Commonwealth v. Fabian Gonzalez.

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

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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

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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

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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.

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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

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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).

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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

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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

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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

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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

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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.

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"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

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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

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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

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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.

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