Heard: March 9, 2018.
Indictment
found and returned in the Superior Court Department on June
29, 2011.
The
case was tried before Mary K. Ames, J.
Cathryn A. Neaves for the defendant.
David
F. O'Sullivan, Assistant District Attorney, for the
Commonwealth.
Present: Gants, C.J., Gaziano, Budd, & Kafker, JJ.
GAZIANO, J.
On
January 10, 2009, Robert Gonzalez was shot and killed while
he was sitting in his parked Dodge Caravan minivan on a side
street in Lawrence. In September 2013, the defendant was
convicted of murder in the first degree, as a joint venturer,
on a theory of deliberate premeditation in the
shooting.[1]
In this
direct appeal, the defendant primarily challenges the
sufficiency of the evidence that he was present at the scene,
knowingly participated in the shooting, and had the mental
state necessary to the offense. He argues also that the trial
judge abused her discretion in allowing the admission of
opinion testimony by a cellular telephone company employee
who was not an engineer, but who interpreted cell site
location information (CSLI) gleaned from the defendant's
and his friends' cellular telephones, because the witness
was not qualified to render an expert opinion on certain
topics. In addition, the defendant challenges the judge's
decision to allow the admission of a video recording
comparing images from surveillance footage of the vehicle
that dropped off the shooters and images of a Dodge Caravan
that investigators had seized from the defendant's girl
friend's mother and that the defendant and his girl
friend often used. Lastly, the defendant asserts that the
presence of a key prosecution witness, a State trooper, at
counsel table throughout the trial, until he testified as the
Commonwealth's final witness, improperly vouched for the
credibility of his testimony and requires a new trial. The
defendant also asks us to exercise our extraordinary power
under G. L. c. 278, § 33E, to order a new trial or to
reduce the verdict to a lesser degree of guilt. For the
reasons that follow, we affirm the conviction and decline to
exercise our authority to grant relief under G. L. c. 278,
§ 33E.
1.
Facts.
We
recite the facts the jury could have found, viewing them in
the light most favorable to the Commonwealth, see
Commonwealth v. Latimore, 378
Mass. 671, 677 (1979), and reserving some details for later
discussion.
a.
Background.
The
Commonwealth's theory at trial was that the defendant and
his friends planned and carried out the shooting in
retaliation for a fight in which the victim punched out the
defendant's tooth. The dispute between the victim and the
defendant that led to the fight arose over an unpaid debt
that the victim owed Cauris Gonzalez, [2] the
defendant's then girl friend, for a Honda Civic hatchback
automobile that he had purchased from her in the summer of
2008. By January of 2009, he had paid most of the cost of the
vehicle, but still owed Cauris one hundred dollars. Although
the victim had not paid the full purchase price for the Honda
Civic, by January 2009, he had sold it and had used the
proceeds to purchase a Dodge Caravan minivan.
b.
Evening before and day of the shooting.
At
approximately 6 P.M. on January 9, 2009, Cauris telephoned
the victim and asked him to pay her the remaining one hundred
dollars for the Honda Civic she had sold him. The victim said
that he did not have the money. Using his own cellular
telephone, the defendant then called the victim and got into
an argument with him when the defendant asked him to pay
Cauris and the victim said that he was not going to give the
defendant any money.
Sometime
between 7 or 8 P.M. that evening, the defendant and Cauris
went to a party that was being hosted by several of the
defendant's friends at their house on Essex Street. At
around 11 P.M., the defendant, Cauris, and the
defendant's friend Yoshio Stackerman left to get some
food at a nearby fast food restaurant. They were expected to
return to the party but did not; there was no evidence to
establish where they went after leaving the house on Essex
Street, until approximately 2 A.M. on January 10, 2009.
At that
point, the defendant and Cauris were waiting in the
drive-through lane at the same fast food restaurant. Cauris
was driving her mother's Dodge Caravan minivan, and the
defendant was standing next to the vehicle. Stackerman was
not with them. The victim and three friends drove past the
restaurant, in the victim's Dodge Caravan. When the
victim saw the defendant and Cauris, he began yelling through
the window of his vehicle, and the defendant began yelling
back about the money the victim owed Cauris. Immediately
before the victim and his friends reached the restaurant, the
victim, who seemed very angry, had been yelling at someone on
his cellular telephone. Call logs from the victim's and
the defendant's cellular telephones showed three calls
between those two numbers at approximately the same time, one
at 2:12 A.M. and two at approximately 2:17 A.M.
The
victim and his friends got out of his Dodge Caravan; the
friends stood near the vehicle, about twenty to thirty feet
away, and the victim headed toward the defendant. The
defendant then pulled out a knife and "waved it
around," but did not lunge toward anyone. Both men were
yelling and "screaming." The defendant said,
"Bitch ass nigger. You gonna snuff me, bitch ass
nigger?" The victim, who was much larger and taller than
the defendant, responded, "I don't want to hit
you," then punched the defendant in the mouth, knocking
out one of his teeth. The defendant spit out his tooth and
began spitting blood toward the victim. One of the
victim's friends picked up the tooth and "started
showing it like it was funny."
The
victim began to walk back toward his minivan, and the
defendant followed, "screaming." The defendant then
threw his cellular telephone at the victim. The telephone
missed the victim, and broke when it hit the ground. The
defendant was still yelling at the victim when Cauris drove
up in her mother's minivan and told the defendant to get
in. As the defendant was stepping into the minivan, he said
to the victim, "Fuck you. It's not going to stay
like this." The defendant and Cauris drove off, leaving
the broken cellular telephone on the ground. Each returned to
their parents' houses, from where they spent the night
talking to each other on the telephone.[3]
At
around noon that day, the defendant and Cauris went to a
pharmacy to get medication for the defendant's mouth,
which was swollen but no longer bleeding; Cauris was driving
her mother's minivan. In the early afternoon of January
10, 2009, the victim and three of his friends drove to the
defendant's parents' house. The defendant and Cauris
returned from their trip to the pharmacy at approximately the
same time. Cauris got out of her minivan and walked up to the
front door while the defendant drove away. When the
defendant's mother answered, she saw a man she did not
know -- the victim -- standing across the street, near a
minivan. He told her that he had the defendant's tooth
and would sell it to her for "a thousand bucks." He
then entered his minivan and drove away; the defendant, who
had been watching from a distance, returned to the house.
Sometime between 3:30 and 4 P.M., the defendant and Cauris
drove his mother to work in Cauris's mother's
minivan.[4]
The
Commonwealth relied extensively on telephone records and CSLI
as circumstantial evidence of the location of the defendant,
Cauris, and the defendant's friends in the hours before
the shooting, and to show that all five had participated in
planning the shooting, then stopped calling each other during
the fifteen minutes immediately prior to the shooting, which
occurred shortly before 6 P.M.[5]
Call
records and testimony were also introduced concerning calls
on the day of the shooting between Cauris and her
brother's then girl friend, Ashley Calisto, who had had
surgery approximately one week earlier. Telephone records
showed that Cauris's telephone number called
Calisto's telephone number at 1:40 P.M.; Cauris told
police she had called to ask if she and the defendant could
come by to visit Calisto that evening. Telephone records also
indicated that Cauris's telephone called Calisto's
telephone number again at approximately 5:45 P.M. Calisto
testified to receiving a call from Cauris at around that
time.
Eight
calls were made during the afternoon between the telephone
numbers being used by the defendant and Cauris, Stackerman,
Castro, and Wyatt; these telephone numbers also made calls to
other numbers. No calls were made from any of the four
numbers between about 5:45 P.M. and 6:01 P.M. Minutes after
the shooting, at 6:01 P.M., Cauris's telephone called
Castro's telephone number twice. Also at 6:01 P.M.,
Castro called for a taxicab and asked to be picked up at a
location approximately two blocks from the scene of the
shooting, while Cauris's telephone called Calisto's
telephone three times shortly after the shooting, between
6:02 and 6:06 P.M.
Calisto
testified that the defendant and Cauris arrived at her house
at "6:15/6:10/6:20-ish." Calisto had just had
surgery and Cauris had spoken with Calisto earlier that day
to plan a visit. After about twenty minutes, Cauris left to
pick up her mother at work, while the defendant stayed with
Calisto. Cauris returned to Calisto's house at around 8
P.M.; Cauris and the defendant left together at around 9 P.M.
The Commonwealth argued that the calls to Calisto indicated
that Cauris and the defendant had planned their visit
specifically to create an alibi for the time of the shooting.
c.
The shooting.
The
shooting and the events immediately preceding it were video
recorded by four surveillance cameras mounted on a private
house in Lawrence. Two of the cameras produced images that
were dark but had relatively clear footage; two other
cameras, which faced the area where the victim's vehicle
was parked, produced images of very poor quality. A composite
from the four cameras, enhanced as far as possible, was
created and played for the jury, then introduced as an
exhibit.
The
surveillance footage shows the victim's Dodge Caravan
minivan driving north on Hampton Street at approximately 5:57
P.M.[6]
and parking on that street near an intersection, on the side
of the street opposite the house. It is not possible to
determine from the surveillance footage who was driving; the
position of the victim when he was found, and testimony at
trial, established that the victim had been the driver. There
were two passengers, also not visible in the video footage,
one in the front passenger's seat and one in the rear
seat. After the minivan stopped, an individual got out on the
passenger side and entered one of the
buildings.[7]
Another
minivan came into view approximately twenty seconds later,
driving along Haverhill Street. It stopped and four people
got out. They walked across the street toward the
victim's Dodge Caravan as the other vehicle drove away.
The vehicle turned right onto a side street, turned around,
and returned to Haverhill Street, driving out of view of the
cameras in the same direction that it had been heading.
Two of
the individuals who had crossed the street toward the
victim's minivan walked behind and to the right of his
vehicle, and two went to the left. The video footage shows
the victim's vehicle lurch forward and slide so that it
was positioned diagonally across the road, while a pedestrian
ducked. The four individuals ran from the scene, heading away
from Haverhill Street and out of sight of the surveillance
cameras. A person got out of the rear passenger's side of
the victim's minivan and entered the front seat.
The
passenger called 911 at 5:59 P.M. and attempted to help the
victim until emergency aid arrived. Another call was made at
close to the same time by a different individual. The first
officer on the scene arrived within minutes, because he had
been only a few blocks away when the call went out. The
victim was conscious when the officer arrived, and he
responded to the officer's question about what had
happened by saying that he knew "who it was." He
then lost consciousness. He was transported to a local
hospital and was pronounced dead. An autopsy showed that the
victim has been shot twice in the back, ...