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06/14/78 COMMONWEALTH v. ROBERT STEWART

June 14, 1978

COMMONWEALTH
v.
ROBERT STEWART



Middlesex. Indictments found and returned in the Superior Court on December 11, 1973. The cases were tried before Roy, J. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Hennessey, C.j., Braucher, Wilkins, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Evidence, Polygraphic test, Judicial discretion, Photograph, Immunized witness, Corroborative evidence. Practice, Criminal, Mistrial, Duplicitous convictions, Judicial discretion, Charge to jury. Homicide. Jury and Jurors. Witness, Accomplice.

The opinion of the court was delivered by: Abrams

At a criminal trial, there was no error in denying the defendant's motion to admit the results of a prior polygraph examination where the defendant knew the results of his examination before the motion was made. [383-384]

At a criminal trial there was no error in the denial of the defendant's motion to compel the chief prosecution witness to submit to a polygraph test where there was nothing in the record to show that the witness would have agreed to submit to a polygraph examination. [384-385]

The Judge at a murder trial did not abuse his discretion in admitting photographs of the victim's body. [385]

The requirement of corroboration in G. L. c. 233, § 20I, did not apply to the testimony of an unimmunized accomplice. [386]

There was sufficient evidence at a criminal trial corroborating the testimony of an unindicted accomplice to satisfy the requirements of G. L. c. 233, § 20I. [386-387]

A mistrial was not required by a prosecutor's improper question to a defense witness where any prejudice was insubstantial and rendered harmless by the Judge's charge to the jury. [387-388]

At a criminal trial, the Judge's instructions to the jury that no promises made to an unindicted, unimmunized accomplice would be binding on the court and that, since the accomplice was a Federal prisoner, State officials would have no power to influence the granting or restricting of furloughs, did not constitute reversible error. [388-389]

There was no error in a Judge's denial of a defendant's motion to poll the jury where the length of the jurors' deliberations was not unreasonable and where the fact that they returned inconsistent verdicts was a result of an erroneous instruction which worked in the defendant's favor. [389-390]

The Judge at a criminal trial erred in imposing consecutive life sentences on a defendant convicted of murder in the second degree and armed assault in a dwelling house where conviction of armed assault in a dwelling house did not require proof of any facts different from those necessary to prove the murder charge based on the commission of the felony. [390-393]

The defendant Robert Stewart was indicted for the murder in the first degree of Leon Sherter and armed assault on Sherter in a dwelling house. G. L. c. 265, § 18A. After a jury trial, he was convicted of murder in the second degree and armed assault in a dwelling house. Stewart appeals pursuant to G. L. c. 278, §§ 33A-33G. We conclude that no reversible error occurred during the course of the trial and that no occasion is presented for the exercise of our powers under G. L. c. 278, § 33E. However, the sentencing of the defendant to consecutive terms for the murder and armed assault convictions was error which should be corrected in a new sentencing proceeding.

The key witness, Lawrence Goldman, was an unindicted and unimmunized participant in the crime. Goldman testified that, after initial planning and reconnaissance trips to Sherter's home, Stewart, Goldman, James Doherty and Ralph Anzalone determined to rob the Sherter house on June 18, 1972. *fn1

The group first arrived at the Sherter home at nine thirty that night. Because lights were on in the house, they decided to wait and went to a coffee shop. They returned a second time, but again decided to delay because there was still activity in the house. The group then drove around for a while. During this drive, Doherty, who was driving, failed to stop for a red light and was pulled over by an MDC police cruiser. Doherty left the car and walked over to the cruiser. After a brief Discussion with the officers, he returned to the car and told his friends that he had only received a warning slip.

The group then returned to the Sherter home, parked the car around the corner, left the car one at a time, and met in a clump of bushes to the right of the house. Stewart gave Goldman, Anzalone, and Doherty each a pair of gloves and a nylon stocking. Stewart then ordered Goldman to cut the telephone wires and to pick the lock on the front door. Goldman cut the wires. However, he was twice unable to pick the lock, and on both occasions he awakened Mrs. Sherter.

The group then decided to move around the house to the backyard where they waited for three to four hours. About 4 a.m., the group approached the back door of the house which led to a porch from which a window opened into the kitchen. Using one of two "wonder bars" brought by Doherty, Goldman opened the porch door. The window leading to the kitchen, which was stuck due to a recent coat of paint, was also forced open with a bar, which was then placed on a piece of porch furniture.

With their masks on, the group dispersed throughout the house according to a prearranged plan. Anzalone maintained a lookout in the kitchen area; Goldman positioned himself in the living room to watch the front of the house, and Stewart and Doherty proceeded upstairs to "secure the people that were in the home." Doherty had a .38 caliber revolver, and Stewart had a "massive . . . six-shooter."

Goldman testified that he then heard noises of a scuffle and a shot. Doherty and Stewart came running down the stairs and the four men ran out the back door.

Doherty went to Goldman's house because he wanted medical attention for an injured finger. When Goldman asked what had happened upstairs at the Sherter house, Doherty stated that he was beating a person with his gun and ...


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