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
2

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 
3

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 
4

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 
5

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. 
6

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 
7

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).
8

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 
9

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 
10

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 crossexamination, 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 
11

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 
12

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.
13

"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 
14

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 crossexaminations). "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 
15

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 
16

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 
17

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 
18

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 
19

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.