Commonwealth v. Caswell

85 Mass.App.Ct. 463

11 N.E.3d 136

COMMONWEALTH

v.Darren CASWELL.

No. 12–P–1301.

Appeals Court of Massachusetts, Plymouth.

Argued Jan. 16, 2014.

Decided June 16, 2014.

Cynthia Vincent Thomas for the defendant.

Gail M. McKenna, Assistant District Attorney, for the Commonwealth.

Present: GRAHAM, BROWN, & MALDONADO, JJ.

GRAHAM, J.

On August 13, 2003, Matthew Cote, the victim, was stabbed to death. His body was discovered several days later in the rear seat of his pickup truck in a remote area of the town of Carver. The truck had been set afire, and the victim's body was severely burned and unrecognizable. More than six years later, Darren Caswell, the defendant, was indicted on a charge of murder in the first degree of the victim, and at trial, the Commonwealth proceeded against him on theories of deliberate premeditation and extreme atrocity and cruelty, based on his knowing participationin the commission of the crime, either alone or with others, and with the requisite intent for murder. See Commonwealth v. Zanetti, 454 Mass. 449, 466–468, 910 N.E.2d 869 (2009). A Superior Court jury rejected the charge of murder in the first degree, but convicted the defendant of murder in the second degree.

On appeal, the defendant argues that there was insufficient evidence that he participated in a joint venture to murder the victim; that portions of the prosecutor's closing argument were improper; that the judge's jury instruction pursuant to Commonwealth v. DiGiambattista, 442 Mass. 423, 440–449, 813 N.E.2d 516 (2004), was erroneous; that the judge's instructions on malice were erroneous and incomplete; and that the cumulative impact of the errors denied him a fair trial. We affirm.

The jury could have found the following facts. The victim, who lived in the town of Kingston with his girlfriend, Jessica Brunell,¹ and her young daughter, broke his wrist in 2002 in a motorcycle accident. Thereafter, he became addicted to the drug Oxycontin, which he purchased from Russell Freitas, a resident of the nearby town of Middleboro. Freitas had been involved in an accident in 1998 while “off roading” in a pickup truck, and the accident left him a quadriplegic, confined to a wheelchair. As a result of Freitas's injury, he received cash payments for his disability and an allotment of 100 Oxycontin pills per month to control his pain. He used only a portion of his allotment to control his pain and sold the remaining pills to others, including the victim, at a price of forty dollars per pill.

By the summer of 2003, the victim was indebted to Freitas in the amount of $300. In retaliation for the unpaid debt, the victim was murdered, and his truck was taken to a remote area and burned, with the victim inside the truck's cab. Thereafter, Freitas kept a picture of the burned pickup truck on his computer and occasionally used the picture as a screen saver.

Through witness testimony and collected evidence, the Commonwealth presented the following. On August 10, 2003, at approximately 4:00 p.m., Freitas made a telephone call to his friend Raymond Floyd and, in an agitated state, told Floyd that he was convinced that the victim had broken into his home and stolen drugs and a bracelet. Three days later, between 10:28 a.m. and 3:25 p.m., Freitas made a series of telephone calls to his cousin, Darren Caswell, the defendant. At approximately 2:00 p.m. that day, Freitas called the victim, who was at home with Brunell, and asked him to come to his house that afternoon to install hardwood flooring and to start a dirt bike that had not been started in seven years. Freitas further informed the victim that he had 100 Oxycontin pills that he wanted the victim to sell to several of Freitas's customers.

The victim informed Brunell of the contents of the call and then left home in his green Ford pickup truck at approximately 2:30 p.m. for Freitas's house, which was about a one-half hour drive from his home. At 3:00 p.m., he arrived at Freitas's home, and five minutes later, Jamie Peterson, Freitas's personal care attendant and girlfriend, came to the house to pick up a check.² The victim and Peterson spoke for about five minutes, and then she left for the bank.

When the victim did not return home for supper at approximately 6:00 p.m., Brunell tried, unsuccessfully, to reach him on his cellular telephone. She called his telephone several times thereafter, but was still unable to reach him.

At approximately 8:00 p.m. that evening, Floyd received a telephone call from Freitas, who asked for assistance picking up someone who was stranded. Freitas did not say the name of that person, and Floyd, who also served as Freitas's driver, reluctantly agreed to assist him. When Floyd arrived at Freitas's house, he discovered that all the house lights and the outdoor sensors were off, and that Freitas's van was parked in the middle of his driveway. Floyd testified that this was very unusual. As Floyd helped Freitas get settled in the van, Freitas instructed him to turn off the overhead dome light.

Once Freitas was securely in place inside his van, he had Floyd stop briefly at a convenience store to buy bottles of water and then instructed him to drive down Plymouth Street through the Middleboro/Carver line toward Route 58 and the town of Plymouth, without informing Floyd of their ultimate destination. As they were traveling, Freitas made a telephone call to the defendant. During the telephone call, Freitas told the defendant to “[m]ake sure the duck is cooked well, well, well done.”

Floyd, still uninformed of their destination, made a loop and continued on Route 58 while Freitas made numerous telephone calls, many of which were unsuccessful or “dropped” calls. Freitas became agitated and mumbled to himself, “[I]f you need something done, you need to do it yourself.” Floyd continued on Route 58 for about three to four miles and ended up on Tremont Street in Carver. Freitas told Floyd to look for a mailbox with handlebars, and as Floyd drove down Tremont Street, Freitas instructed him to slow down, lower his window, and yell, “[W]here are you?” ³ Floyd continued driving and ended up at the Plymouth Municipal Airport. Freitas then had Floyd loop back onto Tremont Street, while Freitas continually attempted to contact the unidentified person. As they crossed the Plymouth/Carver line, Freitas told Floyd to stop the car. The defendant, dressed in black pants and a long-sleeved black sweatshirt, emerged from behind a guardrail near some cranberry bogs and ran toward the van.⁴ The location where Floyd and Freitas picked up the defendant was approximately one-fifth of a mile from the spot where the victim's body was later discovered, and approximately twelve to sixteen miles from the defendant's home.

Floyd testified at trial that when he opened the driver's-side sliding door, both the defendant and Freitas started “freaking out because the dome light came on.” After Floyd drove a short distance, Freitas instructed him to pull to the side of the road and let cars pass because he did not want anyone to take down his license plate. Floyd complied with Freitas's request, letting several cars drive past them before getting back on the road. Once they arrived at Freitas's home, Floyd drove home in his car, and the defendant drove home in Freitas's van.

Meanwhile, Brunell continued calling the victim's telephone, to no avail. The following day, August 14, 2003, she called the victim's father, who informed her that he had not seen the victim, although the victim was supposed to meet him for work that morning. At around noon, Brunell called Freitas and asked if he had seen the victim. Freitas responded that the victim was “up to no good” and probably with another woman.

Later, Brunell went to the Kingston police station and filed a missing person report. Over the course of the next couple of days, Brunell posted “missing person” fliers in Kingston, Middleboro, Carver, Wareham, and Plymouth. The fliers asked anyone with information about the victim to contact her.

On Sunday, August 17, 2003, Floyd drove to Freitas's house for a visit. Prior to visiting Freitas, Floyd made a trip to Middleboro, where he saw several of the missing person fliers posted by the victim's girlfriend. When Floyd arrived at Freitas's home, the defendant was in Freitas's garage working on a car. Shortly after Floyd's arrival, Freitas received another telephone call from Brunell. During the call, Floyd heard Freitas “bad mouth[ ]” the victim, saying he was a drug dealer, was cheating on her, and was not a nice person.

After Freitas ended the telephone call, his face turned pale and he stated to Floyd that the matter of the victim's disappearance was going “to get big.” Freitas then told Floyd that if he was contacted by the police he should tell them that on August 13, 2003, he went to a bar and to a Home Depot store.

Also on Sunday, August 17, 2003, at approximately 10:00 a.m., the victim's remains were discovered by Steven Guarino and his brother-in-law. The pair went fishing at a small pond off Tremont Street in Carver. The only path to the pond was a hilly and rocky access road for power lines. On their way to the pond, they noticed a burned pickup truck, but drove past it. However, when they left the pond a few hours later, they stopped and inspected the truck. They noticed an awful smell emanating from inside the truck and, on closer inspection, noticed a body inside the vehicle. The body was completely burned and unrecognizable. Guarino called the Middleboro police and reported the discovery of the truck and remains. The Middleboro police, in turn, contacted the Massachusetts State police.

Francis M. McGinn, a Massachusetts State police captain assigned to the fire investigation unit of the fire marshal's office, responded to the scene. A green Ford pickup truck, located in a grassy area off a dirt road used to access overhead power lines, was completely burned. The remains of the victim's...