January 15, 2016
Bristol. Indictments found and returned in the Superior Court
Department on June 7, 2012, and November 1, 2012.
cases were tried before Thomas F. McGuire, Jr., J.
Jennifer Appleyard for the defendant.
A. Wittenberg, Assistant District Attorney, for the
Kafker, C.J., Cohen, Green, Wolohojian, & Henry, JJ.
N.E.3d 254] Henry, J.
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. 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.
N.E.3d 255] Background.
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.
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.
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.
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
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
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
" believed evidence was still in the house."
Silvester consented and led the officers to a back bedroom.
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. 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.
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.
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
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
1. Right to confrontation.
a. Grand ...