Baxter v. Commonwealth
| Decision Date | 12 April 2022 |
| Docket Number | SJC-13190 |
| Citation | 489 Mass. 504,185 N.E.3d 15 |
| Parties | Dario BAXTER v. COMMONWEALTH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jillise McDonough, Boston, for the petitioner.
Andrew S. Doherty, Assistant District Attorney (Tara B. Burdman, Assistant District Attorney), for the Commonwealth.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.
The defendant, Dario Baxter, was tried on charges of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty, accessory after the fact to murder, carrying a firearm without a license, and carrying a loaded firearm without a license in connection with the killing of Michael Ross, who was shot multiple times on the morning of March 30, 2018. The Commonwealth alleged that the defendant drove the shooter and another coventurer to and from the scene of the fatal shooting. After four days of deliberations, the Superior Court jury were unable to reach a verdict, and the trial judge declared a mistrial. The defendant filed a motion to dismiss on double jeopardy grounds. The motion judge, who was not the trial judge, denied the motion. The defendant filed a petition pursuant to G. L. c. 211, § 3, which was reserved and reported to the court by the single justice.
On appeal, the defendant maintains that a retrial would violate his right against double jeopardy. Because we agree that there was insufficient evidence that the defendant shared the lethal intent of the shooter required to support a conviction of murder in the first degree on a joint venture theory, we reverse the denial of his motion to dismiss insofar as it concerns this charge. We remand for further proceedings as to the remaining charges.
1. Background. a. Facts. We review the evidence in the light most favorable to the Commonwealth. See Pinney v. Commonwealth, 479 Mass. 1001, 1001-1002, 90 N.E.3d 1234 (2018), S.C., 484 Mass. 1003, 140 N.E.3d 379 (2020) and 487 Mass. 1029, 170 N.E.3d 285 (2021) ; Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979).
The defendant and his two friends, codefendant Dawon Wright and Dakarai Pittman, were training to become personal trainers. On the morning of the shooting, Wright and Pittman attended a training session in an office building in downtown Boston along with their supervisor. Afterward, Wright and Pittman asked to be dropped off in the Orchard Park neighborhood of the Roxbury section of Boston -- a location the supervisor "associate[d] with" the defendant. The supervisor dropped off Wright and Pittman on Zeigler Street in that neighborhood at around 8:40 A.M. Wright was wearing a red-colored Red Sox jacket with a black hooded sweatshirt underneath, and Pittman was wearing a blue jacket over a grey hooded sweatshirt.
The defendant's girlfriend lived on Zeigler Street. She was the registered owner of a gold Honda Accord, which was parked in her driveway that morning. The car had heavily tinted side windows, a scratch on the front driver's side door, and damage to the front bumper. The defendant had permission to drive the car.
Video footage showed a person matching Pittman's description walking toward the car that morning, and the car leaving the driveway at 9:01:20 A.M. 1 Video footage showed the car passing the intersection of Zeigler and Dearborn Streets at 9:01:30 A.M. The front driver's side window was partially open, and a person who appeared to be the defendant was driving the car. A person wearing a red article of clothing was visible beside him in the front passenger's seat. At 9:06 A.M. , video footage showed the car at the intersection of Wayland Street and Howard Avenue.
Additional video footage showed the victim leaving an apartment building on Howard Avenue at 9:06 A.M. , crossing the street, and walking down Wayland Street. The Accord followed him down Wayland Street, and then went past him and stopped along the curb on the side of the street where he was walking. The car waited about eighteen seconds while the victim walked toward it on the sidewalk. As the victim approached the car, it pulled away from the curb and traveled a short distance on Wayland Street before taking a right turn onto Balfour Street.
About forty-five seconds later, as the victim walked past Balfour Street, a man in a red jacket came from Balfour Street on foot and quickly approached the victim from behind, extending his arms in front of him. The victim did not appear to be aware that the man was behind him until the man was just a few feet away. The man fired at least six shots at the victim, striking him in the back on the right side of his torso, his left arm, and his right wrist. The shooter fled to Balfour Street, and the victim began to run but collapsed on the sidewalk. He later succumbed to his wounds.
Two witnesses, both of whom were residents of Balfour Street, heard the gunshots and looked out their windows. Both observed two men running from the direction of Wayland Street to a gold car parked on Balfour Street: a tall Black man wearing a red-colored Red Sox sweatshirt, who got into the passenger's seat and appeared to have a gun at his side; and a shorter Black man wearing black jeans and a gray sweatshirt, who entered the back seat. Once the men were in the car, it sped away on Balfour Street toward Dalkeith Street.
A witness, who was driving on Howard Avenue at the time of the shooting, turned onto Dalkeith Street when he heard the shots, and subsequently turned onto Balfour Street. He observed a man running from Wayland Street onto Balfour Street and getting into a light brown Accord that was stopped on Balfour Street. The car went past him toward Dalkeith Street, and he observed three Black men inside the car, two in the front seat and one in the back. The Commonwealth's theory at trial was that the defendant was the driver of the vehicle, codefendant Wright was the shooter who entered the front passenger's seat of the vehicle, and Pittman acted as the lookout and entered the back seat of the vehicle after the shooting.
After reviewing surveillance video recordings from the area, Boston police issued a "be on the lookout" (BOLO) alert for a gold Honda with damage to the front bumper and tinted side windows. Later that night, officers stopped a car matching the BOLO description. The defendant was driving the car, and Wright was in the front passenger's seat. The men and the car were photographed and released.
The following day, the defendant's girlfriend removed the dark tinting from the car's windows. Later that same day, Boston police seized and searched the car pursuant to a warrant. They recovered a security pass receipt for Pittman from the building where the personal training session had been held the morning of the shooting. In addition, the defendant's fingerprints were found on the driver's door and interior handle.
b. Procedural history. The defendant was indicted for murder in the first degree, in violation of G. L. c. 265, § 1 ; accessory after the fact to murder, in violation of G. L. c. 274, § 4 ; carrying a firearm without a license, in violation of G. L. c. 269, § 10 (a ) ; and carrying a loaded firearm without a license, in violation of G. L. c. 269, § 10 (n ). At a jury trial in the Superior Court,2 the jury indicated that they were unable to reach a verdict after four days of deliberations, and the judge declared a mistrial. The defendant filed a motion to dismiss on double jeopardy grounds, which was denied by a judge who was not the trial judge.
The defendant filed a petition pursuant to G. L. c. 211, § 3. The single justice reserved and reported the matter to a full panel of the court.
2. Discussion. a. Standard of review. Following a mistrial, double jeopardy precludes the Commonwealth from retrying a defendant for the same offense where the evidence presented at the first trial was legally insufficient to warrant a conviction. See Pinney, 479 Mass. at 1001-1002, 90 N.E.3d 1234, quoting Brangan v. Commonwealth, 478 Mass. 361, 363, 84 N.E.3d 1269 (2017) (). To determine whether the evidence was legally sufficient to permit a retrial, "[w]e consider whether, after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt." Commonwealth v. Watson, 487 Mass. 156, 162, 165 N.E.3d 1015 (2021), quoting Commonwealth v. Ayala, 481 Mass. 46, 51, 112 N.E.3d 239 (2018). "The evidence may be direct or circumstantial, and we draw all reasonable inferences in favor of the Commonwealth." Watson, supra, quoting Ayala, supra.
b. Murder in the first degree. "For murder in the first degree both under the theory of deliberate premeditation and under the theory of extreme atrocity or cruelty, to prove the defendant guilty as a joint venturer, the Commonwealth had to ‘prove ... that "the defendant knowingly participated in the commission of the crime charged, and that the defendant had or shared the required criminal intent." ’ " Watson, 487 Mass. at 162, 165 N.E.3d 1015, quoting Commonwealth v. Britt, 465 Mass. 87, 100-101, 987 N.E.2d 558 (2013). "Because the Commonwealth did not contend that the defendant [him]self carried out the killing, but only that [he] aided the coventurers, ... it was the Commonwealth's burden to show that the defendant (a) ‘participated in the commission of the crime charged,’ (b) did so ‘knowingly,’ and (c) ‘shared the required criminal intent.’ " Commonwealth v. Gonzalez, 475 Mass. 396, 406, 56 N.E.3d 1271 (2016), quoting Britt, supra. "In the circumstances here, this required a...
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