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SJC-11695

                COMMONWEALTH   vs.   ALBERTO VAZQUEZ.



       Essex.       September 8, 2017. - November 29, 2017.

   Present:     Gants, C.J., Lenk, Gaziano, Budd, & Kafker, JJ.


Homicide. Constitutional Law, Assistance of counsel. Cellular
     Telephone. Evidence, Prior misconduct. Practice,
     Criminal, Capital case, Assistance of counsel, Argument by
     prosecutor, Instructions to jury. Intent.



     Indictment found and returned in the Superior Court
Department on November 17, 2010.

    The case was tried before Richard E. Welch, III, J.


     Leslie W. O'Brien for the defendant.
     David F. O'Sullivan, Assistant District Attorney, for the
Commonwealth.


    BUDD, J.    In the 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
                                                                     2


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.

       Background.   We 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.

       At 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
                                                                    3


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 cooperating witnesses.

    Discussion.   The 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.

    1.   Ineffective assistance of counsel.   The 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
                                                                   4


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.

    When we 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
                                                                    5


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).1   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, 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 justice.

     The 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

     1
       Because this is a capital case on direct appeal, the
defendant is entitled to a more favorable standard than the
constitutional standard for measuring ineffective assistance
claims articulated in Commonwealth v. Saferian, 366 Mass. 89, 96
(1974), i.e., "whether there has been serious incompetency,
inefficiency, or inattention of counsel -- behavior of counsel
falling measurably below that which might be expected from an
ordinary fallible lawyer -- and, if that is found, then,
typically, whether it has likely deprived the defendant of an
otherwise available, substantial ground of defence." Unlike the
constitutional standard, under the standard applicable to
capital cases, which is rooted in G. L. c. 278, § 33E, "we need
not focus on the adequacy of trial counsel's performance."
Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C., 469
Mass. 447 (2014).
                                                                    6


(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.

    An 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

who identified the defendant as a shooter," and only

identification evidence was evidence admitted in error).

    Another witness also identified the automobile that the

shooter drove, visible in a surveillance video recording of the

crime scene.   The Commonwealth focused the jury's attention on a

specific, unique characteristic of the automobile that was

visible in the recording.   Further, multiple witnesses testified

that they had seen the defendant driving the same vehicle, which

belonged to his girl friend, on other occasions.

    Several witnesses also testified to admissions and other

incriminating statements the defendant made in the aftermath of
                                                                    7


the murder.   Within hours, the defendant telephoned a friend and

admitted that he had done "something terrible, something bad."

The defendant sounded "[l]iterally scared" and asked his friend

for a loan in the amount of $500.   The friend telephoned him

back to "try to get to the bottom of things," but the defendant

refused to explain himself, stating only that "he needed to

leave for [a ]while."

    Thereafter, the defendant dropped a gun off in a bag at

another friend's house.   When the friend found the gun inside

the bag, the friend telephoned the defendant to ask whether it

was the gun the defendant used in the murder, and the defendant

admitted that it was.

    The same friend also testified that he was concerned about

rumors that were circulating, and specifically informed the

defendant in person that an individual was telling people "he

kill[ed] somebody on Lowell Street."   The defendant did not deny

the accusation; he looked worried and shook his head.   The

friend advised the defendant to leave Massachusetts, because "it

was only a matter of time until he gets caught."

    Considering all the evidence and the overwhelming strength

of the Commonwealth's case apart from the CSLI records, we are

substantially confident that the jury's verdict would not have

been any different had the CSLI records not been admitted.

"[T]he admission in evidence of those [records] did not so
                                                                    8


materially strengthen the Commonwealth's case as to create a

substantial likelihood of a miscarriage of justice."

Commonwealth v. Gonzalez, 469 Mass. 410, 416 (2014).

    2.   Prior bad act evidence.   At trial, the jury heard

testimony about the defendant's past possession of and the

circumstances surrounding his display of a black firearm.     The

defendant argues that the probative value of this "propensity"

evidence was substantially outweighed by its prejudicial effect,

and that its introduction requires a new trial.

    A witness testified that, approximately one month before

the shooting, the witness observed the defendant engage in a

verbal argument with a third individual and then leave the area.

The defendant returned approximately twenty or thirty minutes

later and displayed what appeared to be the black handle of a

semiautomatic firearm underneath his shirt when asking for the

whereabouts of the individual with whom he had argued.   The

witness also testified that he had seen the defendant with a

black firearm on one prior occasion, and that the defendant told

the witness that he always carried a firearm.

    Although prior bad act evidence is generally inadmissible

to show one's propensity to commit a crime, such evidence may be

admitted, "if relevant, for some other purpose, such as proving

common scheme, pattern of operation, preparation, opportunity,

nature of relationship, knowledge, intent, motive, identity, or
                                                                     9


absence of accident or mistake."     Commonwealth v. Cheremond, 461

Mass. 397, 408 (2012).     See Mass. G. Evid. § 404(b)(2) (2017).

It also may be offered to show that the defendant has the means

to commit the crime.     Commonwealth v. Ridge, 455 Mass. 307, 322

(2009), citing Commonwealth v. Anderson, 448 Mass. 548, 560

(2007).

     However, even if such evidence is offered for one of these

purposes, it is only properly admitted if its probative value

outweighs the risk of unfair prejudice to the defendant.

Commonwealth v. Crayton, 470 Mass. 228, 249 (2014).    The

analysis whether such evidence should be admitted is "left to

the sound discretion of the judge, whose decision to admit such

evidence will be upheld absent clear error."     Commonwealth v.

Robidoux, 450 Mass. 144, 158–159 (2007), and cases cited.     Here,

the judge admitted the witness's testimony after finding that it

was "highly probative as to [the] defendant's familiarity [with]

firearms, of access to firearms and the fact that he would carry

a firearm."   As the defendant did not object to this testimony,

we review any error for a substantial likelihood of a

miscarriage of justice.2    See Commonwealth v. Johnson, 463 Mass.


     2
       The defendant argues that by filing a motion in limine to
exclude this testimony, he preserved his appellate rights and
therefore the admission of this testimony should be reviewed for
prejudicial error rather than for a substantial likelihood of a
miscarriage of justice. In fact, although we recently held that
filing a motion in limine opposing a witness's testimony is
                                                                  10


95, 110 (2012).

    The defendant's statement that he always carried a firearm

was properly admitted as an incriminating admission that was

relevant to show that he had the means to commit the crime.     See

Anderson, 448 Mass. at 560 (testimony regarding knife defendant

was known to carry and proficiency with knives tended to prove

means and ability to commit crime).   See also Commonwealth v.

Ashman, 430 Mass. 736, 744 (2000).

    The testimony that the witness had previously observed the

defendant in possession of a black firearm is a closer call;

however, we conclude that the judge did not abuse his discretion

in admitting it.   In general, we "have not . . . viewed the

tenuous relevancy of evidence of a person's general acquaintance

with weapons as outweighing the likelihood that such evidence

will have an impact on the jury unfair to a defendant."

Commonwealth v. Toro, 395 Mass. 354, 358 (1985).   Further,

"[w]here a weapon definitively could not have been used in the

commission of the crime, we have generally cautioned against

admission of evidence related to it."   Commonwealth v. Barbosa,

463 Mass. 116, 122 (2012).   However, "[a] weapon that could have

been used in the course of a crime is admissible, in the judge's

discretion, even without direct proof that the particular weapon


sufficient to preserve appellate rights, see Commonwealth v.
Grady, 474 Mass. 715, 724-725 (2016), we also held that this
ruling only applied prospectively, id.
                                                                   11


was in fact used in the commission of the crime."    Id., and

cases cited.

    The Commonwealth presented evidence from an eyewitness who

testified that the firearm used in the shooting was a chrome-

colored revolver, not a black semiautomatic firearm.

Nevertheless, because there was no definitive (forensic)

evidence demonstrating that the firearm used to shoot the victim

was not the same one that the defendant was seen with a month

earlier, the evidence was admissible at the trial judge's

discretion.    See Barbosa, 463 Mass. at 123, and cases cited

(evidence of defendant's access to weapon allegedly dissimilar

to murder weapon admissible where dissimilarity was either

asserted without proof or based on eyewitness's memory of

weapon's color).   There was no error, especially where the judge

provided limiting instructions.   See Ridge, 455 Mass. at 309,

322-323.

    However, the admission of testimony regarding a prior

instance of the defendant's threatening display of a black-

handled firearm was error.   Based on the testimony presented to

the jury, the defendant took similar actions both prior to his

display of a black-handled firearm and prior to shooting the

victim.    In each case, the defendant was said to have argued

with one or more people, left the area, and then returned.

Given the similarity of the defendant's actions in each case,
                                                                   12


the jury could have determined that if he behaved in that

particular way a month beforehand, he must have been the person

who shot and killed the victim.    In this instance, the risk of

prejudice was high and outweighed the probative value of the

testimony.

     Although it was error to admit the evidence regarding the

circumstances surrounding the defendant's threatening display of

a firearm, we conclude that the error did not create a

substantial likelihood of a miscarriage of justice.    The judge

gave a limiting instruction immediately following the witness's

testimony, explaining that the evidence the witness provided

could be considered "solely for the limited issues that the

defendant had the means to obtain a firearm and had access to

firearms and was familiar with firearms," and directed the jury

to disregard portions of the testimony that suggested that the

defendant possessed the murder weapon prior to June of 2010.

The judge further instructed that the evidence could not be

considered "on any issue of bad character or criminal

propensity."3    As such, the judge's instruction forbade the jury


     3
         The judge instructed the jury as follows:

          "Ladies and gentlemen, I want to give you a special
     limiting instruction on the testimony of this witness.
     Remember that the defendant here is not charged with
     committing any crime other than the crime of murder of
     Julian Melendez. That's the only charge here. That's the
     only thing that you're concerned with. You have heard
                                                                   13


from using the evidence in ways that were unduly prejudicial to

the defendant.   Moreover, the judge again instructed the jury on

the matter in his final charge.4   We presume that juries follow



     mention here, if you credit this witness -- and, of course,
     you determine whether you believe any witness -- so if you
     do believe [this witness], you've heard evidence that he
     had seen the defendant on previous occasions prior to June
     of 2010, carrying a firearm and displaying the handle of
     what he thought was a firearm in May of 2010 or in that
     area. Now, ladies and gentlemen, the Commonwealth does not
     claim that the firearm the defendant allegedly possessed
     before June of 2010, was connected with the firearm
     allegedly used in the murder. That's not what the
     Commonwealth is claiming here. And, ladies and gentlemen,
     you may use this evidence, that is evidence of prior
     possession of a firearm by the defendant, if you believe
     that evidence, you can't use that evidence as a substitute
     for proof that the defendant committed the crime of murder,
     nor may you consider it as proof that the defendant had a
     criminal propensity of a bad character, you don't use it
     for that. For example, you may not conclude that because
     the defendant -- if you believe the testimony -- earlier
     displayed a gun or carried a firearm. Even if you believe
     that, you cannot then conclude that the defendant committed
     the murder, they're just not logically connected. But
     ladies and gentlemen, you may consider this evidence for a
     limited purpose. You may consider it solely for the
     limited issues that the defendant had the means to obtain a
     firearm and had access to firearms and was familiar with
     firearms. You may consider it for those purposes, but you
     may consider [sic] it on any issue of bad character or
     criminal propensity or anything like that. So that's the
     limitation of this testimony."
     4
       In his final instructions, the judge included the
following:

          "You heard some evidence here about what you might
     consider a prior bad act on the part of the defendant, that
     is, possessing guns in the past. Again, ladies and
     gentlemen, I've already told you, you can consider that,
     but only for a limited purpose and that is not to determine
     that the defendant had some sort of bad character or
                                                                   14


judges' instructions.    Commonwealth v. Keown, 478 Mass. 232, 243

(2017).    We also note that the evidence was not repeated during

closing argument.    For these reasons, and because the

Commonwealth presented overwhelming evidence of the defendant's

guilt, see part 1, supra, we are substantially confident that

the jury's verdict would have remained the same even had the

evidence not been admitted in error.     See Montrond, 477 Mass. at

135-136.   We therefore conclude that there was no substantial

likelihood of a miscarriage of justice.    See id.

    3.     Closing argument.   The defendant argues that, during

her closing argument, the prosecutor improperly characterized

the "side light[s]" of the vehicle allegedly operated by the

defendant at the time of the shooting as "not a common feature."

Because defense counsel did not object at the time, the

defendant must show that the alleged error created a substantial

likelihood of a miscarriage of justice.    See Commonwealth v.

Taylor, 455 Mass. 372, 377 (2009).     This he cannot do.

    During closing argument, the prosecutor asked the jury to

compare the photographs of the black Mazda owned by the

defendant's girl friend (and occasionally driven by the



    criminal propensity, that's not it. Instead, you could
    only consider it for the limited purpose of the defendant's
    familiarity with a weapon, with a handgun and his access to
    such weapons, that is, the means by which one could commit
    the crime. That's the only purpose you heard that
    testimony."
                                                                  15


defendant) with still photographs from a surveillance video

camera, which captured video footage of a dark-colored vehicle

as it twice approached the group, as well as footage of the

victim approaching the vehicle each time it arrived, and a

photograph of the crime scene depicting three other automobiles

on the street.5    The photographs clearly depicted side lights on

the girl friend's vehicle as well as side lights on the

automobile that was captured on the surveillance video.    The

side lights did not appear on other automobiles in the crime

scene photograph.6

     "In closing argument, counsel may argue the evidence and

the fair inferences which can be drawn from the evidence. . . .

Counsel may also attempt to assist the jury in their task of


     5
         The prosecutor said in part:

          "Look at this Mazda. It has a side light on both
     sides, just like that car. Not something you see on a lot
     of cars. We have some pictures of some other cars. Here's
     a Maxima where [the victim's] blood was scattered. There's
     no side light on that car, no side light on the car behind
     it, no side light on the Honda Civic in front of it.
     That's not a common feature."
     6
         The prosecutor concluded:

          "I'm not going to stand here and tell you, that from
     those photographs and those photographs alone, that you can
     say that this is the car, but it sure does look like it,
     doesn't it? And when you take all the other evidence that
     you have and you look at these photographs and you look at
     that picture, it's the black Mazda 626 that [the defendant]
     was driving."
                                                                     16


analyzing, evaluating, and applying evidence.     Such assistance

includes suggestions by counsel as to what conclusion the jury

should draw from the evidence" (quotations and citations

omitted).    Commonwealth v. Grimshaw, 412 Mass. 505, 510 (1992).

See Commonwealth v. Cook, 419 Mass. 192, 204 (1994)

(prosecutor's reference to photographs was based on evidence).

As the other automobiles depicted in the crime scene photograph

provide a basis in the evidence for pointing out that the

distinguishing characteristic of the automobile in question was

unusual, there was no error.

     4.     Jury instructions on transferred intent.   During

deliberations, the jury asked the following question:      "If the

defendant intended to shoot/kill someone/anyone, but not

necessarily the victim/Julian, is it considered premeditated?"

In response, the judge instructed the jury on transferred

intent.7    The defendant argues that the evidence did not support

a transferred intent killing, and that the erroneous instruction

gave rise to a substantial likelihood of a miscarriage of

justice.8    We disagree.


     7
       The doctrine of transferred intent holds a defendant
responsible for harm intended toward person X but inflicted on
person Y instead. Whatever intent the defendant had to harm
person X is transferred to person Y. See Commonwealth v.
Taylor, 463 Mass. 857, 863 (2012).
     8
       The defendant concedes that he failed to object to the
transferred intent instruction at trial, and that therefore we
                                                                     17


    A jury instruction "is proper if it is supported by any

hypothesis of the evidence."     Commonwealth v. Colton, 477 Mass.

1, 11 (2017), quoting Commonwealth v. Silanskas, 433 Mass. 678,

689 (2001).   Here, although the Commonwealth proceeded on the

theory that the defendant deliberately premeditated the killing

of the victim and not someone else at the scene, the evidence

presented also supported a theory of transferred intent.    That

evidence included the fact that when he arrived at the scene,

the defendant engaged in an argument with a number of people

standing in a group that included the victim.    However, the

victim was trying to "calm everything down."    He walked toward

the defendant's automobile and said in a calm voice, "It['s] me,

JM, it's me, your brother."    The defendant responded, "[J]ust

get the fuck off my window," and drove away.    Approximately five

minutes later, the defendant returned to the area and engaged in

"a little more arguing" with people in a group.     The victim once

again approached the automobile, "just trying to still de-

escalate the . . . situation."    The victim leaned in toward the

window and again said, "It's me, JM, it's your brother.    I'm

your brother."   It was then that the defendant reached out of

the window and shot the victim.

    Based on these facts, the jury could have concluded that


review any error for a substantial likelihood of a miscarriage
of justice. Commonwealth v. Brown, 477 Mass. 805, 814-815
(2017).
                                                                    18


the defendant intended to shoot someone other than the victim

because the victim's statements could suggest that the defendant

did not recognize the victim.    See Commonwealth v. Diaz, 431

Mass. 822, 823, 831-832 (2000) (concluding premeditation existed

under transferred intent doctrine where defendant misidentified

victim).9    Indeed, the fact that the jury asked a question about

transferred intent demonstrates that one or more of the jurors

thought that the evidence supported this theory of the killing.

     In any event, to conclude that a transferred intent

instruction was proper, we need not attempt to divine the theory

upon which the jury relied to convict the defendant; we need

merely conclude that the evidence presented was sufficient to

support a theory of transferred intent, and we do.

     5.     Review under G. L. c. 278, § 33E.   Finally, the

defendant asks this court to reduce the degree of guilt pursuant

to G. L. c. 278, § 33E, based on evidence that he was dependent

on drugs at the time of the crime.    We have never before

exercised our considerable power under § 33E to grant relief

from a verdict of murder in the first degree because of drug

dependence.    See, e.g., Commonwealth v. Mercado, 456 Mass. 198,

     9
       Alternatively, the evidence permitted the jury to conclude
that the defendant intended to shoot anyone in the victim's
group because the defendant had argued with a number of them,
and then happened to shoot the victim. See Taylor, 463 Mass. at
864 (transferred intent instruction warranted where defendant
argued with group of people, left, returned, and killed one
member of group).
                                                                 19


205, 212 (2010); Commonwealth v. Brum, 441 Mass. 199, 205, 208

(2004); Commonwealth v. Blake, 409 Mass. 146, 148, 163-164

(1991).   We decline to do so here.

                                      Judgment affirmed.
