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Commonwealth v. Andrade

Supreme Judicial Court of Massachusetts, Plymouth

December 21, 2018

COMMONWEALTH
v.
HERICO ANDRADE

          Heard: October 5, 2018.

         Indictments found and returned in the Superior Court Department on July 1, 2011.

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

          James W. Rosseel for the defendant.

          Laurie Yeshulas, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Lowy, Budd, & Cypher, JJ.

          BUDD, J.

         In June 2015, a jury convicted the defendant, Herico Andrade, of murder in the first degree on a theory of deliberate premeditation, in connection with the shooting death of Jose Lobo in April 2011.[1] In this direct appeal, the defendant asserts error in the method the prosecutor used to offer grand jury testimony as prior inconsistent statements, and in supplemental instructions that the judge provided to the jury. He also seeks relief under G. L. c. 278, § 33E. For the reasons that follow, we affirm the judgments and decline to grant extraordinary relief under § 33E.

         Background.

         We summarize the facts as the jury could have found them, reserving certain details for discussion below. On April 4, 2011, a sport utility vehicle (SUV) stopped outside a house in Brockton where several people were congregated. The men in the SUV, including the defendant, stopped to speak to some young women who were present. Shortly thereafter, one of the men standing outside approached the vehicle and argued with the defendant. The defendant said, "I'll go and come back," before the SUV pulled away. Approximately thirty-three minutes later, shots were fired in the vicinity of the area where the people had been gathered. When police arrived, they found the victim lying on the front porch of the home with a gunshot wound to his temple. He later was pronounced dead at a hospital.

         A surveillance video recording captured two individuals approaching the scene on foot and reaching for their waistbands around the time of the shooting. The figures reappeared in the video recording fleeing the scene moments later. One witness, Antonio Silva, saw two individuals running away. Silva identified one of the individuals as the defendant and observed that the defendant held a revolver while running from the scene. A baseball hat containing the defendant's deoxyribonucleic acid (DNA) was recovered from the street in front of the porch where the victim was killed. Days after the murder, the defendant was interviewed by the Brockton police. During that interview, the defendant admitted to being a passenger in the SUV that stopped near the congregated group on the night of the shooting, but denied being present at the time of the shooting. Approximately one and one-half weeks later, the defendant left the country. He was indicted for murder, and he was arrested upon his return nearly one year later.

         Discussion.

         The defendant argues that the prosecutor's method of presenting grand jury testimony was flawed. The defendant claims that, as a result, the judge improperly allowed the jury to consider the testimony as substantive evidence, and that the judge erred in considering the evidence himself in ruling on the defendant's motion for a required finding of not guilty. The defendant also contends that erroneous jury instructions entitle him to a reversal of his convictions.

         1. Presentation of ...


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