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Commonwealth v. Fernandes

Supreme Judicial Court of Massachusetts, Suffolk

February 2, 2018


          Heard: October 6, 2017.

         Indictments found and returned in the Superior Court Department on September 24, 2003.

         The 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.

          Cailin M. Campbell, Assistant District Attorney (Patrick M. Haggan, Assistant District Attorney, also present) for the Commonwealth.

          Present: Gants, C.J., Budd, Cypher, & Kafker, JJ.

          KAFKER, J.

         A 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.[1] 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.

         We 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 relief.


         We summarize the facts that the jury could have found, reserving certain details for discussion of the legal issues.

         On 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.

         After 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 his vehicle.

         When 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.

         On April 24, 2003, the defendant rented a white minivan. There was no indication on the record that his Volkswagen Golf automobile was inoperable.

         On 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.

         An 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 white jersey.

         Shortly 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.

         A 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.


         1. Sixth Amendment right to public trial.

         This case was permeated with concerns about security from the outset, as evidenced through six pretrial hearings and conferences and discussions at trial.

         At a February 3, 2005, hearing on a protective order, the trial judge stated that she was "terribly concerned" about safety issues in this case.[2] 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.[3] As a result, protective orders were put in place to restrict access to discovery materials, and the grand jury minutes were impounded.

         At a 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.

         On May 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.

         On May 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 outside.[4]

         On June 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.

         On June 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.[5]

         Several 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.[6] The defendant did not object.[7]

         On the 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 locate him.

         On the 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.

         The 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.

         On the 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.

         On the 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."

         Dosouto, 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 protective orders.

         On the 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."[8] The Commonwealth was unable to produce Danny Fernandes before the end of the trial.

         The 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 ...

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