Com. v. Stewart, 89-P-223

• Decision Date: 26 June 1991
• Docket Number: No. 89-P-223,89-P-223
• Parties: COMMONWEALTH v. Gary STEWART.
• Court: Appeals Court of Massachusetts

Page 43

571 N.E.2d 43

30 Mass.App.Ct. 569

COMMONWEALTH v. Gary STEWART.

No. 89-P-223.

Appeals Court of Massachusetts,

Middlesex.

Argued Nov. 13, 1990.

Decided May 14, 1991.

Further Appellate Review

Granted June 26, 1991.

Patricia A. O'Neill, Committee for Public Counsel Services, for defendant.

David R. Marks, Asst. Dist. Atty., for Com.

Before PERRETTA, KASS and JACOBS, JJ.

PERRETTA, Justice.

This is an appeal from a conviction of murder in the second degree by the driver of the car in which John Good fled after his premeditated murder of Robert Perry. See Commonwealth v. Good, 409 Mass. 612, 568 N.E.2d 1127 (1991). The Commonwealth proceeded against the defendant, who was tried separately from Good, on the basis of joint venture liability. The defendant's primary contention on appeal is that there was insufficient evidence to show beyond a reasonable doubt that he intended Perry's death or that he had any knowledge of a substantial likelihood that Good intended to kill or to inflict grievous bodily harm upon Perry. We conclude that the Commonwealth failed to sustain its burden of proof and reverse the conviction.

1. Background.

It appears from the opinion in Good that much of the evidence presented against him was also introduced at the defendant's trial. By way of background, we simply repeat the circumstances of the murder as set out in Good, supra at 613, 568 N.E.2d 1127: "About noon on July 27, 1986, the victim, Robert Perry, was walking along Cambridge Street in Cambridge, near its intersection with Maple Avenue, when he was shot three times. A thin white man carrying a handgun ran from the location of the victim's body to a Pontiac automobile bearing Massachusetts registration plate number 104MND. The Pontiac sped away down Maple Avenue. At a nearby intersection, the driver of the Pontiac disregarded a stop sign and collided with another car. The front seat passenger in the Pontiac (a thin white man) then left the car and walked briskly away. None of the witnesses testifying to these facts actually observed the shooting of the victim."

2. The Evidence of Joint Venture. ¹

There was evidence to show that at about 1:00 A.M., July 27, 1986, the defendant, Good, and a third man were together at the Night and Day Bar on Tremont and Cambridge Streets, about four blocks east of the Cambridge City Hospital and seven west of Hunting Street. ² Some seven hours later, at 7:50 A.M., the defendant, Good, and another man were seen in a yellow or off-white car, Massachusetts registration number 104 MND, driving west on Cambridge Street near Hunting Street. The defendant was driving, Good was in the front passenger seat, and the third person was in the back.

As they drove along, slowly, they passed a green car parked at the curb. A white cat was asleep on top of the car. The defendant made a U-turn on Cambridge Street, and, now driving east, pulled abreast the parked car. Good pointed a gun out his window and shot the cat in the neck twice, killing it. A witness heard and saw the three men laugh as Good pulled his gun back into the car, and the defendant drove off. This witness saw the registration number of the car, 104 MND, which was then broadcast over the Cambridge police radio system.

About 11:45 A.M., Perry was at or near Inman Square on Cambridge Street. He made a telephone call to his former wife, Sandra Cross, and they agreed to meet for brunch. Cross lived about four blocks west of the hospital, near the Cambridge Rindge and Latin High School. She was going to pick him up as he walked along Cambridge Street. About fifteen minutes later, Cross was driving along Cambridge Street towards Inman Square. When she reached the area of the hospital, she saw two paramedics leaning over Perry, who was lying on the street between two parked cars.

William Thomas was watching television in his third-floor apartment at 66 Maple Avenue. Maple Avenue begins at Cambridge Street, in front of the hospital, and runs one-way, south to Broadway. Number 66 is on the east side of Maple Avenue, three house lengths down from Cambridge Street. ³ Hearing gunshots, Thomas went to his front windows and looked up toward Cambridge Street. He saw a man with a gun in his hand running diagonally from the corner of Cambridge Street, down and across to the east side of Maple Avenue. The man ran past Thomas' house and got into the passenger seat of a car parked in front of the house next down from his.

Thomas left the window to get paper and pencil so that he could write down the registration number of the car, which he described as "off-white." When he returned to the window, the car was pulling out of its position to drive south. The registration number was 104 MND.

Another witness, Thomas Scott, was with his children in a playground, a "tot-lot" on the west side of Maple Avenue, one block down from Cambridge Street and about seventy-five yards away from the parked car in question. Scott also saw a man running from Cambridge Street, down and across Maple Avenue, to the passenger side of the parked car. The driver then pulled out "immediately." When the car, which Scott described as yellow, passed him, it was travelling at about forty-five miles an hour.

There was also testimony to show that Good lived on Highland Park, a dead-end street running off of Highland Avenue, the next street to the west of Maple Avenue. Good could have reached his house, by foot, from Maple Avenue by going into the driveway of the second house down from the "tot-lot," through to the backyard, and then through a hole in the fence and onto his property. In any event, there was evidence to show that Good was the defendant's passenger.

Cheryl Bergeron was driving along Harvard Street about noontime when her car was hit broadside by a car that went through the stop sign at the intersection of Dana and Harvard Streets. Bergeron saw a man, Good, walking quickly down Dana Street toward Massachusetts Avenue. He looked back over his shoulder and said, "I'm getting out of here," or words to that effect. The defendant, described by another witness as "very heavy," made no effort to flee. He was leaning against the fender of his car.

Cambridge police officer Kevin Davis arrived at the accident scene and recognized the defendant's registration number, 104 MND, as one that had been broadcast earlier that morning and again before noontime. Davis gave the defendant Miranda warnings immediately, and the defendant responded, "What's the big deal? This is only an accident. I'm the only one." There appears to be some confusion, perhaps conflict, as to whether the defendant told Davis, "My buddy's with me" or whether an onlooker told Davis that there had been another person in the car.

There was a brown bag containing six or seven bullets (similar to those used to kill Perry) on the floor of the car by the passenger seat. There was also gunshot residue on the inside upper portion of the passenger side door.

After the Commonwealth rested, the defendant moved for a required finding of not guilty. The motion was denied, and the defendant presented one witness, his mother, who worked at the hospital. The judge ruled her testimony, that the defendant called her at 10:00 A.M. and arranged to meet her at the hospital at noon for lunch, was inadmissible hearsay. The defendant renewed his motion which was, again, denied.

3. Discussion.

"The question here is whether there was sufficient evidence from which the jury could infer that the 'defendant was (1) present at the scene of the crime, (2) with knowledge that another intends to commit the crime or with intent to commit a crime, and (3) by agreement is willing and available to help the other if necessary.' Commonwealth v. Bianco, 388 Mass. 358, 366, 446 N.E.2d 1041, S.C., 390 Mass. 254, 454 N.E.2d 901 (1983). Commonwealth v. Casale, 381 Mass. 167, 173, 408 N.E.2d 841 (1980). Commonwealth v. Soares, 377 Mass. 461, 470, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). In the context of a charge of murder, a specific intent crime, the prosecution must prove that the defendant '[shared] with the principal the mental state required for the crime.' Id." Commonwealth v. Mandile, 403 Mass. 93, 99-100, 525 N.E.2d 1322 (1988).

There is sufficient evidence to support the following inferences: the defendant knew Good, the defendant was the driver of the car from which Good shot the cat at 7:50 A.M., the defendant knew that Good, at about the time of Perry's murder, had a gun in his possession, the defendant was the driver of the car in which Good fled after the murder, and the defendant knew (as could be inferred from his statement at the scene of the intersection accident) that Good had committed a crime. To these inferences we add another, as most recently found reasonable in Commonwealth v. Good, 409 Mass. at 618, 568 N.E.2d 1127, that Good, "armed with a handgun, left a parked car, approached the victim, ... and shot him...." We will assume the "parked car" to be the car on Maple Avenue.

As can be seen from the recited evidence and reasonable inferences, there is a gap in the direct proof on the issues of the defendant's knowledge of Good's intent and whether he shared that specific intent. The Commonwealth argues (and the dissent agrees) that the evidence was sufficient to allow the jury also to infer: "[T]he defendant and Good had been driving up and down Cambridge Street over the course of several hours with the intent to murder Robert Perry, that in the vicinity of the victim's home a cat was killed to test the gun, to target practice, or to pass the time during the 'stake-out' for the victim, and that the defendant deliberately parked facing away from Cambridge Street and around the corner from where the victim was soon to pass in order to facilitate a speedy escape after the murder. The defendant's intent to assist John Good in this venture is further shown by the evidence that Good...