Commonwealth v. Gonsalves, SJC-12565

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: KAFKER, J.
• Citation: 179 N.E.3d 28
• Decision Date: 13 January 2022
• Docket Number: SJC-12565
• Parties: COMMONWEALTH v. Antwan GONSALVES.

179 N.E.3d 28

COMMONWEALTH
v.
Antwan GONSALVES.

SJC-12565

Supreme Judicial Court of Massachusetts, Middlesex.

Argued October 8, 2021.
Decided January 13, 2022.

Elizabeth Caddick, for the defendant.

Lindsay Russell, Assistant District Attorney, for the Commonwealth.

Present: Budd, C.J., Gaziano, Cypher, Kafker, & Georges, JJ.

KAFKER, J.

A jury convicted the defendant, Antwan Gonsalves, of murder in the first degree based on extreme atrocity or cruelty for the stabbing of Tywann D. Jones. The defendant appeals from his conviction and from the denial of his motion for a new trial. First, he argues that there was insufficient evidence to prove extreme atrocity or cruelty. Second, the defendant argues that it was prejudicial error to admit evidence that he sold marijuana as a potential motive for the crime. Finally, he claims his trial counsel was ineffective for a variety of reasons, including (1) failing to impeach two important witnesses for the Commonwealth with their criminal records; (2) failing to object to testimony, and its reference by the Commonwealth during closing arguments, in which one witness said the defendant was a "murderer";(3) failing to object to a witness claiming she "spoke to God" before deciding to change her testimony to support the Commonwealth; and (4) failing to seek a curative instruction after the prosecutor asked a witness questions implying that he was afraid of the defendant and his brother and when the jury, allegedly in response to this line of questioning, sent a note during deliberations asking who had access to their personal information. The defendant also requests that we exercise our power under G. L. c. 278, § 33E, to reduce his conviction to murder in the second degree.

We conclude that there was no reversible error. Having thoroughly reviewed the record, we also conclude that there is no reason to grant relief under G. L. c. 278, § 33E.

Background. 1. Events surrounding the stabbing. We begin by summarizing the facts as the jury could have found them, drawing all reasonable inferences in favor of the Commonwealth and reserving other facts for discussion of specific issues.

The defendant was in the Central Square area of Cambridge on the night of September 11, 2015, into the early morning of September 12 with Georgette Bethune and Maurice Rascoe. Bethune had known the defendant for two and one-half to three years, but had been dating him and letting him stay with her and her son at her apartment for a couple months. Rascoe had known the defendant for about ten years and considered him a friend.

179 N.E.3d 33

Both had met the defendant because he regularly sold them small amounts of marijuana. Neither had met the other before, and they did not speak again after September 12, 2015.

The two met up with the defendant at around 11 P.M. at a restaurant in Cambridge. Bethune testified that the defendant was wearing khaki pants and a black shirt. They then left to go to a bar in the defendant's car. The car was a dark blue, two-door Mercedes-Benz "hatchback." It had a "for sale" sign in the rear passenger's side window. Registry of motor vehicles (RMV) records show that the defendant owned a blue, two-door Mercedes-Benz at the time.

The three then went to a bar on Massachusetts Avenue. They were only there about twenty minutes when Rascoe asked to be driven home to Malden. Around this time, Rascoe realized his cell phone's battery was dead, and borrowed the defendant's cell phone to call his girlfriend to let her know that he was coming home. Cell phone records show two short calls from the defendant's cell phone to Rascoe's girlfriend's cell phone at 1:35 A.M. and 1:36 A.M. ; Rascoe testified that he made these calls either inside or in front of the bar as they were leaving. The three got into the car with the defendant in the driver's seat, Bethune in the front passenger's seat, and Rascoe in the back.

Around this time, the victim was also socializing with some friends in Central Square. At around 1:30 A.M. , the group visited a convenience store on Massachusetts Avenue, near the bar. The victim left to find a bathroom while his friends were still in the store.

Devon Queen, who was smoking cigarettes outside the convenience store, approached the victim to ask him for marijuana. He did not know the victim, but thought the victim sold marijuana because he could smell it on the victim. The victim said to hold on and walked down the street to the defendant's car. Queen could hear yelling, but not specifically what was being said, although he did hear the victim say something about drugs.

The victim had approached the front passenger's side window, where Bethune was sitting, and began talking about drugs.¹ The victim said that he "got it all" and asked if they wanted "crack" cocaine. According to Bethune, the defendant asked something like, "Why is this guy out here?" or "Why are you guys out here?" Rascoe testified that he responded by laughing, but took it as an insult because he did not think the group looked like the type of people who would buy crack cocaine. The defendant responded by saying, "Get the fuck away from my car." He was not yelling, but his tone was serious. The victim backed up onto the sidewalk and did not initiate any further contact with the people in the car, but the defendant got out of the car and approached him, and Rascoe got out to follow the defendant. Rascoe testified that the defendant was arguing with the victim with "arms flailing" and that the defendant brushed off Rascoe's attempts to pull him away from the altercation.

Bethune saw the defendant "punching" the man with an underhand motion three times. The man had one hand in or on his pocket and was holding the defendant by the shirt with his other hand. She did not see anyone else involved in the fight, including Rascoe. Rascoe also testified that, besides his attempts to pull the defendant away, no one tried to interfere with the fight.

179 N.E.3d 34

The victim came back towards the convenience store and fell down in front of Queen. At some point Rascoe picked up the victim's cell phone. He made conflicting statements on whether he picked it up from the ground, took it from the victim's pocket, or did not remember from where he got it. He also said he did not know that it was the victim's cell phone, but admitted that he knew it was not his or the defendant's.

The defendant and Rascoe reentered the car through the driver's side and made a U-turn to head towards Harvard Square. The defendant had a bloody knife in his hand, which he wiped off on his shirt and threw out the window at some point during the drive. Bethune testified that it was a black switchblade with a dragon on the handle, and that she had seen the knife before. The defendant repeatedly said that he "poked the n---- up" or that he "poked the kid." Bethune was upset that the defendant had gotten in a fight with the man in front of a group of people, and was worried that the man's friends would retaliate. Upon learning that the defendant had stabbed someone, Rascoe threw the cell phone he had picked up out of the window.

The victim came back into the convenience store, bleeding but conscious, and collapsed again. The cashier called 911 while the victim's friends attempted to help him. Eventually some off-duty doctors who were in the area entered the store and began to treat the victim. An ambulance arrived and took the victim to Massachusetts General Hospital. He was pronounced dead at 4:21 A.M.

The cause of death was stab wounds to the chest and abdomen. The autopsy revealed five separate stab wounds. The first stab wound was one and one-half to two inches deep and passed between two ribs at a slightly upward angle into the right lung, causing bleeding into the chest cavity and air to escape the lungs. The second wound penetrated the sternum and pierced the heart. The third penetrated about two inches into the victim at a slightly upward angle, and passed between two ribs into the liver. The fourth penetrated four inches into the victim and hit both the liver and a major blood vessel. The fifth wound was three inches deep and passed through the abdominal wall at an upward angle into the liver. One of the stab wounds caused two separate injuries to the liver, indicating either that the victim moved while the knife was in his abdomen or that the knife was partially withdrawn and then stabbed inwards again. Each of the stab wounds could have been independently fatal.

2. Defendant's movements after the stabbing. The group drove to Rascoe's house in Malden, where they continued to drink. Bethune testified that the defendant changed his shirt at Rascoe's house. The defendant and Bethune stayed for one to one and one-half hours before driving to Bethune's apartment.

The next morning, the defendant was "uncomfortable and frantic." He asked Bethune why she did not stop him from getting out of the car. He said that he was going to get rid of his car and asked Bethune to remove the "for sale" sign from the window, although she did not comply. He left Bethune's apartment that morning without telling her where he was going, and Bethune never saw him again until she testified at trial. At some point he called her to say that "the guy died," which, up to that point, Bethune did not know. She communicated...