Commonwealth v. Murphy

Citation448 Mass. 452,862 N.E.2d 30
PartiesCOMMONWEALTH v. Frederick MURPHY.
Decision Date06 March 2007
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Katherine E. McMahon, Assistant District Attorney, for the Commonwealth.

Donald A. Harwood, for Committee for Public Counsel Services, amicus curiae, submitted a brief.



In May, 1999, a jury convicted the defendant, Frederick Murphy, of murder in the first degree on the theory of deliberate premeditation; assault and battery by means of a dangerous weapon (G.L. c. 265, § 15A[b]); unlawful possession of a firearm (G.L. c. 269, § 10[a]); and unlawful possession of a firearm or ammunition without a firearms identification card (G.L. c. 269, § 10[h]). The defendant appealed. He also filed a posttrial motion for discovery, which was granted in part by the trial judge, and an amended motion for a new trial, which the judge denied. As he did in his amended motion for a new trial, on appeal, he asserts, inter alia, that his right to counsel was violated by the admission of postindictment statements he made to a jailhouse informant who had signed a cooperation agreement with the United States Attorney's office. We conclude that, where the government has entered into an "articulated agreement containing a specific benefit," or promise thereof, Commonwealth v. Reynolds, 429 Mass. 388, 394 & n. 7, 708 N.E.2d 658 (1999), the recipient inmate is a government agent for purposes of the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights even if the inmate is not directed to target a specific individual. Because we conclude that the defendant's right to counsel under the Sixth Amendment and art. 12 was violated by the admission of the defendant's postindictment statements to a jailhouse informant who deliberately elicited the statement, and that the Commonwealth has not shown that the statement was harmless beyond a reasonable doubt, the defendant is entitled to a new trial.

Background and procedure. We set forth the background facts from the trial transcript and the record, reserving details for our discussion.

At trial, the evidence against the defendant came from the testimony of an eyewitness and a jailhouse informant. The Commonwealth's theory of the motive for the murder was retribution: the defendant was angry that the victim was making payments (for drugs) to a Jamaican named Derrick Riley, nicknamed "Randy." It was purported that Riley was a member of a gang known as the 90's Posse.

Just after midnight on August 2, 1993, the victim was shot three times while walking from a friend's home toward his own home, both of which were located on Andrew Street in Springfield. Paul Smith, an illegal immigrant from Jamaica, was the only eye witness. Smith testified that it was about 11:45 P.M. on August 1 when he met the victim at the friend's house earlier that evening, he and the victim had made plans to go to a night club.

Smith testified that he took a taxicab from his home to Andrew Street, but had the driver drop him off down the street from the friend's house. As he was walking up Andrew Street to meet the victim, he saw a "kid" in the driveway at 91 Andrew Street. He thought it was someone named Bernard and greeted him. Smith received no response and testified that he continued walking up Andrew Street to meet the victim.

At some point after Smith arrived at the friend's house, Smith and the victim started walking toward the victim's home. Smith was walking about three feet behind the victim but trying to catch up. A man wearing black pants and a black hooded sweatshirt emerged from the driveway at 91 Andrew Street holding a black revolver. Smith started running as the man chased the victim and fired shots. Smith looked back and saw the victim fall.

The victim's girl friend ran out of her home when she heard shots. As Smith was running past her, he told her that the victim was shot but did not identify the shooter, even though Smith testified at trial that he saw the defendant's face and that he and the girl friend both knew the defendant. At trial, the defendant's girl friend testified that when she saw the defendant in the early morning hours of August 2, he was wearing black pants and a black see-through shirt with gold speckles.

Smith kept running and did not return to the scene even though he saw the police arriving. Instead, he returned to his home, slept, and, later that day, went to New York City. He testified that he had relatives in Brooklyn and wanted to talk to them because he was frightened. Smith's relatives were not at home when he arrived and Smith testified that he discussed his situation with "a person that I know" from Jamaica. Smith told this person that it was the defendant who had killed the victim. He testified that the man told Smith that he needed to go back to Springfield and tell the police. Smith returned to Springfield, learned that the police were looking for him, and on August 3, gave police a statement identifying the defendant as the shooter.

Smith testified over two days. When the court recessed after the first day of Smith's testimony, the prosecutor had Smith in her office. She asked Smith to whom he had spoken in New York. The prosecutor learned for the first time that the individual was the alleged gang member, Derrick Riley.1

The only other evidence of the defendant's involvement in the murder was the testimony of a jailhouse informant, who had a plea agreement with the United States Attorney's office, part of which could affect his sentence on Federal charges. After a voir dire of the informant, discussed infra, the judge rejected the defendant's argument that the informant should not be allowed to testify concerning statements the defendant had made to him. The informant testified that while being held in the Hampden County jail awaiting sentencing, he met the defendant. The defendant had been indicted and was represented by counsel at the time.

The informant testified that, after he had entered into the agreement with the United States Attorney's office, he did the defendant a favor. The defendant then started to converse with him more.2 From their conversations,3 the defendant learned that the informant's girl friend and Smith's girl friend were cousins. The defendant asked the informant to contact Smith through the girl friends and offer him fifty pounds of "weed" in exchange for not testifying. The informant did so and reported back to the defendant that Smith refused and was afraid.

The defendant then started talking to the informant about the victim, whom the defendant called his godson. The informant testified that the defendant stated that he and Riley had been in a gunfight in New York; that Riley "was making all of the Jamaican guys work for him or pay him ... money"; and that one of the people paying money to Riley was the victim. The informant stated that the defendant claimed to be angry with the victim, so the defendant "licked" him.

On two occasions during his testimony, the prosecutor elicited from the informant that he had an agreement with the Federal authorities but that he had no deal with the Commonwealth.

At trial, the defense claimed that the informant was lying so that he could be rewarded with a lighter sentence; that Smith was lying and either guilty himself or guilty of setting the victim up for Riley; that Smith was rewarded by the Commonwealth for his testimony when he was facing prosecution for unrelated crimes that occurred after the murder, but before the trial; and that there were other, related shootings in the nights leading up to this murder. The defense theory was that the victim had participated with others in breaking into the home of someone who worked for Riley and robbing the occupants and that all the shootings, including the victim's, were retaliation. As the victims of the robbery had never reported the crime and one of the alleged participants invoked his right not to testify pursuant to the Fifth Amendment to the United States Constitution, the judge restricted the admission of this evidence to Smith's state of mind. In addition, the defense alleged an inadequate police investigation. The defense pointed out that, although the investigation never closed, once police obtained the defendant's name from Smith, they did not fully follow up on other leads.4

In his instructions to the jury, the judge told them that the evidence that the defendant tried to influence a witness could be used as evidence of consciousness of guilt.

Discussion. 1. Government agent under the Sixth Amendment. As noted, the defendant tried to have his statements to the informant suppressed. After a voir dire of the informant, the judge stated that although there was an agreement with the Federal government, there was no agency relationship with the Federal government and there was no evidence that the informant deliberately elicited information from the defendant. The defendant renewed his motion to suppress at trial, but it was denied.

He raised the issue again, with new evidence, in his amended motion for a new trial, which the judge denied. In his memorandum of decision, the judge relied on United States v. LaBare, 191 F.3d 60, 65, 66 (1st Cir.1999), discussed infra, to conclude that there was no Sixth Amendment concern. He also stated that, in any event, there was no evidence that the informant deliberately elicited the statements from the defendant.

The defendant argues that the admission of the informant's testimony violated his right to counsel under either the Sixth Amendment or art. 12.5 We agree.6

In October, 1998, the informant, a convicted felon, signed an agreement with the United States Attorney's office whereby he would plead guilty to thirty-five counts of a fifty-count indictment involving...

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