Sometime on the afternoon of March 8, 2000, the defendant, Dana H. Morgan (Morgan), received a telephone call from Louis Heinold. Heinold threatened to harm Morgan’s son, Dana John Morgan (who is known as Dane), if Dane did not take the blame for drug possession charges recently filed against Dane and Heinold. That evening, Heinold was stabbed to death in his room. Two years later, Morgan confessed to killing Heinold, a confession he recanted at trial. On October 22, 2003, a jury convicted Morgan of murder in the first degree on the theory of deliberate premeditation and of committing perjury before the grand jury that had originally investigated Heinold’s death.
On appeal from his convictions and from the denial of his motions for postconviction discovery and a new trial, Morgan claims that (1) his trial counsel was ineffective in failing to seek the assistance of independent experts to challenge the Commonwealth’s blood evidence and opinion testimony regarding the nature of the weapon that inflicted the fatal wounds; and (2) the trial judge committed error by denying his motion for the postconviction appointment of expert witnesses, and by denying his new trial motion without an evidentiary hearing. We affirm the convictions and the order denying postconviction discovery and a new trial.
1. Trial. The Commonwealth presented the following evidence, which the jury could have concluded was credible. In January, 2000, Morgan was forty-seven years old and lived on the second floor of a rooming house with his twenty-one year old son, Dane. The rooming house was a three-story structure consisting of private rooms separated by common hallways with common bathrooms. Heinold lived directly above Morgan and Dane in a room on the third floor. Mark Padovano and Pam Johnson (Heinold’s former girl friend) were sharing a different room on the third floor.
Dane and Heinold engaged in intravenous drug use together. This relationship angered Morgan, who had repeatedly asked Heinold (who was much older than Dane) not to involve Dane in his drug activity. However, on January 7, 2000, Dane and
On March 8, 2000, Morgan worked his regular 10 a.m. to 9 p.m. shift as a cook at a delicatessen. While at work, Morgan received a telephone call from Heinold informing him that Hei-nold intended to do serious harm to Dane, which Morgan took to mean administering a lethal overdose of heroin, if Dane did not take the blame for the drug possession charges filed against him in January. This threatening telephone call threw Morgan into a “tizzy.”
In the early morning hours of March 9, Johnson, while doing laundry at the rooming house, walked passed Heinold’s room and noticed the door was ajar. She entered the room and came out hysterical, screaming, “Louie’s dead.” Officers from the Framingham police department responded to the scene and found Heinold slumped over in a chair with a large “cutting wound” to his throat. Detective Paul O’Connell canvassed the building and spoke with Morgan, who denied having any knowledge about the killing. O’Connell observed a bandage on Morgan’s lower right cheek and on his right index finger. Morgan explained that he had cut himself the previous day (March 8) while at work.
The crime scene was processed for forensic evidence by the State police. Dane’s fingerprints were found on a piece of paper on the floor near Heinold’s feet. Morgan’s fingerprints were not found in the room. Blood was found in and around Heinold’s room and collected for later deoxyribonucleic acid (DNA) testing by Cellmark Diagnostics. At trial, defense counsel stipulated to certain DNA test results, including that: Morgan’s blood was not found in Heinold’s room; a drop of blood found in the hallway outside Heinold’s room was determined to be Morgan’s; and
On May 4, 2000, Morgan testified before the grand jury. According to his grand jury testimony, which was admitted in evidence at trial, Morgan did not visit Heinold’s room on March 8 or March 9.
In January, 2001, Morgan moved to Austin, Texas, and Dane followed about two months later. On April 1, 2002, Dane spoke to detectives of the Austin police department. Based on this conversation, one of the detectives telephoned the Framingham police department and subsequently arrested Morgan on an outstanding motor vehicle warrant. Morgan was brought to the Austin police department, and after waiving his Miranda rights, was questioned by detectives about Heinold’s murder. Morgan asked if he could speak with Dane who was brought into the interview room and left alone with Morgan. Their conversation was recorded by the Austin police department. In that conversation, Morgan told Dane that he had killed Heinold because he “had to do something” to protect Dane because “[Heinold] was going to hurt you, set you up,” and that “[b]eating [Heinold] up didn’t do any fucking good.”
On April 12, Framingham police Detective Mike Hill and
At trial, Padovano testified that on the evening of March 8, he witnessed Morgan with a large knife headed up to Heinold’s apartment, with Dane, to confront Heinold. A short while later, when he and Dane were about to leave the rooming house to drive to Padovano’s sister’s home, Morgan came out of the bathroom and gave Dane something wrapped in paper towels, which Dane then disposed of in a dumpster along the way. Padovano also admitted that at the time of the murder he was an alcoholic, drinking thirty to forty beers a day, always looking for money, and having been arrested “[pjrobably a hundred times.”
Also at trial, Dr. Faryl Sandler, a forensic pathologist employed by the medical examiner’s office, testified about the results of the autopsy she performed on Heinold. Dr. Sandler concluded that the cause of Heinold’s death was multiple stab wounds to the neck, chest, and abdomen, three of which would have been fatal. During direct examination, Dr. Sandler stated that determining whether or not wounds were caused by a single-edged or a double-edged knife is “not an exact science.” On cross-examination, however, Dr. Sandler testified that Heinold’s wounds were consistent with a single-edged blade.
Morgan was the only witness called by the defense. He testified that his confessions to murdering Heinold were false, and that he had given them because he had made a pact with Dane to “take the heat” for the murder.
2. Ineffective assistance of counsel. Morgan alleged ineffective assistance of counsel in his motion for a new trial. The judge denied the motion without an evidentiary hearing. We consider his claim to determine whether there exists a substantial likelihood of a miscarriage of justice, a standard more favorable to a defendant than the constitutional standard for determining the ineffectiveness of counsel. Commonwealth v. Wright,
Morgan’s claim of ineffective assistance of counsel is based on defense counsel’s failure to seek the assistance of independent experts to challenge the blood evidence and the medical examiner’s testimony regarding the nature of the stab wounds and the weapon
a. The blood evidence. Morgan contends that his counsel should not have stipulated that the drop of blood found in the third-floor hallway was Morgan’s without retaining his own expert to test it, and that the failure meaningfully to investigate the validity of the blood sample crippled the defense’s ability to buttress Morgan’s recantation. We disagree.
Defense counsel’s stipulation to the blood evidence was a strategic decision that advanced Morgan’s theory of the case. First, the DNA evidence showed that Morgan’s blood was not found inside Heinold’s room. Second, the drop of Morgan’s blood found outside of Heinold’s room was consistent with Morgan’s grand jury testimony that he had sustained cuts while at work,*
Moreover, the DNA testing had been done at a reputable independent laboratory, and there was no reason to suspect that its findings were in error. The consistency of the test results combined with the defense offered made defense counsel’s decision not to hire his own independent expert to perform further DNA testing a reasonable professional judgment that we will not second-guess.
b. The wound evidence. Morgan confessed to using a “weird”
Morgan argues that defense counsel was ineffective for failing to seek the assistance of an independent pathologist to help oppose or cross-examine Dr. Sandler’s testimony concerning the knife wounds. However, on cross-examination, defense counsel elicited testimony that four of the wounds, including the three fatal ones, had a “sharp lateral aspect and a blunt medial aspect,” which Dr. Sandler testified were consistent with a single-edged blade. Later, in his closing summation, defense counsel made use of that testimony to argue that the jury should “[ljook at what the doctor said. As much as she tried to discuss the possibility — not probability, the possibility, of a double-edged blade, in her autopsy report in four or five of the wounds the language always was a sharp aspect and a dull aspect, indicating a knife with one blade.” This, he noted, was an important inconsistency between Morgan’s confession and the forensic evidence, further supporting Morgan’s claim that he falsely confessed to murdering Heinold. In the face of the testimony at trial, Morgan has failed to show how an independent pathologist could have aided defense counsel’s cross-examination of Dr. Sandler, or shed further light on whether a single-edged or double-edged knife caused Heinold’s injuries.
3. Postconviction discovery. Morgan claims that the judge erred by denying his motion for the postconviction appointment of expert witnesses to review the DNA and wound evidence presented at trial. In requesting postconviction discovery, a defen-
In support of his motion, Morgan filed an affidavit of trial counsel. In the affidavit, trial counsel admitted that he had not sought either independent verification of the DNA evidence implicating Morgan or an independent pathologist to help in opposing or cross-examining the Commonwealth’s pathologist concerning the knife wounds. Morgan claims that defense counsel’s affidavit unequivocally establishes neglect to investigate the DNA and wound evidence meaningfully — the essence of Morgan’s ineffective assistance of counsel claim. As such, Morgan claims that his motion for the appointment of postconviction experts is essential to establish the material harm of the failure to investigate and, therefore, should have been allowed. The Commonwealth, on the other hand, contends that the affidavit does not make a sufficient showing that the requested discovery is reasonably likely to uncover evidence that might warrant granting a new trial. We agree with the Commonwealth.
Morgan presents two primary reasons why the blood DNA evidence introduced by the Commonwealth at trial is likely to be found inaccurate if tested by an independent expert. First, Morgan argues that the alleged disarray of the State crime laboratory provides a basis for believing that the DNA evidence presented at trial was inaccurate. However, as the judge noted, the DNA evidence was not tested by the State crime laboratory, but was tested by Cellmark Diagnostics Laboratories. Second, Morgan contends that DNA evidence generally is subject to multiple credibility challenges.
Morgan has similarly failed to establish that a review of the wound evidence by a postconviction expert is reasonably likely to uncover evidence that might warrant granting a new trial. Morgan claims that, because defense counsel failed to retain his own wound pathologist, his cross-examination was based on no more than Dr. Sandler’s pathology report and her direct examination. Assuming, arguendo, that Morgan’s claim regarding defense counsel’s cross-examination of Dr. Sandler is correct, he still has made no specific showing that any new evidence concerning the stab wounds would likely be discovered.
Last, Morgan claims that under G. L. c. 261, §§ 27A-27G, he is entitled to the postconviction appointment of experts.
4. Evidentiary hearing. Finally, Morgan claims that the judge erred by not holding an evidentiary hearing on his motion for a new trial. Whether to hold a hearing on a motion for a new trial is within the judge’s discretion, see Mass. R. Crim. P. 30 (b), as appearing in
Morgan’s motion and counsel’s affidavit do not raise a substantial issue with respect to his claim of ineffective assistance. Counsel’s tactical decision not to challenge the Commonwealth’s DNA evidence was not manifestly unreasonable, and Morgan has not shown how the services of an expert to challenge Dr. Sandler’s testimony would have aided the defense beyond what defense counsel was able to accomplish through cross-examination.
5. Conclusion. We have examined the record pursuant to G. L. c. 278, § 33E, to determine whether there is any basis to
Judgments affirmed.
Order denying motions for a new trial and postconviction discovery affirmed.
Notes
This was the defendant’s second trial. The first trial ended in a mistrial when the defendant’s son, called as a witness by the Commonwealth, asserted his privilege against self-incrimination pursuant to the Fifth Amendment to the United States Constitution in the presence of the jury.
Morgan’s grand jury testimony was introduced at trial by the Commonwealth to establish Morgan’s perjury.
At trial, defense counsel agreed that this recording was made consistent with the law in Texas, and pursuant to the normal standard practice of the Austin police department. He further agreed that he had no basis for trying to preclude it on that ground. However, he did move, pretrial, to preclude portions of the conversation on the ground of hearsay. That motion was properly denied by the judge and is not argued on appeal. In any event, the admission of the recording did not create a substantial likelihood of a miscarriage of justice.
This testimony was also consistent with police testimony that Morgan had bandages on his finger and face when they interviewed him on March 9, and with his explanation at that time that he had cut himself at work on March 8.
In his testimony, Padovano explained the presence of his blood by claiming that several days earlier he had “gotten jumped after coming home one night drunk,” an explanation that the jury were free to question. The jury might well have doubted Padovano, because there was evidence that his roommate, Pam Johnson, had decided at 4 a.m. to do two loads of laundry that included a pillow sham, sheets, and a comforter that had Padovano’s blood on them.
One of the five stab wounds passed through the victim’s arm and penetrated the chest, thereby creating what appeared to be a sixth wound.
Morgan provides the following list of possible issues relating to the cred
General Laws c. 261, § 27B, provides in relevant part:
“Upon or after commencing or answering to any civil, criminal or juvenile proceeding or appeal in any court,. . . any party may file with the clerk an affidavit of indigency and request for waiver, substitution or payment by the commonwealth of fees and costs upon a form prescribed by the chief justice of the supreme judicial court and in accordance with the standards set forth in [§§ 27C-27F] and sworn to under oath by the affiant.”