NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; [email protected]

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 2

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 3

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. 4

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,

(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,

(2007),

quoting Rivera,

. 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,

, 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 5

bias." Commonwealth v. Caruso,

, 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,

.

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,

(2017). 6

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,

.

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,

Nor was there any discussion as to the admissibility of the prior consistent statements because defense counsel made no objection. 7

at 284-285, citing Commonwealth v. Gaulden,

(1981), and Commonwealth v. Brady,

(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,

, cert. denied,

(2015), quoting Commonwealth v. Tucker,

(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.