Commonwealth v. Morrison
| Docket Number | 21-P-699 |
| Decision Date | 11 September 2023 |
| Parties | COMMONWEALTH v. SCOTT MORRISON |
| Court | Appeals Court of Massachusetts |
Heard December 5, 2022.
Indictments found and returned in the Superior Court Department on July 31, 2014, and April 29, 2016.
The cases were tried before Robert C. Cosgrove, J.
Timothy J. Bradl for the defendant.
Pamela Alford, Assistant District Attorney, for the Commonwealth.
Present: Sacks, Singh, & Brennan, JJ.
A Superior Court jury convicted the defendant of involuntary manslaughter, G. L. c. 265, § 13; aggravated kidnapping G. L. c. 265, § 26; and conspiracy to commit kidnapping, G. L. c. 274, § 7.[1] On appeal, the defendant argues that the trial judge erred by denying his motions for a required finding of not guilty and instructing the jury improperly based on a misinterpretation of the aggravated kidnapping statute, admitting a photograph showing duct tape found near the victim's remains, permitting a witness's in-court identification of the defendant, and instructing the jury improperly on eyewitness identification. We affirm.
We summarize the facts the jury could have found, reserving certain details for later discussion. On January 1, 2014, the victim, James Robertson, was taken from his home by two men purporting to be "constables." They promised his mother that they would return him home after his "surprise drug test." She never saw him again. Almost two years later, hunters stumbled upon the victim's partial remains in a wooded area in Upton. Police investigators searched the area and located more of the victim's remains, his clothing, and personal effects. They followed a trail of evidence that ultimately led to James Feeney, Alfred Ricci, and the defendant.[2]
a. The parties.
The victim was thirty-eight years old and living in Avon with his mother, father, and brother at the time he was kidnapped and murdered. He was on probation after a brief period of incarceration in the fall of 2013. The victim had been dating Andrea Morse for about one year, and stayed with her in the fall of 2013 after he was released from prison. Morse also had a long-term relationship with Feeney, who supplied her with Percocet pills that she frequently shared with the victim. Ricci was friendly with Feeney, obtained Percocet from him, and saw him often in 2013. The defendant worked as Feeney's mechanic and bought Percocet from him. The defendant met Ricci through Feeney. Feeney used a wheelchair, and he could not walk more than a "few feet" with a cane or walker. He "did not like [the victim] at all," and became angry when Morse called or sent text messages to the victim. Feeney told Morse she had to choose between him and the victim. She "chose" the victim.
b. The plan.
Feeney was "distraught" when Morse chose the victim over him. In the months leading up to the murder, Feeney repeatedly indicated to the defendant and Ricci that he wanted to "question" the victim about Morse. Feeney devised a plan for the defendant and Ricci to dress as constables or probation officers and "grab" the victim. Feeney told them to use a folder with a picture of the victim and the victim's "police record" so they would "look like officers." He indicated that he would provide them with a gun, badge, and handcuffs.[3] The defendant was to pick up Ricci, who did not drive, and then get the victim and bring him to Feeney at Ricci's house. In anticipation of Feeney's "face-to-face" questioning of the victim, the defendant and Ricci bolted a metal chair to the floor of Ricci's garage.
c. The kidnapping and killing.
On January 1, 2014, the defendant, Feeney, and Ricci exchanged numerous cell phone calls and text messages (texts).[4] After one such call from Feeney, the defendant and Ricci drove to the victim's home. The defendant parked his silver Toyota Camry across the front of the driveway as the victim's brother was arriving with his girlfriend. The defendant told the brother that they were there to bring the victim in for a random drug test and showed him a paper with a "Commonwealth stamp." The victim spoke briefly with the defendant, who had a badge, was carrying a pair of handcuffs, and was armed with a black gun in a holster. Looking through her kitchen bay window, the victim's mother could see the defendant standing in her driveway talking to Ricci. She followed the victim outside and spoke to the defendant, who reassured her that he and Ricci would bring the victim home after the drug test. The defendant then put the victim in the rear of the car with Ricci.
After Ricci handcuffed the victim, the defendant drove to Ricci's house in Canton where Feeney was waiting. The defendant gave Feeney a duffel bag from the front seat of the Toyota that contained, among other things, a baton. Feeney directed the defendant and Ricci to bring the victim to the garage, where they seated the victim in the metal chair that they had bolted into the floor one week earlier. Feeney entered the garage wearing all black clothing and a black ski mask, and carrying the bag that he got from the defendant. The baton was on top of the bag. Feeney shackled the victim to the chair and told the defendant and Ricci to leave; he also instructed them that no one was allowed in the garage.
The defendant and Ricci drove to a nearby hardware store to purchase duct tape for a car repair. After working on Ricci's mother's car for approximately twenty minutes, the defendant left to fix a different car. Feeney also left Ricci's house shortly thereafter. At approximately 12:25 A.M. the next morning, Ricci saw the defendant and Feeney back in his garage standing over the victim's dead body. Feeney directed the defendant and Ricci to put the body in the trunk of his car. All three men drove to a nearby wooded area, where the defendant and Ricci left the victim's body in the underbrush.
d. The investigation.
On January 2, 2014, the victim's mother reported that her son was missing. She told police about the men who had taken the victim for a "drug test" and provided a description of them. Over the next several weeks, police investigators interviewed the defendant, Feeney, and Ricci, focusing on their activities on the day the victim disappeared. On February 27, 2014, police searched Feeney's apartment and seized two handguns; photographs of the victim; and a duffel bag containing, among other things, a black police baton, handcuffs, leg irons, and zip ties. Blood found on the baton and other items was later matched to the victim.
e. Identification of the defendant.
In January 2014, the police showed the victim's mother two photographic arrays in an effort to identify the men last seen with her son. Although "one person . . . seemed to have some of the facial characteristics" of one of the perpetrators, she could not positively identify anyone from the first array. In the second array she identified one person as having the "driver's mouth."
The defendant's photograph was not included in either array. Sometime thereafter, the victim's mother and the girlfriend of the victim's brother helped create composite pictures of the two suspects. According to the victim's mother, neither of them was "happy" with the final composites because they did not resemble the suspects. On July 29, 2014, the victim's mother participated in a videotaped lineup procedure at the Norwood police station. During this procedure, she positively identified the defendant as one of the constables who took her son away on January 1, 2014.[5]
The defendant raises interrelated claims regarding the sufficiency of the evidence and the judge's instructions to the jury on the charge of aggravated kidnapping. Under the relevant portion of the kidnapping statute, "[w]hoever commits any offense described in this section while armed with a dangerous weapon and inflicts serious bodily injury thereby upon another person or who sexually assaults such person shall be punished" (emphasis added). G. L. c. 265, § 26, third par., inserted by St. 1998, c. 180, § 63. The defendant asserts that "the word 'thereby' must be construed to relate back and mean that the dangerous weapon used for kidnapping must have caused the injury." He posits that the trial judge's failure to interpret and apply the statute accordingly, both when ruling on the defendant's motion for a required finding of not guilty and when instructing the jury, was prejudicial error. We disagree. Aggravated kidnapping, on the theory before this jury, requires that a person commit a kidnapping while armed with a dangerous weapon and that the commission of the armed kidnapping cause serious bodily injury to the victim, regardless of the instrumentality of that injury.
"In interpreting the meaning of a statute, we look first to the plain statutory language." Commonwealth v. Perez Narvaez, 490 Mass. 807, 809 (2022), quoting Cavanagh v. Cavanagh, 490 Mass. 398, 405 (2022). "Ordinarily, where the language of a statute is plain and unambiguous, it is conclusive as to legislative intent." Malloch v. Hanover, 472 Mass. 783, 788 (2015), quoting Thurdin v. SEI Boston, LLC, 452 Mass. 436, 444 (2008). We do not determine the plain meaning of a statute in isolation; rather, we consider its specific language in the context of the surrounding text and apply "standard rules of statutory construction and grammar." Rowley v. Massachusetts Elec. Co. 438 Mass. 798, 802 (2003). "All the words of a statute are to be given their ordinary and usual meaning, and each clause or phrase is to be construed with reference to every other clause or phrase without giving undue emphasis to any one group of words, so that, if reasonably possible, all parts shall be construed as...
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