Argued: January 9, 2015.
Indictments found and returned in the Superior Court Department on October 27, 2009.
The cases were tried before Elizabeth B. Donovan, J.
Dennis Shedd for the defendant.
Sarah Montgomery Lewis, Assistant District Attorney ( John P. Pappas, Assistant District Attorney, with her) for the Commonwealth.
Present: Gants, C.J., Spina, Cordy, Botsford, & Duffly, JJ.
[30 N.E.3d 94] Botsford, J.
In October, 2011, a jury in the Superior Court convicted the defendant of murder in the first degree based on deliberate premeditation in connection with the fatal shooting of Manuel Monteiro and Jovany Eason. The defendant did not fire the gun that killed the victims, but was convicted on a theory of joint venture with the shooter, who took the gun from the defendant's hand and began shooting.
[30 N.E.3d 95] On appeal, the defendant argues that there was insufficient evidence to convict him of murder in the first degree based on a joint venture theory, that the judge erred in not instructing the jury on involuntary manslaughter and in misstating the law of joint venture in her response to a jury question, and that the prosecutor made improper statements in his closing argument. We conclude that the judge's mistaken response to the jury question regarding the law of joint venture created a substantial likelihood of a miscarriage of justice. Therefore, we vacate the defendant's conviction on the murder charges and remand for a new trial on those indictments.
Because the defendant challenges the sufficiency of the evidence presented, we summarize the facts the jury could have found in the light most favorable to the Commonwealth. See Commonwealth v. Earle, 458 Mass. 341, 342, 937 N.E.2d 42 (2010). We reserve certain facts for further discussion in connection with other issues raised.
Around 1 a.m. on August 2, 2009, an argument erupted at a bar and restaurant (bar) in the Dorchester section of Boston that was a popular gathering spot for members of the Cape Verdean
The argument led to a physical fight in the restroom of the bar, and later to the fatal shooting of the two victims. Much of the incident was recorded by surveillance cameras inside and outside the bar and outside a building across the street.
The argument began shortly after the defendant and a companion, Stephen Depina, arrived at the bar. The defendant embraced a friend who was at the bar and said to him, " I don't understand why you hang with the Draper Street niggas." Eason, who was standing behind the defendant at the time, and who was friendly with people from the Draper Street neighborhood, overheard this comment, and an angry exchange ensued. Adilson Resende was working security at the bar that night, and he separated the two men; immediately thereafter, the defendant left the bar with Depina. Once outside, the defendant and Depina turned right and walked south.
Inside the bar, the dispute continued. Otelino Goncalves, another patron, argued with Eason; other men became involved as well, and the argument moved to the restroom. Around the same time, the defendant's codefendant, Emmanuel Pina, approached the bar from the south, crossed to the other side of the street, and, less than a minute later, came back across the street and entered the bar. Once inside, Pina headed directly to the restroom and joined Goncalves in arguing with Eason and two of Eason's friends. The owner of the bar attempted to quell the argument, but the situation quickly escalated into a physical fight, with punches and kicks being thrown, and Resende and a bartender [30 N.E.3d 96] rushed in to intervene. Goncalves and Pina were forced out of the restroom and out the front door of the bar, with Goncalves exiting first, Pina second, and Adelberto Brandao (another patron who had assisted the employees in removing Goncalves and Pina) third. Eason left the bar on his own about fifteen seconds ahead of Goncalves and Pina and headed to his motor vehicle, which was parked right in front of the bar.
While the fight was developing inside the restroom, the defendant and Stephen Depina returned to the area outside the bar; the defendant was carrying a gun. The defendant waited by the side of the bar for a few seconds before moving back to the sidewalk in front of the building and then crossing to the other side of the street.
As Eason was opening his vehicle's door to leave, Goncalves approached him, and the two squared off in the middle of the street as if to engage in a second round of their earlier fight. Before the fight began, however, the defendant approached Eason from the sidewalk across the street and pointed the gun at him. Joao Depina, another patron who was inside the bar watching this scene through a window, saw the defendant try to " rack" the gun, meaning to pull the slide back in order to position a bullet in the chamber so that the gun could be fired. Eason pointed his hand at the defendant, and the men backed away from one another.
Pina then grabbed or took the gun from the defendant. With gun in hand, Pina ran toward Eason, shooting at him. One shot broke through a window near the front door of the bar and hit Monteiro (a cook in the restaurant portion of the bar who was standing at the window watching the altercation outside) in the chest. Monteiro collapsed shortly after being hit; he died from the gunshot wound and was pronounced dead at the scene.
Eason, meanwhile, was running north up the street followed by Pina, who was continuing to shoot at him, hitting Eason multiple times in the back. A few seconds behind Pina ran Brandao and the defendant. At an intersection, Eason turned left, where he fell to the ground and was later discovered by police officers. Pina turned right and ran up another street. The defendant followed Pina to the corner of the intersection, but then turned and ran off in another direction. Emergency medical personnel arrived shortly thereafter and transported Eason to Boston Medical Center, but he died of gunshot wounds before arriving at the hospital.
The defendant as well as Pina were indicted for the murders of Monteiro and Eason and for possession of a firearm without a license in violation of G. L. c. 269, § 10 ( a ). In late November, 2009, approximately one month after the defendant's indictments issued, the defendant was arrested in Atlanta, Georgia, where he had been living under an assumed name. He and Pina were tried before a jury in September, 2011, and at the close of the evidence, the defendant moved for a required finding of not guilty, which was denied. The judge instructed the jury on principles of joint venture and transferred intent. After deliberation, the jury convicted the defendant and Pina of murder in the first degree of both
victims on the theory of deliberate premeditation. The [30 N.E.3d 97] jury also found the defendant guilty of the firearm possession charge. The defendant ...