Com. v. Stewart

• Citation: 411 Mass. 345,582 N.E.2d 514
• Parties: COMMONWEALTH v. Gary STEWART.
• Decision Date: 09 December 1991
• Court: United States State Supreme Judicial Court of Massachusetts

Page 514

582 N.E.2d 514

411 Mass. 345

COMMONWEALTH v. Gary STEWART.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Sept. 5, 1991.

Decided Dec. 9, 1991.

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

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

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

GREANEY, Justice.

A jury in the Superior Court convicted the defendant, Gary Stewart, of murder in the second degree. The Commonwealth proceeded against the defendant on a joint venture theory, asserting that the defendant had participated with John Good in the murder of Robert Perry. ¹ A divided Appeals Court reversed the defendant's conviction, concluding that he was entitled to the allowance of his motion for a required finding of not guilty because the Commonwealth's evidence was insufficient to warrant a finding by the jury that the defendant knew of, and shared, Good's intent to kill or grievously injure Perry. Commonwealth v. Stewart, 30 Mass.App.Ct. 569, 571 N.E.2d 43 (1991). We allowed the Commonwealth's application for further appellate review. We conclude that the Commonwealth's evidence was sufficient to warrant the jury's finding that the defendant was guilty of murder in the second degree as a joint venturer with Good. We also reject the defendant's arguments claiming error in: (1) the denial of his motion in limine; (2) the exclusion of testimony from a defense witness; (3) the prosecutor's final argument; and (4) the jury instructions on joint venture. Consequently, we affirm the defendant's conviction.

The Commonwealth's evidence permitted the jury to find the following facts concerning the murder. Around noon on Sunday July 27, 1986, Robert Perry was walking along Cambridge Street in Cambridge. John Good approached Perry and fatally shot him several times with a .38 caliber handgun. Good then ran to, and got into, the passenger seat of a Pontiac automobile bearing the Massachusetts registration number 104MND. This automobile, driven by the defendant, immediately sped down Maple Avenue. At a nearby intersection, the Pontiac ignored a stop sign and collided with another automobile. Good then left the automobile and rapidly walked away, telling the defendant that he intended to leave. The defendant remained with the automobile.

The Commonwealth's case concerning the defendant's knowledge and intent contained the following evidence. At about 1 A.M., July 27, 1986, the defendant, Good, and a third, unidentified man were together at a bar on Tremont and Cambridge Streets, about four blocks east of Cambridge City Hospital and seven blocks west of Hunting Street. Approximately seven hours later, at about 7:50 A.M., the defendant, Good, and another man were driving west on Cambridge Street near Hunting Street in a yellow or off-white automobile bearing Massachusetts registration number 104MND. The defendant was driving, Good was in the front passenger seat, and the third man was in the back seat. Perry lived on or near Hunting Street. Good also lived in the area.

As the three men drove along, they passed a green automobile parked at the curb. A white cat lay on the hood of the automobile. The defendant turned his vehicle around on Cambridge Street and again pulled abreast of the green automobile. Good pointed a handgun out of the passenger window and shot the cat twice in the neck, killing it. A witness saw Good pull the handgun back into the automobile and heard the three men laugh as the defendant drove off. The witness saw and recorded the registration number of the automobile, 104MND. He then made contact with the Cambridge police, who broadcast this registration number over the police radio system.

At approximately 11:45 A.M., Perry was at or near Inman Square on Cambridge Street. He made a telephone call to his former wife, and they agreed to meet for brunch. About fifteen minutes later, Perry's former wife was driving along Cambridge Street toward 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 automobiles.

A witness, William Thomas, was watching television in his third-floor apartment at 66 Maple Avenue. Maple Avenue, a one-way street, begins at Cambridge Street, in front of the hospital, and runs south to Broadway. Number 66 is on the east side of Maple Avenue, three house lengths down from Cambridge Street. Hearing gunshots, Thomas went to the front windows of his apartment and looked up toward Cambridge Street. Thomas saw a man with a handgun running diagonally from the corner of Cambridge Street, down and across to the east side of Maple Avenue. This man ran past Thomas's house and got into the passenger seat of an automobile parked in front of the house next door to Thomas's, one house length further from Cambridge Street. The automobile was parked on Maple Avenue where it was accessible to Cambridge Street and in position to be driven south down the one-way street. Thomas left the window to get paper and pencil to write down the registration number of the automobile, which he described as "off-white." When he returned to the window, the automobile was pulling out of its position and heading south. The registration number was 104MND.

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

Other witnesses testified 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 on foot from Maple Avenue by going into the driveway of the second house down from the playground, through to the backyard, and then through a hole in the fence and onto his property.

As the defendant drove away from the scene, he disregarded a stop sign at the intersection of Dana and Harvard Streets, and struck another automobile, driven by Cheryl Bergeron, broadside. Just after the accident, Bergeron saw Good walking quickly down Dana Street towards Massachusetts Avenue. She also saw Good look over his shoulder and heard him say, " 'I'm getting out of here,' something of that nature." The defendant, described by a witness as "very heavy," made no effort to leave the scene of the accident and leaned against the fender of his automobile.

A Cambridge police officer, Kevin Davis, arrived at the accident scene and recognized the registration number on the defendant's automobile, 104MND, as the one that had been broadcast earlier that morning and again before noon. Officer Davis gave the defendant Miranda warnings immediately, and the defendant responded, "What's the big deal about an accident? I'm the only one." Either the defendant or a bystander later told Officer Davis that another person had been in the automobile. A brown paper bag containing six or seven bullets (similar to those used to kill Perry) ² was found on the floor of the defendant's automobile by the passenger seat. There was also gunpowder residue on the inside upper portion of the passenger side door of the automobile.

In his case, the defendant offered one witness, his mother, who worked at Cambridge City Hospital. The judge excluded her testimony as inadmissible hearsay. We shall address the issue of the judge's ruling on this testimony later in the opinion.

1. Motion for required finding. At the conclusion of all the evidence, the defendant moved for a required finding of not guilty on the basis that the Commonwealth's evidence was insufficient to show that he knew of, and shared, Good's intention to kill or grievously injure Perry. See Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979). The judge denied the motion and submitted the case to the jury. The defendant argues that the motion should have been allowed.

"The essential question in evaluating the denial of a motion for a required finding of not guilty is whether the evidence received, viewed in a light most favorable to the Commonwealth, is sufficient so that the jury 'might properly draw inferences, not too remote in the ordinary course of events, or forbidden by any rule of law, and conclude upon all the established circumstances and warranted inferences that the guilt of the defendant was proved beyond a reasonable doubt.' Commonwealth v. Vellucci, 284 Mass. 443, 445 (1933)." Commonwealth v. Clary, 388 Mass. 583, 588-589, 447 N.E.2d 1217 (1983). A joint venturer, is "one who aids, commands, counsels, or encourages commission of a crime while sharing with the principal the mental state required for the crime." 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). "To be convicted of murder on a joint venture theory '[a] joint venturer need only intend that the victim be killed or know that there is a substantial likelihood of the victim's being killed.' Commonwealth v. Podlaski, 377 Mass. 339, 347 (1979)." Commonwealth v. Champagne, 399 Mass. 80, 86-87, 503 N.E.2d 7 (1987). "A person's knowledge or intent is a matter of fact, which is often not susceptible of proof by direct evidence, so resort is frequently made to proof by inference from all the facts and circumstances developed at the trial.... The inferences drawn by the jury need only be reasonable and possible and need not be necessary or inescapable ..." (citations omitted). Commonwealth v. Casale, 381 Mass. 167, 173, 408 N.E.2d 841 (1980). "The line that separates mere knowledge of unlawful conduct and...