons with money. At approximately 1 a.m. on December 28, 1963, the defendant, Robideau, and Sousa arrived at Padden's Cafe, a bar located in Fall River. Among those present were Thibeault, the owner of the bar; Albert Brulotte, an employee; and Barbara Ferree, a patron. Robideau asked for change, but was told that the cash had been put away. Sousa went into the men's restroom and came out with a stocking over his face and a gun in his hand. The defendant, who was also armed with a gun, ordered Thibeault and Brulotte into the kitchen, instructing them to lie face down on the floor. The defendant and Sousa took the wallets of Thibeault and Brulotte. Robideau remained outside the kitchen, holding Ferree at knife point. When Thibeault, who was lying on the floor, “reach[ed] up for” the defendant, the defendant shot him once through the back, killing him. Sousa fired two shots at Brulotte, but Brulotte was not hit. As the defendant and Sousa ran out of the kitchen, Sousa took money out of Ferree's wallet and hit her over the head with his gun. The three men then left the bar.

b. Trial. The defendant, Robideau, and Sousa were tried together. At trial, the defendant presented evidence to support the defense theories of insanity and intoxication. Over the objection of his trial counsel, the defendant also took the stand to testify that Sousa was not the third man present at Padden's Cafe the night of the murder.⁷ During cross-examination, the defendant admitted that he carried a gun, “hit” the market and the bar, and shot Jean Thibeault as he lay on the kitchen floor. All three defendants were convicted of murder in the first degree and all were spared the death penalty. c. Motion for a new trial. The defendant's motion for a new trial included an affidavit in which he averred that after his conviction his trial counsel informed him that he could not appeal because he had admitted guilt.⁸ Consequently, he did not appeal. He also claimed that there were several structural and other errors made at his trial, which we address in turn.

2. Discussion. a. Standard of review. A new trial may be granted “at any time if it appears that justice may not have been done.” Mass. R.Crim. P. 30(b). “Rule 30(b) motions ... filed after conviction and sentencing are considered collateral attacks on final decisions.” Commonwealth v. Lopez, 426 Mass. 657, 662, 690 N.E.2d 809 (1998). “A motion for a new trial is addressed to the sound discretion of the trial judge, and the judge's disposition of the motion will not be reversed unless it is manifestly unjust, or unless the trial was infected with prejudicial constitutional error.” Commonwealth v. Russin, 420 Mass. 309, 318, 649 N.E.2d 750 (1995). “When, as here, the motion judge did not preside at trial, we defer to that judge's assessment of the credibility of witnesses at the hearing on the new trial motion, but we regard ourselves in as good a position as the motion judge to assess the trial record.” Commonwealth v. Grace, 397 Mass. 303, 307, 491 N.E.2d 246 (1986). In a collateral attack on a criminal conviction, claimed errors are reviewed to determine whether they create a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294–296, 780 N.E.2d 58 (2002).

b. Failure to appeal. In his amended motion for a new trial, the defendant asserts that trial counsel incorrectly informed him that he could not appeal from his convictions. He asserts that the waiver of his right to appeal was the result of ineffective assistance of counsel and could not have been knowing and voluntary. Consequently, he contends that his appeal should be considered as a direct appeal from his convictions and not the appeal of a failed collateral attack. After assessing the credibility of the defendant's testimony at the evidentiary hearing (which he found lacking) and reviewing the trial transcript, the motion judge concluded that the defendant's trial counsel had not advised the defendant that he could not appeal, but rather, advised him not to appeal for two related reasons: first, because the defendant had “won” at trial when he was spared the death penalty; and second, because the defendant likely would have faced the death penalty had he prevailed in receiving a new trial. The judge further concluded that the defendant reasonably accepted his counsel's advice.

The judge's findings are sound and are supported by the evidence and his finding that trial counsel “was diligent in every aspect of his representation of the defendant at trial. Thus, it is unlikely that on such a basic issue as the defendant's statutory right of appeal ... pursuant to G.L. c. 278, § 33E, that counsel would have disregarded his client's preference.”

Further, the reasons why trial counsel would have discouraged the defendant from appealing from his convictions were far from manifestly unreasonable. First, the outcome of trial was essentially a “win” for the defendant, especially after he testified that he shot Jean Thibeault in the back while he lay on the floor. From that point, trial counsel's aim was to spare the defendant the death penalty. In closing, he pleaded with the jury: “[The defendant] doesn't say that what he did was right. Nobody makes that claim at all. But I ask you to consider these things. And you, as society, are you going to make the final rejection and say, ‘You don't belong here?’ ” The jury were persuaded and recommended that the death penalty not be imposed. Accordingly, counsel would have had little reason to recommend an appeal where the defendant achieved the outcome that was essentially the best he could have hoped for in the circumstances.

Second, trial counsel's recommendation was warranted based on the possibility that the defendant would face the death penalty if granted a new trial. The defendant argues on appeal that the United States Supreme Court's decision in Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003), applies here. In that case, the Court held that in the death penalty phase of a capital murder case, the jury in effect “acquit[ ]” a defendant of the death penalty by finding “that the government failed to prove one or more aggravating circumstances beyond a reasonable doubt.” Id. at 106, 108, 123 S.Ct. 732. Consequently, the double jeopardy clause of the Sixth Amendment to the United States Constitution bars retrial on the issue of imposing the death penalty. Id. at 107–109, 123 S.Ct. 732, citing Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), and Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984). The controlling law at the time of the defendant's convictions, however, was to the contrary. See Stroud v. United States, 251 U.S. 15, 17–18, 40 S.Ct. 50, 64 L.Ed. 103 (1919) (double jeopardy clause did not bar imposition of death penalty at new trial). See also Sattazahn v. Pennsylvania, supra at 107, 123 S.Ct. 732. The case of Stroud v. United States, supra, was cited with approval in Makarewicz v. Commonwealth, 346 Mass. 478, 481, 194 N.E.2d 388 (1963), and its reasoning was applied in Commonwealth v. Arsenault, 361 Mass. 287, 293–296, 280 N.E.2d 129 (1972).

Accordingly, had the defendant appealed at the time of his convictions and been retried, he certainly would have been exposed to the possibility of a death sentence, something he had just successfully avoided. As the motion judge stated, because “the defendant admitted to all the material facts of the Commonwealth's case ... a second conviction was a near certainty and with it the risk of a death sentence.” Trial counsel's advice in these circumstances was not ineffective even measured against our current...