Commonwealth v. DePina

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SJC-11794
SJC-11932

COMMONWEALTH vs. ESAU DePINA.
COMMONWEALTH vs. ISAIAH MONTEIRO.

Plymouth. November 10, 2016. - March 13, 2017.

Present: Gants, C.J., Lenk, Hines, & Lowy, JJ.

Homicide. Firearms. Evidence, Testimony before grand jury,
Hearsay, Admission by silence, Statement of codefendant,
Joint venturer, Prior misconduct, Immunized witness, Third-
party culprit, Expert opinion. Constitutional Law,
Confrontation of witnesses. Joint Enterprise. Practice,
Criminal, Capital case, Confrontation of witnesses,
Hearsay, Conduct of prosecutor, Opening statement,
Instructions to jury, Severance, Trial of defendants
together.

Indictments found and returned in the Superior Court
Department on November 10, 2010.

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

Rosemary Curran Scapicchio for Esau DePina.
Stephen Neyman for Isaiah Monteiro.
Audrey Anderson, Assistant District Attorney, for the
Commonwealth.
 2

LENK, J. After a jury trial in the Superior Court, the

defendants, Isaiah Monteiro and Esau DePina, were each found

guilty of murder in the first degree on a theory of deliberate

premeditation, as well as of related offenses, in the shooting

death of the victim, Anthony Hamilton, on November 16, 2009.1 In

this direct appeal, they challenge the substantive admission of

a witness's grand jury testimony, various statements in that

testimony they claim are independently inadmissible, certain

portions of the prosecutor's opening statement, the jury

instructions on immunized witness testimony, and the denial of

their motions to sever; they also raise various evidentiary

issues. In addition, both defendants seek relief under G. L.

c. 278, § 33E. We discern no error warranting reversal, and,

having carefully reviewed the record, see no reason to reduce or

set aside the verdicts under G. L. c. 278, § 33E. Accordingly,

we affirm the defendants' convictions.

1. Background and proceedings. a. Facts. We recite the

facts that the jury could have found, reserving certain details

for later discussion. On November 16, 2009, at approximately

1
Esau DePina also was convicted of four charges of armed
assault with the intent to murder, unlawful possession of a
firearm, unlawful possession of ammunition without a firearm
identification card, and discharge of a firearm within 500 feet
of a building. Isaiah Monteiro also was convicted of unlawful
possession of a firearm and unlawful possession of ammunition,
and acquitted of four charges of assault with intent to murder
and one charge of discharging a firearm within 500 feet of a
building.
 3

1 P.M., the victim was with several of his friends on the front

porch of a house on Johnson Court in Brockton. A man approached

on foot and shot him. Witnesses near the scene -- neighbors, a

carpenter, and the driver of a passing vehicle -- described

hearing at least three gunshots and seeing a man running,

climbing through a hole in a fence, and getting into a waiting

vehicle. None of the witnesses was able to provide more than a

general description of that individual, whom most described as a

relatively dark-skinned male in a gray hooded sweatshirt.

No bullets were recovered from the victim's body, but

fifteen cartridges, eight spent shells, and three lead fragments

were found at the scene. A State police ballistics expert

determined that all of the shots were fired by the same gun,

likely a .40 caliber semiautomatic pistol, but were unable to

identify a specific weapon or manufacturer. Forensic examiners

also took cast impressions of four partial footprints found near

the location where the fleeing man had climbed through a fence,

but investigators were unable to determine the precise size or

brand of the shoe that made the impression.

With few leads, there was little progress in the

investigation for several months. In the summer of 2010, police

spoke with Licea DaSilva, Monteiro's girl friend at the time of

the shooting. Police also spoke with Kevin Dossanto, Monteiro's

cousin. From their statements, police learned that Monteiro had
 4

been "jumped" by the victim and the victim's brother some time

before the shooting. They also learned that Monteiro and DePina

had spent the weekend before the shooting at a hotel in

Brockton, with DaSilva and others. DaSilva, who had been

consuming alcohol and drugs, saw Monteiro with a handgun and

"shells" in the room.

On the following Monday morning, Monteiro and DaSilva drove

to the school she attended. DaSilva gave Monteiro permission to

use her vehicle for the rest of the day, and asked him to bring

her lunch. Dossanto later went with Monteiro to the hotel and

to deliver lunch to DaSilva. En route, they picked up DePina.

When they dropped her lunch off at school, DaSilva noticed that

DePina was wearing a gray hooded sweatshirt, which she thought

was strange given the weather. The three men then continued

"joy riding" around Brockton, while listening to music and

smoking marijuana.

At some point, Dossanto noticed that they had entered the

north side of Brockton. This was a part of the city they

generally avoided because of a "beef" between residents who grew

up on the north side and those, like Dossanto, Monteiro, and

DePina, who grew up on the south side. When Dossanto asked why

they were on the north side, Monteiro told him not to worry

about it.
 5

As they were driving near Johnson Court, Monteiro pointed

out a group of people standing on the street. After passing

Johnson Court, Monteiro pulled over and DePina got out of the

vehicle. Less than one minute later, Dossanto heard multiple

gunshots. DePina returned to the vehicle almost immediately

thereafter and said, "I think I got him." Monteiro said "are

you sure" or "all right." DePina replied that they had "to get

the hell out" of the area, and Monteiro drove to a mutual

friend's house. When Dossanto asked what had happened, Monteiro

replied that "shit popped off," which Dossanto understood to

mean that someone had been shot. When he attempted to ask more

about it, Monteiro told him to "[s]top acting like a bitch."

Later that day, Monteiro and DePina returned to pick up

DaSilva at her school. Soon after getting into the vehicle,

DaSilva received a telephone call from her sister, Anita

Rodriguez, telling her of the shooting and the victim's death,2

and asking to be picked up at their house near Johnson Court.

DePina and Monteiro said that they did not want to go to the

north side of town, and particularly did not want to go near

Johnson Court because they had a "beef" with people in that

area, but ultimately did go with DaSilva to get her sister. At

her sister's urging, DaSilva then drove past the scene of the

2
DaSilva, who was from the north side of Brockton, and the
victim were friends.
 6

shooting. The defendants appeared nervous and DaSilva's sister

asked them, "[I]f you didn't do it, what's the big deal?," to

which neither responded.3

b. Pretrial proceedings. Prior to trial, the defendants

filed a number of motions concerning the anticipated evidence at

trial. While some were allowed, many were denied. Among those

denied were motions to sever, to exclude testimony that DaSilva

had seen Monteiro with a gun the weekend before the shooting, to

introduce testimony concerning a violent altercation between the

victim and an unknown individual shortly before his death, and

to admit testimony from an individual who had been planning to

purchase heroin from the victim later on the day he was killed.

After the jury were empanelled but before opening

statements, DaSilva, whom the Commonwealth had summonsed to

testify, asserted her right to remain silent under the Fifth

Amendment to the United States Constitution and art. 12 of the

Massachusetts Declaration of Rights. Appointed counsel

maintained, among other things, that inconsistencies between

DaSilva's grand jury testimony and the testimony she intended to

give at trial would expose her to perjury charges. The judge

held an in camera hearing on the validity of this claim (Martin

hearing). See Commonwealth v. Martin, 423 Mass. 496, 504

3
It was not clear whether Rodriguez's question was directed
at one or both of the defendants.
 7

(1996). At the hearing, DaSilva spoke freely; among other

things, she mentioned her fear of testifying, and she claimed

that police coerced her into falsely telling the grand jury that

she had seen Monteiro with a gun the weekend before the killing.

On this basis, the judge determined that DaSilva had asserted a

valid claim under the Fifth Amendment as, were she to testify to

the contrary, she "necessarily" would admit to perjury. The

Commonwealth then obtained a grant of immunity and an order that

DaSilva testify at trial. Thereafter, and before opening

statements were made, DaSilva's counsel said that she was

willing to do so.

c. Proceedings at trial. The prosecutor's opening

statement focused largely on the evidence that DaSilva and

Dossanto had provided to the grand jury and to which it was

expected they would testify at trial. In addition to key

testimony from the two, one of whom proved to be uncooperative,

a series of witnesses testified to hearing gun shots and seeing

a man running, climbing through a fence, and entering a vehicle

around the time of the shooting. Investigating officers

testified to their efforts to obtain and examine physical

evidence, largely consisting of the inconclusive cartridges,

shells, and footprints.

Dossanto was the primary source of information concerning

the events on the day of the shooting. Among other things, he
 8

testified that he had been in the vehicle with Monteiro and

DePina on that day, with Monteiro driving and DePina a

passenger. The group drove around town, eventually arriving at

Johnson Court, where Monteiro pointed out a group of people, and

parked the vehicle. DePina got out and disappeared from view,

and Dossanto then heard several gunshots. DePina returned

immediately thereafter, got into the vehicle, and told Monteiro

to leave the scene. As they were driving away, Monteiro told

Dossanto that "shit popped off."

On direct examination, Dossanto acknowledged that he had

not come forward earlier with this information because he feared

retaliation if he cooperated with police. On cross-examination,

Dossanto conceded that he did not speak to police until they

approached him nine months after the shooting, and told him that

he was a "person of interest" in the investigation. He

initially told police that he had "nothing to do with" the

shooting, and that he did not know DaSilva. After police told

him that they knew he had been with Monteiro and DePina that

day, and that he had "better start talking" to avoid being sent

to prison, however, he implicated Monteiro and DePina by

"fill[ing] in the blanks" for the police interviewers.

During the first day of DaSilva's testimony, she stated, as

she had at the Martin hearing, that her testimony before the

grand jury had been coerced, and asserted multiple times that
 9

she did not remember events to which she had testified at the

grand jury.4 The judge conducted a voir dire examination to

ascertain whether, pursuant to Commonwealth v. Daye, 393

Mass. 55 (1984), overruled on another ground by Commonwealth v.

Cong Duc Le, 444 Mass. 431 (2005), and its progeny, DaSilva's

grand jury testimony was admissible substantively. During that

examination, DaSilva continued to maintain that she did not have

an independent memory of certain events, alluding to a learning

disability that affected her abilities in this regard. The

examination ended with DaSilva running out of the court room.

The judge continued the trial until the following day, ordered

DaSilva held overnight in custody, and found her in contempt.

Her attorney informed the judge the following morning that,

prior to testifying the preceding day, DaSilva had been

threatened in the hallway, but nonetheless would be willing to

testify. When direct examination resumed, however, she

continued to maintain that she could not remember most of the

events on the weekend prior to, and the day of, the shooting.

This led to a second voir dire examination at which DaSilva

continued to claim that she was unable to remember certain

events, and that her statements before the grand jury had been

4
The jury heard that DaSilva had received immunity for her
testimony, although they were not told when she was given that
immunity. During the judge's final charge, they were told that
they could consider the grant of immunity in weighing her
credibility.
 10

coerced. On cross-examination by defense counsel, she was able

to recount considerably more information than on direct

examination by the Commonwealth. Discrediting DaSilva's memory

loss as feigned, the judge allowed portions of her grand jury

testimony to be admitted substantively, on "a question by

question basis."

2. Discussion. The defendants raise several claims of

error on appeal. They challenge the substantive admission of

DaSilva's grand jury testimony on both evidentiary and

constitutional grounds, and also claim that such testimony

contained several independently inadmissible portions. They

assert error as well in six further respects: (a) the

prosecutor's opening statement; (b) the judge's instructions

concerning immunized witness testimony; (c) the denial of a

motion to sever; (d) the partial denial of a motion to introduce

third-party culprit evidence; (e) the testimony of a ballistics

expert; and (f) Dossanto's testimony as to his fear of

testifying. Both defendants also seek relief under G. L.

c. 278, § 33E.

a. Admission of DaSilva's grand jury testimony. The

defendants claim that the admission of DaSilva's grand jury

testimony as substantive evidence, to which they objected at

trial, was error. In light of the paucity of physical evidence

and the Commonwealth's resulting reliance on DaSilva's
 11

testimony, as well as that of Dossanto, the defendants maintain

that this was prejudicial error warranting a new trial.

The defendants suggest two reasons why admission of the

grand jury testimony was error. First, both maintain that the

judge's findings were inadequate to satisfy the prerequisites

for admissibility of grand jury testimony as set forth in Daye,

393 Mass. at 73-74, and Commonwealth v. Sineiro, 432 Mass. 735,

745 & n.12 (2000). Specifically, they claim that the judge

failed to make necessary findings that DaSilva's testimony was

not coerced. Second, Monteiro argues that the admission of such

testimony was in violation of the confrontation clause of the

Sixth Amendment to the United States Constitution. After

considering each of these contentions, we turn to the

defendants' argument that, even if not erroneously admitted on

these grounds, four specific portions of the testimony should

have been excluded on evidentiary grounds.

i. Prerequisites for substantive admission of grand jury

testimony. When a witness, who is on the stand and therefore

available for cross-examination, testifies to a lack of memory,

his or her previous testimony before the grand jury may be

admitted substantively if the judge determines that three

conditions have been met. The judge must find, first, that the

witness is in fact feigning his or her lack of memory; second,

that the grand jury testimony was not coerced; and, third, that
 12

the grand jury testimony was in the witness's own words,

involving more than mere confirmations or denials of statements

made by the interrogator.5 See Commonwealth v. Maldonado, 466

Mass. 742, 754-755, cert. denied, 134 S. Ct. 2312 (2014), citing

Sineiro, 432 Mass. at 745 & n.12, and Daye, 393 Mass. at 75. A

trial judge's findings on these issues are entitled to

substantial deference and are "conclusive as long as . . .

supported by the evidence." Maldonado, supra at 756, quoting

Sineiro, supra at 742 n.6.

In this case, the judge's determination that DaSilva's

statement to the grand jury met the requirements to be admitted

substantively is "supported by the evidence." Maldonado, supra,

quoting Sineiro, supra. As to the first prerequisite, feigned

memory loss, there is little question that the evidence amply

supports the judge's finding. The judge noted that, at the

Martin hearing, DaSilva had remembered relevant events and

similarly could recount events when asked about them during the

voir dire examination by defense counsel. He noted also that

5
In Commonwealth v. Daye, 393 Mass. 55, 75 (1984),
overruled on other grounds by Commonwealth v. Cong Duc Le, 444
Mass. 431 (2005), we identified an additional requirement:
where grand jury testimony relates to an essential element of
the offense, the Commonwealth must offer corroborative evidence,
in addition to that testimony, in order to sustain a conviction.
While we have sometimes called this a fourth prerequisite, in
fact the requirement goes to the sufficiency of the evidence
rather than to its admissibility. See Commonwealth v. Clements,
436 Mass. 190, 193 (2002).
 13

DaSilva had indicated her desire not to get "involved," and had

reasons that might cause her to feign memory loss.6

As to the second prerequisite, the judge did not expressly

find that DaSilva's grand jury testimony was not coerced, nor

was he requested to do so. Although an express finding is, of

course, to be preferred, it is not essential where the evidence

supports the judge's implicit finding that DaSilva had not been

coerced.7 See Maldonado, 466 Mass. at 756. Where, as here, a

judge demonstrates familiarity with the requirements for the

substantive admission of grand jury testimony based on a feigned

loss of memory, the admission of the testimony implies a factual

finding that it was not coerced. See id. This comports with

the general principle that a judge's ruling on an ultimate issue

implies resolution of subsidiary factual issues in favor of the

prevailing party. See Commonwealth v. Grandison, 433 Mass. 135,

137 (2001), and cases cited; Commonwealth v. Lanoue, 392 Mass.

6
At the first voir dire, the judge commented, "I have
observed her in-camera. She doesn't have a problem with memory.
You can see from the transcript, she specifically gave me
reasons why she didn't want to testify. She is up here and even
when I am questioning her, she thinks this is a game."
7
During oral argument before us, counsel for DePina urged
that, where, as here, a witness's claim of coercion was
uncontroverted, the judge must make a specific finding that he
or she does not credit that claim in order to make a finding
that there was no coercion. We decline to adopt this
suggestion.
 14

583, 588 (1984), S.C., 400 Mass. 1007 (1987) and 409 Mass. 1

(1990).

The judge had observed DaSilva over two days, having

conducted both a Martin hearing and two voir dire examinations.

While, at the time of the judge's ruling, DaSilva's consistent

claim of police coercion had not been controverted,8 the judge

was nonetheless not required to credit it. Cf. Maldonado, 466

Mass. at 756 (judge entitled not to credit claim of coercion).

He had found DaSilva generally not credible, and already had

determined that her claimed lack of memory was a sham, observing

that she "thinks this [trial] is a game," and noting that she

did not have the same loss of memory when responding to defense

counsel or when testifying in camera. The final Daye-Sineiro

requirement was met by DaSilva's testimony, in her own words,

before the grand jury; she plainly did far more than confirm or

deny the prosecutor's questions. See id. The defendants do not

argue otherwise.

ii. Confrontation clause. Monteiro claims that, due to

DaSilva's asserted lack of memory, he was unable to cross-

examine her on the substance of her testimony, in violation of

the confrontation clause. This claim is without merit.

8
The prosecutor later presented evidence from police
officers denying any coercion of DaSilva.
 15

Where a witness testifies at trial and is cross-examined,

any limitation on the effectiveness or substance of that cross-

examination stemming from feigned memory loss generally does not

implicate the confrontation clause. See, e.g., Commonwealth v.

Figueroa, 451 Mass. 566, 576 (2008). See also Cong Duc Le, 444

Mass. at 437-438, citing United States v. Owens, 484 U.S. 554,

561 (1988) (lack of "substantive content of a witness's answers

does not mean that the defense has been deprived of the

opportunity to confront"). But see Commonwealth v. Stewart,

454 Mass. 527, 533 (2009) (reaffirming holding in Daye that

total loss of memory preventing effective cross-examination may

preclude admission of grand jury testimony at trial).

Here, DaSilva was available for cross-examination at trial.

Defense counsel was able to conduct, and did conduct, an

effective cross-examination. DaSilva recanted her grand jury

testimony incriminating the defendants, and acknowledged some

memory of the period in question. She testified to using

alcohol and drugs the weekend prior to the killing and to being

brought food by the defendants that day. She explicitly denied

any memory of bad blood between Monteiro and the victim, any

memory of seeing Monteiro at the hotel with a gun on the weekend

prior to the shooting, and any memory of DePina wearing a gray

sweatshirt on the day of the shooting. Cf. Daye, 393 Mass. at

71 n.15 (cross-examination "could hardly hope to accomplish
 16

more" than to convince witness to tell different, non-

incriminating story [citation omitted]).

iii. Independently inadmissible portions of grand jury

testimony. Both defendants contend that even if the grand jury

testimony was properly admitted, four specific portions should

have been excluded.

A. "Totem pole" hearsay. The defendants argue that two

statements made by DaSilva's sister, Rodriguez, and introduced

through DaSilva's grand jury testimony, should have been

excluded as "totem pole" hearsay. Totem pole hearsay is

admissible only if each of the multiple hearsay statements falls

within an exception to the hearsay rule. See, e.g.,

Commonwealth v. Gil, 393 Mass. 204, 218 (1984); Mass. G. Evid.

§ 805 (2016). We agree that at least one statement ought not to

have been admitted, but the error does not require a new trial.

The first challenged statement -- DaSilva's testimony to

the grand jury that Rodriguez said the defendants appeared

nervous -- constituted hearsay not within any exception. Before

the grand jury, DaSilva testified that DePina and Monteiro acted

nervously: they "didn't want to go" back toward Johnson Court,

they "were mad," and their reaction was "unusual." She further

testified, "My sister had noticed it, too, and said, 'Do they

have something to do with it?' Because my sister was like, 'oh,

they're acting really nervous.'" As neither defendant objected
 17

to this particular statement at trial, we review only to

determine whether its admission caused a substantial likelihood

of a miscarriage of justice. See, e.g., Commonwealth v.

Stewart, 450 Mass. 25, 37 (2007). Because the statement was

cumulative of other, properly admitted evidence, namely

DaSilva's own observations of the defendants' demeanor, we

conclude that it did not. See Commonwealth v. Spray, 467 Mass.

456, 471 (2014) (cumulative hearsay does not create substantial

likelihood of miscarriage of justice); Commonwealth v. Britt,

465 Mass. 87, 92 (2013) (no substantial likelihood of

miscarriage of justice where "jury could have inferred" same

fact from properly admitted evidence).

In the second challenged statement, DaSilva related in her

grand jury testimony, later admitted at trial, that Rodriguez

asked DePina and Monteiro, "Well, if you didn't do it, what's

the big deal?" and that neither responded. DePina contends that

this, too, is totem pole hearsay. The judge allowed the

question to come in as an adoptive admission by silence.

Because Monteiro objected,9 we review to determine whether the

error, if any, prejudiced the defendants. See Commonwealth v.

Martinez, 431 Mass. 168, 176 n.7 (2000). An error is

9
Monteiro's objection put the judge on notice, and thus
served the purpose of the requirement of a contemporaneous
objection. Although DePina did not object at trial, we treat
the issue as preserved for both defendants. See Commonwealth v.
Charles, 57 Mass. App. Ct. 595, 598 n.7 (2003).
 18

prejudicial if we "cannot find 'with fair assurance'" that it

did not "substantially sway[]" the verdict (citation omitted).

Commonwealth v. Canty, 466 Mass. 535, 545 (2013).

Although the statement was not directed explicitly at

either defendant, arguably one or both defendants might have

been expected to deny what could have been perceived as an

accusation. In that event, the testimony properly could have

been admitted as an adoptive admission. See Commonwealth v.

Olszewski, 416 Mass. 707, 719 (1993), cert. denied, 513 U.S. 835

(1994). We have cautioned, however, against the use of adoptive

admissions by silence, because the lack of response may be due

to "inattention or perplexity" rather than acknowledgment of

guilt. See Commonwealth v. Babbitt, 430 Mass. 700, 705 (2000).

Assuming, for the sake of argument, that admission of

Rodriguez's remark was error, we discern little, if any, impact

on the verdicts. The jury were presented with far more direct

evidence of the defendants' guilt through Dossanto, as well as

through DaSilva's own statements, and the prosecutor did not

mention Rodriguez's statement in her closing argument.

B. Statements by nontestifying codefendant. DePina

challenges the admissibility of two statements he ascribes to

Monteiro that were introduced as part of DaSilva's grand jury

testimony. Because there was no objection at trial, we review

any errors to determine whether they give rise to a substantial
 19

likelihood of a miscarriage of justice. See Commonwealth v.

Taylor, 455 Mass. 372, 381 (2009). DaSilva testified that,

before the killing, Monteiro said that he had been jumped by the

victim and the victim's brother. She also testified that, after

the shooting, one of the defendants mentioned that he did not

want to drive past Johnson Court because of a "beef" with people

there. DePina contends that these statements were hearsay and

admitted improperly against him.

The first statement as to Monteiro previously having been

jumped by the victim, while relevant to Monteiro's motive and

admissible against him, should not have been admitted against

DePina. A limiting instruction was neither requested nor given.

Nonetheless, the error did not give rise to a substantial

likelihood of a miscarriage of justice, as the improper

testimony added little to the case against DePina. DaSilva's

testimony on this point was limited to one statement, and, in

closing, the prosecutor mentioned DaSilva's statement in passing

as a possible motive for the shooting, while focusing

extensively on the "beef" between the north and south sides of

Brockton.

The second statement was admitted properly as a statement

of a joint venturer. A hearsay statement by one codefendant is

admissible against another, absent testimony by the codefendant,

if there is independent evidence of the existence of a joint
 20

venture and the statement was made during and in furtherance of

that joint venture. See, e.g., Commonwealth v. Carriere, 470

Mass. 1, 8 (2014). DePina concedes that, here, there was

independent evidence of the joint venture. Statements made to

conceal a joint venture are considered to be in furtherance of

the joint venture and, therefore, are admissible against all of

the joint venturers. See Commonwealth v. Angiulo, 415 Mass.

502, 519 (1993). See also, e.g., Commonwealth v. Marrero, 436

Mass. 488, 494 (2002) (statements made "only a few hours after

the crimes" and while defendants were together were part of

joint venture). On this record, a reasonable judge could have

decided that the second statement, regarding a desire to avoid

Johnson Court, reflected a fear of being caught near the scene

of the crime, and thus was a continuing effort to conceal the

joint venture. There was no error in the admission of this

statement.

C. Portions of grand jury testimony as to which DaSilva

had not claimed lack of memory. DePina argues that on at least

one occasion, the prosecutor strayed, without specific

objection, from the judge's instruction that grand jury

testimony be introduced on a "question-by-question" basis, and

that it only be admitted where DaSilva specifically denied

memory of a topic. DePina claims the failure to follow the

judge's instruction created a substantial likelihood of a
 21

miscarriage of justice by introducing evidence as to which

DaSilva had not feigned memory loss. See Sineiro, 432 Mass. at

743-744.

In fact, the prosecutor did follow the judge's question-by-

question order. DaSilva testified on direct examination that

she could not remember whether anyone other than Monteiro was in

her vehicle on the day of the shooting. In response, the

prosecutor introduced her statements to the grand jury

discussing who had been in the vehicle, as well as what they

were wearing, what they were discussing, and how they were

acting. The grand jury testimony that was admitted simply

provided a complete answer to the question DaSilva was unwilling

to answer on the stand; she could not have been expected to

remember the clothing, conversations, and behavior of people

whom she claimed not to remember at all. There was no error.

D. Prior bad act evidence. Monteiro filed a motion before

trial to exclude references to his possession of a gun on the

weekend before the shooting.10 He contends that the judge

abused his discretion in denying the motion.

Evidence of a defendant's possession of a gun may be

admissible to show that he or she had the means to commit the

10
At that point, Monteiro expected the prosecutor to
introduce evidence of gun possession through DaSilva's live
testimony; it ultimately was introduced through her grand jury
testimony.
 22

offense. See Commonwealth v. Corliss, 470 Mass. 443, 450

(2015). The Commonwealth generally may not introduce evidence

of a gun, however, where the gun "definitively could not have

been used in the commission of the crime." Commonwealth v.

Barbosa, 463 Mass. 116, 122 (2012) (excluding weapons of

different caliber). In this case, DaSilva testified before the

grand jury that Monteiro had a handgun in his possession on the

weekend before the shooting. After some prompting, DaSilva

agreed that it was a "gun that kind of looks like a policeman's

gun." This testimony was read at trial. The ballistics

evidence established that the cartridges found at the scene were

from a .40 caliber handgun, and there was testimony that

.40 caliber Glock handguns are common police weapons. As the

weapon DaSilva described could have been the weapon used in the

shooting, there was no error in the admission of her testimony

as evidence of means.11

b. Opening statement. Both defendants argue that the

prosecutor impermissibly referenced potentially inadmissible

11
Monteiro also argues that the gun DaSilva testified she
saw at the hotel was black, although, during the shooting,
another witness saw a brown gun. This argument misconstrues the
trial testimony. No witness at trial identified the color of
the weapon, although one witness testified that he saw "a brown
hand with a gun in it." In any event, we have rejected the
argument that testimony of gun possession is inadmissible where
a witness testified that the gun used in the commission of the
crime was a different color. See Commonwealth v. Otsuki, 411
Mass. 218, 235 n.12 (1991).
 23

evidence in her opening statement, creating a substantial

likelihood of a miscarriage of justice. There was no error.

The opening statement referred to DaSilva's anticipated

testimony. The defendants argue that because the prosecutor

knew that DaSilva might recant her incriminating statements on

the stand, and that, if she were to do so, the judge might rule

against any subsequent motion to admit her grand jury testimony,

the prosecutor should have avoided making any reference to

testimony she planned to elicit from DaSilva.

A prosecutor's opening statement may reference anything

that he or she reasonably believes in good faith will be proved

by evidence introduced during the course of the trial, even if

he or she is not certain the necessary evidence will be

admitted. See, e.g., Commonwealth v. Fazio, 375 Mass. 451, 455-

456 (1978) (opening statement previewed testimony from witness

whom prosecutor knew to be asserting Fifth Amendment right).

Specifically, the fact that an adverse evidentiary ruling might

later bar introduction of certain evidence does not preclude a

prosecutor from mentioning it in his or her opening. See id.

at 456-457.

Here, the prosecutor had a reasonable and good faith belief

that she would produce the evidence that she set out in her

opening statement. While informed that DaSilva had claimed at

the Martin hearing that her statements to the grand jury had
 24

been false, and had suggested she would refuse to testify, the

prosecutor learned from DaSilva's counsel, immediately before

opening statements, that DaSilva did, in fact, intend to

testify.12 The prosecutor then gave an opening statement that

included the evidence she expected to introduce through DaSilva.

The mere possibility that DaSilva might recant on the stand, and

that the Commonwealth might not be permitted to introduce

inconsistent grand jury if she did so, did not bar the

prosecutor from previewing the testimony she anticipated. See

Fazio, 375 Mass. at 456.

c. Immunized witness testimony. DePina maintains that the

jury instructions concerning DaSilva's immunized testimony, to

which there was no objection, were error that created a

substantial likelihood of a miscarriage of justice. We discern

no error in the absence of the instructions DePina now requests.

Although the judge did instruct the jury, in accordance

with the model jury instructions, see Massachusetts Superior

Court Criminal Practice Jury Instructions § 7.8, at 7-37 (Mass.

Cont. Legal Educ. 2d ed. 2013), that they "may take [a grant of

immunity] into consideration in assessing the witness's

credibility," DePina contends that the judge also should have

informed the jury explicitly that, by statute, they could not

12
Indeed, before receiving confirmation that DaSilva
intended to testify, the prosecutor had prepared an alternative
opening statement, omitting any mention of DaSilva.
 25

find the defendants guilty solely on the basis of DaSilva's

immunized testimony. See G. L. c. 233, § 20I; Commonwealth v.

Vacher, 469 Mass. 425, 440 (2014).

We do not require any specific instructions regarding the

testimony of an immunized witness, and we have rejected a

requirement that a judge instruct explicitly that a conviction

cannot be based solely on the testimony of such a witness. See,

e.g., Commonwealth v. Brousseau, 421 Mass. 647, 652-654 (1996).

Rather, the focus is on whether the charge as a whole adequately

explains the issue. See id. at 654. Here, the judge informed

the jury that they could consider the effect of immunity on

DaSilva's credibility, and counsel for both sides argued

extensively in closing about the credibility of the immunized

witness. See id., and cases cited (noting importance of

counsels' argument on issue of credibility when evaluating

adequacy of jury instructions). The instructions were more than

sufficient to inform the jury of the dangers of exclusive

reliance on immunized witness testimony.

d. Denial of motion to sever. Prior to trial, and again

at the close of the Commonwealth's evidence, the defendants

moved to sever the trials, arguing that the defenses would be

mutually antagonistic, and that failure to sever would prevent

them from receiving a fair trial. Monteiro claims that the
 26

judge abused his discretion by denying this motion. We do not

agree.

A decision to sever a trial generally is left to the sound

discretion of the trial judge. See, e.g., Commonwealth v.

McAffee, 430 Mass. 483, 485 (1999). Severance on the ground of

mutually antagonistic defenses is required only where "the

acceptance of one party's defense will preclude the acquittal of

the other." See Commonwealth v. Ramos, 470 Mass. 740, 749

(2015), quoting Commonwealth v. Moran, 387 Mass. 644, 657

(1982). It is not enough that a joint trial may cause a

defendant to pursue a different strategy, or that a defendant

would stand a better chance of acquittal if tried alone. See

McAfee, supra at 486. Where some defenses overlap, while others

are independent, a joint trial is appropriate. See Ramos,

supra.

We discern no abuse of discretion in the judge's decision

not to sever the defendants' trials. Each defendant sought to

undermine the credibility of the Commonwealth's key witness,

while also advancing his own separate grounds of defense. See

id. Here, as in Ramos, supra, the defenses were, if anything,

overlapping, and certainly not so mutually antagonistic as to

require severance.13

13
On appeal, DePina argues that Monteiro's inculpatory
statements were inadmissible against DePina, and were so
 27

e. Third-party culprit evidence. Monteiro moved prior to

trial to introduce various pieces of third-party culprit

evidence. The motion judge, who was also the trial judge,

denied the motion in part, not allowing the introduction of

evidence that the victim had been assaulted by an unknown

assailant shortly before the shooting, and that the victim was

planning to sell heroin to a particular individual on the day he

was killed. Monteiro argues that the partial denial was an

abuse of discretion requiring a new trial.

In order to be admissible, third-party culprit evidence

"must have a rational tendency to prove the issue the defense

raises, and the evidence cannot be too remote or speculative."

Commonwealth v. Silva-Santiago, 453 Mass. 782, 801 (2009),

quoting Commonwealth v. Rosa, 422 Mass. 18, 22 (1996). Where

the third-party culprit evidence is hearsay not within an

exception, there must be "substantial connecting links" between

prejudicial that their introduction required that he be tried
separately. See Bruton v. United States, 391 U.S. 123, 126
(1968). Evidence which does not expressly and directly
implicate a defendant, however, does not implicate the Bruton
rule. See Commonwealth v. Rivera, 464 Mass. 56, 69-70, cert.
denied, 133 S. Ct. 2828 (2013), and cases cited; Commonwealth v.
Pontes, 402 Mass. 311, 314-315 (1988). Nor does evidence
properly admitted under the joint venture exception to the
hearsay rule. See Commonwealth v. Braley, 449 Mass. 316, 319
(2007). See also Pontes, supra at 314, quoting Bruton, supra at
128 n.3 (statements must be "clearly inadmissible" against
codefendant). Because the statement concerning being jumped
implicated DePina only by inference, and the statement about
Johnson Court properly was admissible against him, neither gave
rise to a Bruton error.
 28

the evidence and the offense (citation omitted). Silva-

Santiago, supra.

Monteiro sought to elicit hearsay testimony that, at some

point shortly before the victim was killed, an unidentified

attacker had thrown a brick at the victim, in order to suggest

that others might have wished the victim harm. The judge

concluded that the evidence of an attack by an unknown

assailant, at an unspecified time, was "not relevant." We

discern no error. The proposed evidence lacked sufficient

"connecting links" and would have served to confuse the jury.

See Silva-Santiago, 453 Mass. at 801. See also Commonwealth v.

O'Brien, 432 Mass. 578, 588-589 (2000) (evidence of hostility

and fear between victim and alleged third-party culprit not

admissible because it lacked sufficient connecting links).

Monteiro also sought to elicit testimony from a man who

purportedly planned to buy heroin from the victim on the day of

his death. Monteiro argued that evidence that the victim was a

drug dealer suggested that people other than the defendants,

such as rival drug dealers, might have had motive to kill him.

The judge correctly concluded that such an inference, in the

absence of any further evidence, amounted to no more than pure

speculation. See Silva-Santiago, supra.

f. Ballistics evidence. Monteiro contends that testimony

by the Commonwealth's ballistics expert caused a substantial
 29

likelihood of a miscarriage of justice by improperly appealing

to the jury's emotions and impermissibly suggesting that

Monteiro was a person of bad character who had been involved in

other shootings. More specifically, the expert testified that,

during the course of the investigation, he compared ballistics

from the cartridges found at Johnson Court to those found at

other crime scenes in Brockton. The ballistics examiner noted

these comparisons and testified that he had been unable to find

any matches.

Because a defendant may suggest to the jury that inadequate

investigation led police to miss evidence which would have

implicated others, or would exculpate the defendant, see

Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980), the

Commonwealth may present evidence to rebut such a contention,

even if it otherwise would be inadmissible. See, e.g.,

Commonwealth v. Avila, 454 Mass. 744, 753 (2009). In

anticipation of such a defense, the Commonwealth elicited,

without objection, a brief statement from an investigating

officer of the result of ballistics tests. There was no error.14

g. Fear of retaliation. Monteiro argues that by eliciting

testimony from Dossanto as to his fear of retaliation for

14
Even if the admission had been error, the testimony did
not create a substantial likelihood of a miscarriage of justice.
Contrary to Monteiro's suggestion, the expert's testimony did
not appeal to the jury's emotions, nor did it imply that the
defendants had been involved in other crimes.
 30

cooperating with the Commonwealth, the prosecutor improperly

vouched for his credibility, creating a substantial likelihood

of a miscarriage of justice.

Toward the end of the direct examination of Dossanto, the

prosecutor asked him, without objection, why he had not come

forward earlier and why he was not "honest" when police

initially approached him. This was not impermissible vouching.

Vouching occurs when an attorney indicates his or her personal

belief in the credibility of a witness, or indicates personal

knowledge beyond the evidence. See Commonwealth v. Rosario, 460

Mass. 181, 190 (2011). "[T]estimony regarding a witness's fear

of retaliation," on the other hand, "generally is admissible in

the discretion of the [trial] judge, for the purpose of

establishing witness credibility." Id. at 193. See

Commonwealth v. Auguste, 418 Mass. 643, 647 (1994), and cases

cited. Here, the prosecutor did not suggest any personal

knowledge or reliance on facts not in evidence. Rather, she

allowed the witness to explain his earlier reticence, and his

lack of initial honesty, in order to respond to an obvious

avenue of attack on the witness's credibility by defense

counsel. See Rosario, supra; Auguste, supra at 647-648.

h. Relief pursuant to G. L. c. 278, § 33E. We have

carefully reviewed the entire record, pursuant to our duty under

G. L. c. 278, § 33E. We are satisfied that the verdicts were
 31

not contrary to law, against the weight of the evidence, or

otherwise unjust. We therefore decline to exercise our

authority under G. L. c. 278, § 33E, to set aside the verdicts

or to reduce the degree of guilt.

Judgments affirmed.