Stewart v. Coalter, Civ. A. No. 92-12660-DPW.

• Decision Date: 07 June 1994
• Docket Number: Civ. A. No. 92-12660-DPW.
• Citation: 855 F. Supp. 464
• Parties: Gary STEWART, Petitioner, v. William COALTER, Respondent.
• Court: U.S. District Court — District of Massachusetts

855 F. Supp. 464

Gary STEWART, Petitioner, v. William COALTER, Respondent.

Civ. A. No. 92-12660-DPW.

United States District Court, D. Massachusetts.

June 6, 1994.

As Corrected June 7, 1994.

Patricia A. O'Neill, Committee for Public Counsel Services, Boston, MA, for petitioner.

William J. Meade, Asst. Atty. Gen., Crim. Bureau, Boston, MA, for respondent.

MEMORANDUM AND ORDER

WOODLOCK, District Judge.

This is a petition for a writ of habeas corpus brought by Gary Stewart, who was convicted on March 14, 1987 of second degree murder as a joint venturer in the death of Robert Perry. Stewart was sentenced to life imprisonment in the Massachusetts Correctional Facility at Cedar Junction. A divided panel of the Massachusetts Appeals Court reversed the conviction for lack of sufficient evidence. Commonwealth v. Stewart, 30 Mass.App.Ct. 569, 571 N.E.2d 43 (1991). The Massachusetts Supreme Judicial Court rejected the Appeals Court determination and affirmed the conviction, finding the evidence sufficient. Commonwealth v. Stewart, 411 Mass. 345, 582 N.E.2d 514 (1991). Petitioner now seeks a writ of habeas corpus in federal court on grounds of evidentiary insufficiency. I will grant the petition because only by an inappropriate exercise of imaginative speculation can the evidence be said to support a finding that Stewart had the necessary intent to be convicted of second-degree murder.

I.

Robert Perry was shot to death on Sunday, July 27, 1986 at approximately 11:45 A.M. on Cambridge Street in Cambridge. At trial, the Commonwealth sought to connect Stewart to the murder by tracing his whereabouts and association with the principal in the murder, John Good,¹ during the eleven hours preceding the shooting. The evidence at trial, essentially as reported by the two state appellate tribunals, was as follows:

Some time after 1:00 A.M. on July 27, 1986, policeman Edward Quinton saw Stewart enter the Night and Day bar at 1176 Cambridge Street with John Good and a third man, Dennis Clinton.² Quinton did not observe Stewart leave the bar.

Nearly seven hours later, at 7:50 A.M., the night security guard at the Harrington School was leaving the school when he saw a heavy set man driving a car bearing Massachusetts license plate numbered 104MND. A "skinny guy" was in the front passenger seat and another heavy set man was in the back seat. The car was headed west on Cambridge Street until it made a U-turn and pulled along side a parked green car which it had just passed. As the car carrying the three men reached the green car, the passenger pointed a handgun out the window on his side, shot twice and killed a cat sitting on the top of the car. The witness heard the three men laugh as the car drove off. He called the police and gave them the license plate number.

At 11:45 A.M., the victim, Robert Perry, who lived on a side street off Cambridge Street near the Harrington School, was walking west on Cambridge Street near Inman Square. He telephoned his ex-wife who agreed to meet him³ as he walked west and she drove east on Cambridge Street. When she reached the vicinity of Cambridge City Hospital she saw paramedics leaning over a body which she identified as that of Perry, who had been shot and died of multiple gun shot wounds. Perry's body was found between two parked cars next to the curb west of the intersection of Cambridge Street and Maple Avenue.

After hearing gunshots at approximately noon, two witnesses on Maple Avenue, a street running to the south off Cambridge Street, saw Good, gun in hand, run from Cambridge Street diagonally across from the west to the east side of Maple Avenue where he jumped into a parked car. Neither witness could identify the person in the driver's seat of the parked car.⁴

The first witness, William Thomas, saw the events as he was looking out his third-floor apartment window at 66 Maple Avenue. The apartment is located on the east side of Maple Avenue, the third lot south from Cambridge Street. After Thomas saw Good run to the car, which was parked in front of the next house on Maple Avenue to the south of his house, Thomas momentarily left the window to find paper and pencil with which to write the car's registration number. He returned as the car was pulling out of the space and saw the number, 104MND.

The second witness, Thomas Scott, was with his children at a playground on the west side of Maple Avenue, a full block south of Cambridge Street. When he heard the shots, Scott went to the fence of the playground. He saw Good run to the parked car and jump in. The car then took off immediately and sped down the street at approximately 45 miles per hour.

Moments later, Stewart was observed driving through a stop sign at the intersection of Dana and Harvard Streets striking an automobile driven by Cheryl Berrgeron and occupied by three other individuals. Berrgeron and another occupant saw Good walk away from the accident toward Massachusetts Avenue. She testified she heard Good say "`I'm getting out of here' something of that nature." Stewart, a heavy set man, remained at the scene.

When the police arrived, they observed that the license plate of Stewart's car matched the one that had been broadcast earlier in the morning in connection with the cat shooting. Stewart produced his registration for the car. Officers Kevin Davis and James Hite gave Stewart his Miranda warnings. Stewart responded with essentially the words, "What's the big deal about an accident? I'm the only one." The police found a bag of bullets on the floor of the car on the passenger side.⁵ The bullets were like those used to kill Perry. The police also found gunshot residue on the passenger side door of the car.

II.

When examining a petition for a writ of habeas corpus challenging the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, reh'g denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979) (emphasis in original); see also Ortiz v. Dubois, 19 F.3d 708, 717 (1st Cir.1994). The review of such a petition must be conducted "with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson, 443 U.S. at 324, n. 16, 99 S.Ct. at 2792, n. 16. See also Ortiz, 19 F.3d at 717 ("standard must be applied `with specific reference to the elements of the offense as defined by state law'") (quoting Campbell v. Fair, 838 F.2d 1, 4 (1st Cir.), cert. denied, 488 U.S. 847, 109 S.Ct. 126, 102 L.Ed.2d 100 (1988)). Accordingly, I turn to the elements of the offense for which Stewart was convicted.

In Massachusetts, 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. Daughtry, 417 Mass. 136, 138, 627 N.E.2d 928 (1994) (quoting 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)); see generally, M.G.L. ch. 274, § 2. The SJC has repeatedly stated that "`the test for joint venture is whether the defendant was (1) present at the scene of the crime, (2) with knowledge that another intends to commit the crime or with intent to commit a crime, and (3) by agreement is willing and available to help the other if necessary." Commonwealth v. Costa, 407 Mass. 216, 224, 552 N.E.2d 106 (1990) (quoting Commonwealth v. Longo, 402 Mass. 482, 486, 524 N.E.2d 67 (1988)); Commonwealth v. Noble, 417 Mass. 341, 343 n. 1, 629 N.E.2d 1328 (1994); Commonwealth v. Giang, 402 Mass. 604, 608, 524 N.E.2d 383 (1988).

"Murder in the second degree is an unlawful killing with malice aforethought; malice includes any intent to inflict injury on another without legal excuse or palliation." Commonwealth v. Casale, 381 Mass. 167, 171-72, 408 N.E.2d 841 (1980). Malice can be shown either by proof that the defendant intended to kill or to do the victim grievous bodily harm or can be inferred "if, in the circumstances known to the defendant, a reasonably prudent person would have known that according to common experience there was a plain and strong likelihood that death would follow the contemplated act." Commonwealth v. Grey, 399 Mass. 469, 470, n. 1, 505 N.E.2d 171 (1987).

Joining the requirements of proof for a joint venture and for murder, Massachusetts law requires the Commonwealth to prove that an aider or abettor in a murder shared the principal's intent to murder. This element of the case will be satisfied if the joint venturer "`intended that the victim be killed or knew that there was a substantial likelihood of the victim's being killed.'" Commonwealth v. Champagne, 399 Mass. 80, 86-87, 503 N.E.2d 7 (1987) (quoting Commonwealth v. Podlaski, 377 Mass. 339, 347, 385 N.E.2d 1379 (1979)).

As the Supreme Judicial Court recently observed with reference to venerable precedent, a person "is a joint venturer even if not participating in the actual perpetration of the crime if, by agreement, he is positioned to render aid, `for the presence of the abettor under such circumstances, must encourage and embolden the perpetrator to do the deed, by giving him hopes of immediate assistance.'" Commonwealth v. Daughtry, 417 Mass. at 138, 627 N.E.2d 928 (quoting Commonwealth v. Soares, 377 Mass. at 472, 387 N.E.2d 499 (quoting Commonwealth v. Knapp, 9 Pick. 495, 518 (1830))).

The central question in this petition, thus, is whether there was sufficient evidence for any rational juror to find beyond a reasonable doubt that petitioner shared Good's intent to kill Perry. The SJC has noted that "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...