Commonwealth v. Gonzalez , 475 Mass. 396 ( 2016 )

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SJC-11731
COMMONWEALTH vs. CAURIS GONZALEZ.
Essex. December 11, 2015. - September 6, 2016.
Present: Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ.1
Homicide. Joint Enterprise. Evidence, Joint venturer, Intent.
Intent. Practice, Criminal, Capital case.
Indictment found and returned in the Superior Court
Department on June 29, 2011.
The case was tried before Mary K. Ames, J.
Robert F. Shaw, Jr., for the defendant.
David F. O'Sullivan, Assistant District Attorney, for the
Commonwealth.
LENK, J. Shortly before 6 P.M. on January 10, 2009, Robert
Gonzalez was shot and killed while sitting in his minivan near
an intersection in Lawrence. The shooting was carried out by
four people who, seconds before, had been dropped off across the
intersection by someone driving a Dodge Caravan minivan. In
1
Justice Cordy participated in the deliberation on this
case and authored his separate opinion prior to his retirement.
2
June, 2011, the defendant was indicted by an Essex County grand
jury on one count of murder in the first degree based on
evidence that she had been the driver of the Caravan. After a
jury trial in the Superior Court, the defendant was convicted as
a joint venturer of murder in the first degree on a theory of
deliberate premeditation.
On appeal, the defendant claims that the trial judge erred
in denying her motion for a required finding of not guilty. In
particular, the defendant contends that the evidence was
insufficient to allow a rational juror to conclude, beyond a
reasonable doubt, that she was the driver of the Dodge Caravan,
or that she knew of and shared the coventurers' intent to kill
the victim. The defendant also claims, among other things, that
the judge erred by allowing the admission of (a) the opinion of
one of the Commonwealth's witnesses interpreting cellular site
location information (CSLI) generated by the defendant's
cellular telephone, and (b) a video recording comparing still
photographs from surveillance footage of the Dodge Caravan that
had transported the four passengers involved in the shooting
with the Dodge Caravan owned by the defendant's mother. The
defendant contends also that her trial counsel was ineffective
for failing to object to the admission of an audio recording of
statements she made to police shortly after the killing.
3
We conclude that the motion for a required finding of not
guilty should have been granted. While the jury could have
concluded, on this evidence, that the defendant was in some way
involved in the shooting, or that it was more likely than not
that she was the driver, the evidence was insufficient to allow
a jury to draw this conclusion beyond a reasonable doubt.
Further, even if the jury could have found that the defendant
transported the coventurers to the scene, the evidence did not
allow the jury to conclude, beyond a reasonable doubt, that she
knew of or shared the coventurers' lethal intent, as is required
for a conviction of deliberately premeditated murder committed
by way of joint venture. Because we reverse the conviction on
this basis, we do not address the defendant's other claims.
1. Background. a. Background information. In late 2008,
the defendant, then nineteen years old and living with her
mother in Methuen, sold a Honda Civic automobile to the victim,
Robert Gonzalez.2 The victim made a partial payment for the
vehicle, but, as of January, 2009, there was an outstanding
balance.3
2
The victim and the defendant are not related.
3
The Commonwealth argued at trial, in both its opening
statement and closing argument, that the amount owed was $100.
While the evidence does not indicate the exact amount of the
remaining balance, the defendant does not contest this amount.
4
On the evening of Friday, January 9, 2009, the defendant
and her boy friend, Joel Javier, attended a party hosted by one
of Javier's friends at an apartment on Essex Street in Lawrence.
Also at the party was Yoshio Stackermann, a friend of Javier.
The defendant had driven both Stackermann and Javier to the
party in her mother's vehicle, a 2000 Dodge Caravan.4 The
defendant, Javier, and Stackermann left the party together5 and
drove away in the Caravan at approximately 11 or 11:30 P.M.,
with plans to get something to eat at a nearby fast food
restaurant and then return to the party. They did not go
directly to the restaurant, and they did not return to the
party.6
A few hours later, at 2 A.M. on Saturday, January 10, 2009,
the defendant and Javier (but not Stackermann) were in the
Caravan near the same fast food restaurant they had planned to
visit earlier. The defendant was driving. The defendant
4
The defendant shared use of this vehicle with her mother,
in whose name it was insured and who apparently used it to drive
to and from work.
5
At some point earlier, Javier left the party without the
defendant and drove her minivan to a liquor store; he returned
shortly thereafter and ultimately left the party together with
the defendant and Stackermann.
6
It is not clear from the record where they did go.
5
spotted the victim's vehicle, also a Dodge Caravan.7 She called
the victim from her cellular telephone, apparently to ask about
the money she was owed. The victim did not answer. The victim
then called Javier's cellular telephone and ended up speaking to
the defendant. The victim and the defendant had a "very loud"
conversation.
A "couple of minutes" later, shortly after 2 A.M., the
defendant concluded the conversation with the victim and entered
the drive-through lane at the fast food restaurant. As she and
Javier waited for their food, the victim drove by in his Caravan
and began "yelling" in the direction of the defendant's vehicle.
Javier shouted back.
The victim drove around the corner and parked in a nearby
parking lot. He got out of his minivan, along with three male
passengers, and walked toward the restaurant. They saw Javier
standing outside the vehicle and the defendant sitting inside
it. The victim and Javier walked towards each other, shouting,
until they were "[a]bout an arm length" apart. Javier pulled
out a knife. He was "not waving it towards" the victim, but
"just letting it [be] known that he had a knife on him." The
victim punched Javier in the face, knocking out one of his teeth
7
The victim had sold the Honda Civic, which he had
purchased from the defendant, and used the money to buy the
Caravan.
6
and causing him to drop the knife. Javier spit out the tooth,
and one of the three men with the victim picked it up.
The victim and his companions turned and walked back toward
the victim's minivan. Javier followed behind saying, "[O]h, you
knocked my fucking tooth out, you fucking really going to
knock -- you're really going to do that shit?" When the victim
and his companions reached their vehicle, Javier, still
following behind, "threw his phone, trying to hit" the victim
with it. The device broke and was left on the ground.8
The defendant, who had remained in the driver's seat of her
mother's Caravan, drove to Javier and told him to get in.
Javier refused. The defendant stepped out of the Caravan.
Javier then said that the victim was "not going to stay like
that," and entered the vehicle on the driver's side. The
defendant got in on the passenger's side, and the two drove off.
The defendant "dropped off" Javier at his house in Lawrence,
where he lived with his parents, and the defendant returned to
her house. The two talked on the telephone throughout the night
until about "[six] something in the morning."
At approximately 6:45 A.M., the defendant drove her mother
to work. The defendant then went to Javier's house, where the
two slept until noon. They drove in the Caravan to a pharmacy,
where they bought ointment for Javier's swollen mouth. On their
8
Javier did not return to retrieve it.
7
return, as the defendant was driving and Javier was sitting in
the rear passenger seat, the defendant saw the victim's Caravan.
According to the defendant's statement to police, which was in
evidence at trial, the victim "came . . . to hit [her] head on,"
she swerved to avoid him, and the victim was "saying . . . a
whole bunch of stuff."9
The defendant and Javier drove back to Javier's house
"between one or two" P.M. As the two got out of the Caravan,
they saw the victim's vehicle approaching. The defendant told
Javier to drive off in the Caravan, which Javier did. After
Javier left, the defendant knocked on the front door, and
Javier's mother answered. The defendant told her that "there
was a man outside who wanted to beat up Joel." Javier's mother
stepped outside and saw the victim across the street standing
near his vehicle. He was laughing, saying that "he was carrying
[Javier's] tooth" and that he would sell it back "for a hundred
bucks." The victim left a few minutes later, and Javier,
driving the Caravan, returned sometime thereafter.10
9
The defendant said in her written statement to police that
she could not hear what the victim was saying because the
driver's side window was shut.
10
The victim arrived at his house around 4 P.M., and left
shortly thereafter to run errands for his girlfriend.
8
At approximately 1:40 P.M., the defendant called her
brother's girl friend, Ashley Calixto, to say that she would
come by later to visit Calixto at her house in Methuen.
The evidence of what occurred between that point and
6 P.M., the approximate time of the shooting, consists primarily
of cellular telephone records and accompanying CSLI.11,12 We turn
first to the period between 2 P.M. and approximately 5:30 P.M.
In that interval, eight calls were made between cellular
telephone numbers belonging to three of Javier's friends --
Stackermann, Thomas Castro, and Francis Wyatt -- all of whom
11
In a written statement provided to police, the defendant
stated that, at approximately 2 P.M., she drove Javier's mother
to work and then spent most of the rest of the afternoon (until
her visit to Calixto, her brother's girl friend) in Javier's
house, leaving only to pick up certain items from her house and
her father's business. Javier's mother testified that the
defendant took her to work at 3:30 P.M.
12
According to an employee of wireless telephone company T-
Mobile, Raymond McDonald, called by the Commonwealth as a
witness, a cellular site is a tower-like transmitter that sends
data to, and receives data from, cellular telephones. The
concentration of cell sites is heavier in urban areas than in
rural ones. The "average" cellular site covers about "two
miles," although it "could be a lot further, depending on a lot
of factors." "Typically, it[ is] the closest cell site [to the
device] that will handle [a] signal" sent to or received from
that device. It is "not always the closest," however, "it's the
tower that has the strongest signal at the time." Cellular site
location information refers to a log kept by the telephone
company concerning the cellular sites that a particular cellular
telephone connected to when it made and received calls. See
Commonwealth v. Augustine, 467 Mass. 230, 231 n.1 (2014), S.C.,
472 Mass. 448 (2015).
9
worked with Javier at a local snow-shoveling business.13 The
telephone records also show that, during this period, six calls
were made between the defendant's number and Stackermann's
number, and two between her number and Castro's number.14
We turn next to the interval between shortly after
5:30 P.M. and the shooting. At 5:41 P.M., a call was made from
Castro's number to Stackermann's number. The call was
transmitted, on both the sending and receiving ends, through
wireless telephone company T-Mobile cellular site 4160, located
approximately nine-tenths of a mile from the intersection in
Lawrence where the shooting took place. At 5:45 P.M., a call
was made from Stackermann's number to Wyatt's number; it was
transmitted through T-Mobile cellular site 4422, located
approximately eight-tenths of a mile from that intersection.15
At 5:51 P.M., a call to the defendant's number was transmitted
13
Two were between Stackermann and Wyatt, five between
Stackermann and Castro, and one between Castro and Wyatt.
14
Three of the Commonwealth's witnesses testified that,
generally and at various points on the day of the shooting,
Javier made and received calls using the defendant's cellular
telephone. With regard to the calls in question here, there was
no evidence whether the defendant was the speaker.
15
In one place in its brief, the Commonwealth implies that
tower 4422 is the T-Mobile cellular site closest to the
intersection where the shooting took place. According to the
record, however, as the Commonwealth acknowledges elsewhere in
its brief, T-Mobile cellular site 4449, located approximately
four-tenths of a mile from the intersection, is closer.
10
from T-Mobile cellular site 4422.16 Between 5:45 P.M. and
6:01 P.M., there were no outgoing calls from the numbers
belonging to the defendant, Castro, Stackermann, and Wyatt.
b. The shooting. The events immediately surrounding the
shooting, between 5:57 P.M. and 5:58 P.M., were recorded by four
surveillance cameras17 mounted on a house near the intersection
of Haverhill Street and Hampton Street in Lawrence.18 The
cameras were on the northern side of the intersection, while the
shooting took place on the southern side. The intersection
itself was less than two miles from the defendant's house, about
one and one-half miles from Javier's house, and approximately
one mile from the automobile dealership owned by the defendant's
father.
At 5:57 P.M., the victim's Dodge Caravan drove north on
Hampton Street, parking on that street just before its
intersection with Haverhill Street. The victim was driving.
There were two passengers in the vehicle, one in the front
16
Twenty-three other calls from the defendant's number were
transmitted through T-Mobile cellular site 4422 on the day of
the shooting. It is not claimed that the defendant was at the
shooting scene when these other calls were made.
17
The cameras were infrared devices with no sound recording
capability, whose footage was "choppy" and of insufficient
quality to identify facial features or license plate numbers.
18
Hampton Street, a side street, runs roughly north-south.
It intersects at its northern end with Haverhill Street, a main
thoroughfare, which runs roughly east-west.
11
passenger's seat and one in the rear seat. The passenger in the
front seat got out of the vehicle and walked into a nearby
building. The victim and the other passenger remained in the
minivan.
Approximately twenty seconds later, another Dodge Caravan
(suspect vehicle) came into the view of the cameras heading west
on Haverhill Street towards the intersection. It stopped near
the intersection. Four individuals got out and immediately
walked south across the street toward the victim's minivan,
stopping traffic as they did so.19 Two of the individuals headed
to the vehicle's right side, while two headed to the left. The
individuals reached the rear of the vehicle. The vehicle
lurched forward and then slid towards the side of the road. A
pedestrian in the foreground ducked out of the way, apparently
hearing shots. Subsequent investigation revealed that at least
fifteen shots were fired from behind the vehicle by two
different handguns, and that two of those shots hit the victim
in the back.20 The four individuals fled, heading south away
from Haverhill Street. This entire course of events ended
19
The video does not show the facial features of the
suspects, or whether weapons were displayed.
20
The passenger emerged from the vehicle after the
shooting, apparently uninjured, and tended to the victim until
police arrived.
12
approximately thirty seconds after the individuals were dropped
off.
Immediately after dropping off the four individuals, the
suspect vehicle drove straight (west) on Haverhill Street for
several feet and then turned right (north) onto a side street.
A few moments later, it turned around and drove back to
Haverhill Street. There, it turned right (west) and drove out
of the view of the cameras.
One of the victim's companions called 911, and police were
dispatched at around 5:59 P.M. The responding officer found the
victim with wounds to his back and side. He was taken to a
hospital, where he was pronounced dead.
At around 6:01 P.M., two calls were made from the
defendant's number to Castro's number; the calls were
transmitted through T-Mobile cellular site 4449, the one closest
to the scene of the crime.21 Also at 6:01 P.M., a call was made
from Castro's number to a local taxicab service; the caller
asked to be picked up on Warren Street, two blocks west of the
shooting scene. Between 6:04 P.M. and 6:06 P.M., three calls
were made from the defendant's number (to her brother's number
and to that of Calixto, his girl friend); all were transmitted
21
Telephone records show that six other calls to and from
the defendant's number were transmitted through T-Mobile
cellular site 4449 on the day of the shooting. These other
calls took place at times when it is not claimed that the
defendant was at the crime scene.
13
through T-Mobile cellular site 4160, located less than one mile
from the scene of the shooting.
At "6:15 -- 20-ish," the defendant and Javier arrived at
Calixto's house in her mother's Dodge Caravan; there was no
evidence who was driving.22 Calixto, who had undergone surgery a
week before, gave Javier a Percocet pill for pain in his mouth,
which was "red and sore." The defendant stayed until 6:45 P.M.,
when she left to pick up her mother at work. She returned there
later that evening to pick up Javier.
Sometime that evening, Stackermann arrived unannounced at
the house of his friend Alberto Medina. Medina's wife answered
the door and, in response to his inquiry, told Stackermann that
Medina was not home. Four days later, Medina was arrested by
Lawrence police on an unrelated charge. Following his arrest,
he offered to show police a gun that he had in his house.
Police took possession of the gun. A State trooper test-fired
the gun and compared the resulting bullet casings to casings
found at the scene of the shooting. He concluded to "a
reasonable degree of ballistic certainty" that six of the bullet
casings from the shooting scene came from Medina's gun. The gun
22
The defendant told police that she had arrived at
Calixto's house about fifteen to twenty minutes earlier, around
6 P.M. McDonald, the T-Mobile witness, testified that, had she
actually been at Calixto's house by then, "one would expect
[her] call[s] to hit" other cellular sites closer to Calixto's
address in Methuen.
14
also was examined for fingerprints and traces of
deoxyribonucleic acid (DNA). A fingerprint belonging to Medina
was recovered, as was one belonging to an unknown individual.
c. Investigation. By January 13, 2009, three days after
the shooting, investigating officers learned that Javier had
"had some sort of a disagreement with the victim." Detectives
went to Javier's house to interview him. Javier's father
answered the door, told them that Javier was not at home, and
then telephoned Javier. Javier arrived a few minutes later with
the defendant. The detectives asked both Javier and the
defendant if they would agree to speak with officers at the
police station, and each agreed. They were interviewed
separately.
The defendant waived her Miranda rights and consented to
the interview being recorded. During the interview, detectives
laid out their theory of the case and accused the defendant of
having driven the coventurers to the scene of the crime; the
defendant denied the accusations. She stated that she and
Javier were "together all day." When the detectives asked if
she had been the only one driving her mother's Dodge Caravan
that day, she responded "Mmm hmm."23 When they asked her who of
Javier's friends might have been connected to the shooting, she
23
The defendant also mentioned that Javier had driven the
minivan at one point, shortly before the victim offered to sell
back Javier's tooth.
15
answered, "I have no idea . . . I don't know any of his other
friends." She also stated that, between 5:30 and 6 P.M. on
January 10, 2009, she "was probably on my way to [Calixto's] or
in the process of getting there or something."
Finally, the defendant said that, on the night of the
shooting, at about 10 P.M., she went with Javier, as well his
mother and sister, to her aunt's house and
"just asked [the aunt] for what we should do since people
are saying that [Javier] was there when he wasn't. She
just said to . . . write everything you did on a piece of
paper so you . . . won't forget if questions are asked
after."24
The detectives asked the defendant if she had in fact written
everything down and whether she had the statement with her. The
defendant responded that she had written everything down, that
she had a copy with her, and that the police "can keep it." In
this written statement, the defendant claimed that she "got to
[Calixto's] house a little before 6:00 [P.M.]" The interview
ended after approximately one hour.
On January 17, 2009, police seized the Dodge Caravan, which
was parked at the defendant's mother's workplace. While
searching the vehicle pursuant to a warrant, they found receipts
belonging to the defendant and a paystub belonging to Javier.
24
The defendant explained that she asked her aunt for
advice because her "husband's a cop and she studies the law."
This was redacted, over the defendant's objection, from the
statement presented at trial.
16
They also conducted forensic testing, but did not find "any
evidence," such as fingerprints, fibers, or DNA, "link[ing]"
Stackermann, Castro, or Wyatt to the vehicle.
On January 26, 2009, one and one-half weeks later, the
defendant and Javier traveled together to the Dominican
Republic. The purpose of the trip was to allow Javier to have
his tooth fixed at low cost. The defendant returned a month
later, in February, 2009. Javier returned in September, 2009.
On June 29, 2011, an Essex County grand jury returned an
indictment against the defendant charging her with murder in the
first degree.
d. Trial. Trial was held in the Superior Court from July
15 through August 2, 2013. The Commonwealth proceeded on a
theory of deliberate premeditation, arguing that the defendant
had aided the principals -- Javier, Stackermann, Castro, and
Wyatt -- by driving them to the scene of the shooting while
knowing of and sharing their lethal intent.25
On the fifth day of trial, the Commonwealth called Peter
Smith, a civilian employee of the Federal Bureau of
Investigation's forensic audio, video, and image analysis Unit.
25
Castro was tried separately in April, 2013, and
acquitted. Javier's first trial, in June, 2013, resulted in a
hung jury. He was convicted, in August, 2013, following a
second trial, of murder in the first degree. Stackermann also
was tried in June, 2013, and found guilty of murder in the
second degree. The charges against Wyatt were dropped.
17
Smith analyzed images of the suspect vehicle from the
surveillance video. While he could not determine whether the
suspect vehicle was the one owned by the defendant's mother,
agreeing when asked that the vehicle seen in the video recording
"might be the same vehicle and it might not be the same
vehicle," he did conclude that the suspect vehicle was a Dodge
Caravan.26 Without objection, the jury were shown a video
recording created by Smith that superimposed a photograph of the
suspect vehicle on a photograph of the defendant's mother's
Caravan, "fad[ing] back and forth from the [suspect vehicle] to
the [defendant's vehicle]."
On the eighth day of trial, the Commonwealth called Raymond
McDonald, a manager at T-Mobile's law enforcement relations
group. On the basis of his testimony as keeper of the records,
certain T-Mobile cellular telephone records were introduced in
evidence. McDonald also provided technical background on how
CSLI data are generated and stored, and opined over objection as
to the meaning of certain CSLI data from the defendant's
cellular telephone.
In particular, McDonald opined that "[t]ypically, it[ is]
the closest cell[ular] site [to a device] that will handle [a]
signal" sent to or received from that device. Based on this, he
26
He did not state whether the suspect Caravan, like the
Caravan owned by the defendant's mother, was from model year
2000.
18
concluded, over objection, that a cellular telephone call made
from Calixto's address "would not reach [T-Mobile cellular site]
4449[]," which transmitted the two calls to Castro's number from
the defendant's number in the minutes after the shooting. The
defendant moved unsuccessfully to strike the latter testimony.
On cross-examination, the defendant elicited that McDonald did
not have engineering training or experience, and that, while
McDonald knew that "there are numerous factors that go into what
[cellular] site" a particular call will use,27 he did not "have
any information about [the effect those factors may have had] in
this case."
The next day, the Commonwealth played a recording of the
defendant's police interview for the jury. The recording was
presented without objection, with both parties agreeing to
certain redactions. The judge had expressed some concern about
parts of the recording at a hearing the day before the statement
was introduced. Defense counsel said that he had made a
tactical decision to have police accusations and denials
admitted in conjunction with the defendant's own words. The
redacted version of the defendant's statement, which was played
to the jury, included the detectives' theory of the case, their
27
These factors include the "power output" of the cellular
site, "topography," the presence of "manmade structures" between
the device and cellular site, "traffic on the particular cell
site," "the maintenance status of the particular sites," and the
"capacity of the phone" making or receiving the call.
19
statements accusing the defendant of involvement in the
shooting, and the defendant's denials of those accusations.
After the close of the Commonwealth's case, the defendant
moved for a required finding of not guilty. The motion was
denied. The defendant renewed the motion after the close of all
the evidence, and it was again denied. On August 2, 2013, the
jury found the defendant guilty of murder in the first degree.28
2. Discussion. Under the theory of murder presented at
trial, the Commonwealth was required to prove that the defendant
intentionally caused the death of the victim "with deliberate
premeditation . . . after a period of reflection." Model Jury
Instructions on Homicide 37 (2013). See Commonwealth v. Lao,
443 Mass. 770, 779 (2005), S.C., 450 Mass. 215 (2007) and 460
Mass. 12 (2011). Because the Commonwealth did not contend that
the defendant herself carried out the killing, but only that she
aided the coventurers, see G. L. c. 274, § 2 ("aid[ing]"
punished like act of "principal felon"), it was the
Commonwealth's burden to show that the defendant
(a) "participated in the commission of the crime charged,"
(b) did so "knowingly," and (c) "shared the required criminal
intent" (citation omitted). Commonwealth v. Britt, 465 Mass.
87, 100-101 (2013). In the circumstances here, this required a
28
The defendant did not file a motion for a new trial
pursuant to Mass. R. Crim. P. 30(b), as appearing in 435 Mass.
1501 (2001).
20
showing that the defendant was the driver of the suspect
vehicle, that she knew her passengers intended to kill the
victim, and that she shared this intent.
In evaluating whether the evidence at trial was sufficient
to support these elements, we "view the evidence presented in
the Commonwealth's case-in-chief in the light most favorable to
the Commonwealth and ask whether any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt." Commonwealth v. Simpkins, 470 Mass. 458, 461
(2015), citing Commonwealth v. Latimore, 378 Mass. 671, 677
(1979). "[C]ircumstantial evidence is sufficient to establish
guilt beyond a reasonable doubt," Commonwealth v. Miranda, 458
Mass. 100, 113 (2010), cert. denied, 132 S. Ct. 548 (2011),
S.C., 474 Mass. 1008 (2016), and inferences drawn from such
evidence "need only be reasonable and possible; [they] need not
be necessary or inescapable." Commonwealth v. Beckett, 373
Mass. 329, 341 (1977). Nonetheless, "it is not enough for the
appellate court to find that there was some record evidence,
however slight, to support each essential element of the
offense; it must find that there was enough evidence that could
have satisfied a rational trier of fact of each such element
beyond a reasonable doubt." Commonwealth v. Latimore, supra at
677-678. In addition, "[n]o[] . . . conviction [may] rest upon
the piling of inference upon inference or conjecture and
21
speculation" (quotations and citation omitted). Commonwealth v.
Swafford, 441 Mass. 329, 343 (2004) (Swafford).
Applying these standards, we conclude that the evidence was
insufficient to allow a rational juror to find, beyond a
reasonable doubt, either that the defendant participated in the
crime by driving the suspect vehicle or that she had the mental
state required for a conviction of murder in the first degree on
a theory of deliberate premeditation.
a. Participation. The Commonwealth maintains that there
was sufficient evidence to establish beyond a reasonable doubt
that the defendant drove the suspect vehicle. While "[t]here
was no direct evidence offered to prove this proposition, [the]
jury . . . could have found" the following. Swafford, supra
at 339. First, the defendant had motive to kill the victim, as
the victim owed the defendant money, had punched the defendant's
boy friend in the face, and had tried to sell back the boy
friend's tooth. Second, on the day of the shooting, the
defendant drove her mother's Dodge Caravan, the same make and
model as the suspect vehicle, and arrived in that Caravan at
Calixto's house about twenty minutes after the shooting. Third,
multiple calls were exchanged between the defendant's cellular
telephone number and those of Castro and Stackermann in the
22
hours before the shooting.29 In addition, no calls were made
from her number during a fifteen-minute interval around the time
of the shooting, two calls were made from her number to Castro's
in the minutes after the shooting, and these latter two calls
were transmitted through cellular site 4449, the one closest to
the crime scene.30 Fourth, the defendant may have displayed
consciousness of guilt by claiming to have arrived at Calixto's
house around the time of the killing, rather than, as Calixto
testified, fifteen minutes later; by claiming not to have known
Javier's friends; and by documenting her whereabouts on the day
of the killing before being asked by police to do so. In
essence, then, the Commonwealth contends that the verdict was
properly based on evidence of (a) motive, (b) the involvement in
the crime of the defendant's telephone and her mother's vehicle,
and (c) consciousness of guilt.
The jury's determination that the defendant was the driver
of the suspect vehicle could have been based on the following
inferences from this evidence. First, they might have inferred
that the defendant's motive to kill the victim impelled her
29
Stackermann, in turn, could be tied to the killing by an
inference that he left the murder weapon with Medina, who then
turned it over to police. Castro may be connected to the
killing by evidence that someone calling from his cellular
telephone number requested a taxi pick-up two blocks from the
crime scene minutes after the killing.
30
See note 15, supra.
23
actually to do so. This inference, by itself, would not have
been sufficient to support a conviction because, while existence
of motive may make a defendant's participation more likely, see
Commonwealth v. Henderson, 47 Mass. App. Ct. 612, 613 (1999)
(conviction as coventurer supported by evidence that defendant
"had a quarrel with" victim), it cannot be the sole basis for
proving such participation. "That [a defendant] . . . had a
motive to commit the crime does not . . . mean that he did
commit the crime." Swafford, supra at 339.
The jury also reasonably could have inferred consciousness
of guilt. However, even if motive and consciousness of guilt
are combined, they are insufficient to establish beyond a
reasonable doubt that the defendant was the driver, because
"evidence of motive and consciousness of guilt is [not]
sufficient to withstand [a] defendant's motion for [a] required
finding of not guilty."31 Commonwealth v. Mazza, 399 Mass. 395,
398 (1987).
31
See Commonwealth v. Toney, 385 Mass. 575, 584-585
(1982), and cases cited (acts suggesting consciousness of guilt
insufficient to convict because such acts "may often be prompted
by something other than feelings of guilt"). Here, the
instruction on consciousness of guilt stated that "the
defendant may have intentionally made certain false statements"
to police about when she arrived "at Ashley Calixto's home."
While the statement in question -- that, at 6 P.M., the
defendant "was probably on my way to [Calixto's] or in the
process of getting there or something" -- could have been a
deliberate attempt to conceal her own involvement, it also could
have been "prompted by something other than feelings of guilt."
24
The jury properly could have convicted the defendant, then,
only if the evidence of motive and consciousness of guilt were
supplemented by other indications that the defendant was the
driver of the suspect vehicle. The Commonwealth points to
evidence that the defendant's vehicle and cellular telephone
were involved in the shooting, and argues that this suffices "to
tip the scales in [its] favor." See Swafford, supra at 342. We
consider the evidence with respect to each in turn.
i. Vehicle. The evidence with regard to the defendant's
mother's vehicle could have led a reasonable juror to find that
the defendant drove the suspect vehicle only if that juror were
willing to "pil[e] . . . inference upon inference." See id.
at 343. First, the juror would have had to infer that the
suspect vehicle was, in fact, the minivan that belonged to the
defendant's mother. While this would have been a reasonable
conclusion to draw, as both were Dodge Caravans, it still would
have involved an "inferential leap," id., because the
Commonwealth's expert did not state that he had been able to
Id. at 585. For example, it might have been an imprecise
estimate or an effort to cover up actions by other people, such
as her boy friend Javier or his friends. See id. ("defendant
could have been absent from her home and place of work for
reasons consistent with her innocence: she may have wanted to
avoid disclosing the whereabouts of her sister").
25
match the individual characteristics of the two automobiles.32
Second, once the juror inferred that the suspect vehicle was the
defendant's, he or she would have had to infer, further, that
the defendant was the one driving it.
The Commonwealth argues that it is permissible to assume
"that the owner[33] of an automobile is . . . the driver." See
id. at 340-341. While "we recognize this logic," it does not
allow the jury to conclude beyond a reasonable doubt that the
defendant was driving, absent some "evidence to suggest that it
is unlikely [the defendant] would have permitted someone else to
drive [her] automobile."34 Id. at 341 and cases cited ("we
32
The Commonwealth's vehicle expert also did not provide
any testimony about how likely it was that a given vehicle in
the area would be a Dodge Caravan. Such vehicles were not
necessarily uncommon. Indeed, the victim's vehicle also was a
Dodge Caravan. Cf. Commonwealth v. Mattei, 455 Mass. 840, 855
(2010) ("nonexclusion" testimony that two DNA samples could be
same, or could not, is of minimal probative value "without
accompanying statistical explanation of the meaning of
nonexclusion").
33
The defendant's mother was named as the insured in the
policy covering the Dodge Caravan the defendant drove, and
apparently used it to commute to work, but also frequently
allowed the defendant to drive it.
34
This evidence might consist, for example, of testimony
that the vehicle was rarely seen being driven by anyone other
than the defendant. See Commonwealth v. Swafford, 441 Mass.
329, 341 & n.17 (2004). The Commonwealth suggests that such
evidence was present here because the defendant answered "Mmm
hmmm," when the detectives asked her whether she was the only
person driving the Caravan that day. This inconclusive response
could not have been intended as a categorical statement that no
one else drove the Caravan, however, as the defendant stated in
26
cannot say that [this logic] supports the Commonwealth's
conclusion beyond a reasonable doubt" because "concept of
automobile owners permitting friends or associates to drive
their automobiles certainly is not unusual in common experience
or in our cases"). Here, there was no evidence that the
defendant maintained exclusive use of her mother's minivan. To
the contrary, in addition to evidence of the defendant's
mother's use of the vehicle, there was evidence that Javier
drove the Caravan twice on the day of the shooting without the
defendant in the vehicle, and once with the defendant as a
passenger.35
the same interview that Javier drove the vehicle shortly before
the victim's offer to sell back Javier's tooth. Compare id. at
341 n.17 (defendant's "sister [stated that she] 'never saw the
automobile without defendant . . . ,' thereby suggesting that
[defendant] did not permit others to drive his automobile," but
"this suggestion is belied by the Commonwealth's evidence that
[defendant] asked his sister to [drive] the automobile" on one
particular occasion).
35
The Commonwealth notes that the defendant was in her
Caravan approximately twenty minutes after the shooting, when
she and Javier arrived at Calixto's house, allowing an inference
that she had been in the vehicle twenty minutes earlier, when
the shooting occurred. While perhaps reasonable, this
"inferential leap[]" cannot sustain a conviction beyond a
reasonable doubt. See Swafford, supra at 343. The total
distance from the scene of the shooting to Calixto's house --
including a stop at Javier's house, where the defendant told
police she had been before she left to visit Calixto -- is
slightly more than four miles. The distance from the scene
directly to Calixto's house is also approximately four miles.
Thus, even if the defendant's minivan had been used to drop off
the coventurers, she could have been picked up after the
shooting on the way to visit Calixto.
27
ii. Cellular telephone. A similar "piling of inference
upon inference" would have been required for a reasonable juror
to tie the defendant to the crime via her cellular telephone.
See Swafford, supra at 343. To find proof of guilt in the calls
between the defendant's cellular telephone number and those of
Castro and Stackermann, a juror would have had to infer that
Stackermann and Castro were involved in the shooting;36 that the
content of these calls related to the shooting; and that the
defendant herself was the one making and receiving the calls.
This latter inference, although reasonable and probable, is
weakened by testimony from the Commonwealth's witnesses that
Javier used the defendant's cellular telephone multiple times on
the day of the shooting. See id. at 341 ("the presence of an
item does not require the presence of its owner").
With regard to the CSLI evidence, the jury would have had
to infer, first, that the defendant was in possession of her
cellular telephone at the time the CSLI was recorded. As
mentioned, this inference, while reasonable, is weakened by
evidence of Javier's use of her device. Second, they would have
had to infer, from evidence of transmissions through particular
cellular sites, that the defendant was at or near the crime
scene. In this regard, the Commonwealth focuses on calls to and
from the defendant's device transmitted through T-Mobile
36
See note 29, supra.
28
cellular site 4422, located approximately eight-tenths of a mile
from the scene, seven minutes before the shooting. This
evidence, however, establishes little. On the day of the
shooting, twenty-three other calls to and from the defendant's
telephone number were transmitted through that cellular site,
none of them at times when the Commonwealth maintains that the
defendant was near the scene of the shooting. Indeed, many of
those calls were made when the Commonwealth apparently agrees,
as the defendant asserts, that she was at home.
Similarly, the Commonwealth points to two calls made in the
minutes immediately after the killing, both of which were
transmitted through T-Mobile cellular site 4449, the one closest
to the scene. This, too, proves little, as records show that
calls to and from the defendant's number were transmitted
through that same cellular site six other times on the day of
the shooting. The Commonwealth does not claim that, at these
other times, the defendant was at the scene of the killing, and
it appears undisputed that two of the calls took place when the
defendant was at home.
Moreover, while the Commonwealth's witness testified that
"[t]ypically, it[ is] the closest cell site [to the cellular
telephone] that will handle [a] signal," he stated that there
were "numerous" other factors that affected the determination
which cellular site would be used. He also testified that he
29
had not investigated what effect such factors might have had in
this case, that he did not have the engineering expertise to do
so, and that any knowledge he had on the topic came from working
with engineers and hearing presentations from them.37
iii. Analysis. Given the totality of the evidence, the
jury could have inferred that the defendant's vehicle was
involved in the shooting because it, like the suspect vehicle,
was a Dodge Caravan. The jury also might have inferred that the
defendant's cellular telephone was involved, based on the calls
to Castro and Stackermann. The jury were not permitted,
however, to build further inferences on top of these. See
Swafford, supra at 343. See also Commonwealth v. Mandile, 403
Mass. 93, 94 (1988) (Mandile) ("No[] conviction [may] rest upon
the piling of inference upon inference or conjecture and
37
While McDonald's testimony appears generally to have been
admissible, this is not without some doubt with respect to two
of his opinions. Those opinions -- that calls "typically" are
transmitted through the closest cellular site, and that a call
from Calixto's address was unlikely to have been transmitted
through cellular site 4449 -- were objected to by the defendant
and may well have required a witness with greater technical
expertise. See Blank, The Limitations and Admissibility of
Using Historical Cellular Site Data to Track the Location of A
Cellular Phone, 18 Rich. J. L. & Tech. 1, 3, 6-7, 20 (2011) (at
least fourteen factors determine cellular site use; court should
not "allow[] . . . lay witness to testify to the intra-cell site
position of a phone user because the testimony requires
specialized knowledge that relates to the scientific and
technological features of cell sites"). See also Cherry,
Imwinkelreid, Schenk, Romano, Fetterman, Hardin, & Beckman, Cell
Tower Junk Science, 95 Judicature 151, 151 (2012) ("data from a
single cell phone tower" not adequate to place caller "within a
mile -- or five miles -- or ten miles -- of the tower").
30
speculation"); Mazza, supra at 399 (while "[a] fair inference
may be drawn that the defendant called the victim . . . and
arranged to meet him" at time of murder, we cannot "further
infer that the defendant [actually] went" and met victim).
In other words, the jury were not entitled, on this
evidence, to infer that, if the defendant's minivan and
telephone were involved in the killing, the defendant herself
was, too. Such an inference is particularly problematic in
light of evidence that her vehicle and cellular telephone were
borrowed by Javier at various points on the day of the
shooting.38 Swafford, supra at 341-342. That the defendant also
had motive and may have displayed consciousness of guilt does
not "tip the scales" and allow a different conclusion. See
Swafford, supra at 342; Mazza, supra 398-400 (jury is not
"permitted to [build] inference upon inference" even where there
is "evidence of motive and consciousness of guilt" because those
may not be used to "obscure the fact that the Commonwealth's
proof failed").
Ultimately, the facts of this case are similar to those in
Swafford, supra at 331, 339, where the defendant was accused of
having been the driver in a drive-by shooting. Evidence at
38
In Swafford, supra 341 n.17, the evidence on a similar
issue showed that the defendant's sister drove an automobile on
one occasion four months after the shooting. Here, by contrast,
there is evidence that Javier drove the vehicle on three
occasions within twenty-four hours of the shooting.
31
trial showed that the defendant in that case "had a motive to
seek retribution" from the victims, id. at 339; had spent time
with the shooter in the hours before the killing, id. at 339-
340; was the owner of the vehicle used in the shooting, id. at
340-341; and had "demonstrat[ed] . . . consciousness of guilt"
by altering the appearance of his vehicle a few months after the
shooting. Id. at 342. We reversed the conviction because this
evidence "established that [the defendant] had a motive to
commit the shooting, and that he could have been the driver,
but . . . [did] not establish beyond a reasonable doubt that he
was in the driver's seat."39 Id. at 343.
39
The Commonwealth argues that the evidence is stronger
here than in Swafford because, in that case, there was no video
recording of the suspect vehicle and no evidence linking the
defendant's cellular telephone to the crime. In that case,
however, there was other evidence that is lacking here:
witnesses who described the gender and race of the driver (here,
there was no evidence as to either), who identified the
passenger-shooter by name (here there was no direct evidence of
the identities of the passenger-coventurers and the video
recording did not show any facial features), and who described
the color of the suspect vehicle's exterior, as well as the tint
of its windows (here the black-and-white video recording showed
only the vehicle's make and model). See id. at 331. Moreover,
as noted, supra, the indications were more substantial here than
in Swafford that someone else, namely Javier, used the
defendant's vehicle and telephone on the day of the shooting.
See note 34, supra.
The Commonwealth also contends this case is comparable to
Commonwealth v. Henderson, 47 Mass. App. Ct. 612 (1998), where
the Appeals Court sustained convictions of assault with intent
to murder on a theory of joint venture, and assault and battery
by means of a dangerous weapon, under assertedly similar
circumstances. There, however, there was direct evidence that
32
Here, too, the evidence shows that the defendant had motive
to kill the victim, that her possessions (vehicle and cellular
telephone) were involved in the killing, and that she displayed
consciousness of guilt. This establishes that she could have
been the driver of the suspect vehicle -- indeed, that this was
more likely than not to have been the case -- but it does not
allow that conclusion to be drawn beyond a reasonable doubt.40
b. Mental state. As mentioned, the defendant was
convicted on the basis that she knowingly, and with deliberate
premeditation, aided the coventurers in the commission of
murder, i.e., that she was the perpetrators' "joint venturer."
See, e.g., Commonwealth v. Britt, 465 Mass. 87, 96-97 (2013).
In order to convict the defendant on this theory, the
Commonwealth was required to prove, beyond a reasonable doubt,
not only that the defendant drove the suspect vehicle, but that
the killing took place two minutes after the defendant's quarrel
with the victim, that the defendant drove the suspect vehicle,
and that the shooter brandished a gun in view of the defendant.
Id. at 612-613.
40
Cf. Commonwealth v. Morris, 422 Mass. 254, 255, 256, 259
(1996) (defendant's fingerprint found on mask dropped at scene
by one of five perpetrators, witness stated "that the intruder
wearing the . . . mask might have resembled the defendant,"
defendant's mother owned "vehicle that resembled . . . one seen
leaving the crime scene," and defendant had "association with
two people who could have been found to" be perpetrators; while
"jury could have reasonably inferred that the defendant had been
involved with the [the perpetrators] and that he might have been
one of the intruders," "evidence [did] not . . . warrant such a
conclusion beyond a reasonable doubt").
33
she knew her passengers intended to kill the victim and that she
shared their intent. See Commonwealth v. Nolin, 448 Mass. 207,
217 & n.11 (2007). While such "[m]atters . . . are rarely
proved by direct evidence and are most often proved
circumstantially" (citation omitted). Commonwealth v. Rosario,
83 Mass. App. Ct. 640, 643 (2013), the circumstantial evidence
may not consist solely of a "show[ing] that the defendant . . .
was present when the crime was committed," even if that showing
is supplemented by evidence that the defendant "knew about [the
crime] in advance." Commonwealth v. Zanetti, 454 Mass. 449, 470
(2009) (Appendix) ("Presence alone does not establish a
defendant's knowing participation in the crime, even if a person
knew about the intended crime in advance and took no steps to
prevent it"). Rather, there must be some additional proof that
the defendant "consciously . . . act[ed] together [with the
principals] before or during the crime with the intent of making
the crime succeed." Id.
The Commonwealth points to five indications that the
defendant knew of and shared the coventurers' lethal intent.
First, the defendant had motive. See Commonwealth v. Simpkins,
470 Mass. 458, 461 (2015) ("evidence of motive" helps
"demonstrate the requisite intent"). Second, the defendant
planned her visit to Calixto's house hours before the killing,
suggesting, perhaps, intent to use the visit as an alibi.
34
Third, multiple calls were exchanged between the defendant's
cellular telephone and those of Castro and Stackermann in the
hours before the shooting, suggesting that those three people
were planning the crime. Fourth, the perpetrators carried out
the shooting immediately after leaving the suspect vehicle,
suggesting that the driver dropped them off knowing their
purpose. Contrast Mandile, supra at 101 ("murder here occurred
after the passenger had [left vehicle and] been alone with the
victim for close to fifteen minutes" such that "no shared intent
can be drawn from [defendant's] knowledge of the circumstances"
[quotation and citation omitted]). Finally, the driver of the
suspect vehicle did not immediately drive away after dropping
off the perpetrators, but instead turned onto a side street,
executed a three-point turn, and then headed back toward the
main road to continue on the original course. This maneuver,
the Commonwealth argues, had the purpose of "buy[ing] some time"
until the killing could be completed, so that the driver could
retrieve the perpetrators.41
This evidence does not suffice to establish beyond a
reasonable doubt that the defendant knew of and shared the
41
Evidence of consciousness of guilt is, appropriately, not
cited to prove intent. Commonwealth v. Lowe, 391 Mass. 97,
108 n.6, cert. denied, 469 U.S. 840 (1984) (consciousness of
guilt evidence, "while relevant to the issue whether a criminal
homicide was committed, is not evidence of malice
aforethought").
35
coventurers' intent. First, the Commonwealth's arguments
require the "piling of inference upon inference." See Swafford,
supra at 343. They take as initial assumptions both that the
defendant drove the suspect vehicle and that she participated in
the calls with Castro and Stackermann -- assumptions that, as
discussed supra, are themselves based on a series of
"inferential leaps" -- and then ask that the jury be allowed to
draw further inferences on the basis of those assumptions.
Second, even assuming, as the Commonwealth contends, that
the defendant knowingly participated in the attack, there was no
evidence that she knew of or shared the coventurers' intent that
the attack be deadly, as required for a conviction of
deliberately premeditated murder by way of joint venture. The
fact that the attack ended up being deadly does not, by itself,
prove that the defendant intended this result. See Commonwealth
v. Walsh, 407 Mass. 740, 742, 743 (1990) (minutes before attack
on victim, defendant warned "there was going to be trouble," and
defendant and coventurer then spoke privately "for a few
minutes," apparently planning attack; "jury could only have
speculated" based on this evidence that defendant "knew that
[coventurer] intended to kill" victim); Mandile, supra
(insufficient evidence where defendant drove shooter to scene,
knew shooter was armed, drove getaway vehicle, and attempted to
36
conceal crime, but where there was no indication that he knew
shooter intended to kill victim).
Where a defendant is tried on the theory that she committed
deliberately premeditated murder by way of a joint venture,
proof that the defendant knew of and shared her coventurers'
lethal intent is crucial, and may come from a variety of
sources. In this case, however, no evidence from any such
sources was introduced. In some cases, there is direct evidence
that a defendant intended that the victim be killed. See, e.g.,
Commonwealth v. Woods, 466 Mass. 707, 711, 713-714, cert.
denied, 134 S. Ct. 2855 (2014) (defendant, who was not shooter,
had made "threats to shoot [or kill] the victim"); Commonwealth
v. Marrero, 459 Mass. 235, 248 (2011) ("defendant said, 'I'm
going to kill you'"). In other cases, knowledge and intent are
inferred from a defendant's actions, if those actions, by their
very nature, demonstrate lethal intent. This often occurs when
a defendant brings a gun to the scene of the killing, but does
not herself fire the fatal shot. See, e.g., Commonwealth v.
Tavares, 471 Mass. 430, 432-433 (2015) (defendant brought gun to
scene, chambered bullet, and pointed it at victim's companions;
fatal shots fired by coventurer); Commonwealth v. Rosa, 468
Mass. 231, 233-234 (2014) (defendant, one of three shooters,
seen holding and firing gun at victim); Commonwealth v. Keo, 467
Mass. 25, 29-30, 39 (2014) (defendant supplied gun, but "no one
37
saw and could identify the [actual] shooter"); Commonwealth v.
Britt, 465 Mass. 87, 88-89 (2013) (defendant brought gun to
scene and fired); Commonwealth v. Beneche, 458 Mass. 61, 70-71
(2010) (before killing, defendant told victim "goodbye forever";
defendant participated in suffocating victim; not clear if
deadly force applied by him or coventurer).
In yet other cases, intent has been inferred from evidence
that a defendant (a) observed a coventurer demonstrate or
express lethal intent (e.g., by producing a gun) and
(b) thereafter took some step to help carry out that intent.
See Commonwealth v. Longo, 402 Mass. 482, 486 (1988) ("jury may
infer the requisite mental state [for a joint venture] from the
defendant's knowledge of the circumstances and subsequent
participation in the offense" [quotation and citation omitted]).
For example, in Commonwealth v. Newson, 471 Mass. 222, 226-228
(2015), the defendant saw his coventurer carry and use a gun
earlier on the night of the killing, and thereafter drove the
coventurer to the site of the fatal shooting. Similarly, in
Commonwealth v. Reaves, 434 Mass. 383, 386-387, 392-393 (2001),
the defendant was present for the planning of a drive-by
shooting while guns were on a nearby couch, rode in the vehicle
with the shooters during the killing, and assisted in disposing
of the weapons thereafter. See Commonwealth v. Norris, 462
Mass. 131, 133-135, 140 (2012) (defendant saw that coventurer
38
had gun, made "move . . . that the jury reasonably could have
inferred was designed to allow [coventurer] to take a shot" at
victim, and kicked victim in face after victim was shot).
Here, no similar types of evidence were introduced. There
was no direct evidence of the defendant's mental state. Nor was
there was any indication that the defendant acted in a way
inherently demonstrating lethal intent. Finally, there was no
evidence that she heard the perpetrators express lethal intent,
or that she saw them do anything to demonstrate such intent
(e.g., displaying weapons) before they were dropped off at the
scene of the shooting.42 On this evidence, even assuming that
the defendant was the driver, and even assuming further that she
was involved in planning an attack of some sort on the victim,
it cannot be said beyond a reasonable doubt that she knew of and
42
The jury had no information, for example, whether the
coventurers displayed weapons while in the vehicle. Nor could
an inference of such knowledge have been drawn from the
conversations alleged to have taken place between her, Castro,
and Stackermann, since the contents of those conversations were
not before the jury.
Nonetheless, the concurrence argues that the existence of a
strong motive was a "sufficient basis," standing alone, "on
which the jury could infer that [the defendant] shared the
murderous intent of her passengers." Post at . The presence
of motive, however, merely strengthens the inference that the
defendant intended to participate in an attack of some sort. It
does not indicate that the defendant knew of and shared her
coventurers' intent that the attack be deadly.
39
shared her passengers' lethal intent.43 See Commonwealth v.
Simpkins, 470 Mass. 458, 461-462 (2015) (evidence that defendant
helped shooters before killing and was accessory after fact did
not necessarily imply "knowing participation . . . in the
shooting itself or in the planning thereof").
3. Conclusion. In sum, while the evidence at trial
established the possibility, perhaps even the probability, that
the defendant was the driver of the suspect vehicle, and that
she may have shared the intent that the victim be killed, it did
not allow a rational juror to so conclude beyond a reasonable
doubt. Accordingly, the judgment is reversed, the verdict is
set aside, and the case is remanded to the Superior Court for
entry of a judgment for the defendant.
So ordered.
43
Similarly, in Commonwealth v. Mandile, 403 Mass. 93, 100
(1988), we held that there was insufficient evidence of intent
where "the defendant (1) participated in stealing guns to aid in
the commission of some future offense; (2) was present during
the commission of the murder; (3) knew the passenger was armed,
(4) was the driver of a getaway car; and (5) attempted to
conceal the crime through both the disposal of the murder weapon
and inconsistent statements to the police." On this evidence,
it was not "shown that [the defendant] intentionally assisted
[the shooter] in the commission of the crime and that he did
this, sharing with [the shooter] the mental state required for
that crime" (citation omitted). Id. at 101.
 CORDY, J. (concurring in part and in the judgment). I
agree that the evidence regarding whether the defendant was the
driver of the Dodge Caravan minivan that transported and dropped
off four individuals (at least two of whom were armed with
firearms) across the street from the victim's parked minivan,
where seconds later they murdered him, may not have been
sufficient to allow a rational jury to conclude that fact beyond
a reasonable doubt. Consequently, I concur in the reversal of
her conviction. I disagree, however, with the court's further
and unnecessary conclusion, that even were the evidence adequate
on that point, there was not a sufficient basis on which the
jury could infer that she shared the murderous intent of her
passengers.1
In my view, the evidence at trial firmly established an
intense animosity between the defendant and her boy friend (one
of the shooters) and the victim, an animosity that was in part
related to money owed to the defendant by the victim -- a debt
that was overdue and contentious, and that had been the subject
of "loud conversation" between the boy friend and the victim on
the day of the shooting. Indeed, on that same day, the
defendant and her boy friend had at least four hostile
1
I am aware that, of the four defendants charged in this
murder, only two were convicted: Joel Javier (murder in the
first degree) and Yoshio Stackermann (murder in the second
degree).
2
encounters with the victim. At approximately 2 A.M., the victim
knocked the boy friend's tooth out in a fight in the presence of
the defendant. The boy friend pulled out a knife during the
fight, and after getting punched and losing his tooth, threw his
cellular telephone at the victim. He then told the defendant
that it "was not going to stay like that," after which he drove
away. Later that day, while the defendant was driving her boy
friend around, the victim drove his minivan head on toward her
in an attempt to drive her vehicle off the road. Still later
that afternoon, the victim showed up at the boy friend's house
and taunted the defendant and the boy friend's mother -- saying
he was "carrying [her boy friend's] tooth" and would sell it
back "for a hundred bucks."
This obviously did not sit well with either the boy friend
or the defendant, and between 2 P.M. and 5:30 P.M., six
telephone calls were made on the defendant's cellular telephone
to Yoshio Stackermann to round up some friends. Between 5:41
P.M. and 5:57 P.M., the defendant (assuming it was she) was
driving the boy friend and his three-man posse (in her mother's
vehicle) in search of the victim. When they observed him in his
parked vehicle, the defendant stopped the vehicle across the
street. The four passengers jumped out and within seconds fired
at least twelve shots at the victim and his vehicle, killing
him. They then fled on foot. The defendant drove around the
3
block, picked up her boy friend, and proceeded on to her
brother's girl friend's house where they had planned to visit.
In sum, if the evidence had been sufficient to establish
her role as the driver, it would have been sufficient to
establish her role as a joint venturer in the murder plot.