Commonwealth v. Andrade

468 Mass. 543
CourtMassachusetts Supreme Judicial Court
DecidedJune 25, 2014
StatusPublished
Cited by46 cases

This text of 468 Mass. 543 (Commonwealth v. Andrade) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Andrade, 468 Mass. 543 (Mass. 2014).

Opinion

Ireland, C.J.

In April, 2012, a jury convicted the defendant, Seth Andrade, of murder in the first degree on the theory of deliberate premeditation, and of unlawful possession of a firearm. Represented by new counsel on appeal, the defendant argues error in (1) the judge’s questioning of members of the [544]*544jury venire concerning the effect, if any, of the absence of eyewitness testimony to the murder in the Commonwealth’s case; (2) the redirect examination of an immunized witness; and (3) the prosecutor’s closing argument. We affirm the defendant’s convictions and discern no basis to exercise our authority pursuant to G. L. c. 278, § 33E.

1. Background. Based on the Commonwealth’s evidence, the jury could have found the following facts. Shortly after 8:30 p.m., on January 20,2010, the victim was shot and killed in the backyard at 192 Purchase Street in New Bedford. The victim died as a result of two gunshot wounds to the head, with injuries to his skull and brain. One bullet entered the right side of the victim’s face about one-half inch to midline on his nose and traveled upwards, front to back and lodging underneath the parietal scalp of the right side of his head. The presence of stippling at the site of the entrance to that wound indicated that the victim had been shot at from an intermediate range, specifically, from a distance of eighteen to twenty-four inches. The second bullet entered the back of the victim’s head on the right side, traveled down through his skull, and exited on the left side of his face, just below his earlobe. The medical examiner could not determine which wound was first inflicted, but both wounds were fatal and would have caused a loss of consciousness within seconds.

At the time of the shooting, nearby residents heard loud bangs, sounding like “pops” or firecrackers. Two young men, appearing to be in their late teens, were seen leaving the area. One was wearing a brown canvas jacket and had a hood over his head; the other was wearing a hooded sweatshirt and a blue “puffy” down jacket.

The murder weapon was never found. Police, however, found a .380 caliber discharged cartridge casing and one spent projectile at the scene. A firearms identification expert gave his opinion, based on his microscopic examination of the spent projectile recovered at the scene and the projectile recovered at the victim’s autopsy, that the bullets had been fired from the same weapon.

At approximately 7:45 p.m. on the day of the murder, the victim had attempted to purchase marijuana from a family friend and his supplier. The victim was accompanied by three men [545]*545who wore hooded sweatshirts. The victim got the money for the drugs from one of these men. The money, however, was not real, and the supplier left with the drugs.

The victim and the men he had been with also left. They were picked up by a taxicab at 8:01 p.m. and were dropped off near the residence of Edwin Jorge.1 Shortly thereafter, at 8:20 p.m., a taxicab returned to the area near Edwin’s home and drove three men, including the victim, to Acushnet Avenue, which is behind Purchase Street.2 The telephone call to the taxicab company for this ride was made from the victim’s cellular telephone.

At about midnight, Edwin received a telephone call from his brother, Jordan, and went to the residence of Tyrone Solano. There he picked up Jordan, Solano, and the defendant, and drove them to his mother’s home in Fall River. When Edwin asked what was going on, the defendant said, “Drop it.”

About one week later, at Edwin’s mother’s home, Edwin had a conversation with the defendant about the victim’s death. The defendant stated that the victim “did niggers dirty, so he had to go.” The defendant told Edwin that, when the victim was looking at his telephone, he had “popped him,” and then “popped him again.” Edwin showed the jury how the defendant demonstrated the manner in which he shot the victim, pointing straight out for the first shot and then pointing downward for the second shot. The defendant told Edwin that they had disposed of all the evidence with the exception of his jacket, which he had left at Solano’s home.

Pursuant to a search warrant, police recovered the defendant’s brown jacket at Solano’s home. Subsequent forensic testing on the jacket revealed gunshot residue on the lower sleeves and cuffs of the jacket, as well as inside the right front jacket pocket.

[546]*546On February 2, after receiving the Miranda warnings, the defendant agreed to speak with police. The interview was recorded. The defendant initially denied that he was in the backyard of 192 Purchase Street when the victim was killed. Later, however, he admitted to being there and to wearing a brown jacket. He recounted that the victim had been trying to purchase marijuana from someone at that address when a person came into the yard and shot him. The defendant described the second shot as the “finishing” shot. When confronted with the officers’ assertion that gunshot residue had been found on his jacket, the defendant stated that he went shooting on occasion at a relative’s home in Dartmouth.3

The defendant did not testify. The theory of the defense was that someone else had shot the victim. He called one witness, a forensic chemist he had privately retained, who testified that the negative control used by the Commonwealth in its gunshot residue testing had been contaminated. The defense also attacked the credibility of Edwin, arguing that the jury should not “believe a thing [he] says.”

2. Jury voir dire. On the first day of trial, the prosecutor filed proposed individual voir dire questions concerning the effect of the absence of eyewitness testimony in the Commonwealth’s case. Because no objection was made, the judge asked each potential juror some variation of the following question:

“In this case, you may not hear any testimony from an eyewitness to the actual shooting of [the victim]. In other words, the Commonwealth’s case will be based largely on testimony and forensic evidence that’s often referred to as circumstantial evidence. Circumstantial evidence is proof of a chain of circumstances from which you can infer that a fact exists. Would the fact that you will not hear eyewitness testimony to the actual shooting in and of itself prevent you from finding the defendant guilty if the Commonwealth, through circumstantial evidence, is able to [547]*547convince you beyond a reasonable doubt of the defendant’s guilt?”4

All thirteen potential jurors who answered this question affirmatively or ambiguously were dismissed for cause.

The defendant contends that the question, its variants, and additional explanations to the jury venire denied him the right to a fair trial by an impartial jury as guaranteed by the Sixth Amendment to the United States Constitution and by art. 12 of the Massachusetts Declaration of Rights. He also argues that the questions invaded the province of the jury and had the effect of selecting a jury that was predisposed to convicting the defendant based on the evidence the Commonwealth would introduce at trial. We review to determine whether there was an abuse of discretion, see Commonwealth v. Gray, 465 Mass. 330, 338, cert. denied, 134 S. Ct.

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Bluebook (online)
468 Mass. 543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-andrade-mass-2014.