Summary
The Massachusetts Supreme Judicial Court affirmed Herico Andrade’s convictions for murder in the first degree and unlawful possession of a firearm. The court held that grand jury testimony was properly admitted as substantive evidence despite the prosecutor’s unconventional presentation method, and that the supplemental jury instruction concerning intent to kill was legally correct; it also denied relief under G. L. c. 278, § 33E.
Topics
Practice areas
Questions Presented
- Whether the Commonwealth properly introduced grand jury testimony as substantive evidence by reading excerpts through questions to witnesses who had been found to be feigning memory loss.
- Whether the trial judge properly considered that grand jury testimony in denying the defendant's motion for a required finding of not guilty and instructed the jury that it could consider the testimony substantively.
- Whether the supplemental instruction correctly stated that deliberate premeditation could be found if the defendant intended to kill someone in the same group as the actual victim.
- Whether the defendant was entitled to extraordinary relief under G. L. c. 278, § 33E.
Holdings
- Grand jury testimony of witnesses found to be feigning memory loss was properly admitted as substantive evidence even though the prosecutor introduced it by reading excerpts in a question-and-answer format.
- The defendant's failure to object when the grand jury testimony was introduced meant that any error was reviewed only for a substantial likelihood of a miscarriage of justice, and no such error occurred.
- The supplemental instruction correctly stated the law and was appropriate because the jury could find deliberate premeditation if the defendant intended to kill someone in the same group as the actual victim.
- The trial judge was not required to instruct the jury expressly that the supplemental instructions should be considered together with the original charge, and the omission did not warrant reversal.
- The defendant was not entitled to relief under § 33E because the record provided no basis to set aside or reduce the first-degree murder verdict or order a new trial.
Key quotations
“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” (slip op. at 7)
“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” (slip op. at 9)
“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.” (slip op. at 10-11)
Factual background
In April 2011, the defendant was among several men in an SUV that stopped near a group of people in Brockton, and he argued with one of the men outside before saying, "I'll go and come back." Approximately thirty-three minutes later, the victim, Jose Lobo, was shot in the temple near the same location. Surveillance video showed two individuals approaching and fleeing, a witness identified the defendant running from the scene with a revolver, and a baseball hat recovered near the scene contained DNA consistent with the defendant's profile.
Procedural history
Indictments were returned in the Superior Court Department on July 1, 2011. Following a June 2015 jury trial before Judge Richard J. Chin, the defendant was convicted. He appealed directly to the Massachusetts Supreme Judicial Court and also sought extraordinary relief under G. L. c. 278, § 33E.