Commonwealth v. Stewart

• Decision Date: 10 November 2011
• Docket Number: SJC–10728.
• Parties: COMMONWEALTH v. Donald H. STEWART, Third.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

460 Mass. 817
957 N.E.2d 712

COMMONWEALTH
v.
Donald H. STEWART, Third.

SJC–10728.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Sept. 9, 2011.Decided Nov. 10, 2011.

[957 N.E.2d 715]

Stewart T. Graham, Jr., for the defendant.

Stephen J. Carley, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, DUFFLY, & LENK, JJ.

IRELAND, C.J.

[460 Mass. 818] The defendant was convicted of murder in the first degree of the victim, Nicholas Martone, on the theories of felony-murder, deliberate premeditation, and extreme atrocity or cruelty. The defendant also was convicted of armed robbery as the predicate felony and three charges of assault and battery by means of a dangerous weapon.¹ On appeal, the defendant argues that there was insufficient evidence of armed robbery to support his conviction of felony-murder, that there were numerous errors in the judge's instructions to the jury, and that his attorney provided constitutionally ineffective assistance. Because we conclude that no claim of error created a substantial likelihood of a miscarriage of justice, and discern no reason to exercise our power under G.L. c. 278, § 33E, we affirm his convictions.

Facts and background. We recite the facts the jury could have found, reserving details for our discussion of the issues raised. The account of the victim's murder came from the defendant's statement to police and the testimony of two of the Commonwealth's witnesses, Mark Bergeron and Shannon Belsito. At the time of the murder, Belsito was the girl friend of the defendant's accomplice, Frank Carpenter.

In May, 2003, the defendant and Carpenter lived with Bergeron in a “storage facility” in Worcester.² In the early morning hours of May 5, the victim approached the defendant and Carpenter and asked to buy some drugs. The defendant patted the victim down and took a knife that the victim had in his possession. The victim stayed with the defendant, Carpenter, and Belsito while he smoked “crack” cocaine. At some point, there was a discussion concerning

[957 N.E.2d 716]

whether, in exchange for drugs, the victim would lend his truck to the defendant for a [460 Mass. 819] few hours. When the victim declined, the defendant and Carpenter went outside the facility, where Carpenter said that the pair should just take the victim's truck. When the defendant stated that the victim could report it stolen, Carpenter responded that they should kill the victim. The defendant “went along with” this suggestion. The pair returned to the facility and asked the victim to go with them to buy some cigarettes; the victim left with them.

As the men were walking near some railroad tracks, the defendant and Carpenter attacked the victim by grabbing him around the neck, punching and kicking him. The defendant used the victim's knife to stab him and, when the victim was gasping for air, the defendant cut off the victim's belt and used it to strangle him. The victim stopped breathing; the pair then threw his body over a concrete wall, a drop of nine feet.

The pair went back to the facility, and into the bathroom together. They let Belsito in and she saw the defendant “covered in blood.” He stated that he had killed the victim with his own knife by stabbing him fifty-one times, and related that he had jumped off a wall onto the victim's chest, cut his neck “so that it opened up bad,” and kicked him in the neck while he was gasping for air. He stated that the victim's chest caved in with ribs coming out of his body and that the victim's eyeball came out of its socket.³

The defendant asked Belsito to get him a bag and something to cover the victim's body. The pair put their bloody clothes as well as the victim's pants, belt, and sneakers into the bag. The defendant hid the victim's wallet in a ceiling panel at the facility.

The defendant and Carpenter left the facility to cover the victim's body with a sheet Belsito had given them and some plastic roofing material they had found. The pair returned and slept.

When they awoke, the defendant wanted Belsito and Carpenter to leave with him later that day to drive the victim's truck to Florida. As a ruse, Belsito asked the defendant to drive her to a hospital to see her father; Carpenter went with them.

[460 Mass. 820] After leaving Belsito to visit her father, the defendant and Carpenter approached Bergeron, and asked him whether he knew where they could get rid of a stolen truck. Bergeron declined to help them. Carpenter then asked whether Bergeron would sell the truck; he declined.

In the early morning hours of May 6, the pair were arrested at an automobile dealership, charged with breaking and entering, and held in custody. Later that evening, Belsito reported the murder to police, who recovered the victim's body, the bag, and the wallet. The police interviewed Carpenter the next morning, and he told them where to find the knife.

Once they had the knife, the police then interviewed the defendant, who confessed and provided details of how the murder was committed. He had the keys to the victim's truck in his possession.

At trial, the medical examiner testified that the victim's death was caused by stab wounds to his neck and blunt head and neck trauma.⁴

[957 N.E.2d 717]

The defendant did not testify. He had admitted to police that he participated in the victim's killing but, through witnesses, including a forensic psychologist, cross-examination of the Commonwealth's witnesses, and argument, his defense was that he was so impaired by drug use, that he was not capable of forming the requisite intent to commit murder. The defendant moved for required findings of not guilty at the close of the Commonwealth's case and at the close of all evidence. The judge denied the motions.

Discussion. 1. Felony-murder. The defendant argues that his conviction of felony-murder was in error because there was no evidence of an armed robbery. We disagree.

[460 Mass. 821] In order to make a case for felony-murder, the Commonwealth “need only establish that the defendant committed a homicide while engaged in the commission of a felony.” Commonwealth v. Matchett, 386 Mass. 492, 502, 436 N.E.2d 400 (1982), citing Commonwealth v. Watkins, 375 Mass. 472, 486–487, 379 N.E.2d 1040 (1978). Here, the Commonwealth claimed that the predicate felony to the victim's murder was armed robbery. G.L. c. 265, § 17. Commonwealth v. Tevenal, 401 Mass. 225, 230, 515 N.E.2d 1191 (1987) (armed robbery may serve as predicate for felony-murder). Robbery is “[t]he taking and carrying away of personal property of another from his person and against his will, by force and violence, or by assault and putting in fear, with intent to steal.” Commonwealth v. Novicki, 324 Mass. 461, 464–465, 87 N.E.2d 1 (1949), quoting G.L. (Ter. Ed.) c. 277, § 39. The taking must be with the intent permanently to deprive the person of their property. Commonwealth v. Salerno, 356 Mass. 642, 648, 255 N.E.2d 318 (1970). “It would be enough that the homicide[ ] occurred as part of the defendant's effort to escape responsibility for the underlying felony.” Commonwealth v. Ortiz, 408 Mass. 463, 466, 560 N.E.2d 698 (1990), and cases cited.

Here, in his statement to police, the defendant claimed that the victim agreed to lend him the truck in exchange for drugs, and gave the defendant the keys. The defendant also stated that, right after the victim gave him the keys, he left the victim inside the facility and went outside with Carpenter. Carpenter said that the pair should take the victim's truck and the defendant “went along” with the plan to kill the victim so he would not report it “stolen.” The defendant further stated that, immediately after this plan was created, the defendant and Carpenter asked the victim to take a walk with them to get cigarettes. The pair did not take the truck until after the victim was killed.

The defendant's argument that there was no evidence of an armed robbery is based solely on his claim in his statement to police that, in exchange for drugs, the victim agreed to lend the defendant his truck and gave him the keys. Relying on his assertion that the truck was already in his possession, the defendant claims that

[957 N.E.2d 718]

his subsequent intent to steal it was larceny, not armed robbery. We disagree.

The jury reasonably could have concluded that the victim did not voluntarily give the defendant the keys or his truck, relying [460 Mass. 822] solely on the defendant's statement to police. Given that the plan to steal the truck and kill the victim was so close in time to when the victim supposedly gave the defendant the keys, and the fact that the defendant did not use the truck until after the victim was killed, the jury reasonably could have concluded that the defendant was not being truthful about what transpired concerning the keys. The jury reasonably could have found that it was the victim's refusal to lend the truck that caused the defendant and Carpenter to leave the victim inside the facility while they discussed stealing the truck.

There also was other evidence from which the jury could have concluded that the truck was never lent to the defendant. Bergeron testified that “they” asked him whether he knew where to get rid of a “stolen truck.” Even though on cross-examination Bergeron stated that it was Carpenter who asked the question, there is no evidence that the defendant contradicted Carpenter's characterization. Belsito testified on cross-examination that she heard the defendant and victim discussing the truck, but that she did not believe “anything was ever exchanged.” Moreover, a forensic psychologist the defendant called as a witness testified that the defendant told him that he argued with the victim about the truck because the victim first said he would lend it and then changed his mind, and that during their walk he again argued with the victim. The jury reasonably could have inferred that the second argument had been about the...