Drive-by shooting conviction tossed out
The state's highest court yesterday threw out the conviction of a Mattapan street gang member who was sentenced to life in prison for a 1995 drive-by shooting that killed one woman, left a man paralyzed from the neck down, and wounded a third victim in the chest.
The Supreme Judicial Court said the trial judge should have granted a motion by lawyers for Ricardo Gittens to acquit him for lack of evidence before the case went to the jury.
Prosecutors said Gittens, 30, drove the car from which a gunman sprayed 13 bullets from a MAC-11 automatic pistol. But the SJC said the state provided no direct evidence at the 2001 trial of both men to support that charge and had merely proved that Gittens was friends with the gunman, owned the car used in the shooting, and had a motive to participate.
"The Commonwealth established that Gittens had a motive to commit the shooting and that he could have been the driver, but motive and possibility alone do not establish beyond a reasonable doubt that he was in the driver's seat," the SJC said.
Gittens was also implicated in the 1995 assassination of gang prosecutor Paul R. McLaughlin, but was never charged. Authorities identified him as the getaway driver in that shooting, too.
As a result of the SJC's decision, the case for which Gittens is serving a life sentence at Old Colony Correctional Center will go back to Superior Court, where an acquittal will be entered. He cannot be retried on the same charges.
"Mr. Gittens and his family are very gratified and appreciate the court's commitment to taking a careful look at the government's case," his court-appointed lawyer, Charles K. Stephenson, said in a statement.
Gittens had insisted that he was not guilty after the jury delivered its verdict, saying, "You're sending an innocent man to jail."
Suffolk District Attorney Daniel F. Conley nonetheless said his office will decide "within the next day or so" whether to ask the SJC to hear the case a second time. He said the evidence against Gittens "was circumstantial, but it was sufficient to prove the defendant guilty beyond a reasonable doubt."
Although the SJC tossed out Gittens's conviction, it upheld the guilty verdict for the alleged gunman, Gus Swafford, who is also serving a life sentence.
Both men belonged to the Theodore Street Posse, one of whose leaders, Jeffrey L. Bly, was convicted of fatally shooting McLaughlin, an assistant attorney general who was the first prosecutor in Massachusetts slain in connection with his work. The prosecutor was ambushed at a West Roxbury commuter rail station.
The case before the SJC involved a shooting that occurred in the early morning hours of June 18, 1995, after a scuffle in the Norfolk Street playground between members of the street gang, including Swafford and Gittens, and others from the neighborhood.
After the fight, an old brown hatchback pulled up in front of a house on Norfolk Street, and a person identified later as Swafford began firing a gun. Killed by a barrage of bullets while standing in front of her house was 32-year-old Jacqueline Bispham. Darryl Braithwaite was struck in the head and became a paraplegic. The third victim, Christopher Soles, was shot in the chest but survived.
The crime remained unsolved for some time. In January 1997, police interviewed Swafford, then incarcerated for other crimes, about the shooting. Over the next few weeks, he made repeated calls to friends asking them to go to his grandparents' home to retrieve dogs or puppies, according to the SJC ruling.
Because Swafford made the calls from prison, they were recorded and monitored. Police obtained a warrant to search Swafford's grandparents' home and found guns in the places where he said the dogs or puppies were. The guns were later linked to the shooting.
Although the SJC upheld Swafford's conviction, it said Superior Court Judge James D. McDaniel Jr. should have granted a motion to acquit Gittens before the case went to the jury.
