Heard: December 11, 2015.
found and returned in the Superior Court Department on June 2
case was tried before Mary K. Ames, J.
F. Shaw, Jr., for the defendant.
F. 0'Sullivan, Assistant District Attorney, for the
Present: Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ.
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 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
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.
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
2008, the defendant, then nineteen years old and living with
her mother in Methuen, sold a Honda Civic automobile to the
victim, Robert Gonzalez. The victim made a partial payment for
the vehicle, but, as of January, 2009, there was an
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. The defendant, Javier, and Stackermann
left the party together 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.
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
spotted the victim's vehicle, also a Dodge
Caravan. 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
"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.
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 and causing
him to drop the knife. Javier spit out the tooth, and one of
the three men with the victim picked it up.
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.
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."
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 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."
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
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.
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.,  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 worked with Javier
at a local snow-shoveling business. 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
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.At 5:51 P.M., a call to the
defendant's number was transmitted from T-Mobile cellular
site 4422. 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.
events immediately surrounding the shooting, between 5:57
P.M. and 5:58 P.M., were recorded by four surveillance
cameras mounted on a house near the intersection
of Haverhill Street and Hampton Street in
Lawrence. 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
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 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
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. 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. The four individuals
fled, heading south away from Haverhill Street. This entire
course of events ended approximately thirty seconds after the
individuals were dropped off.
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.
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.
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. 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 through T-Mobile
cellular site 4160, located less than one mile from the scene
of the shooting.
"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. 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.
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 also was examined for fingerprints
and traces of deoxyribonucleic acid (DNA). A fingerprint
belonging to Medina was recovered, as was one belonging to an
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
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." When they asked her who of Javier's
friends might have been connected to the shooting, she
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
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
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.
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. They also conducted forensic testing, but did not
find "any evidence, " such as fingerprints, ...