Commonwealth v. DaSilva (Lawyers Weekly No. 10-149-15)
COMMONWEALTH vs. EMMANUEL DaSILVA. SJC-11458 SUPREME JUDICIAL COURT OF MASSACHUSETTS 2015 Mass. LEXIS 151 December 5, 2014, Argued March 26, 2015, Decided NOTICE: THIS OPINION IS SUBJECT TO FORMAL REVISION BEFORE PUBLICATION IN THE MASSACHUSETTS REPORTER USERS ARE REQUESTED TO NOTIFY THE CLERK OF THE COURT OF ANY FORMAL ERRORS SO THAT CORRECTIONS MAY BE MADE BEFORE THE BOUND VOLUMES GO TO PRESS. PRIOR-HISTORY: Suffolk. Indictments found and returned in the Superior Court Department on May 2, 2007. The cases were tried before Frank M. Gaziano , J. HEADNOTES-1 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. COUNSEL: 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. JUDGES: Present: Gants, C.J., Spina, Cordy, Duffly, & Lenk, JJ. OPINION BY: SPINA OPINION 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 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. 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 […]