Commonwealth v. Gomes (Lawyers Weekly No. 10-168-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11427 COMMONWEALTH vs. JOSEPH GOMES. Suffolk. April 8, 2016. – October 26, 2016. Present: Gants, C.J., Spina, Botsford, Duffly, & Hines, JJ.[1] Homicide. Armed Assault with Intent to Murder. Assault and Battery by Means of a Dangerous Weapon. Joint Enterprise. Intent. Evidence, Joint venturer, Intent, Relevancy and materiality, Spontaneous utterance, Identification, Hearsay, Motive. Jury and Jurors. Identification. Practice, Criminal, Capital case, Jury and jurors, Question by jury, Instructions to jury, Request for jury instructions. Indictments found and returned in the Superior Court Department on May 2, 2007. The cases were tried before Raymond J. Brassard, J. David Keighley for the defendant. Teresa K. Anderson, Assistant District Attorney (Julie Sunkle Higgins, Assistant District Attorney, & Gretchen Lundgren with her) for the Commonwealth. BOTSFORD, J. In December, 2010, a Superior Court jury convicted the defendant, Joseph Gomes, of murder in the first degree and of various related offenses involving the use of a dangerous weapon. The charges arose from a drive-by shooting incident that took place in Boston on February 13, 2007, leaving Fausto Sanchez dead and several other young men wounded. In this direct appeal from his convictions, the defendant argues that the judge erred by (1) denying his motion for a required finding of not guilty; (2) admitting in evidence certain items, including drugs, cash, and guns, that were seized from an apartment building owned by his parents; (3) permitting jurors to pose questions to witnesses, three of which were prejudicial; (4) admitting or excluding certain testimonial evidence; and (5) declining to instruct the jury on the theory of transferred intent. The defendant also requests relief pursuant to G. L. c. 278, § 33E. We affirm the defendant’s convictions and decline to grant relief pursuant to § 33E. Background. a. Facts. We summarize the trial evidence in the light most favorable to the Commonwealth. See, e.g., Commonwealth v. Whitaker, 460 Mass. 409, 410 (2011). In February, 2007, several members of the Gomes and DaSilva families lived in the same apartment building on Langdon Street in the Roxbury section of Boston. The defendant’s parents owned the building and lived in an apartment on the second floor; the defendant’s sister, brother-in-law, and nephew, Anthony DaSilva, lived in the first-floor apartment. Anthony and the defendant’s original codefendant, Emmanuel DaSilva, are cousins.[2] […]