Com. v. Morgan

• Decision Date: 15 June 2007
• Docket Number: SJC-08813
• Citation: 868 N.E.2d 99,449 Mass. 343
• Parties: COMMONWEALTH v. David MORGAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

868 N.E.2d 99

449 Mass. 343

COMMONWEALTH v. David MORGAN.

SJC-08813

Supreme Judicial Court of Massachusetts, Hampden.

Argued February 9, 2007.

Decided June 15, 2007.

Charles W. Rankin, Boston, for the defendant.

Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.

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

IRELAND, J.

In 2000, the defendant, David Morgan, was convicted of murder in the first degree on the theory of deliberate premeditation.¹ The defendant appealed. In 2004, he filed a motion for a new trial that the trial judge denied. The defendant appealed from the denial of his motion for a new trial and the appeals have been consolidated. The defendant claims that the judge should have granted his motion for a required finding of not guilty because there was insufficient evidence, and erred in denying his motion for a new trial. He also requests that we grant him relief pursuant to our power under G.L. c. 278, § 33E. We conclude there is no merit to any of the defendant's claims of error and that none warrants reversal and discern no reason to grant him relief under G.L. c. 278, § 33E. We affirm the defendant's conviction, as well as the denial of his motion for a new trial.

Facts. We recite the essential facts the jury were warranted in finding, reserving certain details for our discussion of the issues.

The victim was last seen in the late afternoon of March 3, 1999, getting into a four-door green sedan with the defendant and Floyd Johnson, who was driving.² He was not seen again until his body was recovered in Agawam, at the edge of the Connecticut River, on April 18, 1999. When his body was found, the victim was wearing some of the same clothing he was wearing on March 3. He had suffered a gunshot wound to the head at close range. The medical examiner was able to recover the projectile, a .38 caliber metal jacket that could have been fired from a .357 Magnum or specific types of nine millimeter weapons.

In the days before his disappearance and murder, the victim was living in the basement of a residence in Springfield apart from his wife and children. The victim's wife testified that, on March 1, 2, and 3, 1999, after work, she picked up the victim and drove him to the defendant's apartment so that the victim could obtain marijuana to sell. The wife would drop the victim off at his residence each evening. On March 1, 1999, when the victim's wife took him to the defendant's apartment, the defendant approached the victim, who was sitting in the vehicle's passenger seat, and told him that his apartment had been broken into and that whoever had anything to do with it was "going to feel it."

On March 3, after his wife had brought the victim to the defendant's apartment, she dropped him off at his residence at approximately 5 P.M. Sometime after that, Errol Lodge wanted to purchase marijuana from the victim. The victim invited Lodge to come to his residence and wait in the driveway for a delivery of marijuana. Lodge saw the defendant and Johnson pull up in a green sedan, and he saw the victim speak to the men and then get into the back seat of the vehicle, which sped away. Lodge waited for the victim for a while but left when he did not return.

In statements to police, the defendant did not deny that Johnson drove him in a green sedan to the victim's house between approximately 4 P.M. and 5 P.M. that afternoon. The defendant claimed that he and Johnson went there to pick up money the victim owed and that, once they did so, the pair left. The defendant also told police that the victim could not be trusted because he would "rob you."

At about 8:30 P.M. the evening of March 3, the victim's wife tried contacting him by his pager and received no response, which was uncharacteristic. She tried several times that evening and in the days following, still receiving no response. She went to the victim's residence, and also searched for the victim for several days, before reporting him as a missing person on March 8. The victim's cellular telephone records showed no outgoing calls after March 3.

No physical evidence tied the defendant to the victim's murder. The gun was never found, and a search of the green sedan Johnson was driving, which was routinely cleaned, turned up no fingerprints that matched the victim's. A test of the vehicle yielded the possible presence of human blood on the rear exterior door handle on the driver's side. The defendant's conduct and statements he made to others both before and after the victim's disappearance implicated him in the murder.

1. Errol Lodge. After the break-in of his apartment, the defendant told Lodge what had happened and that he knew who did it; pulling a gun from his waist, he said that Lodge "will hear about the person." On March 3, five days before the wife reported the victim missing, the defendant telephoned Lodge at home and, uncharacteristically, kept him on the line for two hours. In the course of the conversation, which was interrupted with the defendant's putting Lodge on hold and instructing him not to hang up, the defendant told Lodge that he had dropped the victim off "somewhere" and "cannot find [the victim]"; the victim's "wife reported him missing"; and "People said I killed him."

When the defendant and Lodge were arrested in June, 1999, on charges of selling marijuana, the defendant told Lodge, "You cannot become an informant. You only charged for weed and weed is a misdemeanor. I will get you out. Don't tell them nothing. Don't tell them nothing."³ In addition, the defendant gave money to Lodge's girl friend so she could move and paid for an attorney who visited Lodge in jail three or four times. After Lodge's arrest, the defendant kept in contact with Lodge's girl friend, something he had not done before. The telephone calls between the defendant and Lodge's girl friend continued until September, 1999. The defendant was supposed to meet the girl friend to talk because he knew Lodge was talking to police officials and was going to testify against him. The defendant never showed up.

2. The victim's wife. At some point during her search for the victim, his wife confronted the defendant, who told her that he did go by the victim's house on March 3, but that the victim did not get into the car with him. After speaking to more individuals, the wife later told the defendant that she knew he lied because she had a witness who saw the victim getting into the car with him. The defendant started yelling at her and told her to bring the witness to him; when the wife said that she was going to the police, the defendant stated, "Go to the cops because you can't prove nothing anyways."

3. Richard McLean. Richard McLean testified that, before the victim's murder, the defendant and Johnson met with him and showed him a nine millimeter weapon in Johnson's possession; the defendant also possessed a gun. The defendant told McLean that he was going to kill the victim. McLean told the defendant to forget about it, and the defendant responded that if no one saw him do it, there was nothing anyone could do. McLean testified that the defendant also stated, "As a matter of fact that mother fucker gonna be dead in a week anyway."

Two days after the victim disappeared, the defendant met McLean and tried to buy a gun McLean was holding for the victim. McLean asked the defendant why he needed a gun, given that he had seen the defendant's gun. The defendant stated that he needed a "clean gun" because people associated with the victim were after him. When McLean resisted giving him the victim's gun, the defendant stated, "Well, you don't have to worry about [the victim], because [you will] never see [him] again.... Trust me. You will never see [the victim] again." Sometime later, the defendant told McLean that the gun that was used to kill the victim was a nine millimeter. In September, 1999, McLean had conversations with the defendant on at least two occasions. In the first conversation, the defendant told McLean that Lodge was going to testify against him for the victim's murder, because Lodge witnessed the victim's departure with the defendant and Johnson the day the victim disappeared. McLean testified that he stated, "You guys pick up somebody to kill him and somebody there seen, and you guys still do it? You guys got to be stupid." McLean testified that the defendant did not say anything in response; instead, he laughed. McLean also testified that, in the second conversation, the defendant told him that he was feeling "fucked up" because he learned that the victim was not the one who had broken into his apartment and that the victim died for the wrong reason.

4. Warren Smith. Warren Smith testified that he had seen the defendant with a .45 caliber gun, a .357 Magnum, and a nine millimeter German Luger. He also testified that, during a discussion between Smith, the victim, and the defendant concerning marijuana the defendant allegedly owed the victim, the defendant waved a .45 caliber gun around and stated that if the victim or anybody else tried to rob him, he would kill them. At some point the defendant also bragged to Smith that he shot at an individual who owed the defendant money for marijuana.

5. Jailhouse witnesses. The Commonwealth also called two witnesses whom the defendant met while he was incarcerated. One testified that the defendant told him that he was "going down" for a murder but he was going to "bring it to trial to try to beat it."

At the close of the Commonwealth's evidence, the defendant's motion for a required finding of not guilty was denied. See note 1, supra. The defendant did not testify at trial. His strategy was to attack the Commonwealth's case, including impeaching the credibility of the Commonwealth's witnesses through cross-examination. He also called three witnesses. The first, was the defendant's good friend and landlord, a woman who owned a four-door green Acura automobile that she l...