Com. v. Morales

• Decision Date: 09 January 2009
• Docket Number: SJC-09809
• Citation: 453 Mass. 40,899 N.E.2d 96
• Parties: COMMONWEALTH v. Porforio MORALES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

899 N.E.2d 96

453 Mass. 40

COMMONWEALTH v. Porforio MORALES.

SJC-09809

Supreme Judicial Court of Massachusetts, Hampden.

Argued December 5, 2008.

Decided January 9, 2009.

Stephen Neyman, Westford, for the defendant.

Jane Davidson Montori, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, & CORDY, JJ.

SPINA, J.

The defendant was convicted of the deliberately premeditated murder of Daylan Shepard, the assault by means of a dangerous weapon of Travis Brown, the armed assault with intent to murder Travis Brown, and unlawful possession of a firearm. Represented by first appellate counsel, he filed a motion for a new trial, alleging ineffective assistance of counsel, which was denied. Represented by second (present) appellate counsel, he filed a second motion for a new trial, alleging ineffective assistance of counsel, which also was denied. He appealed from the denial of each motion for a new trial, and those appeals have been consolidated with his direct appeal, which alleges error in the failure to give a missing witness instruction, error in the form of the indictment, and improprieties in the prosecutor's closing argument. We now affirm the convictions and the denial of both motions for a new trial, and we decline to exercise our authority under G.L. c. 278, § 33E.

1. Background. The jury could have found the following facts. On July 4, 2004, Patrick Bullard was shot and killed. He was a member of the Eastern Avenue gang in Springfield. Tameka Patterson, a daughter of the defendant's girl friend, Sheila Brady, was shot in the face during the same incident. A friend of Patterson recognized the shooters as members of a rival gang known as the Gunn Square gang. Patterson, her mother, and the defendant lived together, and the defendant talked of seeking revenge for Patterson's shooting.

On the evening of July 10, 2004, Marquis Nixon was at the home of the defendant and Sheila Brady. While outside on the porch, the defendant asked Nixon for a ride to a store. Nixon, who had plans to go to a party, reluctantly agreed after the defendant said it would be "quick." The defendant went inside, obtained a gun, and placed it in his waistband. Leo White, who was in the house, saw this and followed the defendant outside. The three men entered Nixon's car. Nixon drove, the defendant sat in the front passenger seat, and White sat behind the defendant. They proceeded toward Gunn Square, near the corner of Northampton Avenue and Beverly Street. The defendant told Nixon to pull over, park past the corner of Northampton Avenue and Beverly Street, and turn off his headlights. He left the engine running. The defendant and White got out of the car and walked toward a store at the corner of Beverly Street and Wilbraham Avenue.

In the meantime, nineteen year old Daylan Shepard and seventeen year old Travis Brown had been visiting a friend at his home on Massachusetts Avenue in Springfield. At approximately 11 P.M. Shepard and Brown walked to the same store at the corner of Beverly Street and Wilbraham Avenue where the defendant and White were headed. After buying some snacks they began to walk back. Brown saw two men standing at the far end of Beverly Street, but he could not make out their features because it was too dark. The two men he saw were the defendant and Leo White. When the defendant saw the two boys emerge from the corner store, he asked White if they were "the kids that shot" Bullard and Tameka Patterson the week before. White could not identify the two boys, and so told the defendant. The defendant nevertheless pulled out his gun and started shooting at the boys, who were at least twenty feet away.

Brown saw a flash and heard a shot coming from the direction of the two men. He and Shepard turned and ran. Brown then heard about six more shots. As they ran through some backyards Shepard said he had been shot. He collapsed behind a house on Northampton Avenue. Brown knocked on the back door of the house to try to get help, but no one answered. He then ran back to his friend's house and telephoned 911. Brown returned to the scene, where he saw Shepard being placed in an ambulance. Shepard died from a single gunshot wound to his left lower back.

Meanwhile White and the defendant had run back to the car where Nixon was waiting. Nixon had heard the shots. When the defendant was inside the car, he said, "We got 'em." Nixon asked, "Who?" White replied, "The people that shot Pat." Nixon drove the two men back to the defendant's house.

Police recovered nine spent shell casings in front of 7 and 9 Beverly Street, about sixty feet from its intersection with Wilbraham Avenue. The casings were all within about two and one-half feet of each other. Several projectiles were recovered from inside a building on Wilbraham Avenue, across from Beverly Street and the corner store. A projectile was found in a truck parked in front of the corner store, and projectile fragments were found in front of the store. In mid-July the defendant sold a nine millimeter semiautomatic handgun to George Lovejoy. Lovejoy's cousin, Bridget Morris, was present during the sale. She kept the gun at her house in Springfield, and turned it over to Springfield police on October 27, 2004.

A State police ballistics expert determined that all the recovered shell casings had been fired by the nine millimeter handgun recovered from Morris. He further determined that four spent projectiles that had been recovered were intact and could be compared to a projectile test-fired from the nine millimeter handgun. One was found outside the building on Wilbraham Avenue; one was found inside the same building; one was inside the truck parked in front of the corner store; and the fourth was recovered from Shepard's body at autopsy. The ballistician determined that all four projectiles had been fired from the nine millimeter handgun turned in by Morris.

Nixon and White testified at trial pursuant to written cooperation agreements. Nixon had been arrested on July 20, 2004, and indicted for illegal possession of a firearm unrelated to the July 10, 2004, shooting. At that time he gave a statement about the Shepard murder; he was not charged with Shepard's murder. White also was arrested on a charge of illegal possession of a firearm, in which Nixon was involved. White had been charged with the murder of Shepard and the assault with intent to murder Brown. Initially he told police that Nixon and the defendant had gotten out of the car, rather than the defendant and himself.

2. First motion for a new trial. The defendant argues that trial counsel deprived him of the effective assistance of counsel in two respects, failure to present an alibi defense and failure to challenge a juror who may have been sleeping.

Claims of ineffective assistance of counsel in noncapital cases are reviewed "to see 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." Commonwealth v. Satterfield, 373 Mass. 109, 115 n. 10, 364 N.E.2d 1260 (1977), quoting Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). A strategic decision amounts to ineffective assistance "only if it was manifestly unreasonable when made." Commonwealth v. Martin, 427 Mass. 816, 822, 696 N.E.2d 904 (1998). See Commonwealth v. Adams, 374 Mass. 722, 728-729, 375 N.E.2d 681 (1978). Where the claim of ineffective assistance is raised in a motion for a new trial that has been denied, and where the appeal from the denial of that motion is raised in conjunction with a direct appeal under G.L. c. 278, § 33E, we review to determine whether any conduct or omission by counsel "was likely to have influenced the jury's conclusion." Commonwealth v. Wright, 411 Mass. 678, 682, 584 N.E.2d 621 (1992).

(a) Failure to present alibi defense. The defendant contends that trial counsel was ineffective for failing to present alibi witnesses, Sheila and Rob Brady, who would have testified that the defendant was at home at the time of the crime. He claims counsel's decision curtailed the thrust of the defense. The defense at trial was as follows.

Trial counsel aggressively impeached White with prior inconsistent statements, inconsistencies in his direct examination, inconsistencies with Nixon's testimony, and his motives behind the cooperation agreement with the Commonwealth. Counsel aggressively impeached Nixon in a similar manner.

At trial, defense counsel called William Chapman. Chapman and his girl friend had been to a movie during the evening of July 10, 2004. After the movie they smoked some marijuana, then drove to Chapman's sister's home on Northampton Avenue, near the intersection of Beverly Street. They were sitting in the vehicle for about one hour when, at approximately 11:30 P.M., Chapman saw a dark-colored car stop on the opposite side of Northampton Avenue a short distance away. Because the street was so dark, he could not tell if the car had two or four doors.

Chapman saw two men wearing "hoodies" get out of opposite sides of the car. He could not tell if a third person remained in the car, but the engine was running. He watched the two men walk across a vacant lot toward Beverly Street. He then heard gunshots and saw "flames" from the discharge of a single gun. The two men ran back to the car, which left immediately. He heard a woman shout, "They shot Daylan." Police and an ambulance arrived shortly thereafter. He did not tell police that he had seen the shooting. Chapman, who is a cousin to Leo White and has known White his whole life, testified he is familiar with White's appearance and his gait. He said White was not one of the two men he saw get out of the car.

The defendant now...