(with first initial, no space for Sullivan, Dorsey, and
Walsh): McGuire, Thomas F., J.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTâS
MOTION FOR NEW TRIAL
F. McGuire, Jr. Justice of the Superior Court
4, 2012, the defendant, Rene Gosselin, was convicted of first
degree murder of Frederick Thompkins with extreme atrocity or
cruelty. G.L.c. 265, § 1. The defendantâs direct appeal
to the Supreme Judicial Court has been stayed pending review
by this court of his motion for new trial.
following evidence was presented to the jury at
February 15, 2008, Frederick Thompkinsâ landlord found
Thompkinsâ body in a pool of blood in Thompkinsâ living room.
The odor of decomposition was strong both inside and outside
the apartment. Thompkins had been dead for about a week. The
cause of death was blunt force to his head, resulting in
multiple lacerations and fractures of his skull.
found a large amount of blood in Thompkinsâ living room and
smaller amounts of blood in other rooms. There was no sign of
forced entry. Thompkins was lying on his back. The living
room was in disarray. Thompkinsâ jeans were unbuttoned,
unzipped and down. A blood-soaked bundle of cash was between
Thompkinsâ legs and loose cash was to the sides of his legs.
Altogether, there was about $500. Hairs were found in each of
Thompkinsâ hands and on the front of his shirt. DNA analysis
later showed that the hair in his right hand belonged to
April Monteiro, a close family friend and Thompkinsâ sometime
of eyeglasses with a fingerprint in blood on the left lens
and a missing right lens was partially under the living room
couch. The fingerprint was later determined to be that of
Thompkins. The right lens, by itself, was near Thompkins.
Shoeprints, made in blood were on the living room floor. The
soles of the shoes contained the word, "Vans."
sold marijuana and cocaine. The defendant was a friend as
well as a customer of Thompkins and bought both types of
drugs from him. Police found 95.22 grams of cocaine and drug
paraphernalia in a kitchen cabinet. A lock box that Thompkins
used to store drugs and cash was open and empty.
used a cell phone with the number, (508)316-6074. The phone
was not in the apartment. Records of the Sprint/Nextel
company for that cellphone were introduced at trial. The last
outgoing call from that phone occurred on February 8, 2008 at
4:56 P.M. That call lasted 40 seconds and was to a cellphone
with the number, (774)278-1267. Thompkinsâ phone had received
a call from that number, lasting 83 seconds, at 4:04 P.M.
records for Thompkinsâ cellphone also showed that up until
the last outgoing call at 4:56 P.M. the phone consistently
connected to the same cell phone tower in Fall River. After
the last outgoing call, the phone received several calls that
went to voice mail. During those calls, the phone connected
to other cell phone towers in Fall River. While receiving an
incoming voice mail at 5:56 P.M. the phone switched between
two cell towers, which could indicate that it was moving.
of Verizon Wireless for the phone registered as (774)278-1267
were also introduced. That phone was registered under the
name of the defendantâs fiancée, Priscilla Dias. There
was evidence that the defendant customarily used that phone.
Those records likewise showed calls connecting with
Thompkinsâ phone at 4:04 P.M. and 4:56 P.M. on February 8th.
In addition, the records showed calls at 5:37 P.M. and 6:02
P.M. to the 411 information system, which were then
transferred to (508)984-4062. That number was registered to
the Walmart Vision Center in Dartmouth.
of the Walmart Vision Center were introduced showing that the
defendant purchased eyeglasses there on June 13, 2007. Lori
Davignon, the manager of the Walmart Vision Center, testified
that the eyeglass frames found in Thompkinsâ apartment were
the same size and model purchased by the defendant. An
optician, Dr. Robert Dunn, examined the eyeglass lenses found
in Thompkinsâ apartment and testified that those lenses
matched the prescription of the lenses in the eyeglasses the
defendant purchased at Walmart.
investigated the shoeprints found in Thompkinsâ apartment.
They learned that the shoes that made the prints were
manufactured by the Vans Footwear Company. The model of the
shoe was known as the "MacGyver." The shoes that
left the prints were size thirteen.
March 5, 2008, police executed a search warrant at the
defendantâs home in Fall River. In the basement, inside a
cardboard box, police found a Vans shoebox, containing
various papers bearing the defendantâs name but no shoes. The
labels on the box indicated that the box contained a pair of
size thirteen Vans "MacGyver" shoes in charcoal and
executive of the Vans Footwear Company testified that the
labels on the box and company records indicated that the
shoes shipped in that box were sold to a shoe retailer named
"Shoe Show." The Shoe Show Company bought 181 pairs
of charcoal and white "MacGyver" shoes in size
thirteen. An executive from the Shoe Show Company testified
that their records also indicated that Shoe Show bought 181
pairs of charcoal and white "MacGyver" model shoes
in size thirteen from the Vans Company. Shoe Show records
documented that only two of those pairs were sold in
Massachusetts, both at Shoe Showâs retail store at a shopping
mall in Dartmouth. One pair was sold on January 26, 2007.
The other was sold on May 17, 2007.
defendant was interviewed by the police on February 16, 2008
and again on March 5, 2008. Those interviews were recorded
and portions of them were shown to the jury. During the
February 16th interview, the defendant told police that he
and Thompkins had plans to go snowmobiling on the weekend of
February 16-17, 2008. Thompkinsâ best friend, Eric Power,
testified that Thompkins had made plans to go mountain biking
with him and another friend, Frank Stanley, that weekend.
Thompkins had not mentioned any plan to go snowmobiling with
the defendant. During the March 5th interview, the defendant
told police that he had left his eyeglasses at Thompkinsâ
apartment and asked Thompkins to look for them. He also
denied having purchased Vans shoes within the last year and
denied knowing how he came to have the Vans shoebox for size
thirteen Vans MacGyver shoes.
30(b) of the Massachusetts Rules of Criminal Procedure
provides that, on motion of the defendant, the trial court
"may grant a new trial at any time if it appears that
justice may not have been done." The defendant contends
that justice was not done because he was denied the effective
assistance of counsel in violation of the Sixth and
Fourteenth Amendments to the United States Constitution and
Article 12 of the Massachusetts Declaration of Rights.
defendant argues that his trial counsel was ineffective in
failing to move to suppress:
(1) his optical records, which the Commonwealth obtained
through a grand jury subpoena;
(2) the defendantâs cell site location information
("CSLI"), which the Commonwealth obtained through
an order issued pursuant to G.L.c. 271, § 17B and 18
U.S.C. § 2703(d);
(3) and a shoebox and statements made by the defendant when
confronted with the shoebox, obtained by police as a result
of executing a search warrant at the defendantâs home, on
grounds that the warrant was issued based on the
Standard for Ineffective Assistance of Counsel
art. 12 of the Declaration of Rights of the Massachusetts
Constitution and the Sixth Amendment to the United States
Constitution guarantee a right to the effective assistance of
counsel. Strickland v. Washington, 466 U.S. 668
(1984). Commonwealth v. Hurley, 391 Mass. 76 (1984).
This right has been recognized as essential to the protection
of the fundamental right to a trial. Id. [The
Supreme Judicial Court has] held that the right to effective
assistance of counsel, afforded a defendant by art. 12,
âprovide[s] greater safeguards than the Bill of Rights of the
United States Constitution.â Commonwealth v. Hodge,
386 Mass. 165, 169 (1982). Thus, if the Massachusetts
standard for effective assistance of counsel is met, âthe
Federal test is necessarily met as well.â Commonwealth v.
Fuller, 394 Mass. 251, 256 n. 3 (1985)."
Commonwealth v. Lykus, 406 Mass. 135, 138-39 (1989).
defendant urges the court to apply the "more
favorable" standard of review applied by the Supreme
Judicial Court under G.L.c. 278, § 33E, Commonwealth
v. Facella, 478 Mass. 393, 409 (2017), rather than the
constitutional standard applicable to ineffective assistance
of counsel claims. Section 33E, however, applies only to
review by the Supreme Judicial Court. Therefore, this court
must apply the constitutional standard established by
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
See Commonwealth v. Salazar, 481 Mass. 105, n.6
(2018) (in cases of first-degree murder, trial court applies
Saferian standard while Supreme Judicial Court
applies Section 33E, which may lead to different outcomes).
a new trial motion is based on ineffective assistance of
counsel, the familiar standard used to analyze such a claim
is âwhether there has been serious incompetency,
inefficiency, or inattention of counsel-behavior of counsel
falling measurably below that which might be expected from an
ordinary fallible lawyer-and, if that is found, then,
typically, whether it has likely deprived the defendant of an
otherwise available, substantial ground of defence.â ... The
burden of proving entitlement to a new trial based on
ineffective assistance of counsel rests on the defendant ...
A defendant must show that better work might have
accomplished something material for the defense ... A
strategic or tactical decision by counsel will not be
considered ineffective assistance unless the decision was
âmanifestly unreasonableâ when made ... Further, mere
speculation, without more, is insufficient to establish
ineffective representation." Commonwealth v.
Watson, 455 Mass. 246, 256 (2009), quoting
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Defendantâs Optical Records
defendant argues that his trial counsel was ineffective in
failing to move to suppress the defendantâs optical records.
He contends that the Commonwealth obtained the records
unlawfully: (A) by use of a grand jury subpoena that
commanded production of the records for the purpose of police
investigation prior to grand jury proceedings; and (B) by the
use of a grand jury subpoena, rather than a search warrant.
Grand Jury Subpoena
Findings of Fact
court conducted an evidentiary hearing on the defendantâs
claim that the Commonwealth improperly issued a grand jury
subpoena for the defendantâs optical records. Four witnesses
testified: former assistant district attorney Garrett
Fregault,  who issued the grand jury subpoena;
Officer Richard Saraiva of the Fall River Police Department;
and Troopers David Coker and Robert Lima of the Massachusetts
State Police. Based on the credible evidence and inferences
drawn from such evidence, the court finds the following
March 5, 2008, the defendant appeared at the Fall River
Police Department to give his second interview in the
investigation of the killing of Frederick Thompkins. The
interview was conducted by State Police Trooper Robert Lima
and Fall River Detective Richard Saraiva. The interview began
at 11:07 A.M. An audio-visual recording was made of the
interview. The interview was visible as it occurred on a
video screen in another room in the police station, where it
was monitored by other investigators as well as assistant
district attorneys Patrick Bomberg and Garrett Fregault.
about ten minutes of the start of the interview, the
defendant was asked what he discussed when he called
Thompkins on February 8, 2008. The defendant said that they
may have talked about a trip to New Hampshire and he may have
asked Thompkins if he found his glasses in Thompkinsâ
apartment. The defendant explained that he thought he had
left his glasses at Thompkinsâ apartment and had asked
Thompkins earlier in the week to look for them. He said that
a lens kept popping out of the glasses because they were
broken. Until the defendant made these statements, the
investigators and prosecutors assumed that the glasses found
in the apartment belonged to Thompkins. The defendantâs
statement caused the investigators to think the glasses might
belong to the defendant.
11:30 A.M., as the interview of the defendant continued, Lt.
Robert Horman sent State Trooper David Coker and Fall River
Det. Thomas Chace to Walmart Vision Center in Dartmouth to
obtain the defendantâs optical records. They met with a
Walmart employee who advised them that the records could not
be released without either a subpoena or a search warrant.
Trooper Coker informed his superiors of Walmartâs response.
Assistant District Attorney Fregault prepared a grand jury
subpoena in the following form:
COMMONWEALTH OF MASSACHUSETTS
TO: WAL-MART Vision Center
ATTN: Keeper of Records
506 State Road
You are hereby Commanded in the name of the Commonwealth, to
appear before the Bristol County Grand Jury, now holden at
Fall River, 289 Rock Street, within and for the County of
Bristol on the 5th day of March at 3 oâclock, and from day to
day, thereafter, until the action hereinafter named by said
Grand Jury, to give evidence of what you know relating to:
IN RE: A GRAND JURY INVESTIGATION (FT)
You are further commanded to bring with you the following
documents: ANY AND ALL DOCUMENTS, INCLUDING, BUT NOT LIMITED
TO EYEGLASS PRESCRIPTIONS, RELATING TO RENE GOSSELIN (DOB:
07/02/1981), AND LOG OF ALL CALLS RECEIVED ON FEBRUARY 8,
COMPLIANCE: You may comply with this Subpoena by
providing copies of all responsive documents to Massachusetts
State Police Trooper David Coker (ID #3092) at the time you
are served with subpoena. Providing the documents to Trooper
Coker will eliminate the need for you to appear before the
Grand Jury on March 5, 2008.
WHEREOF FAIL NOT, as you will answer your default under the
pains and penalties in the law in the behalf made and
DATED at FALL RIVER, March 5th in the year of our
Lord Two Thousand and Eight.
s/Garrett R. Fregault
Garrett R. Fregault
Assistant District ...