Commonwealth v. Gomes

• Decision Date: 26 October 2016
• Docket Number: SJC–11427.
• Citation: 475 Mass. 775,61 N.E.3d 441
• Parties: COMMONWEALTH v. Joseph GOMES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

475 Mass. 775

61 N.E.3d 441

COMMONWEALTH

v.Joseph GOMES.

SJC–11427.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 8, 2016.

Decided Oct. 26, 2016.

David Keighley, Fairhaven, for the defendant.

Teresa 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, JJ.¹

BOTSFORD, J.

In 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.

In this 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.

1. Background. a. Facts. We summarize the trial evidence in the light most favorable to the Commonwealth. See, e.g., Commonwealth v. Whitaker, 460 Mass. 409, 410, 951 N.E.2d 873 (2011).

In 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.² 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.³ Evans then rented a silver Nissan Maxima automobile with New Hampshire license plates.

Shortly 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.

Based 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.⁴ 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 P.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.

Evans lived on Maywood Street in Roxbury. At around 6 P.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.

At that 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 police radio.⁵

Police 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.

Two guns, a .38 revolver and a .380 semiautomatic pistol, were used in the Maywood Street shooting.⁶ 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.

At around 10 P.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.^{7 ,8}

b. Procedural history. On May 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.⁹ Trial before a jury began in November, 2010.¹⁰ 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...