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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).
                                                                     7


(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.
