Com. v. Stewart

• Decision Date: 10 November 1986
• Docket Number: No. S-4080,S-4080
• Citation: 398 Mass. 535,499 N.E.2d 822
• Parties: COMMONWEALTH v. Donald STEWART.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 822

499 N.E.2d 822

398 Mass. 535

COMMONWEALTH v. Donald STEWART.

No. S-4080.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Sept. 9, 1986.

Decided Nov. 10, 1986.

James M. Smith, for defendant.

James M. McDonough, Asst. Dist. Atty. (Leonard J. Henson, Asst. Dist. Atty., with him), for the Com.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and O'CONNOR, JJ.

LIACOS, Justice.

The defendant, Donald Stewart, was indicted on February 25, 1977, for the murder of Ronald Allen; for assault and battery by means of a dangerous weapon on Gregory Smith; for assault and battery on Sharon Waddie; for unlawfully carrying a firearm on his person; for entering a dwelling house armed and making an assault with intent to commit a felony; for three counts of assault with intent to rob while armed; and for armed robbery of Dolores Smith. On April 26, 1985, more than eight years after indictment, a jury found Stewart guilty of murder in the first degree and he was sentenced to life imprisonment at the Massachusetts Correctional Institution at Cedar Junction. ¹

The evidence admitted would warrant the jury's finding the following facts. In February, 1977, Dolores Smith lived with her three teenaged daughters (Karyn, Stacy, and Lisa) and her two adult sons (Edward and Gregory) in apartment no. 908, 7 Montpelier Road, Dorchester. Gregory Smith, then aged twenty, and his mother had been selling heroin from the apartment. On the evening of February 6, 1977, two friends of Dolores Smith--Sharon Waddie and the murder victim, Ronald Allen--were visiting at apartment no. 908. At 11:15 P.M., there was a knock on the door. Gregory Smith answered it, finding Sheila Funches and Gloria Jordan, who said they wanted to buy heroin. After opening the door, Gregory saw two armed men running down the hall toward him. He tried to close the door, but Funches and Jordan prevented him, allowing the two men to force their way past Gregory and into the apartment. Gregory recognized one of the men as Stewart. Stewart carried a pearl-handled .25 caliber semi-automatic pistol with which he hit the struggling Smith "up the side of the head." The other man was later identified by Gregory and others as Robert Thomas. ² Thomas carried a sawed-off shotgun.

The noise of this scuffle brought Waddie to the doorway. Stewart took her by the hair and pushed her toward the kitchen. Stewart permitted her to return to a bedroom after she said, "Please let me go." Dolores Smith then emerged from another bedroom. Thomas pushed her to the floor, put his shotgun to her head, and said, "Where is the money and the dope, bitch?" Dolores said she had none. At this point, Allen entered the kitchen. He said to Stewart, "Man, why are you doing this? We all grew up together." Stewart said, "Shut up." Then Stewart shot Allen in the head. ³ Allen fell to the floor; Stewart stepped over him and began searching the bedroom. He and Thomas then left, taking $30 in cash and two twenty-dollar bags of heroin.

About fifteen minutes after the shooting, one of the surviving victims telephoned the police. The responding officers were told by several of the victims that the killer was a man they knew as Stewart. ⁴ Officers Ralph Regan and Francis M. McDonough were dispatched to set up a roadblock near the Bayside Mall in Dorchester. Neither officer knew Stewart by sight, but the victims had given them his name and his description. The fourth vehicle they stopped was a taxicab headed away from the scene of the crime. Its lone passenger was a man who fit the killer's description. Officer Regan asked this man to get out of the cab, and the man complied. Regan frisked him but found nothing. Regan then saw a pearl-handled pistol on the floor of the back of the cab. As Regan reached in to retrieve the gun, the passenger fled and escaped. Officers who knew Stewart testified that, although he had often been seen around the Columbia Point housing project prior to that night's shooting, he was nowhere to be found in the weeks and months that followed. A warrant issued, but Stewart remained at large for seven years. He was arrested in October, 1984, in Cleveland, Ohio.

As to the eyewitness accounts, both Dolores Smith and Sharon Waddie testified that they had known Stewart as an occasional resident of the Columbia Point housing project for many years prior to the shooting, and that they had recognized him instantly as their assailant. Gregory Smith and Stacy Smith testified that they had known Stewart only by name prior to seeing him shoot Ronald Allen; and Karyn Smith testified that she recognized a voice she heard in her mother's apartment that night as the voice of a man she knew by sight as Stewart. All of these witnesses also identified the defendant in court as the man who had murdered Ronald Allen.

William J. Murphy, a retired police officer and former chief ballistician for the Boston police department, testified over the defendant's objection that the bullet which killed Allen was fired from the gun found by Officer Regan on the floor of the taxicab. The actual murder weapon was not introduced because it was destroyed by court order in 1981, two years after the appeals of Funches and Jordan had run their course and four years before Stewart's arrest. However, the judge did permit the Commonwealth to introduce, again over the defendant's objection, a weapon of the same make and model as the .25 caliber semi-automatic pistol that was used in the murder. The unspent bullets found inside the murder weapon, together with a spent shell casing found on the floor of Dolores Smith's kitchen and the slug taken from Allen's head, were likewise unavailable to be introduced in evidence--not, however, due to design but because a "diligent search" by the clerk of the Suffolk County Superior Court, in whose custody these items had been placed, failed to locate them.

At his trial, Stewart introduced no evidence and did not testify in his own behalf. On appeal, Stewart argues that (1) the trial judge erred in denying his motion for a required finding of not guilty because there was insufficient evidence of deliberate premeditation to support a verdict of murder in the first degree; (2) the judge erred when he admitted in evidence a gun similar to the murder weapon and also that he erred when he failed in his instructions (despite the lack of any request from defense counsel) to remind the jury that the actual weapon was not in evidence; (3) the judge erred in admitting the ballistician's testimony because the ballistician had no opportunity to review the physical ballistic evidence immediately before trial, with the result that his testimony was based solely on his eight-year-old work sheet; (4) the judge erred in his instructions to the jury (a) by charging inadequately as to consciousness of guilt, and (b) by muddying the distinctions between the degrees of murder. He further argues that this court should exercise its power under G.L. c. 278, § 33E (1984 ed.), to grant a new trial or to direct the entry of a verdict of a lesser degree of guilt because (1) the evidence of premeditation was less than "overwhelming"; (2) the judge considered Stewart to have been a heroin addict at the time these crimes were committed, but he failed sua sponte to instruct the jury on voluntary intoxication as a factor which could reduce the defendant's degree of guilt; (3) Stewart, while at large, had rehabilitated himself substantially; and (4) the judge's instructions left an impression that the jury's only options were to find Stewart guilty of murder in the first degree, or not guilty.

1. Questions appealed as of right. A. Sufficiency of the evidence of premeditation. The defendant argues that the judge erred when denying his motion for a required finding of not guilty because there was insufficient evidence of deliberate premeditation. ⁵ "In reviewing the denial of a motion for a directed verdict in a criminal case, we determine whether the evidence offered by the Commonwealth, together with reasonable inferences therefrom, when viewed in its light most favorable to the Commonwealth, was sufficient to persuade a rational jury beyond a reasonable doubt of the existence of every element of the crime charged." Commonwealth v. Campbell, 378 Mass. 680, 686, 393 N.E.2d 820 (1979). See Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979); Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979).

To prove deliberate premeditation, "the Commonwealth must show that the defendant's resolution to kill was a product of cool reflection. '[W]here the purpose is resolved upon and the mind determined to do it before the blow is struck, then it is, within the meaning of the law, deliberately premeditated malice aforethought.' " Commonwealth v. Blaikie, 375 Mass. 601, 605, 378 N.E.2d 1361 (1978), quoting Commonwealth v. Tucker, 189 Mass. 457, 494, 76 N.E. 127 (1905). In the usual case, "[w]e recognize that the use of a gun in a killing is sufficient to support a verdict of murder in the first degree." Commonwealth v. Lattimore, 396 Mass. 446, 453, 486 N.E.2d 723 (1985). The defendant argues, however, that there was no evidence of a quarrel between himself and Allen, nor any evidence of a plan or scheme for killing. While he admits there was sufficient evidence of a scheme to rob, he claims there was evidence only of an impromptu conversation and a contemporaneous killing, the reason for which remains a mystery. We are not persuaded that such an argument demonstrates that the evidence of premeditation was insufficient as matter of law.

We discern no difference between this and the usual case. The use of a gun in a killing is sufficient generally to permit an inference of premeditation precisely because evidence that the defendant brought a gun with him to the scene of a planned crime is evidence of planning, which included preparation for using the...