SALEM — The credibility of alleged driver and witness Elijah Fontes-Wilson took center stage as the Commonwealth and defense presented their closing arguments in the trial of Marcus Carlisle, of Lynn, and Tyrell Berberena, of Everett, Monday morning.
In a trial that has now spanned roughly three weeks, the Commonwealth accuses Carlisle and Berberena of killing Lynner Noe Hernandez and injuring four others in a drive-by shooting July 4, 2020 at a cookout at 134 Fayette St. in Lynn.
The defendants, alongside alleged co-conspirator Josue Cespedes, allegedly fired 20 rounds into the crowd from a white pickup truck rented and driven by Fontes-Wilson.
The prosecution alleges that Berberena and Carlisle are members of the Tiny Rascals Gang, and acted in retaliation against partygoers they believed to be rival gang members responsible for shooting Fontes-Wilson and others on Harwood Street in Lynn a month prior.
Lynn Police and Massachusetts State Troopers interrogated Fontes-Wilson July 5, 2020, after he went to Lynn Police Headquarters to falsely report the car stolen. Fontes-Wilson originally told law enforcement officers a fabricated story, but agreed to cooperate on July 7, identifying Carlisle and Berberena as the shooters in return for a reduced prison sentence.
In his closing arguments, Carlisle’s attorney James Krasnoo urged the jury not to trust Fontes-Wilson’s testimony. He pointed to Fontes-Wilson’s lies to police during his interrogation, and embellishments during the trial as factors that discredited him as a witness.
Fontes-Wilson, Krasnoo argued, did not tell police that alleged co-conspirator Josue Cespedes tried to hand him a gun after the shooting, but admitted so once he was on the witness stand. He also pointed to the fact that in police interviews, Fontes-Wilson rated his own honesty level six out of 10.
“He is an opportunist of the highest caliber,” Krasnoo said. “I most respectfully suggest that you don’t believe a word he says whatsoever.”
Krasnoo also argued that Fontes-Wilson told police that Carlisle was wearing a blue polo shirt, which was not consistent with any security camera footage found in the area.
Besides Fontes-Wilson’s testimony, Krasnoo argued, the Commonwealth lacked sufficient DNA, fingerprint, security camera, or eyewitness evidence to prove that Carlisle was in the truck the day of the murder.
“The Commonwealth has a glaring hole right in the middle of its living room, so to speak, and it has surrounded that with all the plants. But no matter how you try to cover the hole, the hole is still there,” Krasnoo said. “The reality is that no one but Mr. Fontes-Wilson places Marcus Carlisle in that car as the shooter during the drive-by shooting. The question in this case really revolves around the credibility of Mr. Fontes-Wilson.”
One of the holes in the Commonwealth’s argument, Krasnoo said, was the fact that Heury Baldera was the only eyewitness at the cookout who described the shooter, and he testified that the shooters were black men with dreadlocks.
“He reported having seen a group of four tall black males, some with dreadlocks. We’ll go through this evidence and we will see that at no time has Mr. Carlisle ever had dreadlocks,” Krasnoo said. “It is the dreadlocks that undoes the Commonwealth’s theory. It is the dreadlocks that undoes Mr. Fontes-Wilson. It is the dreadlocks that prove that Mr. Fontes-Wilson is nothing more than a liar.”
Berberena’s attorney Brian Kelley began his closing arguments by urging jury members not to use their emotions in deciding the case, but to focus on the evidence itself.
Kelley said that since neither Berberena’s fingerprints or DNA could be found in the trunk, and that cellphone tower evidence showed Berberena’s cell phone was in the same location for most of the evening, the Commonwealth’s only evidence against his client is Fontes-Wilson’s testimony.
“The government wants you to believe that Mr. Berberena was able to get into this vehicle, roll down the window, climb his pretty substantial body out of a window, commit this offense, climb back into the window, close the window, exit the vehicle and not leave one single strand of DNA in the truck,” Kelley said.
Kelley argued that Fontes-Wilson was motivated by a reduced sentence to lie to police. He echoed Krasnoo’s remarks about the two defendants lacking dark skin or dreadlocks, and analogized Fontes-Wilson’s lies during his testimony.
“You’re about to bite into your ice cream when you notice there’s a piece of glass in it. Do you take the piece of glass out and keep eating the ice cream? No, you toss it and buy another one,” Kelley said. “You toss it all, and what are you left with? Very little. Phone calls, text messages where they’re not talking about this event. There’s no other physical evidence.”
Kelley closed his arguments by asking the jury to acquit his client because of the lack of evidence against him, and said he is innocent.
In prosecutor Susan Dolhun’s testimony, she countered the defense’s arguments, making the case that even though Fontes-Wilson initially lied to police, his testimony matched the Commonwealth’s phone record evidence.
“Defense counsel wants you to believe that Elijah Fontes-Wilson is lying about Carlisle, Berberena, or Cespedes being in the murder truck, but apparently he’s not lying about himself being the driver,” Dolhun said.
Dolhun argued that Berberena’s new cell phone in the days after the shooting indicated that he tried to lay low while he expected to be investigated. She said that when Fontes-Wilson texted Cespedes to relay Carlisle an angry message about spending his birthday in a police interrogation room, Carlisle responded, through Cespedes: “I understand where he’s coming from.”
“Marcus Carlisle forgot to do the single most important thing you can do when you’re covering up a crime like this — he forgot the reaction of an innocent person,” Dolhun said. “He forgot to act surprised. He forgot to deny putting Elijah Fontes-Wilson in the driver’s seat on a crash mission on July 4.”
Dolhun reminded the jury that the two defendants are alleged Tiny Rascals Gang members, and asked them why Fontes-Wilson would risk his own safety by “ratting them out” to the police if they weren’t truly involved.
Referencing Baldera’s previous testimony, in which he described the shooters as black men with dreadlocks, Dolhun held up a black ski mask with the words “TRG” printed on it before the jury. She said that since the partygoers were in a frightening situation, it is possible that Baldera thought he saw something that he actually did not.
“The defendants were wearing these terrifying TRG ski masks and these witnesses were looking at this haunting image in the dark, focused on facing the greatest stress of their lives. Ladies and gentlemen, would you be looking at studying someone’s skin tone when this thing is staring out in the dark at you?” Dolhun asked the jury.
Dolhun closed her argument by asking jury members to use their common sense during their deliberations.
As of 4:30 p.m. Monday, the jury had not yet reached a verdict.