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-139

COMMONWEALTH

vs.

KEVIN AQUINO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the defendant 

was convicted of assault and battery by means of a dangerous 

weapon (shod foot), causing serious bodily injury, G. L. c. 265, 

§ 15A (c) (i). On appeal, the defendant claims error in the 

denials of his motion to suppress and motions for a required 

finding of not guilty. The defendant also contends that the

prosecutor's cross-examination concerning the defendant's 

prearrest silence, and comments made by the prosecutor during 

closing argument on the same, deprived him of a fair trial. We 

affirm.

Discussion. 1. Motion to suppress statements. a. Facts. 

We summarize the facts as found by the motion judge, 

supplemented with the uncontroverted testimony of the sole

witness at the suppression hearing, Detective Jason Gangi of the 
2

New Bedford police, whose testimony the judge explicitly or

implicitly credited, and with the documentary evidence admitted 

at the hearing. See Commonwealth v. Tremblay, 480 Mass. 645, 

654-655 (2018).

Shortly after midnight on June 2, 2019, the New Bedford

police responded to a report of a male victim who had been 

beaten unconscious near Acushnet Avenue. A surveillance video 

recording from a nearby residence captured the assault. 

Detective Gangi testified that the recording showed a vehicle

parked in the back parking lot of a building. Moments later, 

two men stepped out of the back seat of the vehicle and attacked

the victim. Next, the driver, later identified as the 

defendant, and the front passenger stepped out of the vehicle

and approached the beating in progress. The front passenger

joined in the assault; the defendant did not. The defendant

did, however, place a hat over the victim's face following the 

attack. The four men then returned to the vehicle and drove 

away. Police tracked the vehicle by reviewing surveillance

video footage retrieved from the area. From this footage police 

learned that the vehicle was a dark Nissan Altima, and that the 

vehicle's driver's side headlight was out. Police also obtained
3

the vehicle's registration number from a license plate reader1 in 

the area, which listed the defendant as the registered owner.

A few days later, police observed the Nissan parked on a

street near the defendant's residence. The vehicle was towed 

and secured at a local New Bedford police station, known as

"station three," pending a search warrant. That afternoon, the 

defendant and a companion arrived at station three and asked

about his missing vehicle. Detective Gangi was notified and 

traveled to station three to speak with the defendant. When he 

arrived, he met the defendant in the lobby and asked him if he 

would accompany him and another detective to police headquarters 

to discuss his vehicle. The defendant agreed, and the three 

traveled to headquarters in an unmarked cruiser with no barrier 

between the front seat and rear passenger seat. Consistent with 

his general practice, Detective Gangi pat frisked the defendant 

before having him sit in the back of the cruiser. 

After a short drive, the three arrived at police 

headquarters and Detective Gangi and his partner escorted the 

defendant through a side entrance of the building to an 

interview room. The detectives were dressed in plain clothes, 

with their guns and badges visible. The defendant entered the

1 "Automatic license plate readers are cameras combined with 

software that allows them to identify and 'read' license plates 

on passing vehicles." Commonwealth v. McCarthy, 484 Mass. 493, 

494 (2020).
4

interview room and sat down in a chair. He was not restrained 

in any way. The detectives gave the defendant a cup of water 

and left him alone for several minutes.

When the detectives returned, Detective Gangi thanked the 

defendant for "coming down on [his] own time" and "[o]n [his] 

own free will" to speak with them and advised the defendant that 

they were investigating an incident that occurred Saturday night 

into Sunday morning. Detective Gangi asked the defendant where 

he was around that time. The defendant responded that he was 

out drinking. Detective Gangi then asked if the defendant had 

his vehicle that evening, to which the defendant stated that he 

did. The defendant also acknowledged that his vehicle's 

driver's side headlight was not functioning.

In response to further questioning about his whereabouts, 

the defendant stated that he was at the Whiskey Lounge bar and 

that he had left sometime between 11 P.M. and midnight. The 

defendant was with three others; he stated that the only stop 

they made after leaving the bar was to get food near Dean Street 

and Coffin Avenue. In response, Detective Gangi advised the 

defendant that "in that stretch, there's a lot of video," and 

that he knew "exactly where [the defendant was]" and "what went 

on." After the defendant denied that he had stopped anywhere 

else, Detective Gangi told the defendant that he knew that the 

defendant was not telling the truth and that he was going to 
5

give him a couple of minutes "to think about what [he was] 

saying," as the detectives were investigating "a serious 

incident." He then left the room.

A few minutes later, Detective Gangi returned and provided 

the defendant with Miranda warnings. After inquiring about the 

nature of the police's investigation and his alleged 

involvement, the defendant stated that he wanted an attorney. 

Questioning then stopped and the detectives placed the defendant 

under arrest.

The motion judge's findings on the tone and tenor of the 

interview, with which we concur, see Tremblay, 480 Mass. at 656-

657, were as follows:

"Throughout the entire interview, the police were calm and 

polite toward the defendant. The questioning was not 

aggressive. They did not raise their voices. They did not 

pressure or trick the defendant. The tone was 

conversational. The defendant was able to and did ask 

questions. Even when Det. Gangi told the defendant that 

the investigation involved a serious matter and that they 

knew he was lying, Det. Gangi was respectful. Det. Gangi

did not threaten the defendant in any way. He merely 

suggested that the defendant take some time to think about 

what he was saying. He told the defendant repeatedly that 

he did not have to talk to the police. When the defendant 

invoked his right to counsel, the police immediately 

respected that decision and terminated questioning."

b. Analysis. The defendant argues that the motion judge 

erred in denying his motion to suppress statements he made to 

the police. He contends that he was subject to a custodial 
6

interrogation and thus the absence of Miranda warnings required

his statements to be suppressed.

"In reviewing a decision on a motion to suppress, we accept 

the judge's subsidiary findings absent clear error, but conduct 

an independent review of [the judge's] ultimate findings and 

conclusions of law." Commonwealth v. Vasquez, 482 Mass. 850, 

857 (2019), quoting Commonwealth v. Jones-Pannell, 472 Mass. 

429, 431 (2015). We give due deference to the judge's findings 

regarding the weight and credibility of witness testimony, see 

Vasquez, supra, but otherwise conduct an independent review of 

the documentary evidence, see Tremblay, 480 Mass. at 654-655. 

Because the defendant's motion was made prior to trial, we 

review its denial for harmless error. Commonwealth v. Chalue, 

486 Mass. 847, 881 (2021).

It is well settled that the safeguards of Miranda only 

apply when a defendant is subject to custodial interrogation. 

See Commonwealth v. Larkin, 429 Mass. 426, 432 (1999). "An 

interview is custodial where 'a reasonable person in the 

suspect's shoes would experience the environment in which the 

interrogation took place as coercive'" (citation omitted). 

Commonwealth v. Amaral, 482 Mass. 496, 500-501 (2019). To 

determine whether the defendant was in custody, we consider:

"(1) the place of the interrogation; (2) whether the 

officers have conveyed to the person being questioned any 

belief or opinion that the person is a suspect; (3) the 
7

nature of the interrogation, including whether the 

interview was aggressive, or, instead, informal . . .; and 

(4) whether, at the time the incriminating statement was 

made, the person was free to end the interview by leaving 

the locus of the interrogation or by asking the 

interrogator to leave, as evidenced by whether the 

interview terminated with an arrest."

Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001). "A 

single factor rarely is determinative." Commonwealth v. 

Cawthron, 479 Mass. 612, 623 (2018).

Here, the defendant voluntarily traveled with the 

detectives to police headquarters to be interviewed.2 See 

Commonwealth v. Rosa-Roman, 485 Mass. 617, 624-625 (2020), and 

cases cited ("a defendant arriving voluntarily at a police 

station would suggest that an interrogation there is 

noncustodial"). Although the defendant was pat frisked before 

entering the unmarked cruiser, he was not restrained in any way,

and the cruiser had no barrier between the front and rear seats. 

See Commonwealth v. Molina, 467 Mass. 65, 66-67 (2014) 

(defendant not in custody when officers asked if defendant would 

go to police station to answer questions, he rode in police 

cruiser to police station, and he was not handcuffed or under 

arrest). The interview was less than ten minutes in duration. 

At no point did the detectives reveal what crime was under 

2 That the detectives used the defendant's car as a means to get 

him to come to headquarters for questioning is not material to 

our custody analysis. See Commonwealth v. Burbine, 74 Mass. 

App. Ct. 148, 149-152 (2009).
8

investigation, nor did they convey to the defendant that he was 

a suspect.3 Further, the bulk of Detective Gangi's questions 

were investigatory rather than accusatory. See Commonwealth v. 

Vellucci, 98 Mass. App. Ct. 274, 279 (2020). The detectives 

were calm, did not raise their voices, and the tone was 

conversational throughout. Even when Detective Gangi told the 

defendant that he knew the defendant was not being truthful, he 

did so in a cordial manner. Cf. Molina, 467 Mass. at 74-75 

(officer stood "almost over" defendant and "his tone was far 

more argumentative and aggressive than the one he had previously 

used"). We conclude that a reasonable person in the defendant's 

position would not have experienced the environment as coercive 

and therefore the defendant was not in custody and Miranda 

warnings were not required. The defendant's motion to suppress 

was properly denied.

2. Motions for required finding of not guilty. The 

defendant next contends that the evidence presented at trial was 

insufficient to prove that he engaged in a joint venture to 

assault and batter the victim. In reviewing the denial of the 

defendant's motions for required findings of not guilty, we

3 The defendant argues that any reasonable person in the 

defendant's shoes would have known they were a suspect. Even 

assuming that is true, it is not dispositive. See Commonwealth

v. Welch, 487 Mass. 425, 436-437 (2021), and cases cited 

("Although the defendant . . . believed he was a suspect, 

officers did not communicate this to him at the time").
9

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." Commonwealth v. Latimore, 378 Mass. 671, 677 

(1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 

(1979).

"To support a conviction on a theory of joint venture 

liability, it was the Commonwealth's burden to show that the 

defendant (a) participated in the commission of the crime 

charged, (b) did so knowingly, and (c) shared the required 

criminal intent" (quotations and citation omitted). 

Commonwealth v. Sanders, 101 Mass. App. Ct. 503, 508 (2022). A 

fact finder is permitted to "infer the requisite mental state 

from the defendant's knowledge of the circumstances and 

subsequent participation in the offense" (citation omitted). 

Commonwealth v. Lendon, 35 Mass. App. Ct. 926, 927 (1993).

"'[T]here is no need to prove an anticipatory compact between 

the parties to establish joint venture' if, 'at the climactic 

moment the parties consciously acted together in carrying out 

the criminal endeavor'" (citations omitted). Commonwealth v. 

Sexton, 425 Mass. 146, 152 (1997).

Here, the Commonwealth presented at trial, among other 

evidence, the surveillance video recording of the assault. The 

footage showed the defendant drive the three assailants to and 
10

from the scene of the assault. The defendant parked his vehicle 

in the entrance of a back parking lot and shut off the lights. 

Once the victim passed by, two of the assailants stepped out of

the vehicle, confronted him, and attacked him. Moments later, 

the defendant and front seat passenger also stepped out of the 

vehicle and jogged over to the scene, while leaving the 

vehicle's front doors open. While the defendant is correct that 

he never joined in the assault, once the attack ended, he placed 

the victim's cap over his facial injuries while he lay

motionless on the ground. The defendant then ran back to the 

vehicle and drove himself, along with the three assailants, away 

from the scene. Three days later, the defendant lied to 

detectives about his whereabouts around the time of the assault. 

See Commonwealth v. Jones, 477 Mass. 307, 317 (2017) (lying to 

police about whereabouts at time of murder is evidence of 

consciousness of guilt). Contrary to the defendant's assertion, 

from this evidence the jury could readily infer that the 

defendant was present at the scene and ready, able, and willing

to assist in the commission of the crime, whether that be in the 

attack of the victim or in escaping from the scene. See 

Commonwealth v. Simpkins, 470 Mass. 458, 462 (2015) (knowing 

participation in crime may "take[] the form of agreeing to stand 

by at, or near, the scene of the crime to act as a lookout, or 

to provide aid or assistance in committing the crime, or in 
11

escaping, if such help becomes necessary" [citation omitted]). 

See also Commonwealth v. Chhim, 447 Mass. 370, 378-379 (2006) 

("The jury could have inferred from the fact that the defendant 

remained at the scene during th[e] brutal beating that he kept 

himself in a position ready and able to help the other attackers 

. . . [and] that [he] was willing and available to assist in the 

getaway of the joint venturers after the beating ended"). It 

follows that there was sufficient evidence for the jury to 

reasonably conclude that the defendant knowingly participated in 

and shared the requisite intent to commit the crime of which he 

was convicted,4 assault and battery by means of a dangerous 

weapon, causing serious bodily injury.5 The defendant's motions 

for required findings of not guilty were properly denied.6

4 The defendant argues that his actions of rushing back to his 

vehicle and driving away is just as indicative of panic of an 

individual unknowingly involved in an assault as it is of 

consciousness of guilt. "To support a joint venture conviction, 

[however,] 'the inferences drawn by the jury need only be 

reasonable and possible and need not be necessary or 

inescapable'" (citation omitted). Commonwealth v. Stokes, 440 

Mass. 741, 745 (2004).

5 There is no dispute whether there was sufficient evidence to 

satisfy the underlying elements of assault and battery by means 

of a dangerous weapon, causing serious bodily injury. See 

Commonwealth v. Brule, 98 Mass. App. Ct. 89, 93-94 (2020).

6 We have also considered "the state of the evidence at the close 

of all the evidence, to determine whether the Commonwealth's 

position as to proof deteriorated after it closed its case"

(citation omitted). Commonwealth v. Alden, 93 Mass. App. Ct. 

438, 445 (2018), cert. denied, 139 S. Ct. 2010 (2019). The only 

witness for the defense was the defendant. Because "the jury 

were free to disbelieve the defendant's account, there was 

nothing compelling in this evidence which caused the 
12

3. Prosecutorial misconduct. Finally, the defendant 

argues that the prosecutor improperly cross-examined him about 

his prearrest silence, and commented on the same during closing 

argument. Because the defendant did not object to the 

prosecutor's questions during cross-examination,7 or the 

prosecutor's closing argument, we review for error amounting to 

a substantial risk of a miscarriage of justice. See 

Commonwealth v. McGann, 484 Mass. 312, 322 (2020).

On direct examination, the defendant testified that he 

placed a hat over the victim's face because he "felt bad" and 

"got scared." He explained that he was "scared . . . [he] was 

going to get hurt with the people that did the attack. [He] 

didn't know if . . . they were going to try to . . . hurt [him] 

at the time." The defendant further testified that he did not 

call 911 because "[he] was with the people that did this, and 

[he] was in fear for [his] life, and [his] family." The 

defendant now argues that the prosecutor's questioning during

cross-examination on his prearrest silence went beyond a fair 

response to his direct examination, and should have been limited 

to his alleged fear.

prosecution's case to deteriorate." Id. at 445-446, quoting 

Commonwealth v. Walker, 401 Mass. 338, 343-344 (1987).

7 Defense counsel did successfully object to the form of some of 

the prosecutor's questions. However, as the defendant appears 

to concede, these objections did not preserve the issue now 

argued on appeal. 
13

"In general, impeachment of a defendant with the fact of 

his prearrest silence should be approached with caution, and, 

wherever it is undertaken, it should be prefaced by a proper 

demonstration that it was 'natural' to expect the defendant to 

speak in the circumstances." Commonwealth v. Nickerson, 386 

Mass. 54, 62 (1982). Assuming we agree with the defendant that

it would not have been "natural" to expect him to report the 

assault to police in these circumstances, and thus some of the

prosecutor's questions during cross-examination and comments 

during closing were improper, we discern no substantial risk of 

a miscarriage of justice.

Here, the defendant's prearrest silence was brought to the 

jury's attention by the defendant. On cross-examination, the 

prosecutor asked the defendant several questions regarding his 

failure to report what happened. Each question was followed by 

an objection from defense counsel, which was sustained as to 

form. Again, even assuming error, we conclude that these 

questions were "not likely to influence, or even to seize the 

attention of the jury" (citation omitted). Commonwealth v. 

Johnson, 32 Mass. App. Ct. 989, 992 (1992).

The prosecutor later elicited testimony from the defendant 

confirming that he did not call 911, or in any way report the 

crime, on the night of the assault, during the three days 

thereafter, or when he arrived at station three to inquire about 
14

his vehicle. The prosecutor's questions on this point were 

brief, however, and they did not detract from the defendant's 

defense at trial -- i.e., that he was scared to report the three 

assailants he was with to the police. Had the jury credited the 

defendant's account, "the jury could well have viewed the 

defendant's failure to [report the crime to] police to have been 

the product of fear" of retaliation from the assailants.

Sanders, 101 Mass. App. Ct. at 514.

We also conclude that the prosecutor's challenged comments 

during closing do not warrant reversal. The prosecutor was 

entitled to respond to the defendant's claim that he was scared 

for his life. See Commonwealth v. Fernandes, 478 Mass. 725, 741 

(2018) (prosecutor entitled to respond to defendant's argument 

and point out weaknesses in defendant's case). In short, we 

discern no impropriety in the prosecutor's closing argument.8 

And, as argued by the Commonwealth, even assuming error, the 

8 The defendant also argues that the prosecutor's comments during 

closing argument referencing the victim "still laying on the 

ground waiting for some assistance" as the defendant drove by, 

followed by a remark stating that the defendant only cared about 

his missing car, improperly disparaged the defendant's testimony 

and was an appeal to the jury's sympathy. See Commonwealth v. 

McLeod, 30 Mass. App. Ct. 536, 538-539 (1991). We disagree, and

conclude that the prosecutor's remarks fall within the scope of 

proper argument in the circumstances of this case. The lack of 

an objection during the prosecutor's closing remarks is "some 

indication that the tone, manner, and substance" of the argument 

were not unfairly prejudicial. Commonwealth v. Toro, 395 Mass. 

354, 360 (1985).
15

prosecutor's challenged comments would not have materially 

influenced the jury's verdict given the evidence presented. See 

Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). Moreover, the 

judge properly instructed the jury that closing arguments of 

counsel are not evidence, and on the limitations of 

consciousness of guilt evidence.9 

Conclusion. We discern no error, either individual or 

cumulative, giving rise to prejudice or a substantial risk of a 

miscarriage of justice.

Judgment affirmed.

By the Court (Sullivan, 

Desmond & Singh, JJ.10),

Clerk

Entered: May 12, 2023.

9 The defendant did not request an instruction advising the jury 

that they should not consider his prearrest silence for purposes 

of impeachment unless they found that the defendant naturally 

should have spoken in the circumstances. See Nickerson, 386 

Mass. at 62. 

10 The panelists are listed in order of seniority.