Com. v. Morganti

• Decision Date: 25 November 2009
• Docket Number: SJC-09830.
• Citation: 917 N.E.2d 191,455 Mass. 388
• Parties: COMMONWEALTH v. Robert J. MORGANTI, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

917 N.E.2d 191

455 Mass. 388

COMMONWEALTH v. Robert J. MORGANTI, Jr.

SJC-09830.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued September 11, 2009.

Decided November 25, 2009.

Donald A. Harwood for the defendant.

Mary E. Lee, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, BOTSFORD, & GANTS, JJ.

GANTS, J.

On June 13, 2003, a jury convicted the defendant of murder in the first degree, based on both deliberate premeditation and extreme atrocity or cruelty. Represented by new counsel on appeal, the defendant argues that the trial judge erred in (1) admitting in evidence statements, some of which were electronically recorded, made by the defendant more than six hours after his arrest in California on unrelated charges and after he had purportedly invoked his constitutional right to silence; (2) permitting the defendant to be excluded from a jury view; (3) preventing a witness from consulting with his attorney as to his right against self-incrimination; and (4) failing to instruct the jury, in explaining the element of extreme atrocity or cruelty, that they must be unanimous in finding at least one of the factors set forth in Commonwealth v. Cunneen, 389 Mass. 216, 227, 449 N.E.2d 658 (1983). The defendant also contends that the prosecutor's closing argument was improper in several respects and not supported by the evidence at trial. We affirm the defendant's conviction and see no basis to grant relief under G.L. c. 278, § 33E.

The evidence at trial. The Commonwealth alleged that, late on the evening of May 10, 1988, the defendant, angry at having been "ripped off" in a drug deal, shot Anthony LoConte (victim) in the head at close range, killing him. The jury could have found the following facts from the evidence at trial. In the spring of 1988, the defendant was a mid-level distributor of cocaine in Brockton. Jeffrey Tessier worked as a "runner" for the defendant, helping him to break up large amounts of cocaine into smaller quantities and then distributing the repackaged drugs.

On May 10, 1988, the defendant told Tessier he was "dry" and knew of no source from which he could purchase cocaine. Tessier unsuccessfully tried to connect the defendant with a cocaine supplier, and then devised a scheme in which he would trick the defendant into paying him for what the defendant would mistakenly believe was one-quarter kilogram of cocaine. In the course of carrying out the ruse, Tessier traveled with the defendant in a vehicle (a Monte Carlo) driven by Brian Madden to the victim's home. Tessier entered the victim's home alone, spoke with the victim, gathered various items, including "an Old Spice" container, and placed the hastily assembled package in a brown paper bag. Tessier then returned to the Monte Carlo with the paper bag; the defendant gave Tessier $10,500 in cash, and Tessier handed the defendant the package, which supposedly contained the cocaine. The defendant drove off, and Tessier returned to the victim's home and gave the victim $2,000. The defendant was not fooled for long by Tessier's primitive ruse. Five minutes later, the defendant and Madden returned to the victim's home. Banging loudly on the back door, the defendant angrily demanded the return of his money. The victim raced out the front door.

At approximately 11 P.M. that night, Michael Geiler, a resident of Howard Street in Brockton, saw a vehicle with its interior lights on slow down in front of his home and come to a complete stop. After the vehicle left, he observed what looked like a trash bag on the side of the road. When Geiler heard a motorist scream for help, he saw that what he had initially thought was a trash bag was in fact the victim lying on the ground, still breathing and moaning. Emergency medical technicians were summoned; when they arrived, the victim was unconscious, with a pulse, but he did not survive. The autopsy conducted on May 11, 1988, revealed that the cause of the victim's death was a gunshot wound to his head. The medical examiner determined that a single bullet had entered the victim's skull behind his left ear, traveled through the right frontal lobe of his brain, and exited over his right eye. At its point of entry, the bullet hole was three-eighths inch in diameter, consistent with a bullet fired from a .380 caliber firearm. The medical examiner who conducted the autopsy opined that the firearm had been fired less than six inches from the victim's head, because the wound was round and there were burns around the edges of the wound.

Sometime around midnight, while sirens could still be heard in the background, the defendant telephoned his friend, Travis Merritt, and told him that he had gotten ripped off, that something had gone wrong and that he had shot somebody. The defendant later arrived at Merritt's apartment with blood on his chin and clothing. He repeated that he had shot somebody, but said he did not know whom he had shot. He said he had thrown his gun out of a vehicle while driving on or near Harrison Boulevard.¹ The defendant also told Merritt that he wanted to look for Tessier because Tessier had taken his money.

On the morning of May 11, 1988, the defendant went with Merritt to Gary Gamel's home and told him, "I just want my money. I killed the wrong person." While the defendant was inside Gamel's home, Tessier arrived outside. The defendant wanted to go outside and get his money back, but Gamel said that he would take care of it. Moments later, Gamel returned with about $7,500. The defendant counted the money and said he was short. The defendant then handed each person present a one hundred dollar bill, including Gamel. Merritt, another person, and the defendant then took a taxicab, which dropped the defendant off near the residence of Joseph Valente, a former business associate of the defendant. The defendant told Valente that he had gotten ripped off and that he needed to get in touch with an individual who had recently arrived from California.

Merritt did not see the defendant again until trial. A few weeks after the murder, the defendant called Merritt and said "that he couldn't believe he could never come back."

After midnight on the night of the killing, Brian Madden (the driver of the Monte Carlo) telephoned his brother Mark, and shortly thereafter, Mark went to Brian's house. When Mark arrived, he saw blood inside Brian's Monte Carlo. After receiving a telephone report of an emergency, the police were dispatched to Brian's house; officers arrived at 12:39 A.M. Police discovered a great deal of blood on the front passenger seat of the Monte Carlo, as well as a compact disc and Old Spice container. The deoxyribonucleic acid (DNA) profile of the blood found on the floor mats in the Monte Carlo was later shown to match the DNA profile of the victim.² Inside the kitchen of Brian Madden's home, the officer saw compact discs with blood on them.

Kenneth F. Martin, a State police detective lieutenant and an expert on blood stain pattern analysis, after having examined the blood evidence and conferring with the medical examiner as to the autopsy results, opined that the shooter had been sitting in the rear seat of the Monte Carlo, behind the driver, when he shot the victim in the front passenger seat in the head. Lieutenant Martin concluded that it would be difficult to have fired a shot from the driver's seat at the angle indicated by the entrance and exit wounds, and he ruled out the possibility that the shooter fired from directly behind the victim in the back seat.

A homicide warrant issued against the defendant on May 11, 1988, but for the next twelve years he remained a fugitive. On March 16, 2000, the defendant was arrested in California for operating a motor vehicle while under the influence of alcohol. At the time of the arrest, he was carrying a driver's license in the name of Roderick Grinage. Later that day, after the defendant had been released on bond, Lieutenant Bryan Markum of the Stanislaus County, California, sheriff's department visited "Grinage" at his home and inspected the residence. He found identifications in three names, and "Grinage" admitted to two other aliases. Lieutenant Markum did a warrant check using the aliases and learned of the Massachusetts fugitive warrant against the defendant. He advised the Massachusetts authorities, who sent him a facsimile of the defendant's fingerprint card; the defendant's fingerprints were positively identified as the fingerprints of "Grinage."

Sergeant Leonard G. Coppenrath of the Massachusetts State police learned on March 17, 2000, that the defendant had been apprehended, and he departed the next day for California. When he arrived, he met with the defendant, who was then in custody, and advised him of his Miranda rights from a Miranda form. During this initial interview, the defendant continued to call himself Grinage and insisted he was from New York. Sergeant Coppenrath finally wrote the defendant's true name in the blank space left for the name on the Miranda form. Recognizing that his true identity had been discovered, the defendant asked, "Now what?" and inquired whether his girl friend in California had "rat[ted] [him] out."

The defendant then asked whether he and Sergeant Coppenrath could speak where the air conditioning was not so strong and where he could get something to eat. They drove a few miles to a local sheriff's office and continued the interview in a room that contained videotape recording equipment. At one point, Sergeant Coppenrath interrupted the interview to allow the defendant to telephone the mother of his son; the conversation was recorded on videotape. During this telephone call, the defendant told his son's mother that she should explain to their son that "Daddy did a bad thing."

The factual findings from the motion to suppress hearing. The defendant claims that the judge erred in denying his motion to suppress the statements he made...