Silva-Santiago v. Commonwealth (Lawyers Weekly No. 11-049-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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     13‑P‑1192                                       Appeals Court JESUS SILVA-SANTIAGO  vs.  COMMONWEALTH. No. 13‑P‑1192.      May 22, 2014.       Erroneous conviction.       The plaintiff, whose conviction of murder in the first degree was reversed after several years of incarceration, appeals from the dismissal of his claim for damages against the Commonwealth pursuant to the “Compensation for Certain Erroneous Felony Convictions” statute, G. L. c. 258D, for failure to state a claim.  We affirm.   Background.  On June 16, 2006, the plaintiff, Jesus Silva-Santiago, was convicted of murder in the first degree in the June 28, 2003, shooting death of Eugene Monteiro, which took place in the parking lot of a bar.  See Commonwealth v. Silva-Santiago, 453 Mass. 782, 783-785 (2009).   On direct appeal, the Supreme Judicial Court rejected his appellate arguments.  However, the court, pursuant to its supervisory powers under G. L. c. 278, § 33E, reviewed for errors not raised and reversed his conviction, holding that two statements made by the prosecutor during his closing argument, and the judge’s failure to correct them, constituted reversible error.  Id. at 805-810.   The first erroneous statement concerned the initial inability of the victim’s friends, who witnessed the shooting, to identify the defendant as the shooter when they had the opportunity to view him, and approximately forty-one others, in a secured area shortly after the shooting.  Id. at 785-786, 806, 808-809.  In his closing argument, the prosecutor, as to the nonidentification, told the jury:     “Doesn’t it make sense that maybe, just maybe, they weren’t in a position, given their frame of minds, to calmly look around the bar that had about thirty-five, forty, forty-five people in it to try to make an identification?  Doesn’t it make sense that even if they did, even if they saw everybody in the bar and saw the shooter, they were maybe too scared to identify him, given what they had just seen?”   Id. at 806.  Defense counsel objected to this argument, but the objection was overruled.  Ibid.  The court held that this was error because no evidence had been introduced that the friends had recognized the defendant as the shooter, but were so afraid or overwhelmed that they were less than candid with the police until they tentatively identified him in a photographic array on July 7, 2003.  Id. at 786-790, 808-809.   The second erroneous statement concerned the […]

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