Com. v. Stewart

• Decision Date: 14 August 2009
• Docket Number: SJC-09742.
• Citation: Com. v. Stewart, 911 N.E.2d 161, 454 Mass. 527 (Mass. 2009)
• Parties: COMMONWEALTH v. Steven STEWART.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

911 N.E.2d 161

454 Mass. 527

COMMONWEALTH v.Steven STEWART.

SJC-09742.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued April 10, 2009.

Decided August 14, 2009.

John M. Thompson for the defendant.

Thomas G. Shack, III, Assistant District Attorney(Robert D. Moriarty, Assistant District Attorney, with him) for the Commonwealth.

Present: MARSHALL, C.J., SPINA, COWIN, BOTSFORD, & GANTS, JJ.

COWIN, J.

A jury in the Superior Court convicted the defendant of murder in the first degree on theories of extreme atrocity or cruelty and deliberate premeditation.The jury were instructed on both principal and joint venture liability and returned a general verdict.The defendant appeals from his conviction on a variety of grounds which we discuss infra.We reverse the defendant's conviction because a witness was permitted to answer questions without being sworn and because the same witness was allowed to answer, "No comment" to leading questions that contained highly prejudicial information.We address other claims of error concerning issues that may arise at a retrial.

1.Facts.We briefly describe the thrust of the Commonwealth's case based on the evidence and reasonable inferences therefrom, leaving the details of the evidence to later discussion of specific issues.Frances Carriere, the wife of Edmond Carriere, Jr.,¹ was stabbed to death in the bathroom of her home on Head of the Bay Road in the Buzzards Bay section of Bourne at approximately 5:30 P.M. on January 3, 1980, by the defendant, who was part of a joint venture murder for hire.The other participants in the venture were the victim's husband and Richard Grebauski.²Grebauski was present at or near the murder scene.He was friends with both the husband and the defendant, and the defendant did work for Grebauski.

A next door neighbor of the victim heard cars "drive up" at about 6:05 or 6:10 P.M. on the evening of the murder.He heard two doors slam and "possibly the trunk being shut."The victim's body was found at about 8 P.M. on January 3, lying on the floor, her head against the bathtub, clutching human hair in her left hand.She had four stab wounds and a small bruise on her neck consistent with pressure from a hand or someone holding her neck.She died from multiple stab wounds to her chest.³

According to Stephen Tracy, the defendant's employer in 1980, the defendant said that Grebauski might have a job for him "to do" someone's wife.Tracy stated in addition that there was a period in 1980 when the defendant was "not around."When Tracy asked the defendant where he had been, the defendant said "he had some things to do and he did them."The defendant had been missing "in the time frame" of the murder.At that same point, Tracy recalled that the defendant"had outfitted an apartment with some furniture.He just recently got married."

Two to three months before the murder, while the victim and her husband were in the process of being divorced, the victim's husband offered a "couple of thousand dollars" to some friends to murder his wife.The friends were Charles Berryman and Russell Breault and possibly David Phinney.The friends did not take the offer seriously.

Richard Grebauski was David Mello's drug dealer and the two men committed "a lot of crimes ... [s]elling drugs, stealing, auto theft."On January 3, 1980, Mello called Grebauski for drugs which Grebauski brought.The two men drove to Head of the Bay Road in Buzzards Bay.At about 6 P.M., Grebauski got out of the car there, left Mello with his drugs, and said he would be right back.Grebauski returned about one-half hour later and sped off.Mello noticed nothing unusual about Grebauski's appearance and saw no blood on him.

Timothy Blanchette, the defendant's son, said he first met his father in 1998 when he was eighteen years old.The two men would meet occasionally, and, one night when they were drinking, the defendant said that he got $10,000 for "some lady that he had killed down the Cape ... Buzzards Bay."He said "it was the easiest $10,000 he ever made, and he continued to laugh about it."The defendant said that the killing took place in the bathroom: "He said she got out of the tub and he stabbed her."

2. Discussion. a. Questioning of Robert Hoeg.We reverse the conviction because the Commonwealth was permitted to question a witness, Robert Hoeg, who refused to take an oath and because the Commonwealth was allowed to ask him leading questions to which he responded, "No comment."The leading questions essentially permitted the Commonwealth to place its entire case before the jury in the form of an impermissible interrogation without competent testimony by a witness.

Robert Hoeg, a coworker and friend of the defendant, gave a statement to the police and testified before the grand jury.In both his statement and grand jury testimony, Hoeg essentially set forth the entire scenario of the murder as recounted to him by the defendant.At the time of trial, Hoeg was serving a sentence of life without parole for a conviction of murder in the first degree.(That conviction was unrelated to the present case.)When Hoeg was brought to court, the Commonwealth informed the judge out of the presence of the jury that Hoeg would claim the privilege against self-incrimination.An appointed lawyer determined that Hoeg had no such privilege and, at side bar, the judge so informed Hoeg.

In the presence of the jury, the clerk recited an oath but Hoeg did not respond.The judge asked Hoeg whether he intended to answer questions, and Hoeg said no.With the jury not present, the judge ordered Hoeg to testify, but he refused.The judge stated that, because Hoeg was serving a life sentence, it would be futile to hold him in contempt.He declared Hoeg a hostile witness, and permitted the Commonwealth to question him, but said that the Commonwealth could not put him on the stand simply to impeach him or use his silence as inconsistent testimony for purposes of introducing his grand jury testimony.SeeCommonwealth v. McAfee,430 Mass. 483, 489-492, 722 N.E.2d 1(1999)(party may not call witness who he knows beforehand will not offer relevant testimony solely for purpose of impeaching witness).The judge ruled also that Hoeg's failure to take an oath "would only affect his credibility."

The jury were brought in; Hoeg took the stand but again refused to be sworn.The prosecutor asked Hoeg if he killed the victim, and he responded that he did not.In response to other questions, Hoeg denied knowing the victim, her husband, or their son.Hoeg answered another question by stating that he"[n]ever" lived in Buzzards Bay.He stated also that he knew the defendant and that he lived in the penal institution at Shirley.

The prosecutor then asked Hoeg approximately twenty questions in respect to a statement that Hoeg had given a State trooper concerning the murder and regarding Hoeg's grand jury testimony.To each question, Hoeg responded, "No comment."These leading questions put forth the Commonwealth's entire theory of how the murder was committed.For example the prosecutor asked if Hoeg had told the grand jury that the defendant told Hoeg that Grebauski had a friend who wanted his wife "taken care of" because they were going through an ugly divorce and that Grebauski offered the defendant $5,000 "to take care of" the friend's wife.Other examples of the prosecutor's questions to Hoeg were whether Hoeg had stated to the grand jury that the defendant had told him that his brother drove him to the Cape; that "he entered the woman's home ... through a slider or sliding glass door in the back of the home ... [that] the woman was in the shower; [that]he attacked her in the shower and stabbed her; ... [that]he could hear the woman's heart pumping the blood out of her[, o]ut of the wounds ... [and that]she was fighting him off and grabbing and clawing at him."

Defense counsel objected to the questions to no avail.The judge overruled the objections on the ground that, because Hoeg had answered some questions, the Commonwealth could continue to question him in an effort to impeach him.The judge stated he would not have permitted any questioning if Hoeg had not answered any inquiries.At the end of Hoeg's testimony, the judge instructed the jury that "[q]uestions from lawyers, no matter how damaging, are not evidence."In his final instructions, the judge repeated that "questions themselves are not evidence.The answers are evidence.And so, the mere fact that a question was asked in and of itself is not evidence in this case."

Hoeg should not have been permitted to answer questions for two reasons.First, he refused to take an oath or affirm the truthfulness of his testimony in any other manner.Although a witness may affirm in ways other than by taking an oath, seeG.L. c. 233, §§ 17-19;Adoption of Fran,54 Mass.App.Ct. 455, 467, 766 N.E.2d 91(2002)(adult witness may affirm duty to testify truthfully), a witness must swear or affirm, or the witness may not testify.When Hoeg refused to take an oath, the judge was faced with a difficult situation, but the solution he chose was an impermissible one.The judge should have ordered Hoeg to take the oath by swearing or affirming, and held him in contempt for failing to do so.Even if the threat of a contempt finding, or a contempt finding itself, may not have brought about compliance, the judge was not permitted to waive the requirement of an oath.⁴

Second, the entire procedure denied the defendant due process.The leading questions put by the prosecutor⁵ were effectively transformed into evidence, and the ambiguous "no comment" responses cannot reasonably be construed as denials of the propositions contained in the questions.The Commonwealth effectively communicated to the jury its version of the events without competent evidence, at least from Hoeg, that the events described in the prosecutor's questions had in fact occurred.Nor did the...