Commonwealth v. Stewart

875 N.E.2d 846, 450 Mass. 25, 2007 Mass. LEXIS 725
CourtMassachusetts Supreme Judicial Court
DecidedNovember 7, 2007
StatusPublished
Cited by16 cases

This text of 875 N.E.2d 846 (Commonwealth v. Stewart) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Stewart, 875 N.E.2d 846, 450 Mass. 25, 2007 Mass. LEXIS 725 (Mass. 2007).

Opinion

Cowin, J.

A jury convicted the defendant of murder, in the first degree on the theory of deliberate premeditation.1,2 The defendant appeals from his conviction and from the denial of his motion for a new trial.3 He raises the following arguments on appeal: (1) the judge erred in denying his motion for severance; (2) there was insufficient evidence to support his conviction on individual liability for murder in the first degree; (3) the judge erred in admitting certain statements made to the co-defendant; (4) there was misconduct in the direct examination of a Commonwealth witness; (5) the defendant was denied the [27]*27right to meaningful cross-examination of a Commonwealth witness; (6) the judge erred in admitting evidence of prior bad acts of the defendant; (7) the prosecutor improperly vouched for the credibility of witnesses in his closing argument; (8) the judge erred by not inquiring of the jurors when he was informed that the door to the lockup was opened in the presence of jurors; and (9) the defendant’s trial counsel was ineffective. Finally, the defendant requests that, if the judgment is not reversed, we exercise our extraordinary power under G. L. c. 278, § 33E, to reduce the verdict or order a new trial. We affirm the convictions and the order denying the motion for a new trial, and we decline to exercise our power under G. L. c. 278, § 33E.

Facts. We summarize facts the jury could have found, and leave recitation of most details for discussion in conjunction with the issues raised. In the early morning of August 19, 2000, the victim, Jennifer Perkins, was shot and killed while sitting in her Jeep vehicle outside the home of her friend, Deanna Bergstrom, in the Seacoast Shores section of East Falmouth. Her boy friend and the intended target was Tony Vaughan. Vaughan was targeted because a year earlier, James Juertas, a good friend of the defendant and the codefendant, one Milteer Hendricks, had had a disagreement with Vaughan and had been shot. Juertas survived.

The night before the shooting the defendant was riding in a car driven by a friend, Julia Leighton-Mendes. Hendricks and his girl friend, Katie Robillard, were also in the car. The defendant directed Leighton-Mendes to Pembroke Road, where Vaughan was known to frequent a house. Leighton-Mendes knew that the defendant had “caused his own problems” with Vaughan. Robillard believed that they were going to Pembroke Road to find Vaughan and that the defendant did not like him. The defendant also directed Leighton-Mendes to drive down Harvard Drive, another street in the same area. As they drove by Bergstrom’s home on Harvard Drive, the defendant removed a nine millimeter gun from his sweatshirt pocket and put it on his lap. At some point he loaded the gun. The defendant and Hendricks both looked at Bergstrom’s house as they passed it. Robillard testified that the defendant said, “[Wjait until the time I see Tony. [Wjatch.”

[28]*28The following night (the night of the shooting), Crystal Costa, the mother of the defendant’s child, and her friend Bely Coffey went to Hendricks’s house and found the defendant, but not Hendricks, there. The defendant suggested they drive to Falmouth to get some “weed.” Coffey heard the defendant say on the telephone that he could not “party with the toast. I’m about to go get that.” Coffey interpreted the word “toast” to mean a gun and told the defendant she would not go to Falmouth to get a gun, but he explained that he was referring to a necklace. Later that night Coffey drove her car with Costa, the defendant, and Hendricks as passengers. One of the men told Coffey to drive to Seacoast Shores. Hendricks put on a glove. Coffey felt a gun on her hip as she turned into Seacoast Shores and told the defendant to get it away from her. He asked her if she knew “what this- is? Keep talking.” Hendricks directed Coffey on a circuitous route to Bergstrom’s home. Coffey pulled in front of the house, but was directed by one of the men to continue driving. She parked on the other side of the street, three houses away.

The two men left the car, went toward Bergstrom’s house and returned after twenty minutes. When a car passéd, one of the men said, “That’s them,” and the two men left the car again. After that, Coffey heard five or six shots. Costa saw both men shooting. They were standing in front of a street light. The two men ran back and jumped in the car. Coffey testified that the defendant said, “I think I got that nigger’s girl. She’s three months pregnant.” Costa said that both men stated, “We got that nigger, TV” [which she took to mean Tony Vaughan]. Both men said, “go, go, go.”

After the shooting, one of the men directed Coffey where to drive. Costa saw them wipe off two guns with a towel that had been in the car. Costa also saw them hide the towel and guns in the woods. The men returned to the car and, according to Costa, both men threw out the sweatshirts they were wearing and the gloves that each had on one hand. The defendant threw a baseball batting glove from the window of the car that was similar to a glove later found by the police at Hendricks’s home. Costa stated that, after the shooting, the defendant telephoned a friend, Frank Avant, and said, “We just got that nigger TV, and I’ll [29]*29call you when I get to my spot.” Avant testified that the defendant said, “Me and Son [the nickname for Hendricks] just dumped on Tony Vaughan.”4 *The defendant also said that he “had a nine” and that he had “emptied.”5 7The defendant stated that the police were all over the area looking for them. Avant could hear Hendricks’s voice in the background during the conversation. Coffey and Costa testified that the defendant made several other calls from a cellular telephone. A supervisor from a cellular telephone service provider confirmed that a number of telephone calls were made from a cellular telephone accessible to the defendant shortly after 3 a.m. on August 19,2000, in the Mashpee-Bamstable area.

Bergstrom, who heard six or seven gunshots about ten minutes after the victim had left her house, called the Falmouth police. The police found the victim slumped over the wheel of her vehicle (a Jeep similar to the one driven by Vaughan) in the Bergstrom driveway with the motor running and the headlights on. The bullets fired at her had copper jackets, indicating that they would cause significant damage on impact. A lead core and bullet jacket were recovered from her head. Numerous shell casings and spent bullets were found on the driveway, the Bergstrom house, and the window sill of a neighboring house. The casings found in the Bergstrom driveway were from a nine millimeter handgun the police later recovered at the defendant’s direction.

When the defendant was interviewed by the police, he initially gave them a false name. According to a statement he gave to the police, he was unaware that a shooting was about to occur and he blamed the shooting on Hendricks and Avant. (The police ruled out Avant as a suspect.) Later, he took the police to the wooded area where a towel and the nine millimeter handgun involved in the shooting were recovered.6,7

The codefendant Hendricks testified. He said he knew that [30]*30the defendant carried a weapon but did not know the defendant to use it. He admitted to being with the defendant at Bergstrom’s driveway when shots were fired.

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Cite This Page — Counsel Stack

Bluebook (online)
875 N.E.2d 846, 450 Mass. 25, 2007 Mass. LEXIS 725, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-stewart-mass-2007.