Commonwealth v. Caswell (Lawyers Weekly No. 11-066-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1301 Appeals Court COMMONWEALTH vs. DARREN CASWELL. No. 12‑P‑1301. Plymouth. January 16, 2014. ‑ June 16, 2014. Present: Graham, Brown, & Maldonado, JJ. Homicide. Evidence, Joint venturer. Joint Enterprise. Practice, Criminal, Argument by prosecutor, Instructions to jury. Accessory and Principal. Malice. Indictment found and returned in the Superior Court Department on October 2, 2009. The case was heard by Paul E. Troy, J. Cynthia Vincent Thomas for the defendant. Gail M. McKenna, Assistant District Attorney, for the Commonwealth. 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 participation in 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 (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 (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, 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 […]