Commonwealth v. Gomes

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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.

1
Justices Spina and Duffly participated in the deliberation
on this case prior to their retirements.
 2

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.

1. 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
 3

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 Neither

Emmanuel nor the defendant lived in the Langdon Street building.

On the morning of February 13, 2007, Anthony walked out of

his home; as he approached his vehicle, he noticed a black Buick

automobile (Buick) stopped at the intersection of George Street

and Langdon Street. As the Buick, a rented vehicle, proceeded

slowly down George Street, its driver, David Evans, was looking

at Anthony. Shortly thereafter, while Anthony was sitting in

his own vehicle, he saw the Buick again, this time driving fast

and making a turn onto Langdon Street. Anthony drove off

quickly and circled the block; Evans followed him in the Buick.

When Anthony returned to the area in front of the Langdon Street

building, he parked and ran quickly inside the building with his

father, who had been standing right outside the building's door,

after which they both heard gunshots being fired. A neighbor

also heard the gunshots, looked out of her bedroom window, and

saw a man chasing the Buick and firing several shots at it

before running to the Langdon Street building. Later the same

day, Evans, who had rented the Buick, returned it to the rental

agency with damage to a tire consistent with being struck by a

2
We refer to members of the DaSilva family by their first
names to avoid confusion.
 4

bullet.3 Evans then rented a silver Nissan Maxima automobile

with New Hampshire license plates.

Shortly after 9 A.M., Boston police officers responded to

Langdon Street. The defendant, who had arrived at the Langdon

Street building within fifteen minutes of when police were

dispatched there, was met by police who permitted him to enter

the building to check on his parents. At approximately 10 A.M.,

after the defendant had become upset and argumentative with the

police, officers escorted him out of the building in handcuffs

but, thereafter, released him and permitted him to leave. The

defendant drove away from Langdon Street in a rented silver

Chevrolet Impala automobile with New Hampshire license plates.

He returned in the same Impala to Langdon Street at some point

later in the day.

Based on the report that an armed gunman had run into the

Langdon Street building, police officers cleared the building of

all its residents. Four young men were removed from the common

basement of the building, arrested, and charged with breaking

and entering.4 Police officers secured the apartment building

3
The Buick automobile was later taken to a mechanic's shop
for repair and something fell to the floor when the tire was
removed. A mechanic later located a bullet, near the wheel-
changing machine, and it was turned over to the police.
4
One of the four young men matched the neighbor's
description of the man who had fired shots at the Maxima. All
 5

while they waited for a search warrant to be obtained, and no

residents were permitted to return. While waiting, members of

the Gomes and DaSilva families stayed in their own automobiles

for what amounted to many hours, given that the police did not

obtain the search warrant and conduct the search of the building

until 10 P.M. that night. During the afternoon, the defendant's

brother-in-law as well as one or more police officers observed

Evans's Maxima drive by the building.

Evans lived on Maywood Street in Roxbury. At around 6 P.M.

of the same day, Sanchez and several other young men -- Roberto

Ramos-Santiago, Joel Perez, Ikim Lobban, Maurice Cundiff,

Donnell Grady, and Rodney Hoyte -- were standing together on the

porch and sidewalk near a house on Maywood Street, across the

street from Evans's house. Evans's rented Maxima was parked

along the sidewalk near the group.

At that time, the defendant drove the Impala quickly down

Maywood Street and stopped abruptly when the vehicle reached the

group. Shots were fired from the open front and back windows on

the passenger side of the Impala at the men in the group. When

the shooting ceased, the defendant sped off in the Impala toward

Blue Hill Avenue. Within minutes, Boston police officers

responded to the scene and discovered Sanchez and several

four men were held in police custody overnight before being
released the following morning.
 6

additional shooting victims. Sanchez was shot one time in the

lower back. He was transported to a hospital where he arrived

in cardiac arrest and was pronounced dead shortly thereafter.

The cause of death was blood loss due to the gunshot wound.

During the autopsy, fragments of a copper jacket and lead core

were recovered from his abdomen. Ramos-Santiago sustained

multiple gunshot wounds to his back and arm. He also was

transported to a hospital where a bullet was removed from his

arm. Perez was shot in his right calf, and Cundiff fractured

his arm when he jumped over a fence to escape the gunfire. At

the scene, Perez told a police officer that the shooters were in

a gray, four-door, newer model Chevrolet Impala, and this

description was broadcast over the police radio.5

Police officers recovered one spent .380 caliber shell

casing along the curb of the sidewalk in front of the Maywood

Street house and one spent .38 caliber bullet from the kitchen

floor of a home on Savin Street; that bullet had entered through

a rear window that faced Maywood Street. In the meantime,

shortly after 6 P.M., a detective who was driving to the Maywood

Street scene observed a Chevrolet Impala that matched the

description of the vehicle given by witnesses. The defendant

was the driver, and Emmanuel the front seat passenger. The

5
All of the men who were wounded in the attack testified at
trial.
 7

detective stopped the defendant's vehicle. Additional police

officers arrived within seconds. Emmanuel and the defendant

were taken into police custody, and the Impala was towed from

the scene. Officers thereafter searched the Impala pursuant to

a warrant and discovered six spent .380 caliber shell casings on

the front passenger side, two on the seat and four on the floor.

There also was a piece missing from the vehicle's passenger side

mirror.

Two guns, a .38 revolver and a .380 semiautomatic pistol,

were used in the Maywood Street shooting.6 The .38 caliber

bullet recovered from the kitchen floor on Savin Street and the

.38 caliber bullet recovered from Ramos-Santiago's arm were

fired from the same gun. In addition, the spent .380 caliber

shell casing found on Maywood Street and the six .380 caliber

shell casings found inside the Impala were fired from the same

gun. The bullet fragments removed from Sanchez's body were

inconsistent with a .380 caliber bullet, and Detective Tyrone

Camper, the Commonwealth's ballistics witness, was unable to

determine whether the fragments were consistent with a .38

caliber bullet. Neither a .38 revolver nor a .380 semiautomatic

pistol was recovered in connection with this case.

6
According to a Boston police ballistics expert, .380
caliber ammunition and .38 caliber ammunition are not
interchangeable; a .380 caliber cartridge is designed to be used
in a semiautomatic pistol, while a .38 caliber cartridge is
designed to be used in a revolver.
 8

At around 10 P.M., Boston police officers executed a search

warrant at the Langdon Street building. In the first-floor

apartment, officers found mail dated May, 2006, and addressed to

the defendant there; two bags of marijuana; two electronic

scales; and $7,447 in cash found hidden in the headboard of a

bed. In the basement, police officers found personal papers,

some of which belonged to the defendant; "crack" cocaine;

marijuana; $545 in cash; a red hooded sweatshirt; a .25 caliber

firearm and a .22 caliber firearm, each loaded with six rounds

of ammunition; a nine millimeter firearm loaded with eight

rounds of ammunition; and a .380 caliber Mauser semiautomatic

firearm containing no ammunition.7,8

b. Procedural history. On May 2, 2007, a grand jury

returned indictments charging the defendant with murder in the

first degree, six counts of armed assault with intent to murder;

assault and battery by means of a dangerous weapon, aggravated

assault and battery by means of a dangerous weapon, four counts

of assault by means a dangerous weapon, possession of a firearm

7
Two discernible latent fingerprints were found on the
firearms; neither was a match for the defendant. He was not
charged with any offenses in connection with the drugs and
firearms found in the building.
8
The bullet found at the mechanic shop in connection with
the Buick automobile rented by Evans and five .380 caliber shell
casings found by police outside the Langdon Street building were
fired from the Mauser found in the basement of the Langdon
Street building.
 9

without a license, and possession of ammunition without a

firearm identification card.9 Trial before a jury began in

November, 2010.10 The Commonwealth's theory at trial was that

the defendant was guilty of the charged offenses as a joint

venturer with Emmanuel to carry out the Maywood Street shooting

in an attempt to retaliate against Evans for pursuing and

frightening Anthony and causing the extended police occupation

of the family's apartments. The defense theory was a

combination of mistaken identity where the vehicle driven by the

defendant did not match the eyewitness descriptions of the

assailants' vehicle, and that the defendant did not knowingly

participate with Emmanuel in a joint venture with the specific

intent to kill Sanchez or to commit the other crimes.

On December 13, 2010, the jury found the defendant guilty

of murder in the first degree on the theory of deliberate

premeditation, four counts of armed assault with intent to

murder, assault and battery by means of a dangerous weapon,

aggravated assault and battery by means of a dangerous weapon,

9
Prior to trial, the Commonwealth filed nolle prosequis in
relation to the indictments for unlawful possession of a firearm
and ammunition.
10
The defendant was to be tried together with Emmanuel
DaSilva and the trial began against both, but due to illness of
Emmanuel's counsel during trial, a mistrial was declared with
respect to Emmanuel, and the trial proceeded against the
defendant only. Emmanuel was subsequently tried and found
guilty of all charges. This court affirmed his convictions.
Commonwealth v. DaSilva, 471 Mass. 71 (2015).
 10

and two counts of assault by means of a dangerous weapon.11 He

received a mandatory life sentence without the possibility of

parole on the murder conviction, and a sentence of from

seventeen to eighteen years on the conviction of armed assault

with intent to murder Ramos-Santiago, to be served from and

after the life sentence.12

2. Discussion. a. Sufficiency of the evidence. The

defendant challenges the sufficiency of the evidence supporting

his conviction of murder in the first degree as well as the

additional crimes, arguing that no rational jury could find

beyond a reasonable doubt that he knowingly participated in the

shooting incident on Maywood Street and did so with the

requisite specific intent to kill Sanchez.13 See Commonwealth v.

Zanetti, 454 Mass. 449, 467-468 (2009).14

11
The defendant was found not guilty of two counts of armed
assault with intent to murder and two counts of assault by means
of a dangerous weapon.
12
On the remaining convictions the defendant was sentenced
to shorter sentences, to run concurrently with the from and
after sentence.
13
At the close of the Commonwealth's case and again at the
close of all the evidence, the defendant's motions for a
required finding of not guilty on all crimes charged were
denied.
14
The defendant also argues that no rational fact finder
could find beyond a reasonable doubt that he knowingly
participated in the killing of Sanchez with the motive alleged
by the Commonwealth. The Commonwealth, however, does not bear
the burden of proving motive as an element of the crime charged.
 11

We review the denial of a motion for a required finding of

not guilty to determine whether the evidence, viewed in the

light most favorable to the Commonwealth, "was sufficient to

persuade a rational jury beyond a reasonable doubt of the

existence of every element of the crime[s] charged."

Commonwealth v. Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass.

215 (2007), and 460 Mass. 12 (2011), quoting Commonwealth v.

Campbell, 378 Mass. 680, 686 (1979). From the evidence, a

reasonable jury could find that the defendant, whose family

lived in the Langdon Street building, was motivated by anger at

the events that resulted from Evan's actions toward his nephew,

Anthony, i.e., family members having to vacate the house for

more than twelve hours, and police securing and apparently

intending to search the entire building; that the defendant was

the driver of the Impala that sped down Maywood Street -- the

street where Evans lived -- and stopped the vehicle directly

parallel to the group of young men standing near where Evans's

Maxima was parked; that the defendant remained stopped at that

location while multiple shots were fired from two different

weapons at the group of young men; that when the shooting

ceased, the defendant sped off, quickly removing the shooters

from the scene; and that the shell casings located in the

See Commonwealth v. Carlson, 448 Mass. 501, 508-509 (2007),
citing Commonwealth v. Campbell, 378 Mass. 680, 688 n.8 (1979).
 12

defendant's vehicle were consistent with at least one casing

found at the scene.

This evidence was more than sufficient to permit a

reasonable fact finder to infer that the defendant knowingly

participated in the shooting incident and had or shared an

intent to kill one or more of the young men standing in the

group near Evans's rented Maxima,15 even assuming for argument

that the evidence would not permit a finding that the defendant

himself shot one of the guns involved. See, e.g., Commonwealth

v. Williams, 422 Mass. 111, 121 (1996) ("Joint venture may be

proved by circumstantial evidence, including evidence of flight

together"); Commonwealth v. Giang, 402 Mass. 604, 608-609 (1988)

(knowing participation may be inferred where defendant drives

getaway vehicle). See also Commonwealth v. Cintron, 435 Mass.

509, 515-516 (2001), overruled in part on other grounds,

Commonwealth v. Hart, 455 Mass. 230, 239-242 (2009) (defendant's

knowing participation with brother in victim's murder and shared

intent to kill established where defendant knew of prior violent

history between brother and victim, chased victim alongside

brother, and encouraged brother to shoot victim); Commonwealth

15
As discussed infra, this is not a case where the
Commonwealth proceeded on a theory of transferred intent.
Rather, the Commonwealth's theory was that the defendant and
Emmanuel actually intended to kill one or more of the members of
the group standing in the street in the mistaken factual belief
that Sanchez or another of the young men was Evans or associated
with Evans.
 13

v. Soares, 377 Mass. 461, 470, cert. denied, 444 U.S. 881 (1979)

(intent may be inferred from "defendant's knowledge of the

circumstances and subsequent participation in the offense").16

b. Admission of evidence seized from Langdon Street

building. At trial, over the defendant's objection, the judge

allowed in evidence the items seized by the police from the

Langdon Street building during their search of the premises.

The defendant renews his challenge to the admission of this

evidence, arguing that it was irrelevant for any of the purposes

stated by the judge, and, alternatively, that even if marginally

16
The defendant advances a related argument that, for the
crimes at issue that include possession of a weapon as an
element of the offense, there was insufficient evidence for a
reasonable jury to conclude beyond a reasonable doubt that the
defendant knew his passenger (or passengers) in the Impala were
armed. See Commonwealth v. Britt, 465 Mass. 87, 100 (2013)
(where conviction is based on joint venture theory of crime that
has as element use or possession of weapon, Commonwealth bears
"the burden of proving that [the defendant] had knowledge that a
member of the joint venture had a weapon"). This claim fails:
the evidence certainly permits an inference that the defendant
knew his companion or companions possessed dangerous weapons.

The defendant also argues for the first time on appeal that
the judge failed to instruct the jury on the knowledge
requirement described in Britt, supra at 100, which warrants
reversal of the convictions of the crimes to which the knowledge
requirement applied, and the grant of a new trial. We disagree.
The defendant did not object to the omissions of the instruction
at trial, and the absence of the instruction, although error,
did not create a substantial likelihood of a miscarriage of
justice because the circumstantial evidence of the defendant's
knowledge that Emmanuel (or any other passenger in the Impala
with the defendant on Maywood Street) was armed was "strong and
one-sided" (citation omitted). Commonwealth v. Amirault, 424
Mass. 618, 650 (1997). See Commonwealth v. Randolph, 438 Mass.
290, 297-298 (2002).
 14

relevant, the probative value of this evidence was substantially

outweighed by the risk of prejudice.

"[E]vidence of uncharged criminal acts or other misbehavior

is not admissible to show a defendant's bad character or

propensity to commit the charged crime, but may be admissible if

relevant for other purposes such as 'common scheme, pattern of

operation, absence of accident or mistake, identity, intent or

motive.'" Commonwealth v. Dwyer, 448 Mass. 122, 128 (2006),

quoting Commonwealth v. Marshall, 434 Mass. 358, 366 (2001).

See Mass. G. Evid. § 404(b) (2016). The trial judge admitted

the evidence challenged by the defendant for the limited purpose

of proving the defendant's knowledge, motive, or intent. The

evidence was relevant with respect to all three of these issues,

where the Commonwealth's theory was that the defendant (and

Emmanuel), based on loyalty to family and friends, sought to

retaliate against Evans for Evans's pursuit of Anthony and the

family members' subsequent disruption and loss of valuable items

(the cash, guns, and drugs in the basement) due to police action

in response to the incident involving Anthony and the police

seizure of the contraband items. This evidence provided a

possible explanation for the defendant's clear agitation about

the presence of the police in his family's apartment building

and more directly showed the extent of the loss to the

defendant's family members and friends, which may have fueled
 15

the defendant's desire to retaliate over and above Evans's

threatening conduct toward Anthony. See Commonwealth v.

DaSilva, 471 Mass. 71, 79 (2015) (evidence of uncharged conduct

relevant to show motive to retaliate). See generally

Commonwealth v. Arroyo, 442 Mass. 135, 144 (2004) (evidence is

relevant if it has "rational tendency to prove an issue in the

case, . . . or [would] render a desired inference more probable

than it would be [otherwise]" [quotation and citations

omitted]); Mass. G. Evid. §§ 401-402 (2016).

The defendant's argument -- that the evidence is, at best,

attenuated because little connection was shown between the

defendant and the specific contraband items found in the

building -- is not without some merit, but the link between the

over-all inconvenience to the defendant's family and his alleged

motivation to commit the crime was certainly strong enough to

satisfy the threshold requirement of relevance. See

Commonwealth v. Ashley, 427 Mass. 620, 624-625 (1998), quoting

Commonwealth v. St. Germain, 381 Mass. 256, 271 (1980) ("There

is no requirement that evidence [of motive] be conclusive in

order to be admissible"). See also Arroyo, 442 Mass. at 144,

quoting Commonwealth v. Sicari, 434 Mass. 732, 750 (2001), cert.

denied, 534 U.S. 1142 (2002) (evidence need only provide "a link

in the chain of proof").
 16

Balancing the probative value of this evidence against its

prejudicial effect presents a closer question. See Commonwealth

v. Crayton, 470 Mass. 228, 249 (2014) ("Even if the evidence is

relevant to one of [the permissible] purposes, the evidence will

not be admitted if its probative value is [substantially]

outweighed by the risk of unfair prejudice to the defendant");

Mass. G. Evid. § 403 (2016). Considerations that diminish

probative value in this particular case include the following:

the defendant himself did not live on Langdon Street, and was

not present when the incident involving Evans and Anthony took

place; the defendant was not charged with any crimes related to

the items seized from the two apartments in the building at the

Langdon Street address, nor was there any evidence otherwise

that he was connected to any activities relating to the sale of

drugs or weapons; and the defendant could not have known the

specific identity and value of the items ultimately seized from

the Langdon Street apartment building when the shooting incident

on Maywood Street took place because the police did not execute

the search warrant until approximately four hours later. On the

other side of the ledger -- prejudicial effect -- the

introduction of evidence of drugs, cash, and multiple guns,

along with some personal papers addressed to the defendant, in a

trial for murder and other violent crimes that have as an

element the use of a dangerous weapon, presents a real potential
 17

to paint the defendant generally as a violent man connected to a

violent family and involved in a life of crime; it presents a

threat of being used improperly by the jury as evidence of bad

character and criminal propensity.

The question whether the evidence was more prejudicial than

probative is close, but we recognize that the trial judge is in

the best position, and consequently possesses substantial

discretion, to resolve the question. See L.L. v. Commonwealth,

470 Mass. 169, 185 n.27 (2014) (abuse of discretion occurs only

where "the judge made 'a clear error of judgment in weighing'

the factors relevant to the decision . . . such that the

decision falls outside the range of reasonable alternatives"

[citation omitted]). Particularly in light of the judge's

instruction, given during trial when the evidence was admitted

and repeated in his final jury charge, that the evidence was

offered for a limited purpose and the jury were not to consider

the evidence for the purpose of "criminal personality" or "bad

character," we conclude that there was no error.17

17
Moreover, even assuming that the evidence should not have
been admitted, the admission would likely not qualify as
prejudicial error warranting reversal, given the strength of the
evidence that the defendant knowingly participated in the
Maywood Street shooting incident with the requisite intent to
kill. See Commonwealth v. Cruz, 445 Mass. 589, 591 (2005),
quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994)
(error is nonprejudicial if it "did not influence the jury, or
had but very slight effect").
 18

c. Questions posed by the jury. Over the defendant's

objection, the trial judge permitted jurors to ask questions of

the witnesses. During his preliminary charge to the jury,

before any witnesses testified, the judge instructed the jurors

that once the parties finished examining each witness, the

jurors would be permitted to ask questions in accord with

certain procedures that he then explained -- procedures that

conformed to those spelled out in Commonwealth v. Urena, 417

Mass. 692, 701-703 (1994), and Commonwealth v. Britto, 433 Mass.

596, 613-614 (2001). On appeal, the defendant challenges the

responses to three separate questions posed by jurors, to each

of which he objected at trial. There was no error.

First, the defendant challenges a detective's response to a

question about the distance or space between the driver's seat

and the front passenger's seat of the Impala: the detective

responded that he did not believe that there was enough distance

between these two seats for a person to move from the back seat

to the front, but he did not know. The defendant argues that

the detective's response (1) lacked foundation and was

speculative, (2) lessened the Commonwealth's burden of proof and

prejudiced the defense because it corroborated evidence that two

guns were involved and eyewitness testimony that gunfire was

observed coming from the front and rear passenger seats; and (3)

improperly raised an inference that another shooter, who had
 19

been in the back seat, had left the Impala before it was stopped

by the police, which would explain why witnesses observed shots

coming from the back seat despite the absence of a back seat

passenger when the police stopped the Impala. We disagree that

the question or its response were improper or created unfair

prejudice. The detective based his response on personal

knowledge, having viewed the interior of the Impala, and in any

event, the response was qualified by his final statement that he

did not know.18 See Cintron, 435 Mass. at 521 ("The only

foundation required for the testimony of lay witnesses is the

ability to perceive, recall, and recount information within the

witness's personal knowledge"). The fact that the detective's

response may have corroborated eyewitness testimony regarding

the shooting event, or supported an inference that there was

another shooter who escaped detection -- an inference that the

eyewitness testimony independently made plausible -- was not a

proper ground for excluding the question or striking the

response.

Second, the defendant argues that a question put to a

criminalist concerning damage to the Impala's exterior mirror,

and the criminalist's response -- that he could not tell whether

18
The jurors also heard evidence from a detective that the
center console of the Impala was six inches wide, from which
they could draw their own conclusions regarding a person's
ability to move from the back to the front of the vehicle.
 20

the damage to the mirror was caused by a bullet originating

either inside or outside the vehicle -- were unfairly

prejudicial because the question "had a speculative premise and

a tenor of investigation and advocacy, suggesting a cause for

the damage that advanced the Commonwealth's case." We cannot

say that the question was improper, see Britto, 433 Mass. at 613

("manner of questioning rests in sound discretion of the trial

judge"), and, in any event, the response was of little, if any,

evidentiary value in favor of the Commonwealth; it could not

have caused meaningful prejudice to the defendant.

Third, the defendant contends that the ballistic expert's

testimony -- that shell casings fired from a gun inside a

vehicle could end up both inside the vehicle and on the street

outside, four to six feet away from the vehicle -- was admitted

erroneously because the expert had not been at the scene of the

crime, which rendered his testimony speculative. The expert's

response was not speculative; he answered based on his

education, training, and experience as to the manner in which a

cartridge is ejected from a weapon, rather than drawing on the

circumstances of this particular case. See Cintron, 435 Mass.

at 521.

The defendant also argues that the expert's response

impermissibly provided a basis for the jury to find that the

shell casing found on Maywood Street and the six shell casings
 21

found inside the Impala were fired at the same time from the

same weapon. That the shell casings were fired at the same time

(or within a very short time span) was a fair inference to draw

from the unobjected-to evidence that all the shell casings were

fired from the same gun, and that the shooting occurred just

minutes before the defendant's vehicle was stopped in close

proximity to Maywood Street.

The defendant further contends that the "larger problem"

presented by the juror questioning in this case is in essence

that the judge permitted unnecessary and extensive questioning,

which promoted premature deliberations and allowed jurors to act

as advocates. We disagree. "[T]he decision to allow juror

questioning and the manner of questioning rests in the sound

discretion of the trial judge. It need not be limited to any

particular type of case [and t]he judge may permit questioning

over objection of all parties." Britto, 433 Mass. at 613.

Here, the judge carefully reviewed each juror question with

counsel before posing it to the witness; in some instances, the

judge either refined the question or declined to ask the

question at all. The defendant does not point to any specific

event or aspect of the trial, and we have not found any,

suggesting that premature deliberations took place. Moreover,

the judge specifically instructed the jurors that they were not

advocates. The judge carefully adhered to the procedural
 22

guidelines set forth in Urena, 417 Mass. at 701-703, as modified

by Britto, 433 Mass. at 613-614, for the proper manner in which

to permit juror questions, and the judge instructed the jury in

accord with those guidelines. The defendant has not met his

burden of showing actual prejudice. See Britto, supra at 611

("defendant has the burden of showing actual prejudice from

juror questions"). See also Urena, supra at 699.

d. Additional evidentiary issues. The defendant

challenges the admission or exclusion of certain testimonial

evidence offered by various witnesses. For each challenge, we

review for prejudicial error because the defendant objected at

trial.

i. Perez's description of the shooters' vehicle. A police

officer testified that he arrived at the crime scene on Maywood

Street within three minutes of the dispatch, and Perez, who had

been shot and was shouting and agitated, told him that the

shooters' automobile was a gray, four-door, newer model

Chevrolet Impala. The testimony was admitted as a spontaneous

utterance. The defendant argues that Perez's statement did not

meet the requirements of this exception to the hearsay rule

because "despite being upset and suffering from a gunshot wound

. . . , [Perez] did not speak under the influence of an exciting

event without reflection."
 23

A statement qualifies as a spontaneous utterance and,

therefore, an exception to the traditional prohibition on

hearsay, if: "(A) there is an occurrence or event sufficiently

startling to render inoperative the normal reflective thought

processes of the observer, and (B) the declarant's statement was

a spontaneous reaction to the occurrence or event and not the

result of reflective thought." Mass. G. Evid. § 803(2) (2016).

See Commonwealth v. Santiago, 437 Mass. 620, 623-624 (2002), and

authorities cited. The circumstances of being the target of a

drive-by shooting and actually being shot were certainly enough

to permit a reasonable finding that Perez was sufficiently

startled to render inoperative his normal reflective thought

processes. See Commonwealth v. Irene, 462 Mass. 600, 607

(2012). The testimony fell squarely within the spontaneous

utterance exception and its admission did not constitute error.

ii. Identification of Evans and where he resided. The

defendant argues that the judge erred by admitting in evidence a

photograph of Evans through a neighbor, a witness for the

Commonwealth, because the Commonwealth offered no direct or

circumstantial proof that the photograph shown to the neighbor

genuinely depicted Evans and, therefore, the photograph lacked a

proper foundation for admission. The neighbor testified that

she recognized the person depicted in the photograph shown to

her by the prosecutor; she stated that she did not know the
 24

person's name, but she knew that the person in the photograph

lived on the second floor in her apartment building19 and was the

son of her landlord's fiancée, Michelle Evans. This testimony

provided a sufficient basis for the photograph's admission.

The defendant also argues that testimony to the effect that

the police learned that Evans lived on Maywood Street was based

on information conveyed to the police by others and offered at

trial for the truth of the matter asserted, which constituted

inadmissible hearsay. Evidence that Evans lived at this address

was provided by a police detective. Over the defendant's

objection, the exchange between the prosecutor and the detective

was as follows:

Q.: "Did you learn about a specific person who was
residing [on] Maywood Street?"

A.: "Yes."

Q.: "And what was the name of this person?"

A.: "David Evans."

Q.: "Do you see the photograph that I'm showing you on the
monitor right now . . . ?"

A.: "I do."

Q.: "And based on your involvement with this
investigation, who do you know that person [in the
photograph to be]?"

A.: "David Evans."

19
Evans's driver's license listed his address as being on
West Springfield Street.
 25

The officer testified based on knowledge gained through his

personal participation in the investigation of the incident. We

cannot say that the judge abused his discretion in allowing the

testimony. See Cintron, 435 Mass. at 521; L.L., 470 Mass. at

185 n.27.

iii. Testimony regarding damage to the Impala's side

mirror. The police criminalist testified that a piece of the

passenger side mirror measuring three and one-half inches by two

inches was missing. He performed a gun powder residue analysis

of the mirror, which was inconclusive with respect to whether a

bullet had caused the damage to the mirror. He initially

testified that he formed no conclusion about how the damage was

caused, but later stated in response to questions from the

prosecutor that the damage could have been caused by a bullet

being fired from inside or from outside the vehicle. The

defendant argues that where the criminalist had no personal or

specialized knowledge as to how the damage occurred, he should

not have been permitted to testify that the damage could have

been caused by a bullet. The Commonwealth responds that, on

balance, the testimony caused no prejudice because the

criminalist made it clear that the damage could also have been

caused by something other than a bullet.

Even assuming that it was error to allow this testimony,

the defendant's claim fails because the jury were not likely to
 26

be affected by the evidence. See Commonwealth v. Flebotte, 417

Mass. 348, 353 (1994). The jury heard testimony from the

criminalist that the result of the gun residue analysis was

inconclusive and that the damage may well have been caused by

something other than a bullet. More importantly, evidence as to

the manner in which the damage was caused to this mirror had

little, if any, bearing on whether the defendant knowingly

participated in the shooting event on Maywood Street with the

requisite intent.

iv. Denial of request to offer testimony of police

officer. The defendant argues that the judge improperly

excluded the proffered testimony of a police officer, thus

depriving him of his constitutional right to present a defense.

At trial, the defendant sought to introduce testimony from the

officer to the effect that when the officer arrived at the scene

on Maywood Street, at least two people stated that the shooters

drove away in a white car. The purpose of this testimony was to

contradict testimony given by other witnesses that the shooters

drove away in a gray or silver vehicle -- the color of the

vehicle in which the defendant and Emmanuel were found shortly

after the shooting had occurred. The judge conducted a voir

dire of the officer, during which the judge learned that the two

purported eyewitnesses on which the proffered testimony relied

did not in fact see the vehicle from which the shots were
 27

fired.20 The judge did not permit the officer to testify to the

two witnesses' purported observations on the basis that the

proffered testimony would have been cumulative of evidence

previously admitted that the vehicle had been described by one

or more observers as white. The judge acted well within his

discretion in excluding the proffered testimony. See

Commonwealth v. Brown, 449 Mass. 747, 770 (2007), quoting

Commonwealth v. Carroll, 439 Mass. 547, 553 (2003).

e. Instruction on transferred intent. The defendant

argues that the judge erred in denying his request for a jury

instruction on transferred intent because its omission raised

the risk that the jury would return a guilty verdict on the

charge of murder in the first degree, despite the absence of

proof beyond a reasonable doubt that the defendant had or shared

a specific intent to kill Evans. He claims that the only remedy

for such an error is a new trial.

At the charge conference, the Commonwealth requested that

the judge instruct the jury that, on the charge of murder in the

first degree, the defendant intended to kill "an individual,"

rather than requiring the jury to find that he intended to kill

Sanchez in particular; the defendant and the judge agreed that

20
The witnesses who gave the statements to this police
officer later told other police officers that they did not see
the vehicle from which the shots were fired, and they testified
to the same effect before the grand jury.
 28

this was fair. The defendant requested, however, that the judge

instruct the jury that the Commonwealth was required to prove

that the defendant intended to kill Evans, specifically, based

on the motive theory argued by the Commonwealth throughout the

trial. He also requested that this instruction be followed by a

transferred intent instruction. To require anything less, he

argued, would be to dilute the Commonwealth's burden of proof.

The judge denied the defendant's two-part request, ruling that

giving such an instruction "would be tantamount to" requiring

the Commonwealth to prove beyond a reasonable doubt the motive

for a crime, which is not an element of a criminal offense.

The judge's denial of the defendant's request for a

transferred intent instruction was proper. A transferred intent

instruction is appropriate where a defendant "intends to kill a

person and in attempting to do so mistakenly kills another

person, such as a bystander." Model Jury Instructions on

Homicide, at 39 (2013). See, e.g., Commonwealth v. Shea, 460

Mass. 163, 165-167, 173-174 (2011) (transferred intent

instruction appropriate where fourteen year old girl killed

instead of intended target who pulled girl in front of him

during gunfire); Commonwealth v. Puleio, 394 Mass. 101, 102, 109

(1985) (transferred intent instruction appropriate where

defendant fired bullet at intended target, who ducked, and

bullet struck and killed bystander). To prove the charge of
 29

murder in the first degree in this case, the Commonwealth was

required to prove beyond a reasonable doubt that the defendant,

either himself or as an aider and abettor, intentionally fired

shots into the group of young men on Maywood Street with the

specific intent to kill one or more of them. The Commonwealth

was not required to prove that, in firing the shots, the

defendant and Emmanuel intended to shoot Evans specifically, or

any other person specifically identified. That is, even though

it was the Commonwealth's theory that the motive for the

shooting incident was to punish or retaliate against Evans,

there was no requirement that the Commonwealth prove that Evans

was the specific target of the shots fired. A transferred

intent instruction was not required. See Commonwealth v. Noxon,

319 Mass. 495, 547-548 (1946), quoting First National Bank v.

Mathey, 308 Mass. 108, 115 (1941) (no error in declining to give

transferred intent instruction where evidence did not create

need for instruction).

f. Review under G. L. c. 278, § 33E. We have reviewed the

entire record and discern no reason to exercise our power under

G. L. c. 278, § 33E, to grant a new trial or reduce the degree

of guilt on the conviction of murder in the first degree.

Judgments affirmed.