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Commonwealth v. Morin

Supreme Judicial Court of Massachusetts, Bristol

November 21, 2017


          Heard: May 5, 2017.

         Indictment found and returned in the Superior Court Department on February 9, 2010.

         The case tried before Robert J. Kane, J., and a motion for a new trial, filed on August 4, 2014, was heard by him.

          Robert F. Shaw, Jr., for the defendant.

          Mary E. O'Neil, Assistant District Attorney, for the Commonwealth.

          Chauncey B. Wood, K. Neil Austin, Christopher E. Hart, & Kelly S. Caiazzo, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

          Present: Gants, C.J., Lenk, Hines, & Gaziano, JJ.[1]

          GAZIANO, J.

         A Superior Court jury found the defendant guilty of murder in the first degree on the theory of felony-murder, with unarmed robbery as the predicate felony, in the death of Chad Fleming on November 3, 2009. At trial, the Commonwealth's theory was that the defendant, along with his codefendant, Nelson Melo, and two unknown accomplices, robbed the victim of drugs and money, and that the killing occurred in connection with the robbery.[2] The defendant argues in this appeal, as he did in his motion for a new trial, that trial counsel's failure to file a motion to suppress the search of the defendant's cellular telephone constituted ineffective assistance of counsel. In addition, the defendant raises the following claims of error at trial: (1) the evidence was insufficient for a jury to find that the victim's death was connected to the robbery or that the unarmed robbery was committed with conscious disregard for the risk to human life; (2) the instruction on felony-murder was erroneous; and (3) the judge abused his discretion in excluding testimony concerning a statement made by the victim. Finally, the defendant contends that this court should abolish the common-law felony-murder rule.

         We conclude that the evidence was sufficient to support his conviction, but that the defendant is entitled to a new trial because his trial counsel was ineffective for failing to have filed a motion to suppress the search of his cellular telephone; and the improperly seized evidence from that device, which was introduced at trial, likely influenced the jury's verdict. Because several other issues raised by the defendant may arise upon retrial, we also address these arguments.[3]

         1. Facts.

         We summarize the facts the jury could have found, viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), and reserving some facts for our discussion of specific issues.

         The defendant sold large quantities of Percocet pills in areas of southeastern Massachusetts. His codefendant was his source of supply. The codefendant, in turn, obtained his supply of thirty-milligram Percocet pills from the victim, most often through express mail packages shipped from Florida, where the victim lived, to Massachusetts.

         Sometime in October, 2009, the defendant became dissatisfied with this arrangement, after the codefendant began shortchanging the victim by paying him less than the full amount had been arranged for the pills, and the victim, angered at not receiving the agreed price, began selling pills directly to customers in Massachusetts, undercutting the defendant's sales. The defendant related his frustration to the codefendant and to a friend, Maurice Butler. He told Butler, who was also a friend of the victim, that he was "getting mad that now [the pills] were going other places."

         A few days before November 3, 2009, the defendant attempted to recruit some people to help him rob the victim. He contacted Butler and offered him "a chance for you to make some money . . . if you want to get in on this." Butler had need of the money, but was wary because he thought that the money-making opportunity involved robbing the victim. He told the defendant that the victim trusted him and that he would never rob the victim. After this remark, the defendant ended the conversation.

         On November 2, 2009, the defendant called another friend, Michael Matteson. They met at a restaurant, and the defendant asked Matteson if he "wanted to make some extra money" by helping him rob his "connect's connect" for "a bunch of Percs." In exchange for Matteson's assistance, the defendant offered to forgive a $2, 000 debt Matteson owed him, and to pay Matteson an additional $5, 000. Matteson did not know the drug supplier's identity, but learned that he was traveling from Florida, and would be arriving the following day.

         The defendant told Matteson that the robbery would take place at an apartment owned by the codefendant. The codefendant would use the promise of a drug deal to lure his "connect" to the apartment. The codefendant would bring with him approximately $40, 000 in cash, which he purportedly would use to purchase a "few thousand Perc 30's" from the victim. The codefendant would leave the back door open, so that the defendant, Matteson, and others could enter. They would "run in, grab the stuff, and leave." Matteson's role would be to grab the "money and drugs" from the table, and to get out of the house. The defendant would "take care" of the codefendant during the robbery, e.g., would make it appear to the victim as though the codefendant were not involved. The defendant summarized the plan by saying that "[i]t was just supposed to be a quick rip" and "[i]t would be easy, " because the victim was young and would be easily intimidated. Matteson did not agree to participate at that point, and the defendant told him to think about it.[4]

         On the same day, the defendant visited the codefendant at his house. The codefendant's wife, Kendra Melo, [5] overheard the defendant whispering to her husband that he, or they, would "take care of it" and also whispering "something about wearing a black hat."

         On the day of the robbery, November 3, 2009, the codefendant told Michael Stenstream, the second-floor tenant in the building where the robbery was to take place, [6] not to be in the apartment that evening. At some point during the day, Kendra saw the codefendant holding a box full of $58, 000 in cash, and talking to someone on the telephone; she heard him say, "[a]m I going to get it back?" Sometime between 7:30 and 8 P.M., the codefendant left his house, wearing a black hat.

         When the codefendant arrived at his rental property, he spoke with his sister, Lucia (Lucy) Rodriguez, who lived in the first floor apartment with her husband, Gabriel Rodriguez, and their three children.[7] The codefendant then went upstairs. At approximately 8:30 P.M., he called Kendra. While they were talking, she received a call from the victim. When Kendra told the codefendant the name of the caller, the codefendant instructed her to tell the victim that they would meet at the apartment, rather than at the house where the codefendant and Kendra lived. At approximately 8:45 P.M., Stenstream and his girl friend left their apartment and went to dinner at a nearby restaurant.

         Approximately forty-five minutes later, several other individuals arrived at the house and went upstairs. After a few minutes, Lucy and Gabriel Rodriguez heard loud banging coming from the upstairs apartment. It sounded like people running around. The noise lasted a few minutes and caused the chandelier in the Rodriguez's apartment to shake. About a minute later, the codefendant came downstairs. Lucy heard more loud noises from upstairs. They sounded like "a fight going on" and "stuff breaking." The codefendant ran out of the apartment, heading for the stairs. Before he could run up the stairs, what sounded like three sets of footsteps ran down the stairs; Lucy then saw an automobile carrying what looked like three people pull out of her driveway and drive away. The codefendant came downstairs looking "a little scared, " and grabbed some bags of frozen peas from the freezer. Shortly after these individuals left, Lucy heard a voice she did not recognize coming from upstairs.[8] A little while later, Lucy went upstairs, and saw the codefendant bending over the victim, who was unconscious and laying on a bed. She did not see anyone else in the apartment. She attempted to determine whether the victim had a pulse, but was unable to locate one. At the codefendant's request, she left to go down the street and get his wife, Kendra, to help him take the victim to the hospital.

         At some point that evening, the defendant called Kendra; he sounded out of breath and said, "[t]hat kid was tough."

         A few minutes before 10 P.M., Stenstream and his girl friend returned to their apartment. There was blood on the carpeting, the walls, and the sofa in the living room. Some decorations had been knocked over and were broken. Stenstream found the codefendant in one of the bedrooms, standing over the victim, who was lying face up on the bed. The codefendant looked panicked, and was imploring the victim to wake up.

         After some discussion, the codefendant agreed to take the victim to the hospital. Stenstream helped carry the lifeless victim downstairs to the victim's vehicle. Gabriel opened the door, and Stenstream and the codefendant placed the victim inside the vehicle. Stenstream then cleaned up his apartment by removing blood stains from the floor and walls. He found two large plastic "zip ties, " one in the living room and one in the kitchen. The one in the living room had been cut, and one had blood on it. He put both zip ties in the trash.[9] Stenstream also found a wallet on the floor near the bed in the spare bedroom; it contained the victim's driver's license.

         The codefendant arrived at the hospital with the victim at approximately 11 P.M. An emergency department physician determined immediately that the victim, who was in the beginning stages of rigor mortis, was dead. The physician noted a cut on the victim's head, blood on his face and nose, and dried blood around his mouth. The medical examiner determined that the victim had been severely beaten; he had deep lacerations and abrasions on his head, internal injuries to his torso, bruises and abrasions on arms and legs, and two broken ribs; none of those injuries would have been sufficient to cause death. The cause of death was asphyxia by strangulation.

         On November 5, 2009, two days after the victim's death, the defendant met with Matteson. He told Matteson to "get the battery out of [Matteson's cellular telephone], so that no one can hear the conversation." The defendant said that if the police asked Matteson where he had been in the evening of November 3, 2009, he was to say that he had been with the defendant at a restaurant.

          A few days after the victim's death, when the codefendant had been arrested, the defendant called Kendra and told her he would give her some money. Kendra went to the defendant's house, and he gave her $5, 000. The defendant told Kendra ...

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