USCA1 Opinion
March 9, 1995 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1626
GARY STEWART,
Petitioner, Appellee,
v.
WILLIAM COALTER,
Respondent, Appellant.
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ERRATA SHEET
The opinion of this Court, issued on February 28, 1995,
should be amended as follows:
On cover sheet, under counsel listings, "petitioner" should
be "respondent" and "respondent" should be "petitioner".
On page 7, line 5 under "II.", remove "the" before "fact".
On page 18, line 6 of 2nd full paragraph, replace "Good's"
with "Stewart's".
March 7, 1995 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1626
GARY STEWART,
Petitioner, Appellee,
v.
WILLIAM COALTER,
Respondent, Appellant.
____________________
ERRATA SHEET
The opinion of this Court, issued on February 28, 1995,
should be amended as follows:
On page 2, lines 7-10, the final sentence of the paragraph
should read: "That ten very able judges before us have disagreed
so sharply over the evidence is a measure of the difficulty of
this case."
On page 12, lines 1-4, the first sentence of the paragraph
should read: "Why is it that nine judges (including the majority
on this panel) think that the stated facts permit a clear and
compelling inference of Stewart's guilt and four others
(including our dissenting colleague) think it plain that an
acquittal should have been ordered?"
On page 12, line 9, the word "eleven" should be "thirteen."
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1626
GARY STEWART,
Petitioner, Appellee,
v.
WILLIAM COALTER,
Respondent, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
___________________
____________________
Before
Selya, Boudin and Stahl,
Circuit Judges.
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William J. Meade, Assistant Attorney General, Criminal Bureau,
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with whom Scott Harshbarger, Attorney General, was on brief for
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respondent.
Patricia A. O'Neill, Committee for Public Counsel Services,
_____________________
Public Counsel Division, for petitioner.
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February 28, 1995
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BOUDIN, Circuit Judge. Gary Stewart was convicted by a
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jury in Massachusetts Superior Court of second degree murder.
After the Supreme Judicial Court upheld the conviction,
Stewart filed a habeas corpus petition and the district court
ultimately granted the writ, holding that the evidence at the
state trial was inadequate to permit a reasonable jury to
convict. That ten very able judges before us have disagreed
so sharply over the evidence is a measure of the difficulty
of this case.
I.
Stewart was indicted by a Middlesex grand jury on
August 1, 1986, and charged with the first degree murder of
Robert Perry. He was tried by a jury in a trial lasting
several days beginning on March 8, 1988. From the outset,
the Commonwealth's theory was that the actual murder of Perry
had been committed by John Good who was tried separately and
convicted of first degree murder. See Commonwealth v. Good,
___ ____________ ____
568 N.E. 2d 1127 (Mass. 1991). The evidence in Stewart's
trial, taken most favorably to the Commonwealth, showed the
following.
At about 1 a.m., on July 27, 1986--the day of Perry's
murder and about 11 hours before that event--Stewart, Good
and a third man were seen together entering a bar on
Cambridge Street in Cambridge, Massachusetts. The bar was
located about four blocks east of the Cambridge City Hospital
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and about five blocks west of the Harrington School, both of
which are also on Cambridge Street.
At about 7:50 a.m. that same morning, Stewart was seen
driving west on Cambridge Street near the Harrington School.
The car was a yellow or off-white Pontiac bearing
Massachusetts license plate 104-MND. Good was in the front
passenger seat and a third man was in the rear seat. As the
car passed a cat sleeping on a car hood on the opposite side
of the street, Stewart made a U-turn and drove back east on
Cambridge Street. Good then pointed a black handgun out of
the passenger side window and shot the cat twice, killing it.
The car then drove away with the passengers laughing.
At about 12 noon on the same day, Stewart was sitting in
the same car, which was parked on Maple Avenue in Cambridge.
Maple Avenue is a one-way street that runs south from
Cambridge Street commencing just east of the Cambridge City
Hospital. The car was parked several car lengths south of
the intersection with Cambridge Street. Fifteen minutes
earlier, at about 11:45 a.m., Perry had told his former wife
that he would be walking west along Cambridge Street from
Inman Square, which is on Cambridge Street several blocks
east of the hospital.
At about noon--this is inference but amply supported--
Good shot Perry three times with a .38 caliber handgun on
Cambridge Street just west of the intersection with Maple;
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one of the shots pierced Perry's heart, another his head, and
he was killed. Immediately afterward, Good, carrying the
handgun, ran diagonally down Maple Avenue to the Pontiac
parked on the east side of the street. Stewart then drove
the car south down Maple Avenue, accelerating to
approximately 45 miles per hour.1 A few blocks later, at
the intersection of Harvard and Dana Streets, Stewart ran a
stop sign and flashing red light and crashed into another
car.
Good exited from the Pontiac, told Stewart, "I'm getting
out of here," and quickly walked away. Stewart got out of
the car and leaned against the door. When the police came,
Stewart said to one of the policemen, "It's an ordinary
accident. I was trying to cross Harvard Street and continue
on Dana when this car to the left of me came along and struck
me." To another officer Stewart said: "What's the big deal?
This is only an accident. I'm the only one. I'm the only
one in the car." In the Pontiac the police found a brown
paper bag on the floor in front of the passenger seat
containing several live rounds of .38 ammunition of types
similar to that used to kill Perry.
This is the heart of the evidence offered at Stewart's
trial. There was one eye witness to the event at the bar;
____________________
1See Mass. Gen. L. ch. 90, 17 (establishing a speed
___
limit of 30 miles per hour for streets like Maple).
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another eye witness who saw the incident involving the cat; a
third eye witness who saw Good running to the car and Stewart
driving away after the shots; and a fourth who saw Good
looking out the car window as the car drove rapidly down
Maple Avenue. Several police officers and several passengers
from the other car in the crash testified to events at the
crash scene. There was no evidence of motive. Stewart
offered relatively little evidence at trial and did not
testify.
The trial judge charged the jury that under
Massachusetts law Stewart could be convicted of murder on a
"joint venture" theory if he aided in the crime and shared an
intent to murder. For first degree murder, said the trial
judge, the intent required included both premeditation and an
intent to kill or do serious injury; for second degree
murder, premeditation was unnecessary. The jury deliberated
for three hours and returned a verdict of second degree
murder. Afterwards, the trial judge indicated that a first
degree murder conviction might have been expected.
On appeal, Stewart argued that the evidence was
inadequate for a reasonable jury to find that he had known in
advance of Good's intent to commit murder. The Massachusetts
Appeals Court, by a two-to-one vote, agreed and ordered the
entry of judgment in Stewart's favor. Commonwealth v.
____________
Stewart, 571 N.E.2d 43 (1991). On further review, the
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Supreme Judicial Court reinstated the guilty verdict, all
five justices agreeing that the evidence was adequate to
allow the jury to conclude "that Good planned in advance to
kill Perry and that [Stewart] kn[ew] of this plan and
intended to aid Good in committing the murder." Commonwealth
____________
v. Stewart, 582 N.E. 514, 518 n.3 (1991).
_______
From all the Commonwealth's evidence, the jury
reasonably could have inferred that [Stewart] and
Good had been driving up and down Cambridge Street
looking for Perry so Good could shoot him; . . .
and that [Stewart] deliberately parked on a side
street near Cambridge Street, and around the corner
from where Perry was soon to pass, in order to
facilitate a speedy escape after the murder. . . .
. [and] that [Stewart's] intent to assist was
further shown by evidence that Good ran directly to
[Stewart's] automobile after the shooting, that
without any hesitation or conversation, [Stewart]
immediately pulled away and sped up the street at a
high rate of speed; and that [Stewart] subsequently
covered Good's escape by lying to the police.
582 N.E.2d at 518.
Stewart then began the present habeas proceeding in
federal district court. 28 U.S.C. 2254. There, he argued
that a constitutional violation had occurred because upon the
record evidence adduced at the state trial no rational trier
of fact could have found proof beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 324 (1979). The district
_______ ________
court reviewed the state trial record, took the same "view"
of the scene at Cambridge Street that the trial jury had
taken, considered the briefs and heard oral argument. On
June 6, 1994, the district court granted the writ and ordered
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Stewart's release after a brief period to permit the
Commonwealth to seek a stay.
The district court said that--contrary to the inference
drawn by the Supreme Judicial Court--there was insufficient
evidence that Stewart had been parked on Maple Avenue with
the knowledge that Perry was soon to pass nearby or to
facilitate a speedy escape after Good killed him. The
district court also said that the testimony did not show that
the car moved instantly upon Good's return or that Stewart
and Good did not converse at least briefly. At most, said
the district judge, Stewart might have been convicted as an
accessory to murder after the fact, a lesser crime with which
he was never charged and could not now be because the statute
of limitations had run. The Commonwealth then appealed and
we stayed the judgment pending review.
II.
The district court and the parties do not greatly differ
as to the applicable legal standard. Under Jackson, the
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question that the habeas court must answer is "whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found
___
evidence sufficient to prove the essential elements of the
crime beyond a reasonable doubt." 443 U.S. at 319. The
Commonwealth stresses that the habeas judge can only consider
the rationality of the verdict and is not to make his or her
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own evaluation of guilt or innocence. But the Commonwealth
does not dispute Stewart's claim that the habeas court is to
apply the quoted standard independently and without otherwise
deferring to the state courts.
We are not so sure that this standard does reflect the
current thinking of the Supreme Court. On the issue of the
proper constitutional standard, Jackson was a five-to-three
_______
decision; every member of the Jackson majority is gone from
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the Court; and the concurring trio--Justice Stevens joined by
Chief Justice Burger and Justice Rehnquist--argued for a
standard that asked whether there was some evidence to
____
support the disputed finding. Further, since both opinions
in Jackson held that the evidence was adequate to convict,
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the choice between the two calibrations of the standard did
not matter in that case.
At first blush it may appear startling that federal
judges should effectively substitute themselves for state
judges in deciding whether a judgment of acquittal is
warranted in a state criminal case for lack of adequate
evidence. No one suggests that federal judges should review
ordinary state court rulings on evidence or procedure under a
de novo standard. And if one looks to core due process
________
principles, see Rochin v. California, 342 U.S. 165, 172
___ ______ __________
(1952), a conviction on no evidence could well shock the
__
average conscience; but some might find nothing shocking
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about a simple disagreement between federal and state judges
on how far to stretch an inference.
Neither of the two sequels to Jackson is illuminating.
_______
Wright v. West, 112 S. Ct. 2482 (1992), involved a fractured
______ ____
Court with no majority opinion; and in Herrara v. Collins,
_______ _______
113 S. Ct. 853 (1993), the majority opinion by Chief Justice
Rehnquist capsulized Jackson solely in order to distinguish
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it. On a more general plane, the Court's narrowing of habeas
in the last decade is widely acknowledged. At the same time,
the Court has not formally retreated its prior position that
in habeas proceedings, federal courts--when they do reach the
merits--normally make independent decisions on constitutional
issues. Miller v. Fenton, 474 U.S. 104, 112 (1985).
______ ______
We are not certain how the Supreme Court will resolve
the
matter. The majority's statement in Jackson represents the
_______
pole most favorable to defendants; at the other end of the
spectrum lies the possibility that the Court might adopt the
"some evidence" formulation of the Jackson concurrence or--
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pretty much the same thing under a different label--a notion
of limited deference to state tribunals. Possibly, even the
Supreme Court does not yet know how it would handle a case
like ours that is so close that the precise formulation could
dictate the result.
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While adopting a "some evidence" standard would greatly
simplify this case, we agree with the district court that the
more stringent literal language of Jackson should control our
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inquiry. There is nothing ambiguous about the Jackson
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standard, however hard it may be to apply it in a close case;
it was the stated position of a majority of justices; and the
standard has never been overruled. It is a tricky matter for
lower federal courts to anticipate the Supreme Court. In
this instance--especially because the Jackson rule is
_______
directly concerned with innocence, see 443 U.S. at 323--we do
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not think that we would be justified in diluting Jackson.
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III.
Accordingly, we proceed to consider whether on the
record made in the trial court "any rational trier of fact"
___
could have found Stewart guilty of murder beyond a reasonable
doubt. Jackson, 443 U.S. at 319. This is an inquiry we make
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de novo on a cold record without any special deference to
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either the state's highest court, see Jackson, 443 U.S. at
___ _______
318-25, or the federal district court, see Scarpa v. DuBois,
___ ______ ______
38 F.3d 1, 9 n.5 (1st Cir.), petition for cert. filed (Nov.
________________________
21, 1994) beyond the persuasive power of their (conflicting)
interpretations of the record.
In many criminal cases that are close on the facts, the
closeness is concealed because an eye witness testifies to
the defendant's guilt. Eye witnesses, of course, can make
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mistakes; but the newspaper reader or the appellate court
reading the transcript after conviction sidesteps the doubt
because the factfinder has credited the witness, and that is
the end of the matter in all but the most extreme cases.
Only in circumstantial-evidence cases like this one do we
face head-on the disturbing truth that guilty verdicts rest
on judgments about probabilities and those judgments are
usually intuitive rather than scientific.
The essential facts of this case--those that the jury
was unquestionably entitled to find--are rather simple: the
prior association earlier that day of Good and Stewart;
Stewart's knowledge that Good was armed and vicious; the
parking of the car on a side street with Stewart at the
wheel; the murder of Perry by Good around the corner on
Cambridge Street; Good's hasty return to the car after the
shots; the high-speed getaway and the subsequent crash of the
car; and Stewart's lies to the police tending
(unsuccessfully) to shield Good from capture. There is also
no doubt about what inference of fact the jury had to draw in
order to convict Stewart of murder under a joint venture
theory. Although Massachusetts' label is uncommon, its joint
venture theory is essentially an aiding and abetting concept.
Stewart clearly aided Good's escape after the murder. The
difficult factual question is whether Stewart also knew that
Good was planning to commit a murder or, as would also be
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adequate under Massachusetts law, knew that Good was planning
to do grievous bodily harm to his victim. Commonwealth v.
____________
Moore, 556 N.E.2d 392 (Mass. 1990); Commonwealth v. Grey, 505
_____ ____________ ____
N.E.2d 171 (Mass. 1987).
Why is it that nine judges(including the majority on
this panel) think that the stated facts permit a clear and
compelling inference of Stewart's guilt and four others
(including our dissenting colleague) think it plain that an
acquittal should have been ordered? After all, the fact that
no one overheard Stewart and Good planning a murder is not
dispositive; agreements are frequently inferred from
circumstances. United States v. Moran, 984 F.2d 1299, 1300
______________ _____
(1st Cir. 1993). The difference between the two viewpoints
expressed by the eleven judges, we think, lies primarily in
the different probabilities that each side implicitly assigns
to the possible alternative versions of what happened.
________
The Supreme Judicial Court thought it reasonably clear
that Good and Stewart must have been looking for Perry so
that Good could murder him; saw Perry proceeding east on
Cambridge Street; and then parked the car on a side street to
permit a quick getaway after Good accosted Perry. The
district court, by contrast, thought this to be conjecture
and said that there were other plausible explanations that
did not involve advance knowledge by Stewart that Good meant
to kill or assault Perry. Good lived a few blocks away from
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Maple Avenue; the district court conjectured that Stewart
might have been awaiting Good's return from his house when
Good encountered Perry on the way back.
We agree with the district court that there is very
little to show that Good and Stewart were searching for
Perry; but that is not a necessary component in a scenario
leading to Stewart's guilt. It would be adequate if it could
be inferred beyond a reasonable doubt either that Good and
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Stewart were searching for Perry or that they happened to see
__
Perry while cruising on Cambridge Street and Good then
proposed to murder Perry. Either possibility is consistent
with the evidence, and both involve prior knowledge by
Stewart of Good's intent. Both possibilities are also quite
plausible.
By contrast, we think that it is implausible to suppose
that Good was visiting or purporting to visit his home
located near but not on Maple Avenue. If this were so, as
the district court thought quite possible, there is no
apparent reason why Stewart's car would be parked on Maple
Avenue instead of in front of Good's home. This brings us to
Stewart's brief which, in its only conjecture about other
___
explanations, asserts:
[T]he evidence provides no clue whether Mr. Good
left Mr. Stewart's car with the innocent intention
of buying a newspaper, visiting a sick friend at
the hospital, or even, -- taking into account Mr.
Good's bad character -- robbing the hospital gift
shop.
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Assuming any of these purposes, it is at least possible that
Good might have rushed back to the car after murdering Perry
and spurred the unwitting Stewart into driving quickly away.
But why would anyone wanting a newspaper wait at the
wheel down the block on a side street where, so far as the
evidence goes, no newspaper vending machine is known to be
located? If Good were visiting a sick friend, why would
there not have been evidence at trial that he had such a
friend in the hospital--a fact that could almost certainly be
proved without Stewart's testimony? As for the robbery, one
would not normally think that a hospital gift shop would make
an inviting target--given the limited proceeds and the likely
presence of hospital guards--compared to any neighborhood
convenience store.
The point is not that the explanations proffered in
Stewart's brief are impossible but none of them seems at all
likely. And the two innocent ones--or any like them--are
also not easily squared with the high-speed getaway or with
the cover-up lies told by Stewart after the crash. The
record is, as the district court said, unclear as to whether
Stewart pulled instantly out of the space or had to maneuver;
but the evidence does show that Stewart drove away very fast,
and the later accident reinforces the point. Similarly,
Stewart's lies to the police--especially the spontaneous
denial that there was anyone else in the car--do not prove
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that he was privy to the crime in advance but reinforce the
impression.
Of course, where there is no eye witness one can imagine
innocent explanations for almost anything--here, for example,
that Good, having left to buy a newspaper, disclosed the
murder as he reentered the car and Stewart instantly decided
to protect his friend (by fleeing at high speed and then
lying to the police) although at grave risk to himself. But
this could reasonably seem far-fetched to a jury; and each
new gap-closing assumption--e.g., the supposed conversation
____
in the car--adds a new strain to the story.
Guilt beyond a reasonable doubt cannot be premised on
pure conjecture. But a conjecture consistent with the
evidence becomes less and less a conjecture, and moves
gradually toward proof, as alternative innocent explanations
are discarded or made less likely. Here, there is nothing at
all unlikely about the hypothesis that Good and Stewart were
either stalking Perry or chanced upon him and decided that
Good would kill him. No other explanation that is at all
likely has been suggested to us. "Beyond a reasonable doubt"
does not require the exclusion of every other hypothesis; it
is enough that all "reasonable" doubts be excluded. United
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States v. Oreto, 37 F.3d 739, 753 (1st Cir. 1994); United
______ _____ ______
States v. Whiting, 28 F.3d 1296, 1303-04 (1st Cir. 1994).
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At this point, Jackson's own objective standard turns
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against the defendant. It makes no difference whether we or
the district judge would as jurors have voted to acquit
Stewart or whether we ourselves think that there is some
reasonable doubt. The question posed by Jackson is whether
_______
"any" rational jury could on the evidence presented think
Stewart's knowing participation so likely as to exclude all
reasonable doubts. And rational people can have quite
different views about the likelihood that a quick getaway
implies prior planning or that one otherwise innocent would
lie to the police to protect a murderous companion.
The problem is that no scientific data exists on these
probabilities (and it might not be admissible if it existed).
Each judge and juror brings to the courthouse a bundle of
unarticulated assumptions about how the world works and about
the respective likelihoods of different concatenations of
events. That does not mean that we, or the district court,
or the state tribunals can escape the task of second-guessing
the jury to the limited extent necessary to direct verdicts,
apply Jackson, or consider such issues on appeal. But
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variations in human experience suggest that one should expect
a considerable range of reasonable estimates about what is
likely or unlikely.
We do not have the same confidence as either the
district court or the Massachusetts Supreme Judicial Court in
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assigning the probabilities in this case. All that we can
say, with the advantage of having both sets of views before
us, is that the case against Stewart was not overwhelming and
involved some uncertainties that cannot be erased, but it was
also not so weak as to render the jury verdict irrational. A
rational jury might well have acquitted without violating its
oath; but, drawing all reasonable inferences in favor of the
prosecution, a rational jury could also convict.
We have considered the case thus far in terms of the
scenarios suggested by the parties and the four other courts
that have had the Stewart case before them. Although other
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Massachusetts joint venture cases have been cited to us by
the parties, each is distinguishable; and none would relieve
us of the duty under Jackson to make our own independent
_______
assessment as to what a reasonable jury could infer on the
facts of this case. But we think that one additional
possibility is so patent that it calls out for comment even
though neither side has thought it useful to draw our
attention in this direction.
The association of Stewart and Good, the prior shooting,
the strategically parked car, the reasonably quick departure
and high speed escape, and the lies to the police
cumulatively suggest that Stewart was the knowing participant
with Good in a criminal joint venture. A rational jury
could, given the absence of other likely explanations, find
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the joint venture alternative so likely as to be beyond
reasonable doubt. In other words, we think that the jury,
although not obliged to do so, was entitled to reject any
notion (as posited by the district court) that Stewart was at
most shown to be an accessory after the fact. But just what
was the joint venture?
The only theory argued at trial by the prosecution, and
the only one covered by instructions to the jury, was that
the venture was one to murder Perry or to do him grievous
bodily harm. We think that another possibility suggests
itself as consistent with the evidence: that Good left the
car as part of a plan by Good and Stewart to rob someone on
Cambridge Street, whether Perry in particular or whoever
might come along, and that Perry was the victim of a robbery
gone awry. This scenario does not involve a shared intent to
commit murder or do bodily harm.
It may be enough to say that it is a substantially less
likely scenario than a planned murder, if only because of the
wounds inflicted on Perry. Two of the three shots--one to
the head and one to the heart--suggest an intent to kill; and
this is especially so of the former since the coroner said
that the shot entered at the back of the skull. Of course,
it is still possible that Perry resisted a robbery attempt
and was then killed, but the shot from behind makes this less
likely. We also have no reason to think that Perry (en route
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to meet his former wife for lunch) was armed, and there is no
evidence--which the prosecution would have had good reason to
offer if it existed--that Perry's wallet or property was
found in the car.
Ironically, if the joint venture were one to commit
robbery, it appears that Stewart would still have been guilty
of murder under the felony murder rule followed in
Massachusetts and in many other states. See, e.g.,
___ ____
Commonwealth v. Claudio, 634 N.E.2d 902, 906-07 (Mass. 1994).
____________ _______
Of course, that would not be a basis for sustaining Stewart's
conviction on direct appeal since he was never charged with
felony murder. But we doubt whether it would be part of the
office of habeas corpus to release a prisoner whose "defense"
in seeking the writ was that he had committed murder but only
on a theory not properly presented to the jury.
IV.
Judges who have presided over criminal jury trials are
wont to say that the juries usually reach a correct, or at
least defensible, result on the evidence presented to them.
That is no reason to diminish further safeguards, such as the
directed verdict, against the tragic risk that an innocent
person may be sent to prison. It is a reason to hesitate
long and hard before concluding that a jury's judgment is
irrational.
The judgment of the district court is reversed.
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Dissent
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follows.
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Stahl, Circuit Judge, dissenting: With respect, I
Stahl, Circuit Judge,
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dissent. I agree with the district court that the evidence
was not adequate for a jury to find, beyond a reasonable
doubt, that Stewart was involved in a joint venture to commit
murder. See Stewart v. Coalter, 855 F. Supp. 464 (D. Mass.
___ _______ _______
1994). Unlike the majority, I am "loathe to stack inference
upon inference in order to uphold the jury's verdict."
United States v. Valerio, No. 94-1708, slip op. at 14 (1st
______________ _______
Cir. Feb. 27, 1995) (citing Ingram v. United States, 360 U.S.
______ _____________
672, 680 (1959)).
For the jury to return a verdict of second-degree
murder, it had to find that Good planned to kill or do
grievous bodily harm, that Stewart was aware of Good's plan,
and that Stewart intended to aid Good in carrying it out.
Commonwealth v. Stewart, 582 N.E.2d 514, 518 n.3 (Mass.
____________ _______
1990). I cannot see how a rational jury could have found,
beyond reasonable doubt, that Stewart had such knowledge and
intent. At most, I think that Stewart might have been
convicted as an accessory to murder after the fact, a crime
with which he was never charged. There is no evidence that
Stewart and Good entered into a joint venture to kill Perry.
When one reads the record, it is not "reasonably clear" that
Stewart and Good had been looking for Perry so that Good
could kill him. In fact, it is not even clear that Stewart
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knew Perry at all.2 It is undisputed that neither Stewart
nor Good could have known of Perry's two calls to his former
wife, during the second of which she finally agreed to meet
him at a restaurant in Inman Square, Cambridge, or that Perry
would be proceeding west on Cambridge Street. It is a
significant stretch to say that Stewart parked his car on a
side street to permit a quick getaway should Good
fortuitously accost Perry, especially since Good lived
nearby. Nor is there evidence that Stewart parked the car
where he did because it was a convenient place to await
Good's return after killing Perry, whom they had just
happened to see.3 Even if one accepts as true the disputed
testimony concerning Stewart's lies to the police after the
intersection accident, those lies do not prove that he was
privy to the crime in advance; at best, they support the
accessory argument.
In order to find the scenario postulated by the
majority, one has to conjecture and find evidence where none
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2 There is also no evidence that Stewart and Good
entered into a joint venture to kill someone at random. In
fact, Good was convicted of the first-degree murder of Perry.
See Commonwealth v. Stewart, 582 N.E.2d at 515 n.1.
___ ____________ _______
3 I note that the jury, in returning a verdict of
second-degree murder, necessarily found that Stewart did not
premeditate.
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exists.4 I would grant the writ.
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4 I also disagree with the majority's speculation that
the current Supreme Court would abandon the Jackson rule
_______
requiring us to determine "whether, after viewing the
evidence in the light most favorable to the prosecution, any
___
rational trier of fact could have found evidence sufficient
to prove the essential elements of the crime beyond a
reasonable doubt," Jackson v. Virginia, 443 U.S. 307, 324
_______ ________
(1979) (emphasis in original), in favor of the Jackson
_______
concurrers' more limited inquiry into whether there was some
____
evidence to support the disputed finding, see id. at 326
___ ___
(Stevens concurring). Majority at 7-8. I note that the
Court recently, in the context of constitutional trial
errors, made habeas review more, not less, generous. O'Neal
______
v. McAninch, No. 93-7407, 1995 WL 66598 (U.S. Feb. 21, 1995).
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