NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; [email protected]
SJC-13583
SJC-13584
SJC-13585
COMMONWEALTH vs. LUIS COTTO
(and eight companion cases1).
Hampden. April 10, 2026. - September 29, 2026.
Present: Budd, C.J., Gaziano, Kafker, Georges,
& Wolohojian, JJ.
Homicide. Firearms. Evidence, Intent, Inference, Joint
venturer, Presumptions and burden of proof. Intent. Joint
Enterprise. Practice, Criminal, Instructions to jury,
Presumptions and burden of proof, Capital case.
Indictments found and returned in the Superior Court Department on February 20, 2020.
The cases were tried before Mark D. Mason, J.
Dana Alan Curhan for Isaiah Fraticelli.
Suzanne Renaud for Keith Cotto.
Joseph M. Kenneally for Luis Cotto.
Joseph G. A. Coliflores, Special Assistant District
Attorney (Katharine Johnston, Assistant District Attorney, also present) for the Commonwealth.
1 Two against Luis Cotto, three against Isaiah Fraticelli, and three against Keith Cotto.
2
KAFKER, J. A jury convicted the defendants, Luis Cotto,
Isaiah Fraticelli, and Keith Cotto, of murder in the first
degree for the drive-by shooting of the victim, Gabriel
Irizarry.2,3 The primary issues on appeal are (1) whether the
Commonwealth's evidence was sufficient to convict the defendants
of murder in the first degree; (2) whether the jury instructions
impermissibly lowered the Commonwealth's burden to prove intent
by using the phrase "knowingly participate" to describe that
element; and (3) whether the trial judge erred in not
instructing the jury on involuntary manslaughter as to Keith.
The defendants also seek relief pursuant to our power under
G. L. c. 278, § 33E.
We conclude the evidence was sufficient to prove beyond a
reasonable doubt that each of the defendants knowingly
participated in the murder and shared the requisite lethal
intent and that the murder was committed with deliberate
premeditation as to all defendants as well as with extreme
atrocity or cruelty as to Luis and Fraticelli. We also conclude
the judge erred in instructing the jury on intent because the
instruction conflated the defendants' knowing participation in
2 A fourth codefendant, Victor Espinosa, was tried and convicted of the same charges at the same trial. However, he is not part of the present appeal.
3 Because Keith and Luis share a last name, we refer to them by their first names.
3
the joint venture with the defendants' intent to kill. We
conclude, however, that this error did not create a substantial
likelihood of a miscarriage of justice in light of the judge's
repeated clarifications with correct statements of law and all
the evidence of the defendants' lethal intent. Next, we
conclude that the judge did not err in denying Keith's request
to instruct the jury on involuntary manslaughter. Finally,
having carefully reviewed the entire record, we find no reason
to reduce or set aside the verdicts. We therefore affirm.
1. Background. a. Facts. Because the defendants
challenge the sufficiency of the Commonwealth's proof, "we
recite the evidence, together with the reasonable inferences to
be drawn from it, in the light most favorable to the
Commonwealth." Commonwealth v. Carleton, 497 Mass. 11, 13
(2026), citing Commonwealth v. Latimore, 378 Mass. 671, 676-677
(1979). We reserve certain facts for our discussion of the
legal issues.
i. The shooting. At approximately 8 P.M. on November 2,
2019, Keith Cotto; Keith's brother, Luis Cotto; and Keith and
Luis's cousin, Isaiah Fraticelli, joined the Cottos' father at a
restaurant in Chicopee to watch boxing matches on television.
The group learned that the matches they planned to see, however,
were not going to be shown at the restaurant, so Keith, Luis,
and Fraticelli left the restaurant in a blue Honda Accord sedan
4
registered to Keith at around 9:30 P.M. The group then met a
friend, Victor Espinosa, at Espinosa's uncle's house. At
approximately 12:30 A.M., Keith, Fraticelli, Espinosa, and Luis
got into the Honda, and Keith drove the group to downtown
Springfield. Fraticelli sat in the front passenger seat, Luis
sat directly behind him in the rear passenger's side seat, and
Espinosa sat in the rear driver's side seat.
That evening, the victim drove to Holyoke and picked up his
sister-in-law, Sandra Rivera, in his white Ford F-150 pickup
truck. The two did not have specific plans for the evening, but
they eventually drove to downtown Springfield and decided to go
to a casino there. After parking on Main Street, they walked
around the outside of the casino in search of its entrance.
After finding the entrance, however, Rivera was denied entry
because she did not have the required identification. Both the
victim and Rivera thereafter returned to the Ford.
At approximately 1 A.M., as the victim and Rivera were
getting ready to reenter the vehicle to leave the area, the
defendants in the Honda drove past them on the opposite side of
the road. The Honda subsequently took three right turns onto
side streets and then turned left to arrive behind the victim
and Rivera, as the victim pulled the Ford out of its parking
space. Both vehicles stopped behind a third vehicle at a red
light on Union Street, where they waited for approximately
5
forty-five seconds. When the light changed, both the Honda and
the Ford took the on-ramp to Interstate Highway 91 North (I-91).
The ramp starts out with two lanes, but the lanes eventually
merge into a single lane that becomes the right travel lane of
I-91.
As the Ford and the Honda merged onto I-91, State police
Trooper Patrick Dolan was driving on I-91 in the center lane.
His cruiser had a push bar bumper in front and emergency lights
mounted inside the vehicle, but no other overt markers. Dolan
testified that he saw a white Ford F-150 pickup truck and a blue
Honda Accord sedan merge onto the highway. He further testified
that he saw the Honda cut over into the center travel lane;
accelerate ahead of the Ford, which was traveling in the right
lane; and then decelerate so that it was even with the Ford.
Dolan was approximately three or four car lengths behind both
vehicles when he observed a firearm protruding from the
passenger side of the Honda, pointed at the Ford. He heard
gunshots and observed multiple muzzle flashes consistent with
gunfire. The rate of fire and the differing heights of the
muzzle flashes indicated to Dolan that multiple firearms were
discharging.
Rivera testified that as she and the victim traveled on I91, she heard what sounded like stones or pebbles hitting the
Ford. The victim then looked over at Rivera in the passenger
6
seat, appearing confused, and the noises got louder. The Ford's
windows shattered, and the victim let go of the steering wheel
as his head fell over to the side. Rivera then climbed onto the
victim's lap and used his legs to reach the Ford's accelerator
pedal and maneuver the vehicle off the highway. She took the
next exit, drove to a bus terminal, and sought help. The victim
was transported to a hospital, where he died a few days later.
Meanwhile, Dolan reported the incident to the Springfield
State police barracks and to the duty officer in Northampton, a
senior officer with the ability to authorize a motor vehicle
pursuit. He activated his lights and siren to stop the Honda,
but it did not do so. Dolan pursued the Honda at speeds of over
one hundred miles per hour, and the Honda eventually crashed off
of Interstate Highway 391 North. As Dolan approached the
vehicle, he saw three individuals running toward a wooded area
nearby. Two men then came out of the woods and ran along a
sidewalk, and Dolan and another officer eventually were able to
arrest them. These two men were identified as Fraticelli and
Luis. Keith was subsequently arrested when he was treated for
injuries at a hospital.4
4 Police used a helicopter with infrared camera technology to locate Espinosa after the crash, who was on an island in the middle of a nearby river. Due to the weather conditions, the police were unable to send a unit to investigate. Espinosa was apprehended twelve days later.
7
ii. Physical and forensic evidence. Police recovered a
nine millimeter Glock firearm with an inserted magazine from the
front passenger seat of the Honda. In the woods near where the
Honda crashed, they also located a nine millimeter Taurus
semiautomatic pistol with an inserted magazine. A baseball cap,
five beverage containers, and a wallet belonging to Keith were
also recovered from the Honda. The interior of the Honda tested
positive for gunshot residue, and a spent .40 caliber shell was
found in the vehicle's rear seat. Ballistic analysis of the
victim's Ford revealed that it had twenty bullet holes, and
eleven discharged shell casings were recovered from the scene of
the shooting.5,6 Of those recovered casings, six of the nine
millimeter casings were determined to have been discharged from
the Glock, and a seventh was discharged from the Taurus. Four
.40 caliber shell casings were also recovered from the scene and
were determined to have been ejected from a single unrecovered
firearm.7 The parties stipulated that none of the defendants or
5 A bullet jacket fragment was also recovered in this area.
6 The Commonwealth presented testimony from a ballistician who explained that some casings were likely missing due to vehicular traffic and the fact that multiple firearms were discharged from a moving vehicle; casings could have become caught in tire treads or gone over the edge of the highway.
7 A "ShotSpotter" report from a nearby system identified between six and thirteen shots fired over six seconds. However, surveillance video footage of the final two seconds of the shooting, an audio recording of the incident, and the forensic
8
Espinosa had licenses to carry or firearm identification cards
in Massachusetts.
An autopsy revealed that the victim was shot at least four
times and sustained multiple gunshot wounds: a wound to his
forehead, a wound to his left cheek, a wound to his left knee,
and both an entrance wound and an exit wound to his lower left
leg.8 The wounds to his forehead and left leg were listed as the
cause of death.
The Glock and the Taurus were both tested for fingerprints,
but no usable prints were detected on either weapon. However,
deoxyribonucleic acid (DNA) testing revealed that a sample
recovered from the Glock was consistent with Espinosa's DNA
profile and a sample recovered from the Taurus was consistent
with Keith's DNA profile. DNA samples collected from the
Honda's front passenger's side airbag, as well as two of the
beverage containers and the baseball cap recovered from the
vehicle, were consistent with Fraticelli's DNA profile. Luis's
fingerprints were found on the Honda's rear passenger's side
window.
examination of the Ford indicate there were at least twenty shots fired.
The medical examiner noted an abrasion on the victim's
8
abdomen but could not determine with confidence whether it was caused by a bullet because the injury had no penetrating defect from a projectile or projectile fragment.
9
The Commonwealth developed a timeline of the Honda's
movements on the night of the shooting based on video
surveillance footage, a ShotSpotter report, and cell site
location information. Although the defendants' and Espinosa's
cell phone records were analyzed, no relationship between the
occupants of the Honda and the Ford was discovered, and the
Commonwealth did not present a theory about the motive for the
killing at trial.
b. Procedural history. On February 20, 2020, the
defendants and Espinosa were each indicted on charges of murder
in the first degree, G. L. c. 265, § 1 (count one); unlawful
possession of a firearm, G. L. c. 269, § 10 (a) (count two);
unlawful possession of a loaded firearm, G. L. c. 269, § 10 (n)
(count three); and resisting arrest, G. L. c. 268, § 32B (count
four).
Beginning on May 1, 2023, the defendants and Espinosa were
jointly tried before a jury in the Superior Court in Hampden
County. Each filed motions for required findings of not guilty
at the close of the Commonwealth's case and again at the close
of all the evidence. See Mass. R. Crim. P. 25, as amended, 420
Mass. 1502 (1995). With respect to Luis and Fraticelli, the
motions were denied as to counts one, two, and three, and
allowed as to count four. Keith and Espinosa's motions were
denied as to all counts.
10
The jury convicted each of the defendants and Espinosa of
murder in the first degree, unlawful possession of a firearm,
and unlawful possession of a loaded firearm. Luis, Fraticelli,
and Espinosa were convicted of murder in the first degree on
theories of both deliberate premeditation and extreme atrocity
or cruelty. Keith was convicted of murder in the first degree
on a theory of deliberate premeditation only. The jury
acquitted Keith and Espinosa of resisting arrest.
Each of the defendants and Espinosa appealed, and Luis,
Fraticelli, and Keith's convictions are now before us on direct
appellate review under G. L. c. 278, § 33E.9
2. Discussion. The defendants raise three primary
arguments on appeal. First, each of the defendants contends
that the evidence was insufficient to support his conviction of
murder in the first degree. Next, each of the defendants
asserts that he was prejudiced by the trial judge's instruction
on intent, which they contend was erroneous, and Keith asserts
that the trial judge erred in declining to give an involuntary
manslaughter instruction. Finally, each of the defendants asks
this court to exercise its extraordinary authority pursuant to
G. L. c. 278E, § 33E, and to grant him a new trial or to reduce
9 Espinosa's appellate counsel filed a motion to withdraw on August 28, 2025, before filing any brief. To date, no successor counsel has entered an appearance or filed a brief on Espinosa's behalf.
11
his conviction of murder in the first degree to a lesser degree
of guilt. We address each argument in turn.
a. Sufficiency of the evidence. In reviewing the
defendants' claims of insufficient evidence for their
convictions of murder in the first degree, "we assess the
evidence in the light most favorable to the prosecution to
determine whether any rational trier of fact could have found
each element of the crime beyond a reasonable doubt."
Commonwealth v. Robinson, 493 Mass. 303, 307 (2024), citing
Latimore, 378 Mass. at 677-678. "The evidence may be direct or
circumstantial, and we draw all reasonable inferences in favor
of the Commonwealth." Commonwealth v. Baez, 494 Mass. 396, 400
(2024), quoting Commonwealth v. Watson, 487 Mass. 156, 162
(2021), S.C., 497 Mass. 764 (2026). "Inferences 'need only be
reasonable and possible and need not be necessary or
inescapable.'" Commonwealth v. Bonner, 489 Mass. 268, 275
(2022), quoting Commonwealth v. Longo, 402 Mass. 482, 487
(1988). "A conviction, however, may not 'rest upon the piling
of inference upon inference or conjecture and speculation.'"
Bonner, supra at 275-276, quoting Commonwealth v. Mandile, 403
Mass. 93, 94 (1988).
To prove the defendants guilty of "murder in the first
degree both under the theory of deliberate premeditation and
under the theory of extreme atrocity or cruelty, . . . the
12
Commonwealth had to prove beyond a reasonable doubt that the
defendant[s] knowingly participated in the commission of the
crime charged, and that the defendant[s] had or shared the
required criminal intent" (quotation and citation omitted).
Watson, 487 Mass. at 162. "Intent may be inferred from the
defendant's knowledge of the circumstances and subsequent
participation in the offense" (quotations and citation omitted).
Carleton, 497 Mass. at 17. "The Commonwealth need not establish
a defendant's precise role in the crime, i.e., whether the
defendant acted as a principal or as an accomplice. [W]hat
matters is only that there be proof of . . . the defendant's
knowing participation in some manner in the commission of the
offense" with the shared requisite intent. (Quotation and
citations omitted.) Bonner, 489 Mass. at 277.
We begin by discussing the passengers, Luis and Fraticelli,
followed by the driver, Keith. In sum, there was ample evidence
that the shooting was an intentional killing committed with
deliberate premeditation, as to all defendants, and with extreme
atrocity or cruelty, as to Luis and Fraticelli.
i. Luis and Fraticelli. Both Luis and Fraticelli argue
the Commonwealth failed to prove beyond a reasonable doubt that
either of them participated in the shooting. We disagree.
Luis and Fraticelli both admit they were in the Honda when
the shooting occurred; Luis sat in the rear passenger's side
13
seat and Fraticelli sat in the front passenger seat. Luis's
fingerprints were found on the rear passenger's side window, and
Fraticelli's DNA was found on the front passenger's side airbag,
two beverage containers, and a baseball hat.
Given their uncontroverted presence in the Honda during the
shooting, viewing all the evidence in the light most favorable
to the Commonwealth, the jury reasonably could have inferred
that Luis and Fraticelli knowingly participated in the shooting
with the intent to kill. Specifically, the jury could infer
that Keith drove the Honda while Luis and Fraticelli each shot
at the victim from their respective passenger's side seats. See
Commonwealth v. Phillips, 495 Mass. 491, 497 (2025);
Commonwealth v. Zanetti, 454 Mass. 449, 455-456 (2009).
There were three passengers in the Honda, and three types
of ammunition were recovered from the scene. Police recovered
the Glock with an inserted magazine on the front passenger seat,
where Fraticelli was sitting, and a spent .40 caliber shell
casing from the rear of the Honda, where Luis and Espinosa were
sitting. Of the recovered discharged shell casings, six were
discharged from the Glock, a seventh was discharged from the
Taurus that was found in the woods, and four .40 caliber shell
casings were discharged from the unrecovered third firearm.
From these three firearms, shots were fired from the passenger's
14
side of the car, which was closest to the victim's Ford and
where Luis and Fraticelli were sitting.
Additionally, Dolan testified, and the surveillance footage
corroborates, that the rate of fire and muzzle flashes from
different heights from the Honda led him to believe shots were
fired from multiple firearms simultaneously. The ShotSpotter
report and surveillance footage also show that the shooting
itself lasted only a few seconds, during which time twenty
bullets struck the victim's Ford. The jury therefore could have
reasonably inferred from all of this evidence -- the number of
passengers, Luis and Fraticelli's presence on the passenger's
side of the Honda closest to the victim's Ford during the
shooting, the three types of ammunition recovered, and the speed
of simultaneous gunfire from three different firearms -- that
Luis and Fraticelli shot at the victim with the intent to kill
while Keith drove the car. See Phillips, 495 Mass. at 497
(sufficient evidence that defendant passenger shot victim
through lowered passenger's side window, where defendant's DNA
was located on water bottle in car and defendant's fingerprints
were found on passenger's side door); Commonwealth v. Reaves,
434 Mass. 383, 390 (2001) (defendant passenger in drive-by
shooting acted with intent to kill, where shots were fired at
reasonably close range at group defendant had confronted earlier
that day).
15
Moreover, both Luis and Fraticelli fled into the woods
after the Honda crashed, which suggests consciousness of guilt.
"While consciousness of guilt alone is insufficient to support a
guilty verdict, such evidence may be sufficient when combined
with other probable inferences." Commonwealth v. Woods, 466
Mass. 707, 715, cert. denied, 573 U.S. 937 (2014), S.C., 480
Mass. 231 (2018). See Bonner, 489 Mass. at 281 (defendant's
joint flight after killing and efforts to dispose of murder
weapon, among other conduct, sufficient evidence that defendant
participated in shooting with intent to kill).
Finally, there was also sufficient evidence for the jury to
convict Luis and Fraticelli of murder in the first degree on
theories of both deliberate premeditation and extreme atrocity
or cruelty. "In order to prove deliberate premeditation, the
Commonwealth must show that 'the plan to kill was formed after
deliberation and reflection.'" Commonwealth v. Shakespeare, 493
Mass. 67, 85 (2023), quoting Commonwealth v. Fernandez, 480
Mass. 334, 344 (2018). "[N]o particular period of reflection is
required, and . . . a plan to murder may be formed in seconds."
Shakespeare, supra at 86, quoting Commonwealth v. Gambora, 457
Mass. 715, 733 (2010). In the instant cases, the jury
reasonably could infer that this was a deliberately premeditated
attack because the defendants followed the victim's Ford for
several minutes, positioned the Honda parallel to the victim's
16
Ford on the highway, and simultaneously fired twenty shots at
the victim from three firearms within seconds. See, e.g.,
Bonner, 489 Mass. at 276 ("overwhelming evidence" that shootings
were committed with deliberate premeditation where "victim was
stalked by two gunmen, shot while he was seated in his vehicle,
and shot a second time while he was lying mortally wounded on a
sidewalk"); Commonwealth v. Williams, 422 Mass. 111, 123 (1996)
("The use of a firearm in the killing is sufficient to support a
verdict of murder in the first degree based on deliberately
premeditated malice aforethought"); Commonwealth v. Stewart, 398
Mass. 535, 541 (1986) ("evidence that the defendant brought a
gun with him to the scene of a planned crime is evidence of
planning, which included preparation for using the gun").
Although "sufficient evidence for [deliberate
premeditation] would suffice to affirm the verdict," the
evidence here was also sufficient to support the jury's finding
of extreme atrocity or cruelty with respect to Luis and
Fraticelli. Shakespeare, 493 Mass. at 86, quoting Commonwealth
v. Whitaker, 460 Mass. 409, 416-417 (2011).10 Again, the
defendants used three firearms to shoot the victim while driving
on the highway. Twenty bullets struck the victim's Ford within
10As Fraticelli was eighteen years old at the time of the killing, his conviction under both deliberate premeditation and extreme atrocity or cruelty affects the time at which he is eligible for parole. See note 15, infra.
17
a few seconds, and the victim suffered at least four gunshot
wounds, including fatal wounds to the forehead and left leg.
This conduct is "excessive and out of proportion to what would
be needed to kill a person." Commonwealth v. Castillo, 485
Mass. 852, 866 (2020). See id. (third factor juries may
consider in determining whether death was caused with extreme
atrocity or cruelty includes "the extent of the injuries to the
deceased; the number of blows delivered; the manner, degree, and
severity of the force used; and the nature of the weapon,
instrument, or method used"). See, e.g., Shakespeare, supra at
87 (evidence sufficient to support finding of extreme atrocity
or cruelty where defendant shot victim six times); Commonwealth
v. Alicea, 464 Mass. 837, 853 (2013) (evidence sufficient for
extreme atrocity or cruelty where defendant fired five shots at
victim, inflicting multiple gunshot wounds and fatal wound to
victim's head).11
ii. Keith. We next consider whether the evidence was
sufficient to convict Keith of murder in the first degree on a
theory of deliberate premeditation. At trial, the Commonwealth
11 We also reject the defendants' argument that the killing was not committed with extreme atrocity or cruelty because most of the shots fired hit the victim's Ford, and only four shots struck the victim. That some shots missed their intended target "does not detract from the apparently intentional close-range shooting" of the victim in the instant cases. Reaves, 434 Mass. at 471.
18
posited that Keith drove and maneuvered the Honda to allow his
passengers to carry out the killing but did not shoot a firearm
himself. In these circumstances, the Commonwealth was required
to prove beyond a reasonable doubt "that [Keith] was the driver
of the suspect vehicle, that [he] knew [his] passenger[s]
intended to kill the victim, and that [he] shared this intent."
Baez, 494 Mass. at 400, quoting Baxter v. Commonwealth, 489
Mass. 504, 508 (2022). We conclude that the Commonwealth met
this standard.
Keith admits that he was the driver of the Honda, but he
contends that the evidence of his knowledge and shared intent to
kill the victim was lacking. There was, however, evidence that
the Honda, going in the opposite direction, passed the victim's
parked Ford, then turned off onto side streets, and ultimately
pulled up behind the Ford as the victim left his parking space
in downtown Springfield, and began to follow the Ford. "It was
for the jury to assess the reason why" Keith maneuvered the
Honda in this manner to arrive behind the victim, and from these
facts, viewed in the light most favorable to the Commonwealth,
"the jury could reasonably infer that the victim was the
intended target of [the defendants'] activity." Carleton, 497
Mass. at 17-18. Keith subsequently drove the Honda behind the
victim's Ford for several minutes, waited at a traffic light
behind the Ford, shifted to the lane adjacent to the Ford, and
19
allowed the vehicles to come parallel to each other immediately
before the shooting began. These facts likewise permitted the
jury to find that Keith intended to position the Honda in a way
that would facilitate "the shooting he knew was to come." Id.
at 18. "Although, as [Keith] argues, there are many innocuous
reasons why a driver may" change lanes as he did, the jury were
not required to make the favorable inference that such reasons
motivated Keith's driving on this occasion. Id. See
Commonwealth v. Sanders, 101 Mass. App. Ct. 503, 509 (2022)
("reasonable and strong inference from the evidence [viewed in
the light most favorable to the Commonwealth] was that [the
defendant] positioned the Honda so that the occupants could
attack the occupants of the Audi from inside the Honda").
Moreover, the instant cases are "distinguishable from those
[Keith cites] in which we have concluded that there was
insufficient evidence of shared lethal intent where a defendant
merely acted as a driver of a car in which a passenger --outside the presence of the defendant -- committed a shooting."
Carleton, 497 Mass. at 19, citing Commonwealth v. Tse, 495 Mass.
74, 81-84 (2024), Baez, 494 Mass. at 402-405, Baxter, 489 Mass.
at 509-511, and Mandile, 403 Mass. at 100-102. Here, by
contrast, Keith "drove a car while a shooting took place in his
presence from within the car itself." Carleton, supra.
Contrast, e.g., Baxter, supra at 510 (where defendant dropped
20
off passenger at scene of shooting, "evidence of the defendant's
maneuvering of the vehicle" supported reasonable inference that
"defendant knew of and shared the passenger's intent to assault
the victim," but not "that he shared the passenger's intent that
the attack be deadly"). The proof of Keith's knowledge is also
strengthened by ballistics evidence demonstrating that three
different firearms were used in the attack, as well as
surveillance footage of the latter portion of the shooting
indicating that Keith did not swerve -- from which the jury
permissibly could infer that the simultaneous discharging of
three firearms from inside his vehicle did not surprise him.12
See Carleton, supra (driver's operation of car supports
inference that shooting "did not catch the defendant by
surprise"); Sanders, 101 Mass. App. Ct. at 510 ("the number and
variety of weapons used in the attack supports a reasonable
inference . . . of a coordinated, deadly attack that required
that the driver of the Honda shared the intent to carry it
out"). Finally, there was evidence -- including the presence of
Keith's DNA on the Taurus located in the woods -- that Keith
12The evidence demonstrated that the shooting lasted approximately six seconds, see note 7, supra, but only approximately the final two seconds of the shooting were captured on the surveillance video footage. Nevertheless, there was no testimony or other evidence indicating that Keith swerved during the portion of the shooting that was not captured by the video recording.
21
fled from the Honda with the other defendants and either
provided the weapon or attempted to hide it. See Bonner, 489
Mass. at 279-281, 283-284 (although conduct such as flight or
disposing of murder weapon "itself is insufficient to establish
joint venture liability," this evidence may nevertheless be
considered alongside other evidence).
In sum, "[al]though there was no direct evidence presented
during the Commonwealth's case that [Keith] knew his companions
were armed," Sanders, 101 Mass. App. Ct. at 510, there was
undisputed evidence that Keith drove the Honda past the victim's
Ford and thereafter followed the Ford onto the highway; the
shooting occurred just moments after Keith brought the Honda
parallel to the Ford; at least twenty bullets were fired at the
Ford in a few seconds, and Keith did not swerve during the
portion of the shooting captured on surveillance footage; and
three different firearms, including one with his DNA on it, were
used in the attack, which was carried out in Keith's presence
and from within the vehicle he was operating. Based on these
facts, the jury reasonably could infer that Keith both knew his
passengers intended to kill the victim and intended the same
lethal result himself. See Bonner, 489 Mass. at 277-278
(sufficient evidence of defendant's knowing participation and
shared intent to kill where victim was attacked by individuals
acting in concert and defendant was present at shooting,
22
verbally insulted and kicked mortally wounded victim, supplied
getaway vehicle and place of safety for shooter to flee, and
attempted to hide murder weapon); Watson, 487 Mass. at 164-165
(sufficient evidence that driver shared shooter's intent to
murder victim where driver dropped shooter off, drove slowly
behind shooter and illuminated shooter in headlights, and picked
up shooter after victim was shot ten times); Sanders, 101 Mass.
App. Ct. at 510 ("Taken together, the evidence supports the
inference of a coordinated, deadly attack that required that the
driver of the Honda shared the intent to carry it out").
For similar reasons, the evidence was sufficient for the
jury to find that Keith formed his intent to kill the victim
after deliberate premeditation. Keith "had time to reflect on
his decision" to kill when, after passing the victim in downtown
Springfield, he proceeded to turn the Honda around, wait behind
the victim's Ford at a stop light, follow the victim onto the
highway, and bring the two vehicles parallel to each other such
that the Honda's occupants could begin shooting. Shakespeare,
493 Mass. at 86. This evidence, as well as the multiple weapons
and bullets used to carry out the attack shortly thereafter,
"demonstrated the necessary sequence of thought to support a
finding of deliberate premeditation." Commonwealth v. Rakes,
478 Mass. 22, 34-35 (2017).
23
b. Jury instructions. We next address the defendants'
argument that they were each prejudiced by an erroneous jury
instruction on the issue of the requisite intent for murder. We
thereafter consider Keith's argument that the evidence, in the
light most favorable to him, entitled him to an involuntary
manslaughter instruction, which the trial judge erroneously
declined to give.
i. Intent. "Where, as here, the defendant failed to
object to the instructions at trial, we review the instructions
to determine whether any error in those instructions creates a
substantial likelihood of a miscarriage of justice."
Commonwealth v. Denis, 442 Mass. 617, 621 (2004). "In examining
a claim of error in jury instructions, we do not look at
individual phrases taken out of context; rather, we consider the
instructions viewed as a whole," id., "looking for the
interpretation a reasonable juror would place on the judge's
words" (citation omitted), Commonwealth v. Vargas, 475 Mass.
338, 349 (2016).
The judge began his instructions by correctly instructing
the jury in accordance with the then-current Model Jury
Instructions on Homicide (2018): "First, the Commonwealth must
prove that the defendant knowingly participated in the
commission of the crime[.] Second, the Commonwealth must prove
24
that he did so with the intent required to commit the crime."
See Zanetti, 454 Mass. at 466-468.
The judge then instructed the jury on the elements of
murder, including murder in the first degree on the theory of
deliberate premeditation, murder in the first degree on the
theory of extreme atrocity or cruelty, and murder in the second
degree. As to each of these crimes, the judge departed from the
Model Jury Instructions on Homicide when he instructed the jury
on the intent element as follows: "the defendant intended to
kill or to knowingly participate in killing Gabriel Irizarry;
that is, the defendant consciously and purposely intended to
cause Gabriel Irizarry's death" (emphasis added). The judge
similarly departed from the model instructions when he
instructed the jury with respect to deliberate premeditation
that the Commonwealth must prove beyond a reasonable doubt that
"the defendant committed or knowingly participated in the
killing with deliberate premeditation; that is, he decided to
kill after a period of reflection" (emphasis added).
This language seemingly came about because the judge added
the word "participate" throughout his preliminary jury
instructions, and during the charge conference, Keith's trial
counsel moved to add the word "knowing" before "participation"
25
in each instance.13 We have repeatedly emphasized the importance
of adhering to our Model Jury Instructions on Homicide. See
Bonner, 489 Mass. at 285 ("we have urged trial judges to adhere
to the Model Jury Instructions on Homicide"); Commonwealth v.
Howard, 479 Mass. 52, 61 (2018) ("judges should proceed with
caution when deviating from our model jury instructions on
homicide").
As explained supra, "the Commonwealth had to 'prove beyond
a reasonable doubt that the defendant knowingly participated in
the commission of the crime charged, and that the defendant had
or shared the required criminal intent'" (quotation omitted).
Watson, 487 Mass. at 162, quoting Commonwealth v. Britt, 465
Mass. 87, 100-101 (2013). Knowing participation in the joint
venture and the requisite criminal intent for murder are two
distinct, "essential elements." Zanetti, 454 Mass. at 455, 467.
Adding variations of the phrase "or knowingly participate" to
the instructions on intent and deliberate premeditation
introduced some confusion into the Commonwealth's burden of
13Specifically, during the charge conference, Keith's trial counsel stated: "Your Honor, it's just that throughout the murder elements [the preliminary instructions] just say[] participate, and I think there's a danger here especially with Keith Cotto that participation could be looked at as driving where you participated. But that's not enough under the actual joint venture theory . . . . [I]t's knowing participation. I think that's a very important distinction for him throughout all of the murder counts." The judge thereafter allowed this motion without objection.
26
proof by suggesting that the jury could find the necessary
intent if the defendants knowingly participated in the killing.
See id. at 455 ("mental state or intent for deliberately
premediated murder . . . is malice, and, in particular, an
intent to kill").
Nevertheless, we discern no substantial likelihood of a
miscarriage of justice in the judge's instruction. Immediately
after the confusing "knowingly participate in killing" language
with respect to intent, the judge clarified, "that is, the
defendant consciously and purposely intended to cause Gabriel
Irizarry's death." Similarly, with respect to deliberate
premeditation, the judge clarified, "that is, he decided to kill
after a period of reflection."14 These are correct statements of
the law. See Commonwealth v. Brown, 496 Mass. 287, 299 (2025)
("The Commonwealth must also prove that the defendant acted with
14The judge did not clarify the "knowingly participate in killing" language with a correct statement of the law in the instructions for murder committed with extreme atrocity or cruelty. Nevertheless, we discern no substantial likelihood of a miscarriage of justice. The jury convicted each defendant of murder in the first degree on a theory of deliberate premeditation with the clarified, correct instructions, indicating the jury found each defendant had the intent to kill. Additionally, the jury did not convict Keith of murder with extreme atrocity or cruelty. Finally, the evidence indicates Luis and Fraticelli, who were convicted on the theory of extreme atrocity or cruelty, fired numerous gunshots into the victim's Ford, hitting the victim at least four times. Any error in these circumstances clearly did not create a substantial likelihood of a miscarriage of justice.
27
deliberate premeditation: that the defendant resolved to kill
after a period of reflection" [quotation and citation omitted]);
Commonwealth v. Andrade, 488 Mass. 522, 539 (2021)
("Establishing an intent to kill requires proof that the
defendant consciously and purposefully intended to cause the
victim's death" [quotation and citation omitted]).
Moreover, as explained supra, there is significant evidence
of the defendants' lethal intent. The evidence indicates the
defendants used three firearms to fire twenty bullets at the
victim in a drive-by shooting on the highway, and the jury
convicted all the defendants of deliberately premeditated
murder. There can be no reasonable doubt that the jury found
the defendants had the intent to kill. See Commonwealth v.
Evans, 439 Mass. 184, 205, cert. denied, 540 U.S. 923 and 540
U.S. 973 (2003) (error in jury instructions "did not create a
substantial likelihood of a miscarriage of justice because the
instruction on deliberate premeditation was correct, and the
evidence support[ed] a verdict of deliberate premeditation");
Commonwealth v. Moure, 428 Mass. 313, 317 n.5 (1998) ("The
instructions created no substantial likelihood of a miscarriage
of justice in light of the evidence that warranted the jury's
finding that the defendant had planned and ordered the murder").
Accordingly, given the judge's repeated correct statements
of the law and all the evidence of the defendants' lethal
28
intent, the addition of the words "knowingly participate in
killing," while adding some confusion in the instructions on
intent, did not cause a substantial likelihood of a miscarriage
of justice. See Commonwealth v. Roman, 495 Mass. 412, 429
(2025) (no substantial likelihood of miscarriage of justice
where "judge's misstatement of law was sandwiched between
multiple correct statements of the law and was de minimis in the
context of the broader instructions"); Commonwealth v. Lynch,
439 Mass. 532, 542-544, cert. denied, 540 U.S. 1059 (2003) (no
substantial likelihood of miscarriage of justice despite two
incorrect and two correct instructions where judge repeatedly
emphasized correct burden of proof).
ii. Involuntary manslaughter with respect to Keith. Keith
also asserts that the trial judge erred in declining to instruct
the jury on involuntary manslaughter. Because Keith requested
this instruction at trial, we review the judge's decision for
prejudicial error. Commonwealth v. Moscaritolo, 497 Mass. 220,
229 (2026). "An involuntary manslaughter instruction is
required where any view of the evidence will permit a finding of
manslaughter and not murder" (quotation omitted). Id., quoting
Commonwealth v. Tyler, 493 Mass. 752, 760 (2024). In conducting
this inquiry, "the evidence must be viewed in the light most
favorable to the defendant." Moscaritolo, supra, quoting
Commonwealth v. Escobar, 493 Mass. 694, 708 (2024). Here, we
29
conclude there was no error because no reasonable view of the
evidence supported an instruction on manslaughter.
"[I]nvoluntary manslaughter is 'the unintentional result of
an act committed with such disregard of its probable harm to
another as to amount to wanton or reckless conduct.'"
Commonwealth v. Pagan, 471 Mass. 537, 547, cert. denied, 577
U.S. 1013 (2015), quoting Commonwealth v. Souza, 428 Mass. 478,
492-493 (1998). "In the context of involuntary manslaughter,
wanton [or] reckless conduct is 'intentional conduct that
create[s] a high degree of likelihood that substantial harm will
result to another person." Pagan, supra, quoting Commonwealth
v. Chambers, 465 Mass. 520, 536 n.15 (2013).
Keith contends that "[u]nder a view of the evidence that
[he] knew that the passengers were armed -- even though he did
not know they had any intent to use guns -- his decision to
drive to a position where they were capable of shooting might
have created a high degree of likelihood that substantial harm
[would] result to another" (quotation omitted).
But even in the light most favorable to Keith, the evidence
establishes that he maneuvered the Honda into position while
three armed passengers prepared to shoot out of the passenger's
side windows, and he did not swerve during the portion of the
shooting captured by surveillance video footage. A drive-by
shooting with multiple guns and bullets firing at another car in
30
close range presents at least a "plain and strong likelihood of
death," not just a "high degree of likelihood that substantial
harm will result." Commonwealth v. Horne, 466 Mass. 440, 443-444 (2013), quoting Commonwealth v. Lyons, 444 Mass. 289, 293
(2005). "A judge need not provide an involuntary manslaughter
charge if it is clear that the risk to the victim was nothing
less than a plain and strong likelihood that death would follow"
(quotation omitted). Commonwealth v. Concepcion, 487 Mass. 77,
92, cert. denied, 142 S. Ct. 408 (2021), quoting Commonwealth v.
Diaz, 431 Mass. 822, 831 (2000).
Moreover, the jury here "'rejected the option of murder in
the second degree, the malice element of which comes closest to
involuntary manslaughter,' namely 'an intent to do an act that
in the circumstances known to the defendant, a reasonable person
would have known created a plain and strong likelihood that
death will result." Pagan, 471 Mass. at 548-549, quoting
Commonwealth v. Tolan, 453 Mass. 634, 650 (2009). "In finding
the defendant guilty of murder in the first degree [based on
deliberate premeditation only], the jury necessarily found that
the defendant had both a specific intent to kill and that the
shooting was premeditated." Pagan, supra at 549, quoting Tolan,
supra.
31
In sum, no instruction on involuntary manslaughter was
required, nor would it have made any difference had it been
given.
c. Review under G. L. c. 278, § 33E. Finally, after a
thorough review of the entire record, we find no reason to
exercise our authority under G. L. c. 278, § 33E, to set aside
or reduce the murder verdicts against the defendants.15 There
was extensive evidence supporting the jury's finding that all of
the defendants acted with deliberate premeditation, and that the
defendants other than Keith, who fired the weapons, acted with
extreme atrocity or cruelty. See Carleton, 497 Mass. at 12-13,
and Phillips, 495 Mass. at 506 (declining to reduce verdicts in
drive-by shooting where defendants circled around block, allowed
other cars to pass, slowed car, and fired multiple shots at
victim through passenger's side window).
3. Conclusion. For the foregoing reasons, the defendants'
convictions are affirmed.
So ordered.
15In Commonwealth v. Mattis, 493 Mass. 216, 217-218 (2024), we concluded that it is unconstitutional to sentence individuals who were eighteen through twenty years of age when they committed the crime to life without the possibility of parole. Because Fraticelli was eighteen years old at the time of the murder, and because he was convicted of murder in the first degree committed with extreme atrocity or cruelty, he is entitled to parole eligibility after serving thirty years in prison. Id. at 237.