Heard: April 8, 2016.
found and returned in the Superior Court Department on May 2,
cases were tried before Raymond J. Brassard, J.
Keighley for the defendant.
K. Anderson, Assistant District Attorney (Julie Sunkle
Higgins, Assistant District Attorney, & Gretchen Lundgren
with her) for the Commonwealth.
Present: Gants, C.J., Spina, Botsford, Duffly, & Hines,
December, 2010, a Superior Court jury convicted the
defendant, Joseph Gomes, of murder in the first degree and of
various related offenses involving the use of a dangerous
weapon. The charges arose from a drive-by shooting incident
that took place in Boston on February 13, 2007, leaving
Fausto Sanchez dead and several other young men wounded.
direct appeal from his convictions, the defendant argues that
the judge erred by (1) denying his motion for a required
finding of not guilty; (2) admitting in evidence certain
items, including drugs, cash, and guns, that were seized from
an apartment building owned by his parents; (3) permitting
jurors to pose questions to witnesses, three of which were
prejudicial; (4) admitting or excluding certain testimonial
evidence; and (5) declining to instruct the jury on the
theory of transferred intent. The defendant also requests
relief pursuant to G. L. c. 278, § 33E. We affirm the
defendant's convictions and decline to grant relief
pursuant to § 33E.
summarize the trial evidence in the light most favorable to
the Commonwealth. See, e.g., Commonwealth v.
Whitaker, 460 Mass. 409, 410 (2011).
February, 2007, several members of the Gomes and DaSilva
families lived in the same apartment building on Langdon
Street in the Roxbury section of Boston. The defendant's
parents owned the building and lived in an apartment on the
second floor; the defendant's sister, brother-in-law, and
nephew, Anthony DaSilva, lived in the first-floor apartment.
Anthony and the defendant's original codefendant,
Emmanuel DaSilva, are cousins. Neither Emmanuel nor the
defendant lived in the Langdon Street building. On the
morning of February 13, 2007, Anthony walked out of his home;
as he approached his vehicle, he noticed a black Buick
automobile (Buick) stopped at the intersection of George
Street and Langdon Street. As the Buick, a rented vehicle,
proceeded slowly down George Street, its driver, David Evans,
was looking at Anthony. Shortly thereafter, while Anthony was
sitting in his own vehicle, he saw the Buick again, this time
driving fast and making a turn onto Langdon Street. Anthony
drove off quickly and circled the block; Evans followed him
in the Buick. When Anthony returned to the area in front of
the Langdon Street building, he parked and ran quickly inside
the building with his father, who had been standing right
outside the building's door, after which they both heard
gunshots being fired. A neighbor also heard the gunshots,
looked out of her bedroom window, and saw a man chasing the
Buick and firing several shots at it before running to the
Langdon Street building. Later the same day, Evans, who had
rented the Buick, returned it to the rental agency with
damage to a tire consistent with being struck by a
bullet. Evans then rented a silver Nissan
Maxima automobile with New Hampshire license plates.
after 9 A.M., Boston police officers responded to Langdon
Street. The defendant, who had arrived at the Langdon Street
building within fifteen minutes of when police were
dispatched there, was met by police who permitted him to
enter the building to check on his parents. At approximately
10 A.M., after the defendant had become upset and
argumentative with the police, officers escorted him out of
the building in handcuffs but, thereafter, released him and
permitted him to leave. The defendant drove away from Langdon
Street in a rented silver Chevrolet Impala automobile with
New Hampshire license plates. He returned in the same Impala
to Langdon Street at some point later in the day.
on the report that an armed gunman had run into the Langdon
Street building, police officers cleared the building of all
its residents. Four young men were removed from the common
basement of the building, arrested, and charged with breaking
and entering. Police officers secured the apartment
building while they waited for a search warrant to be
obtained, and no residents were permitted to return. While
waiting, members of the Gomes and DaSilva families stayed in
their own automobiles for what amounted to many hours, given
that the police did not obtain the search warrant and conduct
the search of the building until 10 £.M. that night.
During the afternoon, the defendant's brother-in-law as
well as one or more police officers observed Evans's
Maxima drive by the building.
lived on Maywood Street in Roxbury. At around 6 £.M. of
the same day, Sanchez and several other young men -- Roberto
Ramos-Santiago, Joel Perez, Ikim Lobban, Maurice Cundiff,
Donnell Grady, and Rodney Hoyte -- were standing together on
the porch and sidewalk near a house on Maywood Street, across
the street from Evans's house. Evans's rented Maxima
was parked along the sidewalk near the group.
time, the defendant drove the Impala quickly down Maywood
Street and stopped abruptly when the vehicle reached the
group. Shots were fired from the open front and back windows
on the passenger side of the Impala at the men in the group.
When the shooting ceased, the defendant sped off in the
Impala toward Blue Hill Avenue. Within minutes, Boston police
officers responded to the scene and discovered Sanchez and
several additional shooting victims. Sanchez was shot one
time in the lower back. He was transported to a hospital
where he arrived in cardiac arrest and was pronounced dead
shortly thereafter. The cause of death was blood loss due to
the gunshot wound. During the autopsy, fragments of a copper
jacket and lead core were recovered from his abdomen.
Ramos-Santiago sustained multiple gunshot wounds to his back
and arm. He also was transported to a hospital where a bullet
was removed from his arm. Perez was shot in his right calf,
and Cundiff fractured his arm when he jumped over a fence to
escape the gunfire. At the scene, Perez told a police officer
that the shooters were in a gray, four-door, newer model
Chevrolet Impala, and this description was broadcast over the
officers recovered one spent .380 caliber shell casing along
the curb of the sidewalk in front of the Maywood Street house
and one spent .38 caliber bullet from the kitchen floor of a
home on Savin Street; that bullet had entered through a rear
window that faced Maywood Street. In the meantime, shortly
after 6 P.M., a detective who was driving to the Maywood
Street scene observed a Chevrolet Impala that matched the
description of the vehicle given by witnesses. The defendant
was the driver, and Emmanuel the front seat passenger. The
detective stopped the defendant's vehicle. Additional
police officers arrived within seconds. Emmanuel and the
defendant were taken into police custody, and the Impala was
towed from the scene. Officers thereafter searched the Impala
pursuant to a warrant and discovered six spent .380 caliber
shell casings on the front passenger side, two on the seat
and four on the floor. There also was a piece missing from
the vehicle's passenger side mirror.
guns, a .38 revolver and a .380 semiautomatic pistol, were
used in the Maywood Street shooting. The .38 caliber
bullet recovered from the kitchen floor on Savin Street and
the .38 caliber bullet recovered from Ramos-Santiago's
arm were fired from the same gun. In addition, the spent .380
caliber shell casing found on Maywood Street and the six .380
caliber shell casings found inside the Impala were fired from
the same gun. The bullet fragments removed from Sanchez's
body were inconsistent with a .380 caliber bullet, and
Detective Tyrone Camper, the Commonwealth's ballistics
witness, was unable to determine whether the fragments were
consistent with a .38 caliber bullet. Neither a .38 revolver
nor a .380 semiautomatic pistol was recovered in connection
with this case.
around 10 £.M., Boston police officers executed a
search warrant at the Langdon Street building. In the
first-floor apartment, officers found mail dated May, 2006,
and addressed to the defendant there; two bags of marijuana;
two electronic scales; and $7, 447 in cash found hidden in
the headboard of a bed. In the basement, police officers
found personal papers, some of which belonged to the
defendant; "crack" cocaine; marijuana; $545 in
cash; a red hooded sweatshirt; a .25 caliber firearm and a
.22 caliber firearm, each loaded with six rounds of
ammunition; a nine millimeter firearm loaded with eight
rounds of ammunition; and a .380 caliber Mauser semiautomatic
firearm containing no ammunition., 
2, 2007, a grand jury returned indictments charging the
defendant with murder in the first degree, six counts of
armed assault with intent to murder; assault and battery by
means of a dangerous weapon, aggravated assault and battery
by means of a dangerous weapon, four counts of assault by
means a dangerous weapon, possession of a firearm without a
license, and possession of ammunition without a firearm
identification card. Trial before a jury began in November,
2010. The Commonwealth's theory at
trial was that the defendant was guilty of the charged
offenses as a joint venturer with Emmanuel to carry out the
Maywood Street shooting in an attempt to retaliate against
Evans for pursuing and frightening Anthony and causing the
extended police occupation of the family's apartments.
The defense theory was a combination of mistaken identity
where the vehicle driven by the defendant did not match the
eyewitness descriptions of the assailants' vehicle, and
that the defendant did not knowingly participate with
Emmanuel in a joint venture with the specific intent to kill
Sanchez or to commit the other crimes.
December 13, 2010, the jury found the defendant guilty of
murder in the first degree on the theory of deliberate
premeditation, four counts of armed assault with intent to
murder, assault and battery by means of a dangerous weapon,
aggravated assault and battery by means of a dangerous
weapon, and two counts of assault by means of a dangerous
weapon. He received a mandatory life
sentence without the possibility of parole on the murder
conviction, and a sentence of from seventeen to eighteen
years on the conviction of armed assault with intent to
murder Ramos-Santiago, to be served from and after the life
Sufficiency of the evidence.
defendant challenges the sufficiency of the evidence
supporting his conviction of murder in the first degree as
well as the additional crimes, arguing that no rational jury
could find beyond a reasonable doubt that he knowingly
participated in the shooting incident on Maywood Street and
did so with the requisite specific intent to kill
Sanchez. See Commonwealth v.
Zanetti, 454 Mass. 449, 467-468 (2009).
review the denial of a motion for a required finding of not
guilty to determine whether the evidence, viewed in the light
most favorable to the Commonwealth, "was sufficient to
persuade a rational jury beyond a reasonable doubt of the
existence of every element of the crime[s] charged."
Commonwealth v. Lao, 443 Mass. 770, 779 (2005),
S.C., 450 Mass. 215 (2007), and 460 Mass. 12 (2011), quoting
Commonwealth v. Campbell, 378 Mass. 680, 686 (1979).
From the evidence, a reasonable jury could find that the
defendant, whose family lived in the Langdon Street building,
was motivated by anger at the events that resulted from
Evan's actions toward his nephew, Anthony, i.e., family
members having to vacate the house for more than twelve
hours, and police securing and apparently intending to search
the entire building; that the defendant was the driver of the
Impala that sped down Maywood Street -- the street where
Evans lived -- and stopped the vehicle directly parallel to
the group of young men standing near where Evans's Maxima
was parked; that the defendant remained stopped at that
location while multiple shots were ...