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Commonwealth v. DePina

Supreme Judicial Court of Massachusetts, Plymouth

March 13, 2017

COMMONWEALTH
v.
ESAU DePINA. COMMONWEALTH
v.
ISAIAH MONTEIRO.

          Heard: November 10, 2016.

         Indictments found and returned in the Superior Court Department on November 10, 2010.

         The cases were tried before Richard J. Chin, J.

          Rosemary Curran Scapicchio for Esau DePina.

          Stephen Neyman for Isaiah Monteiro.

          Audrey Anderson, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Lenk, Hines, & Lowy, JJ.

          LENK, J.

         After a 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.[1] 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 defendants' convictions.

         1. Background and proceedings.

         a. Facts.

         We 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.

         No 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 impression.

         With 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 room.

         On 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.

         At some 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.

         As they 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."

         Later 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, [2]and 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 neither responded.[3]

         b. Pretrial proceedings.

         Prior 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 killed.

         After 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.

         c. Proceedings at trial.

         The 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 footprints.

         Dossanto 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."

         On 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 interviewers.

         During 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.[4] 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.

         This 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."

         2. Discussion.

         The 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.

         a. Admission of DaSilva's ...


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