Judge: SJC-12685,
Commonwealth versus Christopher S. Fratantonio.
Attorney Reardon, whenever you're ready.
-: Good morning, I think still, Your Honors.
Attorney Ted Reardon for the defendant,
Christopher Fratantonio.
Your Honors, the facts and law of this case,
the facts and law of the heat of passion
on reasonable provocation defense
applied to this case, and trial counsel
was ineffective in failing to argue that.
The Fratantonios were married 10 years
before this homicide, and they had a rocky marriage.
During that time, there was much talk of divorce,
and according to the Commonwealth, divorce was inevitable.
But what the jury did not hear was that
there was lots of talk about trying to reconcile.
And on pages 28 to 34 of my brief,
I've summarized the reconciliation evidence,
which includes that during the time
leading up to the homicide,
the Fratantonios were having unprotected sex,
and she said that she would have the child
if she got pregnant.
There's abundant evidence that she was constantly
telling the defendant that she loved him,
and that he was the world to her.
In the week before the homicide,
she went to New York City,
and she was texting him pictures,
and telling him how much she missed him, and loved him,
and couldn't wait to get back to him.
At one point, again, there was tension,
and so Mr. Fratantonios said to her,
"Are you sure we're not getting divorced?
"This is just gonna be a separation between us."
And she said, "That's correct."
This is some of the evidence that led this defendant
to believe that his wife loved him,
and that notwithstanding their issues,
they were genuinely trying to reconcile.
Advance to the night of the homicide.
Now Mr. Fratantonios is reading her texts,
and he realizes how she truly feels about him.
She doesn't love him.
She regrets marrying him.
She had long wanted to divorce him,
and she had no respect for him at all.
She had every intention of divorcing.
-: What do you do about the cool-down period
between the time he goes up with a knife,
and goes outside, and calls people?
I mean, wasn't there some cool-down period
before the killing?
-: Yeah, so the motion judge refers to this
as being a four-hour period,
but I don't think that that is necessarily
supported by the evidence.
In this case, Molly's last text to the defendant
was at 10:16 at night,
and before that, she had been furiously texting,
and she stopped right at 10:16.
That's about an hour and three-quarters
after the defendant first learned of her messages.
And there's- -: Wait, can you clarify that?
What time do you say is when he got the phone
and looked at the messages?
-: So the texts in his texts show
that he forwarded screenshots of her phone
to his phone at 8:36 in the evening.
And then there was a lot of texting.
-: And the killing took place,
I think it was after midnight, right?
Closer to one?
When did the murder actually take place?
-: We don't know for sure, but that's my point,
is that up until 10:16,
Molly had been furiously texting with the defendant.
And the inference to be drawn is that
when she stopped texting, that's when she was murdered.
Judge: So the best case for you is how much time?
-: An hour and three-quarters.
Yeah, the time after midnight has been an issue
because at that point after midnight,
the defendant texted his friend, Horn,
that just texted 911.
Didn't say, you know, the murder just happened,
or I just killed her, or anything like that.
So the fair inference is that it
was an hour and three-quarters
when she stopped texting. -: There's a timestamp
on the photo he took of her?
-: There is a timestamp,
but that doesn't necessarily mean that he actually-
-: What was the timestamp?
-: I wanna say it was around one o'clock in the morning,
but he took that after he talked with Horn,
and Horn did not believe that
he had committed the homicide,
so he went and took a picture to prove it to her.
So it went out. -: Now, the judge said,
the judge gave the heat of passion instruction,
as he said, in the abundance of caution.
-: Yes.
-: So this argument centers around
counsel's strategic choice
to either do diminished capacity or heat of passion,
and he focused on diminished capacity, correct?
-: She, yes. -: I'm sorry.
So given, as the chief first asked you,
of the time to cool down of an hour and 45 minutes,
wasn't that a reasonable tactical decision
to focus solely on diminished capacity,
given the expert testimony?
-: Well, as far as the expert, he wrote a report,
and the very first issue that he-
-: Well, he, I'm sorry, I should,
we'll get into the expert in a second.
I didn't wanna confuse, but given that time lapse,
in the cool down period,
how is it ineffective to focus on diminished capacity,
given the weakness of the heat of passion instruction
of defense?
-: Well, there was a finding that the two defenses
are not inconsistent, they're not antagonistic,
so they could have both been pursued
without either one denigrating the other.
-: There's the old story about riding two horses.
Reardon: I'm sorry?
-: There's the old expression about a defense attorney
trying to ride two horses at the same time.
It's not ineffective to focus on the stronger defense.
-: Well, I don't know that it is the stronger defense,
especially whereas what happened at trial
when the doctor was testifying.
Trial counsel had sent him a list of questions
that he was going to be asked,
and then added one at trial
that he was completely unprepared for
as he testified at the motion for new trial.
He was asked, "Oh, did the defendant have the intent
"to grievously harm the victim in this case?"
And he said, unquestioningly, "Yes."
And then the DA gets up there and asks the same questions,
and again, he says, "Yes."
At that point, there was nothing left of the defense
that had been presented at trial,
and it could only be salvaged
by adopting the heat of passion defense.
-: But if the intent is to grievously harm, right,
that's third-pronged malice, correct?
Reardon: Yes.
-: That still eliminates first degree?
-: Well, as to, yes, so I asked a trial counsel about that,
and she, at the motion of hearing,
and she talked about how it would,
the deliberate premeditation would be negated,
but not the extreme atrocity and cruelty argument.
-: What was the opinion regarding
the atrocity and cruelty at trial?
-: What was the- -: Was there an opinion given
regarding atrocity and cruelty at trial?
-: That, I don't think he was asked that question, no.
-: Okay. -: No, no.
So, as far as it being a defense to this case,
this defendant was of the mindset
that his wife wanted to reconcile.
That's what she was telling him.
That's what she was saying is that she loved him.
And then, he finds himself in a situation
of finding out not just that was she lying about that now,
but their entire, he testified at the motion
for new trial hearing, that when he saw this,
he said he felt like his entire marriage had been a lie.
And it's that kind of shock,
of finding out when she's, you know,
when they have this 10-year relationship,
of finding out it was all a lie.
That was reasonable provocation.
Judge: How is that consistent with prior comments
that he's gonna kill her?
-: Well, as to that issue, Your Honor,
I would cite to the Schnaps case.
In the Schnaps case, in that case,
the defendant had taken out a shotgun
in a prior argument with his wife.
He had threatened his wife with physical harm
on more than one occasion.
And he had purchased and loaded a pistol
the day before the homicide.
And notwithstanding those factors,
this court remanded it, saying that the jury
should have been charged on reasonable provocation.
-: But there's the problem, though.
They were charged on it.
This is an ineffective assistance claim
versus a failure to instruct.
-: Yes, but- -: And given Ronke,
I don't know how strong your,
I think your position gets weaker,
but you got the instruction anyway.
-: Yes, but
there was an instruction,
but defense counsel didn't do anything with it.
She ignored it.
So the fact that it was given doesn't matter,
because there was no argument made about it.
As far as the Schnaps case, I understand the Ronke case,
how it affects a claim of a revelation of infidelity,
is no longer provocation.
But I'm not citing the case for that proposition,
the Schnaps case.
What I'm citing it for is that with regard,
you raised the issue about his statements to other people
about intending to hurt and all that.
It's very analogous to Schnaps,
that notwithstanding that he went out
and bought a gun in Schnaps the day before and loaded it,
the court still found that the jury could have found
that there was heat of passion,
notwithstanding those factors.
And so even though the jury was charged in this case
where defense counsel didn't do anything with it,
it really was of no effect.
-: What's your best case for the proposition
that provocation, the requirement of provocation
can be met by
basically going out,
getting someone's phone and then reading surreptitiously
and reading the phone messages on there?
What's the closest case on those facts?
Have we ever found anything like that
to constitute provocation?
-: Not literally on those physical facts, but-
Judge: So what would be the closest on the facts?
-: The closest on the facts,
well, it's the sudden knowledge of knowing that-
-: But if you go to investigate something
and then you find what it is that you're looking for,
have we ever said that can be the basis for provocation
for the heat of passion defense?
-: Well, the reason why he,
it wasn't like he had a general inquiry.
It was his daughter who mentioned him about his mother,
her mother, saying that he was going to leave by Wednesday.
That's what prompted him to look at the phone.
It wasn't like on his own he was looking for this.
-: Okay, but he decided to go then
basically conduct an investigation.
He sent their daughter up to the bedroom
to get the phone surreptitiously,
and he used the password to get into the phone,
and then he discovered something he didn't want to hear.
-: Yes.
-: Okay, I'm just asking for a case
where something similar to that set of facts
has been determined to be provocation
sufficient to support a heat of passion defense.
-: Factually, I don't know of another case
that's similar to that, but as far as the case law,
the standard being suddenly learning about something
and being provoked, I mean, the case law,
Raunchy itself says that.
-: Yeah, but the sudden information is usually
you hear of, "I've got a gun,"
or you hear of some type of,
and Rocky collects all those cases and talks about it,
and what we didn't exclude in Rocky
was, other than the oral revelation,
receipt of information in a different manner.
And here, I think the argument is
the receipt of information wasn't oral.
It was written, whether or not a text is oral
is a different issue.
But we still go back to other cases
where we have a viable instructed defense
and a defense attorney focuses on another one,
and we say it's ineffective.
Excuse me.
-: I'm sure there is,
but I don't have a citation for that right now.
Judge: Okay, we'll look.
-: As far as, I don't think Raunchy
did involve an oral communication,
but it also talks more generally about information
that causes a reasonable person to lose self-control.
So I, the facts in that case were oral,
but I don't think-
-: But it was also split second.
That's the problem with this case,
is it was, he's not your kid anyway,
and then the murder happens.
Here, it's, I read about infidelity,
an hour and a half goes by,
and then the murder, or an hour and three quarters goes by.
That's the problem with this case.
-: Well, I think that's why it should be argued
to the jury, and let the jury decide.
It's, you know, it wasn't argued to the jury.
The jury was instructed, but there was no argument made.
I touched on this earlier,
but again, the second major issue
is the failure to prepare the doctor.
The doctor testified at the motion for new trial hearing
that had he been properly prepared for this question,
he would have answered along the idea
of his third answer, which was,
so twice he says yes, the defendant had the intent,
and then the DA asks him again,
and the doctor testifies, well,
I wouldn't say it was intent,
it was more emotional and reflexive based on distress,
and I would suggest to you,
by the jury having heard two times before that,
including by the defense counsel on direct examination,
that they had heard convincing evidence
that this guy was testifying basically
as an expert for the commonwealth.
His testimony, his third answer,
in no way, he didn't explain why he was changing his answer
from yes, unquestionably, to now he's saying,
well, you know, it was more emotional.
He didn't explain why he was changing his answer.
So the motion for new trial judge said
that that third answer saved
and negated the first two answers,
but I don't think it does where the expert
doesn't explain to the jury why he was changing his answer.
And again, I'm sure the jury was sitting there
having heard the expert testify twice
that the defendant had the intent.
-: And I should know this, but please let me know,
with respect to that disputed testimony,
that unprepared testimony,
was that highlighted by the prosecutor
in the prosecutor's closing argument
and/or rehabilitated by the defense attorney
in the defense attorney's closing argument?
-: No, it was not.
No, it was not as to the defense attorney.
I believe the DA did seize upon that,
and why wouldn't he?
I mean, it was such a significant testimony.
If your honors have no further questions.
-: Okay, thank you. -: Thank you.
Judge: Okay, Attorney Moriarty.
-: Good afternoon, may it please the court,
Marina Moriarty on behalf of the Commonwealth.
The defendant's sole issue on appeal
is whether he received ineffective assistance of counsel.
However, after a full evidentiary hearing
and significant briefing,
the motion judge properly concluded
that trial counsel was not ineffective.
It is the Commonwealth's first position
that trial counsel was not ineffective
in failing to argue a legally unavailable
heat of passion defense.
This set of facts fails the heat of passion test
on every element.
With respect to the timing,
the motion judge found that it was approximately four hours
between the defendant's discovery of the texts
and the time of the killing.
I would suggest that that is not clearly erroneous,
and in fact, the timing is probably closer to six hours.
We have the text messages,
which are in volume five of the appendix,
which are the defendant's screenshotting
his wife's cell phone to his cell phone.
Those screenshots start at approximately 8.36.
The defendant's statement then says
that he goes upstairs to give the phone back to his wife.
He walks upstairs, has a conversation,
returns the phone, and then walks back downstairs.
-: Did the judge make any findings
with respect to the heat of passion instruction
when the judge gave the charge?
-: I think he just said- -: Or deny the Commonwealth's
request, or allow the defense request?
-: I think he just said that,
the motion judge just said that the trial judge
gave it out of a quote-unquote abundance of caution.
Judge: But do you know what the transcript says?
-: I'm sorry?
Judge: Do you know what the transcript says?
-: At the trial. -: At trial.
-: Yes, that is in fact what the judge said.
Judge: That was Judge Nickerson, right?
-: Yes. -: Okay.
-: He had significant questions about whether it applied,
and again, I think he gave it out,
sua sponte, out of an abundance of caution.
Judge: Okay.
-: After walking upstairs, walks downstairs,
the two continue to text by the defendant's own statements
for two hours, and that's corroborated
by the text messages back and forth,
again, by the defendant's own statement.
This is the opposite of heat of passion.
Then he goes on to ruminate about these text messages
for an additional period of time.
Then he picks up a knife.
He walks outside.
He smokes a cigarette.
He calls someone.
At some point in time, he puts down the knife.
Before finally deciding to pick up the knife,
walk up the stairs, and stab his wife 33 or 34 times
as she's laying in bed with her small child.
You are, this is not a, with respect to the timing,
a reasonable person would have cooled off
after four hours.
Judge: So what was the defense then?
-: The defense was diminished capacity.
The defense attorney adhered to the defendant's objective,
which was to get a conviction on voluntary manslaughter,
and that was her obligation,
but she was not forced to go by heat of passion.
She was, we defer to the defense attorney's
strategic judgment that, in this case,
focusing on diminished capacity,
which would have, if it had been successful,
dropped the charges down to a voluntary manslaughter
because the defendant would not have been capable
of forming malice necessary for first
or second degree murder.
-: What about the concession about grievous bodily harm?
-: As the motion judge found, it wasn't the answer.
The answer did not necessarily advance
the defendant's case.
However, when viewed as a whole,
the answer put in context,
both in, if you read the entire direct
and then you read the cross,
the expert was very clear in his opinion
that this defendant was acting out of a primitive urge,
and so that would have negated an intent
to commit murder, intent to kill,
or intent to commit grievous bodily injury.
I don't think I have ever seen a case
where one particular question of an expert,
in and of itself, was ineffective assistance.
This attorney strategically decided to focus
on diminished capacity rather than heat of passion
because it was a much more clinical defense.
It was based on objective science,
that this defendant had some sort of mental diagnosis,
was suffering from potentially withdrawal
from mental health defects,
and didn't have to go through the truly gruesome facts.
-: This is based upon, what was the diagnosis of anxiety,
PTSD, and some TBI?
-: In addition to dependent personality disorder,
and he was prescribed various drugs at various times,
and so she summons an expert.
She summons medical records.
She summons, and I think it's also worthwhile
pointing out that this defendant indicated
to her multiple times that he did not want to testify,
which I think makes any heat of passion defense,
even under the best factual scenario, much more difficult.
So this defense attorney, in her judgment,
instead of potentially disparaging the victim in this case,
which she said she did not want to do,
which she said it was going to be a difficult case to try,
she had to try to keep the jury.
So instead, she focused on objectively credible
expert testimony and clinical facts.
-: But that was error, right?
To fail to go through all the testimony ahead of time
with the expert?
-: I don't, she specifically said that
she asked that question
because she knew that the defense,
that the prosecution would ask that question.
She prepped this witness, Your Honor.
She indicated she met with him.
The fact that he had a different understanding
of what heat of passion defense was,
as opposed to an actual lawyer,
I think that's her judgment, not his.
But I think one particular question, in and of itself,
is not ineffective assistance.
Judge: So what did the motion judge find
as far as trial prep goes with the expert witness?
-: She found that, he found that the,
I don't know if he made any specific findings
with respect to trial prep, but I-
-: And what was the, what was the testimony?
-: That she had met with him,
that he thought it was a heat of passion case,
she disagreed, that they met,
that they discussed questions,
and that she sent him an outline of questions.
Judge: Which did not include this particular question.
-: Correct.
Again, better practice, ask it all your questions out.
But I think in this case,
when viewing the record in its entirety,
this one particular question in context
certainly is not ineffective
because he's, the answer to the question ultimately
is that he was acting in a primitive,
in a primitive reactive way,
which, if the jury had credited the expert's testimony,
whether it be on direct or on cross,
would have negated an element of murder.
If the panel has no further questions,
Kamala's happy to rest on its brief.
Judge: Okay.