73 N.E.3d 221
Mass.2017Background
- On November 16, 2009 Anthony Hamilton was shot on Johnson Court in Brockton; witnesses saw a man run and enter a waiting vehicle. Physical evidence (cartridges, shells, fragments, partial footwear impressions) was inconclusive but indicated shots from the same .40-caliber semiautomatic.
- Defendants Isaiah Monteiro and Esau DePina were tried jointly and convicted of first‑degree murder (premeditation) and related firearms offenses; primary eyewitness evidence came from Licea DaSilva (immunized witness) and Kevin Dossanto (cooperating witness).
- DaSilva originally testified before a grand jury implicating the defendants, later asserted inability to remember events at trial and claimed coercion; after in‑camera Martin hearings the judge found feigned memory loss and admitted parts of her grand jury testimony substantively on a question‑by‑question basis under Daye/Sineiro doctrine.
- The Commonwealth also elicited Dossanto’s testimony that he was with the defendants the day of the shooting and that DePina exited the vehicle, shots followed, and DePina returned saying “I think I got him.” Dossanto admitted initially lying to police out of fear of retaliation.
- Defendants raised multiple objections at trial (admission of grand jury testimony, specific hearsay statements within it, prosecutor’s opening, jury instructions about immunized testimony, denial of severance, exclusion of some third‑party culprit evidence, ballistics testimony, and alleged improper vouching); the judge overruled or limited many objections and the jury convicted.
Issues
| Issue | Commonwealth's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of DaSilva's grand jury testimony | Judge correctly found (implicitly) the Daye/Sineiro prerequisites: feigned memory loss, grand jury testimony in witness’s own words, and noncoercion | Admission violated evidentiary rules and Monteiro’s Sixth Amendment confrontation rights | Admission affirmed: judge’s findings supported; confrontation not violated because witness was available for cross‑examination and memory loss appeared feigned |
| Specific hearsay within grand jury testimony (sister Rodriguez’s remarks) | Statements were cumulative or admissible (adoptive admission or not prejudicial) | Totem‑pole hearsay and adoptive‑silence admission prejudicial | One Rodriguez remark harmlessly cumulative; adoptive‑silence remark error, if any, was not prejudicial |
| Codefendant statements in DaSilva testimony | Some statements admissible against both (joint venture); others admissible only against speaker but harmless | Statements by Monteiro improperly admitted against DePina | Statement about avoiding Johnson Court admissible as joint‑venture in furtherance; statement about Monteiro being jumped should not have been admitted against DePina but error was not prejudicial |
| Prosecutor’s opening statement previewing DaSilva testimony | Prosecutor reasonably and in good faith previewed evidence she expected to elicit; alternative opening prepared | Opening impermissibly referenced evidence the prosecutor knew might be excluded | No error: prosecutor may preview evidence she reasonably expects to introduce even if later excluded |
| Jury instructions about immunized witness | Standard instruction (consider immunity in assessing credibility) and counsels’ arguments suffice | Needed explicit statutory instruction that conviction cannot rest solely on immunized testimony | No error: model instruction and argument were adequate to warn jury about reliance on immunized testimony |
| Denial of severance | Joint trial appropriate; defenses overlapping, not mutually exclusive to the point of precluding acquittal of either | Mutually antagonistic defenses required severance | No abuse of discretion; severance not required |
| Exclusion of certain third‑party culprit evidence | Proposed third‑party evidence was speculative/remote and lacked connecting links | Excluded evidence could have supported alternative perpetrator theory | No error: judge properly excluded remote/speculative third‑party evidence |
| Ballistics testimony and witness fear testimony | Ballistics comparisons rebut potential defense of inadequate investigation; fear testimony explains delay in reporting | Ballistics testimony appealed to emotion/implicated other crimes; fear testimony vouched for witness | No error: testimony permissible to rebut defense and to explain credibility; not improper vouching |
Key Cases Cited
- Commonwealth v. Daye, 393 Mass. 55 (established prerequisites for substantive admission of prior testimony when witness claims memory loss)
- Commonwealth v. Sineiro, 432 Mass. 735 (clarified Daye requirements and practice)
- Commonwealth v. Maldonado, 466 Mass. 742 (deference to trial judge’s findings on feigned memory and coercion)
- United States v. Owens, 484 U.S. 554 (availability of witness and limits of confrontation clause when witness lacks memory)
- Bruton v. United States, 391 U.S. 123 (limitation on admission of nontestifying codefendant’s statements implicating co‑defendant)
- Commonwealth v. Fazio, 375 Mass. 451 (prosecutor may preview evidence in opening that is expected in good faith)
- Commonwealth v. Brousseau, 421 Mass. 647 (no requirement to instruct jury that conviction cannot rest solely on immunized testimony)