Commonwealth v. Webster

• Decision Date: 27 July 2018
• Docket Number: SJC-12358
• Citation: 102 N.E.3d 381,480 Mass. 161
• Parties: COMMONWEALTH v. Steven M. WEBSTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

480 Mass. 161

102 N.E.3d 381

COMMONWEALTH

v.Steven M. WEBSTER.

SJC-12358

Supreme Judicial Court of Massachusetts, Barnstable..

Argued April 6, 2018

Decided July 27, 2018

Dana Alan Curhan, Boston (Christie L. Nader also present) for the defendant.

Elizabeth A. Sweeney, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Gaziano, Lowy, Budd, & Kafker, JJ.

BUDD, J.

In the afternoon of July 11, 2012, Andrew Stanley was shot and killed at his home during an armed robbery and home invasion involving the defendant and three coventurers. The defendant, Steven M. Webster, was convicted of murder in the first degree on a theory of felony-murder, home invasion, armed assault in a dwelling, armed robbery,¹ and carrying a firearm without a license.² The defendant asserts that the judge erred by denying his motion for a required finding of not guilty and by admitting certain evidence at trial. The defendant asserts further that the judge should have instructed the jury on consciousness of guilt evidence sua sponte, and that his counsel was ineffective for failing to request such an instruction. We affirm the defendant's convictions and decline to grant extraordinary relief pursuant to G. L. c. 278, § 33E.

Background. We summarize the facts as the jury could have found them, reserving certain details for discussion of specific issues.

At approximately 1:20 P.M. on July 11, 2012, police responded to reports of shots fired at a home in Hyannis. Police officers heard moaning and yelling coming from the house; one of them saw an individual he recognized as Keiko Thomas looking out a window. The officers heard gunfire. Three men were seen fleeing from the house and jumping over an adjacent fence; an officer recognized one of the fleeing men as Eddie Mack. Officers pursued the men on foot and apprehended Thomas and another individual, David Evans. The police also apprehended Mack, who was hiding behind an air conditioning unit outside a nearby store. In the meantime, a witness saw a fourth man who had run back toward the house; this man was not apprehended.

Inside the home, police found the victim lying unresponsive on the living room floor. His hands and feet were bound with handcuffs, duct tape, and zip ties. He had numerous abrasions, injuries from blunt force trauma, and marks on his body consistent with the use of a stun gun. The cause of death was a single gunshot wound to the torso.

Police recovered several items near the area where they had apprehended Mack. Marijuana was inside the air conditioning unit, and $14,300 in cash and two cellular telephones (cell phones) were underneath a pallet next to the unit. They also found two cell phones in a nearby alleyway. Three of the cell phones belonged to the victim, Mack, and Thomas. In the parking lot next to the house, police located a backpack containing the following: two firearms, one of which was a loaded .45 caliber Colt handgun; gloves; a roll of duct tape consistent with the duct tape used to bind the victim; a stun gun; an aerosol can; zip ties; and a black face mask, which had the defendant's deoxyribonucleic acid (DNA) on it.

Police discovered a spent shell casing that had been fired from the Colt handgun. The bullet retrieved from the victim's body was consistent with having come from that gun. Investigators found Mack's fingerprint on a crumpled piece of duct tape and his palm print on the lower part of a window.

In executing a search warrant at Thomas's home, located approximately one mile from the victim's home, police recovered a roll of duct tape, handcuffs, and one round of ammunition.

Cell phone records showed that, in the days leading up to the killing, Mack, Evans, and the defendant were communicating with one another via calls and text messages. From July 1 to July 11, the defendant telephoned or sent text messages to numbers associated with Evans 231 times. On July 3, the defendant sent a text message to Evans that stated, "Got some heat lined up," and "Bring dem rollie up, in the arm rest." On July 7, the defendant sent another text message to Evans stating, "cuz if you chillen im bout, I am to go snatch my lil heat by Norfolk and cum back." On July 9, Evans sent a text message to the defendant asking, "So, what about mack?" The defendant responded, "We out their what time was u tryna head out their?" Evans replied, "We gotta see dude at nine tho." Evans asked the defendant, "What you trying to do?" The defendant responded, "stressing fam." The defendant also communicated with Mack seven times on July 10 and July 11.

Between July 7 and 11, there were multiple text messages exchanged between Mack and Evans and forty-five communications between Mack and Thomas. On July 8, Mack sent a text message to Evans saying, "Gotta come down so I can explain it better bro so we can get better understandin feel me." The day before the killing, Mack sent another text message to Evans asking, "Yal good?" Evans responded, "Yup. We out there tomorrow night cuz."

Cell site location information (CSLI) evidence placed the defendant's and Mack's cell phones in the Barnstable area on July 10 and 11. CSLI evidence further indicated that both of their cell phones were tracked being moved from Barnstable toward Boston approximately one hour after the homicide. At 2:21 P.M. , the defendant telephoned Mack, using a calling feature to block the caller's identification. A few minutes later, a text message was sent from Evans to Mack, which stated, "What up bro its [me, i.e., the defendant] hit me back." At 4 P.M. , cell phones belonging to the defendant and Evans were in the Boston area.

Finally, tire impressions found in the dirt and gravel of the backyard at the scene were consistent with the pattern made by the tires of a Chevrolet Impala automobile that Evans had rented a few days prior to the murder. The vehicle was found in Boston on July 13, approximately one mile from the defendant's home. The defendant's DNA was located on the interior and exterior of the rear passenger's side door of the vehicle.

The defendant was arrested in February, 2013. At trial, he argued that he was not at the crime scene. The defendant moved for a required finding of not guilty at the close of evidence; the judge denied the motion.

Discussion. The defendant argues that (1) there was insufficient evidence to convict him of the crimes; (2) the judge should have excluded the tire impression evidence as irrelevant and prejudicial; (3) the Commonwealth did not establish by a preponderance of evidence that the a cell phone number introduced at trial was used by Evans; and (4) the defendant was entitled to a consciousness of guilt instruction that the judge should have provided sua sponte, and because defense counsel failed to request such an instruction, counsel was ineffective.

1. Sufficiency of the evidence. The defendant contends that the Commonwealth failed to prove that he was at the victim's home at the time the crimes were committed, or that he was otherwise involved in participating in the joint venture. We disagree.

To convict the defendant as a joint venturer, "we must determine whether the evidence showed that he knowingly participated in the commission of the crime[s] charged, alone or with others, with the intent required for the offense[s]." Commonwealth v. Rakes, 478 Mass. 22, 32, 82 N.E.3d 403 (2017). "Under the familiar Latimore standard, the evidence is sufficient to reach the jury and a motion for a required finding of not guilty is properly denied if the evidence, viewed in the light most favorable to the Commonwealth and drawing all inferences in favor of the Commonwealth, would permit a rational jury to find each essential element of the crime beyond a reasonable doubt." Commonwealth v. Merry, 453 Mass. 653, 660, 904 N.E.2d 413 (2009), citing Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979).

We conclude that the Commonwealth presented sufficient evidence for the jury to find that when the defendant planned and participated in, or agreed to help with, the crimes of which he was convicted, he had the requisite mental state. See Commonwealth v. Phillips, 452 Mass. 617, 633, 897 N.E.2d 31 (2008).

First, the Commonwealth presented evidence from which the jury could conclude that the defendant helped plan the crimes against the victim. That evidence included the many telephone calls and text messages exchanged between the defendant and Evans. As discussed, on July 3 and 7, the defendant sent a text message to Evans stating that he was getting "heat," i.e., a gun. On July 9, the defendant and Evans were coordinating meeting with a "dude at nine." Evans asked the defendant, "What you trying to do?" The defendant responded, "stressing fam." Jurors could infer from this exchange that the defendant participated in planning the crime, including procuring one or more firearms, and that the defendant was nervous about it.

There was also evidence that the defendant was at the scene of, and participated in, the crime. CSLI evidence placed the defendant's cell phone in the area of the victim's home on July 11. The defendant did not send a text message to either Evans or Mack on the morning of July 11, but Evans and Mack were communicating with one another from 8:39 A.M. to 12:10 P.M. that day, which, with other evidence, permitted an inference that the defendant was with Evans during that time. No text messages were sent among any of the four men between 12:10 and 2:21 P.M. , which included approximately one hour before and one hour after the murder. This evidence allowed the jury to infer that the four coventurers were together at the victim's home at the time of the killing. Additionally, the defendant's DNA was discovered on a mask located in a backpack containing other items that had been used in the killing.

There also was evidence of the defendant's flight from the scene. While three men were seen jumping over an adjacent fence when police arrived, one witness saw a fourth...