SJC hears appeals in linked highway-shooting convictions as defenses challenge evidence, jury instructions and 'extreme atrocity' findings

The Supreme Judicial Court heard arguments in three consolidated appeals stemming from a November 2019 highway shooting that killed Gabriel Irizarry.

Attorney Dana Curhan, who represents Isaiah Fraticelli, told the court there were three guns and four people in the Honda Accord that opened fire into a Ford F-150. “There were three guns in the car and there were four people in the car,” Curhan said, adding there is no direct evidence Fraticelli — who was seated in the front passenger seat — possessed or fired a weapon. Curhan noted that one firearm recovered from the front passenger seat had Victor Espinosa’s DNA and a different gun recovered in the woods bore Keith Cotto’s DNA. He urged the justices to reconsider the trial court’s finding of extreme atrocity and cruelty, saying that designation — and the court decisions that followed Mattis — substantially lengthen parole-ineligibility periods for his client.

“Because of the extreme atrocity conviction, he’s not parole-eligible for 30 years,” Curhan said, arguing that if the facts do not support extreme atrocity the court should reduce the conviction or otherwise afford relief under G. L. c. 278, §33E.

Suzanne Renaud, counsel for Keith Cotto (the driver), focused largely on jury instructions. Renaud argued the trial judge’s language conflated the element of intent to kill with a separate instruction on “knowingly participating,” potentially allowing the jury to find guilt without a properly defined lethal-intent standard. “That one sentence is demonstrably wrong because it’s lowering the burden of proof,” Renaud told the justices, urging that the instructional error created a substantial likelihood of a miscarriage of justice.

Joseph Kenneally, representing Luis Cotto (a backseat passenger), pressed similar themes: he argued the record lacks evidence tying Luis Cotto to the firing and urged the court to apply the 33E standard, which requires the justices to review whether the verdict is consistent with justice under the totality of the circumstances.

Special Assistant District Attorney Joseph Coliflores, with lead trial ADA Katharine Johnston seated at counsel table, recounted the prosecution’s version of events. He said the defendants followed the Irizarrys onto the highway, fired approximately 20 rounds into the truck, and that video, ballistic analysis and the victim’s multiple wounds supported the jury’s findings of deliberate premeditation and, as to two defendants, the separate finding of extreme atrocity and cruelty. Coliflores conceded some of the trial-court language was confusing but urged the court to view the instructions as a whole and to consider the verdicts themselves as evidence the jury understood and applied the required burdens. “The instructions as a whole did not reduce the burden upon the Commonwealth,” Coliflores said.

Justices pressed both sides on predictable points: whether shooting into a moving vehicle in a coordinated way can support an atrocity/cruelty finding, how to interpret precedents such as Castillo and the post-Mattis parole implications, and whether the jury instruction errors — unobjected to at trial — nonetheless require reversal in light of the total record. Justice Gaziano asked whether the driving and pattern of movements (circling, following and approaching the victim’s truck) permit a reasonable inference that the driver shared lethal intent with his passengers; defense counsel countered that gaps in the record, differences in DNA findings and sequencing of shots leave plausible alternative explanations.

No decision was issued from the bench. The consolidated cases were argued on the record and taken under advisement for decision by the court.

What happens next: the justices will deliberate and issue a written opinion that resolves sufficiency and instruction claims, addresses whether extreme atrocity and cruelty apply on these facts, and decides whether 33E relief is appropriate.