MEMORANDUM OF DECISION AND ORDER ON DEFENDANTâS
RENEWED MOTION TO DISMISS THE MURDER INDICTMENT
D. Wilson, Justice
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.
Cannone denied Morrisonâs first motion to dismiss the murder
indictment on December 15, 2016. Then, after the Supreme
Judicial Courtâs 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.
argument on February 8, 2018. I will now deny Morrisonâs
renewed motion to dismiss.
grand jury was investigating the disappearance of James
Robertson, who was taken from his parentsâ 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.
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.
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.
Changed Law of Felony-Murder
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
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,
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).
Commonwealth concedes that its theory before the grand jury
was based on " the felony-murder rule at the time."
Commonwealthâs 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