Commonwealth v. Morrison
| Decision Date | 26 June 2020 |
| Docket Number | No. 18-P-1585,18-P-1585 |
| Citation | 150 N.E.3d 826,97 Mass.App.Ct. 731 |
| Parties | COMMONWEALTH v. Maurice MORRISON. |
| Court | Appeals Court of Massachusetts |
Jonathan Shapiro, Boston, (Mia Teitelbaum also present) for the defendant.
Cailin M. Campbell, Assistant District Attorney (Mark Lee, Assistant District Attorney, also present) for the Commonwealth.
Present: Green, C.J., Blake, & Kinder, JJ.
Early on the morning of May 13, 2013, two victims were discovered dead in the front seats of a taxicab that had crashed into a building near the intersection of Parker Street and Crescent Avenue in Chelsea. After trial in the Superior Court, a jury convicted the defendant of two counts of murder in the second degree and one count of unlawful possession of a firearm. On appeal, the defendant contends that the evidence was insufficient to support his convictions, and claims error in the admission of certain hearsay statements made by one of the victims. In addition, the defendant contends that the trial judge erred in denying his postverdict motion to conduct inquiry of a juror who made a number of posts about the trial to his Facebook page while the trial was underway, including while the jury were deliberating, and made additional Facebook posts after the jury verdict. We affirm the defendant's convictions and discern no error in the admission of testimony describing the victim's statements. However, we remand for an evidentiary hearing to allow for an inquiry into whether the juror's Facebook posts exposed him and other jurors to extraneous information or influence.
Background. We summarize the relevant facts and trial testimony, reserving other facts for discussion as they become pertinent to the issues raised. At about 4 A . M . on May 13, 2013, Chelsea police received a report that a vehicle had crashed into a wall near the intersection of Crescent Avenue and Parker Street in Chelsea. When officers arrived at the scene, emergency personnel informed them that two people were dead in the vehicle, a taxicab. Autopsies performed on the two victims later confirmed that each died of two gunshot wounds
to the back of the head.
The male victim found in the driver's seat of the taxicab, Zouaoui Dani-Elkebir, was a taxicab driver. The female victim found in the front passenger's seat of the taxicab, Karima El-Hakim, was a known drug user and in a relationship with Dani-Elkebir.
Frank Gerena, a friend of the defendant who regularly gave him rides, was with the defendant on May 13, 2013. Early that morning, the defendant called Gerena and asked for a ride to a McDonald's restaurant. At 3:04 A . M ., Gerena and the defendant went through the "drive-through" at the McDonald's restaurant. The two men smoked marijuana together, and Gerena then dropped the defendant off at his home at 786 Broadway in Chelsea. The defendant requested that Gerena return around 4 A . M . to pick him up again on Eleanor Street.
Dani-Elkebir's cell phone, recovered by police from the taxicab in which both victims were found, revealed that an individual listed as "Logan" was the last person with whom Dani-Elkebir communicated on May 13. Police later traced the number associated with Logan to the defendant. Phone records listed text messages and telephone calls between Dani-Elkebir and Logan arranging for Dani-Elkebir to pick Logan up for a ride. At 3:35 A . M ., Dani-Elkebir texted Logan and indicated he would arrive to pick him up in "2 mn." At 3:36 A . M . and again at 3:41 A . M ., Logan called Dani-Elkebir.
A witness, an admitted drug user who was familiar with the defendant and both victims, saw Dani-Elkebir's taxicab parked on Eleanor Street at 3:45 A . M . on May 13. Dani-Elkebir was in the driver's seat, a female smoking "crack" cocaine was in the front passenger's seat, and the defendant was in the backseat. The witness observed the taxicab drive away and "[take] a left onto Broadway."
Sherri Marin lived on Parker Street in Chelsea, one and one-half blocks from where the victims were discovered by emergency responders. At 3:47 A . M . on May 13, Marin was awakened by what she believed were gunshots.1 Marin was unsure from which direction the sound of the gunshots came. After she heard the gunshots, Marin heard footsteps moving past the window of her first-floor bedroom and saw emergency vehicles go down Parker Street, toward Spencer Avenue.
At 3:37 A . M . (earlier than the defendant had requested), Gerena returned to Eleanor Street to pick up the defendant, as the defendant had earlier requested. After about fifteen minutes,2 the defendant approached Gerena's car from the direction of Broadway "out of breath and ready to go."3 The defendant suggested they drive to Revere to "make a play," which Gerena understood to mean make a drug deal. Gerena drove the defendant to Revere, waited in the car while the defendant got out for a few minutes, and then drove the defendant back to Gerena's house in Everett.
When they arrived at Gerena's house, the defendant told Gerena he needed to "clean the dagger." The defendant went into the bathroom and shut the door, at which time Gerena heard "a bunch of clanging that sounded like [metal] was hitting the toilet." When the defendant emerged from the bathroom, he showed Gerena a small, black firearm in his hands. The defendant and Gerena watched an Internet video recording detailing how to disassemble a firearm, and the defendant then disassembled the firearm into two pieces. After he had disassembled the firearm, the defendant asked Gerena to take him for a ride so he could dispose of the firearm. Gerena drove on Route 99 toward Boston, across the Route 99 bridge, and then looped back toward Chelsea; as Gerena drove across the Route 99 bridge on the return trip, the defendant tossed something (which Gerena assumed to be the firearm pieces) out of the passenger's side window.
Gerena then drove with the defendant to a park in the East Boston section of Boston. The defendant got out of Gerena's car and disappeared for about five minutes. When the defendant returned to Gerena's car he had a bookbag that he said he "needed to get rid of." Gerena stopped the car somewhere on Condor Street and threw the bag in a trash barrel in front of someone's house. Gerena then dropped the defendant off at 786 Broadway and went home.
About a week later, the defendant told Gerena that the police were looking for the defendant. The defendant instructed Gerena that if the police asked where Gerena was on May 13, Gerena should tell them he was scratching lottery tickets with the defendant at a corner store near Gerena's house.
Lekia Lewis was friends with El-Hakim shortly before her death. Lewis knew the defendant as Logan, a crack cocaine dealer from whom she and El-Hakim obtained drugs. Between two and three weeks before El-Hakim was killed, Lewis and El-Hakim were together at a house at 765 Broadway in Chelsea where they and others would "hang out" and smoke crack cocaine. There, El-Hakim told Lewis that, because the defendant had "hurt" her, she was blackmailing him for "[s]eventy-five dollars and drugs." When Lewis advised El-Hakim against blackmailing the defendant, El-Hakim told Lewis "she was going to continue to [blackmail him] because he hurt her."4 When Lewis told El-Hakim that Lewis did not believe El-Hakim was blackmailing the defendant, El-Hakim made a phone call. After El-Hakim hung up the phone, she walked "out [of] the house, off the porch, and met with the defendant" on the sidewalk in front of 765 Broadway. Lewis watched out the window as El-Hakim grabbed something from the defendant. When El-Hakim returned inside, she said, "see," and showed Lewis "[m]oney and crack" in her hands.
Discussion. 1. Sufficiency of evidence. The defendant argues that the Commonwealth's case was built entirely on circumstantial evidence, rendering the evidence "insufficient to prove beyond a reasonable doubt that it was possible for [the] defendant to have committed the crimes."5
"Circumstantial evidence alone may be sufficient to meet the burden of establishing guilt." Commonwealth v. Woods, 466 Mass. 707, 713, 1 N.E.3d 762, cert. denied, 573 U.S. 937, 134 S.Ct. 2855, 189 L.Ed.2d 818 (2014). See Commonwealth v. Chin, 97 Mass. App. Ct. 188, 195, 144 N.E.3d 923 (2020). "The inferences drawn by the jury need only be reasonable and possible and need not be necessary or inescapable." Commonwealth v. Casale, 381 Mass. 167, 173, 408 N.E.2d 841 (1980). The Commonwealth does not need to prove that "no one other than the accused could have performed the act," id. at 175, 408 N.E.2d 841, but the question of the defendant's guilt "must not be left to conjecture or surmise," Commonwealth v. Anderson, 396 Mass. 306, 312, 486 N.E.2d 19 (1985).
We review "the evidence presented at trial, together with reasonable inferences therefrom, in the light most favorable to the Commonwealth to determine whether any rational jury could have found each element of the offense beyond a reasonable doubt." Commonwealth v. Robinson, 482 Mass. 741, 744, 128 N.E.3d 50 (2019). See Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). We conclude that the evidence was sufficient to allow a rational jury to find beyond a reasonable doubt that the defendant committed murder in the second degree and carried a firearm without a license.
The evidence was sufficient to establish that the defendant had the opportunity to commit the murders. The defendant sought a taxicab ride from Dani-Elkebir less than an hour before the crash was reported to the police and was the last person to communicate with Dani-Elkebir before his death. As the Commonwealth observed in its closing argument, the defendant arranged a taxicab ride with Dani-Elkebir while he was being driven around in the early morning hours by his friend Gerena, and arranged with Gerena to pick him up shortly after he arranged his ride with Dani-Elkebir. Dani-Elkebir's last text message to...
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