The opinion of the court was delivered by: Hurley, Senior District Judge
The purpose of this Memorandum and Order is to correct and clarify portions of my bench decision of January 29, 2010.
Firstly, the following comment made by me during the bench decision regarding Arturo Kerr ("Kerr") is incorrect: "[L]ater in [his] testimony there was testimony to the effect that the defendant said that he wanted [Shirwin Henry ("Henry")] killed." (Jan. 29, 2010 Sentencing Transcript ("Sentencing Tr.") at 74.) Indeed, the tenor of Kerr's testimony was that Rodney Morrison ("Morrison" or "defendant") never used the word "kill" but rather indicated that he didn't "want to see [Henry] again" in response to Kerr's inquiry as to whether Henry was to be "roughed up or eliminated." (Trial Transcript ("Trial Tr.") at 5202.) Kerr testified he understood that Morrison's goal was to have Henry murdered. (Id., e.g., at 5448.)
Morrison's post-murder conduct, when viewed in conjunction with the other evidence in the case (some of which was underscored during the January 29, 2010 bench decision) and measured against the fair preponderance of the credible evidence standard, demonstrates that Kerr's assessment was on-target. Not only did Morrison immediately arrange with Wynette Randall - following his November 14, 2003 telephone conversation with Kerr - for the $5,000 to be paid as per the Morrison/Kerr agreement reached at Ladakins on November 9, 2003 (Sentencing Tr. at 81), but he also personally paid Kerr a "$10,000" bonus sometime thereafter for doing a "[g]ood job" (Trial Tr. at 5294). As to both payments, it is significant not only that they were made but that neither was accompanied by Morrison complaining, commenting, or even suggesting that the plan as implemented departed an iota from what he wanted done, viz. to have Henry killed. Moreover, Morrison's conversation with Henry's mother Pauline McCammon ("McCammon") is also germane, which leads us to the clarification aspect of this Memorandum and Order.
In the January 29, 2010 bench decision, I commented on the post-murder Morrison/McCammon interaction thusly:
Interestingly, or sadly, and as a matter of fact, before Mr. Henry's body was found, Mr. Morrison called Mr. Henry's mother. And although they knew one another, their contacts were very infrequent. And during that telephone conversation Mr. Morrison was very solicitous. He said if there was anything he could do, he would do it. And I think he ultimately sent like a $3,500 check to the mother of Sherwin Henry.
(Sentencing Tr. at 88-89.)
The substance of my above quoted comments are correct*fn1 but what I said was incomplete and did not adequately portray the point intended to be made. To partially reiterate by way of background, reference to McCammon's testimony indicates that after Morrison knew of Henry's fate, but before his body was found on Monday, November 17, 2003 and, thus, before she knew of her son's death, Morrison contacted her as reflected in the trial transcript:
Q: After the detectives left [on Saturday, November 15, 2003], did you receive a phone call from anyone?
Q: Who did you receive a phone call from?
Q: And approximately what time was that?
A: It was like 10 minutes after ...