Com. v. Morgan

• Decision Date: 03 April 1996
• Citation: 663 N.E.2d 247,422 Mass. 373
• Parties: COMMONWEALTH v. Richard MORGAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 247

663 N.E.2d 247

422 Mass. 373

COMMONWEALTH v. Richard MORGAN.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Jan. 10, 1996.

Decided April 3, 1996.

INDICTMENTS found and returned in the Superior Court Department on March 6, 1992.

The cases were tried before Patrick F. Brady, J.

Russell C. Sobelman, Lynn, for defendant.

W. Matthew Iler, Assistant District Attorney, for Commonwealth.

Before LIACOS, C.J., and ABRAMS, LYNCH, O'CONNOR and FRIED, JJ.

LYNCH, Justice.

The defendant, Richard Morgan, was convicted of murder in the first degree and armed assault with intent to rob. On appeal, the defendant claims that the trial judge erred in: (1) failing to instruct the jury sufficiently on the effect of drug consumption in reducing first degree to second degree murder; (2) instructing the jury on felony-murder; (3) admitting testimony of a witness who had read transcripts of prior proceedings; (4) giving erroneous instructions on "malice aforethought"; and (5) failing to seek clarification of the grounds for the jury's verdict of murder in the first degree. We reject these contentions, and also we conclude that there is no basis for granting the defendant relief pursuant to G.L. c. 278, § 33E (1994 ed.). Accordingly, we affirm the defendant's convictions.

The relevant evidence taken in the light most favorable to the Commonwealth, Commonwealth v. Judge, 420 Mass. 433, 435, 650 N.E.2d 1242 (1995), was as follows: The victim, a young white male, left a pub on Dorchester Avenue in the Dorchester section of Boston around 12:40 A.M. to walk home to his apartment which was several blocks away. He left the pub before his friends did and was walking alone.

Two men who were driving on Dorchester Avenue at about 12:40 A.M. saw a black man and a white man "wrestling." They observed that the black man was muscular and about five feet eight inches tall. He wore a hooded sweatshirt, a dark coat, dark pants, white sneakers, and a plaid shirt. During the fight there was a light colored Chevrolet Impala automobile parked nearby with a "big" black man seated in the driver's seat. The black man in the fight was "swiping" at the white man. After one of the swipes, the white man started to scream and took off running and screaming. The black man then got in the waiting Chevrolet which drove away. The witnesses then followed the victim and asked him if he was all right. The victim pulled up his sweater and showed them "a hole in his belly" with "blood around it." The witnesses then drove off after the assailant's automobile and wrote down the license plate number. They then pulled over and one of them called "nine one one" and reported that they had observed a fight where a man had been stabbed. They repeated the license number that they had written down and returned to assist the victim whom they found lying on the porch of a residence.

The automobile bearing the license plate observed at the scene, a Chevrolet Impala, was loaned by the owner to his son, Ronnie Haggins, on the day of the stabbing. The defendant is a friend of Haggins and the family, and he rather than Haggins returned the automobile the next day.

A beige Chevrolet Impala with the same license plate was observed by two police officers about the same time as the stabbing. In the automobile were two black males, the driver being taller than the passenger. The police officers followed the automobile for several minutes and observed that the men appeared very fidgety. The officers were then called by their dispatcher to go to the residence where the victim lay. The victim told them: "A black guy stabbed me."

Haggins had taken his cousin to a local bar around 10 P.M. using his father's beige Chevrolet Impala. At about 1:30 A.M., Haggins and the defendant picked up the cousin in the Impala and took her back to her apartment. The defendant went into the apartment and washed his hands. The cousin saw that he had blood on his coat and that he had a wooden-handled knife approximately six inches long. She overheard the defendant say that he stabbed someone in the stomach and he hoped the victim did not die. The defendant then left the apartment, stating that he was going to burn his coat. Sometime during the winter, the cousin met the defendant and gave him a telephone number that Haggins had given her. The defendant told her to tell Haggins not to say anything about the incident; to which she replied that Haggins was not going to "take the rap" for him.

One of the other women who lived in the apartment confirmed that the defendant arrived at the apartment around 1:30 A.M. with blood on his jacket. She overheard the defendant say that the defendant and Haggins had gone to the store to get some "reefer papers" and encountered a man who attacked him with a knife, and in the struggle, the defendant stabbed his assailant.

At some time prior to trial the defendant told a fellow inmate that "one night [the defendant] and his ... cousin [were] getting high, and his cousin took his uncle's automobile and they went driving. They ended up on Dorchester Avenue." He said he was wearing a hooded jacket, and he approached a "white dude" who was "drunk" and "coming out of a bar." The defendant said he was trying "to rob him," but "he didn't even rob him." The defendant stated that he "stabbed the dude" while "his cousin was waiting on him in the car." The defendant also told him that "he was getting high" on cocaine on the night of the murder.

The defendant told another inmate that he was trying to get Haggins to change the statement that he had given to the police that the defendant had stabbed the victim. He said that Haggins "wanted to get high badder than [the defendant] did," that "they were going out to get some money to get high" and that "I wish I never went out to get any money and saw that ... bastard."

During the course of preparing for trial the defendant allowed a third inmate, Troy Nunes, to read transcripts of previous proceedings of his case and they discussed possible defense strategies. The defendant told Nunes that, after the stabbing, he went with Haggins to the apartment where the three women lived. He also said that, "if [Haggins] just keeps his mouth shut, they don't have nothing on [the defendant] at all."

We begin our discussion with issues which were the subject of objections at trial.

1. Instruction on the effect of drug consumption. The judge instructed:

"When the Commonwealth must prove the defendant's intention to do something, his knowledge, or his state of mind, you should consider all the credible evidence relevant to the defendant's intent, knowledge, or state of mind, including any credible evidence of the effect on the defendant of his consumption of drugs, if any."

This instruction is directly from Commonwealth v. Sires, 413 Mass. 292, 300-301, 596 N.E.2d 1018 (1992). The defendant claims on appeal that this instruction was inadequate and that he was entitled to an instruction explaining how the influence of drugs might reduce his culpability from murder in the first degree to murder in the second degree.

Trial counsel repeatedly requested that the judge give an additional instruction on drug intoxication. The judge stated that the instruction given was sufficient on that issue and refused to supplement it. The Commonwealth argues that the defendant failed to preserve his appellate rights because he did not specifically object once the judge refused his request. We have stated that appellate rights have been properly preserved when a specific instruction has been requested and rejected by the judge. Commonwealth v. Biancardi, 421 Mass. 251, 253, 656 N.E.2d 1234 (1995). Therefore, we consider the issue on the merits.

There was nothing in the evidence presented that suggested debilitating intoxication. See Commonwealth v. Herbert, 421 Mass. 307, 316, 656 N.E.2d 899 (1995). Evidence was offered by the prosecution to show that the defendant was motivated by a desire to rob the victim to get money to buy drugs. ¹ The defendant attempted to impeach the credibility of those witnesses and did not present any evidence as to the defendant's drug use or intoxication on the day in question. The theory on which a case is tried below cannot be changed on appeal. Commonwealth v. Fano, 400 Mass. 296, 306, 508 N.E.2d 859 (1987).

Furthermore, we stated in Commonwealth v. Sires, supra at 299-300, 596 N.E.2d 1018, where there is evidence of the effects of the consumption of drugs that, if believed, would be relevant to a defendant's state of mind or knowledge, then a simple instruction is required. In the present case, the judge gave the instruction, approved in Sires, even though there was no evidence presented of any debilitating effect on the defendant due to drug consumption. The instruction was more than the evidence required. There was no error.

2. Felony-murder instruction. The defendant claims that there was insufficient evidence that the motive for the stabbing was robbery, and thus the judge erred in instructing the jury on attempted armed robbery as the underlying felony for felony-murder. ² The defendant also argues that, under the corroboration rule, there must be evidence in addition to the defendant's admissions of being motivated by an intent to rob and that such evidence was lacking. We conclude that there was sufficient evidence that the defendant stabbed the victim in the course of an attempt to rob him at knife point. The defendant admitted to one fellow inmate that he stabbed the victim in the course of an attempt to rob him. He admitted to another inmate that he went out that night to get money and wished he never encountered the victim.

Assuming that the corroboration rule applies in these circumstances, ³ all that the rule requires is that there be some evidence, other than a confession, that the criminal act was committed by someone, that is, that the crime was real and not imaginary. Commonwealth v....