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Commonwealth v. Morrison

Superior Court of Massachusetts, Norfolk

March 1, 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 ...


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