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Commonwealth v. Morales

Supreme Judicial Court of Massachusetts, Norfolk

December 17, 2019

COMMONWEALTH
v.
ARIEL MORALES.

          Heard: October 7, 2019.

          Indictments found and returned in the Superior Court Department on April 1, 2008. The cases were tried before Janet L. Sanders, J.

          Brian J. Kelly for the defendant.

          Tracey A. Cusick, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Lenk, Lowy, Budd, & Kafker, JJ.

          BUDD, J.

         The defendant, Ariel Morales, was convicted by a jury of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty, and of conspiracy to commit murder in connection with the shooting death of Carlos Gomez. On appeal, the defendant contends that the trial judge abused her discretion by allowing a State police trooper to testify to the prior statements of a key witness that were consistent with that witness's trial testimony. This alleged error, the defendant argues, gave rise to a substantial likelihood of a miscarriage of justice. Alternatively, the defendant requests that we exercise our authority pursuant to G. L. c. 278, § 33E, to reduce the verdict or order a new trial. Upon full review of the record, we affirm and decline to grant extraordinary relief under § 33E.

         Background.

         We summarize the facts the jury could have found, reserving certain details for discussion. On the evening of October 14, 2007, the victim met with Luis Lopez, a drug dealer to whom the victim owed money; Jose Perez, who worked for Lopez selling drugs; and the defendant, Lopez's brother-in-law. The victim had a money order, payable to a third party, that the victim planned to use to repay the money owed to Lopez. Lopez drove the men to several different convenience stores in order for the victim to try to cash the money order; however, the victim was unsuccessful.

         While the victim was inside the last convenience store visited, attempting to cash the money order for a final time, Lopez asked the defendant to kill the victim. The victim returned to the vehicle, having been unable to obtain cash to repay Lopez, and Lopez resumed driving. At some point the defendant asked him to stop so that the defendant could smoke a cigarette. Lopez stopped on a dark road, and both the defendant and the victim got out of the car to smoke. The defendant then drew a firearm from his waistband, called the victim's name, and shot him in the forehead. When the victim fell to the ground, the defendant stood over him and shot him several more times. The victim was discovered hours later lying on the side of the road in a pool of blood, holding the money order in his hand.

         Discussion.

         1. Prior consistent statements.

         Perez, who gave a statement to police after his arrest, was a key witness for the Commonwealth. Among other things, he testified as to events that took place before and after the killing, as well as to details of the shooting itself. Although Perez originally was charged with murder in the first degree, months after providing his account of the events to the police, he reached an agreement with the Commonwealth in which he pleaded guilty to accessory to murder after the fact and received a sentence of from five to six years.

         The prosecutor also called as a witness the State police trooper who interviewed Perez. Through the trooper's testimony, the jury learned that the statements Perez made regarding the killing during his interrogation were consistent with his testimony. The defendant argues that the judge erred in admitting Perez's prior ...


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