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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, Selfincrimination. 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 crossexamination, 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 immunity10

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 selfincrimination 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 witness13 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.