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Commonwealth v. Gosselin

Superior Court of Massachusetts, Bristol

January 10, 2019

Rene Gosselin

          Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): McGuire, Thomas F., J.


          Thomas F. McGuire, Jr. Justice of the Superior Court

         On May 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 defendant’s direct appeal to the Supreme Judicial Court has been stayed pending review by this court of his motion for new trial.


         The following evidence was presented to the jury at trial.[1]

         On February 15, 2008, Frederick Thompkins’ landlord found Thompkins’ body in a pool of blood in Thompkins’ 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.

         Police found a large amount of blood in Thompkins’ 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. Thompkins’ jeans were unbuttoned, unzipped and down. A blood-soaked bundle of cash was between Thompkins’ legs and loose cash was to the sides of his legs. Altogether, there was about $500. Hairs were found in each of Thompkins’ 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 Thompkins’ sometime lover.

         A pair 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."

         Thompkins 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.

         Thompkins 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. Thompkins’ phone had received a call from that number, lasting 83 seconds, at 4:04 P.M. that day.

         Sprint records for Thompkins’ 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.

         Records of Verizon Wireless for the phone registered as (774)278-1267 were also introduced. That phone was registered under the name of the defendant’s fiancée, Priscilla Dias. There was evidence that the defendant customarily used that phone. Those records likewise showed calls connecting with Thompkins’ 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.

         Records 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 Thompkins’ apartment were the same size and model purchased by the defendant. An optician, Dr. Robert Dunn, examined the eyeglass lenses found in Thompkins’ apartment and testified that those lenses matched the prescription of the lenses in the eyeglasses the defendant purchased at Walmart.

         Police investigated the shoeprints found in Thompkins’ 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.

         On March 5, 2008, police executed a search warrant at the defendant’s home in Fall River. In the basement, inside a cardboard box, police found a Vans shoebox, containing various papers bearing the defendant’s 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 white.

         An 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 Show’s retail store at a shopping mall in Dartmouth.[2] One pair was sold on January 26, 2007. The other was sold on May 17, 2007.

         The 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. Thompkins’ 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 Thompkins’ 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.


         Rule 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.

         The 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 defendant’s 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 defendant’s home, on grounds that the warrant was issued based on the improperly-obtained CSLI.[3]

         I. Standard for Ineffective Assistance of Counsel

         "Both 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, ‘provide[s] greater safeguards than the Bill of Rights of the United States Constitution.’ Commonwealth v. Hodge, 386 Mass. 165, 169 (1982). Thus, if the Massachusetts standard for effective assistance of counsel is met, ‘the Federal test is necessarily met as well.’ Commonwealth v. Fuller, 394 Mass. 251, 256 n. 3 (1985)." Commonwealth v. Lykus, 406 Mass. 135, 138-39 (1989).

         The 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.[4] 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).

         "Where a new trial motion is based on ineffective assistance of counsel, the familiar standard used to analyze such a claim is ‘whether 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.’ ... 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 ‘manifestly unreasonable’ 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).

         II. Defendant’s Optical Records

         The defendant argues that his trial counsel was ineffective in failing to move to suppress the defendant’s 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.

         A. Grand Jury Subpoena

         1) Findings of Fact

         The court conducted an evidentiary hearing on the defendant’s claim that the Commonwealth improperly issued a grand jury subpoena for the defendant’s optical records. Four witnesses testified: former assistant district attorney Garrett Fregault, [5] 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 facts.

         On 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.

         Within 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 Thompkins’ apartment. The defendant explained that he thought he had left his glasses at Thompkins’ 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 defendant’s statement caused the investigators to think the glasses might belong to the defendant.

         About 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 defendant’s optical records.[6] 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 Walmart’s response. Assistant District Attorney Fregault prepared a grand jury subpoena in the following form:



TO: WAL-MART Vision Center
ATTN: Keeper of Records
506 State Road
Dartmouth, Massachusetts
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 o’clock, and from day to day, thereafter, until the action hereinafter named by said Grand Jury, to give evidence of what you know relating to:


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 provided.
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 ...

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