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Commonwealth v. Silvester

Appeals Court of Massachusetts

May 2, 2016

Dillon Silvester

         Argued January 15, 2016

Page 351

          Bristol. Indictments found and returned in the Superior Court Department on June 7, 2012, and November 1, 2012.

         The cases were tried before Thomas F. McGuire, Jr., J.

          Jennifer Appleyard for the defendant.

          David A. Wittenberg, Assistant District Attorney, for the Commonwealth.

         Present: Kafker, C.J., Cohen, Green, Wolohojian, & Henry, JJ.


          [49 N.E.3d 254] Henry, J.

          The defendant appeals from his convictions by a Superior Court jury of unlicensed carrying of a firearm, unlicensed carrying of a loaded firearm, possession of ammunition without a firearm identification card, and assault by means of a dangerous weapon (firearm). He was acquitted of armed assault with intent to murder.[1] On appeal the defendant argues that (1) his confrontation rights were violated by the admission in evidence, for substantive purposes, of a witness's grand jury testimony and out-of-court identification of the defendant; (2) he was entitled to a required finding of not guilty on the charge that he illegally possessed ammunition; (3) a lay witness was improperly permitted to give opinion testimony; (4) the judge improperly denied the defendant's motion for a mistrial; (5) an in-court identification should not have been admitted; and (6) a hearsay statement should have been excluded. We affirm.

          [49 N.E.3d 255] Background.

          We summarize the evidence at trial, leaving additional details for discussion with the issues presented. On April 11, 2012, Kayleigh Gagnon and Kaitlyn Bayrouty arranged to meet to fight each other. By about 10:30 a.m., Gagnon had gathered her then boy friend, Leonard Starcher, and his best friend, the victim, Brandon Dunham, on Starcher's front porch in Fall River. The victim and Bayrouty had previously been in a relationship, and had a child together. Within a few minutes, Gagnon recognized a vehicle owned by Elizabeth Mello arrive and park down the street. Bayrouty, the defendant, and his cousin, Ashley Cioe, exited from the vehicle and walked toward Gagnon, the victim, and Starcher. Two people remained in the vehicle: Mello and Bianca Rebello.

Page 352

          The victim ran toward the defendant's group; accounts conflicted as to whether the victim had a weapon and, if so, whether he had a metal pipe or stick. Gagnon and Cioe both testified that they heard a popping or pinging sound like a gunshot as the victim charged. As Cioe turned to look where the sound had come from, she saw the defendant put something in his back pocket. Cioe testified that on the ride to the scene the defendant had shown her a " pellet" or " BB" gun. However, she also admitted that she had told the grand jury that the defendant had a gun, and the gun was a revolver.

         Bayrouty and Gagnon's yelling had drawn the attention of neighbors. Larry Dillon testified that from his window he saw a Caucasian male step out of an automobile, lift his hand to aim the gun he was holding, and shoot diagonally across the street. Jeannine Lund ran outside and saw a young Caucasian male pull something from his waistband. She immediately ran back into her home for safety and within seconds heard a pop and called 911. Neither neighbor could identify the defendant as the shooter, but the jury could observe whether the defendant appeared to be a young, Caucasian male, fitting the general description of the shooter.

         Bayrouty and Gagnon had come to blows but quickly separated after hearing a shot fired. Bayrouty, the defendant, and Cioe then returned to Mello's vehicle. As they drove away, Cioe saw the defendant stick his " BB gun" out the window and shoot it into the air. Gagnon heard a popping sound as the defendant's group drove past her. Dillon and Lund also reported hearing a second gunshot, identical to the first.[2]

         The police arrived and located the victim in a nearby house. Blood was dripping from a small hole in the side of his chest that was about the size of " a peanut M& M." He was transported to the hospital. Police searched the scene of the shooting and found no bullet casings, metal pipes, or sticks.

         Officer Brett Kimball spoke to Bayrouty and Cioe, and as a result of those conversations, Officer Kimball and several other officers went to the defendant's home on Plymouth Avenue in Fall River, that same day. Officer Kimball met the defendant's mother, Robin Silvester, at the defendant's home and explained that they wanted to search the defendant's bedroom because they

Page 353

" believed evidence was still in the house." Silvester consented and led the officers to a back bedroom.

         In the bedroom was a single twin bed and a television on a night stand. The walls were lined with new baby furniture [49 N.E.3d 256] and other new baby goods that Silvester told Officer Kimball were from a recent baby shower for the defendant.[3] During the search, the officers moved ceiling tiles and recovered a cellular telephone box that contained .22 caliber ammunition. The bullets were tested by Fall River police Officer Luis Duarte, Jr., who was a certified police armorer for the Fall River police department; he determined that the ammunition was live. Duarte also testified that .22 caliber bullets and BB gun pellets have a completely different shape.

         The emergency room doctor, Jeffrey Feden, treated the victim and testified that the victim's wound was consistent with being shot or stabbed. He explained that X-rays revealed a metal object that was consistent with a bullet lodged in the soft tissue below the victim's ribs. Because the bullet was not life threatening, there was no need to remove it. In addition, Feden opined that because the metal object was oval or oblong it was not consistent with a BB pellet, which is smaller and round.

         On May 7, 2012, about a month after the incident, police received a tip that led them to a house on Bradford Avenue. Knocking brought no response, but police could see several males inside running into a bedroom in the home. The police entered and saw the defendant. He was arrested and gave his address as the Plymouth Avenue apartment where the ammunition had been found.

         At trial the defense claimed that the defendant had only a BB gun and did not shoot the victim. Silvester testified that her daughter slept in the room where the bullets were found, not the defendant, who slept across the hall with his brother. Alternatively, the defendant claimed that he acted in self-defense.


          1. Right to confrontation.

          a. Grand ...

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