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SJC-11731

                 COMMONWEALTH   vs.   CAURIS GONZALEZ.



        Essex.      December 11, 2015. - September 6, 2016.

   Present:    Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ.1


Homicide. Joint Enterprise. Evidence, Joint venturer, Intent.
     Intent. Practice, Criminal, Capital case.



     Indictment found and returned in the Superior Court
Department on June 29, 2011.

    The case was tried before Mary K. Ames, J.


     Robert F. Shaw, Jr., for the defendant.
     David F. O'Sullivan, Assistant District Attorney, for the
Commonwealth.


    LENK, J.     Shortly before 6 P.M. on January 10, 2009, Robert

Gonzalez was shot and killed while sitting in his minivan near

an intersection in Lawrence.    The shooting was carried out by

four people who, seconds before, had been dropped off across the

intersection by someone driving a Dodge Caravan minivan.      In

    1
       Justice Cordy participated in the deliberation on this
case and authored his separate opinion prior to his retirement.
                                                                      2


June, 2011, the defendant was indicted by an Essex County grand

jury on one count of murder in the first degree based on

evidence that she had been the driver of the Caravan.     After a

jury trial in the Superior Court, the defendant was convicted as

a joint venturer of murder in the first degree on a theory of

deliberate premeditation.

    On appeal, the defendant claims that the trial judge erred

in denying her motion for a required finding of not guilty.      In

particular, the defendant contends that the evidence was

insufficient to allow a rational juror to conclude, beyond a

reasonable doubt, that she was the driver of the Dodge Caravan,

or that she knew of and shared the coventurers' intent to kill

the victim.   The defendant also claims, among other things, that

the judge erred by allowing the admission of (a) the opinion of

one of the Commonwealth's witnesses interpreting cellular site

location information (CSLI) generated by the defendant's

cellular telephone, and (b) a video recording comparing still

photographs from surveillance footage of the Dodge Caravan that

had transported the four passengers involved in the shooting

with the Dodge Caravan owned by the defendant's mother.    The

defendant contends also that her trial counsel was ineffective

for failing to object to the admission of an audio recording of

statements she made to police shortly after the killing.
                                                                      3


     We conclude that the motion for a required finding of not

guilty should have been granted.       While the jury could have

concluded, on this evidence, that the defendant was in some way

involved in the shooting, or that it was more likely than not

that she was the driver, the evidence was insufficient to allow

a jury to draw this conclusion beyond a reasonable doubt.

Further, even if the jury could have found that the defendant

transported the coventurers to the scene, the evidence did not

allow the jury to conclude, beyond a reasonable doubt, that she

knew of or shared the coventurers' lethal intent, as is required

for a conviction of deliberately premeditated murder committed

by way of joint venture.       Because we reverse the conviction on

this basis, we do not address the defendant's other claims.

     1.     Background.   a.   Background information.   In late 2008,

the defendant, then nineteen years old and living with her

mother in Methuen, sold a Honda Civic automobile to the victim,

Robert Gonzalez.2    The victim made a partial payment for the

vehicle, but, as of January, 2009, there was an outstanding

balance.3




     2
         The victim and the defendant are not related.
     3
       The Commonwealth argued at trial, in both its opening
statement and closing argument, that the amount owed was $100.
While the evidence does not indicate the exact amount of the
remaining balance, the defendant does not contest this amount.
                                                                   4


     On the evening of Friday, January 9, 2009, the defendant

and her boy friend, Joel Javier, attended a party hosted by one

of Javier's friends at an apartment on Essex Street in Lawrence.

Also at the party was Yoshio Stackermann, a friend of Javier.

The defendant had driven both Stackermann and Javier to the

party in her mother's vehicle, a 2000 Dodge Caravan.4      The

defendant, Javier, and Stackermann left the party together5 and

drove away in the Caravan at approximately 11 or 11:30 P.M.,

with plans to get something to eat at a nearby fast food

restaurant and then return to the party.       They did not go

directly to the restaurant, and they did not return to the

party.6

     A few hours later, at 2 A.M. on Saturday, January 10, 2009,

the defendant and Javier (but not Stackermann) were in the

Caravan near the same fast food restaurant they had planned to

visit earlier.    The defendant was driving.     The defendant




     4
       The defendant shared use of this vehicle with her mother,
in whose name it was insured and who apparently used it to drive
to and from work.
     5
       At some point earlier, Javier left the party without the
defendant and drove her minivan to a liquor store; he returned
shortly thereafter and ultimately left the party together with
the defendant and Stackermann.
     6
         It is not clear from the record where they did go.
                                                                      5

spotted the victim's vehicle, also a Dodge Caravan.7     She called

the victim from her cellular telephone, apparently to ask about

the money she was owed.     The victim did not answer.   The victim

then called Javier's cellular telephone and ended up speaking to

the defendant.    The victim and the defendant had a "very loud"

conversation.

      A "couple of minutes" later, shortly after 2 A.M., the

defendant concluded the conversation with the victim and entered

the drive-through lane at the fast food restaurant.      As she and

Javier waited for their food, the victim drove by in his Caravan

and began "yelling" in the direction of the defendant's vehicle.

Javier shouted back.

      The victim drove around the corner and parked in a nearby

parking lot.     He got out of his minivan, along with three male

passengers, and walked toward the restaurant.     They saw Javier

standing outside the vehicle and the defendant sitting inside

it.   The victim and Javier walked towards each other, shouting,

until they were "[a]bout an arm length" apart.     Javier pulled

out a knife.    He was "not waving it towards" the victim, but

"just letting it [be] known that he had a knife on him."      The

victim punched Javier in the face, knocking out one of his teeth



      7
       The victim had sold the Honda Civic, which he had
purchased from the defendant, and used the money to buy the
Caravan.
                                                                    6


and causing him to drop the knife.   Javier spit out the tooth,

and one of the three men with the victim picked it up.

    The victim and his companions turned and walked back toward

the victim's minivan.   Javier followed behind saying, "[O]h, you

knocked my fucking tooth out, you fucking really going to

knock -- you're really going to do that shit?"   When the victim

and his companions reached their vehicle, Javier, still

following behind, "threw his phone, trying to hit" the victim

with it.   The device broke and was left on the ground.8

    The defendant, who had remained in the driver's seat of her

mother's Caravan, drove to Javier and told him to get in.

Javier refused.   The defendant stepped out of the Caravan.

Javier then said that the victim was "not going to stay like

that," and entered the vehicle on the driver's side.     The

defendant got in on the passenger's side, and the two drove off.

The defendant "dropped off" Javier at his house in Lawrence,

where he lived with his parents, and the defendant returned to

her house.   The two talked on the telephone throughout the night

until about "[six] something in the morning."

    At approximately 6:45 A.M., the defendant drove her mother

to work.   The defendant then went to Javier's house, where the

two slept until noon.   They drove in the Caravan to a pharmacy,

where they bought ointment for Javier's swollen mouth.     On their

    8
        Javier did not return to retrieve it.
                                                                    7


return, as the defendant was driving and Javier was sitting in

the rear passenger seat, the defendant saw the victim's Caravan.

According to the defendant's statement to police, which was in

evidence at trial, the victim "came . . . to hit [her] head on,"

she swerved to avoid him, and the victim was "saying . . . a

whole bunch of stuff."9

     The defendant and Javier drove back to Javier's house

"between one or two" P.M.   As the two got out of the Caravan,

they saw the victim's vehicle approaching.   The defendant told

Javier to drive off in the Caravan, which Javier did.   After

Javier left, the defendant knocked on the front door, and

Javier's mother answered.   The defendant told her that "there

was a man outside who wanted to beat up Joel."   Javier's mother

stepped outside and saw the victim across the street standing

near his vehicle.   He was laughing, saying that "he was carrying

[Javier's] tooth" and that he would sell it back "for a hundred

bucks."   The victim left a few minutes later, and Javier,

driving the Caravan, returned sometime thereafter.10




     9
       The defendant said in her written statement to police that
she could not hear what the victim was saying because the
driver's side window was shut.
     10
       The victim arrived at his house around 4 P.M., and left
shortly thereafter to run errands for his girlfriend.
                                                                   8


     At approximately 1:40 P.M., the defendant called her

brother's girl friend, Ashley Calixto, to say that she would

come by later to visit Calixto at her house in Methuen.

     The evidence of what occurred between that point and

6 P.M., the approximate time of the shooting, consists primarily

of cellular telephone records and accompanying CSLI.11,12   We turn

first to the period between 2 P.M. and approximately 5:30 P.M.

In that interval, eight calls were made between cellular

telephone numbers belonging to three of Javier's friends --

Stackermann, Thomas Castro, and Francis Wyatt -- all of whom




     11
       In a written statement provided to police, the defendant
stated that, at approximately 2 P.M., she drove Javier's mother
to work and then spent most of the rest of the afternoon (until
her visit to Calixto, her brother's girl friend) in Javier's
house, leaving only to pick up certain items from her house and
her father's business. Javier's mother testified that the
defendant took her to work at 3:30 P.M.
     12
       According to an employee of wireless telephone company T-
Mobile, Raymond McDonald, called by the Commonwealth as a
witness, a cellular site is a tower-like transmitter that sends
data to, and receives data from, cellular telephones. The
concentration of cell sites is heavier in urban areas than in
rural ones. The "average" cellular site covers about "two
miles," although it "could be a lot further, depending on a lot
of factors." "Typically, it[ is] the closest cell site [to the
device] that will handle [a] signal" sent to or received from
that device. It is "not always the closest," however, "it's the
tower that has the strongest signal at the time." Cellular site
location information refers to a log kept by the telephone
company concerning the cellular sites that a particular cellular
telephone connected to when it made and received calls. See
Commonwealth v. Augustine, 467 Mass. 230, 231 n.1 (2014), S.C.,
472 Mass. 448 (2015).
                                                                   9


worked with Javier at a local snow-shoveling business.13    The

telephone records also show that, during this period, six calls

were made between the defendant's number and Stackermann's

number, and two between her number and Castro's number.14

     We turn next to the interval between shortly after

5:30 P.M. and the shooting.   At 5:41 P.M., a call was made from

Castro's number to Stackermann's number.   The call was

transmitted, on both the sending and receiving ends, through

wireless telephone company T-Mobile cellular site 4160, located

approximately nine-tenths of a mile from the intersection in

Lawrence where the shooting took place.    At 5:45 P.M., a call

was made from Stackermann's number to Wyatt's number; it was

transmitted through T-Mobile cellular site 4422, located

approximately eight-tenths of a mile from that intersection.15

At 5:51 P.M., a call to the defendant's number was transmitted



     13
       Two were between Stackermann and Wyatt, five between
Stackermann and Castro, and one between Castro and Wyatt.
     14
       Three of the Commonwealth's witnesses testified that,
generally and at various points on the day of the shooting,
Javier made and received calls using the defendant's cellular
telephone. With regard to the calls in question here, there was
no evidence whether the defendant was the speaker.
     15
       In one place in its brief, the Commonwealth implies that
tower 4422 is the T-Mobile cellular site closest to the
intersection where the shooting took place. According to the
record, however, as the Commonwealth acknowledges elsewhere in
its brief, T-Mobile cellular site 4449, located approximately
four-tenths of a mile from the intersection, is closer.
                                                                   10


from T-Mobile cellular site 4422.16   Between 5:45 P.M. and

6:01 P.M., there were no outgoing calls from the numbers

belonging to the defendant, Castro, Stackermann, and Wyatt.

     b.   The shooting.   The events immediately surrounding the

shooting, between 5:57 P.M. and 5:58 P.M., were recorded by four

surveillance cameras17 mounted on a house near the intersection

of Haverhill Street and Hampton Street in Lawrence.18    The

cameras were on the northern side of the intersection, while the

shooting took place on the southern side.    The intersection

itself was less than two miles from the defendant's house, about

one and one-half miles from Javier's house, and approximately

one mile from the automobile dealership owned by the defendant's

father.

     At 5:57 P.M., the victim's Dodge Caravan drove north on

Hampton Street, parking on that street just before its

intersection with Haverhill Street.    The victim was driving.

There were two passengers in the vehicle, one in the front


     16
       Twenty-three other calls from the defendant's number were
transmitted through T-Mobile cellular site 4422 on the day of
the shooting. It is not claimed that the defendant was at the
shooting scene when these other calls were made.
     17
       The cameras were infrared devices with no sound recording
capability, whose footage was "choppy" and of insufficient
quality to identify facial features or license plate numbers.
     18
       Hampton Street, a side street, runs roughly north-south.
It intersects at its northern end with Haverhill Street, a main
thoroughfare, which runs roughly east-west.
                                                                     11


passenger's seat and one in the rear seat.   The passenger in the

front seat got out of the vehicle and walked into a nearby

building.   The victim and the other passenger remained in the

minivan.

     Approximately twenty seconds later, another Dodge Caravan

(suspect vehicle) came into the view of the cameras heading west

on Haverhill Street towards the intersection.   It stopped near

the intersection.   Four individuals got out and immediately

walked south across the street toward the victim's minivan,

stopping traffic as they did so.19   Two of the individuals headed

to the vehicle's right side, while two headed to the left.     The

individuals reached the rear of the vehicle.    The vehicle

lurched forward and then slid towards the side of the road.      A

pedestrian in the foreground ducked out of the way, apparently

hearing shots.   Subsequent investigation revealed that at least

fifteen shots were fired from behind the vehicle by two

different handguns, and that two of those shots hit the victim

in the back.20   The four individuals fled, heading south away

from Haverhill Street.   This entire course of events ended




     19
       The video does not show the facial features of the
suspects, or whether weapons were displayed.
     20
       The passenger emerged from the vehicle after the
shooting, apparently uninjured, and tended to the victim until
police arrived.
                                                                    12


approximately thirty seconds after the individuals were dropped

off.

       Immediately after dropping off the four individuals, the

suspect vehicle drove straight (west) on Haverhill Street for

several feet and then turned right (north) onto a side street.

A few moments later, it turned around and drove back to

Haverhill Street.   There, it turned right (west) and drove out

of the view of the cameras.

       One of the victim's companions called 911, and police were

dispatched at around 5:59 P.M.    The responding officer found the

victim with wounds to his back and side.    He was taken to a

hospital, where he was pronounced dead.

       At around 6:01 P.M., two calls were made from the

defendant's number to Castro's number; the calls were

transmitted through T-Mobile cellular site 4449, the one closest

to the scene of the crime.21   Also at 6:01 P.M., a call was made

from Castro's number to a local taxicab service; the caller

asked to be picked up on Warren Street, two blocks west of the

shooting scene.   Between 6:04 P.M. and 6:06 P.M., three calls

were made from the defendant's number (to her brother's number

and to that of Calixto, his girl friend); all were transmitted

       21
       Telephone records show that six other calls to and from
the defendant's number were transmitted through T-Mobile
cellular site 4449 on the day of the shooting. These other
calls took place at times when it is not claimed that the
defendant was at the crime scene.
                                                                    13


through T-Mobile cellular site 4160, located less than one mile

from the scene of the shooting.

     At "6:15 -- 20-ish," the defendant and Javier arrived at

Calixto's house in her mother's Dodge Caravan; there was no

evidence who was driving.22    Calixto, who had undergone surgery a

week before, gave Javier a Percocet pill for pain in his mouth,

which was "red and sore."     The defendant stayed until 6:45 P.M.,

when she left to pick up her mother at work.    She returned there

later that evening to pick up Javier.

     Sometime that evening, Stackermann arrived unannounced at

the house of his friend Alberto Medina.    Medina's wife answered

the door and, in response to his inquiry, told Stackermann that

Medina was not home.   Four days later, Medina was arrested by

Lawrence police on an unrelated charge.    Following his arrest,

he offered to show police a gun that he had in his house.

Police took possession of the gun.    A State trooper test-fired

the gun and compared the resulting bullet casings to casings

found at the scene of the shooting.     He concluded to "a

reasonable degree of ballistic certainty" that six of the bullet

casings from the shooting scene came from Medina's gun.      The gun


     22
       The defendant told police that she had arrived at
Calixto's house about fifteen to twenty minutes earlier, around
6 P.M. McDonald, the T-Mobile witness, testified that, had she
actually been at Calixto's house by then, "one would expect
[her] call[s] to hit" other cellular sites closer to Calixto's
address in Methuen.
                                                                     14


also was examined for fingerprints and traces of

deoxyribonucleic acid (DNA).    A fingerprint belonging to Medina

was recovered, as was one belonging to an unknown individual.

     c.   Investigation.   By January 13, 2009, three days after

the shooting, investigating officers learned that Javier had

"had some sort of a disagreement with the victim."     Detectives

went to Javier's house to interview him.     Javier's father

answered the door, told them that Javier was not at home, and

then telephoned Javier.    Javier arrived a few minutes later with

the defendant.   The detectives asked both Javier and the

defendant if they would agree to speak with officers at the

police station, and each agreed.    They were interviewed

separately.

     The defendant waived her Miranda rights and consented to

the interview being recorded.     During the interview, detectives

laid out their theory of the case and accused the defendant of

having driven the coventurers to the scene of the crime; the

defendant denied the accusations.    She stated that she and

Javier were "together all day."    When the detectives asked if

she had been the only one driving her mother's Dodge Caravan

that day, she responded "Mmm hmm."23    When they asked her who of

Javier's friends might have been connected to the shooting, she

     23
       The defendant also mentioned that Javier had driven the
minivan at one point, shortly before the victim offered to sell
back Javier's tooth.
                                                                     15


answered, "I have no idea . . . I don't know any of his other

friends."   She also stated that, between 5:30 and 6 P.M. on

January 10, 2009, she "was probably on my way to [Calixto's] or

in the process of getting there or something."

    Finally, the defendant said that, on the night of the

shooting, at about 10 P.M., she went with Javier, as well his

mother and sister, to her aunt's house and

    "just asked [the aunt] for what we should do since people
    are saying that [Javier] was there when he wasn't. She
    just said to . . . write everything you did on a piece of
    paper so you . . . won't forget if questions are asked
    after."24

The detectives asked the defendant if she had in fact written

everything down and whether she had the statement with her.    The

defendant responded that she had written everything down, that

she had a copy with her, and that the police "can keep it."     In

this written statement, the defendant claimed that she "got to

[Calixto's] house a little before 6:00 [P.M.]"   The interview

ended after approximately one hour.

    On January 17, 2009, police seized the Dodge Caravan, which

was parked at the defendant's mother's workplace.   While

searching the vehicle pursuant to a warrant, they found receipts

belonging to the defendant and a paystub belonging to Javier.


    24
       The defendant explained that she asked her aunt for
advice because her "husband's a cop and she studies the law."
This was redacted, over the defendant's objection, from the
statement presented at trial.
                                                                    16


They also conducted forensic testing, but did not find "any

evidence," such as fingerprints, fibers, or DNA, "link[ing]"

Stackermann, Castro, or Wyatt to the vehicle.

     On January 26, 2009, one and one-half weeks later, the

defendant and Javier traveled together to the Dominican

Republic.   The purpose of the trip was to allow Javier to have

his tooth fixed at low cost.    The defendant returned a month

later, in February, 2009.    Javier returned in September, 2009.

     On June 29, 2011, an Essex County grand jury returned an

indictment against the defendant charging her with murder in the

first degree.

     d.   Trial.   Trial was held in the Superior Court from July

15 through August 2, 2013.   The Commonwealth proceeded on a

theory of deliberate premeditation, arguing that the defendant

had aided the principals -- Javier, Stackermann, Castro, and

Wyatt -- by driving them to the scene of the shooting while

knowing of and sharing their lethal intent.25

     On the fifth day of trial, the Commonwealth called Peter

Smith, a civilian employee of the Federal Bureau of

Investigation's forensic audio, video, and image analysis Unit.


     25
       Castro was tried separately in April, 2013, and
acquitted. Javier's first trial, in June, 2013, resulted in a
hung jury. He was convicted, in August, 2013, following a
second trial, of murder in the first degree. Stackermann also
was tried in June, 2013, and found guilty of murder in the
second degree. The charges against Wyatt were dropped.
                                                                    17


Smith analyzed images of the suspect vehicle from the

surveillance video.    While he could not determine whether the

suspect vehicle was the one owned by the defendant's mother,

agreeing when asked that the vehicle seen in the video recording

"might be the same vehicle and it might not be the same

vehicle," he did conclude that the suspect vehicle was a Dodge

Caravan.26   Without objection, the jury were shown a video

recording created by Smith that superimposed a photograph of the

suspect vehicle on a photograph of the defendant's mother's

Caravan, "fad[ing] back and forth from the [suspect vehicle] to

the [defendant's vehicle]."

     On the eighth day of trial, the Commonwealth called Raymond

McDonald, a manager at T-Mobile's law enforcement relations

group.    On the basis of his testimony as keeper of the records,

certain T-Mobile cellular telephone records were introduced in

evidence.    McDonald also provided technical background on how

CSLI data are generated and stored, and opined over objection as

to the meaning of certain CSLI data from the defendant's

cellular telephone.

     In particular, McDonald opined that "[t]ypically, it[ is]

the closest cell[ular] site [to a device] that will handle [a]

signal" sent to or received from that device.    Based on this, he

     26
       He did not state whether the suspect Caravan, like the
Caravan owned by the defendant's mother, was from model year
2000.
                                                                    18


concluded, over objection, that a cellular telephone call made

from Calixto's address "would not reach [T-Mobile cellular site]

4449[]," which transmitted the two calls to Castro's number from

the defendant's number in the minutes after the shooting.     The

defendant moved unsuccessfully to strike the latter testimony.

On cross-examination, the defendant elicited that McDonald did

not have engineering training or experience, and that, while

McDonald knew that "there are numerous factors that go into what

[cellular] site" a particular call will use,27 he did not "have

any information about [the effect those factors may have had] in

this case."

     The next day, the Commonwealth played a recording of the

defendant's police interview for the jury.   The recording was

presented without objection, with both parties agreeing to

certain redactions.   The judge had expressed some concern about

parts of the recording at a hearing the day before the statement

was introduced.   Defense counsel said that he had made a

tactical decision to have police accusations and denials

admitted in conjunction with the defendant's own words.     The

redacted version of the defendant's statement, which was played

to the jury, included the detectives' theory of the case, their

     27
       These factors include the "power output" of the cellular
site, "topography," the presence of "manmade structures" between
the device and cellular site, "traffic on the particular cell
site," "the maintenance status of the particular sites," and the
"capacity of the phone" making or receiving the call.
                                                                     19


statements accusing the defendant of involvement in the

shooting, and the defendant's denials of those accusations.

     After the close of the Commonwealth's case, the defendant

moved for a required finding of not guilty.    The motion was

denied.   The defendant renewed the motion after the close of all

the evidence, and it was again denied.     On August 2, 2013, the

jury found the defendant guilty of murder in the first degree.28

     2.   Discussion.   Under the theory of murder presented at

trial, the Commonwealth was required to prove that the defendant

intentionally caused the death of the victim "with deliberate

premeditation . . . after a period of reflection."    Model Jury

Instructions on Homicide 37 (2013).    See Commonwealth v. Lao,

443 Mass. 770, 779 (2005), S.C., 450 Mass. 215 (2007) and 460

Mass. 12 (2011).   Because the Commonwealth did not contend that

the defendant herself carried out the killing, but only that she

aided the coventurers, see G. L. c. 274, § 2 ("aid[ing]"

punished like act of "principal felon"), it was the

Commonwealth's burden to show that the defendant

(a) "participated in the commission of the crime charged,"

(b) did so "knowingly," and (c) "shared the required criminal

intent" (citation omitted).    Commonwealth v. Britt, 465 Mass.

87, 100-101 (2013).     In the circumstances here, this required a

     28
       The defendant did not file a motion for a new trial
pursuant to Mass. R. Crim. P. 30(b), as appearing in 435 Mass.
1501 (2001).
                                                                   20


showing that the defendant was the driver of the suspect

vehicle, that she knew her passengers intended to kill the

victim, and that she shared this intent.

    In evaluating whether the evidence at trial was sufficient

to support these elements, we "view the evidence presented in

the Commonwealth's case-in-chief in the light most favorable to

the Commonwealth and ask whether any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt."    Commonwealth v. Simpkins, 470 Mass. 458, 461

(2015), citing Commonwealth v. Latimore, 378 Mass. 671, 677

(1979).    "[C]ircumstantial evidence is sufficient to establish

guilt beyond a reasonable doubt," Commonwealth v. Miranda, 458

Mass. 100, 113 (2010), cert. denied, 132 S. Ct. 548 (2011),

S.C., 474 Mass. 1008 (2016), and inferences drawn from such

evidence "need only be reasonable and possible; [they] need not

be necessary or inescapable."    Commonwealth v. Beckett, 373

Mass. 329, 341 (1977).    Nonetheless, "it is not enough for the

appellate court to find that there was some record evidence,

however slight, to support each essential element of the

offense; it must find that there was enough evidence that could

have satisfied a rational trier of fact of each such element

beyond a reasonable doubt."     Commonwealth v. Latimore, supra at

677-678.   In addition, "[n]o[] . . . conviction [may] rest upon

the piling of inference upon inference or conjecture and
                                                                   21


speculation" (quotations and citation omitted).    Commonwealth v.

Swafford, 441 Mass. 329, 343 (2004) (Swafford).

    Applying these standards, we conclude that the evidence was

insufficient to allow a rational juror to find, beyond a

reasonable doubt, either that the defendant participated in the

crime by driving the suspect vehicle or that she had the mental

state required for a conviction of murder in the first degree on

a theory of deliberate premeditation.

    a.    Participation.   The Commonwealth maintains that there

was sufficient evidence to establish beyond a reasonable doubt

that the defendant drove the suspect vehicle.    While "[t]here

was no direct evidence offered to prove this proposition, [the]

jury . . . could have found" the following.     Swafford, supra

at 339.   First, the defendant had motive to kill the victim, as

the victim owed the defendant money, had punched the defendant's

boy friend in the face, and had tried to sell back the boy

friend's tooth.   Second, on the day of the shooting, the

defendant drove her mother's Dodge Caravan, the same make and

model as the suspect vehicle, and arrived in that Caravan at

Calixto's house about twenty minutes after the shooting.    Third,

multiple calls were exchanged between the defendant's cellular

telephone number and those of Castro and Stackermann in the
                                                                    22


hours before the shooting.29    In addition, no calls were made

from her number during a fifteen-minute interval around the time

of the shooting, two calls were made from her number to Castro's

in the minutes after the shooting, and these latter two calls

were transmitted through cellular site 4449, the one closest to

the crime scene.30    Fourth, the defendant may have displayed

consciousness of guilt by claiming to have arrived at Calixto's

house around the time of the killing, rather than, as Calixto

testified, fifteen minutes later; by claiming not to have known

Javier's friends; and by documenting her whereabouts on the day

of the killing before being asked by police to do so.    In

essence, then, the Commonwealth contends that the verdict was

properly based on evidence of (a) motive, (b) the involvement in

the crime of the defendant's telephone and her mother's vehicle,

and (c) consciousness of guilt.

     The jury's determination that the defendant was the driver

of the suspect vehicle could have been based on the following

inferences from this evidence.    First, they might have inferred

that the defendant's motive to kill the victim impelled her


     29
       Stackermann, in turn, could be tied to the killing by an
inference that he left the murder weapon with Medina, who then
turned it over to police. Castro may be connected to the
killing by evidence that someone calling from his cellular
telephone number requested a taxi pick-up two blocks from the
crime scene minutes after the killing.
     30
          See note 15, supra.
                                                                  23


actually to do so.   This inference, by itself, would not have

been sufficient to support a conviction because, while existence

of motive may make a defendant's participation more likely, see

Commonwealth v. Henderson, 47 Mass. App. Ct. 612, 613 (1999)

(conviction as coventurer supported by evidence that defendant

"had a quarrel with" victim), it cannot be the sole basis for

proving such participation.   "That [a defendant] . . . had a

motive to commit the crime does not . . . mean that he did

commit the crime."   Swafford, supra at 339.

     The jury also reasonably could have inferred consciousness

of guilt.   However, even if motive and consciousness of guilt

are combined, they are insufficient to establish beyond a

reasonable doubt that the defendant was the driver, because

"evidence of motive and consciousness of guilt is [not]

sufficient to withstand [a] defendant's motion for [a] required

finding of not guilty."31   Commonwealth v. Mazza, 399 Mass. 395,

398 (1987).


     31
        See Commonwealth v. Toney, 385 Mass. 575, 584-585
(1982), and cases cited (acts suggesting consciousness of guilt
insufficient to convict because such acts "may often be prompted
by something other than feelings of guilt"). Here, the
instruction on consciousness of guilt stated that "the
defendant may have intentionally made certain false statements"
to police about when she arrived "at Ashley Calixto's home."
While the statement in question -- that, at 6 P.M., the
defendant "was probably on my way to [Calixto's] or in the
process of getting there or something" -- could have been a
deliberate attempt to conceal her own involvement, it also could
have been "prompted by something other than feelings of guilt."
                                                                   24


    The jury properly could have convicted the defendant, then,

only if the evidence of motive and consciousness of guilt were

supplemented by other indications that the defendant was the

driver of the suspect vehicle.    The Commonwealth points to

evidence that the defendant's vehicle and cellular telephone

were involved in the shooting, and argues that this suffices "to

tip the scales in [its] favor."    See Swafford, supra at 342.    We

consider the evidence with respect to each in turn.

    i.    Vehicle.   The evidence with regard to the defendant's

mother's vehicle could have led a reasonable juror to find that

the defendant drove the suspect vehicle only if that juror were

willing to "pil[e] . . . inference upon inference."     See id.

at 343.   First, the juror would have had to infer that the

suspect vehicle was, in fact, the minivan that belonged to the

defendant's mother.    While this would have been a reasonable

conclusion to draw, as both were Dodge Caravans, it still would

have involved an "inferential leap," id., because the

Commonwealth's expert did not state that he had been able to




Id. at 585. For example, it might have been an imprecise
estimate or an effort to cover up actions by other people, such
as her boy friend Javier or his friends. See id. ("defendant
could have been absent from her home and place of work for
reasons consistent with her innocence: she may have wanted to
avoid disclosing the whereabouts of her sister").
                                                                     25


match the individual characteristics of the two automobiles.32

Second, once the juror inferred that the suspect vehicle was the

defendant's, he or she would have had to infer, further, that

the defendant was the one driving it.

     The Commonwealth argues that it is permissible to assume

"that the owner[33] of an automobile is . . . the driver."     See

id. at 340-341.   While "we recognize this logic," it does not

allow the jury to conclude beyond a reasonable doubt that the

defendant was driving, absent some "evidence to suggest that it

is unlikely [the defendant] would have permitted someone else to

drive [her] automobile."34   Id. at 341 and cases cited ("we


     32
       The Commonwealth's vehicle expert also did not provide
any testimony about how likely it was that a given vehicle in
the area would be a Dodge Caravan. Such vehicles were not
necessarily uncommon. Indeed, the victim's vehicle also was a
Dodge Caravan. Cf. Commonwealth v. Mattei, 455 Mass. 840, 855
(2010) ("nonexclusion" testimony that two DNA samples could be
same, or could not, is of minimal probative value "without
accompanying statistical explanation of the meaning of
nonexclusion").
     33
       The defendant's mother was named as the insured in the
policy covering the Dodge Caravan the defendant drove, and
apparently used it to commute to work, but also frequently
allowed the defendant to drive it.
     34
       This evidence might consist, for example, of testimony
that the vehicle was rarely seen being driven by anyone other
than the defendant. See Commonwealth v. Swafford, 441 Mass.
329, 341 & n.17 (2004). The Commonwealth suggests that such
evidence was present here because the defendant answered "Mmm
hmmm," when the detectives asked her whether she was the only
person driving the Caravan that day. This inconclusive response
could not have been intended as a categorical statement that no
one else drove the Caravan, however, as the defendant stated in
                                                                  26


cannot say that [this logic] supports the Commonwealth's

conclusion beyond a reasonable doubt" because "concept of

automobile owners permitting friends or associates to drive

their automobiles certainly is not unusual in common experience

or in our cases").   Here, there was no evidence that the

defendant maintained exclusive use of her mother's minivan.   To

the contrary, in addition to evidence of the defendant's

mother's use of the vehicle, there was evidence that Javier

drove the Caravan twice on the day of the shooting without the

defendant in the vehicle, and once with the defendant as a

passenger.35



the same interview that Javier drove the vehicle shortly before
the victim's offer to sell back Javier's tooth. Compare id. at
341 n.17 (defendant's "sister [stated that she] 'never saw the
automobile without defendant . . . ,' thereby suggesting that
[defendant] did not permit others to drive his automobile," but
"this suggestion is belied by the Commonwealth's evidence that
[defendant] asked his sister to [drive] the automobile" on one
particular occasion).
     35
       The Commonwealth notes that the defendant was in her
Caravan approximately twenty minutes after the shooting, when
she and Javier arrived at Calixto's house, allowing an inference
that she had been in the vehicle twenty minutes earlier, when
the shooting occurred. While perhaps reasonable, this
"inferential leap[]" cannot sustain a conviction beyond a
reasonable doubt. See Swafford, supra at 343. The total
distance from the scene of the shooting to Calixto's house --
including a stop at Javier's house, where the defendant told
police she had been before she left to visit Calixto -- is
slightly more than four miles. The distance from the scene
directly to Calixto's house is also approximately four miles.
Thus, even if the defendant's minivan had been used to drop off
the coventurers, she could have been picked up after the
shooting on the way to visit Calixto.
                                                                   27


     ii.    Cellular telephone.   A similar "piling of inference

upon inference" would have been required for a reasonable juror

to tie the defendant to the crime via her cellular telephone.

See Swafford, supra at 343.     To find proof of guilt in the calls

between the defendant's cellular telephone number and those of

Castro and Stackermann, a juror would have had to infer that

Stackermann and Castro were involved in the shooting;36 that the

content of these calls related to the shooting; and that the

defendant herself was the one making and receiving the calls.

This latter inference, although reasonable and probable, is

weakened by testimony from the Commonwealth's witnesses that

Javier used the defendant's cellular telephone multiple times on

the day of the shooting.    See id. at 341 ("the presence of an

item does not require the presence of its owner").

     With regard to the CSLI evidence, the jury would have had

to infer, first, that the defendant was in possession of her

cellular telephone at the time the CSLI was recorded.    As

mentioned, this inference, while reasonable, is weakened by

evidence of Javier's use of her device.     Second, they would have

had to infer, from evidence of transmissions through particular

cellular sites, that the defendant was at or near the crime

scene.     In this regard, the Commonwealth focuses on calls to and

from the defendant's device transmitted through T-Mobile

     36
          See note 29, supra.
                                                                  28


cellular site 4422, located approximately eight-tenths of a mile

from the scene, seven minutes before the shooting.   This

evidence, however, establishes little.   On the day of the

shooting, twenty-three other calls to and from the defendant's

telephone number were transmitted through that cellular site,

none of them at times when the Commonwealth maintains that the

defendant was near the scene of the shooting.   Indeed, many of

those calls were made when the Commonwealth apparently agrees,

as the defendant asserts, that she was at home.

    Similarly, the Commonwealth points to two calls made in the

minutes immediately after the killing, both of which were

transmitted through T-Mobile cellular site 4449, the one closest

to the scene.   This, too, proves little, as records show that

calls to and from the defendant's number were transmitted

through that same cellular site six other times on the day of

the shooting.   The Commonwealth does not claim that, at these

other times, the defendant was at the scene of the killing, and

it appears undisputed that two of the calls took place when the

defendant was at home.

    Moreover, while the Commonwealth's witness testified that

"[t]ypically, it[ is] the closest cell site [to the cellular

telephone] that will handle [a] signal," he stated that there

were "numerous" other factors that affected the determination

which cellular site would be used.   He also testified that he
                                                                  29


had not investigated what effect such factors might have had in

this case, that he did not have the engineering expertise to do

so, and that any knowledge he had on the topic came from working

with engineers and hearing presentations from them.37

     iii.   Analysis.   Given the totality of the evidence, the

jury could have inferred that the defendant's vehicle was

involved in the shooting because it, like the suspect vehicle,

was a Dodge Caravan.    The jury also might have inferred that the

defendant's cellular telephone was involved, based on the calls

to Castro and Stackermann.    The jury were not permitted,

however, to build further inferences on top of these.   See

Swafford, supra at 343. See also Commonwealth v. Mandile, 403

Mass. 93, 94 (1988) (Mandile) ("No[] conviction [may] rest upon

the piling of inference upon inference or conjecture and

     37
       While McDonald's testimony appears generally to have been
admissible, this is not without some doubt with respect to two
of his opinions. Those opinions -- that calls "typically" are
transmitted through the closest cellular site, and that a call
from Calixto's address was unlikely to have been transmitted
through cellular site 4449 -- were objected to by the defendant
and may well have required a witness with greater technical
expertise. See Blank, The Limitations and Admissibility of
Using Historical Cellular Site Data to Track the Location of A
Cellular Phone, 18 Rich. J. L. & Tech. 1, 3, 6-7, 20 (2011) (at
least fourteen factors determine cellular site use; court should
not "allow[] . . . lay witness to testify to the intra-cell site
position of a phone user because the testimony requires
specialized knowledge that relates to the scientific and
technological features of cell sites"). See also Cherry,
Imwinkelreid, Schenk, Romano, Fetterman, Hardin, & Beckman, Cell
Tower Junk Science, 95 Judicature 151, 151 (2012) ("data from a
single cell phone tower" not adequate to place caller "within a
mile -- or five miles -- or ten miles -- of the tower").
                                                                  30


speculation"); Mazza, supra at 399 (while "[a] fair inference

may be drawn that the defendant called the victim . . . and

arranged to meet him" at time of murder, we cannot "further

infer that the defendant [actually] went" and met victim).

     In other words, the jury were not entitled, on this

evidence, to infer that, if the defendant's minivan and

telephone were involved in the killing, the defendant herself

was, too.     Such an inference is particularly problematic in

light of evidence that her vehicle and cellular telephone were

borrowed by Javier at various points on the day of the

shooting.38    Swafford, supra at 341-342.   That the defendant also

had motive and may have displayed consciousness of guilt does

not "tip the scales" and allow a different conclusion.     See

Swafford, supra at 342; Mazza, supra 398-400 (jury is not

"permitted to [build] inference upon inference" even where there

is "evidence of motive and consciousness of guilt" because those

may not be used to "obscure the fact that the Commonwealth's

proof failed").

     Ultimately, the facts of this case are similar to those in

Swafford, supra at 331, 339, where the defendant was accused of

having been the driver in a drive-by shooting.     Evidence at

     38
       In Swafford, supra 341 n.17, the evidence on a similar
issue showed that the defendant's sister drove an automobile on
one occasion four months after the shooting. Here, by contrast,
there is evidence that Javier drove the vehicle on three
occasions within twenty-four hours of the shooting.
                                                                    31


trial showed that the defendant in that case "had a motive to

seek retribution" from the victims, id. at 339; had spent time

with the shooter in the hours before the killing, id. at 339-

340; was the owner of the vehicle used in the shooting, id. at

340-341; and had "demonstrat[ed] . . . consciousness of guilt"

by altering the appearance of his vehicle a few months after the

shooting.   Id. at 342.   We reversed the conviction because this

evidence "established that [the defendant] had a motive to

commit the shooting, and that he could have been the driver,

but . . . [did] not establish beyond a reasonable doubt that he

was in the driver's seat."39   Id. at 343.


     39
       The Commonwealth argues that the evidence is stronger
here than in Swafford because, in that case, there was no video
recording of the suspect vehicle and no evidence linking the
defendant's cellular telephone to the crime. In that case,
however, there was other evidence that is lacking here:
witnesses who described the gender and race of the driver (here,
there was no evidence as to either), who identified the
passenger-shooter by name (here there was no direct evidence of
the identities of the passenger-coventurers and the video
recording did not show any facial features), and who described
the color of the suspect vehicle's exterior, as well as the tint
of its windows (here the black-and-white video recording showed
only the vehicle's make and model). See id. at 331. Moreover,
as noted, supra, the indications were more substantial here than
in Swafford that someone else, namely Javier, used the
defendant's vehicle and telephone on the day of the shooting.
See note 34, supra.

     The Commonwealth also contends this case is comparable to
Commonwealth v. Henderson, 47 Mass. App. Ct. 612 (1998), where
the Appeals Court sustained convictions of assault with intent
to murder on a theory of joint venture, and assault and battery
by means of a dangerous weapon, under assertedly similar
circumstances. There, however, there was direct evidence that
                                                                  32


     Here, too, the evidence shows that the defendant had motive

to kill the victim, that her possessions (vehicle and cellular

telephone) were involved in the killing, and that she displayed

consciousness of guilt.   This establishes that she could have

been the driver of the suspect vehicle -- indeed, that this was

more likely than not to have been the case -- but it does not

allow that conclusion to be drawn beyond a reasonable doubt.40

     b.   Mental state.   As mentioned, the defendant was

convicted on the basis that she knowingly, and with deliberate

premeditation, aided the coventurers in the commission of

murder, i.e., that she was the perpetrators' "joint venturer."

See, e.g., Commonwealth v. Britt, 465 Mass. 87, 96-97 (2013).

In order to convict the defendant on this theory, the

Commonwealth was required to prove, beyond a reasonable doubt,

not only that the defendant drove the suspect vehicle, but that



the killing took place two minutes after the defendant's quarrel
with the victim, that the defendant drove the suspect vehicle,
and that the shooter brandished a gun in view of the defendant.
Id. at 612-613.
     40
       Cf. Commonwealth v. Morris, 422 Mass. 254, 255, 256, 259
(1996) (defendant's fingerprint found on mask dropped at scene
by one of five perpetrators, witness stated "that the intruder
wearing the . . . mask might have resembled the defendant,"
defendant's mother owned "vehicle that resembled . . . one seen
leaving the crime scene," and defendant had "association with
two people who could have been found to" be perpetrators; while
"jury could have reasonably inferred that the defendant had been
involved with the [the perpetrators] and that he might have been
one of the intruders," "evidence [did] not . . . warrant such a
conclusion beyond a reasonable doubt").
                                                                    33


she knew her passengers intended to kill the victim and that she

shared their intent.    See Commonwealth v. Nolin, 448 Mass. 207,

217 & n.11 (2007).    While such "[m]atters . . . are rarely

proved by direct evidence and are most often proved

circumstantially" (citation omitted). Commonwealth v. Rosario,

83 Mass. App. Ct. 640, 643 (2013), the circumstantial evidence

may not consist solely of a "show[ing] that the defendant . . .

was present when the crime was committed," even if that showing

is supplemented by evidence that the defendant "knew about [the

crime] in advance."    Commonwealth v. Zanetti, 454 Mass. 449, 470

(2009) (Appendix) ("Presence alone does not establish a

defendant's knowing participation in the crime, even if a person

knew about the intended crime in advance and took no steps to

prevent it").   Rather, there must be some additional proof that

the defendant "consciously . . . act[ed] together [with the

principals] before or during the crime with the intent of making

the crime succeed."    Id.

    The Commonwealth points to five indications that the

defendant knew of and shared the coventurers' lethal intent.

First, the defendant had motive.   See Commonwealth v. Simpkins,

470 Mass. 458, 461 (2015) ("evidence of motive" helps

"demonstrate the requisite intent").   Second, the defendant

planned her visit to Calixto's house hours before the killing,

suggesting, perhaps, intent to use the visit as an alibi.
                                                                   34


Third, multiple calls were exchanged between the defendant's

cellular telephone and those of Castro and Stackermann in the

hours before the shooting, suggesting that those three people

were planning the crime.   Fourth, the perpetrators carried out

the shooting immediately after leaving the suspect vehicle,

suggesting that the driver dropped them off knowing their

purpose.   Contrast Mandile, supra at 101 ("murder here occurred

after the passenger had [left vehicle and] been alone with the

victim for close to fifteen minutes" such that "no shared intent

can be drawn from [defendant's] knowledge of the circumstances"

[quotation and citation omitted]).   Finally, the driver of the

suspect vehicle did not immediately drive away after dropping

off the perpetrators, but instead turned onto a side street,

executed a three-point turn, and then headed back toward the

main road to continue on the original course.   This maneuver,

the Commonwealth argues, had the purpose of "buy[ing] some time"

until the killing could be completed, so that the driver could

retrieve the perpetrators.41

     This evidence does not suffice to establish beyond a

reasonable doubt that the defendant knew of and shared the


     41
       Evidence of consciousness of guilt is, appropriately, not
cited to prove intent. Commonwealth v. Lowe, 391 Mass. 97,
108 n.6, cert. denied, 469 U.S. 840 (1984) (consciousness of
guilt evidence, "while relevant to the issue whether a criminal
homicide was committed, is not evidence of malice
aforethought").
                                                                    35


coventurers' intent.   First, the Commonwealth's arguments

require the "piling of inference upon inference."   See Swafford,

supra at 343.   They take as initial assumptions both that the

defendant drove the suspect vehicle and that she participated in

the calls with Castro and Stackermann -- assumptions that, as

discussed supra, are themselves based on a series of

"inferential leaps" -- and then ask that the jury be allowed to

draw further inferences on the basis of those assumptions.

    Second, even assuming, as the Commonwealth contends, that

the defendant knowingly participated in the attack, there was no

evidence that she knew of or shared the coventurers' intent that

the attack be deadly, as required for a conviction of

deliberately premeditated murder by way of joint venture.     The

fact that the attack ended up being deadly does not, by itself,

prove that the defendant intended this result.   See Commonwealth

v. Walsh, 407 Mass. 740, 742, 743 (1990) (minutes before attack

on victim, defendant warned "there was going to be trouble," and

defendant and coventurer then spoke privately "for a few

minutes," apparently planning attack; "jury could only have

speculated" based on this evidence that defendant "knew that

[coventurer] intended to kill" victim); Mandile, supra

(insufficient evidence where defendant drove shooter to scene,

knew shooter was armed, drove getaway vehicle, and attempted to
                                                                   36


conceal crime, but where there was no indication that he knew

shooter intended to kill victim).

    Where a defendant is tried on the theory that she committed

deliberately premeditated murder by way of a joint venture,

proof that the defendant knew of and shared her coventurers'

lethal intent is crucial, and may come from a variety of

sources.   In this case, however, no evidence from any such

sources was introduced.   In some cases, there is direct evidence

that a defendant intended that the victim be killed.   See, e.g.,

Commonwealth v. Woods, 466 Mass. 707, 711, 713-714, cert.

denied, 134 S. Ct. 2855 (2014) (defendant, who was not shooter,

had made "threats to shoot [or kill] the victim"); Commonwealth

v. Marrero, 459 Mass. 235, 248 (2011) ("defendant said, 'I'm

going to kill you'").   In other cases, knowledge and intent are

inferred from a defendant's actions, if those actions, by their

very nature, demonstrate lethal intent.   This often occurs when

a defendant brings a gun to the scene of the killing, but does

not herself fire the fatal shot.    See, e.g., Commonwealth v.

Tavares, 471 Mass. 430, 432-433 (2015) (defendant brought gun to

scene, chambered bullet, and pointed it at victim's companions;

fatal shots fired by coventurer); Commonwealth v. Rosa, 468

Mass. 231, 233-234 (2014) (defendant, one of three shooters,

seen holding and firing gun at victim); Commonwealth v. Keo, 467

Mass. 25, 29-30, 39 (2014) (defendant supplied gun, but "no one
                                                                  37


saw and could identify the [actual] shooter"); Commonwealth v.

Britt, 465 Mass. 87, 88-89 (2013) (defendant brought gun to

scene and fired); Commonwealth v. Beneche, 458 Mass. 61, 70-71

(2010) (before killing, defendant told victim "goodbye forever";

defendant participated in suffocating victim; not clear if

deadly force applied by him or coventurer).

    In yet other cases, intent has been inferred from evidence

that a defendant (a) observed a coventurer demonstrate or

express lethal intent (e.g., by producing a gun) and

(b) thereafter took some step to help carry out that intent.

See Commonwealth v. Longo, 402 Mass. 482, 486 (1988) ("jury may

infer the requisite mental state [for a joint venture] from the

defendant's knowledge of the circumstances and subsequent

participation in the offense" [quotation and citation omitted]).

For example, in Commonwealth v. Newson, 471 Mass. 222, 226-228

(2015), the defendant saw his coventurer carry and use a gun

earlier on the night of the killing, and thereafter drove the

coventurer to the site of the fatal shooting.   Similarly, in

Commonwealth v. Reaves, 434 Mass. 383, 386-387, 392-393 (2001),

the defendant was present for the planning of a drive-by

shooting while guns were on a nearby couch, rode in the vehicle

with the shooters during the killing, and assisted in disposing

of the weapons thereafter.   See Commonwealth v. Norris, 462

Mass. 131, 133-135, 140 (2012) (defendant saw that coventurer
                                                                     38


had gun, made "move . . . that the jury reasonably could have

inferred was designed to allow [coventurer] to take a shot" at

victim, and kicked victim in face after victim was shot).

     Here, no similar types of evidence were introduced.     There

was no direct evidence of the defendant's mental state.     Nor was

there was any indication that the defendant acted in a way

inherently demonstrating lethal intent.    Finally, there was no

evidence that she heard the perpetrators express lethal intent,

or that she saw them do anything to demonstrate such intent

(e.g., displaying weapons) before they were dropped off at the

scene of the shooting.42   On this evidence, even assuming that

the defendant was the driver, and even assuming further that she

was involved in planning an attack of some sort on the victim,

it cannot be said beyond a reasonable doubt that she knew of and




     42
       The jury had no information,   for example, whether the
coventurers displayed weapons while   in the vehicle. Nor could
an inference of such knowledge have   been drawn from the
conversations alleged to have taken   place between her, Castro,
and Stackermann, since the contents   of those conversations were
not before the jury.

     Nonetheless, the concurrence argues that the existence of a
strong motive was a "sufficient basis," standing alone, "on
which the jury could infer that [the defendant] shared the
murderous intent of her passengers." Post at    . The presence
of motive, however, merely strengthens the inference that the
defendant intended to participate in an attack of some sort. It
does not indicate that the defendant knew of and shared her
coventurers' intent that the attack be deadly.
                                                                  39


shared her passengers' lethal intent.43    See Commonwealth v.

Simpkins, 470 Mass. 458, 461-462 (2015) (evidence that defendant

helped shooters before killing and was accessory after fact did

not necessarily imply "knowing participation . . . in the

shooting itself or in the planning thereof").

     3.    Conclusion.   In sum, while the evidence at trial

established the possibility, perhaps even the probability, that

the defendant was the driver of the suspect vehicle, and that

she may have shared the intent that the victim be killed, it did

not allow a rational juror to so conclude beyond a reasonable

doubt.    Accordingly, the judgment is reversed, the verdict is

set aside, and the case is remanded to the Superior Court for

entry of a judgment for the defendant.

                                     So ordered.




     43
       Similarly, in Commonwealth v. Mandile, 403 Mass. 93, 100
(1988), we held that there was insufficient evidence of intent
where "the defendant (1) participated in stealing guns to aid in
the commission of some future offense; (2) was present during
the commission of the murder; (3) knew the passenger was armed,
(4) was the driver of a getaway car; and (5) attempted to
conceal the crime through both the disposal of the murder weapon
and inconsistent statements to the police." On this evidence,
it was not "shown that [the defendant] intentionally assisted
[the shooter] in the commission of the crime and that he did
this, sharing with [the shooter] the mental state required for
that crime" (citation omitted). Id. at 101.
     CORDY, J. (concurring in part and in the judgment).   I

agree that the evidence regarding whether the defendant was the

driver of the Dodge Caravan minivan that transported and dropped

off four individuals (at least two of whom were armed with

firearms) across the street from the victim's parked minivan,

where seconds later they murdered him, may not have been

sufficient to allow a rational jury to conclude that fact beyond

a reasonable doubt.   Consequently, I concur in the reversal of

her conviction.   I disagree, however, with the court's further

and unnecessary conclusion, that even were the evidence adequate

on that point, there was not a sufficient basis on which the

jury could infer that she shared the murderous intent of her

passengers.1

     In my view, the evidence at trial firmly established an

intense animosity between the defendant and her boy friend (one

of the shooters) and the victim, an animosity that was in part

related to money owed to the defendant by the victim -- a debt

that was overdue and contentious, and that had been the subject

of "loud conversation" between the boy friend and the victim on

the day of the shooting.   Indeed, on that same day, the

defendant and her boy friend had at least four hostile


     1
       I am aware that, of the four defendants charged in this
murder, only two were convicted: Joel Javier (murder in the
first degree) and Yoshio Stackermann (murder in the second
degree).
                                                                      2


encounters with the victim.    At approximately 2 A.M., the victim

knocked the boy friend's tooth out in a fight in the presence of

the defendant.    The boy friend pulled out a knife during the

fight, and after getting punched and losing his tooth, threw his

cellular telephone at the victim.     He then told the defendant

that it "was not going to stay like that," after which he drove

away.    Later that day, while the defendant was driving her boy

friend around, the victim drove his minivan head on toward her

in an attempt to drive her vehicle off the road.     Still later

that afternoon, the victim showed up at the boy friend's house

and taunted the defendant and the boy friend's mother -- saying

he was "carrying [her boy friend's] tooth" and would sell it

back "for a hundred bucks."

       This obviously did not sit well with either the boy friend

or the defendant, and between 2 P.M. and 5:30 P.M., six

telephone calls were made on the defendant's cellular telephone

to Yoshio Stackermann to round up some friends.     Between 5:41

P.M. and 5:57 P.M., the defendant (assuming it was she) was

driving the boy friend and his three-man posse (in her mother's

vehicle) in search of the victim.     When they observed him in his

parked vehicle, the defendant stopped the vehicle across the

street.    The four passengers jumped out and within seconds fired

at least twelve shots at the victim and his vehicle, killing

him.    They then fled on foot.   The defendant drove around the
                                                                 3


block, picked up her boy friend, and proceeded on to her

brother's girl friend's house where they had planned to visit.

    In sum, if the evidence had been sufficient to establish

her role as the driver, it would have been sufficient to

establish her role as a joint venturer in the murder plot.
