Commonwealth v. Morales

899 N.E.2d 96, 453 Mass. 40, 2009 Mass. LEXIS 8
CourtMassachusetts Supreme Judicial Court
DecidedJanuary 9, 2009
StatusPublished
Cited by25 cases

This text of 899 N.E.2d 96 (Commonwealth v. Morales) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Morales, 899 N.E.2d 96, 453 Mass. 40, 2009 Mass. LEXIS 8 (Mass. 2009).

Opinion

Spina, J.

The defendant was convicted of the deliberately premeditated murder of Daylan Shepard, the assault by means of a dangerous weapon of Travis Brown, the armed assault with intent to murder Travis Brown, and unlawful possession of a firearm. Represented by first appellate counsel, he filed a motion for a new trial, alleging ineffective assistance of counsel, which was denied. Represented by second (present) appellate counsel, he filed a second motion for a new trial, alleging ineffective assistance of counsel, which also was denied. He appealed from the denial of each motion for a new trial, and those appeals have been consolidated with his direct appeal, which alleges error in the failure to give a missing witness instruction, error in the form of the indictment, and improprieties in the prosecutor’s closing argument. We now affirm the convictions and the denial of both motions for a new trial, and we decline to exercise our authority under G. L. c. 278, § 33E.

1. Background. The jury could have found the following facts. On July 4, 2004, Patrick Bullard was shot and killed. He was a member of the Eastern Avenue gang in Springfield. Tameka Patterson, a daughter of the defendant’s girl friend, Sheila Brady, was shot in the face during the same incident. A friend of Patterson recognized the shooters as members of a rival gang known as the Gunn Square gang. Patterson, her mother, and the defendant lived together, and the defendant talked of seeking revenge for Patterson’s shooting.

On the evening of July 10, 2004, Marquis Nixon was at the home of the defendant and Sheila Brady. While outside on the porch, the defendant asked Nixon for a ride to a store. Nixon, who had plans to go to a party, reluctantly agreed after the defendant said it would be “quick.” The defendant went inside, obtained a gun, and placed it in his waistband. Leo White, who was in the house, saw this and followed the defendant outside. The three men entered Nixon’s car. Nixon drove, the defendant sat in the [42]*42front passenger seat, and White sat behind the defendant. They proceeded toward Gunn Square, near the comer of Northampton Avenue and Beverly Street. The defendant told Nixon to pull over, park past the comer of Northampton Avenue and Beverly Street, and turn off his headlights. He left the engine running. The defendant and White got out of the car and walked toward a store at the comer of Beverly Street and Wilbraham Avenue.

In the meantime, nineteen year old Daylan Shepard and seventeen year old Travis Brown had been visiting a friend at his home on Massachusetts Avenue in Springfield. At approximately 11 p.m. Shepard and Brown walked to the same store at the comer of Beverly Street and Wilbraham Avenue where the defendant and White were headed. After buying some snacks they began to walk back. Brown saw two men standing at the far end of Beverly Street, but he could not make out their features because it was too dark. The two men he saw were the defendant and Leo White. When the defendant saw the two boys emerge from the comer store, he asked White if they were “the kids that shot” Bullard and Tameka Patterson the week before. White could not identify the two boys, and so told the defendant. The defendant nevertheless pulled out his gun and started shooting at the boys, who were at least twenty feet away.

Brown saw a flash and heard a shot coming from the direction of the two men. He and Shepard turned and ran. Brown then heard about six more shots. As they ran through some backyards Shepard said he had been shot. He collapsed behind a house on Northampton Avenue. Brown knocked on the back door of the house to try to get help, but no one answered. He then ran back to his friend’s house and telephoned 911. Brown returned to the scene, where he saw Shepard being placed in an ambulance. Shepard died from a single gunshot wound to his left lower back.

Meanwhile White and the defendant had run back to the car where Nixon was waiting. Nixon had heard the shots. When the defendant was inside the car, he said, “We got ’em.” Nixon asked, “Who?” White replied, “The people that shot Pat.” Nixon drove the two men back to the defendant’s house.

Police recovered nine spent shell casings in front of 7 and 9 Beverly Street, about sixty feet from its intersection with Wil-braham Avenue. The casings were all within about two and one-[43]*43half feet of each other. Several projectiles were recovered from inside a building on Wilbraham Avenue, across from Beverly Street and the comer store. A projectile was found in a truck parked in front of the corner store, and projectile fragments were found in front of the store. In mid-July the defendant sold a nine millimeter semiautomatic handgun to George Lovejoy. Lovejoy’s cousin, Bridget Morris, was present during the sale. She kept the gun at her house in Springfield, and turned it over to Springfield police on October 27, 2004.

A State police ballistics expert determined that all the recovered shell casings had been fired by the nine millimeter handgun recovered from Morris. He further determined that four spent projectiles that had been recovered were intact and could be compared to a projectile test-fired from the nine millimeter handgun. One was found outside the building on Wilbraham Avenue; one was found inside the same building; one was inside the track parked in front of the comer store; and the fourth was recovered from Shepard’s body at autopsy. The ballistician determined that all four projectiles had been fired from the nine millimeter handgun turned in by Morris.

Nixon and White testified at trial pursuant to written cooperation agreements. Nixon had been arrested on July 20, 2004, and indicted for illegal possession of a firearm unrelated to the July 10, 2004, shooting. At that time he gave a statement about the Shepard murder; he was not charged with Shepard’s murder. White also was arrested on a charge of illegal possession of a firearm, in which Nixon was involved. White had been charged with the murder of Shepard and the assault with intent to murder Brown. Initially he told police that Nixon and the defendant had gotten out of the car, rather than the defendant and himself.

2. First motion for a new trial. The defendant argues that trial counsel deprived him of the effective assistance of counsel in two respects, failure to present an alibi defense and failure to challenge a juror who may have been sleeping.

Claims of ineffective assistance of counsel in noncapital cases are reviewed “to see whether there has been serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer — and, if that is found, then, typically, [44]*44whether it has likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Satterfield, 373 Mass. 109, 115 n.10 (1977), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). A strategic decision amounts to ineffective assistance “only if it was manifestly unreasonable when made.” Commonwealth v. Martin, 427 Mass. 816, 822 (1998). See Commonwealth v. Adams, 314 Mass. 722, 728-729 (1978). Where the claim of ineffective assistance is raised in a motion for a new trial that has been denied, and where the appeal from the denial of that motion is raised in conjunction with a direct appeal under G. L. c.

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Bluebook (online)
899 N.E.2d 96, 453 Mass. 40, 2009 Mass. LEXIS 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-morales-mass-2009.