BOSTON, March 2, 2015— The state’s highest court today affirmed the murder conviction of the man who fatally shot 20-year-old Cushings Fortuna in 2006, Suffolk County District Attorney Daniel F. Conley said.
In a decision authored by Chief Justice Ralph Gants, the Massachusetts Supreme Judicial Court affirmed the second-degree murder conviction of SEAN EVELYN (D.O.B. 2/22/86), formerly of New Hampshire, in connection with Fortuna’s Dec. 31, 2006, shooting death.
Evelyn, who had been indicted for first-degree murder, was convicted on the lesser charge of second-degree murder at his 2009 trial in Suffolk Superior Court. During that trial, Evelyn’s attorney made statements to the jury indicating that Evelyn acted in the heat of passion and with reasonable provocation after a physical confrontation with the victim – making him guilty, the defense argued, of voluntary manslaughter rather than murder.
On appeal, Evelyn argued that those claims were tantamount to a guilty plea in which he waived the right against self-incrimination. The trial judge, he now claimed, should have held a colloquy intended to ensure the defendant understood the ramification of giving up those rights. The justices disagreed, finding that Evelyn did not waive any of his constitutional rights that would require a colloquy.
“He exercised his right to a trial by jury, confronted witnesses against him through cross-examination, exercised his privilege against self-incrimination by not testifying, and stipulated to no facts… Because defense counsel’s concession did not constitute a waiver of the defendant’s constitutional rights, the trial judge was not constitutionally required to conduct a plea colloquy confirming that the defendant had waived his rights knowingly and voluntarily,” Gants wrote in the 16-page decision.
The evidence presented during Evelyn’s 2009 trial proved that Evelyn encountered Fortuna at South Station and they became involved in an altercation over money that Fortuna believed he was owed by Evelyn. During the altercation, Fortuna assaulted and spat on Evelyn before walking away with two other men.
Despite the fact that the confrontation was over, Evelyn retrieved a Glock .40 semiautomatic firearm and chased after the men, firing two shots as he pursued the group on Atlantic Avenue. As the victim hid behind a parked car on South Street, Evelyn chased after him and shot him. After Fortuna fell to the ground, Evelyn shot him twice more and fled on foot, the evidence showed.
Fortuna was transported to Boston Medical Center, where he died of his injuries.
As Evelyn chased Fortuna down, Evelyn’s girlfriend drove his Mercedes Benz away from the scene. Boston Police responding to 911 calls spotted the vehicle and pulled it over a short distance away. Evelyn subsequently surrendered to police on Jan. 2, 2007.
Assistant District Attorney Donna Patalano argued the case on appeal. Evelyn was represented by Jeanne Kempthorne.
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All defendants are presumed innocent until and unless proven guilty beyond a reasonable doubt.
