Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Commonwealth v. Gonzalez

Supreme Judicial Court of Massachusetts, Essex

September 6, 2016


          Heard: December 11, 2015.

         Indictment found and returned in the Superior Court Department on June 2 9, 2011.

         The case was tried before Mary K. Ames, J.

          Robert F. Shaw, Jr., for the defendant.

          David F. 0'Sullivan, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ. [1]

          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 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.

          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]

         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 together[5] 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 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 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 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]

         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 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 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 cameras[17] 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 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 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 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 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 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. They also conducted forensic testing, but did not find "any evidence, " such as fingerprints, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.