Commonwealth v. Silvester (Lawyers Weekly No. 11-047-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 14-P-1766 Appeals Court COMMONWEALTH vs. DILLON SILVESTER. No. 14-P-1766. Bristol. January 15, 2016. – May 2, 2016. Present: Kafker, C.J., Cohen, Green, Wolohojian, & Henry, JJ. Evidence, Testimony before grand jury, Cross-examination, Videotape, Identification, Constructive possession, Opinion, Hearsay. Practice, Criminal, Transcript of testimony before grand jury, Cross-examination by prosecutor, Voir dire, Mistrial, Identification of defendant in courtroom, Hearsay. Witness, Cross-examination. Identification. Firearms. Indictments found and returned in the Superior Court Department on June 7, 2012, and November 1, 2012. The cases were tried before Thomas F. McGuire, Jr., J. Jennifer Appleyard for the defendant. David A. Wittenberg, Assistant District Attorney, for the Commonwealth. HENRY, J. The defendant appeals from his convictions by a Superior Court jury of unlicensed carrying of a firearm, unlicensed carrying of a loaded firearm, possession of ammunition without a firearm identification card, and assault by means of a dangerous weapon (firearm). He was acquitted of armed assault with intent to murder.[1] On appeal the defendant argues that (1) his confrontation rights were violated by the admission in evidence, for substantive purposes, of a witness’s grand jury testimony and out-of-court identification of the defendant; (2) he was entitled to a required finding of not guilty on the charge he illegally possessed ammunition; (3) a lay witness was improperly permitted to give opinion testimony; (4) the judge improperly denied the defendant’s motion for a mistrial; (5) an in-court identification should not have been admitted; and (6) a hearsay statement should have been excluded. We affirm. Background. We summarize the evidence at trial, leaving additional details for discussion with the issues presented. On April 11, 2012, Kayleigh Gagnon and Kaitlyn Bayrouty arranged to meet to fight each other. By about 10:30 A.M., Gagnon had gathered her then boy friend, Leonard Starcher, and his best friend, the victim, Brandon Dunham, on Starcher’s front porch in Fall River. The victim and Bayrouty had previously been in a relationship, and had a child together. Within a few minutes, Gagnon recognized a vehicle owned by Elizabeth Mello arrive and park down the street. Bayrouty, the defendant, and his cousin, Ashley Cioe, exited from the vehicle and walked toward Gagnon, the victim, and Starcher. Two people remained in the vehicle: Mello and Bianca Rebello. The victim ran toward the defendant’s group; accounts conflicted […]