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Commonwealth v. DaSilva

Supreme Judicial Court of Massachusetts, Suffolk

March 26, 2015

Emmanuel DaSilva

Argued December 5, 2014.

Indictments found and returned in the Superior Court Department on May 2, 2007.

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The cases were tried before Frank M. Gaziano, J.

John F. Palmer for the defendant.

Dara Z. Kesselheim, Assistant District Attorney ( Mark D. Zanini & Julie Sunkle Higgins, Assistant District Attorneys, with her) for the Commonwealth.

Present: Gants, C.J., Spina, Cordy, Duffly, & Lenk, JJ.


[27 N.E.3d 386] Spina, J.

The defendant was a participant in a drive-by shooting on February 13, 2007, in the Roxbury section of Boston. The motive was revenge against David Evans for the shooting of a family friend, " A.J.," and an assault on a family member. However, the targeted group of young men standing across the street from Evans's apartment at the time of the shooting had nothing to do with Evans. One member of the group was killed, and two were wounded. The defendant was convicted of murder in the first degree and various related offenses. On appeal the defendant asserts error in (1) the admission of the grand jury testimony of a Commonwealth witness; (2) the admission of evidence of prior bad acts; (3) the admission of evidence that the defendant refused to have his custodial interrogation recorded; (4) the admission of evidence of 911 calls received by a police dispatcher; (5) the admission of evidence concerning the course of the investigation and the role of the grand jury; (6) the prosecutor's impeachment of a defense witness with her failure to report exculpatory evidence to police; (7) the prosecutor's closing argument; and (8) the judge's decision declining to give a so-called Bowden instruction. See Commonwealth v. Bowden, 379 Mass. 472, 485-486, 399 N.E.2d 482 (1980). We affirm the convictions and decline the defendant's request that we grant relief under G. L. c. 278, § 33E.

1. Background.

The jury could have found the following facts. We reserve other details for discussion of the particular issues.

A brief description of family relations is in order before we describe the events of February 13, 2007, that led up to the shooting later the same day. A critical witness for the Common-

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wealth was Clarimundo [27 N.E.3d 387] DaSilva,[1] who is an uncle of the defendant and a brother-in-law of Joseph Gomes. Clarimundo and Gomes's parents lived in the same apartment building on Langdon Street in Roxbury. The building was owned by Gomes's parents. The defendant and Gomes lived at different addresses but were frequent visitors.

At about 9 a.m. on February 13, 2007, Clarimundo's son Anthony arrived home and reported that someone with a gun was chasing him. Clarimundo heard gunshots and telephoned the police. An eyewitness saw a person chasing a dark-colored automobile down Langdon Street, shooting at it. The person wore a red and white hooded sweatshirt. When police officers arrived, they learned that the shooter had run into the DaSilva-Gomes apartment building. After conducting a sweep of the building to determine if the shooter was inside, the police ordered all residents to leave the building while they obtained a search warrant. During the execution of the warrant the officers recovered a .380 semiautomatic Mauser pistol, personal papers in the name of " Joseph Gomes," [2] and a red, white, and black sweatshirt. Five shell casings found in the street and sidewalk in front of the apartment building were determined to have been fired from the Mauser. In addition, a bullet and tire with a hole were recovered from a tire store, where Evans's black Buick LaCrosse, a rental vehicle, had been taken for a tire replacement in February, 2007. The bullet that was recovered had been fired from the Mauser.

Evans had a second rental vehicle at the time, a silver Nissan Maxima with New Hampshire license plates. The Nissan was seen several times in the vicinity of the apartment building during the day on February 13. Clarimundo told the defendant that people in the Nissan had pointed at him. The defendant and an unidentified third person who was with him told Clarimundo that the people in the Nissan were the people who had shot " A.J.," a friend of Anthony's.

Later that afternoon Clarimundo drove to pick up his daughter at school. The defendant accompanied him and waited in the vehicle while Clarimundo went into the school. When Clarimundo and his daughter returned, the defendant had left. He returned a short time later, and he appeared scared. He told Clarimundo that

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he had seen the Nissan again on the way to the school, and said, " I don't want to stop ... to wait for you with these crazy people around."

Clarimundo testified that the defendant and Gomes left Langdon Street together at about 6 p.m. on February 13. Clarimundo told police about the Nissan, and one officer recalled seeing it in the Langdon Street neighborhood at least twice during the day on that day.

Shortly after 6 p.m. on February 13, gunshots were fired from the passenger's side windows of a newer model silver Chevrolet Impala into a group of seven young men gathered on a sidewalk on Maywood Street in Boston. They had been standing near Evans's Nissan Maxima, which was parked across the street from Evans's apartment. One man was killed, and two were wounded. The man who was killed bore a strong resemblance to Evans. Police responded to two separate 911 calls made within one minute of the shooting. The first 911 call was received at 6:06 p.m. The dispatcher issued calls to respond. The second dispatch, [27 N.E.3d 388] at 6:07 p.m., included a partial description of the fleeing vehicle. At 6:16 p.m. the dispatcher heard on the police radio that a Chevrolet Impala was stopped on Savin Street, which runs parallel to Maywood Street. The driver of the vehicle was Gomes.[3] The sole passenger was the defendant.[4]

Two .38 caliber shell casings were recovered from the defendant's seat in the vehicle, and four .38 caliber shell casings were recovered from the floor in front of his seat. A seventh .38 caliber shell casing was recovered on Maywood Street at the scene of the shooting. All seven casings were determined to have been fired from the same gun. The defendant's fingerprints were found on a soda bottle on the floor area of his passenger seat. They also were found on a cigarette package on the floor in the rear seat area. No firearm related to the shooting ever was recovered.

A projectile recovered from a survivor of the shooting was determined to have been fired from a .38 or .357 caliber revolver. Another projectile was recovered from the kitchen of an apartment on Savin Street. The projectile entered through the kitchen

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window at the time of the shooting. The kitchen window faces Maywood Street and the vicinity of the shooting. That projectile was determined to have been fired from the same .38 or .357 caliber revolver. On February 13, an officer waiting for a tow truck to remove Gomes's Chevrolet Impala from Savin Street saw Evans's Nissan go by. He broadcast this information over his radio. The ...

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