Supreme Judicial Court of Massachusetts, Plymouth
Heard: November 10, 2016.
found and returned in the Superior Court Department on
November 10, 2010.
cases were tried before Richard J. Chin, J.
Rosemary Curran Scapicchio for Esau DePina.
Stephen Neyman for Isaiah Monteiro.
Anderson, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Lenk, Hines, & Lowy, JJ.
jury trial in the Superior Court, the defendants, Isaiah
Monteiro and Esau DePina, were each found guilty of murder in
the first degree on a theory of deliberate premeditation, as
well as of related offenses, in the shooting death of the
victim, Anthony Hamilton, on November 16, 2009. In this direct
appeal, they challenge the substantive admission of a
witness's grand jury testimony, various statements in
that testimony they claim are independently inadmissible,
certain portions of the prosecutor's opening statement,
the jury instructions on immunized witness testimony, and the
denial of their motions to sever; they also raise various
evidentiary issues. In addition, both defendants seek relief
under G. L. c. 278, § 33E. We discern no error
warranting reversal, and, having carefully reviewed the
record, see no reason to reduce or set aside the verdicts
under G. L. c. 278, § 33E. Accordingly, we affirm the
Background and proceedings.
recite the facts that the jury could have found, reserving
certain details for later discussion. On November 16, 2009,
at approximately P.M., the victim was with several of his friends on
the front porch of a house on Johnson Court in Brockton. A
man approached on foot and shot him. Witnesses near the scene
-- neighbors, a carpenter, and the driver of a passing
vehicle -- described hearing at least three gunshots and
seeing a man running, climbing through a hole in a fence, and
getting into a waiting vehicle. None of the witnesses was
able to provide more than a general description of that
individual, whom most described as a relatively dark-skinned
male in a gray hooded sweatshirt.
bullets were recovered from the victim's body, but
fifteen cartridges, eight spent shells, and three lead
fragments were found at the scene. A State police ballistics
expert determined that all of the shots were fired by the
same gun, likely a .40 caliber semiautomatic pistol, but were
unable to identify a specific weapon or manufacturer.
Forensic examiners also took cast impressions of four partial
footprints found near the location where the fleeing man had
climbed through a fence, but investigators were unable to
determine the precise size or brand of the shoe that made the
few leads, there was little progress in the investigation for
several months. In the summer of 2010, police spoke with
Licea DaSilva, Monteiro's girl friend at the time of the
shooting. Police also spoke with Kevin Dossanto,
Monteiro's cousin. From their statements, police learned
that Monteiro had been "jumped" by the victim and
the victim's brother some time before the shooting. They
also learned that Monteiro and DePina had spent the weekend
before the shooting at a hotel in Brockton, with DaSilva and
others. DaSilva, who had been consuming alcohol and drugs,
saw Monteiro with a handgun and "shells" in the
following Monday morning, Monteiro and DaSilva drove to the
school she attended. DaSilva gave Monteiro permission to use
her vehicle for the rest of the day, and asked him to bring
her lunch. Dossanto later went with Monteiro to the hotel and
to deliver lunch to DaSilva. En route, they picked up DePina.
When they dropped her lunch off at school, DaSilva noticed
that DePina was wearing a gray hooded sweatshirt, which she
thought was strange given the weather. The three men then
continued "joy riding" around Brockton, while
listening to music and smoking marijuana.
point, Dossanto noticed that they had entered the north side
of Brockton. This was a part of the city they generally
avoided because of a "beef" between residents who
grew up on the north side and those, like Dossanto, Monteiro,
and DePina, who grew up on the south side. When Dossanto
asked why they were on the north side, Monteiro told him not
to worry about it.
were driving near Johnson Court, Monteiro pointed out a group
of people standing on the street. After passing Johnson
Court, Monteiro pulled over and DePina got out of the
vehicle. Less than one minute later, Dossanto heard multiple
gunshots. DePina returned to the vehicle almost immediately
thereafter and said, "I think I got him." Monteiro
said "are you sure" or "all right."
DePina replied that they had "to get the hell out"
of the area, and Monteiro drove to a mutual friend's
house. When Dossanto asked what had happened, Monteiro
replied that "shit popped off, " which Dossanto
understood to mean that someone had been shot. When he
attempted to ask more about it, Monteiro told him to
"[s]top acting like a bitch."
that day, Monteiro and DePina returned to pick up DaSilva at
her school. Soon after getting into the vehicle, DaSilva
received a telephone call from her sister, Anita Rodriguez,
telling her of the shooting and the victim's death,
asking to be picked up at their house near Johnson Court.
DePina and Monteiro said that they did not want to go to the
north side of town, and particularly did not want to go near
Johnson Court because they had a "beef" with people
in that area, but ultimately did go with DaSilva to get her
sister. At her sister's urging, DaSilva then drove past
the scene of the shooting. The defendants appeared nervous
and DaSilva's sister asked them, "[I]f you
didn't do it, what's the big deal?, " to which
to trial, the defendants filed a number of motions concerning
the anticipated evidence at trial. While some were allowed,
many were denied. Among those denied were motions to sever,
to exclude testimony that DaSilva had seen Monteiro with a
gun the weekend before the shooting, to introduce testimony
concerning a violent altercation between the victim and an
unknown individual shortly before his death, and to admit
testimony from an individual who had been planning to
purchase heroin from the victim later on the day he was
the jury were empanelled but before opening statements,
DaSilva, whom the Commonwealth had summonsed to testify,
asserted her right to remain silent under the Fifth Amendment
to the United States Constitution and art. 12 of the
Massachusetts Declaration of Rights. Appointed counsel
maintained, among other things, that inconsistencies between
DaSilva's grand jury testimony and the testimony she
intended to give at trial would expose her to perjury
charges. The judge held an in camera hearing on the validity
of this claim (Martin hearing). See
Commonwealth v. Martin, 423 Mass.
496, 504 (1996). At the hearing, DaSilva spoke freely; among
other things, she mentioned her fear of testifying, and she
claimed that police coerced her into falsely telling the
grand jury that she had seen Monteiro with a gun the weekend
before the killing. On this basis, the judge determined that
DaSilva had asserted a valid claim under the Fifth Amendment
as, were she to testify to the contrary, she
"necessarily" would admit to perjury. The
Commonwealth then obtained a grant of immunity and an order
that DaSilva testify at trial. Thereafter, and before opening
statements were made, DaSilva's counsel said that she was
willing to do so.
Proceedings at trial.
prosecutor's opening statement focused largely on the
evidence that DaSilva and Dossanto had provided to the grand
jury and to which it was expected they would testify at
trial. In addition to key testimony from the two, one of whom
proved to be uncooperative, a series of witnesses testified
to hearing gun shots and seeing a man running, climbing
through a fence, and entering a vehicle around the time of
the shooting. Investigating officers testified to their
efforts to obtain and examine physical evidence, largely
consisting of the inconclusive cartridges, shells, and
was the primary source of information concerning the events
on the day of the shooting. Among other things, he testified
that he had been in the vehicle with Monteiro and DePina on
that day, with Monteiro driving and DePina a passenger. The
group drove around town, eventually arriving at Johnson
Court, where Monteiro pointed out a group of people, and
parked the vehicle. DePina got out and disappeared from view,
and Dossanto then heard several gunshots. DePina returned
immediately thereafter, got into the vehicle, and told
Monteiro to leave the scene. As they were driving away,
Monteiro told Dossanto that "shit popped off."
direct examination, Dossanto acknowledged that he had not
come forward earlier with this information because he feared
retaliation if he cooperated with police. On
cross-examination, Dossanto conceded that he did not speak to
police until they approached him nine months after the
shooting, and told him that he was a "person of
interest" in the investigation. He initially told police
that he had "nothing to do with" the shooting, and
that he did not know DaSilva. After police told him that they
knew he had been with Monteiro and DePina that day, and that
he had "better start talking" to avoid being sent
to prison, however, he implicated Monteiro and DePina by
"fill[ing] in the blanks" for the police
the first day of DaSilva's testimony, she stated, as she
had at the Martin hearing, that her testimony before
the grand jury had been coerced, and asserted multiple times
that she did not remember events to which she had testified
at the grand jury. The judge conducted a voir dire
examination to ascertain whether, pursuant to
Commonwealth v. Daye, 393 Mass. 55
(1984), overruled on another ground by Commonwealth
v. Cong Due Le, 444 Mass. 431 (2005), and
its progeny, DaSilva's grand jury testimony was
admissible substantively. During that examination, DaSilva
continued to maintain that she did not have an independent
memory of certain events, alluding to a learning disability
that affected her abilities in this regard. The examination
ended with DaSilva running out of the court room. The judge
continued the trial until the following day, ordered DaSilva
held overnight in custody, and found her in contempt. Her
attorney informed the judge the following morning that, prior
to testifying the preceding day, DaSilva had been threatened
in the hallway, but nonetheless would be willing to testify.
When direct examination resumed, however, she continued to
maintain that she could not remember most of the events on
the weekend prior to, and the day of, the shooting.
led to a second voir dire examination at which DaSilva
continued to claim that she was unable to remember certain
events, and that her statements before the grand jury had
been coerced. On cross-examination by defense counsel, she
was able to recount considerably more information than on
direct examination by the Commonwealth. Discrediting
DaSilva's memory loss as feigned, the judge allowed
portions of her grand jury testimony to be admitted
substantively, on "a question by question basis."
defendants raise several claims of error on appeal. They
challenge the substantive admission of DaSilva's grand
jury testimony on both evidentiary and constitutional
grounds, and also claim that such testimony contained several
independently inadmissible portions. They assert error as
well in six further respects: (a) the prosecutor's
opening statement; (b) the judge's instructions
concerning immunized witness testimony; (c) the denial of a
motion to sever; (d) the partial denial of a motion to
introduce third-party culprit evidence; (e) the testimony of
a ballistics expert; and (f) Dossanto's testimony as to
his fear of testifying. Both defendants also seek relief
under G. L. c. 278, § 33E.
Admission of DaSilva's ...