Commonwealth v. Andrade

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SJC-12088
COMMONWEALTH vs. HERICO ANDRADE.
Plymouth. October 5, 2018. - December 21, 2018.
Present: Gants, C.J., Lowy, Budd, & Cypher, JJ.
Homicide. Evidence, Testimony before grand jury, Prior
inconsistent statement. Practice, Criminal, Instructions
to jury, Capital case.
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.
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
1 The defendant was also convicted of unlawful possession of
a firearm.
2
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
3
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 grand jury testimony. Four percipient
trial witnesses called by the Commonwealth claimed that they
could not recall the testimony they had given to the grand jury,
the events and facts underlying those prior statements, or both.
4
Three of the four witnesses were found by the judge to be
feigning memory loss, and the Commonwealth was permitted to
present their grand jury testimony as prior inconsistent
statements admissible as substantive evidence. See Commonwealth
v. Neves, 474 Mass. 355, 366-367 (2016); Mass. G. Evid.
§ 801(d)(1)(A) (2018).
For each witness, rather than reading the relevant portions
of the grand jury transcripts directly into the record (with or
without the assistance of co-counsel), the prosecutor chose to
read relevant excerpts from the transcripts, punctuated by
questions to the witness as to whether he or she recalled giving
the grand jury testimony. At the close of evidence, the
defendant's attorney moved for a required finding of not guilty,
arguing that because the prosecutor had presented the grand jury
testimony in a question and answer format, the testimony was
part of the prosecutor's leading questions to the witnesses, and
therefore the testimony could not be considered for substantive
purposes. See Commonwealth v. Judge, 420 Mass. 433, 452 n.12
(1995). The defendant claimed that without the evidence from
the three percipient witnesses, there was insufficient evidence
to find him guilty.
The judge considered the matter and ultimately denied the
defendant's motion for a required finding of not guilty. He
ruled that the method the prosecutor had used was "sufficient"
5
to have the jury consider the prior testimony substantively. In
his jury charge, the judge instructed that questions put to
witnesses were not themselves evidence, but that the grand jury
testimony could be considered for its substantive value.
On appeal, the defendant claims, among other things, that
the judge erred in considering the grand jury testimony as
substantive evidence when he ruled on the defendant's motion for
a required finding of not guilty and in instructing the jury to
do the same. As the defendant did not object to the admission
of the grand jury testimony for substantive purposes when it was
read by the prosecutor in posing his questions, and waited to
object until after the close of evidence, we review any error
for a substantial likelihood of a miscarriage of justice.2 See
Commonwealth v. Comtois, 399 Mass. 668, 674 (1987), quoting
Commonwealth v. Gallison, 383 Mass. 659, 669 (1981) ("It is a
fundamental principle of appellate review that a prompt
objection at trial is a prerequisite to the presentation of an
2 Because the trial judge had allowed the prosecutor to
present the testimony for substantive purposes, there was no
question that the prosecutor was offering the grand jury
testimony for its substantive value during the direct
examination of the witnesses who were found to have feigned
memory loss. Prompt objections by parties allow judges to cure
any defects in the proceedings when they occur. See
Commonwealth v. Fowler, 431 Mass. 30, 36 (2000), citing
Commonwealth v. Sherick, 401 Mass. 302, 305 (1987). To preserve
the issue, it was thus incumbent upon defense counsel to object
in the moment, rather than to wait until the close of evidence.
6
issue for appellate review"). See also Commonwealth v. Silvia,
343 Mass. 130, 135-136 (1961). We conclude that, although the
method the Commonwealth used to introduce the evidence was
somewhat unusual, the testimony was properly admitted for
substantive purposes. There was no error.
The judge properly found that the witnesses in question
were feigning memory loss, which entitled the Commonwealth to
have the testimony admitted for substantive purposes.3 See
Commonwealth v. Sineiro, 432 Mass. 735, 742-743 (2000) ("when a
witness does not deny his probable cause testimony, nor its
truth, but chooses to feign an inability to recall the testimony
in an attempt to avoid giving evidence that might send another
to jail, a judge should not be without recourse"). The
defendant does not dispute the judge's decision to allow the
grand jury testimony in evidence substantively; instead, he
claims that the prosecutor's method of presenting that evidence
was flawed and that as a result the testimony should not have
been considered for its truth.
We have held that when a witness feigns memory loss, that
witness's grand jury testimony may be admitted substantively as
a prior inconsistent statement if certain requirements are met:
3 Finding that a witness is feigning memory loss is within
the sound discretion of a trial judge. See Commonwealth v.
McGhee, 472 Mass. 405, 422-423 (2015).
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(1) the prior statement must clearly be that of the witness
rather than the questioner; (2) the statement must be free from
coercion; (3) the defendant must have an opportunity for
effective cross-examination of the witness at trial, and (4)
some corroborative evidence must be presented when the prior
testimony concerns an essential element of the crime. See
Sineiro, 432 Mass. at 743-744, citing Commonwealth v. Noble, 417
Mass. 341, 345 (1994), and Commonwealth v. Daye, 393 Mass. 55,
74 (1984). See also Mass. G. Evid. § 801(d)(1)(A). Here, each
of the requirements was met.
For each witness, the prosecutor indicated that the prior
testimony had been before a grand jury, and each witness
confirmed that his or her testimony had not been coerced.
Further, as the prosecutor read the prior testimony of each
witness, he took care to identify which portions of the excerpts
were questions and which were the witness's responses.
The defendant claims that the witnesses' claimed loss of
memory made it impossible for defense counsel to effectively
cross-examine them. This claim lacks merit. We have held that
"any limitation on the effectiveness" of a cross-examination of
a witness who has been found to have feigned memory loss
"generally does not implicate the confrontation clause."
Commonwealth v. DePina, 476 Mass. 614, 622 (2017).
8
Finally, the defendant contends that there was no
corroborating evidence for the witnesses' grand jury testimony,
and that therefore it should not have been used substantively.
See Sineiro, 432 Mass. at 741 (corroboration required for grand
jury testimony relating to essential element of crime); Noble,
417 Mass. at 345 (same). We disagree. Silva, one of the trial
witnesses found to have feigned memory loss, testified in the
grand jury that, moments after the shooting, he observed the
defendant running from the scene with a revolver in his hand.
This testimony was corroborated by surveillance video footage of
the crime scene that showed two figures reaching for their
waistbands as they approached the location of the shooting, and
then running away soon thereafter.
In addition, a baseball hat was located in the street in
front of the house where the victim was shot. The hat, which
was not in the street prior to the shooting, was analyzed for
the presence of DNA. The major DNA profile obtained from the
hat was consistent with the DNA profile of the defendant. In
short, there was ample corroboration of Silva's prior testimony.4
4 The grand jury testimony of the other two witnesses who
were found to have feigned memory loss concerned the defendant's
initial arrival as a passenger in the sport utility vehicle.
Although the testimony did not concern an essential element of
the crime (and therefore did not require corroboration as did
Silva's testimony), the defendant himself corroborated the two
witnesses' testimony in his statement to police.
9
See Noble, 417 Mass. at 346 (corroboration can be drawn from
reasonable inferences).
It would have been apparent to the jurors at the time, as
it is apparent to us now, that the prosecutor was reading
relevant excerpts from grand jury testimony into the record, and
occasionally asking each witness whether he or she recalled the
testimony. Thus, although the prosecutor's method was
unconventional, the judge did not err in allowing the jury to
consider the grand jury testimony as substantive evidence, nor
did he err in considering it himself in ruling on the
defendant's motion for a required finding of not guilty.
Nonetheless, to avoid confusion when offering grand jury
testimony in evidence, we suggest that it be read directly into
the record either by one person reading the questions and a
colleague reading the answers, or by one person reading the
entire excerpt but making clear which portions are questions and
which are answers.
As we find no error, the defendant's related claims are
fruitless. That is, because the grand jury testimony was
admitted properly as substantive evidence, the defendant's
argument that there was insufficient evidence to find him guilty
beyond a reasonable doubt without the grand jury testimony
fails. And as we conclude that the prosecutor's method of
presenting the grand jury testimony was not error, we reject the
10
defendant's arguments that the prosecutor committed misconduct
in so doing, and that the prosecutor improperly referred to the
grand jury testimony during his closing argument.
2. Supplemental jury instructions. The defendant also
claims error with respect to supplemental instructions provided
to the jury in response to a question the jury submitted during
deliberations. The jury asked, "With respect to the charge of
first-degree murder and its three elements, is it necessary that
the intent to kill be specific to the named victim or is it
sufficient that the intent to kill refer to anyone on the
porch?" Over the defendant's objection, the judge gave the
following instruction: "You may find deliberate premeditation
if you find that the defendant deliberately decided to kill
someone in a group regardless of whether the defendant intended
to kill the actual victim, who was among the target group." The
defendant argues that because there was no evidence that the
individual with whom the defendant argued was on the porch (or
that there was a group of people on the porch at all) at the
time of the shooting, the instruction was erroneous and he is
entitled to a reversal of his convictions.
The instruction that the judge gave in response to the
jury's question was a correct statement of the law. See
Commonwealth v. Taylor, 463 Mass. 857, 863 (2012) (where there
is sufficient evidence, jury can be instructed that element of
11
deliberate premeditation is met if they find that defendant
intended to kill someone else in same group as victim). It was
also an appropriate response given the evidence presented at
trial. Although there was no testimony that a group of
individuals remained on the porch when the defendant returned,
there is no dispute that at least one person -- the victim --
was there at the time of the shooting. The judge correctly
instructed the jury that they could find deliberate
premeditation if they found that the defendant intended to kill
someone other than the victim. See Commonwealth v. Van Bell,
455 Mass. 408, 420 (2009), quoting Commonwealth v. Robinson, 449
Mass. 1, 7-8 (2007) (within discretion of judge to tailor
supplemental jury instructions). There was no error.5
3. Review under G. L. c. 278, § 33E. Finally, the
defendant asks us to exercise our extraordinary power to grant
relief under G. L. c. 278, § 33E. We have reviewed the record
5 The defendant also argues that after giving the
supplemental jury instruction, the judge erred by failing to
instruct the jury that all the instructions are to be considered
as a whole. See Commonwealth v. Hicks, 22 Mass. App. Ct. 139,
144-145 (1986) (recommending that judges instruct that
supplemental instructions are to be considered along with main
charge). Such an instruction is recommended, not mandated.
Neither we nor the Appeals Court have ever held that the failure
to give such an instruction warrants the reversal of a
conviction. See Commonwealth v. Conley, 34 Mass. App. Ct. 50,
59 (1993).
12
in its entirety and see no basis to set aside or reduce the
verdict of murder in the first degree or to order a new trial.
Judgments affirmed.