Commonwealth v. Brewer

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SJC-11819

COMMONWEALTH vs. ANDRE R. BREWER.

Plymouth. April 6, 2015. - July 24, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.

Homicide. Firearms. Witness, Immunity, Self-
incrimination. Constitutional Law, Privileges and
immunities, Self-incrimination, Fair trial. Due Process of
Law, Fair trial. Fair Trial. Practice, Criminal, Immunity
from prosecution, Fair trial, Argument by prosecutor.

Indictments found and returned in the Superior Court
Department on June 3, 2011.

The cases were tried before Richard J. Chin, J.

The Supreme Judicial Court granted an application for
direct appellate review.

Leslie W. O'Brien for the defendant.
Robert C. Thompson, Assistant District Attorney, for the
Commonwealth.
Anthony C. Biagioli, of the District of Columbia, & Kirsten
V. Mayer & Chauncey B. Wood, for Massachusetts Association of
Criminal Defense Lawyers, amicus curiae, submitted a brief.
 2

HINES, J. Based on a shooting that occurred after a party

ended in Brockton in 2007, a jury, in March, 2014, convicted the

defendant of murder in the second degree, unlawful possession of

a firearm, unlawful possession of a loaded firearm, and unlawful

possession of ammunition. Represented by new counsel on appeal,

the defendant argues (1) that the denial of immunity to two

defense witnesses violated his right to a fair trial and due

process of law, as well as his right to present a complete

defense; and (2) error in the prosecutor's closing argument. We

affirm the defendant's convictions.

Background. We recite the facts the jury could have found

based on the Commonwealth's case, see Commonwealth v. Latimore,

378 Mass. 671, 676-677 (1979), reserving certain details for our

discussion of the specific issues raised. The victim, Jose

Gurley, who was seventeen years of age, was shot sometime around

3 A.M. on July 21, 2007, on a street outside a vacant home in

Brockton where he had just attended a party. 1 He did not appear

to be the intended victim of the shooting. Rather, when

gunshots erupted, the victim was speaking with one of the young

men, Tyson Muzzy, with whom he had gone to the party. The

1
Some hours after being shot, the victim died at a
hospital. He had two gunshot wounds, one to the lower back and
another to his right forearm. He died as a result of a gunshot
wound to his torso with perforation of his spinal cord and
aorta.
 3

victim, Muzzy, Dina Willis, Markeen Starks, and Jamar Martin

earlier had traveled to the party together from Martin's home.

Before that, the victim had visited with his good friend Kashin

Nembhard and David Stewart.

Over fifty youths attended the party. A friend of the

victim's, Elijah Finch, went to the party with Ronald Woods. 2

There, Finch danced with his former girl friend, Sanovia Chabis,

who had gone to the party with her sister. Chabis also danced

with Matthew Engram, 3 who had come to the party with his friend

Ernst Verdieu.

After the party ended, many youths congregated on the

adjacent street. While Chabis was speaking with Engram, Finch

interrupted and an argument between the men ensued. Finch was

upset that Chabis was speaking with Engram. Chabis decided to

leave with her sister and headed to the vehicle in which they

had arrived. Engram went to the trunk of his automobile. He

testified that he opened his trunk to intimidate Finch, but he

intended only to change his sneakers. After he changed his

shoes, Engram closed the trunk and stepped onto the sidewalk.

2
Testimony varied regarding how and with whom witnesses
went to the party. Kashin Nembhard, for example, testified that
Elijah Finch drove him, the victim, and Markeen Starks to the
party.
3
Matthew Engram testified pursuant to a grant of immunity.
3
Matthew Engram testified pursuant to a grant of immunity.
 4

Concerning what next took place, there were different

accounts. Shots were heard, but the number of shots heard

varied among the witnesses. Chabis's sister heard five or six

gunshots. Chabis heard four gunshots. Muzzy recalled seven.

No one stated who the shooter was.

The police charged Engram with being an accessory after the

fact, suspecting him of helping the shooter escape by driving

him away. The charges later were nol prossed.

During their investigation, police learned from a witness,

Iesha Strickland, that the shots had come from Finch's

direction. Strickland reported that, after the victim's death,

Finch threatened her, struck her friends, and fired a gun at her

home. In response to these allegations and investigation

concerning them, police commenced charges against Finch, but

later dismissed them.

At trial, Engram testified that the defendant was the

shooter and that the following occurred. 4 Just before the

shooting, the defendant approached Engram and put a gun to his

hip and ribs, and told Engram to leave his "homey" alone. The

defendant checked to see whether Engram was armed, and then the

4
According to Engram, the shooter wore a white, blue, and
yellow striped shirt and jeans. He testified that, at a
subsequent time when he was in a house of correction, he
identified the defendant's photograph from an array, stating
that he was the shooter. Engram stated that the police
discarded the materials relating to this identification.
 5

two men agreed that they were "good." Engram turned to walk

away and heard "pops." He saw the defendant shoot the victim.

Engram fled in his automobile. Verdieu went with him, and they

gave a bystander named "Berbi" a ride. 5 During cross-

examination, Engram acknowledged that in October, 2012, he told

defense counsel that Nembhard had not been present at the scene

of the shooting.

Nembhard testified to the following. After the party,

Finch had an argument with a man named "Poka" (Nembhard did not

know Poka's real name). It was a "hood beef," meaning an

argument with another gang. Poka was in the same gang as

Engram, Verdieu and a person named "Grey." During the argument

between Finch and Poka, the victim yelled, "Ffrruupp," which,

Nembhard later told police, is an invitation to fight. Engram

was not involved. The defendant was standing near Engram.

Before the shooting, Poka said something to the defendant.

After Poka made a statement to the defendant, the defendant

walked through the crowd, pulled out a gun, and fired. People

ran away. 6 The defendant was wearing a black hat and T-shirt.

5
Berbick Bitton testified that Engram, whom he had never
met, gave him a ride immediately after the shooting. Bitton was
a friend of Ernst Verdieu's. Bitton had "chilled" with the
defendant previously. He did not see the defendant there that
night.
6
Kashin Nembhard did not go to police about the shooting
until he was arrested in November, 2010. When in custody,
 6

Woods, who had known the victim since junior high school,

testified that after the party he was standing outside talking

to the victim when the victim was shot. Before the shooting,

Finch had been arguing with the person who was the disc jockey

at the party. Another man, who was wearing a black shirt,

shorts, and shoes, was the shooter. The shooter came from

behind and said nothing to the victim or to him. At trial,

Woods made an in-court identification of the defendant as the

shooter. Earlier, after Nembhard had spoken with police, they

contacted Woods, who, in November, 2010, selected the

defendant's photograph from an array and identified him as the

shooter. Woods testified that the shooter fled the scene in a

white van and that he (Woods) tried to comfort the victim by

holding him. 7

The defendant did not testify. Defense counsel argued that

either Engram or Finch had killed the victim while shooting at

Nembhard selected from an array a photograph of the defendant as
the man who was the shooter. In exchange for his cooperation
and information provided to police regarding the shooting and
other cases, he received a reduced sentence in connection with
certain Federal court criminal charges. In his final charge,
the judge correctly instructed the jury in accordance with
Commonwealth v. Ciampa, 406 Mass. 257, 264-266 (1989). See
Commonwealth v. Andrade, 468 Mass. 543, 550-551 (2014).
7
The victim's mother testified that during the early
morning of July 21, 2007, Ronald Woods, Markeen Starks, and
Marcus Wyatt came to her home to inform her that her son had
been shot. Woods was covered in blood and was crying.
 7

each other. Defense counsel attacked the credibility of Engram,

Nembhard, and Woods.

Discussion. 1. Denial of immunity to defense witnesses.

The defendant contends that his State and Federal constitutional

rights to a fair trial and due process, as well as his right to

present a complete defense, were abridged when the trial judge

declined to grant immunity to two potential defense witnesses:

Verdieu and Stewart. After the Commonwealth had rested, defense

counsel indicated his intent to call these two witnesses at

trial, but through counsel, each asserted the privilege against

self-incrimination under the Fifth Amendment to the United

States Constitution. 8 After conducting in camera hearings

pursuant to Commonwealth v. Martin, 423 Mass. 496, 504 (1996),

from which no sealed hearing transcripts were provided to us,

see Pixley v. Commonwealth, 453 Mass. 827, 835 (2009), the judge

determined that each potential witness had a valid privilege and

8
The Fifth Amendment to the United Constitution provides,
in relevant part, that "[n]o person . . . shall be compelled in
any criminal case to be a witness against himself." Article 12
of the Massachusetts Declaration of Rights similarly provides
that "[n]o subject shall . . . be compelled to accuse, or
furnish evidence against himself," although we have found that
it provides "broader protection from self-incrimination" than
its Federal counterpart. See Pixley v. Commonwealth, 453 Mass.
827, 832 n.6 (2009).
 8

could not be compelled to testify. 9 Defense counsel objected,

stating that the prosecutor's selective grant of immunity 10

deprived him from presenting exculpatory evidence from these two

witnesses. Defense counsel provided an offer of proof. He

first explained that he had expected Verdieu to testify,

contrary to Engram's testimony, that before the shooting, the

defendant had not placed a gun to Engram's body and had not

stated to Engram to leave his "homey" alone. Defense counsel

further expected Verdieu to testify that he never saw the

defendant with a gun and had not seen the defendant shoot the

victim. Concerning Stewart, defense counsel expected him to

testify that Nembhard never went to the party and had stayed

with him instead of attending the party.

Recently, in Commonwealth v. Vacher, 469 Mass. 425, 437,

439-441 (2014), we rejected constitutional challenges to the

witness immunity statute, G. L. c. 233, §§ 20C-20E, that were

based on the fact that, as relevant here, an order granting

immunity to a trial witness may be issued only "at the request

9
The defendant does not challenge the judge's conclusion
regarding the assertions of the privilege, thus we have no need
for a sealed transcript of the proceedings.
10
Engram was the only prosecution witness who was granted
immunity at trial. There was no explanation in the record
concerning whether the prosecutor was asked to consider granting
immunity to any other potential witness or witnesses and, if so,
the reasons for choosing not to do so.
 9

of the attorney general or a district attorney," id. at 437,

quoting G. L. c. 233, § 20E (a). 11 We explained:

"Our jurisprudence has not vested criminal defendants
with expansive rights vis-à-vis the immunization of
witnesses. To the contrary, '[w]e have held, without
qualification, that a defendant "has no standing to argue
that the testimony of . . . purportedly immunized witnesses
[is] the product of improper grants of immunity,"'
reasoning that '[t]he privilege against self-incrimination
is a personal right of the witness, and one that the
witness is in a position to protect by his own
means.' Smith v. Commonwealth, 386 Mass. 345, 349 (1982),
citing Commonwealth v. Simpson, 370 Mass. 119, 121 (1976).
While a prospective defense witness's assertion of his
right under the Fifth Amendment . . . could affect a
defendant's ability to present his defense most
effectively, the compulsory process provisions of the
Federal and State Constitutions do not mandate a judicial
grant of immunity to such a witness as a matter of course.
See Commonwealth v. Curtis, 388 Mass. 637, 646 (1983),
S.C., 417 Mass. 619 (1994). Although we have left open the
possibility that 'unique circumstances' could require a
judge to grant a limited form of immunity to a defense
witness, see id., we have not been presented yet with such
a scenario. See [Pixley, 453 Mass. at 834 n.7]."

Vacher, supra at 438-439. We noted that "[o]ther courts have

recognized that such unique circumstances might emerge 'where

there exists prosecutorial misconduct arising from the

11
In Pixley, 453 Mass. at 835 n.8, we explained that
"[u]nder the Fifth Amendment, a witness may not be compelled to
testify unless the witness is granted use immunity, which
protects the witness from any use of his compelled testimony (or
evidence directly or indirectly derived from his testimony)
against him in a criminal case." In contrast, "when the
prosecution obtains statutory immunity for a witness, art. 12
requires that the immunity be transactional immunity, granting
immunity from prosecution for any offense 'to which compelled
testimony relates.'" Id., quoting Attorney Gen. v. Colleton,
387 Mass. 790, 795 & n.4 (1982).
 10

government's deliberate intent to distort the fact-finding

process" (quotation and citation omitted). Id. at 439, and

cases cited. As correctly noted by the defendant, most Federal

courts have taken this same position and, absent a showing of

prosecutorial misconduct, decline to grant immunity to a defense

witness. See Commonwealth v. Doherty, 394 Mass. 341, 344 n.4

(1985), and cases cited. See also United States v. Mackey, 117

F.3d 24, 27 (1st. Cir.), cert. denied, 522 U.S. 975 (1997)

(stating majority rule that Federal courts lack power to compel

witness immunity in face of good faith refusal by prosecutor),

and cases cited.

The defendant argues that prosecutorial misconduct need not

be the sole predicate for a judicial grant of immunity. In

support of his argument, he cites to Government of the Virgin

Islands v. Smith, 615 F.2d 964, 969-974 (3d Cir. 1980). This

case, however, has been overturned and thus offers no support

for the defendant's position. See United States v. Quinn, 728

F.3d 243, 252-253 (3d Cir. 2013), cert. denied, 134 S. Ct. 1872

(2014) (concluding that in absence of prosecutorial misconduct,

courts lack authority to grant use immunity to defense witness

and expressly overturning Smith, supra, decision, noting that

immunity is statutory creation within exclusive realm of

prosecution).
 11

In addition, the defendant cites to United States

v. Straub, 538 F.3d 1147, 1162 (9th Cir. 2008), in which the

United States Court of Appeals for the Ninth Circuit held that

"for a defendant to compel use immunity the defendant must show

that: (1) the defense witness's testimony was relevant; and (2)

either (a) the prosecution intentionally caused the defense

witness to invoke the Fifth Amendment right against self-

incrimination with the purpose of distorting the fact-finding

process; or (b) the prosecution granted immunity to a government

witness in order to obtain that witness's testimony, but denied

immunity to a defense witness whose testimony would have

directly contradicted that of the government witness, with the

effect of so distorting the fact-finding process that the

defendant was denied his due process right to a fundamentally

fair trial." In applying its conclusion, the court noted that

the denial of immunity to the defense witness had the effect of

distorting the fact-finding process because the testimony from

the one immunized witness was the sole evidence establishing the

elements of the crime. Id. at 1163. In this case, we cannot

say the same. Although Engram testified pursuant to a grant of

immunity and Nembhard testified pursuant to an agreement with

the United States Attorney, 12 there also was testimony from Woods

12
Nembhard hoped to receive a favorable sentencing
disposition in connection with certain Federal charges against
 12

that the defendant was the shooter. Thus, denial of immunity to

Verdieu and to Stewart to contradict some of the testimony of

Engram and Nembhard did not leave a prosecution that depended

only on evidence from an immunized witness and a witness

arguably seeking to curry favor with the prosecution.

On the facts of this case, a judicial grant of immunity to

Verdieu and to Stewart was not required under constitutional

principles and, as in Vacher, we find no basis to depart from

our established law on this subject. In addition, we find no

"unique circumstances" requiring a grant of judicial immunity to

Verdieu and to Stewart. The following observations inform our

decision.

As an initial matter, there has been no showing or argument

that the prosecutor's discretion to grant immunity only to

Engram was improperly motivated. In addition, concerning

Verdieu's expected testimony, it was relevant, no doubt, to

Engram's credibility insofar as it contradicted certain details

of what occurred before the victim was shot. Its exculpatory

nature, however, was unclear. Although Verdieu was expected to

say that he did not see the defendant with a gun and did not see

the defendant shoot the victim, these statements do not require

a conclusion that the defendant did not shoot the victim.

him by agreeing to cooperate in this case and in several others.
 13

See Commonwealth v. Smith, 456 Mass. 476, 482 (2010) (fact that

witness did not see defendant in area of shooting does not mean

that defendant did not shoot victim). It could have been that

Verdieu was not looking at the defendant when shots were fired.

Further, the proffer concerning Verdieu's testimony did not

indicate whether Verdieu even saw who shot the victim. Again,

he may have not seen the shooting at all. The proffer was

neither complete nor clear. We have stated that "if the

proffered testimony is found to be ambiguous, not clearly

exculpatory, cumulative or . . . relate[s] only to the

credibility of the government's witnesses," then judicial

immunity is not available. See Commonwealth v. Drew, 447 Mass.

635, 645 (2006), cert. denied, 550 U.S. 943 (2007),

quoting Commonwealth v. Doherty, 394 Mass. 341, 345 (1985).

These principles apply here.

These principles also apply in a slightly different way to

Stewart's proffered testimony. Stewart's expected testimony,

that Nembhard never went to the party, was cumulative of

Engram's testimony concerning his statements to defense counsel

made in October, 2012. In addition, Nembhard was not an

immunized witness 13 and the jury were correctly instructed to

13
In his application for direct appellate review, which we
granted, the defendant sought review only with regard to the
question of compelled judicial immunity for Verdieu. In his
brief here, the defendant now argues the issue of compelled
 14

examine his testimony with particular care. See note 6, supra.

See Vacher, 469 Mass. at 440-441 (judge's instructions

concerning factors impacting witness credibility preserved

defendant's right to fair trial in absence of compelled judicial

immunity). Last, as has been stated, the prosecution did not

satisfy the elements of its case based only on the testimony of

an immunized witness; rather, Woods also testified that the

defendant was the shooter. Defense counsel was able to

thoroughly cross-examine him (as well as Engram and Nembhard),

and the jury correctly were instructed that they could not

convict the defendant solely on the basis of Engram's testimony.

See id. at 440. On this record, the judge properly declined to

order immunity to Verdieu and to Stewart outside the prescribed

statutory scheme.

2. Prosecutor's closing argument. The defendant argues

that the prosecutor engaged in improper vouching and misstated

the evidence. Because defense counsel did not object, we review

the prosecutor's closing argument to determine whether there was

judicial immunity for David Stewart, asking that we extend the
principles that "prevent the prosecution from denying immunity
to a witness whose testimony directly contradicts that of an
immunized prosecution witness . . . to one whose testimony would
directly contradict that of a witness whom the prosecution has
rewarded with a drastically reduced sentence" (emphasis added).
The defendant cites no precedent where any court has made this
leap, compelling immunity to a defense witness who contradicts
the testimony of a prosecution witness other than an immunized
one, and we decline to do so now.
 15

error, and, if so, whether it created a substantial risk of a

miscarriage of justice. Commonwealth v. Smith, 460 Mass. 385,

398 (2011).

"While a prosecutor may not vouch for the truthfulness of a

witness's testimony, [Ciampa, 406 Mass. at 265], we consistently

have held that, where the credibility of a witness is an issue,

counsel may 'argue from the evidence why a witness should be

believed.' Commonwealth v. Raposa, 440 Mass. 684, 694-695

(2004)." Smith, 460 Mass. at 399. In context of the

prosecutor's entire argument in this case, we conclude that the

challenged isolated comment about Woods being a "standup guy"

falls into this latter category.

The prosecutor's statement that the jurors had been given

"no reason to doubt" Woods, did not, contrary to the defendant's

contention, misstate the evidence. The statement was proper

argument responsive to defense counsel's argument that Woods was

not a credible witness. See Commonwealth v. Chavis, 415 Mass.

703, 713 (1993) ("prosecutor may make a fair response to an

attack on the credibility of a government witness").

Last, the judge's careful and clear instructions concerning

the role of the closing arguments and how to determine the

credibility of witnesses adequately offset any semblance of

impropriety, were we to determine that one occurred.

See Commonwealth v. Mitchell, 428 Mass. 852, 857-858 (1999).
 16

Conclusion. For the foregoing reasons, the defendant's

convictions are affirmed.

So ordered.