Opinion
20-P-877
06-04-2021
Joseph FRAGATA v. COMMONWEALTH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Joseph Fragata, appeals from the dismissal of his complaint seeking monetary damages for wrongful conviction. See G. L. c. 258D, § 1. He contends the motion judge erroneously allowed the Commonwealth's motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), because the ground on which his conviction was reversed tended to establish innocence. See Commonwealth v. Fragata, 480 Mass. 121 (2018). We affirm.
Background. Fragata was indicted on charges of intimidating a witness, strangulation or suffocation, assault and battery by means of a dangerous weapon, kidnapping, and assault and battery on a family or household member. Following a jury trial, he was convicted of intimidating a witness in violation of G. L. c. 268, § 13B, and acquitted of the other charges.
Fragata served 624 1/2 days of his two-year sentence.
The salient facts presented by the Commonwealth, as summarized by the Supreme Judicial Court, are as follows. In December 2015, Fragata and his former romantic partner had an argument. Fragata screamed at her and called her "nasty names." She told him she would call 911, and he took her cell phone. She said she was going to call 911 and ran to the door to leave. He grabbed her by the arms, bruising them, and pushed her aside. After she sat on the couch, Fragata took her by the throat, choked her, and hit her head against the wall. He told her she could not leave. Half an hour or more after the attack she regained her cell phone and contacted emergency services. See Fragata, 480 Mass. at 123.
The Supreme Judicial Court reversed the judgment and set aside the conviction on the ground that there was insufficient evidence to support a conviction of witness intimidation on the factual theory argued to the jury by the prosecutor. Fragata, 480 Mass. at 127. The Supreme Judicial Court also held, however, that the jury had before it evidence sufficient to support a conviction on any one of three additional theories, none of which the prosecutor had argued. Accordingly, because the Supreme Judicial Court had "no way of knowing whether the jury's verdict was based on [the permissible alternatives] or on the defendant's isolated act of taking the victim's cellular telephone, as the prosecutor argued," the Supreme Judicial Court could not "affirm the defendant's conviction." Id. at 129.
After remand, the defendant was not retried; the alleged victim had died in the intervening years. In 2019, the defendant filed this action in the Superior Court, seeking damages under G. L. c. 258D. The Commonwealth responded with a motion to dismiss the complaint under Mass. R. Civ. P. 12 (b). After a hearing, the judge allowed the Commonwealth's motion.
Discussion. "We review the allowance of a motion to dismiss de novo, accepting as true all factual allegations in the complaint and favorable inferences drawn therefrom." Lipsitt v. Plaud, 466 Mass. 240, 241 (2013). Fragata contends that the motion judge erred in concluding the complaint failed to state a claim for relief because Fragata was within the class of persons eligible for relief pursuant to G. L. c. 258D, § 1 (B ).
The wrongful conviction statute, G. L. c. 258D, is a limited waiver of sovereign immunity that permits eligible persons to file a claim for monetary damages against the Commonwealth. See Guzman v. Commonwealth, 458 Mass. 354, 356 (2010). To proceed on such a claim, the plaintiff must establish that he meets the threshold eligibility requirements of the statute. See G. L. c. 258D, § 1 (B ). Central among these, and as is applicable here, the plaintiff must show that he falls into the class of persons "who have been granted judicial relief ... on grounds which tend to establish ... innocence." G. L. c. 258D, § 1 (B ) (ii). This statutory language is "properly understood to mean judicial relief on grounds resting upon facts and circumstances probative of the proposition that the claimant did not commit the crime" (quotation omitted). Guzman, supra at 362. The plaintiff need not prove actual innocence or demonstrate overwhelming evidence of innocence at this early stage, but "the relief granted must be on grounds tending to do more than merely assist the defendant's chances of acquittal." Id. at 360. See Riley v. Commonwealth, 82 Mass. App. Ct. 209, 216 (2012).
In Fragata, supra, the Supreme Judicial Court concluded that the Commonwealth presented insufficient evidence that the plaintiff was guilty of intimidating a witness "at the moment when the defendant took the victim's cellular telephone," because at that moment there was no evidence that "a possible criminal violation had occurred." 480 Mass. at 128. However, the Commonwealth did present sufficient evidence to convict Fragata of intimidating a witness on three other theories, any one of which would have tended to show that "the [alleged] victim had knowledge of a possible criminal violation, ... and therefore became a ‘potential witness at any stage of a criminal investigation.’ " Id. at 129, quoting G. L. c. 268, § 13B (1) (c ).
"The prosecutor could have argued that, once the defendant grabbed the victim's arms and pushed her away as she attempted to leave the apartment, the victim had knowledge of a possible criminal violation, such as assault or assault and battery, and therefore became a ‘potential witness at any stage of a criminal investigation.’ See G. L. c. 268, § 13B (1) (c ). The prosecutor could also have argued that, by choking the victim, banging her head against the wall, and preventing her from leaving the apartment, the defendant ‘attempt[ed] or cause[d] physical injury’ to the victim or ‘intimidate[d]’ her within the meaning of the statute. See G. L. c. 268, § 13B (1) (a ), (c ). And finally, given the victim's testimony that she had told the defendant she wanted to leave to call 911, that he begged her not to do so, and that he said he was not going to let her leave, the prosecutor could have argued that the defendant attempted or caused physical injury to the victim or intimidated her to prevent her from contacting the police, i.e., with the intent to interfere with a criminal investigation. See G. L. c. 268, § 13B (1) (c ) (v)." Fragata, 480 Mass. at 128-129.
The reversal of Fragata's conviction on this basis was not " ‘on grounds which tend to establish ... innocence’ under G. L. c. 258D, § 1 (B ) (ii)." Renaud v. Commonwealth, 471 Mass. 315, 319 (2015). See Santana v. Commonwealth, 90 Mass. App. Ct. 372, 375-376 (2016) (where it was unclear on what theory of guilt the jury relied in convicting defendant, reversal of conviction due to erroneous jury instructions did not tend to establish defendant's innocence). Guzman, 458 Mass. at 365, and Drumgold v. Commonwealth, 458 Mass. 367, 378 (2010), upon which Fragata relies, are distinguishable in that the reversal of the convictions in those cases was predicated on the failure to proffer (Guzman ) or disclose (Drumgold ) identification evidence that tended to show the defendant did not commit the crime. This case is more akin to Peterson v. Commonwealth, 478 Mass. 434, 439-440 (2017), and Irwin v. Commonwealth, 465 Mass. 834, 854-855 (2013), cases in which trial errors warranted a new trial, but the improper evidence or argument was not probative of whether the defendant was innocent of the crime.
Misidentification is, of course, not the only ground that tends to establish actual innocence, see Guzman, 458 Mass. at 365, but it is a salient example.
The decision in Fragata established that one of the Commonwealth's theories of guilt was not viable, but it neither foreclosed nor weakened the Commonwealth's other routes to conviction; in effect, the "court's ruling only made it more difficult for the Commonwealth to prove that [the defendant] did commit the crimes." Riley, 82 Mass. App. Ct. at 216. Three other wholly viable means of proving guilt of witness intimidation remained, and nothing in Fragata tends to demonstrate innocence of the charge under those theories. Accordingly, Fragata was not "granted judicial relief ... on grounds which tend to establish [his] innocence." G. L. c. 258D, § 1 (B ) (ii). The motion judge did not err in allowing the Commonwealth's motion to dismiss.
For this reason, the present case is also distinguishable from Renaud, supra, in which the only evidence linking the defendant to any of the crimes charged was a ripped and taped electronic bank transfer (EBT) card found at the site of a break-in. We held that the evidence was insufficient because the EBT card was the only evidence linking the defendant to the home and there was no evidence that the defendant was in possession of the card in the home during the commission of the crime. 471 Mass. at 319. Here the evidence of the offense was only insufficient in part, and the remaining evidence was not probative of innocence of the crime charged.
Judgment affirmed.