NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1251
COMMONWEALTH
vs.
ALEXIS SILVA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of murder
in the second degree (count 1), carrying a firearm without a
license (count 2), carrying a loaded firearm without a license
(count 3), and assault and battery by discharge of a firearm
(count 4). On appeal, the defendant first argues that law
enforcement witnesses gave improper lay opinion testimony
identifying him from surveillance video footage, as did the
prosecutor in his opening, and usurped the fact-finding role of
the jury. Second, the defendant argues that the Commonwealth
improperly questioned a witness on her invocation of her
privilege against self-incrimination under the Fifth Amendment
to the United States Constitution, which prejudiced the defendant. Third, he argues that the firearms convictions must
be vacated in light of Commonwealth v. Guardado, 491 Mass. 666,
693 (2023) (Guardado I), and Commonwealth v. Guardado, 493 Mass.
1, 4-12 (2023) (Guardado II). We vacate the convictions of
counts 2 and 3, and affirm the remaining convictions.
Background. The jury could have found the following facts,
reserving certain facts for later discussion. In the early
morning hours of November 11, 2018, the defendant, his
girlfriend (the girlfriend), and her friend (the friend) drove
toward the girlfriend's home after a night of going to bars and
drinking. The defendant drove his white Lexus, and the friend
drove the girlfriend in the friend's grey-colored Lexus. The
defendant had no passengers. The cars made one brief stop along
the way, at a gasoline station, but the defendant did not take
on any passengers.
Near the girlfriend's home, the defendant and the friend
stopped side-by-side on a residential street and discussed
whether to go to a casino. As they talked, two cars pulled up
behind them -- one driven by the victim. The victim "beeped"
his horn, and the friend and the defendant pulled out of the way
to let the cars pass. The victim sped by, which angered the
defendant.
The victim parked outside his house farther up the street
and remained in his car. The defendant drove past the victim's
2 parked car, turned around, and passed the victim's car again.
The defendant pulled alongside the friend's car, and after a
brief conversation, the friend drove away. The defendant again
drove alongside the victim, who was then getting laundry out of
the back seat, and stopped. Without getting out of his car, the
defendant shot the victim twice and drove away. The gunshot
wounds proved fatal.
Investigators canvassed the surrounding area for
surveillance video footage and obtained video recordings that
captured the shooting and the subsequent flight of the shooter's
light-colored sedan. After viewing the video recordings,
investigators determined that the shooter's vehicle was a white
Lexus and identified the license plate number. A Registry of
Motor Vehicles search of the car's registration revealed that
the white Lexus was registered to the defendant.
On the morning after the shooting, a State police trooper
in an unmarked car set up surveillance on a house (subsequently
determined to be the defendant's home) and found the white Lexus
parked outside the house.1 The trooper saw a black sports
utility vehicle (SUV), driven by a woman and carrying a male
passenger, arrive outside the house. The car drove away, but
moments later, the trooper saw the male passenger walk toward
1 This was the same house that the shooter's light-colored sedan drove to immediately after the shooting.
3 him and into the house. The man re-emerged from the house
having changed his clothes. He opened the front passenger's
side door of the white Lexus and began searching through the car
as if looking for something. The trooper recorded a brief video
recording of the man, which was later admitted in to evidence at
trial. Police subsequently obtained a search warrant for the
white Lexus and found gunshot residue on the interior of the
car.
At trial, the trooper identified the defendant as the man
he saw while conducting surveillance. He subsequently
identified the defendant in surveillance video recordings
recorded during his surveillance.
Discussion. 1. Identification from surveillance footage.
First, the defendant argues that it was improper for the trooper
and the prosecutor to identify the defendant from surveillance
footage recorded after the shooting. Further, the defendant
argues that it was improper for two law enforcement witnesses to
"narrate" a compilation video.
a. Identification by the trooper. As a threshold matter,
the parties disagree on which standard of review applies.
Before trial, the judge granted the defendant's motion in
limine, which sought to "exclude opinion testimony by detectives
as to what is presented on video surveillance evidence." The
judge allowed the motion, endorsing in the margin that
4 "[o]pinion evidence about contents of video may not be offered."
The Commonwealth argues that the trooper's testimony was not
opinion testimony and was not embraced by the judge's ruling on
the motion in limine. This would mean that the defendant's
failure to object to the testimony at trial renders the error
unpreserved and would require us to review for a substantial
risk of a miscarriage of justice. See Commonwealth v.
Desiderio, 491 Mass. 809, 815 (2023). The defendant contends,
however, that the trooper gave lay opinion testimony, that it
violated the judge's ruling on the motion in limine, and that
the motion in limine preserved the error for appeal. See
Commonwealth v. Grady, 474 Mass. 715, 719 (2016). Because we
conclude infra that there was no error, we need not address
whether the defendant's failure to object to the claimed
violations of the judge's ruling in his favor at the time of the
testimony means the claimed errors are unpreserved. This issue
was not addressed in Grady, supra.
"Making a determination of the identity of a person from a
photograph or video image is an expression of an opinion."
Commonwealth v. Wardsworth, 482 Mass. 454, 475 (2019), quoting
Commonwealth v. Pina, 481 Mass. 413, 429 (2019). Lay opinion
testimony identifying a witness in a photograph or video
recording is only admissible when the witness possesses
"sufficiently relevant familiarity with the defendant that the
5 jury cannot also possess." Wardsworth, supra, citing
Commonwealth v. Vacher, 469 Mass. 425, 441 (2014). In the
absence of "sufficiently relevant familiarity," the jury must be
able to draw their own conclusions regarding the identity of a
person shown on video footage, and lay opinion testimony may not
be offered. Id.
The trooper's testimony would be lay opinion testimony per
Wardsworth if the trooper made his identification from a video
recording. See Wardsworth, 482 Mass. at 474-475 (improper lay
opinion of police officers who watched surveillance video
recording depicting two persons and identified one of them as
defendant based on clothing and physical features where police
officers were not percipient witnesses to events captured on
video recording). But the trooper personally saw the defendant
outside the defendant's house. After viewing a surveillance
photograph, the trooper testified, "That's the individual that I
observed" both in a vehicle and on foot near the house. The
trooper then identified the defendant in the court room as the
man he personally saw during his surveillance.
Subsequently, the trooper did identify the defendant in
surveillance images, including a video recording that the
trooper took during his surveillance, but these identifications
likewise derived from his personal observations. That the
trooper's unmarked surveillance vehicle is visible in one of the
6 video recordings underscores that the trooper personally saw the
events captured on surveillance video footage and photographs.
Since the trooper did not testify as to the identity of a person
"from a photograph or video image," he did not give opinion
testimony in violation of the order on the motion in limine
(emphasis added; citation omitted). Wardsworth, 482 Mass. at
475. There was no error.
The line of cases that the defendant cites, which stands
for the rule that a witness must possess "sufficiently relevant
familiarity" with the defendant to identify the defendant from a
photograph or video recording, does not support his claims of
error. See Wardsworth, 482 Mass. at 475; Pina, 481 Mass. at
429; Commonwealth v. Vacher, 469 Mass. 425, 441-442 (2014);
Commonwealth v. Austin, 421 Mass. 357, 366 (1995); Commonwealth
v. Vitello, 376 Mass. 426, 460 (1978); Commonwealth v. Pleas, 49
Mass. App. Ct. 321, 326-327 (1999); Commonwealth v. Anderson, 19
Mass. App. Ct. 968, 969 (1985); United States v. Vazquez-Rivera,
665 F.3d 351, 361 (1st Cir. 2011); United States v. Meises, 645
F.3d 5, 16 (1st Cir. 2011); United States v. Jadlowe, 628 F.3d
1, 24 (1st Cir. 2010); United States v. Garcia-Ortiz, 528 F.3d
74, 80 (1st Cir. 2008). These cases involve fact patterns where
a law enforcement officer did not personally witness the events
captured on video footage yet assisted the jury in identifying
the defendant due to preexisting familiarity with the defendant.
7 See Wardsworth, 482 Mass. at 474-476 (testimony from officers,
including those who stopped defendant, that defendant resembled
person shown on surveillance video recording was improper where
officers did not personally perceive events captured on video
surveillance and lacked sufficient familiarity); Commonwealth v.
Vacher, 469 Mass. 425, 441-442 (2014) (error to admit lay
opinion testimony from non-eyewitness detective who lacked
special familiarity); Commonwealth v. Pleas, 49 Mass. App. Ct.
321, 326-328 (2000) (officer with "sufficiently relevant
familiarity" could identify defendant even though he was not
eyewitness to events captured on videotape); Commonwealth v.
Anderson, 19 Mass. App. Ct. 968, 969 (1985) (error to admit non-
eyewitness identification of defendant as no "necessary
conditions" justified admission).
Here, the trooper personally saw the defendant
contemporaneously with the surveillance footage. He was
permitted to testify to his observations; to the extent his
testimony about surveillance images was lay opinion testimony,
he had sufficient personal familiarity with the defendant's
appearance to do so.2 We discern no error.
2 The defendant does not seek relief under Commonwealth v. Crayton, 470 Mass. 228, 241-244 (2014), or Commonwealth v. Collins, 470 Mass. 255, 260-266 (2014), as the trooper was not an eyewitness to the shooting itself.
8 b. The prosecutor's remarks in opening. The defendant
assigns error to the prosecutor's opening statement:
specifically that he told the jury that "you're going to see
that approximately five minutes after the shooting . . . this
defendant comes driving in, alone, still being the only person
in that car, pull[s] up to [his house], get[s] out of that,
[and] hustle[s] inside," and then played the corresponding video
clip for the jury without commentary. The defendant contends
that the prosecutor impermissibly identified the defendant in
the video recording, and that by "fronting" the video recording
with the impermissible identification, the prosecutor "risked
creating a cognitive bias," Wardsworth, 482 Mass. at 477.
We review this issue for a substantial risk of a
miscarriage of justice, since there was no objection at trial.
As above, we discern no error. "The proper function of an
opening is to outline in a general way the nature of the case
which the counsel expects to be able to prove or support by
evidence." Commonwealth v. Kapaia, 490 Mass. 787, 794 (2022),
quoting Commonwealth v. Fazio, 375 Mass. 451, 454 (1978). Here,
that occurred. The evidence at trial supported the prosecutor's
opening statement. The friend testified that the defendant was
alone in the white Lexus and drove on the victim's street, the
location of the shooting, immediately before the shooting.
Surveillance video footage captured the shooting, which also
9 showed the white Lexus's license plate. The trooper's
identification of the defendant further strengthened the
Commonwealth's evidence of identification. The prosecutor's
comments fairly represented what he "expect[ed] the evidence to
prove." Commonwealth v. Simpson, 434 Mass. 570, 584 (2001).
The defendant counters this by arguing that no trial
witness identified the defendant from the video recording that
the prosecutor played in opening. The video recording showed a
white Lexus arriving at the defendant's home less than five
minutes after the fatal shooting. The driver got out of the car
and ran inside the house. At trial, the friend testified that
the defendant was alone in the white Lexus moments before the
shooting, when the defendant pulled alongside the friend's car
and they briefly spoke. As the prosecutor argued in closing,
the jury could infer that, because the defendant was alone in
the car at the time of the shooting, and his drive home was
rapid and brief (and partially captured on composite
surveillance video footage), it was impossible for him to have
"let out a phantom passenger" en route. The circumstantial
evidence presented at trial supported the prosecutor's framing
of the video recording during his opening statement.
Although the prosecutor arguably "primed" the jury to
identify the defendant in the video recording, or implicitly
asked them to infer that the video recording showed the
10 defendant, we do not discern a substantial risk of a miscarriage
of justice. See Wardsworth, 482 Mass. at 477 (witness primed
jury to identify defendant in videotape by testifying before
videotape played that "figure" they were about to see on
videotape resembled defendant). In Wardsworth, the Supreme
Judicial Court concluded that the prejudicial effect of
"priming" testimony outweighed its probative value. Wardsworth,
supra. Here, in contrast, the prosecutor identified the
defendant in a video recording during his opening statement, not
during witness testimony. The judge also instructed the jury
that opening statements are not evidence. "Any possible
prejudice was cured by the judge's instruction that opening
statements are not evidence." Commonwealth v. Deloney, 59 Mass.
App. Ct. 47, 51 (2003), citing Commonwealth v. Simpson, 434
Mass. 570, 584 (2001). Further, as explained above, the
Commonwealth's strong evidence of identification further
mitigated any risk of a miscarriage of justice.
c. Interpretive testimony. The defendant also argues that
two law enforcement witnesses improperly "narrated" a
compilation video recording showing the defendant's car driving
away from the crime scene. The defendant alleges that it was
error to allow the law enforcement witnesses to "narrate" what
was happening on the video recording, rather than letting the
jury draw its own conclusions. Since the defendant did not
11 object at trial, we review for a substantial risk of a
miscarriage of justice. Commonwealth v. Brum, 492 Mass. 581,
587 (2023).
Law enforcement witnesses may provide "interpretive
testimony" when the testimony is helpful to the jury in
evaluating the evidence and understanding the time sequence of
composite video recordings. Commonwealth v. Barbosa, 477 Mass.
658, 673 (2017). For example, in Barbosa, an investigator
played a compilation of video footage side-by-side by global
positioning system (GPS) data to explain to the jury the
significance of a time discrepancy between the two. Id. This
testimony was properly admitted because it assisted the jury in
understanding and evaluating the evidence. Id. at 673-674.
Here, the law enforcement witnesses gave interpretive
testimony consistent with Barbosa. One witness collected the
surveillance video recordings and testified to the sequence in
which he gathered them. The other witness explained the time
sequence between the video recordings. As in Barbosa, their
interpretive testimony "properly assisted the jury in evaluating
the evidence." Barbosa, 477 Mass. at 673.
The defendant's reliance on Wardsworth, 482 Mass. at 475-
477, to the contrary is mistaken. Wardsworth did not involve
interpretive testimony or testimony regarding video recording
compilations. Rather, the issue in Wardsworth involved police
12 officers giving lay opinion testimony concerning the identity of
persons captured on surveillance video footage, who the officers
did not personally surveil. See Wardsworth, supra at 474-475.
Here, the two law enforcement witnesses did not identify the
defendant from the video footage. There was no error.
2. The prosecutor's questioning regarding the Fifth
Amendment. At trial, the Commonwealth called the girlfriend as
a witness. Prior to taking the stand, the girlfriend consulted
with a court-appointed attorney, who told the judge that the
girlfriend was refusing to testify by asserting her Fifth
Amendment privilege against self-incrimination. The
Commonwealth petitioned for a grant of immunity, which the judge
allowed. The girlfriend subsequently testified that due either
to intoxication or the passage of time, she could not remember
anything related to the shooting. Seeking to impeach the
girlfriend's credibility, the prosecutor questioned her as
follows:
Q: "Now, ma'am, you came in this morning, you recall as a witness, true?"
A: "I was."
Q: "And you indicated -- you had indicated that you were not going to testify by asserting, which is your right and privilege."
A: "Uh-huh. Uh-huh."
Q: "Your Fifth Amendment."
13 Defense counsel: "Objection."
The judge: "Overruled. You can -- you can inquire."
Q: "Isn't that right?"
A: "Yes."
Q: "Okay. And you have the right under the Fifth Amendment or federal constitution also, under Article 12 of our state constitution to assert that. You understand that?"
A: "I don't honestly understand any of it."
Q: "Okay. . . . But you asserted your privilege."
A: "I did."
Q: "Is that right?"
A: "Yeah."
Q: "Which means we could not force you to testify, true?"
A: "I guess."
Q: "And so we actually had to give you a grant of immunity."
Defense counsel: "Objection. . . ."
The judge: "It is overruled. . . ."
Q: "You understand you're testifying now under a grant of immunity, true?"
Although the prosecutor questioned the girlfriend's credibility
in his closing statement, he did not refer to her invocation of
the Fifth Amendment.
14 At the outset, we note briefly that the prosecutor's
inquiry into the grant of immunity was proper and we discern no
error therein. See Commonwealth v. Troche, 493 Mass. 34, 52
(2023) ("A witness who has received immunity may be questioned
about the immunity for impeachment purposes"). As for the
inquiry into the witness's invocation of her Fifth Amendment
privilege against self-incrimination, the Commonwealth concedes
that it was improper for the prosecutor to develop this line of
impeachment. See id. at 51-52 (improper for prosecutor to
elicit testimony regarding witness's earlier invocation of Fifth
Amendment to impeach witness's credibility). The Commonwealth
maintains, however, that the error was not prejudicial and does
not require reversal. See Commonwealth v. Fisher, 433 Mass.
340, 350 (2001) ("reversal is not required in every case where
the jury hear a witness assert some privilege or refuse to
testify"). Because the defendant objected at trial, we review
for prejudicial error. Commonwealth v. Tavares, 482 Mass. 694,
712 (2019).
"[W]hen a witness refuses to answer questions in front of
the jury, '[t]he inquiry is (1) whether the prosecutor has so
unfairly exploited the matter as to constitute prosecutorial
misconduct, and (2) whether inferences from the witness's
refusal to answer may have added critical weight to the
prosecution's case.'" Fisher, 433 Mass. at 350, quoting
15 Commonwealth v. Kane, 388 Mass. 128, 138 (1983). See Namet v.
United States, 373 U.S. 179, 186-189 (1963).
A prosecutor "unfairly exploit[s]" an invocation of a
privilege when the prosecutor "question[s] a material witness in
order to provoke a claim of privilege with a deliberate design
to raise improper inferences in the minds of the jury." Fisher,
433 Mass. at 350. Although "the jury is not entitled to draw
any inferences from the decision of a witness to exercise [her]
constitutional privilege," Commonwealth v. Hesketh, 386 Mass.
153, 157 (1982), citing Bowles v. United States, 439 F.2d 536,
541 (D.C. Cir. 1970), the jury may draw other inferences from
the remainder of the witness's testimony.
Here the prosecutor did not unfairly exploit the
girlfriend's invocation of the Fifth Amendment such that he
committed prosecutorial misconduct. What was damaging to the
defense was not hearing that the girlfriend invoked the
privilege, but rather the inferences that the jury could have
fairly drawn from her testimony. The girlfriend's testimony was
evasive and inconsistent. The jury could have reasonably
inferred that the girlfriend was feigning memory loss and
testifying inconsistently to protect the defendant. See
Commonwealth v. Almeida, 452 Mass. 601, 608 (2008) ("[The
witness's] memory lapses were additional fodder for impeaching
her credibility, and defense counsel so used them in his closing
16 argument"); Commonwealth v. Frank, 433 Mass. 185, 193-194 (2001)
("We do not consider the prosecutor's cross-examination of the
defendant as to his loss of memory on the night of the murder,
and what was said about that evidence by the prosecutor in his
closing, as inappropriate or unfair"). This was the inference
that the prosecutor tried to elicit, not any improper, and sole,
inference regarding the Fifth Amendment.
Secondly, the questions regarding the invocation of the
Fifth Amendment did not add critical weight to the
Commonwealth's case. The prosecutor asked the girlfriend very
few questions that referred to the Fifth Amendment and he did
not address her invocation of the privilege in his closing
argument. See Kane, 388 Mass. at 138 (no reversal where
prosecutor asked only one question that witness refused to
answer, prosecutor did not return to issue in his closing
argument, and prosecution did not "consciously [seek] to build
its case out of the inferences arising from [the witness's]
silence"). When he did refer to the girlfriend's testimony in
closing, the prosecutor "remain[ed] within the bounds of the
evidence and the fair inferences from the evidence."
Commonwealth v. Pettie, 363 Mass. 836, 840 (1973). First, he
argued that the girlfriend had identified the defendant
"reluctantly" from a photograph from surveillance video footage
outside the last bar they visited. Second, he argued that the
17 girlfriend claimed to be drunk on the night of the shooting and
could not remember anything. We cannot conclude that the
improper questions added critical weight to the Commonwealth's
case, where the prosecutor asked minimal questions about the
Fifth Amendment privilege and did not press the issue in closing
argument.
The cases cited by the defendant to the contrary are
unavailing. This case is unlike Richardson v. State, 246 So. 2d
771, 777 (Fla. 1971), in which the prosecution called an alleged
accomplice who it knew would invoke his Fifth Amendment
privilege against self-incrimination to draw an inference that
"not only was [the accomplice] guilty, but also the
[defendant]." This case also does not resemble United States v.
Tomaiolo, 249 F.2d 683, 690-695 (2nd Cir. 1957), which involved
the cumulative effect of improper cross-examination by the
defendant's brother regarding prior invocation of the Fifth
Amendment privilege before the grand jury along with other
errors resulting in a fundamentally unfair trial. Nor does it
resemble Grunewald v. United States, 353 U.S. 391, 415-424
(1957), where it was improper for the prosecutor to elicit on
cross-examination that a defendant invoked his privilege against
self-incrimination before grand jury to similar questions he
testified to at trial, primarily because invocation was not
inconsistent with the defendant's trial testimony claiming
18 innocence. Where, as here, the prosecutor did not unfairly
exploit the matter, and it did not add critical weight to the
prosecution's case, see Fisher, 433 Mass. at 350, we cannot
conclude that the defendant's trial was unfair in this regard,
let alone fundamentally unfair.
3. The defendant's firearms convictions. The parties
agree that the defendant's convictions of carrying a firearm
without a license (count 2) and carrying a loaded firearm
without a license (count 3) must be vacated under Guardado I,
491 Mass. at 668. In Guardado I, the Supreme Judicial Court
held that "[b]ecause possession of a firearm in public is
constitutionally protected conduct [see New York State Rifle &
Pistol Ass'n v. Bruen, 597 U.S. 1, 8-12 (2022)], in order to
convict a defendant of unlawful possession of a firearm, due
process requires the Commonwealth prove beyond a reasonable
doubt that a defendant did not have a valid firearms license."
Guardado I, supra at 668. This holding applies "to those cases
that were active or pending on direct review as of the date of
the issuance of [Bruen]." Guardado I, supra at 693. Bruen was
decided on June 23, 2022. Bruen, supra at 1. In this case,
jury empanelment began on July 11, 2022, and the trial began on
July 13, 2022. Because this case was "active . . . as of the
date of the issuance of [Bruen]," Guardado I, supra, and the
Commonwealth did not introduce evidence of the defendant's lack
19 of licensure under then-prevailing law, we vacate the judgments
on counts 2 and 3.
In the briefing, and at oral argument, the parties disagree
on whether the defendant may be retried on these counts.
However, this precise question was decided by the Supreme
Judicial Court in Commonwealth v. Crowder, 495 Mass. 552, 559
(2025), which was pending at the time of briefing and oral
argument. In Crowder, id., the Supreme Judicial Court concluded
that "a new trial is the proper remedy for defendants who were
convicted under G. L. c. 269, § 10 (a), after the Supreme Court
decided Bruen but before [the Supreme Judicial Court] decided
Guardado I," as here. Thus, the Commonwealth may retry the
defendant on counts 2 and 3 if it so chooses.
Conclusion. The judgments on counts 1 and 4 are affirmed.
The judgments on counts 2 and 3 are vacated, and the verdicts
are set aside.
So ordered.
By the Court (Henry, Sacks & Singh, JJ.3),
Clerk
Entered: July 8, 2025.
3 The panelists are listed in order of seniority.