The Supreme Judicial Court ruled today that re-trying Dario Baxter for first-degree murder for the 2018 death of Michael Ross on Wayland Street in Dorchester would be a violation of his right against double jeopardy, but added that Suffolk County prosecutors can still try to convict him as an accessory after the fact and on gun charges related to the case.
In a 2019 trial of Baxter and two other men, prosecutors asked a Suffolk Superior Court jury to convict Baxter of first-degree murder on a "joint venture" theory because he allegedly drove the men to Wayland Street in Dorchester, where both got out and one, Dawon Wright, allegedly shot Ross six times from behind, while the other, Dakarai Pittman, acted as a lookout. The two and then jumped back in the car with Baxter, who drove away, according to prosecutors. However, the judge declared a mistrial after the jury could not come to a verdict against the three men.
A new trial for the three is now scheduled for Sept. 9. Baxter sued to block the trial for him, saying it would be unconstitutional double jeopardy.
In its ruling today, the state's highest court agreed, but only on the charge of first-degree murder.
The court said that in the initial trial, prosecutors failed to prove that Baxter knew the other two planned to kill Ross and that he participated in the planning as he drove them from Orchard Park in Roxbury to Wayland Street - something that would be required to convict somebody of first-degree murder when they did not actually commit the killing.
The justices agreed that evidence seemed to suggest Baxter knew the other two were planning to attack Ross 0 specifically, the way he made a point to get them close to Ross - but not that he knew they were planning to actually kill him.
[W]hile the evidence of the defendant's maneuvering of the vehicle may have allowed the jury to infer that the defendant knew of and shared the passenger's intent to assault the victim, it fails to sustain a reasonable inference, beyond a reasonable doubt, that he shared the passenger's intent that the attack be deadly, as required for a conviction under a joint venture theory. ...
There was no direct evidence that the defendant intended that the victim be killed.
And because this question was settled at the first trial regardless of what the jurors decided, trying Baxter again for first-degree murder would, in fact, be double jeopardy, the court concluded.
Because the Commonwealth did not present sufficient evidence for a reasonable jury to conclude beyond a reasonable doubt that the defendant shared the lethal intent of the shooter, a retrial of the defendant on the charge of murder in the first degree is prohibited by the principles of double jeopardy.
This was not the case, however, with the accessory-after-the-fact and gun charges, the court continued. After Ross collapsed from being shot six times, it would be pretty obvious what had happened - witnesses said they heard the gunfire and saw the other two men jumping into the car with Baxter.
From the evidence, the jury could reasonably conclude that the defendant knew the identity of the shooter, inferably Wright. The jury could also infer from the witnesses who were on Balfour Street and heard the shots fired that the defendant, who was in approximately the same location, also knew that a shooting had occurred. Finally, the defendant helped the shooter escape by driving him away from the scene of the killing.
So unlike with the first-degree murder charge, Baxter can be retried on these charges after the mistrial, the court ruled.