Commonwealth v. DaSilva ( 2015 )

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SJC-11458
COMMONWEALTH vs. EMMANUEL DaSILVA.
Suffolk. December 5, 2014. - March 26, 2015.
Present: Gants, C.J., Spina, Cordy, Duffly, & Lenk, JJ.
Homicide. Grand Jury. Evidence, Grand jury proceedings,
Testimony before grand jury, Prior misconduct, Hearsay,
Relevancy and materiality, Impeachment of credibility,
Exculpatory. Witness, Impeachment. Practice, Criminal,
Capital case, Grand jury proceedings, Transcript of
testimony before grand jury, Recording of proceedings,
Argument by prosecutor, Instructions to jury.
Indictments found and returned in the Superior Court
Department on May 2, 2007.
The cases were tried before Frank M. Gaziano, J.
John F. Palmer for the defendant.
Dara Z. Kesselheim, Assistant District Attorney (Mark D.
Zanini & Julie Sunkle Higgins, Assistant District
Attorneys, with her) for the Commonwealth.
SPINA, J. The defendant was a participant in a drive-by
shooting on February 13, 2007, in the Roxbury section of Boston.
The motive was revenge against David Evans for the shooting of a
2
family friend, "A.J.," and an assault on a family member.
However, the targeted group of young men standing across the
street from Evans's apartment at the time of the shooting had
nothing to do with Evans. One member of the group was killed,
and two were wounded. The defendant was convicted of murder in
the first degree and various related offenses. On appeal the
defendant asserts error in (1) the admission of the grand jury
testimony of a Commonwealth witness; (2) the admission of
evidence of prior bad acts; (3) the admission of evidence that
the defendant refused to have his custodial interrogation
recorded; (4) the admission of evidence of 911 calls received by
a police dispatcher; (5) the admission of evidence concerning
the course of the investigation and the role of the grand jury;
(6) the prosecutor's impeachment of a defense witness with her
failure to report exculpatory evidence to police; (7) the
prosecutor's closing argument; and (8) the judge's decision
declining to give a so-called Bowden instruction. See
Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). We
affirm the convictions and decline the defendant's request that
we grant relief under G. L. c. 278, § 33E.
1. Background. The jury could have found the following
facts. We reserve other details for discussion of the
particular issues.
3
A brief description of family relations is in order before
we describe the events of February 13, 2007, that led up to the
shooting later the same day. A critical witness for the
Commonwealth was Clarimundo DaSilva,1 who is an uncle of the
defendant and a brother-in-law of Joseph Gomes. Clarimundo and
Gomes's parents lived in the same apartment building on Langdon
Street in Roxbury. The building was owned by Gomes's parents.
The defendant and Gomes lived at different addresses, but were
frequent visitors.
At about 9 A.M. on February 13, 2007, Clarimundo's son
Anthony arrived home and reported that someone with a gun was
chasing him. Clarimundo heard gunshots and telephoned the
police. An eyewitness saw a person chasing a dark-colored
automobile down Langdon Street, shooting at it. The person wore
a red and white hooded sweatshirt. When police officers
arrived, they learned that the shooter had run into the DaSilva-
Gomes apartment building. After conducting a sweep of the
building to determine if the shooter was inside, the police
ordered all residents to leave the building while they obtained
a search warrant. During the execution of the warrant the
officers recovered a .380 semiautomatic Mauser pistol, personal
1
We refer to members of the DaSilva family by their first
names.
4
papers in the name of "Joseph Gomes,"2 and a red, white, and
black sweatshirt. Five shell casings found in the street and
sidewalk in front of the apartment building were determined to
have been fired from the Mauser. In addition, a bullet and tire
with a hole were recovered from a tire store, where Evans's
black Buick LaCrosse, a rental vehicle, had been taken for a
tire replacement in February, 2007. The bullet that was
recovered had been fired from the Mauser.
Evans had a second rental vehicle at the time, a silver
Nissan Maxima with New Hampshire license plates. The Nissan was
seen several times in the vicinity of the apartment building
during the day on February 13. Clarimundo told the defendant
that people in the Nissan had pointed at him. The defendant and
an unidentified third person who was with him told Clarimundo
that the people in the Nissan were the people who had shot
"A.J.," a friend of Anthony's.
Later that afternoon Clarimundo drove to pick up his
daughter at school. The defendant accompanied him, and waited
in the vehicle while Clarimundo went into the school. When
Clarimundo and his daughter returned, the defendant had left.
He returned a short time later, and he appeared scared. He told
Clarimundo that he had seen the Nissan again on the way to the
2
Joseph Gomes and his father have the same name. The
papers recovered from the basement did not specify "Sr." or
"Jr."
5
school, and said, "I don't want to stop . . . to wait for you
with these crazy people around."
Clarimundo testified that the defendant and Gomes left
Langdon Street together at about 6 P.M. on February 13.
Clarimundo told police about the Nissan, and one officer
recalled seeing it in the Langdon Street neighborhood at least
twice during the day on that day.
Shortly after 6 P.M. on February 13, gunshots were fired
from the passenger's side windows of a newer model silver
Chevrolet Impala into a group of seven young men gathered on a
sidewalk on Maywood Street in Boston. They had been standing
near Evans's Nissan Maxima, which was parked across the street
from Evans's apartment. One man was killed, and two were
wounded. The man who was killed bore a strong resemblance to
Evans. Police responded to two separate 911 calls made within
one minute of the shooting. The first 911 call was received at
6:06 P.M. The dispatcher issued calls to respond. The second
dispatch, at 6:07 P.M., included a partial description of the
fleeing vehicle. At 6:16 P.M. the dispatcher heard on the
police radio that a Chevrolet Impala was stopped on Savin
Street, which runs parallel to Maywood Street. The driver of
the vehicle was Gomes.3 The sole passenger was the defendant.4
3
Gomes and the defendant originally were tried together.
However, the defendant's trial counsel became ill and was unable
6
Two .38 caliber shell casings were recovered from the
defendant's seat in the vehicle, and four .38 caliber shell
casings were recovered from the floor in front of his seat. A
seventh .38 caliber shell casing was recovered on Maywood Street
at the scene of the shooting. All seven casings were determined
to have been fired from the same gun. The defendant's
fingerprints were found on a soda bottle on the floor area of
his passenger seat. They also were found on a cigarette package
on the floor in the rear seat area. No firearm related to the
shooting ever was recovered.
A projectile recovered from a survivor of the shooting was
determined to have been fired from a .38 or .357 caliber
revolver. Another projectile was recovered from the kitchen of
an apartment on Savin Street. The projectile entered through
the kitchen window at the time of the shooting. The kitchen
window faces Maywood Street and the vicinity of the shooting.
That projectile was determined to have been fired from the same
.38 or .357 caliber revolver. On February 13, an officer
waiting for a tow truck to remove Gomes's Chevrolet Impala from
Savin Street saw Evans's Nissan go by. He broadcast this
to continue with the trial. The defendant's motion to sever was
allowed, and a mistrial was declared in his case. That trial
then proceeded as to Gomes.
4
Witnesses testified that there were three or four persons
in the drive-by vehicle. No others were apprehended.
7
information over his radio. The Nissan was stopped by police at
about 7:45 P.M. on that day. Evans was the front-seat
passenger.
The defense was a combination of alibi and shoddy police
work. The defendant's father testified that his son was at home
on Dennis Street when he arrived home from work at 12:30 P.M. on
February 13, 2007. His son left the home at approximately 12:45
P.M. The father returned to work at 1:15 P.M. The defendant's
girl friend also lived with him on Dennis Street. She testified
that she returned home from work at about 5:30 P.M. on that day,
and had dinner with the defendant, who was at home when she
arrived. At some point he left. It was dark outside. An
investigator hired by the defense testified that he drove
between the location of the Maywood Street shooting and the
defendant's Dennis Street home following various routes at about
6 P.M. In heavy traffic it took him a little over two minutes.
He then drove from the Dennis Street home to Savin Street in the
vicinity where the Impala had been stopped. It took him under
six minutes to cover that distance. The investigator's
testimony was offered to rebut the testimony of police officers
who suggested that it would not have been possible for Gomes to
have driven from the scene of the shooting to the defendant's
home, picked him up, and then driven to the location on Savin
8
Street by 6:16 P.M. on February 13, when his Impala was stopped
by police.
2. Clarimundo's grand jury testimony. The prosecutor
impeached Clarimundo with his grand jury testimony after
Clarimundo testified at trial that he did not see the defendant
-- his nephew -- or talk to him during the afternoon or early
evening of February 13, 2007. Clarimundo's grand jury testimony
indicated that he saw the defendant and talked to him several
times during that period of time. Moreover, Clarimundo's grand
jury testimony provided the only evidence that the defendant
knew of Evans, that he knew of Evans's connection to the Nissan,
that he was aware of the shooting of A.J. and the events earlier
in the day of February 13 at Langdon Street, and that the
defendant and Gomes were together at about 6 P.M. -- shortly
before the shooting. Clarimundo's grand jury testimony was
admitted for its probative value under Commonwealth v. Daye, 393
Mass. 55 (1984). The defendant asserts error in the admission
of Clarimundo's grand jury testimony as probative evidence. He
contends that the use of the witness's grand jury testimony for
probative purposes failed in multiple respects to meet the
requirements of Daye.
Daye permits the probative use of a witness's grand jury
testimony that is inconsistent with his or her trial testimony
provided certain conditions are met. First, there must be an
9
opportunity for effective cross-examination of the witness at
trial as to the accuracy of the grand jury testimony. Daye, 393
Mass. at 73. Second, the grand jury testimony must be the
statement of the witness and not merely a confirmation or denial
of an allegation by the interrogator, and the grand jury
testimony must not be coerced. Id. at 74. See Mass. G. Evid.
§ 801(d)(1)(A) (2014).
As an initial matter the defendant argues that, under Daye,
the judge was required to conduct a voir dire of Clarimundo
before admitting his grand jury testimony for probative
purposes. There is no such requirement. As we recently have
noted, a voir dire often may be necessary, but it is not
required where, as here, the direct and cross-examination of the
witness adequately inform the decision of the trial judge. See
Commonwealth v. Maldonado, 466 Mass. 742, 755-756, cert. denied,
134 S. Ct. 2312 (2014). As we will discuss shortly, where
Clarimundo's trial testimony and his grand jury testimony were
plainly contradictory, a voir dire was not necessary. The judge
here educated himself thoroughly with Clarimundo's grand jury
testimony, and he followed Clarimundo's trial testimony keenly,
at times interrupting the prosecutor before defense counsel
could object. Clarimundo was reminded of his grand jury
testimony on both direct and cross-examination, and he was
afforded the opportunity to explain any inconsistencies between
10
his trial testimony and his grand jury testimony. There was no
error.
The defendant maintains that Clarimundo's testimony before
the grand jury was coerced and, therefore, inadmissible under
Daye. We disagree. His grand jury testimony was developed
largely through open-ended questions, and his answers generally
were lengthy and rambling. The judge found that Clarimundo said
to the grand jury what he wanted to say. Clarimundo's answers
to questions were at times unresponsive or only loosely related
to the questions put to him. Although he had been summonsed,
that alone does not amount to coercion. See Commonwealth v.
Beauchamp, 49 Mass. App. Ct. 591, 607 (2000). The type of
coercion contemplated by Daye does not include threats to seek
contempt if the witness did not answer questions put to him or
her, as occurred here. The record does not indicate that
Clarimundo had been pressured to inculpate his nephew or face
contempt. There is no suggestion that Clarimundo had been
pressured to testify in a certain way. See Daye, 393 Mass. at74 n.20. There was no error.
The defendant next argues that Clarimundo's testimony was
not inconsistent with his grand jury testimony and that
therefore Daye is not applicable. See Mass. G. Evid.
§ 801(d)(1)(A)(i). A judge has considerable discretion in
deciding whether a witness's trial testimony and his or her
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grand jury testimony are inconsistent under Daye. The
inconsistency need not be a contradiction in plain terms. It is
enough that the trial testimony "taken as a whole, either by
what it says or by what it omits to say, affords some indication
that the fact was different from the testimony of the witness"
whom it is sought to contradict. Daye, 393 Mass. at 73 n.16,
quoting Commonwealth v. West, 312 Mass. 438, 440 (1942). Here,
the defendant complains that there were three instances where
Clarimundo's grand jury testimony was not inconsistent with his
trial testimony and therefore was admitted improperly.
In the first instance, Clarimundo testified at trial that
the only family member he saw outside during the time police
cleared the house was Gomes. He testified before the grand jury
that while outside the house, he told the defendant that the
Nissan drove by and people in the vehicle looked at them. This
was a direct contradiction. It was enough that the judge could
infer that where Clarimundo said he spoke to the defendant while
outside the house, he also saw the defendant outside the house.
The second instance in which the defendant claims that
Clarimundo's grand jury testimony was admitted for probative use
in the absence of any inconsistency with his trial testimony
concerned whether the defendant explained why he had left the
vehicle when Clarimundo went inside the school to get his
cousin. When asked at trial if the defendant offered any
12
explanation, Clarimundo said, "No." The prosecutor was allowed
to introduce Clarimundo's grand jury testimony given in response
to the question at the grand jury, "Where do you go when [the
defendant] comes back?" Clarimundo's answer to that question
was a rambling narrative that included the defendant's
explanation for leaving the vehicle, namely, that he saw Evans's
Nissan on the way to the school, and he "[didn't] want to stop
. . . to wait for [Clarimundo] with these crazy people around."
Clarimundo's grand jury testimony was in direct conflict with
his trial testimony.
In the third instance where the defendant contends there
was no inconsistency between Clarimundo's trial testimony and
his grand jury testimony, we discern a direct conflict. At
trial he testified that neither the defendant nor Gomes was
present at Langdon Street during the afternoon or early evening
of February 13, 2007. In contrast, he testified before the
grand jury that both men left the Langdon Street premises
together at about 6 P.M.
The defendant next argues that his statement to Clarimundo
that he saw Evans's Nissan while they were driving to the school
should not have been admitted because it was not a statement
made under oath. See Mass. G. Evid. § 801(d)(1)(A)(ii). The
argument is based on the fact that in his grand jury testimony
Clarimundo was not describing the defendant's statement as
13
something the defendant said to him, but something Clarimundo
told a police detective as what the defendant told him. This
hypertechnical argument is unpersuasive, and it is entirely
reasonable to understand that the testimony served a dual
purpose: Clarimundo was describing both what the defendant told
him and what he in turn passed along to police. In any event,
the conversation between Clarimundo and the detective was
conveyed to the grand jury under oath. We add that the parties
agreed that this portion of Clarimundo's grand jury testimony
could be admitted at trial.
The final argument as to Clarimundo's grand jury testimony
was that its admission violated the defendant's constitutional
rights of confrontation and due process under the Sixth and
Fourteenth Amendments to the United States Constitution because
he did not specifically acknowledge at trial that he made
certain statements before the grand jury. See Crawford v.
Washington, 541 U.S. 36, 68 (2004); Pointer v. Texas, 380 U.S.
400, 406 (1965). Clarimundo did not deny making the statements
to the grand jury that were admitted in evidence. Although at
times he claimed an inability to remember what he told the grand
jury, the judge found that he was feigning memory loss.
Clarimundo did not refuse to answer questions posed by defense
counsel, who was able to fully probe Clarimundo's
inconsistencies. We conclude that in these circumstances the
14
defendant had an opportunity to effectively cross-examine
Clarimundo. There was no deprivation of due process or the
right to confront and cross-examine the witness. See
Commonwealth v. Maldonado, 466 Mass. 742, 754-755 (2014);
Commonwealth v. Figueroa, 451 Mass. 566, 574-577 (2008).
3. Prior bad act evidence. The defendant maintains that
the admission of the evidence of the shooting on Langdon Street
during the morning of February 13, 2007, and related events
through that afternoon was insufficient to support an inference
of motive on the part of the defendant. The general rule
involved here is that "evidence of uncharged criminal acts or
other misbehavior is not admissible to show a defendant's bad
character or propensity to commit the charged crime, but may be
admissible if relevant for other purposes such as 'common
scheme, pattern of operation, absence of accident or mistake,
identity, intent or motive.'" Commonwealth v. Dwyer, 448 Mass.
122, 128 (2006), quoting Commonwealth v. Marshall, 434 Mass.
358, 366 (2001). Whether the probative value of such evidence
outweighs the risk of prejudice is a determination committed to
the sound discretion of the trial judge. Commonwealth v.
Horton, 434 Mass. 823, 827-828 (2001).
The evidence of motive here is very strong. The jury could
have found that the defendant and Gomes sought revenge against
Evans for shooting A.J. and chasing Anthony DaSilva. An unknown
15
friend or member of the family fired the Mauser pistol at
Evans's Buick on the morning of February 13, 2007, puncturing a
tire. The Mauser was traced to the Gomes family. When Evans's
Nissan was seen stalking the neighborhood that day, the
defendant and Gomes decided to deliver a preemptive strike and
drove to Maywood Street where Evans lived, but killed the wrong
person. Shell casings were found in the vehicle in which the
defendant and Gomes were riding about ten minutes after the
killing. There was a sufficient nexus between the Langdon
Street incident, the defendant, and the Maywood Street shooting
to support admission of the prior bad act evidence. There was
no abuse of discretion.
4. Defendant's refusal to have his statement tape
recorded. The defendant gave a statement to police in which he
said he had gone with Clarimundo to pick up his cousin at her
school. Clarimundo then drove him to his home on Dennis Street.
Gomes came by to pick him up as it was getting dark. They set
out to buy some liquor, but were pulled over by police. A
female officer told him he was sitting on some shell casings or
bullets. He told her he knew nothing about them. He was placed
under arrest. The defendant had declined to have the interview
recorded, and the jury were so informed, over objection. See
Commonwealth v. DiGiambattista, 442 Mass. 423, 447-448 (2004).
The defendant argues that it was error to admit evidence of his
16
refusal to have his statement tape recorded, where defense
counsel had explicitly advised the jury that the defendant did
not intend to make an issue of either the voluntariness of his
statement or the absence of a recording. He contends that the
only basis for admitting such evidence was to show consciousness
of guilt or a fear that the recording would incriminate him. We
disagree.
Without any evidence of the defendant's refusal, the jury
may have questioned the absence of a recording wholly apart from
whether a DiGiambattista instruction were given. The judge
ruled that the Commonwealth was entitled to introduce evidence
of the defendant's refusal to inform the jury that the police
followed proper procedures. See DiGiambattista, 442 Mass. at
448-449 ("permissible for the prosecution to address any reasons
or justifications that would explain why no recording was
made"). This is especially true here, where a cornerstone of
the defense was shoddy police work. There was no suggestion at
trial that the defendant's refusal somehow should be held
against him. There was no error.
5. Hearsay evidence in 911 calls. A police dispatcher was
allowed to testify about receiving the 911 calls concerning the
shooting on Maywood Street. She also was allowed to testify,
over objection, that within ten minutes "after the shooting" she
heard on the radio that a vehicle had been stopped in response
17
to her dispatches (emphasis added). The defendant argues, as he
did below, that this was inadmissible hearsay, offered for the
truth of the matter. He further argues that it was prejudicial
because it minimized the likelihood that Gomes had picked him up
after the shooting, a critical issue at trial.
The prosecutor attempted to correct the problem, and the
dispatcher then testified, referring to her computer-aided
dispatch (CAD) terminal print-outs, that she heard on the police
radio at 6:16 P.M. that a vehicle had been stopped, without
reference to the time of the shooting. On cross-examination
defense counsel further clarified the dispatcher's testimony,
eliciting from her that she did not know when the shooting
occurred. Although the dispatcher's original testimony using
"the shooting" as a point of reference should have been struck,
as requested, we are satisfied that the matter was
satisfactorily rectified and that there was no prejudice.
Moreover, redacted versions of the CAD print-outs were properly
admitted showing the times of the incoming 911 calls and the
time the officer communicated the stop of Gomes's vehicle over
the police radio.
6. Decision to charge defendant. The prosecutor
questioned a detective about the course of investigations
generally, including participants in the decision to arrest and
charge someone with a crime. Defense counsel objected and moved
18
to strike the testimony. The judge did not strike the
testimony, but he told the prosecutor to "move on." The
prosecutor immediately proceeded to ask the detective to explain
the role of the grand jury. There was no objection, and the
detective answered, "The grand jury hears all evidence and
decides whether to indict or not indict the target of the
investigation" (emphasis added). The defendant argues that this
testimony was both irrelevant and prejudicial as to the
testimony to which there was an objection and that there was a
substantial likelihood of a miscarriage of justice as to the
testimony to which there was no objection. As to the former, he
contends that prejudice flowed from the witness's placement of
the imprimatur of the police and prosecutorial hierarchy on his
arrest and indictment. With respect to the latter, he argues
that a substantial likelihood of a miscarriage of justice flowed
from the incorrect testimony that the grand jury heard all
evidence, which it does not.
The defendant is correct in identifying this testimony as
irrelevant. It had no evidentiary value in this case, and the
Commonwealth does not suggest otherwise. If there is a need for
the jury to be educated in such matters because of some
relevance to the trial, special care must be taken to avoid
putting the imprimatur of the State on the decision to arrest or
to charge. The evidence should have been struck.
19
That said, we discern no prejudice, where the witness was
speaking generally, and not specifically to this case. Contrast
Commonwealth v. Akara, 465 Mass. 245, 262 (2013) (improper
argument by prosecutor who urged jury to find joint venture
because police, district attorney's office, and grand jury found
sufficient evidence to charge not one but two people). In
addition, the judge's final instructions about the presumption
of innocence and the absence of evidentiary value in an
indictment adequately served to mitigate any potential for
prejudice in this case.
7. Impeachment of defense witness. The defendant's girl
friend testified that she left work at 5 P.M. on the day of the
shooting. On her way home she stopped to get some take-out food
for dinner. She arrived home at about 5:30 P.M. The defendant
was home alone. They ate dinner together. After dinner, the
defendant left. It was dark outside. She was impeached,
without objection, with her failure to report exculpatory
information to police. The defendant argues that the prosecutor
failed to lay the necessary foundation.
Before a witness may be impeached for failure to report
exculpatory evidence to police, the Commonwealth must establish
"[1] that the witness knew of the pending charges in sufficient
detail to realize that he possessed exculpatory information, [2]
that the witness had reason to make the information available,
20
[and] [3] that he was familiar with the means of reporting it to
the proper authorities." Commonwealth v. Hart, 455 Mass. 230,
238 (2009), quoting Commonwealth v. Brown, 11 Mass. App. Ct.
288, 296-297 (1981). The defendant claims that the Commonwealth
failed to establish the first element.
The witness testified that as of the time of trial she had
been dating the defendant for six years. They lived together on
Dennis Street as of February 13, 2007. She learned that evening
that he had been taken into custody. She continued to see him
on a regular basis during the ensuing four years and eight
months. Although the prosecutor did not specifically inquire
whether she knew of the pending charges in sufficient detail to
realize she possessed exculpatory information, it can reasonably
be inferred from the circumstances of the events that evening
and the fact of the ongoing relationship between the witness and
the defendant that the witness knew she possessed exculpatory
information. See Hart, 455 Mass. at 239. Moreover, she
testified that the only reason she did not come forward was that
she "didn't know [she] had to." There was no error.
8. Prosecutor's closing argument. The defendant cites
five instances in the prosecutor's closing that he argues were
improper argument. Prosecutors are bound to "limit the scope of
their arguments to facts in evidence and inferences that may
reasonably be drawn from the evidence." Commonwealth v. Coren,
21
437 Mass. 723, 730 (2002). They may not "misstate the evidence
or refer to facts not in evidence, [or] interject personal
belief in a defendant's guilt" (footnote omitted). Commonwealth
v. Kozec, 399 Mass. 514, 516-517 (1987).
The defendant argues that the prosecutor went beyond the
evidence when he asked the jury to use their "common sense" to
consider "how quickly people call 911 when people have been
shot." He argues that this provided the basis for the
prosecutor's argument that nine minutes passed between the time
of the shooting and the time Gomes's vehicle was seen on Savin
Street. The woman who placed the first 911 call testified that
she heard a loud bang and her children ran to the window to see
what had happened. They came running, asking her to help. She
went to the window to see what had happened and saw two men on
the ground. She promptly called 911 on her cellular telephone,
which was already in her hand. She estimated that approximately
one minute had passed from the time she heard the bang to the
point where she looked out the window. The officer who stopped
the Gomes's vehicle testified that the actual stop occurred at
about 6:15 P.M. Adding one minute to the period of time from
the completion of the 911 call to the time Gomes's vehicle was
stopped (not just seen) results in approximately ten minutes.
Although the "common sense" argument was contrary to the
testimony of the 911 caller, this one-minute variance does not,
22
in our view, create a substantial likelihood of a miscarriage of
justice. See Commonwealth v. Wright, 411 Mass. 678, 682 (1992).
Moreover, it was in response to defense counsel's suggestion,
without basis, that the time was fifteen to twenty minutes.
The defendant next contends that the prosecutor exceeded
the scope of the evidence when he described the shooting
incident on Langdon Street as motive for the shooting on Maywood
Street. For the reasons stated above as to the propriety of the
admission of evidence of prior bad act evidence on the question
of motive, we conclude that the prosecutor's argument was
properly grounded in the evidence.
The third instance cited by the defendant is the
prosecutor's statement that the defendant told Clarimundo that
"[t]hose are the people who shot A.J.," when Clarimundo's
testimony before the grand jury was, "They said, that's the
people who shot A.J." (emphasis added). We perceive no error in
this aspect of the prosecutor's closing argument. The evidence
indicates that the "they" to whom Clarimundo was referring was
the defendant and an unidentified third person. It is a
reasonable inference to draw from Clarimundo's description of
the event that both persons were speaking and giving Clarimundo
consistent information. Thus, the defendant inferably was a
contributor of the information in question.
23
The defendant contends that the prosecutor suggested,
without evidentiary support, that "part of the plan" of the
defendant and Gomes was "not to leave any evidence behind" by
firing from inside the vehicle and thus keeping the shell
casings inside the vehicle. This argument had evidentiary
support. There was evidence that "flashing lights" were seen
coming from "the rear seat and the passenger seat" of the
vehicle. There also was evidence that spent shell casings are
ejected through an ejection port of a semiautomatic gun and
often pop out in the direction of the shooter. No shell casings
were recovered from the scene of the Maywood Street shooting.
The argument was fair comment.
The defendant's final assertion of prosecutorial misconduct
in closing argument involves a claim of vouching where the
prosecutor stated that the government had discretion to dismiss
the charges and that "the suggestion that we are here to save
face, frankly, is offensive." The comment was in response to
defense counsel's argument that "it's the Commonwealth that's
been on a mission for the last couple of weeks to save face. To
save face from a bad decision. What do I mean? . . . Things
are not always [as] they first appear to be."
This argument was improper vouching. We have commented
frequently on the problem of "fighting fire with fire." See
Kozec, 399 Mass. at 519. Emotional responses to defense
24
counsel's closing argument seldom produce a professional result,
let alone a good result; and this instance is no exception.
Moreover, defense counsel's closing argument on this point was
entirely appropriate. Nevertheless, defense counsel promptly
objected, and the judge immediately told the jury to disregard
the prosecutor's comment. The jury are presumed to have
followed that instruction. See Commonwealth v. Barros, 425
Mass. 572, 580 (1997).
9. Bowden instruction. There is no merit to the claim
that the judge declined to give the requested so-called Bowden
instruction. See Bowden, 379 Mass. at 485-486. The defendant
was permitted to argue that the police investigation was
inadequate, a prevalent theme throughout this trial. There was
no error in the decision to decline to give the requested
instruction. See Commonwealth v. Lao, 460 Mass. 12, 22-23
(2011).
10. G. L. c. 278, § 33E. We have reviewed the entire
record and the briefs, and we see no reason to exercise our
power under G. L. c. 278, § 33E, to reduce the degree of guilt
or order a new trial.
Judgments affirmed.