Commonwealth v. Alexis Silva.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1251

COMMONWEALTH

vs.

ALEXIS SILVA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of murder

in the second degree (count 1), carrying a firearm without a

license (count 2), carrying a loaded firearm without a license

(count 3), and assault and battery by discharge of a firearm

(count 4). On appeal, the defendant first argues that law

enforcement witnesses gave improper lay opinion testimony

identifying him from surveillance video footage, as did the

prosecutor in his opening, and usurped the fact-finding role of

the jury. Second, the defendant argues that the Commonwealth

improperly questioned a witness on her invocation of her

privilege against self-incrimination under the Fifth Amendment

to the United States Constitution, which prejudiced the
defendant. Third, he argues that the firearms convictions must

be vacated in light of Commonwealth v. Guardado, 491 Mass. 666,

693 (2023) (Guardado I), and Commonwealth v. Guardado, 493 Mass.

1, 4-12 (2023) (Guardado II). We vacate the convictions of

counts 2 and 3, and affirm the remaining convictions.

Background. The jury could have found the following facts,

reserving certain facts for later discussion. In the early

morning hours of November 11, 2018, the defendant, his

girlfriend (the girlfriend), and her friend (the friend) drove

toward the girlfriend's home after a night of going to bars and

drinking. The defendant drove his white Lexus, and the friend

drove the girlfriend in the friend's grey-colored Lexus. The

defendant had no passengers. The cars made one brief stop along

the way, at a gasoline station, but the defendant did not take

on any passengers.

Near the girlfriend's home, the defendant and the friend

stopped side-by-side on a residential street and discussed

whether to go to a casino. As they talked, two cars pulled up

behind them -- one driven by the victim. The victim "beeped"

his horn, and the friend and the defendant pulled out of the way

to let the cars pass. The victim sped by, which angered the

defendant.

The victim parked outside his house farther up the street

and remained in his car. The defendant drove past the victim's

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parked car, turned around, and passed the victim's car again.

The defendant pulled alongside the friend's car, and after a

brief conversation, the friend drove away. The defendant again

drove alongside the victim, who was then getting laundry out of

the back seat, and stopped. Without getting out of his car, the

defendant shot the victim twice and drove away. The gunshot

wounds proved fatal.

Investigators canvassed the surrounding area for

surveillance video footage and obtained video recordings that

captured the shooting and the subsequent flight of the shooter's

light-colored sedan. After viewing the video recordings,

investigators determined that the shooter's vehicle was a white

Lexus and identified the license plate number. A Registry of

Motor Vehicles search of the car's registration revealed that

the white Lexus was registered to the defendant.

On the morning after the shooting, a State police trooper

in an unmarked car set up surveillance on a house (subsequently

determined to be the defendant's home) and found the white Lexus

parked outside the house.1 The trooper saw a black sports

utility vehicle (SUV), driven by a woman and carrying a male

passenger, arrive outside the house. The car drove away, but

moments later, the trooper saw the male passenger walk toward

1 This was the same house that the shooter's light-colored
sedan drove to immediately after the shooting.

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him and into the house. The man re-emerged from the house

having changed his clothes. He opened the front passenger's

side door of the white Lexus and began searching through the car

as if looking for something. The trooper recorded a brief video

recording of the man, which was later admitted in to evidence at

trial. Police subsequently obtained a search warrant for the

white Lexus and found gunshot residue on the interior of the

car.

At trial, the trooper identified the defendant as the man

he saw while conducting surveillance. He subsequently

identified the defendant in surveillance video recordings

recorded during his surveillance.

Discussion. 1. Identification from surveillance footage.

First, the defendant argues that it was improper for the trooper

and the prosecutor to identify the defendant from surveillance

footage recorded after the shooting. Further, the defendant

argues that it was improper for two law enforcement witnesses to

"narrate" a compilation video.

a. Identification by the trooper. As a threshold matter,

the parties disagree on which standard of review applies.

Before trial, the judge granted the defendant's motion in

limine, which sought to "exclude opinion testimony by detectives

as to what is presented on video surveillance evidence." The

judge allowed the motion, endorsing in the margin that

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"[o]pinion evidence about contents of video may not be offered."

The Commonwealth argues that the trooper's testimony was not

opinion testimony and was not embraced by the judge's ruling on

the motion in limine. This would mean that the defendant's

failure to object to the testimony at trial renders the error

unpreserved and would require us to review for a substantial

risk of a miscarriage of justice. See Commonwealth v.

Desiderio, 491 Mass. 809, 815 (2023). The defendant contends,

however, that the trooper gave lay opinion testimony, that it

violated the judge's ruling on the motion in limine, and that

the motion in limine preserved the error for appeal. See

Commonwealth v. Grady, 474 Mass. 715, 719 (2016). Because we

conclude infra that there was no error, we need not address

whether the defendant's failure to object to the claimed

violations of the judge's ruling in his favor at the time of the

testimony means the claimed errors are unpreserved. This issue

was not addressed in Grady, supra.

"Making a determination of the identity of a person from a

photograph or video image is an expression of an opinion."

Commonwealth v. Wardsworth, 482 Mass. 454, 475 (2019), quoting

Commonwealth v. Pina, 481 Mass. 413, 429 (2019). Lay opinion

testimony identifying a witness in a photograph or video

recording is only admissible when the witness possesses

"sufficiently relevant familiarity with the defendant that the

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jury cannot also possess." Wardsworth, supra, citing

Commonwealth v. Vacher, 469 Mass. 425, 441 (2014). In the

absence of "sufficiently relevant familiarity," the jury must be

able to draw their own conclusions regarding the identity of a

person shown on video footage, and lay opinion testimony may not

be offered. Id.

The trooper's testimony would be lay opinion testimony per

Wardsworth if the trooper made his identification from a video

recording. See Wardsworth, 482 Mass. at 474-475 (improper lay

opinion of police officers who watched surveillance video

recording depicting two persons and identified one of them as

defendant based on clothing and physical features where police

officers were not percipient witnesses to events captured on

video recording). But the trooper personally saw the defendant

outside the defendant's house. After viewing a surveillance

photograph, the trooper testified, "That's the individual that I

observed" both in a vehicle and on foot near the house. The

trooper then identified the defendant in the court room as the

man he personally saw during his surveillance.

Subsequently, the trooper did identify the defendant in

surveillance images, including a video recording that the

trooper took during his surveillance, but these identifications

likewise derived from his personal observations. That the

trooper's unmarked surveillance vehicle is visible in one of the

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video recordings underscores that the trooper personally saw the

events captured on surveillance video footage and photographs.

Since the trooper did not testify as to the identity of a person

"from a photograph or video image," he did not give opinion

testimony in violation of the order on the motion in limine

(emphasis added; citation omitted). Wardsworth, 482 Mass. at

475. There was no error.

The line of cases that the defendant cites, which stands

for the rule that a witness must possess "sufficiently relevant

familiarity" with the defendant to identify the defendant from a

photograph or video recording, does not support his claims of

error. See Wardsworth, 482 Mass. at 475; Pina, 481 Mass. at

429; Commonwealth v. Vacher, 469 Mass. 425, 441-442 (2014);

Commonwealth v. Austin, 421 Mass. 357, 366 (1995); Commonwealth

v. Vitello, 376 Mass. 426, 460 (1978); Commonwealth v. Pleas, 49

Mass. App. Ct. 321, 326-327 (1999); Commonwealth v. Anderson, 19

Mass. App. Ct. 968, 969 (1985); United States v. Vazquez-Rivera,

665 F.3d 351, 361 (1st Cir. 2011); United States v. Meises, 645

F.3d 5, 16 (1st Cir. 2011); United States v. Jadlowe, 628 F.3d

1, 24 (1st Cir. 2010); United States v. Garcia-Ortiz, 528 F.3d

74, 80 (1st Cir. 2008). These cases involve fact patterns where

a law enforcement officer did not personally witness the events

captured on video footage yet assisted the jury in identifying

the defendant due to preexisting familiarity with the defendant.

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See Wardsworth, 482 Mass. at 474-476 (testimony from officers,

including those who stopped defendant, that defendant resembled

person shown on surveillance video recording was improper where

officers did not personally perceive events captured on video

surveillance and lacked sufficient familiarity); Commonwealth v.

Vacher, 469 Mass. 425, 441-442 (2014) (error to admit lay

opinion testimony from non-eyewitness detective who lacked

special familiarity); Commonwealth v. Pleas, 49 Mass. App. Ct.

321, 326-328 (2000) (officer with "sufficiently relevant

familiarity" could identify defendant even though he was not

eyewitness to events captured on videotape); Commonwealth v.

Anderson, 19 Mass. App. Ct. 968, 969 (1985) (error to admit non-

eyewitness identification of defendant as no "necessary

conditions" justified admission).

Here, the trooper personally saw the defendant

contemporaneously with the surveillance footage. He was

permitted to testify to his observations; to the extent his

testimony about surveillance images was lay opinion testimony,

he had sufficient personal familiarity with the defendant's

appearance to do so.2 We discern no error.

2 The defendant does not seek relief under Commonwealth v.
Crayton, 470 Mass. 228, 241-244 (2014), or Commonwealth v.
Collins, 470 Mass. 255, 260-266 (2014), as the trooper was not
an eyewitness to the shooting itself.

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b. The prosecutor's remarks in opening. The defendant

assigns error to the prosecutor's opening statement:

specifically that he told the jury that "you're going to see

that approximately five minutes after the shooting . . . this

defendant comes driving in, alone, still being the only person

in that car, pull[s] up to [his house], get[s] out of that,

[and] hustle[s] inside," and then played the corresponding video

clip for the jury without commentary. The defendant contends

that the prosecutor impermissibly identified the defendant in

the video recording, and that by "fronting" the video recording

with the impermissible identification, the prosecutor "risked

creating a cognitive bias," Wardsworth, 482 Mass. at 477.

We review this issue for a substantial risk of a

miscarriage of justice, since there was no objection at trial.

As above, we discern no error. "The proper function of an

opening is to outline in a general way the nature of the case

which the counsel expects to be able to prove or support by

evidence." Commonwealth v. Kapaia, 490 Mass. 787, 794 (2022),

quoting Commonwealth v. Fazio, 375 Mass. 451, 454 (1978). Here,

that occurred. The evidence at trial supported the prosecutor's

opening statement. The friend testified that the defendant was

alone in the white Lexus and drove on the victim's street, the

location of the shooting, immediately before the shooting.

Surveillance video footage captured the shooting, which also

9
showed the white Lexus's license plate. The trooper's

identification of the defendant further strengthened the

Commonwealth's evidence of identification. The prosecutor's

comments fairly represented what he "expect[ed] the evidence to

prove." Commonwealth v. Simpson, 434 Mass. 570, 584 (2001).

The defendant counters this by arguing that no trial

witness identified the defendant from the video recording that

the prosecutor played in opening. The video recording showed a

white Lexus arriving at the defendant's home less than five

minutes after the fatal shooting. The driver got out of the car

and ran inside the house. At trial, the friend testified that

the defendant was alone in the white Lexus moments before the

shooting, when the defendant pulled alongside the friend's car

and they briefly spoke. As the prosecutor argued in closing,

the jury could infer that, because the defendant was alone in

the car at the time of the shooting, and his drive home was

rapid and brief (and partially captured on composite

surveillance video footage), it was impossible for him to have

"let out a phantom passenger" en route. The circumstantial

evidence presented at trial supported the prosecutor's framing

of the video recording during his opening statement.

Although the prosecutor arguably "primed" the jury to

identify the defendant in the video recording, or implicitly

asked them to infer that the video recording showed the

10
defendant, we do not discern a substantial risk of a miscarriage

of justice. See Wardsworth, 482 Mass. at 477 (witness primed

jury to identify defendant in videotape by testifying before

videotape played that "figure" they were about to see on

videotape resembled defendant). In Wardsworth, the Supreme

Judicial Court concluded that the prejudicial effect of

"priming" testimony outweighed its probative value. Wardsworth,

supra. Here, in contrast, the prosecutor identified the

defendant in a video recording during his opening statement, not

during witness testimony. The judge also instructed the jury

that opening statements are not evidence. "Any possible

prejudice was cured by the judge's instruction that opening

statements are not evidence." Commonwealth v. Deloney, 59 Mass.

App. Ct. 47, 51 (2003), citing Commonwealth v. Simpson, 434

Mass. 570, 584 (2001). Further, as explained above, the

Commonwealth's strong evidence of identification further

mitigated any risk of a miscarriage of justice.

c. Interpretive testimony. The defendant also argues that

two law enforcement witnesses improperly "narrated" a

compilation video recording showing the defendant's car driving

away from the crime scene. The defendant alleges that it was

error to allow the law enforcement witnesses to "narrate" what

was happening on the video recording, rather than letting the

jury draw its own conclusions. Since the defendant did not

11
object at trial, we review for a substantial risk of a

miscarriage of justice. Commonwealth v. Brum, 492 Mass. 581,

587 (2023).

Law enforcement witnesses may provide "interpretive

testimony" when the testimony is helpful to the jury in

evaluating the evidence and understanding the time sequence of

composite video recordings. Commonwealth v. Barbosa, 477 Mass.

658, 673 (2017). For example, in Barbosa, an investigator

played a compilation of video footage side-by-side by global

positioning system (GPS) data to explain to the jury the

significance of a time discrepancy between the two. Id. This

testimony was properly admitted because it assisted the jury in

understanding and evaluating the evidence. Id. at 673-674.

Here, the law enforcement witnesses gave interpretive

testimony consistent with Barbosa. One witness collected the

surveillance video recordings and testified to the sequence in

which he gathered them. The other witness explained the time

sequence between the video recordings. As in Barbosa, their

interpretive testimony "properly assisted the jury in evaluating

the evidence." Barbosa, 477 Mass. at 673.

The defendant's reliance on Wardsworth, 482 Mass. at 475-

477, to the contrary is mistaken. Wardsworth did not involve

interpretive testimony or testimony regarding video recording

compilations. Rather, the issue in Wardsworth involved police

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officers giving lay opinion testimony concerning the identity of

persons captured on surveillance video footage, who the officers

did not personally surveil. See Wardsworth, supra at 474-475.

Here, the two law enforcement witnesses did not identify the

defendant from the video footage. There was no error.

2. The prosecutor's questioning regarding the Fifth

Amendment. At trial, the Commonwealth called the girlfriend as

a witness. Prior to taking the stand, the girlfriend consulted

with a court-appointed attorney, who told the judge that the

girlfriend was refusing to testify by asserting her Fifth

Amendment privilege against self-incrimination. The

Commonwealth petitioned for a grant of immunity, which the judge

allowed. The girlfriend subsequently testified that due either

to intoxication or the passage of time, she could not remember

anything related to the shooting. Seeking to impeach the

girlfriend's credibility, the prosecutor questioned her as

follows:

Q: "Now, ma'am, you came in this morning, you recall as a
witness, true?"

A: "I was."

Q: "And you indicated -- you had indicated that you were
not going to testify by asserting, which is your right and
privilege."

A: "Uh-huh. Uh-huh."

Q: "Your Fifth Amendment."

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Defense counsel: "Objection."

The judge: "Overruled. You can -- you can inquire."

Q: "Isn't that right?"

A: "Yes."

Q: "Okay. And you have the right under the Fifth
Amendment or federal constitution also, under Article 12 of
our state constitution to assert that. You understand
that?"

A: "I don't honestly understand any of it."

Q: "Okay. . . . But you asserted your privilege."

A: "I did."

Q: "Is that right?"

A: "Yeah."

Q: "Which means we could not force you to testify, true?"

A: "I guess."

Q: "And so we actually had to give you a grant of
immunity."

Defense counsel: "Objection. . . ."

The judge: "It is overruled. . . ."

Q: "You understand you're testifying now under a grant of
immunity, true?"

A: "I guess."

Although the prosecutor questioned the girlfriend's credibility

in his closing statement, he did not refer to her invocation of

the Fifth Amendment.

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At the outset, we note briefly that the prosecutor's

inquiry into the grant of immunity was proper and we discern no

error therein. See Commonwealth v. Troche, 493 Mass. 34, 52

(2023) ("A witness who has received immunity may be questioned

about the immunity for impeachment purposes"). As for the

inquiry into the witness's invocation of her Fifth Amendment

privilege against self-incrimination, the Commonwealth concedes

that it was improper for the prosecutor to develop this line of

impeachment. See id. at 51-52 (improper for prosecutor to

elicit testimony regarding witness's earlier invocation of Fifth

Amendment to impeach witness's credibility). The Commonwealth

maintains, however, that the error was not prejudicial and does

not require reversal. See Commonwealth v. Fisher, 433 Mass.

340, 350 (2001) ("reversal is not required in every case where

the jury hear a witness assert some privilege or refuse to

testify"). Because the defendant objected at trial, we review

for prejudicial error. Commonwealth v. Tavares, 482 Mass. 694,

712 (2019).

"[W]hen a witness refuses to answer questions in front of

the jury, '[t]he inquiry is (1) whether the prosecutor has so

unfairly exploited the matter as to constitute prosecutorial

misconduct, and (2) whether inferences from the witness's

refusal to answer may have added critical weight to the

prosecution's case.'" Fisher, 433 Mass. at 350, quoting

15
Commonwealth v. Kane, 388 Mass. 128, 138 (1983). See Namet v.

United States, 373 U.S. 179, 186-189 (1963).

A prosecutor "unfairly exploit[s]" an invocation of a

privilege when the prosecutor "question[s] a material witness in

order to provoke a claim of privilege with a deliberate design

to raise improper inferences in the minds of the jury." Fisher,

433 Mass. at 350. Although "the jury is not entitled to draw

any inferences from the decision of a witness to exercise [her]

constitutional privilege," Commonwealth v. Hesketh, 386 Mass.

153, 157 (1982), citing Bowles v. United States, 439 F.2d 536,

541 (D.C. Cir. 1970), the jury may draw other inferences from

the remainder of the witness's testimony.

Here the prosecutor did not unfairly exploit the

girlfriend's invocation of the Fifth Amendment such that he

committed prosecutorial misconduct. What was damaging to the

defense was not hearing that the girlfriend invoked the

privilege, but rather the inferences that the jury could have

fairly drawn from her testimony. The girlfriend's testimony was

evasive and inconsistent. The jury could have reasonably

inferred that the girlfriend was feigning memory loss and

testifying inconsistently to protect the defendant. See

Commonwealth v. Almeida, 452 Mass. 601, 608 (2008) ("[The

witness's] memory lapses were additional fodder for impeaching

her credibility, and defense counsel so used them in his closing

16
argument"); Commonwealth v. Frank, 433 Mass. 185, 193-194 (2001)

("We do not consider the prosecutor's cross-examination of the

defendant as to his loss of memory on the night of the murder,

and what was said about that evidence by the prosecutor in his

closing, as inappropriate or unfair"). This was the inference

that the prosecutor tried to elicit, not any improper, and sole,

inference regarding the Fifth Amendment.

Secondly, the questions regarding the invocation of the

Fifth Amendment did not add critical weight to the

Commonwealth's case. The prosecutor asked the girlfriend very

few questions that referred to the Fifth Amendment and he did

not address her invocation of the privilege in his closing

argument. See Kane, 388 Mass. at 138 (no reversal where

prosecutor asked only one question that witness refused to

answer, prosecutor did not return to issue in his closing

argument, and prosecution did not "consciously [seek] to build

its case out of the inferences arising from [the witness's]

silence"). When he did refer to the girlfriend's testimony in

closing, the prosecutor "remain[ed] within the bounds of the

evidence and the fair inferences from the evidence."

Commonwealth v. Pettie, 363 Mass. 836, 840 (1973). First, he

argued that the girlfriend had identified the defendant

"reluctantly" from a photograph from surveillance video footage

outside the last bar they visited. Second, he argued that the

17
girlfriend claimed to be drunk on the night of the shooting and

could not remember anything. We cannot conclude that the

improper questions added critical weight to the Commonwealth's

case, where the prosecutor asked minimal questions about the

Fifth Amendment privilege and did not press the issue in closing

argument.

The cases cited by the defendant to the contrary are

unavailing. This case is unlike Richardson v. State, 246 So. 2d

771, 777 (Fla. 1971), in which the prosecution called an alleged

accomplice who it knew would invoke his Fifth Amendment

privilege against self-incrimination to draw an inference that

"not only was [the accomplice] guilty, but also the

[defendant]." This case also does not resemble United States v.

Tomaiolo, 249 F.2d 683, 690-695 (2nd Cir. 1957), which involved

the cumulative effect of improper cross-examination by the

defendant's brother regarding prior invocation of the Fifth

Amendment privilege before the grand jury along with other

errors resulting in a fundamentally unfair trial. Nor does it

resemble Grunewald v. United States, 353 U.S. 391, 415-424

(1957), where it was improper for the prosecutor to elicit on

cross-examination that a defendant invoked his privilege against

self-incrimination before grand jury to similar questions he

testified to at trial, primarily because invocation was not

inconsistent with the defendant's trial testimony claiming

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innocence. Where, as here, the prosecutor did not unfairly

exploit the matter, and it did not add critical weight to the

prosecution's case, see Fisher, 433 Mass. at 350, we cannot

conclude that the defendant's trial was unfair in this regard,

let alone fundamentally unfair.

3. The defendant's firearms convictions. The parties

agree that the defendant's convictions of carrying a firearm

without a license (count 2) and carrying a loaded firearm

without a license (count 3) must be vacated under Guardado I,

491 Mass. at 668. In Guardado I, the Supreme Judicial Court

held that "[b]ecause possession of a firearm in public is

constitutionally protected conduct [see New York State Rifle &

Pistol Ass'n v. Bruen, 597 U.S. 1, 8-12 (2022)], in order to

convict a defendant of unlawful possession of a firearm, due

process requires the Commonwealth prove beyond a reasonable

doubt that a defendant did not have a valid firearms license."

Guardado I, supra at 668. This holding applies "to those cases

that were active or pending on direct review as of the date of

the issuance of [Bruen]." Guardado I, supra at 693. Bruen was

decided on June 23, 2022. Bruen, supra at 1. In this case,

jury empanelment began on July 11, 2022, and the trial began on

July 13, 2022. Because this case was "active . . . as of the

date of the issuance of [Bruen]," Guardado I, supra, and the

Commonwealth did not introduce evidence of the defendant's lack

19
of licensure under then-prevailing law, we vacate the judgments

on counts 2 and 3.

In the briefing, and at oral argument, the parties disagree

on whether the defendant may be retried on these counts.

However, this precise question was decided by the Supreme

Judicial Court in Commonwealth v. Crowder, 495 Mass. 552, 559

(2025), which was pending at the time of briefing and oral

argument. In Crowder, id., the Supreme Judicial Court concluded

that "a new trial is the proper remedy for defendants who were

convicted under G. L. c. 269, § 10 (a), after the Supreme Court

decided Bruen but before [the Supreme Judicial Court] decided

Guardado I," as here. Thus, the Commonwealth may retry the

defendant on counts 2 and 3 if it so chooses.

Conclusion. The judgments on counts 1 and 4 are affirmed.

The judgments on counts 2 and 3 are vacated, and the verdicts

are set aside.

So ordered.

By the Court (Henry, Sacks &
Singh, JJ.3),

Clerk

Entered: July 8, 2025.

3 The panelists are listed in order of seniority.

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