Commonwealth v. Andrade, 113 N.E.3d 317

Background

In April 2011 Jose Lobo was shot and killed on a Brockton porch; surveillance video showed two people approach, reach toward their waistbands, then flee. A witness (Silva) later identified Andrade running from the scene holding a revolver. A hat found at the scene contained DNA consistent with Andrade.
Andrade initially admitted being a passenger in an SUV that stopped near the gathering but denied being present at the time of the shooting; he left the country shortly after and was indicted upon return about a year later.
At trial, four Commonwealth witnesses claimed memory loss about their grand jury testimony; the judge found three were feigning memory loss and allowed the Commonwealth to present their grand jury testimony as prior inconsistent statements for substantive use.
The prosecutor read excerpts of grand jury testimony in a question-and-answer form during direct examination rather than reading the transcript verbatim; defense objected only after close of evidence and moved for a required finding of not guilty, arguing the presentation rendered the testimony inadmissible for substantive purposes.
The judge denied the required‑finding motion, instructed the jury that the grand jury testimony could be considered substantively (and that questions are not evidence), and gave a supplemental instruction during deliberations that deliberate premeditation may be found if the defendant intended to kill someone in a group that included the victim.
The jury convicted Andrade of first‑degree murder (deliberate premeditation) and unlawful possession of a firearm; Andrade appealed, challenging the admission/presentation of grand jury testimony, supplemental instructions, and sought relief under G. L. c. 278, § 33E.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility/presentation of grand jury testimony as substantive evidence	Commonwealth: witnesses feigned memory loss; prior grand jury testimony may be admitted substantively if safeguards met	Andrade: prosecutor’s Q&A presentation made the grand jury testimony part of the prosecutor’s leading questions and therefore inadmissible for substantive use; objection was timely enough	Court: method was unconventional but adequate; requirements for substantive admission were met and no miscarriage of justice given lack of timely objection
Judge’s consideration of grand jury testimony in ruling on required‑finding motion	Commonwealth: judge properly considered the substantive grand jury testimony when ruling	Andrade: judge erred by relying on improperly presented testimony in denying required‑finding motion	Court: no error; judge permissibly considered the testimony because it was properly admitted substantively
Sufficiency/corroboration for prior grand jury testimony (essential elements)	Commonwealth: corroboration present (surveillance video, hat with defendant’s DNA) supporting Silva’s grand jury testimony	Andrade: Silva’s grand jury testimony lacked corroboration and thus should not be used substantively	Court: corroboration requirement satisfied by video and DNA evidence; admission proper
Supplemental jury instruction on intent (group liability)	Commonwealth: correct statement of law where evidence permits finding defendant intended to kill someone in the group containing the victim	Andrade: instruction improper because no evidence a group was present on the porch at time of shooting	Court: instruction was a correct statement of law and appropriate given evidence that at least the victim was present; no reversible error

Key Cases Cited

Commonwealth v. Neves, 474 Mass. 355 (discussing prior inconsistent statements and admissibility)
Commonwealth v. Judge, 420 Mass. 433 (noting concerns about testimony that may be indistinguishable from exam questions)
Commonwealth v. Sineiro, 432 Mass. 735 (setting requirements for admitting grand jury testimony when witness feigns memory loss)
Commonwealth v. Noble, 417 Mass. 341 (corroboration requirement for prior testimony on essential elements)
Commonwealth v. Daye, 393 Mass. 55 (foundational rules for prior inconsistent statements)
Commonwealth v. DePina, 476 Mass. 614 (limitations on confrontation clause where witness feigns memory loss)
Commonwealth v. Taylor, 463 Mass. 857 (deliberate premeditation may apply when defendant intended to kill someone in the victim’s group)
Commonwealth v. Van Bell, 455 Mass. 408 (trial judge’s discretion in tailoring supplemental jury instructions)
Commonwealth v. Robinson, 449 Mass. 1 (instructions on intent and group liability)
Commonwealth v. McGhee, 472 Mass. 405 (deference to trial judge’s finding of feigned memory loss)
Commonwealth v. Hicks, 22 Mass. App. Ct. 139 (recommendation to tell jurors to treat supplemental instructions with the main charge)
Commonwealth v. Conley, 34 Mass. App. Ct. 50 (failure to give Hicks‑style reminder is not reversible error)