Heard: September 8, 2017.
found and returned in the Superior Court Department on
November 17, 2010.
case was tried before Richard E. Welch, III, J.
W. O'Brien for the defendant.
F. O'Sullivan, Assistant District Attorney, for the
Present: Gants, C.J., Lenk, Gaziano, Budd, & Kafker, JJ.
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.
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.
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
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.
Ineffective assistance of counsel.
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.
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). 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
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.
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