Commonwealth v. DePina; Commonwealth v. Monteiro (Lawyers Weekly No. 10-043-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11794 SJC-11932 COMMONWEALTH vs. ESAU DePINA. COMMONWEALTH vs. ISAIAH MONTEIRO. Plymouth. November 10, 2016. – March 13, 2017. Present: Gants, C.J., Lenk, Hines, & Lowy, JJ. Homicide. Firearms. Evidence, Testimony before grand jury, Hearsay, Admission by silence, Statement of codefendant, Joint venturer, Prior misconduct, Immunized witness, Third-party culprit, Expert opinion. Constitutional Law, Confrontation of witnesses. Joint Enterprise. Practice, Criminal, Capital case, Confrontation of witnesses, Hearsay, Conduct of prosecutor, Opening statement, Instructions to jury, Severance, Trial of defendants together. Indictments found and returned in the Superior Court Department on November 10, 2010. The cases were tried before Richard J. Chin, J. Rosemary Curran Scapicchio for Esau DePina. Stephen Neyman for Isaiah Monteiro. Audrey Anderson, Assistant District Attorney, for the Commonwealth. LENK, J. After a jury trial in the Superior Court, the defendants, Isaiah Monteiro and Esau DePina, were each found guilty of murder in the first degree on a theory of deliberate premeditation, as well as of related offenses, in the shooting death of the victim, Anthony Hamilton, on November 16, 2009.[1] In this direct appeal, they challenge the substantive admission of a witness’s grand jury testimony, various statements in that testimony they claim are independently inadmissible, certain portions of the prosecutor’s opening statement, the jury instructions on immunized witness testimony, and the denial of their motions to sever; they also raise various evidentiary issues. In addition, both defendants seek relief under G. L. c. 278, § 33E. We discern no error warranting reversal, and, having carefully reviewed the record, see no reason to reduce or set aside the verdicts under G. L. c. 278, § 33E. Accordingly, we affirm the defendants’ convictions. Background and proceedings. a. Facts. We recite the facts that the jury could have found, reserving certain details for later discussion. On November 16, 2009, at approximately 1 P.M., the victim was with several of his friends on the front porch of a house on Johnson Court in Brockton. A man approached on foot and shot him. Witnesses near the scene — neighbors, a carpenter, and the driver of a passing vehicle — described hearing at least three gunshots and seeing a man running, climbing through a hole in a fence, and getting into a waiting vehicle. None of the witnesses was able to provide more than a general description of that individual, […]