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SJC-12912
COMMONWEALTH vs. JULIO BAEZ.
Suffolk. May 10, 2024. - July 23, 2024.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, & Dewar, JJ.
Homicide. Armed Assault with Intent to Murder. Assault and Battery by Means of a Dangerous Weapon. Joint Enterprise. Practice, Criminal, Required finding, Capital case. Evidence, Identification, Intent, Joint venturer, Inference, Identification. Identification. Intent.
Indictments found and returned in the Superior Court Department on April 2, 2015.
The cases were tried before Janet L. Sanders, J.
Rosemary Curran Scapicchio (Jillise McDonough also present) for the defendant. Paul B. Linn, Assistant District Attorney, for the Commonwealth.
KAFKER, J. The defendant appeals from his convictions of
murder in the first degree on a theory of deliberate
premeditation, armed assault with intent to murder, and assault
and battery by means of a dangerous weapon causing serious 2
injury, each stemming from his role as the getaway driver after
a shooting in the Charlestown section of Boston. At around 9:40
P.M. on the evening of November 5, 2014, two men1 (assailants)
wearing hooded sweatshirts shot Ryan Morrissey and Jamie Lawton
(collectively, victims) outside a convenience store, killing
Morrissey and seriously injuring Lawton. The assailants fled on
foot, rounding a corner onto Salem Street, where the defendant
waited in an Acura TL sedan owned by his mother. Shortly after
the shooting, witnesses saw the car slowly go up Salem Street,
begin to turn left onto High Street, and then reverse, hitting a
parked car. The car was stationary at the top of Salem Street
when the assailants reached the car and entered through the rear
driver's side door and the rear passenger's side door. After
the assailants had entered the car, the car turned right onto
High Street, going at about ten miles per hour when witnesses
lost sight of it.
On appeal, the defendant argues that the trial judge erred
in denying his motion for a required finding of not guilty
because there was insufficient evidence that he was the driver
of the car that helped the assailants escape the scene of the
shooting, and that even assuming he was the driver, there was
1 The Commonwealth alleged at trial that the assailants were codefendants Danilo Soto and Alexander Soto. Both Danilo Soto and Alexander Soto were found not guilty by the jury. Although the codefendants share a last name, they are not related. 3
insufficient evidence that he had knowledge of or shared the
assailants' lethal intent. He also argues that the trial judge
erred in declining to require the Commonwealth to present race-
neutral reasons for challenging two Hispanic jurors during jury
selection. The defendant further contends that expert testimony
comparing paint found on the defendant's car with paint
recovered from the parked car should have been excluded, and
that the trial judge erred in providing certain jury
instructions. We conclude that the evidence was legally
insufficient to establish the defendant knew of or shared the
lethal intent of the assailants and therefore reverse the
defendant's convictions of murder in the first degree and armed
assault with intent to murder. We also conclude that the
evidence was insufficient to establish that the defendant knew
that the assailants were armed with firearms, or that he shared
the assailants' intent to use those firearms to assault the
victims, and thus reverse his conviction of assault and battery
by means of a dangerous weapon causing serious injury.
Accordingly, we need not reach the remaining issues raised on
appeal.
1. Background. We review the evidence in the light most
favorable to the Commonwealth, reserving certain facts for our
discussion of the legal issues. 4
On November 5, 2014, at around five minutes before the
shooting, a witness saw two men, one wearing a light gray hooded
sweatshirt and the other wearing a black sweatshirt, on the
front stoop of a house on Phipps Street in Charlestown. The men
pulled up the hoods of their sweatshirts and left in the
direction of Main Street. At 9:38 P.M., two men wearing hooded
sweatshirts passed by a convenience store located on Main Street
between Sullivan Street and Salem Street. The men wore their
sweatshirt hoods up, with the drawstrings of the hoods tied
tightly so that only small portions of their faces were visible.
After walking past the store, the men turned right onto Sullivan
Street. Two minutes later, at 9:40 P.M., the men walked back
toward the store from the direction of Sullivan Street with
their hands in the pockets of their hooded sweatshirts. Around
that time, Jamie Lawton and Ryan Morrissey exited the store and
stepped onto the sidewalk outside. The two men in sweatshirts
walked past the entrance to the store, and then turned and shot
Lawton and Morrissey several times before running away in the
direction of Salem Street. Lawton survived, but Morrissey died
as a result of his injuries.
At the time of the shooting, the defendant was driving his
mother's car, a silver 2004 Acura TL sedan, on Salem Street, a
one-way street that intersected with Main Street east of the
convenience store. Several witnesses, residents of Salem Street 5
and the surrounding area, looked out onto Salem Street after
hearing gunshots and observed a dark-colored four-door sedan
maneuvering on Salem Street near its intersection with High
Street. The sedan slowly went up Salem Street, began to make a
left turn onto High Street, and then reversed back onto Salem
Street, striking a parked car, a blue Volkswagen Jetta. One
witness took down a partial license plate number for the car
after seeing it strike the parked car. She wrote down the
number, "101KK," and later shared it with police. Shortly after
the shooting, witnesses saw two men in hooded sweatshirts turn
left onto Salem Street from the direction of the convenience
store and run up the street.2 The man in the light gray
sweatshirt got into the back driver's side door of the car, and
the man in the black sweatshirt got into the back door on the
passenger's side. After the men had entered the car, the car
was driven away, making a right turn onto High Street while
going at around ten miles per hour.
After investigating the scene and speaking with witnesses,
police identified the Acura TL owned by the defendant's mother
as the likely getaway car. Later that night, police found the
Acura parked on Medford Street in Charlestown, near the Bunker
2 Salem Street is a steep hill, with the bottom of the hill at the intersection with Main Street and the top at the intersection with High Street. The defendant stopped the car at the top of the hill near the intersection with High Street. 6
Hill public housing development where the defendant's mother
lived. The license plate number for the Acura was "181XK2."
The police went to the apartment where the defendant's mother
lived and obtained the key to the Acura from the defendant's
friend Yaritza Figueroa, who had been given the key by the
defendant earlier that night and had been instructed to return
the key to the defendant's mother. While in the courtyard of
the housing development, Boston police Detective Frank
McLaughlin encountered the defendant and asked the defendant if
he had been driving the Acura. The defendant responded that he
had been in possession of the Acura from 2 P.M. to around 10 or
10:30 P.M.
The defendant was tried jointly with Danilo Soto and
Alexander Soto, whom the Commonwealth alleged were the
assailants who shot the victims near the convenience store. At
the close of the Commonwealth's evidence, defense counsel moved
for a required finding of not guilty, which was denied by the
trial judge.3 The jury acquitted the defendant's alleged
coventurers, but convicted the defendant of murder in the first
degree on a theory of deliberate premeditation, armed assault
with intent to murder, and assault and battery by means of a
dangerous weapon causing serious injury.
3 Neither the defendant nor either of his codefendants introduced evidence at trial. 7
2. Discussion. On appeal, the defendant argues that there
was insufficient evidence to prove murder in the first degree
under a theory of deliberate premeditation. Therefore, he
argues that his conviction of murder in the first degree must be
reversed. We conclude that although there was sufficient
evidence to prove that the defendant served as the getaway
driver for the two assailants, there was insufficient evidence
that he knew of or shared the assailants' lethal intent. See
Baxter v. Commonwealth, 489 Mass. 504, 510 (2022); Commonwealth
v. Gonzalez, 475 Mass. 396, 414 (2016). Similarly, there was
insufficient evidence to prove beyond a reasonable doubt that
the defendant knew the assailants were armed with firearms or
that they intended to use those firearms against the victims, as
would be required to support a conviction of assault and battery
by means of a dangerous weapon on a joint venture theory. See
Commonwealth v. Walsh, 407 Mass. 740, 742-743 (1990).
Accordingly, his convictions must be reversed.
When reviewing claims of insufficient evidence, we assess
the evidence in the light most favorable to the Commonwealth "to
determine whether any rational trier of fact could have found
each element of the crime beyond a reasonable doubt."
Commonwealth v. Robinson, 493 Mass. 303, 307 (2024), citing
Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). "The
evidence may be direct or circumstantial, and we draw all 8
reasonable inferences in favor of the Commonwealth."
Commonwealth v. Watson, 487 Mass. 156, 162 (2021), quoting
Commonwealth v. Ayala, 481 Mass. 46, 51 (2018).
a. Murder in the first degree. To prove the defendant
guilty of murder in the first degree as a joint venturer, the
Commonwealth was required to "prove beyond a reasonable doubt
that 'the defendant knowingly participated in the commission of
the crime charged, and that the defendant had or shared the
required criminal intent.'" Watson, 487 Mass. at 162, quoting
Commonwealth v. Britt, 465 Mass. 87, 100-101 (2013). "In the
circumstances here, this required a showing that the defendant
was the driver of the suspect vehicle, that [he] knew [his]
passenger[s] intended to kill the victim, and that [he] shared
this intent." Baxter, 489 Mass. at 508, quoting Gonzalez, 475
Mass. at 406-407.
i. Identification. The defendant first argues that the
evidence presented at trial was insufficient for the jury to
find beyond a reasonable doubt that he was the driver who helped
the assailants flee the scene of the crime. Viewing the
evidence in the light most favorable to the Commonwealth, we
conclude that there was sufficient evidence at trial to
establish that the Acura TL owned by the defendant's mother was
the getaway car, and that the defendant was the driver. See
Baxter, 489 Mass. at 508-509. 9
Tiffany Ramos, a friend of the defendant, testified that
shortly after the shooting, the defendant told her that he was
the driver of the car involved in the shooting in Charlestown,
but that he had nothing to do with the shooting itself.4 The
defendant also told McLaughlin that he had been in possession of
his mother's Acura TL from around 2 P.M. until 10 or 10:30 P.M.
on the night of the shooting. A witness testified that although
Salem Street was somewhat poorly lit on the night of the
shooting, she took down a partial license plate number for the
dark-colored four door sedan that she saw two men in hooded
sweatshirts enter shortly after the shooting. The witness
testified that the partial plate she had recorded was "101KK."
This partial plate number could easily have been mistaken for
the license plate number for the Acura TL owned by the
defendant's mother, "181XK2." Finally, the defendant's
fingerprints were recovered from the front driver's side door of
the Acura. All this evidence was sufficient for the jury to
find that the defendant was the getaway driver. Compare Baxter,
489 Mass. at 509 (sufficient evidence for jury to find defendant
4 On appeal, the defendant argues that Tiffany Ramos was not a credible witness because she had not mentioned the defendant's statement during grand jury proceedings or in many of her earlier interviews with police. However, viewing the evidence in the light most favorable to the Commonwealth, as we must, a jury could have found credible Ramos's explanation that she had lied to the police in the past because she was scared, but was telling the truth at trial. 10
was driver of car containing shooter where car belonged to
defendant's girlfriend and he had permission to drive it, car
had left girlfriend's driveway shortly before shooting, and
video footage showed person resembling defendant driving car);
Watson, 487 Mass. at 162-163 (sufficient evidence for jury to
find defendant was driver of suspect vehicle where he borrowed
keys to vehicle from his girlfriend day before murder occurred,
and defendant's cell phone, keys, and fingerprints were found in
vehicle).
ii. Knowledge and intent. The defendant presents a much
stronger argument, however, that the evidence at trial was
insufficient to establish that he knew the assailants intended
to kill the victims or that he shared that intent. See Baxter,
489 Mass. at 509-510, quoting Gonzalez, 475 Mass. at 414 ("to
support conviction of murder in first degree on theory of joint
venture, 'the Commonwealth was required to prove, beyond a
reasonable doubt, not only that the defendant drove the suspect
vehicle, but that [he] knew [his] passenger[] intended to kill
the victim and that [he] shared [that] intent'"). The
Commonwealth asserts that the manner by which the defendant was
seen maneuvering his vehicle after the shooting was sufficient
evidence to prove that the driver knew of and shared the lethal
intent of the assailants. Because the jury could only have come
to such a conclusion through the "piling of inference upon 11
inference or conjecture and speculation," Commonwealth v.
Mandile, 403 Mass. 93, 94 (1988), we disagree.
In Gonzalez, 475 Mass. at 416-418, we reviewed our case law
on "proof that [a] defendant knew of and shared her coventurers'
lethal intent" and concluded that the Commonwealth had failed to
introduce sufficient evidence to show that the defendant, who
the Commonwealth alleged had driven shooters to and from the
scene of a lethal shooting, shared the shooters' lethal intent.
There, the Commonwealth introduced evidence that, inter alia,
the defendant had motive to kill the victim, that the
perpetrators shot the victim "immediately after leaving the
suspect vehicle," and that the suspect vehicle, after dropping
off the shooters, maneuvered in such a way that it was able to
retrieve the shooters after they killed the victim. Id. at 415.
Nonetheless, we concluded that even if the evidence had been
sufficient to show that the defendant knowingly participated in
the attack on the victim, "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," and accordingly reversed the
defendant's conviction. See id. at 415-416, 418. See also
Mandile, 403 Mass. at 100 (evidence of shared lethal intent
legally insufficient where defendant participated in stealing
guns, was present during commission of murder, knew passenger 12
was armed, drove getaway car, disposed of murder weapon, and
made inconsistent statements to police).
Our recent decision in Baxter, where we also concluded
evidence was insufficient to sustain a conviction of murder in
the first degree, bears many similarities to the present case
and is therefore instructive on the issue of lethal intent. In
Baxter, 489 Mass. at 506, the defendant, driving his
girlfriend's car, picked up two passengers and then followed the
victim as the victim walked down a street. The car "went past
[the victim] and stopped along the curb on the side of the
street where he was walking" and "waited about eighteen seconds
while the victim walked toward it on the sidewalk. As the
victim approached the car, it pulled away from the curb and
traveled a short distance" before turning onto a side street.
Id. Forty-five seconds later, as the victim walked past the
side street, one of the defendant's passengers approached the
victim and shot the victim at least six times. Id. The shooter
ran back to the defendant's car and entered it, and the car sped
away. Id.
In Baxter, as here, the Commonwealth argued that the
evidence of how the defendant maneuvered the vehicle was
sufficient to prove that he knew of and shared the lethal intent
of his coventurer. Id. at 510. We disagreed, reasoning that 13
"while the evidence of the defendant's maneuvering of the vehicle may have allowed the jury to infer that the defendant knew of and shared the passenger's intent to assault the victim, it fail[ed] to sustain a reasonable inference, beyond a reasonable doubt, that he shared the passenger's intent that the attack be deadly, as required for a conviction under a joint venture theory."
Id. We emphasized that there was no direct evidence that the
defendant intended that the victim be killed. Id. There was
also "no evidence that the defendant heard the passenger express
lethal intent or that he saw the passenger do anything to
demonstrate lethal intent, such as displaying a firearm before
the shooting." Id. at 511. Additionally, "there was no
evidence that the defendant saw or joined the shooter during the
commission of the shooting." Id. Finally, we concluded that
the defendant's actions did not "by their nature demonstrate a
shared lethal intent." Id.
In the present case, there appears to be even less evidence
of the defendant's lethal intent than was present in Baxter.
Here, as in Baxter, there was no direct evidence that the
defendant intended that the victims be killed. See Baxter, 489
Mass. at 510. Compare Commonwealth v. Marrero, 459 Mass. 235,
238 (2011) (defendant told victim, "I'm going to kill you").
There was also no evidence that the defendant had any knowledge
that the assailants were in possession of firearms, or that they
had communicated to the defendant an intent to use those
firearms. Compare Commonwealth v. Sosa, 493 Mass. 104, 116-117 14
(2023) (defendant's shared lethal intent could be inferred where
defendant "had ample opportunity to observe [coventurer's] gun,"
stood with coventurer for several minutes as coventurer pointed
gun at victim and victim's girlfriend, and defendant had
supplied gun and ammunition); Commonwealth v. Bonner, 489 Mass.
268, 279 (2022) (defendant standing next to shooter, who
continued to aim gun at victim after shooting, was probative as
to defendant's shared intent to kill victim); Commonwealth v.
Reaves, 434 Mass. 383, 386-387, 392-393 (2001) (defendant
present during planning of drive-by shooting while guns were
nearby, rode in vehicle with shooters during killing, and
assisted in disposing of weapons after killing); Commonwealth v.
Stewart, 411 Mass. 345, 351 (1991) (defendant driver's
coventurer shot and killed cat from passenger seat of
defendant's car hours before murder). Additionally, the
defendant did not see or join the assailants during the
commission of the shooting. Compare Baxter, supra at 511;
Mandile, 403 Mass. at 101, quoting Commonwealth v. Soares, 377
Mass. 461, 470, cert. denied, 444 U.S. 881 (1979) (where
defendant drove passenger to victim's house and passenger killed
victim while alone in home with victim for ten to fifteen
minutes, no shared lethal intent between defendant and passenger
could be drawn from defendant's "knowledge of the
circumstances"). 15
The Commonwealth argues that the maneuvering of the car by
the defendant after the shooting was nonetheless sufficient
evidence to demonstrate the defendant's lethal intent.
Specifically, the Commonwealth contends that the defendant began
moving the car after hearing gunshots because he knew his
coventurers were armed and intended to shoot the victims, and
understood the gunshots were his signal to get ready to leave
the area to avoid detection. This argument overstates the
Commonwealth's evidence and requires the "piling of inference
upon inference" to conclude that the defendant knew of and
shared the assailant's lethal intent. See Gonzalez, 475 Mass.
at 415, quoting Commonwealth v. Swafford, 441 Mass. 329, 343
(2004).
As a preliminary matter, a finding that the defendant's car
was parked on Salem Street and began moving only after the
shooting is itself an inference; witnesses looked out onto Salem
Street after the shooting and saw the suspect vehicle driving
slowly up the street, but there was no evidence introduced
regarding whether the sound of gunfire prompted the movement of
the car. Compare Baxter, 489 Mass. at 506-507 (insufficient
evidence of lethal intent where car driven by defendant followed
victim down street, stopped near sidewalk and waited for victim
to pass by on foot, and then passed victim and turned onto side
street, allowing shooter to exit car seconds before victim was 16
killed). Even assuming the Acura was parked on Salem Street and
did not begin moving until the shooting occurred, the
Commonwealth's theory requires the inference, on the basis of
the car's maneuvers alone, that before hearing the gunfire, the
defendant knew his coventurers were in possession of firearms,
that they intended to use those firearms in a deadly attack, and
that the defendant shared their intent.
Here, the evidence was not sufficient to establish beyond a
reasonable doubt that the defendant had knowledge before the
shots were fired that the passengers were armed and intended to
shoot the victims, or that the defendant shared their intent.
Although the evidence of the car's maneuvering after the
gunshots may have been sufficient to support a conviction of
accessory after the fact, see Baxter, 489 Mass. at 511-512, the
maneuvering did not, without more, "demonstrate a shared lethal
intent" as would be required for a conviction of murder in the
first degree, see id. at 511; Gonzalez, 475 Mass. at 416.
Compare Watson, 487 Mass. at 163-164 (sufficient evidence that
defendant driver shared passenger's lethal intent where
defendant brought passenger to scene of murder, allowed
passenger to approach victim's vehicle from behind, blocked
street so that other vehicles could not interfere, drove next to
passenger immediately after passenger shot victim, allowed
passenger to get in car, and drove away); Commonwealth v. 17
Tavares, 471 Mass. 430, 432-433 (2015) (sufficient evidence of
lethal intent where defendant brought gun to scene, chambered
bullet, and pointed it at victim's companions); Britt, 465 Mass.
at 88-89 (defendant brought gun to scene and fired).
Accordingly, the defendant's conviction of murder in the first
degree must be reversed.5
b. Assault and battery by means of a dangerous weapon.
Next, we turn to the defendant's conviction of assault and
battery by means of a dangerous weapon causing serious injury,
in violation of G. L. c. 265, § 15A, in connection with the
nonlethal shooting of Lawton. "Assault and battery by means of
a dangerous weapon causing serious bodily injury requires the
Commonwealth to prove that the defendant intentionally touched
the victim, however slightly; the touching was unjustified; the
touching was done with an inherently dangerous weapon or an
object used in a dangerous fashion; and the touching caused
serious bodily injury." Commonwealth v. Vick, 454 Mass. 418,
432 (2009). Because the defendant was convicted on a joint
venture theory, the evidence must show that the defendant
5 For the same reasons, we also conclude that the defendant's conviction of assault and battery with intent to murder -- which requires proving that the defendant "assaulted the victim while armed with a dangerous weapon and . . . the specific intent to cause the victim's death" -- was not supported by sufficient evidence of the defendant's shared lethal intent and thus must be reversed. See Commonwealth v. Vick, 454 Mass. 418, 432 (2009). 18
knowingly participated in the commission of the assault and
battery, knew at least one of his coventurers was armed with a
dangerous weapon, a firearm, and shared his coventurer's intent
to use that weapon to cause a battery. See Watson, 487 Mass. at
162 (joint venture theory requires evidence that "defendant
knowingly participated in the commission of the crime charged,
and . . . had or shared the required criminal intent" [citation
omitted]); Britt, 465 Mass. at 100 ("The Commonwealth [bears]
the burden of proving . . . that a joint venturer had knowledge
that a member of the joint venture had a weapon where the
conviction on a joint venture theory is for a crime that has use
or possession of a weapon as an element").
As explained supra, the evidence in this case, viewed in
the light most favorable to the Commonwealth, supports an
inference that the defendant was the getaway driver. However,
there was no evidence that, before the murder, the defendant
knew the assailants were in possession of firearms, or that the
assailants intended to use those firearms to harm the victims.
Compare Walsh, 407 Mass. at 742-745 (insufficient evidence of
assault and battery by means of dangerous weapon on joint
venture theory where defendant warned "there was going to be
trouble"; defendant and coventurer spoke privately "for a few
minutes," potentially planning attack; but there was no evidence
that defendant knew coventurer was armed with knife until after 19
coventurer stabbed victim, and there was no evidence of
animosity between defendant and victim before coventurer's
attack). Nor was there any evidence that the defendant himself
had any intent to harm the victims. Compare Commonwealth v.
Henderson, 47 Mass. App. Ct. 612, 613 (1999) (sufficient
evidence to convict defendant of assault and battery by means of
dangerous weapon on joint venture theory, where defendant drove
car that sought out victim; defendant and victim argued for one
to two minutes; passenger, who had had no quarrel with victim,
exited car and shot victim before running back to car; and car
sped away). The Commonwealth nonetheless argues that the
defendant picking up the assailants after the shooting, without
more, allows the inference that before the shooting, he knew the
assailants were armed with firearms, knew the assailants
intended to use the firearms to commit a battery, and shared
their intent. This line of reasoning, as explained above,
requires too many inferential leaps for a jury to conclude
beyond a reasonable doubt, on the basis of the evidence
presented at trial, that the defendant was guilty of assault and
battery by means of a dangerous weapon without resorting to
conjecture and speculation. See Walsh, supra. Accordingly, the
defendant's conviction of assault and battery by means of a
dangerous weapon must also be reversed. 20
3. Conclusion. Because we conclude that the evidence was
legally insufficient to support the defendant's convictions of
murder in the first degree, armed assault with intent to murder,
and assault and battery by means of a dangerous weapon, the
judgment of conviction is reversed, the verdicts are set aside,
and the case is remanded to the Superior Court for entry of a
required finding of not guilty.
So ordered.