NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-748
COMMONWEALTH
vs.
FABIAN GONZALEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial, a jury returned guilty verdicts against
the defendant, Fabian Gonzalez, on indictments charging armed
assault with intent to murder (G. L. c. 265, § 18 [b]),
aggravated assault and battery (G. L. c. 265, § 13A [b] [i]),
two counts of assault and battery by means of a dangerous weapon
(G. L. c. 265, § 15A), unlawful possession of a firearm (G. L.
c. 269, § 10 [a]), carrying a loaded firearm (G. L. c. 269,
§ 10 [n]), and discharging a firearm within 500 feet of a
dwelling (G. L. c. 269, § 12E). A Superior Court judge, who was
not the trial judge (the trial judge having retired), thereafter
denied the defendant's motion for a new trial after an
evidentiary hearing. In a consolidated appeal, the defendant now asserts numerous errors, all of which, individually and
collectively, warrant reversal on all convictions. We affirm in
part but, pursuant to Commonwealth v. Guardado, 493 Mass. 1, 6-9
(2023) (Guardado II), we vacate the convictions for unlawful
possession of a firearm and unlawful possession of a loaded
firearm.
Background. We recite the pertinent facts, obtained mostly
from witness accounts and surveillance video recordings, in the
"light most favorable to the Commonwealth," Commonwealth v.
Latimore, 378 Mass. 671, 676-677 (1979), reserving certain
details for later discussion. On August 3, 2015, shortly before
1 P.M., an assailant walked from a public road into a housing
complex parking lot and stood next to a parked car occupied by
Gregory Bridges (driver seat), Unique Bridges (front passenger
seat), and Elizabeth Scott (rear passenger seat). The assailant
fired multiple gunshots into the car, striking Gregory Bridges
in the head, Unique Bridges in the chest, and Scott in the leg.
Following the shooting, the assailant abruptly turned around,
walked briskly back toward a white four-door pickup that rolled
up to roadside, entered the front passenger side, and rode away
in the pickup. Approximately an hour later, just a mile from
the scene of the shooting, police officers located a parked,
unoccupied white pickup truck with a missing front registration
plate. Inside the passenger compartment of the pickup, officers
2 found the registration plate with attaching screws.
Investigators determined that the defendant rented the pickup
weeks earlier on July 11, 2015, and the pickup contained the
rental agreement as well as other paperwork bearing the
defendant's name. Investigators also recovered the defendant's
fingerprints from the exterior of the front passenger door
(above and below the handle) as well as the interior passenger
door handle and armrest. Eyewitness descriptions and
surveillance video recordings showed that the defendant's
overall appearance (gender, height, weight, build, hair, skin
tone) bore significant similarities to the assailant.
Discussion. 1. Sufficiency of identification evidence.
The defendant claims that the Commonwealth did not present
sufficient evidence that he was the assailant. In reviewing the
sufficiency of the evidence, we consider "whether, after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt." Latimore, 378 Mass. at
677, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).
Viewing the evidence under this standard, we are satisfied that
the Commonwealth produced sufficient evidence to submit the
question of identity to the jury.
While the defendant isolates various facts and contends
none are sufficient to prove the defendant shot the victims, the
3 evidence cannot be parsed and viewed "in isolation."
Commonwealth v. MacCormack, 491 Mass. 848, 860 (2023). Instead,
the evidence and reasonable inferences, properly viewed, "create
a 'fabric of proof' that is sufficient to warrant the jury's
finding that the defendant was" the perpetrator. Id. at 860-
861, quoting Commonwealth v. Rojas, 388 Mass. 626, 630 (1983).
Here, jurors could rationally conclude that the fabric of
proof implicated the defendant as the perpetrator. The evidence
showed the defendant rented a four-door white pickup on July 11,
2015; about a week later a witness saw the defendant driving a
white pickup near the housing development where the shooting
would occur; a week before the shooting another witness noticed
a white pickup driving repeatedly through the same housing
development; the assailant, who generally matched the
defendant's characteristics, left the crime scene in a four-door
white pickup; an hour after the shooting and just one mile away,
the police recovered the defendant's rented pickup with the
front registration plate removed and stowed in the passenger
compartment; and the defendant left his fingerprints on the
exterior and interior of the passenger door. From this
evidence, jurors could readily infer that the defendant used the
rental vehicle to search for the victims, concealed the
registration plate during the crime, escaped from the crime
scene as a passenger in the waiting pickup, and left his
4 fingerprints on the front passenger door. Such circumstantial
proof "need only be reasonable and possible; it need not be
necessary or inescapable." Commonwealth v. Davis, 487 Mass.
448, 462 (2021), quoting Commonwealth v. Grandison, 433 Mass.
135, 141, (2001). See Commonwealth v. Morris, 422 Mass. 254,
257 (1996) ("[f]ingerprint evidence coupled with other evidence
may rationally link a defendant to a crime").
2. Ineffective assistance of counsel. The defendant next
claims that the motion judge erred by failing to allow the
defendant's motion for a new trial based upon ineffective
assistance of counsel. We evaluate ineffective assistance
claims "to see whether there has been serious incompetency,
inefficiency, or inattention of counsel -- behavior of counsel
falling measurably below that which might be expected from an
ordinary fallible lawyer -- and, if that is found, then,
typically, whether it has likely deprived the defendant of an
otherwise available, substantial ground of defence."
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). When as here
a motion judge did not preside at trial, "we defer only to the
judge's assessment of the credibility of witnesses at the
evidentiary hearing on the new trial motion, but we consider
ourselves in as good a position as the motion judge to assess
the trial record." Commonwealth v. Haley, 413 Mass. 770, 773
(1992). The defendant bears the burden on such a motion.
5 Commonwealth v. Comita, 441 Mass. 86, 90 (2004). We discern no
error in the denial of the motion for a new trial.
In that motion and on appeal, the defendant contends that
his lawyer lacked any strategy and botched the cross-examination
of Detective Michael Stratton by inviting testimony that (1) the
defendant was the shooter depicted in the video recording, and
(2) the defendant's fingerprints on the pickup meant he was the
shooter. While the defendant relies heavily on defense
counsel's testimony at the motion hearing that he elicited this
testimony through missteps, the motion judge expressly
discredited that portion of the testimony. Instead, the motion
judge concluded that counsel consistently attempted to portray a
flawed investigation led by Detective Stratton who "rushed to
judgment" while ignoring significant leads.
The record provides ample support for the judge's
conclusions. On cross-examination, Detective Stratton conceded
that another person linked to the pickup through fingerprints
resembled the defendant, that the police never contacted the
other person, and that the video recording was ultimately
"inconclusive." Additional cross-examination revealed that
Detective Stratton's assumption that the defendant must have
been the last person to touch the front passenger door handle
was plainly at odds with the testimony of the Commonwealth's own
fingerprint expert, who testified prints are not always left
6 behind and print impressions are affected by "different
factors."1 Thus, counsel's cross-examination strategy
effectively portrayed Detective Stratton as the leader of an
arguably incomplete and flawed investigation. The pursuit of
such a strategy also carries risks, Commonwealth v. Avila, 454
Mass. 744, 754-755 (2009), but we cannot say that the strategy,
though unsuccessful in hindsight, was manifestly unreasonable.
Commonwealth v. White, 409 Mass. 266, 273 (1991).
We also note that the extensive cross-examination of
Detective Stratton bore much fruit for the defense. Detective
Stratton acknowledged that photo arrays were never presented to
witnesses because no one could identify the shooter. The police
lacked any cell tower information that could pinpoint the
defendant's location at the time of the shooting. Detective
Stratton agreed that the bare arm of the shooter depicted in the
video recording was not consistent with the defendant's arm
bearing a sleeve tattoo. He also admitted that the police never
spoke to a total of three named male individuals whose prints
were recovered from the pickup. In a rather extraordinary
admission, Detective Stratton also testified that the police
1 Due to an equipment malfunction, approximately twenty-five minutes of testimony from the Commonwealth's fingerprint expert was not transcribed; the parties submitted an agreed reconstruction pursuant to Mass. R. A. P. 8 (d), as appearing in 481 Mass. 1611 (2019).
7 arrested and charged the defendant before fully processing the
other prints recovered from the pickup and only finished
processing three months before trial to make sure there was
"nothing else that comes up that contradicts what you've
previously investigated." This testimony provided a strong
indication that counsel was far from incompetent and pursued a
logical and coherent strategy.
The record also contradicts the defendant's claims that
counsel sat idly by while the Commonwealth presented improper
testimony from Detective Stratton. We discern no error in the
admission of the evidence and agree with the motion judge that
the absence of any objection stemmed from an evident strategy
rather than neglect. On direct examination, Detective Stratton
testified that the T-shirt found in the back of the pickup was
"consistent with the video" and certain items from the pickup
were not tested because the "evidence led to" the defendant. An
objection to the testimony about the T-shirt would have been
unavailing because there does appear to be a white object in the
black bed of the pickup depicted in the video recording. As far
as the testimony about evidence leading to the defendant, far
from indicating a lack of diligence by counsel, the absence of
any objection supported counsel's overall strategy because
Detective Stratton's testimony was consistent with the defense
theme that investigators had no interest in looking at other
8 suspects once they learned (on the day of the shooting) that the
defendant rented the pickup.
The record also fails to support the defendant's claim that
counsel either elicited or failed to object to witness comments
on the defendant's "refusal to speak with police." Testimony at
trial showed that Detectives Stratton and Vance Mills intended
to speak to the defendant. Detective Mills testified that he
spoke with the defendant's mother but not the defendant. This
testimony fell short of indicating a refusal to speak with the
police and was appropriately offered to rebut the defense claim
of an incomplete investigation. Detective Stratton testified
that the police tried to speak with several people including the
defendant and his mother about the defendant's tattoo. Defense
counsel then asked, "And when you said, can we talk to you, they
said no?" Detective Stratton replied, "Correct." Counsel then
asked, "So you never even got as far as questioning about the
tattoo?" Detective Stratton asked, "With who? Fabian
Gonzalez?" Counsel then clarified, "No, the Mom." Like the
motion judge, we do not read this exchange as a comment on the
defendant's refusal to speak, especially in light of Detective
Stratton's testimony a moment before that the police were unable
to find the defendant.
In another evident strategic choice, defense counsel
addressed Detective Stratton's improper reference to a booking
9 sheet from an unrelated case involving the defendant. The
prosecutor had attempted to use the booking sheet to refresh
Detective Stratton's memory about the defendant's size and
weight closer in time to the shooting. Following an objection
and a sidebar conference where the parties addressed a remedy to
the booking reference, defense counsel told the judge, "I know
how I'm going to address it on the cross examination." The
judge replied, "Okay, I'll just leave it at that." On cross-
examination, defense counsel delivered as promised, and
Detective Stratton revealed that the booking was for operating
an uninsured motor vehicle. So, rather than leaving the matter
untouched or requesting a curative instruction, defense counsel
chose to confront Detective Stratton's remark head on by
demonstrating that the prior offense was insignificant. This
maneuver reflected reasonable judgment, not profound neglect.
Next, the defendant claims counsel erred by failing to
object to a series of sanitized booking photos introduced into
evidence. These photographs included the defendant and five
other persons who left fingerprints in the pickup as well as
another individual. Counsel did not object. Assuming there was
an insufficient foundation to admit the photographs and the
testimony of Detective Stratton relative to the size and weight
of the individuals depicted, the absence of an objection does
not indicate an error by counsel. Instead, the absence of an
10 objection was an evident strategic decision to display these
individuals to the jury as alternative culprits in a flawed
investigation and thereby suggest a reasonable doubt as to the
defendant's guilt.
We agree with the defendant's contention that Detective
Stratton should not have testified about a conversation he had
with Casey Valdez. Detective Stratton testified that Valdez
called the defendant's mother within an hour of the shooting and
spoke of the victims' wound locations, information that "nobody
knew." Later, he testified that Valdez told him that she spoke
with the defendant's mother. Defense counsel objected, and a
sidebar followed. The trial judge sustained the objection and
refused to allow further testimony about Valdez's out of court
statements. The defendant now contends, as he did in his new
trial motion, that trial counsel erred by failing to move to
strike testimony that Valdez "learned what happened" from the
defendant's mother. Valdez's hearsay statement to Detective
Stratton should not have been admitted, and counsel should have
moved to strike; however, we discern no prejudice for two
reasons. First, when Detective Stratton broached the subject,
counsel followed up and asked, "And she didn't tell you that
Fabian Gonzalez knew anything about the shooting?" Detective
Stratton replied, "She did not." This clarification by counsel
blunted any suggestion that the defendant shared inside
11 information with his mother. Second, counsel successfully
impeached Detective Stratton's claim that nobody knew the
details of the shooting. The shooting occurred in a parking lot
with numerous witnesses converging to render aid to the victims,
and information quickly appeared "all over Facebook." Because
detail of the wound locations was not information known only to
the shooter, as Detective Stratton may have initially implied,
and the prosecutor avoided this subject altogether, any error by
counsel did not result in prejudice. Saferian, 366 Mass. at 96.
3. Sleeping juror. As a final claim of ineffective
assistance, the defendant contends that counsel erred by failing
to report a suspected sleeping juror or to request a voir dire.
Just before the judge sent jurors out to deliberate, the
prosecutor notified the judge, "throughout the trial I feel
there's one juror who has consistently been falling asleep, and
I noticed it more so today because I stared at them directly."
Defense counsel agreed and reported that the defendant brought
it to his attention "a few times." After identifying the juror,
the judge said, "[E]very time I've looked, he's been awake or at
least paying attention or appearing to be awake." The judge
reminded counsel that it was a "bit late" to be pointing this
out because of his "obligation under the case law to do
something about it." The judge took no further action, and no
one raised an objection. The motion judge rejected the claim.
12 "A judicial observation that a juror is asleep, or a
judge's receipt of reliable information to that effect, requires
prompt judicial intervention to protect the rights of the
defendant and the rights of the public, which for intrinsic and
instrumental reasons also has a right to decisions made by alert
and attentive jurors." Commonwealth v. Beneche, 458 Mass. 61,
78 (2010), quoting Commonwealth v. Dancy, 75 Mass. App. Ct. 175,
181 (2009). A judge has discretion regarding the nature of the
intervention, and not every complaint regarding juror
inattentiveness requires a voir dire. Beneche, supra at 78.
The defendant bears the burden of showing the judge's action was
"arbitrary or unreasonable." Commonwealth v. Brown, 364 Mass.
471, 476 (1973).
Here, the judge considered the belated and unspecified
report by counsel. He noted that the juror appeared to be awake
"every" time he looked at him. The judge also considered
whether it was possible that the juror was "just thinking
seriously." See Commonwealth v. Keaton, 36 Mass. App. Ct. 81,
87 (1994) ("[m]editation may be mistaken for somnolence").
Defense counsel rejected this possibility without elaboration
and without identifying when the juror appeared to be sleeping
or why counsel delayed notifying the judge. Ultimately, the
judge "was entitled to rely on his own observations at the
trial" with respect to the juror. Commonwealth v. Morales, 453
13 Mass. 40, 47 (2009), and he was not obliged to act on the
inexplicably delayed, conclusory report. Commonwealth v.
Vaughn, 471 Mass. 398, 412 (2015). See Commonwealth v. Fritz,
472 Mass. 341, 353-354 (2015) (no abuse of discretion in
declining to conduct a voir dire where judge "had been watching
the jury and did not see any jurors sleeping"). Contrast
Commonwealth v. Villalobos, 478 Mass. 1007, 1008 (2017) (voir
dire appropriate where prosecutor reported juror fell asleep
during the testimony and another juror fell asleep during cross-
examinations). "As there was no error, there can be no
ineffective assistance of trial counsel." Commonwealth v.
Dykens, 438 Mass. 827, 837 (2003).
4. Newly discovered evidence. As an additional claim in
his motion for a new trial and on appeal, the defendant argues
that newly discovered evidence merits a new trial. He contends
that testimony of a fingerprint expert, retained posttrial by
the defense, casts doubt on the justice of the conviction. The
motion judge found that the new defense expert "credibly
testified at the evidentiary hearing that, because of the size
of the front passenger door handle and the location of the
prints, it could not be determined when Gonzalez's prints were
left on the door handle, and it could not definitively be said
that he was the last person to touch the handle." The motion
judge concluded that this testimony did not constitute newly
14 discovered evidence and did not carry sufficient weight to cast
real doubt on the convictions. "[A]n appellate court will
examine the motion judge's conclusion only to determine whether
there has been a significant error of law or other abuse of
discretion" (quotation omitted). Commonwealth v. DiCicco, 470
Mass. 720, 728 (2015). After a careful review of the record, we
discern no error by the motion judge.
Even if credible, the testimony offered by the posttrial
expert is not "newly discovered" and does not "cast[] real doubt
on the justice of the conviction." Commonwealth v. Grace, 397
Mass. 303, 305 (1986). As the motion judge noted, the defense
could have presented a fingerprint expert at trial but did not
do so. Furthermore, as previously discussed, the posttrial
expert's testimony is entirely consistent with the testimony of
the Commonwealth's expert who testified at trial and opined that
prints are not always left behind, and print impressions are
affected by "different factors." Defense counsel expressly
relied on the testimony of the Commonwealth's expert when he
argued in his closing that the expert testified "you just can't
tell when fingerprints were actually left" behind.
5. Other alleged errors. Although neither the defendant
nor the trial judge noted anything amiss about the prosecutor's
closing argument at trial, the defendant claimed in his new
trial motion and now claims on appeal that the argument was so
15 riddled with obvious prejudicial errors that he did not receive
a fair trial. We disagree. All the defendant's arguments take
the prosecutor's remarks out of context and do not require
extensive discussion. The prosecutor properly argued inferences
from the surveillance video recording, responded appropriately
to arguments of the defense, did not imply she had specialized
knowledge about the case, did not appeal to sympathy, did not
imply the getaway driver struck a deal with the police, and did
not misstate the evidence. We also note that the judge
repeatedly told jurors that arguments are not evidence. We
discern no error by the prosecutor and no abuse of discretion by
the motion judge who rejected the defense claims.
For the first time, the defendant claims error in the
attorney-conducted voir dire of potential jurors relative to the
absence of scientific evidence. The defendant contends that the
prosecutor's questions posed to potential jurors sought to
commit them to convicting the defendant and misstated the law on
circumstantial evidence. We discern no error and no substantial
risk of a miscarriage of justice. Commonwealth v. Freeman, 352
Mass. 556, 563-564 (1967). As the Commonwealth concedes in its
brief, the questioning of potential jurors became unwieldy and
lengthy. None of the questions now challenged, however,
committed jurors to convict or evinced an abuse of discretion by
the trial judge who allowed them. Commonwealth v. Gray, 465
16 Mass. 330, 338-340, cert. denied, 571 U.S. 1014 (2013).
Instead, the questions properly probed whether jurors could
decide the case without bias. Also, to the extent any attorney
discussion of circumstantial evidence may have been inartful,
the judge anticipated such a possibility and carefully
instructed potential jurors on this topic prior to the voir dire
and instructed the jurors in the final charge. See Commonwealth
v. Webster, 5 Cush. 295, 310-312 (1850).
As a final claim of error, the defendant contends that his
cousin and two others who spoke to a juror during a break in the
trial engaged in "presumptively prejudicial contact" requiring
an inquiry of the juror. The trial judge addressed this issue
during a hearing, issued a written decision, and declined to
credit the affidavit of the defendant's cousin. The judge also
noted that the affidavit failed to disclose any extraneous
influence or juror bias. We discern no error.
6. Jury instruction on firearm offenses. In 2017, the
jury returned guilty verdicts in the present case on, among
others, indictments charging unlawful possession of a firearm
(G. L. c. 269, § 10 [a]) and carrying a loaded firearm (G. L.
c. 269, § 10 [n]). Five years after the defendant's trial,
while this direct appeal was still pending, the Supreme Court
issued a decision in New York State Rifle & Pistol Ass'n v.
Bruen, 597 U.S. 1 (2022). In light of that decision, the
17 Supreme Judicial Court determined that the "absence of a
license" is an essential element for crimes charging unlawful
possession of a firearm, and a judge must instruct jurors that
the Commonwealth bears the burden of proving that a defendant
lacked the requisite license. Commonwealth v. Guardado, 491
Mass. 666, 690-693 (2023) (Guardado I). Following arguments in
the present case, we stayed the defendant's direct appeal while
awaiting then-pending reconsideration by the Supreme Judicial
Court of its decision in Guardado I.
On reconsideration, the Supreme Judicial Court clarified
that the remedy for a flawed jury instruction on this issue is a
new trial rather than a judgment of acquittal. Guardado II, 493
Mass. at 6-9. Here, without benefit of Bruen, Guardado I, or
Guardado II, the judge did not fully instruct the jury on the
Commonwealth's burden of proof, and the Commonwealth did not
attempt to prove the absence of a license for convictions of
unlawful possession of a firearm and carrying a loaded firearm.
The issue of licensure simply did not emerge during the
defendant's trial as "precedent clearly had established that
absence of licensure was not an essential element of any of the
crimes with which the defendant was charged." Guardado II, 493
Mass. at 6. Because the defendant's direct appeal was pending
when the Bruen decision issued, the newly announced rule applies
to this case. As dictated by the holding in Guardado II, we
18 must vacate the convictions for unlawful possession of a firearm
and carrying a loaded firearm and set aside those verdicts.
Guardado II, 493 Mass. at 6-9. The Commonwealth, of course,
remains "free to retry the defendant" on those charges "if it so
chooses." Commonwealth v. Wooden, 103 Mass. App. Ct. 677, 684
(2024).
Conclusion. For the reasons set forth above, we discern no
error or combination of errors that casts doubt on the verdicts
for armed assault with intent to murder (indictment 1),
aggravated assault and battery (indictment 2), assault and
battery by means of a dangerous weapon (indictments 3 and 4),
and discharging a firearm within 500 feet of a dwelling
(indictment 7), and we affirm those convictions. We likewise
affirm the order denying the defendant's motion for new trial.
We vacate the convictions for unlawful possession of a firearm
(indictment 5) and carrying a loaded firearm (indictment 6) and
set aside those verdicts.
So ordered.
By the Court (Green, CJ, Desmond & Hodgens, JJ.2),
Assistant Clerk
Entered: June 6, 2024.
2 The panelists are listed in order of seniority.