Com. v. Costa

• Decision Date: 09 April 1990
• Citation: 407 Mass. 216,552 N.E.2d 106
• Parties: COMMONWEALTH v. Kevin COSTA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 106

552 N.E.2d 106

407 Mass. 216

COMMONWEALTH v. Kevin COSTA.

Supreme Judicial Court of Massachusetts,

Bristol.

Argued Feb. 6, 1990.

Decided April 9, 1990.

John R. Campbell, Stoneham, for defendant.

Elspeth B. Cypher, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN, and LYNCH, JJ.

NOLAN, Justice.

On October 8, 1987, the defendant, Kevin Costa, was indicted for murder and kidnapping. The defendant was tried before a jury, the jury found him guilty of kidnapping and murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty. ¹ The defendant received the mandatory sentence of life imprisonment for the murder conviction and from eight to ten years for the kidnapping conviction, the sentences to be served concurrently.

On appeal, the defendant contends that there was insufficient evidence as a matter of law to support the conviction of murder in the first degree and that, therefore, the trial judge erred in failing to enter, sua sponte, a required finding of not guilty. The defendant also asserts that trial counsel's failure to move for a required finding of not guilty on the murder charge amounted to ineffective assistance of counsel. ² The defendant also seeks relief pursuant to our power under G.L. c. 278, § 33E. We affirm the convictions.

We summarize the evidence up to the time the Commonwealth rested its case. ³ At approximately 7 A.M., on October 2, 1987, Stephen Combs brought his dogs to the Freetown State Forest for a run. The dogs began to bark at what Combs initially thought was a pile of rags but which turned out to be the body of a person that had been shot several times. Combs notified the Freetown State Forest authorities who, in turn, notified the police. Local police officers and State police troopers responding to the scene discovered the victim, a white male, lying face up to the left of a dirt roadway known as Ledge Road. The victim was wearing dungarees, a T-shirt and a sweatshirt, and had a blanket wrapped around him. There were several gunshot wounds to the body. There were three gunshot wounds to the head, two to the chest and one to the groin area. The victim also had numerous abrasions on his back. The victim's body as well as his clothing, the blanket, and his beard were all partially burned. Six "410 gauge" shotgun shell casings were found on the ground in the vicinity of the body. There were several shoe impressions or sneaker impressions around the area of the body as well as tire tread impressions. It appeared that a vehicle had been parked near the victim's feet and that when the vehicle left the area, it had backed up, turned to the right, drove around the body and continued down Ledge Road into the forest. The two front tires as well as the right rear tire of the vehicle were of a similar tread pattern while the left rear tire was of a different tread pattern.

Testimony revealed that the victim, a drifter, had met Patricia Casey four weeks prior to October 2, 1987. At that time he was living in a septic tank at M & S Concrete Company (concrete company) about one and one-half blocks from Patricia Casey's residence at 26 Mt. Hope Avenue in Fall River. Patricia Casey hired the victim to do odd jobs; she fed him, paid him $10 a day, and allowed him to live under her three-family house at 8 Mt. Hope Avenue. She had expected him to work Friday, October 2, 1987, but he did not show up for work. She checked under the front porch of 8 Mt. Hope Avenue and found the door open. She saw some of the victim's belongings but she could not locate the victim. The next day, she read in the newspaper that a body had been found in Freetown. Casey then called the Freetown police department and gave them a description which matched that of the victim, Edward Cereto.

On Sunday night, October 4, 1987, at approximately 7 P.M., Bruce Frank and Patricia Casey's nephew, Don Casey, visited her. During this visit, Fall River Police Officer Robert Aguiar and State Trooper Deborah Bruce arrived. They both spoke briefly with Frank. Frank then left with Officers Aguiar and Bruce. They went to an adjacent yard where Frank directed them to a woodpile. Under the boards in the woodpile was a 410 gauge shotgun which Frank admitted belonged to him. All six shotgun shells found near the body came from this shotgun.

At approximately 11 P.M. Sunday night, State Troopers Jose Gonsalves and Maryann Dill spoke with the defendant at the Fall River police station. Trooper Gonsalves told the defendant that he was not under arrest and then read him his Miranda rights from a State police "rights form." The defendant read the form and initialed it. When asked if he understood his rights, the defendant replied that he did and then signed the form. Troopers Gonsalves and Dill also signed the form.

Trooper Gonsalves told the defendant that they were interested in information about the victim's death, that they had spoken with several of the defendant's friends, and that they knew what had occurred on the night of October 1, 1987. The defendant asked the trooper what his friends had told them. In response, Trooper Gonsalves read aloud portions of a statement made by Steven Costa as follows: "Let's go shooting and really scare him. I'll go get my gun." "Bruce shot [the victim] in the head." "I'm not sure Bruce's first shot was to [the victim's] head." The defendant then agreed to make a statement. ⁴

The defendant told the officers that he awoke late on October 1, 1987, and, therefore, was unable to go to school. After getting a haircut, he telephoned his girl friend who also had not gone to school. She accompanied him to a photography studio where he had his picture taken for his class yearbook. The defendant's girl friend "called in sick to work"; they then went to his house, but later went out. At some point her parents found her and took her home.

At around 7 P.M., the defendant and his brother, Michael Costa, took their mother's car to a package store, where Michael purchased a six-pack of beer. They then went to a local bar to look for Michael's friend, "John," who wasn't there. The defendant believed that he and his brother each had one beer. They found John at the next bar they visited. They also encountered Bruce Frank, his sister, and Steven Costa, their own cousin. Frank and his sister left to go to another bar. The Costas and John left the bar to get something to eat but changed their minds and returned to the bar only to find the restaurant section closed. The defendant thought they each consumed two more drinks at this time. They went to a restaurant into which the defendant smuggled a bottle of schnapps. There the defendant ate and drank schnapps (which was mixed with water). At about 11:30 P.M., they left the restaurant and dropped John off in Tiverton.

The defendant and Michael Costa then drove Steven Costa to his car, which was parked on Atlantic Boulevard. On the way, they saw Bruce Frank walking and they picked him up. When they arrived at Steven Costa's automobile, they discovered that his left rear tire was flat. They changed the tire. At some point, Bruce Frank informed them that the victim was living in the porch area of the three-family house in which Bruce Frank lived at 8 Mt. Hope Avenue. They decided to go there to give the victim a "hard time."

On their arrival, they asked the victim questions, such as, "Who are you? What are you doing here? Are you a cop? Why are you always asking us for grass?" The defendant remembered that he hit the victim on the side of the head but could not remember where the others hit the victim at that time. Then the victim left the area and walked away through a neighbor's yard. The defendant and Michael Costa got into their mother's automobile and Bruce Frank and Steven Costa got into Steven Costa's automobile. They all drove to the concrete company because they knew that the victim had once lived in a septic tank there. The defendant, with a flashlight, looked around and inside the septic tank area for the victim. Unable to find the victim, the defendant and Michael Costa drove home. As they were parking the automobile, Bruce Frank and Steven Costa arrived in Steven Costa's automobile and said that they had located the victim. The defendant and Michael Costa then got into Steven Costa's automobile. They found the victim at the bottom of Mt. Hope Avenue. They grabbed the victim, threw him down, and each took a turn beating him. The defendant eventually threw the victim down next to a bush and told him to stay there until they were gone. At this point, Bruce Frank said, "Let's bring him to the rez and leave him there." ⁵

The defendant then grabbed the victim's legs while someone else lifted his upper body. They put him in the trunk of Steven Costa's automobile. On the way to the reservation, Bruce Frank stopped at his apartment to get his shotgun and ammunition. They then headed to the reservation. On the way, Frank fired the shotgun out the window of the automobile approximately three times. Each time Frank would fire the weapon, the defendant would say "Ha, ha, you're next" to the victim in the trunk. The defendant claimed that he intended to scare the victim. The defendant also claimed that he did not believe that Frank intended to shoot the victim.

While the foursome drove around the reservation, Bruce Frank indicated several times that he wanted to stop the automobile and said, "Youze think I'm kidding, youze think I'm fooling around, but I'm going to shoot him." Eventually, Frank said, "I can't wait. Let's stop here."

Steven Costa stopped the automobile on a dirt road. The defendant and Steven Costa took the victim out of the trunk and threw him to the ground. Bruce Frank then shot the victim three times. The defendant said, "You didn't shoot him, did you," and told Steven Costa to turn his car around and shine the headlights on the body. After Steven Costa turned the...