Commonwealth v. Morales ( 2019 )

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SJC-10917
COMMONWEALTH vs. ARIEL MORALES.
Norfolk. October 7, 2019. - December 17, 2019.
Present: Gants, C.J., Lenk, Lowy, Budd, & Kafker, JJ.
Homicide. Evidence, Prior consistent statement. Practice,
Criminal, Capital case.
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.
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
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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
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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 consistent statements through the
trooper because they improperly bolstered Perez's credibility.
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We note at the outset that, because trial counsel failed to
object to any portion of the trooper's testimony, we review the
matter to determine whether any error in admitting the testimony
created a substantial likelihood of a miscarriage of
justice. Commonwealth v. Rivera, 430 Mass. 91, 99 (1999). For
the reasons set forth infra, we find no error in the admission
of the prior consistent statements.
"A witness's prior statement that is consistent with that
witness's trial testimony is usually
inadmissible." Commonwealth v. Novo, 449 Mass. 84, 93 (2007),
quoting Rivera, 430 Mass. at 99. See Mass. G. Evid. § 613(b)(1)
(2019). This is because "the testimony of a witness in court
should not need -- and ought not -- to be 'pumped up' by
evidence that the witness said the same thing on some prior
occasion." Commonwealth v. Kindell, 44 Mass. App. Ct. 200, 202-
203 (1998), citing 4 J.H. Wigmore, Evidence § 1124, at 255
(Chadbourne rev. ed. 1972).
However, "the use of prior consistent statements to
rehabilitate a witness is permissible when a court finds that a
party has claimed that a witness's in-court testimony is the
result of recent contrivance or bias, so long as the prior
consistent statement was made before the witness had a motive to
fabricate or the occurrence of an event indicating a
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bias." Commonwealth v. Caruso, 476 Mass. 275, 284 n.5 (2017),
and cases cited. See Mass. G. Evid. § 613(b)(2).
Before admitting a prior consistent statement, the trial
judge must determine that, in fact, the opposing party has
claimed that a witness's in-court testimony is a recent
fabrication, and that the prior consistent statement was made
before the witness had a motive to fabricate his or her trial
testimony. 1 See Caruso, 476 Mass. at 284.
Here, the defendant contends that Perez's prior consistent
statements were admitted improperly because the defendant did
not suggest that Perez's testimony was a recent contrivance. We
disagree. At the outset, defense counsel specifically
challenged Perez's credibility, contending during his opening
statement that "[Perez] cut a deal to blame somebody else for
what he did." Later, on cross-examination, defense counsel
asked Perez about the specific details of the agreement.
The defendant argues that trial counsel's cross-examination
of Perez "barely mentioned" Perez's plea agreement, and "never
raised any claim of recent contrivance or motive to lie." He
further points out that, because the prosecutor already had
established the existence of a plea agreement during the direct
1 These findings should be made on the record outside the
presence of the jury. Commonwealth v. Caruso, 476 Mass. 275,
284 (2017).
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examination, trial counsel's questions on the matter were
cumulative and of little consequence. Thus, the defendant
reasons, the impeachment of Perez could not be considered as an
assertion of recent contrivance that opened the door to the
admission of prior consistent statements. See Caruso, 476 Mass.
at 284.
This argument is unpersuasive. Defense counsel's
references to Perez's plea agreement during the opening
statement and during cross-examination served no other purpose
than to establish that Perez was motivated to fabricate his
testimony in exchange for a lesser sentence. We conclude that
defense counsel indeed raised the issue of recent contrivance
and that the judge unambiguously so found.
With regard to whether Perez's prior consistent statements
to the trooper preceded the plea agreement Perez reached with
the Commonwealth, the judge did not make an explicit finding on
the issue, and the defendant does not argue this point on
appeal. 2 At any rate, the failure to make the requisite findings
explicitly is not reversible error, so long as the findings are
both implied and supported by the record. See Caruso, 476 Mass.
2 Nor was there any discussion as to the admissibility of
the prior consistent statements because defense counsel made no
objection.
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at 284-285, citing Commonwealth v. Gaulden, 383 Mass. 543, 547
(1981), and Commonwealth v. Brady, 380 Mass. 44, 52 (1980).
Here, it is undisputed that the statements that Perez made
to the trooper preceded Perez's agreement to testify for the
Commonwealth in exchange for a reduced sentence. We thus
conclude that the judge did not abuse her discretion in
admitting the prior consistent statements. 3 See Commonwealth
v. Lessieur, 472 Mass. 317, 323, cert. denied, 136 S. Ct. 418
(2015), quoting Commonwealth v. Tucker, 189 Mass. 457, 485
(1905) ("admission or exclusion of [prior consistent statements]
rests largely in the discretion of the trial [judge]").
2. Relief pursuant to G. L. c. 278, § 33E. The defendant
also requests that this court exercise its authority either to
reduce his verdict or to order a new trial. The defendant
points to no reason why this court should do so, beyond the
admission of Perez's prior consistent statements, which, as
discussed supra, we have determined to be proper. Pursuant to
our duty under G. L. c. 211, § 3, we carefully have reviewed the
entire record and discern no reason to grant a new trial or to
reduce the verdict of murder in the first degree.
Judgments affirmed.
3 We note that the judge properly gave the jury a limiting
instruction explaining that Perez's prior consistent statement
could only be considered to rebut the claim of recent
contrivance.