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Commonwealth v. Easter

Superior Court of Massachusetts, Worcester

May 27, 2016

Commonwealth
v.
Chad Easter No. 133951

          MEMORANDUM OF DECISION AND ORDER ON COMMONWEALTH'S MOTION IN LIMINE TO ADMIT VICTIMS' OUT-OF-COURT STATEMENTS INTO EVIDENCE

          Janet Kenton-Walker, Justice

         The 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 .

         BACKGROUND

         In this 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.

         McKeon 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 indicted.

         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.

         In 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, 2016.[1]

         On 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.

         FINDINGS OF FACT

         Following an evidentiary hearing, [2] the court makes the following findings of fact.[3]

         On 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.

         On 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.[4]

         Also on 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.

         Forbes 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 third-floor apartment.

         On 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.

         In the 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.

         Approximately 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.

         When 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.

         Justin 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 " ...


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