MEMORANDUM OF DECISION AND ORDER ON
COMMONWEALTH'S MOTION IN LIMINE TO ADMIT VICTIMS'
OUT-OF-COURT STATEMENTS INTO EVIDENCE
defendant, Chad Easter (" Easter"), is charged in
this indictment with home invasion, armed assault with intent
to rob, two counts of armed assault in a dwelling, two counts
of assault and battery by means of a dangerous weapon,
possession of a firearm while committing a felony, possession
of a firearm without an FID card, and possession of
ammunition without an FID card. Before the court is the
Commonwealth's motion in limine to admit into
evidence hearsay statements made by the two victims, Jessica
McKeon (" McKeon") and Alex Lora ("
Lora"). The Commonwealth argues that the statements are
admissible under the doctrine of forfeiture by wrongdoing.
Commonwealth v. Edwards, 444 Mass. 526, 830 N.E.2d
158 (2005). See also Mass. Guide to Evidence §
804(b)(6) (2016). For the following reasons, the
Commonwealth's motion is DENIED .
case, the Commonwealth alleges that, on November 5, 2013, at
approximately 8:00 a.m., two black males, dressed in
reflective vests and carrying a clipboard, knocked on the
door of Apartment 2L at 15 East Circuit Avenue,
Worcester--the home of McKeon and Lora. When McKeon opened
the door, the men told her they were from the city's
water department and needed to check the water. McKeon
allowed them to enter. Once inside the apartment, the two men
displayed firearms and assaulted both McKeon and Lora,
demanding drugs and asking for the person who lived in a
different apartment. The intruders tried to tie Lora and when
he grabbed at the firearm, it went off. Lora sustained a
wound to his left middle finger. The two intruders then fled,
dropping the clipboard.
called 911 and Worcester police responded to the scene.
McKeon and Lora gave statements to the police. In addition,
fingerprint evidence recovered from the kitchen faucet, the
clipboard, and papers were analyzed and determined to be
consistent with Easter's known prints. McKeon also
identified Easter from a photo array with 50% certainty. Both
McKeon and Lora testified before the grand jury and Easter
was arraigned in December of 2013. Following a hearing on
dangerousness on December 19, 2013, this court (Lemire, J.)
ordered Easter held without bail under G.L.c. 276, §
58A. In May of 2014, McKeon and Lora were arrested on drug
distribution charges. Invoking their Fifth Amendment
privilege, McKeon and Lora refused to testify against Easter
in this case. In July of 2014, this court (Tucker, J.)
reviewed Easter's status and set bail at $5, 000 cash
along with pre-trial conditions that Easter was to stay away
and have no contact with the victims, maintain employment,
and be subject to random drug testing.
April of 2015, McKeon entered into a cooperation agreement
with the Commonwealth in which she was granted immunity from
prosecution in exchange for her testimony against Easter.
After several pre-trial motions and a number of continuances,
the case was scheduled for trial on March 28,
March 10, 2016, at approximately 7:30 p.m., McKeon and Lora
were shot while at their residence in the second floor
apartment at 8 Forbes Street in Worcester. McKeon sustained
six gunshot wounds and was pronounced dead at the scene. Lora
was shot twice and later died of his wounds at the hospital.
an evidentiary hearing,  the court makes the following
findings of fact.
February 19, 2016, Easter rented a red Toyota Camry, license
plate number 1HS376 (the " Toyota"), from Hertz
rental agency. On February 25, 2016, Easter rented a silver
Ford Taurus, license plate number 4GC484 (the "
Taurus"), from Avis/Budget rental agency located in
Allston (Boston). Both vehicles were scheduled to be returned
on March 11, 2016. The Taurus was returned on March 14, 2016.
March 8, 2016, shortly after midnight, Boston Police
conducted a traffic stop of the Taurus. Easter, dressed in
blue jeans and a gray hoodie, was the operator of the Taurus.
There were two passengers--one in the front seat and one in
the back seat. There was no evidence that Easter or the two
passengers had been or were engaged in criminal activity at
the time of the stop.
March 8, 2016, surveillance video from the Great Brook Valley
housing development in Worcester (" Great Brook
Valley") showed the Toyota entering Great Brook Valley
shortly before 11:30 p.m. That same surveillance video showed
the Taurus entering Great Brook Valley approximately twenty
minutes later, and showed the Taurus leaving Great Brook
Valley on March 9, 2016 shortly before 1:30 a.m. Easter's
girlfriend lived at Great Brook Valley. Although there is no
evidence that Easter was the operator of either vehicle, a
reasonable inference can be drawn that two different people
operated the vehicles.
Street in Worcester, Massachusetts is a one-way street that
ends at Lincoln Street. 8 Forbes Street is a three-family
house owned by Silvio Hernandez, Sr. (" Silvio,
Sr."), and is approximately 180 feet from the corner of
Lincoln Street. As one faces 8 Forbes Street, there is a
vacant lot to the left of the house. Silvio, Sr.'s son,
Silvio Hernandez, Jr. (" Silvio, Jr."), lives on
the first floor. McKeon and Lora were tenants and lived in
the second-floor apartment. Silvio, Sr., his wife, and his
sister, Yolanda Jilek (" Yolanda"), live in the
March 10, 2016, at approximately 7:30 p.m., Silvio, Jr. was
watching television in his first-floor apartment when he
heard five to six gunshots go off in the hallway on the upper
floors. The smoke alarms also went off. Silvio, Jr. called
Yolanda on the third floor to see if she was alright, which
she was. Silvio, Sr. was not at home at that time. Silvio,
Jr. tried to call his father, but was unable to reach him. He
then called 911 and reported the gunshots. Prior to the
gunshots, Silvio, Jr. did not see or hear anyone entering or
leaving the building. He did not hear anyone arguing or
talking before the shots. Silvio, Jr. did not hear or see
anyone running after the shots. Yolanda had also heard the
shots and alarms. She heard people talking and leaving the
apartment on the second floor, but did not see anyone leave
and did not hear anyone going down the stairs.
evening of March 10, 2016, Anthony Richards ("
Richards") was visiting his friends who lived across the
street from 8 Forbes Street at 11 Forbes Street. He was on
the porch smoking a cigarette when he saw two unknown males
wearing black hoodies walk through the vacant lot next to 8
Forbes Street and head toward the front of the house. As he
watched the two males enter 8 Forbes Street, Richards
observed a SUV pull up and park across the street from 8
Forbes Street. Richards recognized the vehicle as belonging
to one of the people who lived at 8 Forbes Street. Richards
identified the man who had got out of the SUV as the being
the second floor tenant because he knew Silvio, Jr. lived on
the first floor and Silvio, Sr. lived on the third floor.
Silvio, Jr. later identified the SUV as belonging to Lora.
two minutes after seeing the two men enter the building and
the SUV pull up, Richards heard gunshots. He then saw the two
males on the second floor landing at 8 Forbes Street.
Richards went inside and locked the door. He did not hear any
arguing and did not see anyone leave the building.
the police arrived, they found a pizza box on the front porch
of 8 Forbes Street that Silvio, Jr. said had not been there
earlier in the evening. The police found McKeon lying face up
on the floor in the second floor apartment. She had been shot
four times at close range in the head and neck, as well as in
the right arm. McKeon also sustained bruising and contusions
to her body and face. Lora had been shot twice. One bullet
grazed his head; however, Lora suffered a fatal gunshot wound
to the back and later died at the hospital. Both victims had
been shot with 9mm bullets.
Melendez (" Melendez") was a friend of Lora's.
On March 10, 2016, he spoke with Lora one and one-half hours
to two hours prior to the shooting. Lora was supposed to pick
up Melendez that evening to go to Lora's cousin's
house. Lora did not tell Melendez that he was having any
problems with anyone. Lora never mentioned that he was being
threatened or pressured not to appear in court. However,
Melendez told the police that Lora had been hanging around
with an individual affiliated with the Kilby Street gang,
known as " ...