Heard: October 6, 2017.
found and returned in the Superior Court Department on
September 24, 2003.
cases were tried before Margaret R. Hinkle, J.; and a motion
for postconviction relief, filed on October 1, 2014, was
considered by Garry V. Inge, J.
Deirdre L. Thurber for the defendant.
M. Campbell, Assistant District Attorney (Patrick M. Haggan,
Assistant District Attorney, also present) for the
Present: Gants, C.J., Budd, Cypher, & Kafker, JJ.
Superior Court jury convicted the defendant, Odair Fernandes,
of murder in the first degree on the theory of deliberate
premeditation, for the killing of Jose DaVeiga, and armed
assault with intent to murder, for the shooting of
Christopher Carvalho. The defendant's direct appeal was
consolidated with his appeal from the denial of his motion
for a new trial. The defendant raises four issues. First, he
argues that his right to a public trial under the Sixth
Amendment to the United States Constitution was violated by
the trial judge's order limiting court room entry only to
attendees whose names were submitted and approved. Second, he
claims that the evidence presented at trial was insufficient
to support a finding of joint venture. Third, he contends
that the prosecutor in his closing argument used rhetorical
questions to improperly shift the burden of proof and to
address witness credibility. Fourth, he argues that the trial
judge erred in her instruction to the jury about how to
evaluate the credibility of cooperating witnesses.
conclude that there has been no reversible error, and after a
thorough review of the record, we decline to exercise our
authority under G. L. c. 278, § 33E, to reduce or set
aside the verdict of murder in the first degree. Therefore,
we affirm the defendant's convictions. We also affirm the
denial of the defendant's motion for postconviction
summarize the facts that the jury could have found, reserving
certain details for discussion of the legal issues.
April 17, 2003, the defendant was driving his Volkswagen
automobile with passengers Danny Fernandes and Jose Alves
when he cut off a vehicle driven by Joao Nunes on Bowdoin
Street in the Dorchester section of Boston. Nunes's
passenger, Alfredo Goncalves, got out of the automobile and
threatened the defendant, repeatedly stating that he was
going to hurt him. The defendant drove away.
acquiring a handgun, Nunes and Goncalves drove back later
that day to the Bowdoin Street neighborhood looking for
people with whom they had "dramas." This included
the Cape Verdean Outlaws gang, of which the defendant and his
friends were members. As Nunes drove past the defendant's
house, Goncalves pointed out Amilton Dosouto, an individual
with whom he had issues. Dosouto was standing in the
defendant's driveway next to the defendant's
Volkswagen Golf automobile, while Alves sat on the porch. As
Nunes drove by, Goncalves fired from the passenger side of
the automobile, hitting Dosouto in the chest and Alves in the
stomach and the leg. The defendant ran into the street,
firing at Goncalves. His shots hit Nunes, who then crashed
police arrived at the scene, the defendant was near Dosouto.
Boston police officer testified that he heard the defendant
state repeatedly, "Somebody is going to die for this,
" and that when asked for information about the
shooting, the defendant told him, "I got nothing to say
to you. Somebody's going to die for this." Alves
testified that while he was recovering in the hospital, he
spoke to the defendant on the telephone and the defendant
said, "Don't worry about it, " because the
people responsible were "going to get it." Dosouto
considered the defendant to be like a younger brother.
April 24, 2003, the defendant rented a white minivan. There
was no indication on the record that his Volkswagen Golf
automobile was inoperable.
April 28, 2003, three of Goncalves's friends, Jonathan
DaSilva, Jose DaVeiga, and Christopher Carvalho, left a night
club in Boston after 2 A.M. DaSilva was driving his Ford
Taurus automobile and stopped at a red traffic light on East
Berkley Street when shots were fired at his automobile. His
passengers, DaVeiga and Carvalho, were both hit multiple
times. DaVeiga died as a result. Carvalho survived but was
paralyzed from the neck down and blinded in his left eye.
eyewitness to the shooting testified that two or three people
fired shots at the Ford automobile from the passenger side
door of a white van. The eyewitness testified that all of the
van's occupants wore sports jerseys, and that one wore
New England Patriots colors while another wore a green and
after the eyewitness notified the police of the shooting,
officers stopped a white minivan in Dorchester. The
defendant, wearing a Boston Celtics jersey, was in the front
passenger seat. Danny Fernandes, wearing a Dallas Cowboys
jersey, was in the driver's seat. Carlos Silva, wearing a
red, white, and blue Atlanta Braves jacket, was in the rear
passenger seat. The eyewitness was brought to the scene,
where he identified Danny Fernandes and Silva as the driver
and shooter but did not identify the defendant.
police search of the minivan recovered two .25 caliber shell
casings and a nine millimeter firearm hidden underneath a cup
holder in the back of the van. The firearm was wrapped in a
piece of paper torn from a Volkswagen Golf automobile manual.
A Volkswagen Golf automobile manual was also found in the
van, along with a crowbar. The firearm did not match the
bullets recovered from the victims' bodies, but did match
other spent shell casings recovered at the scene of the
shooting. The police also found a white minivan rental
agreement in the defendant's name, dated April 24, 2003.
Sixth Amendment right to public trial.
case was permeated with concerns about security from the
outset, as evidenced through six pretrial hearings and
conferences and discussions at trial.
February 3, 2005, hearing on a protective order, the trial
judge stated that she was "terribly concerned"
about safety issues in this case. Several of the codefendants
and their family members had been shot at between the time of
the original shooting and the defendant's indictment, and
cooperating codefendants and witnesses had expressed concerns
regarding distribution of the paper records of their grand
jury testimony. As a result, protective orders were put in
place to restrict access to discovery materials, and the
grand jury minutes were impounded.
May 11, 2006, pretrial conference, the judge again raised
concerns about security during trial, explaining that she
would "take every precaution, " partly because the
court was short on court officers. She also first raised the
possibility of creating a list of people permitted to enter
the court room, and asked counsel to discuss this option.
25, 2006, the judge reiterated her concerns that the gang
elements of this case could exacerbate preexisting security
problems at the court house. The judge again suggested an
approved attendees list and requested that counsel prepare
lists of family members and close friends that the parties
might want in attendance. When counsel for then-codefendant
Henrique Lopes objected, the judge enumerated the concerns
behind her request for an approved attendees list. She stated
that there were ongoing security issues at the court house,
there was a lack of sufficient court officers, and the case
presented "at least overtones of Cape Verdean
gangs." The judge noted that prior cases with similar
gang overtones had raised security issues, and her concern
was to protect the security of everyone in the court room,
including the defendant and court staff. She emphasized that
media would be permitted to attend the trial and reiterated
that the court house was not a secure facility. Counsel for
the defendant and both codefendants all objected to the
proposed attendees list, and the judge noted these objections
for the record. She also asked counsel to propose other
reasonable ways to address the underlying security concerns.
30, 2006, the judge clarified that the parties could add
people to the approved attendees list during trial with
twenty-four hours' advance notice. The advance notice was
necessary to conduct sufficient background checks on the
individuals to ensure that they would not pose a safety risk
in the court room. The judge further explained her concern
about insufficient court officer staffing: six court officers
would be present in the court room during trial, but this
would leave no one to ensure security in the hallway
8, 2006, the parties were again before the judge discussing
trial security. After the defendant and codefendants
submitted their initial lists of desired attendees, the
Commonwealth objected to two individuals on the lists. The
judge excluded one individual because he was a known
associate of the defendant's gang, and the defendant did
not object. The judge again stated that people could be added
to the list with twenty-four hours' advance notice. She
also stated that an individual allowed in the court room
could be removed for the remainder of the trial if he or she
exhibited "any untoward behavior." There were
specific security concerns at this point as the codefendants,
Henrique Lopes and Jose Lopes, were out on bail and might
encounter witnesses or other trial attendees in the common
areas of the court or during recesses. The judge wanted to
avoid any potential inappropriate mingling.
12, 2006, the parties discussed safety issues relating to a
cooperating witness who was scheduled to plead guilty to a
related crime during the trial. There were concerns about
holding or transporting the defendant and codefendants near
the cooperating witness. There were also safety concerns
about remanding the codefendants to jail during the trial, as
there were many potential gang members in jail who might
"at least consider, rightly or wrongly, " that the
two men were "involved in this series of violent
episodes." There also were ongoing issues with a key
witness in the case against the codefendants, who were, at
this point, being tried jointly with the defendant. The
Commonwealth eventually nol prossed the charges against
Henrique Lopes and Jose Lopes on June 20, 2006, because this
key witness could not be located.
issues rose during the trial. Before empanelling a jury on
the first day of trial, the judge allowed the
Commonwealth's motion to remove one of the persons on the
defendant's trial attendees list because he had a record
of a number of violent offenses. The defendant did not
second day of trial, there were concerns that the mother of
one of the victims had suffered harm, as she had not been in
communication with her family for over two days and was not
present, though she had planned to attend the trial. The
prosecutor also requested a warrant for Danny Fernandes, as
he had not responded to subpoenas and his attorney could not
third day of trial, individuals associated with the defendant
"stared down" a witness and the victim's family
as they left the court room, requiring the judge to speak
with defense counsel to reiterate that there was to be no
intimidation outside the court room.
approved attendees list was finalized on the third day of
trial. The defendant did not object to this list, which
included five of his family members and five of his friends.
fourth day of trial, the parties were supposed to conduct a
videotaped deposition of the surviving victim, Carvalho, but
he expressed "second thoughts" about participating
and was ultimately not deposed.
fifth day of trial, the judge questioned DaSilva, the driver
of the vehicle in which the victims were riding, about his
desire to invoke his constitutional right not to testify. He
repeatedly told the judge that he was "scared" to
testify, because "[t]he courtrooms are here, they
ain't in the streets. The police ain't going to be
there every day for me on the streets." He denied
receiving any specific threats, but maintained that he was
"scared [for] his life" because of "all the
things going on."
one of the victims of the April 17 shooting, testified on the
fifth day of trial. On the sixth day of trial, the prosecutor
notified the judge that Dosouto's family had found a
portion of an extensive memo prepared by counsel for former
codefendant Henrique Lopes in their mailbox on the day before
Dosouto's testimony. The protective orders in this case
were designed to prevent trial preparation material from
being disseminated. The judge recognized that this raised an
issue of "fairly grave concern" and stated that she
was "profoundly troubled" by the document's
appearance, given the prior hearings on the need for
eighth day of trial, the judge held a limited evidentiary
hearing to discuss the disappearance of Danny Fernandes. The
judge stated that she took "very seriously . . . any
suggestion that the disappearance of a witness ... in any
manner can be connected to any collusion, intimidation, or
the like." The judge ultimately granted the
Commonwealth's motion for a continuance to give the
Commonwealth time to find Danny Fernandes, stating that she
was "[p]rofoundly troubled by the disappearance of these
key witnesses." The Commonwealth was unable to produce
Danny Fernandes before the end of the trial.
defendant contends, as he did in his motion for a new trial,
that the trial judge's order requiring the use of an
approved attendees list during the trial constituted a
closure of the court room that violated his right to a public
trial guaranteed by the Sixth Amendment. See Presley v.
Georgia, 558 U.S. 209, 214 (2010); Commonwealth v.
Rogers, 459 Mass. 249, 263 (2010), cert, denied, 565
U.S. 1080 (2011). We conclude that there was no such
violation in these exceptional circumstances. As explained
infra, the trial judge satisfied the necessary
criteria to justify a partial closure of the court room given
the extreme security ...