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Date: 03-13-2017
Case Style:
COMMONWEALTH vs. ESAU DePINA COMMONWEALTH vs. ISAIAH MONTEIRO
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Case Number: SJC-11794 SJC-11932
Judge: Barbara Lenk
Court: Massachusetts Appeals Court
Plaintiff's Attorney: Audrey Anderson, Assistant District Attorney
Defendant's Attorney:
 Rosemary Curran Scapicchio for Esau DePina |  Stephen Neyman for Isaiah Monteiro |
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We recite the facts that the jury could have found, reserving certain details
for later discussion. On November 16, 2009, at approximately
1 P.M., the victim was with several of his friends on the front
porch of a house on Johnson Court in Brockton. A man approached
on foot and shot him. Witnesses near the scene -- neighbors, a
carpenter, and the driver of a passing vehicle -- described
hearing at least three gunshots and seeing a man running,
climbing through a hole in a fence, and getting into a waiting
vehicle. None of the witnesses was able to provide more than a
general description of that individual, whom most described as a
relatively dark-skinned male in a gray hooded sweatshirt.
No bullets were recovered from the victim's body, but
fifteen cartridges, eight spent shells, and three lead fragments
were found at the scene. A State police ballistics expert
determined that all of the shots were fired by the same gun,
likely a .40 caliber semiautomatic pistol, but were unable to
identify a specific weapon or manufacturer. Forensic examiners
also took cast impressions of four partial footprints found near
the location where the fleeing man had climbed through a fence,
but investigators were unable to determine the precise size or
brand of the shoe that made the impression.
With few leads, there was little progress in the
investigation for several months. In the summer of 2010, police
spoke with Licea DaSilva, Monteiro's girl friend at the time of
the shooting. Police also spoke with Kevin Dossanto, Monteiro's
cousin. From their statements, police learned that Monteiro had
4
been "jumped" by the victim and the victim's brother some time
before the shooting. They also learned that Monteiro and DePina
had spent the weekend before the shooting at a hotel in
Brockton, with DaSilva and others. DaSilva, who had been
consuming alcohol and drugs, saw Monteiro with a handgun and
"shells" in the room.
On the following Monday morning, Monteiro and DaSilva drove
to the school she attended. DaSilva gave Monteiro permission to
use her vehicle for the rest of the day, and asked him to bring
her lunch. Dossanto later went with Monteiro to the hotel and
to deliver lunch to DaSilva. En route, they picked up DePina.
When they dropped her lunch off at school, DaSilva noticed that
DePina was wearing a gray hooded sweatshirt, which she thought
was strange given the weather. The three men then continued
"joy riding" around Brockton, while listening to music and
smoking marijuana.
At some point, Dossanto noticed that they had entered the
north side of Brockton. This was a part of the city they
generally avoided because of a "beef" between residents who grew
up on the north side and those, like Dossanto, Monteiro, and
DePina, who grew up on the south side. When Dossanto asked why
they were on the north side, Monteiro told him not to worry
about it.
5
As they were driving near Johnson Court, Monteiro pointed
out a group of people standing on the street. After passing
Johnson Court, Monteiro pulled over and DePina got out of the
vehicle. Less than one minute later, Dossanto heard multiple
gunshots. DePina returned to the vehicle almost immediately
thereafter and said, "I think I got him." Monteiro said "are
you sure" or "all right." DePina replied that they had "to get
the hell out" of the area, and Monteiro drove to a mutual
friend's house. When Dossanto asked what had happened, Monteiro
replied that "shit popped off," which Dossanto understood to
mean that someone had been shot. When he attempted to ask more
about it, Monteiro told him to "[s]top acting like a bitch."
Later that day, Monteiro and DePina returned to pick up
DaSilva at her school. Soon after getting into the vehicle,
DaSilva received a telephone call from her sister, Anita
Rodriguez, telling her of the shooting and the victim's death,2
and asking to be picked up at their house near Johnson Court.
DePina and Monteiro said that they did not want to go to the
north side of town, and particularly did not want to go near
Johnson Court because they had a "beef" with people in that
area, but ultimately did go with DaSilva to get her sister. At
her sister's urging, DaSilva then drove past the scene of the
shooting. The defendants appeared nervous and DaSilva's sister
asked them, "[I]f you didn't do it, what's the big deal?," to
which neither responded.3
b. Pretrial proceedings. Prior to trial, the defendants
filed a number of motions concerning the anticipated evidence at
trial. While some were allowed, many were denied. Among those
denied were motions to sever, to exclude testimony that DaSilva
had seen Monteiro with a gun the weekend before the shooting, to
introduce testimony concerning a violent altercation between the
victim and an unknown individual shortly before his death, and
to admit testimony from an individual who had been planning to
purchase heroin from the victim later on the day he was killed.
After the jury were empanelled but before opening
statements, DaSilva, whom the Commonwealth had summonsed to
testify, asserted her right to remain silent under the Fifth
Amendment to the United States Constitution and art. 12 of the
Massachusetts Declaration of Rights. Appointed counsel
maintained, among other things, that inconsistencies between
DaSilva's grand jury testimony and the testimony she intended to
give at trial would expose her to perjury charges. The judge
held an in camera hearing on the validity of this claim (Martin
hearing). See Commonwealth v. Martin, 423 Mass. 496, 504
3 It was not clear whether Rodriguez's question was directed at one or both of the defendants.
7
(1996). At the hearing, DaSilva spoke freely; among other
things, she mentioned her fear of testifying, and she claimed
that police coerced her into falsely telling the grand jury that
she had seen Monteiro with a gun the weekend before the killing.
On this basis, the judge determined that DaSilva had asserted a
valid claim under the Fifth Amendment as, were she to testify to
the contrary, she "necessarily" would admit to perjury. The
Commonwealth then obtained a grant of immunity and an order that
DaSilva testify at trial. Thereafter, and before opening
statements were made, DaSilva's counsel said that she was
willing to do so.
c. Proceedings at trial. The prosecutor's opening
statement focused largely on the evidence that DaSilva and
Dossanto had provided to the grand jury and to which it was
expected they would testify at trial. In addition to key
testimony from the two, one of whom proved to be uncooperative,
a series of witnesses testified to hearing gun shots and seeing
a man running, climbing through a fence, and entering a vehicle
around the time of the shooting. Investigating officers
testified to their efforts to obtain and examine physical
evidence, largely consisting of the inconclusive cartridges,
shells, and footprints.
Dossanto was the primary source of information concerning
the events on the day of the shooting. Among other things, he
8
testified that he had been in the vehicle with Monteiro and
DePina on that day, with Monteiro driving and DePina a
passenger. The group drove around town, eventually arriving at
Johnson Court, where Monteiro pointed out a group of people, and
parked the vehicle. DePina got out and disappeared from view,
and Dossanto then heard several gunshots. DePina returned
immediately thereafter, got into the vehicle, and told Monteiro
to leave the scene. As they were driving away, Monteiro told
Dossanto that "shit popped off."
On direct examination, Dossanto acknowledged that he had
not come forward earlier with this information because he feared
retaliation if he cooperated with police. On cross-examination,
Dossanto conceded that he did not speak to police until they
approached him nine months after the shooting, and told him that
he was a "person of interest" in the investigation. He
initially told police that he had "nothing to do with" the
shooting, and that he did not know DaSilva. After police told
him that they knew he had been with Monteiro and DePina that
day, and that he had "better start talking" to avoid being sent
to prison, however, he implicated Monteiro and DePina by
"fill[ing] in the blanks" for the police interviewers.
During the first day of DaSilva's testimony, she stated, as
she had at the Martin hearing, that her testimony before the
grand jury had been coerced, and asserted multiple times that
9
she did not remember events to which she had testified at the
grand jury.4 The judge conducted a voir dire examination to
ascertain whether, pursuant to Commonwealth v. Daye, 393
Mass. 55 (1984), overruled on another ground by Commonwealth v.
Cong Duc Le, 444 Mass. 431 (2005), and its progeny, DaSilva's
grand jury testimony was admissible substantively. During that
examination, DaSilva continued to maintain that she did not have
an independent memory of certain events, alluding to a learning
disability that affected her abilities in this regard. The
examination ended with DaSilva running out of the court room.
The judge continued the trial until the following day, ordered
DaSilva held overnight in custody, and found her in contempt.
Her attorney informed the judge the following morning that,
prior to testifying the preceding day, DaSilva had been
threatened in the hallway, but nonetheless would be willing to
testify. When direct examination resumed, however, she
continued to maintain that she could not remember most of the
events on the weekend prior to, and the day of, the shooting.
This led to a second voir dire examination at which DaSilva
continued to claim that she was unable to remember certain
events, and that her statements before the grand jury had been
4 The jury heard that DaSilva had received immunity for her testimony, although they were not told when she was given that immunity. During the judge's final charge, they were told that they could consider the grant of immunity in weighing her credibility.
10
coerced. On cross-examination by defense counsel, she was able
to recount considerably more information than on direct
examination by the Commonwealth. Discrediting DaSilva's memory
loss as feigned, the judge allowed portions of her grand jury
testimony to be admitted substantively, on "a question by
question basis."
2. Discussion. The defendants raise several claims of
error on appeal. They challenge the substantive admission of
DaSilva's grand jury testimony on both evidentiary and
constitutional grounds, and also claim that such testimony
contained several independently inadmissible portions. They
assert error as well in six further respects: (a) the
prosecutor's opening statement; (b) the judge's instructions
concerning immunized witness testimony; (c) the denial of a
motion to sever; (d) the partial denial of a motion to introduce
third-party culprit evidence; (e) the testimony of a ballistics
expert; and (f) Dossanto's testimony as to his fear of
testifying. Both defendants also seek relief under G. L.
c. 278, § 33E.
a. Admission of DaSilva's grand jury testimony. The
defendants claim that the admission of DaSilva's grand jury
testimony as substantive evidence, to which they objected at
trial, was error. In light of the paucity of physical evidence
and the Commonwealth's resulting reliance on DaSilva's
11
testimony, as well as that of Dossanto, the defendants maintain
that this was prejudicial error warranting a new trial.
The defendants suggest two reasons why admission of the
grand jury testimony was error. First, both maintain that the
judge's findings were inadequate to satisfy the prerequisites
for admissibility of grand jury testimony as set forth in Daye,
393 Mass. at 73-74, and Commonwealth v. Sineiro, 432 Mass. 735,
745 & n.12 (2000). Specifically, they claim that the judge
failed to make necessary findings that DaSilva's testimony was
not coerced. Second, Monteiro argues that the admission of such
testimony was in violation of the confrontation clause of the
Sixth Amendment to the United States Constitution. After
considering each of these contentions, we turn to the
defendants' argument that, even if not erroneously admitted on
these grounds, four specific portions of the testimony should
have been excluded on evidentiary grounds.
i. Prerequisites for substantive admission of grand jury
testimony. When a witness, who is on the stand and therefore
available for cross-examination, testifies to a lack of memory,
his or her previous testimony before the grand jury may be
admitted substantively if the judge determines that three
conditions have been met. The judge must find, first, that the
witness is in fact feigning his or her lack of memory; second,
that the grand jury testimony was not coerced; and, third, that
12
the grand jury testimony was in the witness's own words,
involving more than mere confirmations or denials of statements
made by the interrogator.5 See Commonwealth v. Maldonado, 466
Mass. 742, 754-755, cert. denied, 134 S. Ct. 2312 (2014), citing
Sineiro, 432 Mass. at 745 & n.12, and Daye, 393 Mass. at 75. A
trial judge's findings on these issues are entitled to
substantial deference and are "conclusive as long as . . .
supported by the evidence." Maldonado, supra at 756, quoting
Sineiro, supra at 742 n.6.
In this case, the judge's determination that DaSilva's
statement to the grand jury met the requirements to be admitted
substantively is "supported by the evidence." Maldonado, supra,
quoting Sineiro, supra. As to the first prerequisite, feigned
memory loss, there is little question that the evidence amply
supports the judge's finding. The judge noted that, at the
Martin hearing, DaSilva had remembered relevant events and
similarly could recount events when asked about them during the
voir dire examination by defense counsel. He noted also that
5 In Commonwealth v. Daye, 393 Mass. 55, 75 (1984), overruled on other grounds by Commonwealth v. Cong Duc Le, 444 Mass. 431 (2005), we identified an additional requirement: where grand jury testimony relates to an essential element of the offense, the Commonwealth must offer corroborative evidence, in addition to that testimony, in order to sustain a conviction. While we have sometimes called this a fourth prerequisite, in fact the requirement goes to the sufficiency of the evidence rather than to its admissibility. See Commonwealth v. Clements, 436 Mass. 190, 193 (2002).
13
DaSilva had indicated her desire not to get "involved," and had
reasons that might cause her to feign memory loss.6
As to the second prerequisite, the judge did not expressly
find that DaSilva's grand jury testimony was not coerced, nor
was he requested to do so. Although an express finding is, of
course, to be preferred, it is not essential where the evidence
supports the judge's implicit finding that DaSilva had not been
coerced.7 See Maldonado, 466 Mass. at 756. Where, as here, a
judge demonstrates familiarity with the requirements for the
substantive admission of grand jury testimony based on a feigned
loss of memory, the admission of the testimony implies a factual
finding that it was not coerced. See id. This comports with
the general principle that a judge's ruling on an ultimate issue
implies resolution of subsidiary factual issues in favor of the
prevailing party. See Commonwealth v. Grandison, 433 Mass. 135,
137 (2001), and cases cited; Commonwealth v. Lanoue, 392 Mass.
6 At the first voir dire, the judge commented, "I have observed her in-camera. She doesn't have a problem with memory. You can see from the transcript, she specifically gave me reasons why she didn't want to testify. She is up here and even when I am questioning her, she thinks this is a game."
7 During oral argument before us, counsel for DePina urged that, where, as here, a witness's claim of coercion was uncontroverted, the judge must make a specific finding that he or she does not credit that claim in order to make a finding that there was no coercion. We decline to adopt this suggestion.
14
583, 588 (1984), S.C., 400 Mass. 1007 (1987) and 409 Mass. 1
(1990).
The judge had observed DaSilva over two days, having
conducted both a Martin hearing and two voir dire examinations.
While, at the time of the judge's ruling, DaSilva's consistent
claim of police coercion had not been controverted,8 the judge
was nonetheless not required to credit it. Cf. Maldonado, 466
Mass. at 756 (judge entitled not to credit claim of coercion).
He had found DaSilva generally not credible, and already had
determined that her claimed lack of memory was a sham, observing
that she "thinks this [trial] is a game," and noting that she
did not have the same loss of memory when responding to defense
counsel or when testifying in camera. The final Daye-Sineiro
requirement was met by DaSilva's testimony, in her own words,
before the grand jury; she plainly did far more than confirm or
deny the prosecutor's questions. See id. The defendants do not
argue otherwise.
ii. Confrontation clause. Monteiro claims that, due to
DaSilva's asserted lack of memory, he was unable to cross
examine her on the substance of her testimony, in violation of
the confrontation clause. This claim is without merit.
8 The prosecutor later presented evidence from police officers denying any coercion of DaSilva.
15
Where a witness testifies at trial and is cross-examined,
any limitation on the effectiveness or substance of that cross
examination stemming from feigned memory loss generally does not
implicate the confrontation clause. See, e.g., Commonwealth v.
Figueroa, 451 Mass. 566, 576 (2008). See also Cong Duc Le, 444
Mass. at 437-438, citing United States v. Owens, 484 U.S. 554,
561 (1988) (lack of "substantive content of a witness's answers
does not mean that the defense has been deprived of the
opportunity to confront"). But see Commonwealth v. Stewart,
454 Mass. 527, 533 (2009) (reaffirming holding in Daye that
total loss of memory preventing effective cross-examination may
preclude admission of grand jury testimony at trial).
Here, DaSilva was available for cross-examination at trial.
Defense counsel was able to conduct, and did conduct, an
effective cross-examination. DaSilva recanted her grand jury
testimony incriminating the defendants, and acknowledged some
memory of the period in question. She testified to using
alcohol and drugs the weekend prior to the killing and to being
brought food by the defendants that day. She explicitly denied
any memory of bad blood between Monteiro and the victim, any
memory of seeing Monteiro at the hotel with a gun on the weekend
prior to the shooting, and any memory of DePina wearing a gray
sweatshirt on the day of the shooting. Cf. Daye, 393 Mass. at
71 n.15 (cross-examination "could hardly hope to accomplish
16
more" than to convince witness to tell different, non
incriminating story [citation omitted]).
iii. Independently inadmissible portions of grand jury
testimony. Both defendants contend that even if the grand jury
testimony was properly admitted, four specific portions should
have been excluded.
A. "Totem pole" hearsay. The defendants argue that two
statements made by DaSilva's sister, Rodriguez, and introduced
through DaSilva's grand jury testimony, should have been
excluded as "totem pole" hearsay. Totem pole hearsay is
admissible only if each of the multiple hearsay statements falls
within an exception to the hearsay rule. See, e.g.,
Commonwealth v. Gil, 393 Mass. 204, 218 (1984); Mass. G. Evid.
§ 805 (2016). We agree that at least one statement ought not to
have been admitted, but the error does not require a new trial.
The first challenged statement -- DaSilva's testimony to
the grand jury that Rodriguez said the defendants appeared
nervous -- constituted hearsay not within any exception. Before
the grand jury, DaSilva testified that DePina and Monteiro acted
nervously: they "didn't want to go" back toward Johnson Court,
they "were mad," and their reaction was "unusual." She further
testified, "My sister had noticed it, too, and said, 'Do they
have something to do with it?' Because my sister was like, 'oh,
they're acting really nervous.'" As neither defendant objected
17
to this particular statement at trial, we review only to
determine whether its admission caused a substantial likelihood
of a miscarriage of justice. See, e.g., Commonwealth v.
Stewart, 450 Mass. 25, 37 (2007). Because the statement was
cumulative of other, properly admitted evidence, namely
DaSilva's own observations of the defendants' demeanor, we
conclude that it did not. See Commonwealth v. Spray, 467 Mass.
456, 471 (2014) (cumulative hearsay does not create substantial
likelihood of miscarriage of justice); Commonwealth v. Britt,
465 Mass. 87, 92 (2013) (no substantial likelihood of
miscarriage of justice where "jury could have inferred" same
fact from properly admitted evidence).
In the second challenged statement, DaSilva related in her
grand jury testimony, later admitted at trial, that Rodriguez
asked DePina and Monteiro, "Well, if you didn't do it, what's
the big deal?" and that neither responded. DePina contends that
this, too, is totem pole hearsay. The judge allowed the
question to come in as an adoptive admission by silence.
Because Monteiro objected,9 we review to determine whether the
error, if any, prejudiced the defendants. See Commonwealth v.
Martinez, 431 Mass. 168, 176 n.7 (2000). An error is
9 Monteiro's objection put the judge on notice, and thus served the purpose of the requirement of a contemporaneous objection. Although DePina did not object at trial, we treat the issue as preserved for both defendants. See Commonwealth v. Charles, 57 Mass. App. Ct. 595, 598 n.7 (2003).
18
prejudicial if we "cannot find 'with fair assurance'" that it
did not "substantially sway[]" the verdict (citation omitted).
Commonwealth v. Canty, 466 Mass. 535, 545 (2013).
Although the statement was not directed explicitly at
either defendant, arguably one or both defendants might have
been expected to deny what could have been perceived as an
accusation. In that event, the testimony properly could have
been admitted as an adoptive admission. See Commonwealth v.
Olszewski, 416 Mass. 707, 719 (1993), cert. denied, 513 U.S. 835
(1994). We have cautioned, however, against the use of adoptive
admissions by silence, because the lack of response may be due
to "inattention or perplexity" rather than acknowledgment of
guilt. See Commonwealth v. Babbitt, 430 Mass. 700, 705 (2000).
Assuming, for the sake of argument, that admission of
Rodriguez's remark was error, we discern little, if any, impact
on the verdicts. The jury were presented with far more direct
evidence of the defendants' guilt through Dossanto, as well as
through DaSilva's own statements, and the prosecutor did not
mention Rodriguez's statement in her closing argument.
B. Statements by nontestifying codefendant. DePina
challenges the admissibility of two statements he ascribes to
Monteiro that were introduced as part of DaSilva's grand jury
testimony. Because there was no objection at trial, we review
any errors to determine whether they give rise to a substantial
19
likelihood of a miscarriage of justice. See Commonwealth v.
Taylor, 455 Mass. 372, 381 (2009). DaSilva testified that,
before the killing, Monteiro said that he had been jumped by the
victim and the victim's brother. She also testified that, after
the shooting, one of the defendants mentioned that he did not
want to drive past Johnson Court because of a "beef" with people
there. DePina contends that these statements were hearsay and
admitted improperly against him.
The first statement as to Monteiro previously having been
jumped by the victim, while relevant to Monteiro's motive and
admissible against him, should not have been admitted against
DePina. A limiting instruction was neither requested nor given.
Nonetheless, the error did not give rise to a substantial
likelihood of a miscarriage of justice, as the improper
testimony added little to the case against DePina. DaSilva's
testimony on this point was limited to one statement, and, in
closing, the prosecutor mentioned DaSilva's statement in passing
as a possible motive for the shooting, while focusing
extensively on the "beef" between the north and south sides of
Brockton.
The second statement was admitted properly as a statement
of a joint venturer. A hearsay statement by one codefendant is
admissible against another, absent testimony by the codefendant,
if there is independent evidence of the existence of a joint
20
venture and the statement was made during and in furtherance of
that joint venture. See, e.g., Commonwealth v. Carriere, 470
Mass. 1, 8 (2014). DePina concedes that, here, there was
independent evidence of the joint venture. Statements made to
conceal a joint venture are considered to be in furtherance of
the joint venture and, therefore, are admissible against all of
the joint venturers. See Commonwealth v. Angiulo, 415 Mass.
502, 519 (1993). See also, e.g., Commonwealth v. Marrero, 436
Mass. 488, 494 (2002) (statements made "only a few hours after
the crimes" and while defendants were together were part of
joint venture). On this record, a reasonable judge could have
decided that the second statement, regarding a desire to avoid
Johnson Court, reflected a fear of being caught near the scene
of the crime, and thus was a continuing effort to conceal the
joint venture. There was no error in the admission of this
statement.
C. Portions of grand jury testimony as to which DaSilva
had not claimed lack of memory. DePina argues that on at least
one occasion, the prosecutor strayed, without specific
objection, from the judge's instruction that grand jury
testimony be introduced on a "question-by-question" basis, and
that it only be admitted where DaSilva specifically denied
memory of a topic. DePina claims the failure to follow the
judge's instruction created a substantial likelihood of a
21
miscarriage of justice by introducing evidence as to which
DaSilva had not feigned memory loss. See Sineiro, 432 Mass. at
743-744.
In fact, the prosecutor did follow the judge's question-by
question order. DaSilva testified on direct examination that
she could not remember whether anyone other than Monteiro was in
her vehicle on the day of the shooting. In response, the
prosecutor introduced her statements to the grand jury
discussing who had been in the vehicle, as well as what they
were wearing, what they were discussing, and how they were
acting. The grand jury testimony that was admitted simply
provided a complete answer to the question DaSilva was unwilling
to answer on the stand; she could not have been expected to
remember the clothing, conversations, and behavior of people
whom she claimed not to remember at all. There was no error.
D. Prior bad act evidence. Monteiro filed a motion before
trial to exclude references to his possession of a gun on the
weekend before the shooting.10 He contends that the judge
abused his discretion in denying the motion.
Evidence of a defendant's possession of a gun may be
admissible to show that he or she had the means to commit the
10 At that point, Monteiro expected the prosecutor to introduce evidence of gun possession through DaSilva's live testimony; it ultimately was introduced through her grand jury testimony.
22
offense. See Commonwealth v. Corliss, 470 Mass. 443, 450
(2015). The Commonwealth generally may not introduce evidence
of a gun, however, where the gun "definitively could not have
been used in the commission of the crime." Commonwealth v.
Barbosa, 463 Mass. 116, 122 (2012) (excluding weapons of
different caliber). In this case, DaSilva testified before the
grand jury that Monteiro had a handgun in his possession on the
weekend before the shooting. After some prompting, DaSilva
agreed that it was a "gun that kind of looks like a policeman's
gun." This testimony was read at trial. The ballistics
evidence established that the cartridges found at the scene were
from a .40 caliber handgun, and there was testimony that
.40 caliber Glock handguns are common police weapons. As the
weapon DaSilva described could have been the weapon used in the
shooting, there was no error in the admission of her testimony
as evidence of means.11
b. Opening statement. Both defendants argue that the
prosecutor impermissibly referenced potentially inadmissible
11 Monteiro also argues that the gun DaSilva testified she saw at the hotel was black, although, during the shooting, another witness saw a brown gun. This argument misconstrues the trial testimony. No witness at trial identified the color of the weapon, although one witness testified that he saw "a brown hand with a gun in it." In any event, we have rejected the argument that testimony of gun possession is inadmissible where a witness testified that the gun used in the commission of the crime was a different color. See Commonwealth v. Otsuki, 411 Mass. 218, 235 n.12 (1991).
23
evidence in her opening statement, creating a substantial
likelihood of a miscarriage of justice. There was no error.
The opening statement referred to DaSilva's anticipated
testimony. The defendants argue that because the prosecutor
knew that DaSilva might recant her incriminating statements on
the stand, and that, if she were to do so, the judge might rule
against any subsequent motion to admit her grand jury testimony,
the prosecutor should have avoided making any reference to
testimony she planned to elicit from DaSilva.
A prosecutor's opening statement may reference anything
that he or she reasonably believes in good faith will be proved
by evidence introduced during the course of the trial, even if
he or she is not certain the necessary evidence will be
admitted. See, e.g., Commonwealth v. Fazio, 375 Mass. 451, 455
456 (1978) (opening statement previewed testimony from witness
whom prosecutor knew to be asserting Fifth Amendment right).
Specifically, the fact that an adverse evidentiary ruling might
later bar introduction of certain evidence does not preclude a
prosecutor from mentioning it in his or her opening. See id.
at 456-457.
Here, the prosecutor had a reasonable and good faith belief
that she would produce the evidence that she set out in her
opening statement. While informed that DaSilva had claimed at
the Martin hearing that her statements to the grand jury had
24
been false, and had suggested she would refuse to testify, the
prosecutor learned from DaSilva's counsel, immediately before
opening statements, that DaSilva did, in fact, intend to
testify.12 The prosecutor then gave an opening statement that
included the evidence she expected to introduce through DaSilva.
The mere possibility that DaSilva might recant on the stand, and
that the Commonwealth might not be permitted to introduce
inconsistent grand jury if she did so, did not bar the
prosecutor from previewing the testimony she anticipated. See
Fazio, 375 Mass. at 456.
c. Immunized witness testimony. DePina maintains that the
jury instructions concerning DaSilva's immunized testimony, to
which there was no objection, were error that created a
substantial likelihood of a miscarriage of justice. We discern
no error in the absence of the instructions DePina now requests.
Although the judge did instruct the jury, in accordance
with the model jury instructions, see Massachusetts Superior
Court Criminal Practice Jury Instructions § 7.8, at 7-37 (Mass.
Cont. Legal Educ. 2d ed. 2013), that they "may take [a grant of
immunity] into consideration in assessing the witness's
credibility," DePina contends that the judge also should have
informed the jury explicitly that, by statute, they could not
12 Indeed, before receiving confirmation that DaSilva intended to testify, the prosecutor had prepared an alternative opening statement, omitting any mention of DaSilva.
25
find the defendants guilty solely on the basis of DaSilva's
immunized testimony. See G. L. c. 233, § 20I; Commonwealth v.
Vacher, 469 Mass. 425, 440 (2014).
We do not require any specific instructions regarding the
testimony of an immunized witness, and we have rejected a
requirement that a judge instruct explicitly that a conviction
cannot be based solely on the testimony of such a witness. See,
e.g., Commonwealth v. Brousseau, 421 Mass. 647, 652-654 (1996).
Rather, the focus is on whether the charge as a whole adequately
explains the issue. See id. at 654. Here, the judge informed
the jury that they could consider the effect of immunity on
DaSilva's credibility, and counsel for both sides argued
extensively in closing about the credibility of the immunized
witness. See id., and cases cited (noting importance of
counsels' argument on issue of credibility when evaluating
adequacy of jury instructions). The instructions were more than
sufficient to inform the jury of the dangers of exclusive
reliance on immunized witness testimony.
d. Denial of motion to sever. Prior to trial, and again
at the close of the Commonwealth's evidence, the defendants
moved to sever the trials, arguing that the defenses would be
mutually antagonistic, and that failure to sever would prevent
them from receiving a fair trial. Monteiro claims that the
26
judge abused his discretion by denying this motion. We do not
agree.
A decision to sever a trial generally is left to the sound
discretion of the trial judge. See, e.g., Commonwealth v.
McAffee, 430 Mass. 483, 485 (1999). Severance on the ground of
mutually antagonistic defenses is required only where "the
acceptance of one party's defense will preclude the acquittal of
the other." See Commonwealth v. Ramos, 470 Mass. 740, 749
(2015), quoting Commonwealth v. Moran, 387 Mass. 644, 657
(1982). It is not enough that a joint trial may cause a
defendant to pursue a different strategy, or that a defendant
would stand a better chance of acquittal if tried alone. See
McAfee, supra at 486. Where some defenses overlap, while others
are independent, a joint trial is appropriate. See Ramos,
supra.
We discern no abuse of discretion in the judge's decision
not to sever the defendants' trials. Each defendant sought to
undermine the credibility of the Commonwealth's key witness,
while also advancing his own separate grounds of defense. See
id. Here, as in Ramos, supra, the defenses were, if anything,
overlapping, and certainly not so mutually antagonistic as to
require severance.13
13 On appeal, DePina argues that Monteiro's inculpatory statements were inadmissible against DePina, and were so
27
e. Third-party culprit evidence. Monteiro moved prior to
trial to introduce various pieces of third-party culprit
evidence. The motion judge, who was also the trial judge,
denied the motion in part, not allowing the introduction of
evidence that the victim had been assaulted by an unknown
assailant shortly before the shooting, and that the victim was
planning to sell heroin to a particular individual on the day he
was killed. Monteiro argues that the partial denial was an
abuse of discretion requiring a new trial.
In order to be admissible, third-party culprit evidence
"must have a rational tendency to prove the issue the defense
raises, and the evidence cannot be too remote or speculative."
Commonwealth v. Silva-Santiago, 453 Mass. 782, 801 (2009),
quoting Commonwealth v. Rosa, 422 Mass. 18, 22 (1996). Where
the third-party culprit evidence is hearsay not within an
exception, there must be "substantial connecting links" between
prejudicial that their introduction required that he be tried separately. See Bruton v. United States, 391 U.S. 123, 126 (1968). Evidence which does not expressly and directly implicate a defendant, however, does not implicate the Bruton rule. See Commonwealth v. Rivera, 464 Mass. 56, 69-70, cert. denied, 133 S. Ct. 2828 (2013), and cases cited; Commonwealth v. Pontes, 402 Mass. 311, 314-315 (1988). Nor does evidence properly admitted under the joint venture exception to the hearsay rule. See Commonwealth v. Braley, 449 Mass. 316, 319 (2007). See also Pontes, supra at 314, quoting Bruton, supra at 128 n.3 (statements must be "clearly inadmissible" against codefendant). Because the statement concerning being jumped implicated DePina only by inference, and the statement about Johnson Court properly was admissible against him, neither gave rise to a Bruton error.
28
the evidence and the offense (citation omitted). Silva
Santiago, supra.
Monteiro sought to elicit hearsay testimony that, at some
point shortly before the victim was killed, an unidentified
attacker had thrown a brick at the victim, in order to suggest
that others might have wished the victim harm. The judge
concluded that the evidence of an attack by an unknown
assailant, at an unspecified time, was "not relevant." We
discern no error. The proposed evidence lacked sufficient
"connecting links" and would have served to confuse the jury.
See Silva-Santiago, 453 Mass. at 801. See also Commonwealth v.
O'Brien, 432 Mass. 578, 588-589 (2000) (evidence of hostility
and fear between victim and alleged third-party culprit not
admissible because it lacked sufficient connecting links).
Monteiro also sought to elicit testimony from a man who
purportedly planned to buy heroin from the victim on the day of
his death. Monteiro argued that evidence that the victim was a
drug dealer suggested that people other than the defendants,
such as rival drug dealers, might have had motive to kill him.
The judge correctly concluded that such an inference, in the
absence of any further evidence, amounted to no more than pure
speculation. See Silva-Santiago, supra.
f. Ballistics evidence. Monteiro contends that testimony
by the Commonwealth's ballistics expert caused a substantial
29
likelihood of a miscarriage of justice by improperly appealing
to the jury's emotions and impermissibly suggesting that
Monteiro was a person of bad character who had been involved in
other shootings. More specifically, the expert testified that,
during the course of the investigation, he compared ballistics
from the cartridges found at Johnson Court to those found at
other crime scenes in Brockton. The ballistics examiner noted
these comparisons and testified that he had been unable to find
any matches.
Because a defendant may suggest to the jury that inadequate
investigation led police to miss evidence which would have
implicated others, or would exculpate the defendant, see
Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980), the
Commonwealth may present evidence to rebut such a contention,
even if it otherwise would be inadmissible. See, e.g.,
Commonwealth v. Avila, 454 Mass. 744, 753 (2009). In
anticipation of such a defense, the Commonwealth elicited,
without objection, a brief statement from an investigating
officer of the result of ballistics tests. There was no error.14
g. Fear of retaliation. Monteiro argues that by eliciting
testimony from Dossanto as to his fear of retaliation for
14 Even if the admission had been error, the testimony did not create a substantial likelihood of a miscarriage of justice. Contrary to Monteiro's suggestion, the expert's testimony did not appeal to the jury's emotions, nor did it imply that the defendants had been involved in other crimes.
30
cooperating with the Commonwealth, the prosecutor improperly
vouched for his credibility, creating a substantial likelihood
of a miscarriage of justice.
Toward the end of the direct examination of Dossanto, the
prosecutor asked him, without objection, why he had not come
forward earlier and why he was not "honest" when police
initially approached him. This was not impermissible vouching.
Vouching occurs when an attorney indicates his or her personal
belief in the credibility of a witness, or indicates personal
knowledge beyond the evidence. See Commonwealth v. Rosario, 460
Mass. 181, 190 (2011). "[T]estimony regarding a witness's fear
of retaliation," on the other hand, "generally is admissible in
the discretion of the [trial] judge, for the purpose of
establishing witness credibility." Id. at 193. See
Commonwealth v. Auguste, 418 Mass. 643, 647 (1994), and cases
cited. Here, the prosecutor did not suggest any personal
knowledge or reliance on facts not in evidence. Rather, she
allowed the witness to explain his earlier reticence, and his
lack of initial honesty, in order to respond to an obvious
avenue of attack on the witness's credibility by defense
counsel. See Rosario, supra; Auguste, supra at 647-648.
h. Relief pursuant to G. L. c. 278, § 33E. We have
carefully reviewed the entire record, pursuant to our duty under
G. L. c. 278, § 33E. We are satisfied that the verdicts were
not contrary to law, against the weight of the evidence, or
otherwise unjust.
Plaintiff's Experts:
Defendant's Experts:
Comments: