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Commonwealth v. Vazquez

Supreme Judicial Court of Massachusetts, Essex

November 29, 2017

COMMONWEALTH
v.
ALBERTO VAZQUEZ.

          Heard: September 8, 2017.

         Indictment found and returned in the Superior Court Department on November 17, 2010.

         The case was tried before Richard E. Welch, III, J.

          Leslie W. O'Brien for the defendant.

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

          Present: Gants, C.J., Lenk, Gaziano, Budd, & Kafker, JJ.

          BUDD, J.

         In the early morning hours of June 18, 2010, Julian Melendez was shot and killed during an exchange with an individual later identified as the defendant, Alberto Vazquez. The defendant was convicted of murder in the first degree on a theory of deliberate premeditation. On appeal, the defendant claims error on the part of defense counsel, the trial judge, and the prosecutor, requiring a new trial. Alternatively, he seeks a reduction in the verdict pursuant to G. L. c. 278, § 33E. We affirm the defendant's conviction and decline to exercise our extraordinary power under G. L. c. 278, § 33E.

         Background.

         We summarize the facts as the jury could have found them, reserving certain details for discussion of specific issues. Just prior to 2 A.M. on June 18, 2010, in a Lawrence neighborhood, the defendant drove up to a group of people and began arguing with some of them. The victim approached the automobile and attempted to defuse the situation, saying, "It['s] me, JM, it's me, your brother." The defendant drove away, but returned approximately five minutes later and continued to argue with some of those present. The victim, who again approached the automobile and leaned into the driver's side window, tried once more to calm down the defendant. Suddenly, the defendant reached out, shot the victim at close range, and drove away. When first responders arrived, the victim was unresponsive. He died at the hospital within twenty-four hours of the shooting.

         At trial, the Commonwealth did not provide evidence of motive; however, the prosecution's theory was that the defendant deliberately premeditated the killing of the victim. It relied chiefly on the testimony of two cooperating witnesses: one testified to having witnessed the shooting and identified the defendant as the shooter, and the other testified that the defendant confessed to being the shooter. The Commonwealth also presented historical cell site location information (CSLI) records of the cellular telephone that the defendant used, which indicated he was at the scene of the shooting when it occurred. The defense theory focused on reasonable doubt as to the identity of the shooter and attacked the credibility of the Commonwealth's cooperating witnesses.

         Discussion.

         The defendant argues that the Commonwealth's use of CSLI records violated his rights under art. 14 of the Massachusetts Declaration of Rights; that the trial judge erred in admitting prior bad act evidence; and that the prosecutor argued facts not in evidence in her closing argument. The defendant further claims that, in response to a question the jury raised during their deliberations, the judge erred in instructing the jurors that the defendant could be convicted of murder based on the theory of transferred intent. We examine each issue in turn.

         1. Ineffective assistance of counsel.

         The defendant claims that his trial counsel was ineffective for failing to move to suppress the CSLI records because the Commonwealth failed to demonstrate probable cause to procure them. In 2014, we held that a government-induced production of CSLI records is a search in the constitutional sense, requiring a showing of probable cause and a warrant under art. 14. Commonwealth v. Augustine, 467 Mass. 230, 255 (2014) (Augustine I), S.C., 470 Mass. 837 and 472 Mass. 448 (2015). We further held, however, that this new rule applies "only to those cases where the defendant raised the warrant issue before or during the trial and the defendant's conviction was not final at the time that Augustine I was decided." Commonwealth v. Fulgiam, 477 Mass. 20, 27, cert, denied, 86 U.S.L.W. 3177 (2017). Because the defendant did not raise the issue prior to this appeal, he is not entitled to the benefit of Augustine I. See Commonwealth v. Broom, 474 Mass. 486, 492 (2016). The defendant attempts to avoid this result by arguing that his counsel should have foreseen the holding in Augustine I and moved to suppress the CSLI records due to the lack of probable cause. We need not reach this issue as we conclude that, even if defense counsel were ineffective on this count, and even if the CSLI records would have been suppressed had the motion been made, there still would not be a substantial likelihood of a miscarriage of justice.

         When we review ineffective assistance claims in direct appeals from convictions of murder in the first degree, we look to see "whether there was an error in the course of the trial (by defense counsel, the prosecutor, or the judge) and, if there was, whether that error was likely to have influenced the jury's conclusion." Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014).[1] We will not disturb the verdict if we are "substantially confident that, if the error had not been made, the jury verdict would have been the same." Commonwealth v. Ruddock, 428 Mass. 288, 292 n.3 (1988). See Commonwealth v. Montrond, 477 Mass. 127');">477 Mass. 127, 134 (2017) . Here, even if we were to assume for the sake of discussion that the CSLI records could have been suppressed, we are confident that the records were not likely to have influenced the verdict, that the jury would have reached the same result even without the records, and that, accordingly, there has been no substantial likelihood of a miscarriage of justice.

         The CSLI records were not a significant part of the prosecution's case and were both cumulative and corroborative of other evidence. See Commonwealth v. Beneche, 458 Mass. 61, 76 (2010); Commonwealth v. Francis, 432 Mass. 353, 364-365 (2000). The CSLI evidence corroborated the Commonwealth's other, very strong evidence of guilt by confirming, together with eyewitness testimony, that the defendant was in fact in the area of the crime at the time of the shooting and drove out of the city thereafter.

         An eyewitness who was present at the shooting positively identified the defendant as the shooter; this eyewitness had known the defendant since elementary school. See Commonwealth v. Thomas, 476 Mass. 451, 461 (2017) (discussing how witness's prior familiarity with defendant is factor in reliability of identification). Contrast Commonwealth v. Burgos, 470 Mass. 133, 143 (2014) (remanding where "[t]here were no eyewitnesses ...


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