Supreme Judicial Court of Massachusetts, Plymouth
Heard: October 5, 2018.
found and returned in the Superior Court Department on July
cases were tried before Richard J. Chin, J.
W. Rosseel for the defendant.
Yeshulas, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Lowy, Budd, & Cypher, JJ.
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. 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.
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.
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.
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
Presentation of ...