By Joshua Wood
A driver who helps carry out a shooting can be convicted of deliberately premeditated murder even if he never fires a gun. The Commonwealth must still prove that he knowingly participated in the killing and shared the intent to kill.
In Commonwealth v. Cotto, SJC-13583, SJC-13584, and SJC-13585, decided September 29, 2026, the Massachusetts Supreme Judicial Court upheld three first-degree murder convictions arising from a highway shooting. The court found sufficient evidence against both the passengers and the driver. It also identified an error in the jury instructions that blurred the distinction between participation and intent, although the error did not require a new trial.
The decision explains what the prosecution must prove when several people are accused of participating in the same killing—and why each defendant’s own conduct and intent need to be examined carefully.
The shooting and the evidence
The case arose from a shooting on Interstate 91 in Springfield in November 2019. Keith Cotto was driving a Honda Accord. His brother, Luis Cotto, sat behind the front passenger, Isaiah Fraticelli. A fourth man, Victor Espinosa, occupied the remaining rear seat.
The evidence showed that the Honda passed Gabriel Irizarry’s parked pickup truck, circled through nearby streets, and pulled behind it as Irizarry drove away. The Honda followed the pickup onto the highway, accelerated ahead of it, and then slowed until the vehicles were alongside each other.
A State trooper driving behind the vehicles saw a firearm protruding from the Honda’s passenger side and observed muzzle flashes at different heights. Twenty bullets struck the pickup. Irizarry suffered multiple gunshot wounds and died several days later.
Ballistics evidence established that three firearms had been used. Police recovered two of them, one from the Honda and another from the woods near where the Honda crashed after a police pursuit.
Keith, Luis, and Fraticelli were convicted of first-degree murder and firearm offenses. Espinosa was also convicted, but his appeal was not part of this decision.
Joint venture requires proof of participation and intent
Under Massachusetts joint venture law, the Commonwealth must prove two distinct requirements beyond a reasonable doubt:
The defendant knowingly participated in committing the charged crime.
The defendant had or shared the criminal intent required for that crime.
For murder based on deliberate premeditation, the required intent is an intent to kill, formed after deliberation and reflection. The Commonwealth must establish those requirements against each defendant.
The prosecution does not necessarily have to identify each participant’s precise role or establish who fired the fatal shot. But that does not eliminate the obligation to prove what each defendant knowingly did and the intent with which he acted.
Presence alone is insufficient. Knowing that a crime is going to occur, without participating in it, does not by itself establish joint venture liability. Likewise, evidence that someone helped carry out an assault does not necessarily establish that the person shared an intent to kill.
These distinctions are particularly important when the prosecution’s theory is that a driver assisted a shooting committed by passengers.
Why the evidence was sufficient against the driver
The Commonwealth’s theory was that Keith maneuvered the Honda so his passengers could shoot Irizarry. It did not contend that Keith fired a gun himself.
To convict him of deliberately premeditated murder on that theory, the Commonwealth had to prove that he drove the vehicle, knew his passengers intended to kill the victim, and shared that intent.
The SJC found sufficient evidence to support those conclusions. It considered the sequence of events:
Keith drove past the pickup, circled through side streets, and positioned the Honda behind it.
He followed the pickup, waited behind it at a traffic light, and brought the vehicles alongside each other on the highway.
Three firearms were discharged from inside the Honda during a shooting lasting only seconds.
Surveillance footage covering approximately the final two seconds did not show Keith swerving.
Keith’s DNA was found on one of the firearms linked to the shooting and recovered from the nearby woods.
The court concluded that the jury could infer a coordinated attack in which Keith knowingly positioned the Honda to facilitate the killing. His driving during the recorded portion of the shooting supported an inference that the gunfire did not surprise him.
That was an inference from the combined evidence. The court did not establish a rule that failing to swerve proves an intent to kill, or that driving a car containing an armed passenger automatically makes the driver responsible for murder.
The standard of appellate review also matters. The SJC examined whether the evidence, viewed in the light most favorable to the Commonwealth, permitted a rational jury to find the required elements beyond a reasonable doubt. It concluded that it did.
Why the evidence was sufficient against the passengers
Luis and Fraticelli acknowledged that they occupied the Honda’s passenger-side seats during the shooting. The court considered their positions alongside the physical evidence, the simultaneous gunfire from multiple weapons, and the number of bullets that struck the pickup within seconds.
Taken together, that evidence permitted the jury to infer that both men fired at Irizarry with the intent to kill. Their flight after the crash provided additional evidence the jury could consider, although flight alone would not establish guilt.
The court upheld their convictions under both deliberate premeditation and extreme atrocity or cruelty. Keith’s first-degree murder conviction rested on deliberate premeditation alone.
The jury instructions improperly blurred participation and intent
Although the convictions were affirmed, the SJC found an error in the instructions defining the required intent.
The judge told the jury that the defendant “intended to kill or to knowingly participate in killing” the victim. Similar language appeared in the instruction on deliberate premeditation.
The problem was the alternative. Knowing participation and intent are separate requirements. The wording suggested that proof of knowing participation could substitute for proof of the necessary intent to kill.
That distinction is substantive. A jury deciding whether a defendant helped commit a crime must also determine whether he possessed the mental state required for the particular offense. An instruction cannot collapse those questions into one.
The SJC again emphasized the importance of following the model homicide instructions and exercising caution when changing their language.
Why the instructional error did not produce a new trial
The challenged instruction was not preserved by an objection at trial. The SJC therefore reviewed whether the error created a substantial likelihood of a miscarriage of justice.
The court considered the instructions as a whole. In the instructions addressing intent and deliberate premeditation, the judge followed the confusing language with explanations that the defendant consciously and purposely intended to cause death and decided to kill after reflection.
The court also considered the substantial evidence of lethal intent and the jury’s finding that each defendant committed deliberately premeditated murder. It concluded that the error did not create a substantial likelihood of a miscarriage of justice.
The result should not obscure the holding: the language was erroneous. It simply did not warrant reversal in the circumstances of this trial.
For the defense, the practical lesson is to examine proposed instructions carefully and raise a precise objection before the jury begins deliberating. Identifying an error on appeal does not necessarily undo its consequences.
Why the driver was not entitled to an involuntary manslaughter instruction
Keith also argued that the jury should have been permitted to consider involuntary manslaughter. His position was that he might have known his passengers were armed without knowing they intended to use their weapons.
A defendant is entitled to an involuntary manslaughter instruction when a reasonable view of the evidence, considered in the defendant’s favor, supports manslaughter rather than murder.
The SJC found no such basis here. It emphasized Keith’s positioning of the Honda and the discharge of multiple firearms at an occupied vehicle at close range. The court characterized the danger as a plain and strong likelihood of death, beyond the risk of substantial harm associated with involuntary manslaughter.
The jury had also rejected second-degree murder and found that Keith acted with a specific intent to kill after deliberate premeditation. The court upheld the refusal to give the requested instruction.
What Cotto means for a criminal defense
A joint venture defense requires close attention to the evidence concerning each accused person. Showing that a defendant did not fire a weapon may be important, but it does not by itself defeat a supported claim that he knowingly assisted a killing with the required intent.
The defense must examine what the defendant knew, when he knew it, and what he actually did. Evidence of assistance with one kind of wrongdoing must be distinguished from evidence of participation in an intentional killing.
The same care is required with circumstantial evidence. A vehicle’s movements, a person’s location, or conduct after a shooting may support an inference. The defense should test whether the inference is reasonable and supported by the full record, rather than accepting the prosecution’s interpretation as an established fact.
Cotto upheld convictions on a particular combination of evidence. Applying it to another case requires examining whether that evidence is actually present.
Q & A:
Can someone be convicted of murder without firing a gun?
Yes. Massachusetts permits a murder conviction based on knowing participation with the required criminal intent. For deliberately premeditated murder, the Commonwealth must prove an intent to kill formed after reflection. A defendant’s failure to fire a weapon does not, by itself, resolve those issues.
Is being in the car enough to prove joint venture murder?
No. Mere presence does not establish knowing participation. The Commonwealth must prove participation and the mental state required for the charged offense. In Cotto, the court relied on evidence of the vehicle’s movements, the occupants’ positions, multiple firearms, and the coordinated shooting.
Does the prosecution have to prove who fired the fatal shot?
Not necessarily. Under a joint venture theory, the Commonwealth need not establish each defendant’s precise role as the shooter or an accomplice. It must still prove that each defendant knowingly participated with the required intent.
Can intent to kill be proved without a confession or an express agreement?
Yes. Intent may be inferred from circumstances and conduct. In Cotto, the court relied on the pursuit and positioning of the vehicles and the coordinated discharge of multiple weapons. The inference must be supported by evidence rather than conjecture.
Does an incorrect jury instruction automatically require a new trial?
No. The result depends on the error, the instructions as a whole, the evidence, and the applicable standard of review. In Cotto, the SJC found an error but concluded that it did not create a substantial likelihood of a miscarriage of justice.
Does the absence of a specific intent to kill automatically reduce murder to manslaughter?
No. Different murder theories have different mental-state requirements. An involuntary manslaughter instruction requires a reasonable evidentiary basis for that lesser offense. The SJC found no such basis for the driver’s requested instruction in Cotto.
Conclusion
Commonwealth v. Cotto illustrates how a murder conviction can rest on coordinated conduct and circumstantial evidence, even when the defendant did not fire a shot. It also confirms that knowing participation and the required criminal intent must remain distinct.
The evidence must establish the case against each defendant. The jury must receive instructions that require it to make those findings separately.
If you or a family member has been charged with murder or accused of helping someone else commit a violent crime in Massachusetts, call Benzaken, Sheehan & Wood, LLP to discuss the case. We can examine the evidence concerning your role and intent, explain the prosecution’s theory, and assess the defenses available to you.