48 F.3d 610 (1st Cir. 1995), 94-1626, Stewart v. Coalter

Docket Nº:94-1626.
Citation:48 F.3d 610
Party Name:Gary STEWART, Petitioner, Appellee, v. William COALTER, Respondent, Appellant.
Case Date:February 28, 1995
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 610

48 F.3d 610 (1st Cir. 1995)

Gary STEWART, Petitioner, Appellee,


William COALTER, Respondent, Appellant.

No. 94-1626.

United States Court of Appeals, First Circuit

February 28, 1995

Heard Aug. 2, 1994.

Page 611

William J. Meade, Asst. Atty. Gen., Criminal Bureau, with whom Scott Harshbarger, Atty. Gen., was on brief, for respondent.

Patricia A. O'Neill, Committee for Public Counsel Services, Public Counsel Div., Boston, MA, for petitioner.

Before SELYA, BOUDIN and STAHL, Circuit Judges.

BOUDIN, Circuit Judge.

Gary Stewart was convicted by a jury in Massachusetts Superior Court of second degree murder. After the Supreme Judicial Court upheld the conviction, Stewart filed a habeas corpus petition and the district court ultimately granted the writ, holding that the evidence at the state trial was inadequate to permit a reasonable jury to convict. That ten very able judges before us have disagreed so sharply over the evidence is a measure of the difficulty of this case.


Stewart was indicted by a Middlesex grand jury on August 1, 1986, and charged with the first degree murder of Robert Perry. He was tried by a jury in a trial lasting several days beginning on March 8, 1988. From the outset, the Commonwealth's theory was that the actual murder of Perry had been committed by John Good who was tried separately and convicted of first degree murder. See Commonwealth v. Good, 409 Mass. 612, 568 N.E.2d 1127 (1991). The evidence in Stewart's trial, taken most favorably to the Commonwealth, showed the following.

At about 1 a.m., on July 27, 1986--the day of Perry's murder and about 11 hours before that event--Stewart, Good and a third man were seen together entering a bar on Cambridge Street in Cambridge, Massachusetts. The bar was located about four blocks east of the Cambridge City Hospital and about five blocks west of the Harrington School, both of which are also on Cambridge Street.

At about 7:50 a.m. that same morning, Stewart was seen driving west on Cambridge Street near the Harrington School. The car was a yellow or off-white Pontiac bearing Massachusetts license plate 104-MND. Good was in the front passenger seat and a third man was in the rear seat. As the car passed a cat sleeping on a car hood on the opposite side of the street, Stewart made a U-turn and drove back east on Cambridge Street. Good then pointed a black handgun out of the passenger side window and shot the cat twice, killing it. The car then drove away with the passengers laughing.

At about 12 noon on the same day, Stewart was sitting in the same car, which was parked on Maple Avenue in Cambridge. Maple Avenue is a one-way street that runs south from Cambridge Street commencing just east of the Cambridge City Hospital. The car was parked several car lengths south of the intersection with Cambridge Street. Fifteen minutes earlier, at about 11:45 a.m., Perry had told his former wife that he would be walking west along Cambridge Street from Inman Square, which is on Cambridge Street several blocks east of the hospital.

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At about noon--this is inference but amply supported--Good shot Perry three times with a .38 caliber handgun on Cambridge Street just west of the intersection with Maple; one of the shots pierced Perry's heart, another his head, and he was killed. Immediately afterward, Good, carrying the handgun, ran diagonally down Maple Avenue to the Pontiac parked on the east side of the street. Stewart then drove the car south down Maple Avenue, accelerating to approximately 45 miles per hour. 1 A few blocks later, at the intersection of Harvard and Dana Streets, Stewart ran a stop sign and flashing red light and crashed into another car.

Good exited from the Pontiac, told Stewart, "I'm getting out of here," and quickly walked away. Stewart got out of the car and leaned against the door. When the police came, Stewart said to one of the policemen, "It's an ordinary accident. I was trying to cross Harvard Street and continue on Dana when this car to the left of me came along and struck me." To another officer Stewart said: "What's the big deal? This is only an accident. I'm the only one. I'm the only one in the car." In the Pontiac the police found a brown paper bag on the floor in front of the passenger seat containing several live rounds of .38 ammunition of types similar to that used to kill Perry.

This is the heart of the evidence offered at Stewart's trial. There was one eye witness to the event at the bar; another eye witness who saw the incident involving the cat; a third eye witness who saw Good running to the car and Stewart driving away after the shots; and a fourth who saw Good looking out the car window as the car drove rapidly down Maple Avenue. Several police officers and several passengers from the other car in the crash testified to events at the crash scene. There was no evidence of motive. Stewart offered relatively little evidence at trial and did not testify.

The trial judge charged the jury that under Massachusetts law Stewart could be convicted of murder on a "joint venture" theory if he aided in the crime and shared an intent to murder. For first degree murder, said the trial judge, the intent required included both premeditation and an intent to kill or do serious injury; for second degree murder, premeditation was unnecessary. The jury deliberated for three hours and returned a verdict of second degree murder. Afterwards, the trial judge indicated that a first degree murder conviction might have been expected.

On appeal, Stewart argued that the evidence was inadequate for a reasonable jury to find that he had known in advance of Good's intent to commit murder. The Massachusetts Appeals Court, by a two-to-one vote, agreed and ordered the entry of judgment in Stewart's favor. Commonwealth v. Stewart, 30 Mass.App.Ct. 569, 571 N.E.2d 43 (1991). On further review, the Supreme Judicial Court reinstated the guilty verdict, all five justices agreeing that the evidence was adequate to allow the jury to conclude "that Good planned in advance to kill Perry and that [Stewart] kn[ew] of this plan and intended to aid Good in committing the murder." Commonwealth v. Stewart, 411 Mass. 345, 582 N.E.2d 514, 518 n. 3 (1991).

From all the Commonwealth's evidence, the jury reasonably could have inferred that [Stewart] and Good had been driving up and down Cambridge Street looking for Perry so Good could shoot him; ... and that [Stewart] deliberately parked on a side street near Cambridge Street, and around the corner from where Perry was soon to pass, in order to facilitate a speedy escape after the murder ..... [and] that [Stewart's] intent to assist was further shown by evidence that Good ran directly to [Stewart's] automobile after the shooting, that without any hesitation or conversation, [Stewart] immediately pulled away and sped up the street at a high rate of speed; and that [Stewart] subsequently covered Good's escape by lying to the police.

582 N.E.2d at 518.

Stewart then began the present habeas proceeding in federal district court. 28

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U.S.C. Sec. 2254. There, he argued that a constitutional violation had occurred because upon the record evidence adduced at the state trial no rational trier...

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