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Commonwealth v. Javier

Supreme Judicial Court of Massachusetts, Essex

January 28, 2019


          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, ...

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