Opinion
NO2016CR147
03-01-2018
COMMONWEALTH v. Scott MORRISON
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S RENEWED MOTION TO DISMISS THE MURDER INDICTMENT
Paul D. Wilson, Justice
Defendant Scott Morrison was indicted with others for kidnapping and conspiracy to kidnap in 2014. When the remains of the alleged kidnapping victim were found two years later, the same grand jury issued a second indictment charging Morrison and others with first-degree murder.
Judge Cannone denied Morrison’s first motion to dismiss the murder indictment on December 15, 2016. Then, after the Supreme Judicial Court’s decision concerning the felony-murder rule in Commonwealth v. Brown, 477 Mass. 895 (2017), Morrison filed a renewed motion to dismiss, arguing that Brown undoes the theory employed by the Commonwealth at the grand jury.
I heard argument on February 8, 2018. I will now deny Morrison’s renewed motion to dismiss.
Background
The grand jury was investigating the disappearance of James Robertson, who was taken from his parents’ home in Avon on January 1, 2014, by two persons posing as probation officers. After that day, Mr. Robertson was never again seen alive. One of the persons accused by the grand jury of taking Mr. Robertson is the moving defendant, Morrison, and the other is co-defendant Alfred Ricci. Co-defendant James Feeney is alleged to have arranged the kidnapping and murder of Mr. Robertson.
On December 26, 2015, a hunter discovered a human skull in the woods in Upton. Investigators then found other bones, clothing, and personal possessions, and the remains were identified as belonging to Mr. Robertson. The medical examiner could not determine a cause of death. The second indictment of Morrison (among others), now for first-degree murder, soon followed.
I will lay out the alleged facts in more detail below, as I discuss the adequacy of the evidence before the grand jury to support a murder indictment in a post-Brown world.
Analysis
1. The Changed Law of Felony-Murder
As Defendant Morrison points out, Brown changed the manner in which the common-law felony-murder rule is applied in Massachusetts. The modification is laid out in the concurring opinion of Chief Justice Gants, joined by three other justices. See Brown, 477 Mass. at 807 (where the unanimous opinion of the court, authored by Justice Gaziano, states, " [A] majority of Justices, through the concurrence of Chief Justice Gants, conclude that the scope of felony-murder liability should be prospectively narrowed ...").
Before Brown, " the felony-murder rule in the Commonwealth impose[d] criminal liability for homicide on all participants in a certain common criminal enterprise if a death occurred in the course of that enterprise." Commonwealth v. Watkins, 375 Mass. 472, 486 (1978). It was " no defense for the associates engaged with others in the commission of a robbery, that they did not intend to take life in its perpetration, or that they forbade their companions to kill." Commonwealth v. Devereaux, 256 Mass. 387, 392 (1926). As Chief Justice Gants put it in his Brown concurrence, the old felony-murder theory employed " the fiction of constructive malice- that where a killing occurs in the commission of a felony, the intent to commit the felony is sufficient alone to establish malice" required for a murder conviction. Brown, 477 Mass. at 825 (Gants, C.J., concurring).
After Brown, such substituted intent is no longer permitted. Now a defendant cannot be convicted of murder unless the Commonwealth proves that the defendant intended not just the commission of the underlying felony, but that the defendant had the intent necessary for a murder conviction, namely " that he or she intended to kill or to cause grievous bodily harm, or intended to do an act which, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood that death would result." Id. (Gants, C.J., concurring).
The Commonwealth concedes that its theory before the grand jury was based on " the felony-murder rule at the time." Commonwealth’s Opposition at 10. Nonetheless, the Commonwealth argues, the murder indictment need not be dismissed, for two reasons. First, Brown makes clear that the change in law applies at a future trial, not a past grand jury proceeding. Second, the evidence before the grand jury was sufficient to support the indictment of Morrison for murder even under the standard announced in Brown .
2. Brown Does Not Apply to the Indictment of Morrison
The opinion of the Brown court states that the new felony-murder rule applies only " prospectively." Id. at 807. The opinion of the court goes on to say that a majority of justices " hold that, in trials that commence after the date of the opinion in this case, a defendant may not be convicted of murder without proof of one of the three prongs of malice." Id. Elsewhere the court says that the change in law " is prospective in effect." Id.
And, indeed, that is exactly what Chief Justice Gants says in his four-justice, law-changing concurrence: " in the future, a defendant should not be convicted of murder without proof of one of the three prongs of malice." Id. at 825 (Gants, C.J., concurring). One paragraph later, the Chief Justice repeats, " As noted in the opinion of the court, following the issuance of this concurring opinion, which is joined by three other Justices, a conviction of felony-murder will require a finding of actual malice, not merely constructive malice." Id. (Gants, C.J., concurring). Near the end of his concurrence, Chief Justice Gants again states that " the abolition of felony-murder liability for common-law murder is prospective, applying only to cases where trial begins after our adoption of the change." Id. at 834 (Gants, C.J., concurring).
Based on the future-oriented language found both in the opinion of the court and in the Chief Justice’s concurrence, the Commonwealth argues that the indictment of Morrison, which preceded Brown, therefore is unaffected by Brown . The Commonwealth concedes that it will have to meet the new test of Brown at the trial of this case, but regards that is a separate question from whether the pre-Brown indictment may stand.
Brown is silent as to whether the concurring justices intended to require the dismissal of felony-murder indictments that preceded Brown . But Brown does make clear, both in the opinion of the court and in the Chief Justice’s concurrence, that Brown has prospective effect only. In this way, Brown impliedly holds that dismissal of Morrison’s indictment for murder, which preceded the release of that opinion, is not required.
Brown also makes clear, both in the opinion of the court and in the Chief Justice’s concurrence, that Brown becomes relevant when a case reaches trial. Id. at 807 (the new felony-murder rule applies " in trials that commence after the date of the opinion in this case") (emphasis added); id. at 825 (Gants, C.J., concurring) (" in the future, a defendant should not be convicted of murder without proof of one of the three prongs of malice, " and " a conviction of felony-murder will require a finding of actual malice") (emphasis added). This language provides a second reason why Brown does not mandate dismissal of the indictment of Morrison.
It is quite possible that the justices did not explicitly address pre-Brown indictments because Brown so clearly applies to trials of those indictments, thus guaranteeing that all felony-murder defendants will obtain its benefit. In some cases, the Commonwealth will conclude that it cannot prove felony-murder at trial under the new Brown standard, and so it will dismiss the pre-Brown murder indictment. In other cases, such as this one, the Commonwealth will go forward with the murder charge at trial because it believes that it can convict a defendant even applying new Brown rule. And so Morrison, like all not-yet-tried persons indicted for felony-murder before Brown, will reap the benefits of the new rule, because the Commonwealth properly concedes that it cannot convict Morrison at his future trial without meeting the requirements of Brown .
Because Brown does not affect the validity of a past indictment so long as its requirements are met at a future trial, I must deny the renewed motion to dismiss.
3. The Grand Jury Heard Evidence Sufficient to Indict Morrison under the Brown Test
Because I rule Brown inapplicable to the indictment, I could end my analysis there. However, out of an abundance of caution, I will also consider the Commonwealth’s second argument, which is that the grand jury heard evidence sufficient to indict Morrison for first degree murder even under the new Brown standard.
Relying on Commonwealth v. McCarthy, 385 Mass. 160 (1982), Morrison contends that, under the Brown standard, the Commonwealth did not present sufficient evidence to the grand jury to establish " probable cause to arrest" him for murder. Id. at 163. While there is no mechanical guide for assessing the sufficiency of the evidence before the grand jury, the relevant inquiry is " whether the grand jury heard ‘reasonably trustworthy information ... sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offense.’ " Commonwealth v. Club Caravan, Inc., 30 Mass.App.Ct. 561, 567 (1991), quoting McCarthy, 385 Mass. at 163. The court must dismiss the indictment if the grand jury heard " no evidence of criminality" on the part of the accused. Commonwealth v. Caracciola, 409 Mass. 648, 650 (1991) (emphasis in original) (applying McCarthy).
Morrison does not dispute that the grand jury heard evidence supporting probable cause to believe that Mr. Robertson had been murdered. Morrison does not dispute that the grand jury heard evidence supporting probable cause to believe that Morrison was a participant in the events occurring on the day of Mr. Robertson’s kidnapping that led up to that murder. Indeed, by the narrow scope of his renewed motion to dismiss, Morrison implicitly concedes that the grand jury heard evidence sufficient to indict Morrison for kidnapping. Morrison disputes only that the grand jury heard evidence sufficient to indict him for felony-murder now that Brown is the law.
Under Brown, before a defendant can be convicted of murder, the jury must be convinced that he had the intent necessary for a murder conviction, namely " that he or she intended to kill or to cause grievous bodily harm, or intended to do an act which, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood that death would result." Brown, 477 Mass. at 825 (Gants, C.J., concurring). The evidence before the grand jury, therefore, must provide probable cause to believe (among other things) that Morrison had this intent. The grand jury heard evidence that satisfied this test.
At its first session, the grand jury heard from a state trooper about statements made by co-defendant Ricci in a state police interview on May 28, 2014. In that interview, Ricci told the state police that co-defendant Feeney had been " obsessing over Robertson ... angry because Robertson was dating his ex-girlfriend, Andrea. Feeney also believed that Robertson was an informant" concerning Feeney’s business of selling illegal narcotics. June 26, 2014 Grand Jury Transcript at 36-37. Given the close contact and regular contact between Feeney and Morrison, some of which is described below, the grand jury could reasonably have inferred that Morrison was well aware of Feeney’s obsession and anger concerning Mr. Robertson.
In late 2013, the grand jury heard, Feeney told Ricci and Morrison that he wanted to speak to Mr. Robertson face-to-face. At this time, Ricci and Morrison each owed Feeney approximately $2,000 or $3,000 for illegal narcotics that they had purchased from him. Feeney told Morrison and Ricci that, if they brought Mr. Robertson to him, he would wipe their debts clean and give them some additional illegal pills. Feeney gave Ricci and Morrison instructions on where to find Mr. Robertson, and what to do with him when they did.
The grand jury also heard testimony by Michael Schoener, a Dedham police officer who was spending about $300 a week buying Percocet from Feeney in late 2013. (The grand jury indicted Schoener as an accessory before the fact of kidnapping.) The grand jury could reasonably have concluded that Schoener’s testimony described actions taken by Feeney in preparation for the kidnapping and murder of Mr. Robertson.
Officer Schoener told the grand jury that, around Thanksgiving 2013, Feeney asked Schoener for a copy of Mr. Robertson’s criminal record, and Schoener ran that record, in the form of a Board of Probation report, and gave it to Feeney. At the same time, Schoener also used his access as a police officer to obtain a copy of Mr. Robertson’s driver’s license photo, and he gave that to Feeney as well. Then, after Christmas 2013, Feeney asked to borrow Schoener’s Dedham police badge, handcuffs, and holster. Feeney already owned a black handgun, which he had showed to Schoener.
These items then turned up in the possession of Defendant Morrison (whom, Schoener testified, he had met once or twice at Feeney’s home) on the day of Mr. Robertson’s abduction, January 1, 2014. According to Ricci’s statement presented to the grand jury, on that day Morrison picked up Ricci at Ricci’s home in Canton. In Morrison’s car was a duffel bag, provided by Feeney, containing a police badge, a black handgun and holster, and a manila folder containing a full-size picture of Mr. Robertson and papers that Ricci believed to be Mr. Robertson’s criminal record. Morrison also possessed handcuffs, which were later used to cuff Mr. Robertson.
Ricci’s statement further informed the grand jury that Feeney called Ricci and Morrison when they were together in Morrison’s car on January 1, 2014. Corroborating this statement was testimony from a state trooper about phone records showing several calls between Morrison and Feeney and Ricci on the morning of January 1, 2014, culminating in a call from Feeney to Morrison at 12:12 P.M. Phone records supporting this testimony were introduced into evidence. Shortly after this call, Morrison drove directly to the house of Mr. Robertson’s parents in Avon, where he and Ricci expected to find Mr. Robertson. Mr. Robertson was in the front yard. Morrison left his vehicle wearing the police badge and gun and carrying the manila folder. Ricci also left the vehicle.
Morrison told Mr. Robertson that he and Ricci were probation officers and they needed Mr. Robertson to come with them to take a urine test. Ricci and Morrison put Mr. Robertson in Morrison’s car at approximately 12:50 P.M. Morrison and Ricci handcuffed Mr. Robertson. Mr. Robertson’s cell phone, through which he had communicated with his girlfriend (who was also Feeney’s ex-girlfriend) at 12:40 P.M., was never used again.
The phone records entered into evidence showed that Morrison texted Feeney at 12:52 P.M. In his statement, Ricci said that the purpose of this text was to tell Feeney that Morrison and Ricci now had Mr. Robertson.
Morrison drove back to Ricci’s home, where Feeney was waiting in Feeney’s own car. Ricci and Morrison put Mr. Robertson in the front passenger seat of Feeney’s car, next to Feeney, still handcuffed. Morrison put the gun, badge, and paperwork back into the duffel bag and gave it to Feeney. (Officer Schoener told the grand jury that Feeney returned Schoener’s badge, handcuffs and holster on January 1, 2014 between 3:30 and 4:00 P.M.) Ricci gave Feeney Mr. Robertson’s cell phone. Feeney gave Ricci and Morrison four or five Percocet pills apiece.
Feeney then left Ricci’s house with Mr. Robertson, returning later with Mr. Robertson still in his car. Meanwhile, Morrison and Ricci went to Rocky’s Ace Hardware in Canton. The grand jury was shown photographs taken from surveillance tapes at that store, which show Ricci and Morrison purchasing duct tape between 1:48 P.M. and 1:53 P.M. on January 1, 2014. One photo shows Morrison holding the duct tape at the cash register. Also introduced into evidence before the grand jury was a receipt for the purchase of 20 yards of black duct tape at this store at 2:00 P.M. on January 1, 2014; that receipt indicated that Ricci’s loyalty card was used in the transaction.
The grand jury also learned from Ricci’s statement that Feeney came back to Ricci’s home, again with Robertson, around dusk. Morrison also arrived at Ricci’s house. Morrison then got into Feeney’s vehicle, which drove off. About a half-hour later, Feeney drove back to Ricci’s house, still with Morrison and Robertson in his car. This time Ricci stayed in his house.
Ricci and Feeney had a 30-minute phone conversation at 7:19 P.M. Ricci stated that Feeney did most of the talking, complaining about Mr. Robertson hooking up with Feeney’s ex-girlfriend and about Mr. Robertson being an informant. Because Morrison was with Feeney both before and after this call, the grand jury could reasonably infer that Morrison heard Feeney expressing his continuing antipathy and anger toward Mr. Robertson.
Then, around 11:00 P.M. that night, Feeney called Ricci and told him that he needed a hand with something. Ricci said he could not help because he was entertaining his cousin and could not leave. This response angered Feeney. The grand jury heard state police testimony, and saw phone records, that suggested that Feeney and Morrison were still together at around this time, because both of their phones were in Norfolk Center at approximately 10:45 P.M. on January 1, 2014.
In February 2014, police searched Feeney’s apartment pursuant to a search warrant issued in a drug case. They found a black duffel bag containing handcuffs, a police baton, leg irons, plastics zip ties, rags, and plastic bags. The state police crime lab tested blood discovered on some of these items, and found that it matched the DNA profile of Mr. Robertson.
Mr. Robertson’s debit card, attached to a bank account that contained money, was never used after January 1, 2014. When his remains were found nearly two years later, it appeared that he died while wearing the clothing that he wore in January 1, 2014.
In summary, the grand jury heard that, in exchange for wiping out a drug debt to his dealer Feeney, Morrison kidnapped Mr. Robertson, handcuffed him, and brought him to Feeney. After delivering the handcuffed Mr. Robertson, Morrison and his fellow kidnapper Ricci went to a hardware store and bought duct tape, which, the grand jury could reasonably infer, was for Feeney to employ with Mr. Robertson.
Morrison well knew that Feeney was extremely upset with Mr. Robertson for two reasons: Feeney’s girlfriend had left him for Mr. Robertson, and Feeney believed that Mr. Robertson was informing the police concerning Mr. Feeney’s drug dealing. After delivering Mr. Robertson to Feeney, and purchasing the duct tape, Morrison rejoined Feeney, and the still-handcuffed Mr. Robertson, in Feeney’s car. As. Feeney drove around with his prisoner and his co-defendant Morrison, Feeney spent a half-hour on the phone with Ricci expressing his anger over Mr. Robertson’s relationship with Feeney’s ex-girlfriend and Mr. Robertson’s supposed informing to the police. The evidence supported an inference that Morrison was present in the car listening to Feeney’s complaints. Indeed, the cell phone records suggested that Morrison was with Feeney as late as 10:45 P.M., 10 hours after Morrison and Ricci delivered the helpless Mr. Robertson to Feeney. Fifteen minutes after that, Feeney called Ricci looking for help with an unnamed task, reacting angrily when Ricci rebuffed him.
After Brown, a person can be convicted of murder if the jury finds that he " intended to do an act which, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood that death would result." Brown, 477 Mass. at 825 (Gants, C.J., concurring). To indict, however, the grand jury was required to find only probable cause, which means " more than mere suspicion but something less than evidence sufficient to warrant a conviction." Commonwealth v. Roman, 414 Mass. 642, 643 (1993), quoting Commonwealth v. Hason, 387 Mass. 169, 174 (1982). " Probable cause to sustain an indictment is a decidedly low standard." Commonwealth v. Hanright, 466 Mass. 303, 311 (2013).
Here, the evidence before the grand jury might not provide proof beyond a reasonable doubt that Morrison had the intent required by Brown . But proof beyond a reasonable doubt is not the test at the grand jury stage. There the Commonwealth need only introduce evidence to meet that " decidedly low standard" of probable cause to believe that Morrison had the required intent. The evidence before the grand jury, including the evidence described above, provided the grand jury with probable cause to believe that Morrison intended to do an act which, in the circumstances known to him, a reasonable person would have known created a plain and strong likelihood that Mr. Robertson’s death would result.
Conclusion and Order
The change in law wrought by Brown applies prospectively, and only at trial, and thus does not require dismissal of the murder indictment. Even if that were not so, the grand jury heard evidence sufficient to support a finding of probable cause to believe that Mr. Morrison had the intent required for a murder conviction even after Brown .
Defendant Morrison’s Renewed Motion to Dismiss Murder Indictment is DENIED.