Com. v. Silva-Santiago

• Decision Date: 15 May 2009
• Docket Number: No. SJC-10154.,SJC-10154.
• Citation: 453 Mass. 782,906 N.E.2d 299
• Parties: COMMONWEALTH v. Jesus SILVA-SANTIAGO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

906 N.E.2d 299

453 Mass. 782

COMMONWEALTH v. Jesus SILVA-SANTIAGO.

No. SJC-10154.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued February 6, 2009.

Decided May 15, 2009.

Jeffrey L. Baler, Medfield, for the defendant.

John E. Bradley, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, CORDY, BOTSFORD, & GANTS, JJ.

GANTS, J.

A jury convicted the defendant Jesus Silva-Santiago of murder in the first degree on the theory of extreme atrocity or cruelty.¹ Represented by new counsel on appeal, the defendant argues error in (1) the denial of his pretrial motion to suppress out-of-court photographic identifications; (2) the exclusion of evidence pertaining to the inadequacy of the police investigation; and (3) the judge's instructions to the jury. We reject the defendant's arguments, but conclude that he is entitled to reversal of his conviction and a new trial under G.L. c. 278, § 33E, because of misstatements of the evidence made by the prosecutor during his closing argument (to which the defendant's trial counsel objected) that were not harmless in the circumstances of this case.

Background. On Saturday, June 28, 2003, the victim, Eugene Monteiro, joined his friends McKenzie Bruneau, Raymond Jenkins, Thomas Johnson, and David Thomas for an evening of drinking. With Thomas driving, they first visited a liquor store in the Jamaica Plain section of Boston, where they purchased some beer. They then drove to a bar in Brockton, where they drank and played some pool. A short time later, they decided to leave and go to another bar in Brockton, Mike's Lounge, which was located on the corner of Montello Street and Lincoln Street (bar).

At about 11 P.M., the group parked behind the bar and walked to its main entrance. There were several people standing outside the entrance.² Bruneau, who was "kind of drunk," but alert "glanced" at a man who stood outside the entrance. Because Jenkins was underage, the men were refused entry into the bar. While the victim and his friends were standing on the sidewalk outside the bar, the man Bruneau had seen outside the bar entrance earlier said, "No niggers allowed."³ The victim responded, "What's your problem?" The man ran away and returned to confront the victim, who was near a fire hydrant. The victim asked the man if he had a "toast" (gun). The man lifted up his shirt, pulled out a handgun from his "waistline," and shot the victim.⁴

The victim ran as the man repeatedly shot at him, and fell on an adjacent street not far from the front door of the bar. The man fired nine shots; three hit the victim. Two of the shots hit the victim in the chest and abdomen; another shot both entered and exited through the victim's back.

After the first shot, Bruneau, Johnson, Jenkins, and Thomas ran in different directions. When the firing stopped, Bruneau, Johnson, and Jenkins returned to where the victim lay on the street. As Bruneau headed back to that area, he could hear sirens, and saw somebody running down an alley next to the bar. Bruneau observed that the person running down the alley, whose face he could not see, had on "white sneakers with a red check." He went over to the victim, who was alive and trying to breathe. He was bleeding from his chest and back.

Bruneau described the man he saw walking into the bar, whom he claimed was the shooter, as being "a little bit taller than [Bruneau⁵ and] light skinned.... He looked Spanish or Cape Verdean.... He had some type of ... red shirt, some red and white sneakers, all white with red checks on it [and] dark blue jeans...." The man wore a red headband and a long gold chain. According to Johnson, the shooter wore a red and white shirt, a red bandana, and red and white sneakers, and had short hair and a mustache. Jenkins recalled that the shooter wore a red headband, a red shirt, jeans, and a gold chain. A woman who was stopped at a red light on Montello Street observed part of the shooting. In a statement made to police two days later, she was unable to describe the shooter's face, but observed that he appeared to be black, slim, and about five feet ten inches tall; had short hair; and wore "baggy clothes;" that included "a red shirt" and "blue jeans."

At 11:30 P.M., officers of the Brockton police department received a dispatch call concerning shots fired outside the bar. Lieutenant Ken Williams and Sergeant Thomas Lafratta responded and, because the station was located only about two blocks from the bar, arrived within one minute. When they arrived, other officers were already at the scene. The victim was lying on the street and was unresponsive. The street was "fairly well lit," with illumination from multiple street lamps on the side of the street opposite the bar. The victim was transported to a nearby hospital, where he later died as a result of gunshot wounds to his chest and abdomen.⁶

Police officers secured the crime scene, including the bar. Officers were posted at the bar's entrance on Montello Street, and at another entrance on Lincoln Street, preventing anyone from leaving or entering. Near a fire hydrant in front of the bar, and extending along the side of the street, police recovered nine discharged nine millimeter cartridge casings. A ballistics expert testified that the discharged cartridge casings had been fired from a nine millimeter semiautomatic pistol. The weapon was not recovered. When the bar was secured, there were about forty-two persons inside, including the defendant.⁷ The defendant was wearing what appeared to be white sneakers and a short-sleeved red shirt with gray sleeves. On both sides of the shirt, from its neck, a thin white stripe extended to the cuff of each sleeve. On the back of the shirt, the number "72" appeared in black with white stitching. The numbers were large and easily visible to the eye. On the front of the shirt, the lettering "*ecko unltd." in navy blue embroidered letters appeared in the chest area, and above that, there was a depiction of a rhinoceros within an oval covered by plastic. The defendant was not wearing a gold chain, a headband, or a bandanna.

Detective Williams separately escorted Bruneau and Johnson inside the bar to see if either man could identify the shooter. Neither man was able to identify the shooter, even though only two men inside the bar wore red shirts. The testimony, however, sharply differed as to what happened during this attempted identification procedure.⁸

The patrons inside the bar were videotaped when they were permitted to leave. See note 7, supra. From that videotape, a photograph (that was admitted in evidence) was generated depicting the defendant as he then appeared, wearing the red shirt above described. The videotape reflects that the defendant, as he was leaving, was asked to raise his arms, and was frisked, apparently for weapons. There was no indication that he was carrying a weapon.

Tihani Pichardo, a fifteen year old patron of the bar that evening, testified that she and a girl friend (Christina Sabata) earlier had met with the defendant and two other friends of Sabata (one male, one female), went to a house party, and then went to the bar in Sabata's female friend's vehicle. Before the shooting, as she, Sabata, and one of the other young women stood in the doorway at the front of the bar, she saw the defendant and another man walk toward the parking lot. After some black males drove by, Pichardo, Sabata, and the other young woman went back inside the bar and went to the bathroom. When she left the bathroom and returned to the doorway of the bar, she saw "a whole bunch of people in a group in the parking lot." She heard arguing and commotion, saw the victim running to the other side of the street, heard gunshots, and walked back inside the bar. She did not see who was shooting, and did not see where the defendant was at the time of the shooting. When she returned inside, she smoked a cigarette in the bathroom, and then went to the bar to get a couple of drinks. She later saw the defendant inside at the side of the bar near the bathrooms.

Luis Ortiz, another patron of the bar, recounted that, minutes before the shooting, and after the victim and his friends had left the bar, three women and a man who was not the defendant went outside the bar. Ortiz had seen the defendant before the young women went outside and after the shooting, but not when the shots were fired.

On July 7, 2003, Trooper Diane Lilly, Detective Lieutenant Joseph Mason, and Trooper Robert Dateo of the Massachusetts State police, along with Detective Williams of the Brockton police department, went to the victim's mother's house to show Johnson and Bruneau an array containing eight photographs. Trooper Lilly explained to Johnson and Bruneau that they were going to be shown a photographic array. Then Trooper Lilly and Detective Williams met with Johnson in one room, while Lieutenant Mason and Trooper Dateo met (at the same time) in a different room with Bruneau. The same photographic array was shown to Johnson and Bruneau. Each man depicted in the array had similar features, including a mustache and short hair.

Trooper Lilly informed Johnson that he was going to be shown a series of eight photographs on one page that were numbered consecutively one through eight.⁹ Trooper Lilly asked Johnson to look at the photographs carefully, and to look at each photograph. She instructed Johnson to let her know if any of the photographs depicted the shooter. Trooper Lilly informed Johnson that he was not "obliged" to select a photograph. The following colloquy then occurred between the prosecutor and Trooper Lilly during her direct examination:

THE PROSECUTOR: "Could you tell us, please, what Thomas Johnson said or did when you showed him that array?"

THE WITNESS: "He looked at the array and he pointed to photograph number seven and said that that person was the most similar to the shooter that he saw that night. He said it was the same...