Heard January 9, 2018.
found and returned in the Superior Court Department on August
cases were tried before Isaac Borenstein, J., and a motion
for a new trial, filed on May 29, 2015, was heard by Beverly
J. Cannone, J.
H. Cunha, Jr., for the defendant.
L. Alford, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Lowy, Cypher, & Kafker, JJ.
as quickly as a verbal spat between two groups of teenagers
erupted, it dissipated. The defendant, Antonio Fernandez, and
his friends turned their backs and began riding their
bicycles away. Unprovoked, the defendant got off his bicycle,
turned to one of his friends, and said, "Fuck that
shit." He then took out a handgun, cocked it, and walked
back toward the victim. The defendant aimed the handgun at
the victim and shot him in the chest. The victim collapsed
nearby and died a short time later.
trial, it was uncontroverted that the defendant killed the
victim; the defendant presented a theory of self-defense. A
Superior Court jury convicted the defendant of murder in the
first degree on the theory of deliberate premeditation and
possession of a firearm without a license. The defendant does
not challenge that he shot and killed the victim. He does,
however, argue that (1) the judge abused his discretion by
denying the defendant's motions for funds for an expert
and for a continuance on the eve of trial, (2) the
circumstances of the killing and the fact that he was sixteen
at the time of the killing require a reduction of the
verdict, and (3) the defendant's right to a public trial
under the Sixth Amendment to the United States Constitution
was violated because the court room was closed during jury
empanelment. We discern no reversible error and, after
thorough review of the record, decline to order a new trial
or to direct the entry of a verdict of a lesser degree of
guilt under G. L. c. 278, § 33E. However, we remand the
matter to the Superior Court for resentencing consistent with
Diatchenko v. District Attorney for the
Suffolk Dist., 466 Mass. 655, 666 (2013), S_.C., 471
Mass. 12 (2015).
recite the facts as the jury could have found them, reserving
certain details for later discussion as they relate to other
issues raised on appeal.
evening of June 20, 2002, the victim attended a cookout in
Brookline to celebrate his graduation from high school.
Following the cookout, the victim and several friends, all of
whom were between the ages of fifteen and nineteen years old,
traveled to a nearby park to "hang out." Shortly
after arriving, the victim and his friends saw three male
teenagers, one of whom was the defendant, approach the park
on bicycles.The defendant and his two friends had
traveled from Boston to Brookline, supposedly "to see
some girls." The defendant and his friends were all
between the ages of fourteen and sixteen; the defendant was
sixteen years old at the time. The defendant and his friends
entered the park, approached the victim and his friends, and
asked if they had any marijuana. One of the victim's
friends said that they did not, and the three Boston
teenagers left the park. Neither the victim nor any of his
friends knew or recognized the defendant or either of his
defendant and his friends made their way to a nearby street,
where one of the teenagers sat on the hood of a parked motor
vehicle while the defendant and the third individual sat on
their bicycles. A short time later, the victim and his
friends also left the park and approached the defendant's
crew; a verbal confrontation ensued. Although the accounts of
the encounter differed slightly, it appears that the
defendant's group had been laughing at the victim and his
friends, and one of the victim's friends asked the
defendant and his friends if they had a problem. When this
interaction began, the victim was not involved and instead
was riding his bicycle nearby. The demeanor of the
interaction intensified, with one member of the
defendant's group proclaiming, "Brookline is a bunch
of bitches." One of the victim's friends told the
defendant and his friends to leave. When they did not leave,
one of the victim's friends asked the defendant and his
friends if they wanted to "shoot the fair ones,"
meaning have a fist fight. The defendant and his friends
group declined, responding, "We don't fight
fair." At this point, the victim got off his bicycle and
stood by his friend who had been interacting with the
defendant's group. The victim raised his hands as if
ready to fight and told the defendant and his friends to
"[g]et the fuck out of here." No punches were
thrown, and the spat between the groups did not escalate
beyond name-calling and posturing.
the defendant's friends suggested that they leave,
warning the defendant that the victim might have a weapon.
The defendant responded, "He doesn't know what I
got." One of the defendant's friends responded to
him, "Don't do anything stupid." At that point,
the defendant and his crew turned away from the victim and
his friends and began leaving; it appeared that the
confrontation had ended.
defendant rode his bicycle away from the victim and his
friends. It took the defendant about fifteen seconds to ride
in the vicinity of forty-five feet away from the victim and
his friends. At that point, having moved away from the scene
of the confrontation, the defendant, unprovoked, stopped and
put his bicycle down. He turned to one of his friends and
said, "Fuck that shit." The defendant then pulled
out a handgun, cocked it, and began making his way back
toward the victim. The victim had not moved, and his hands
were in the air; he was not holding anything. The defendant
stated, "I don't shoot the fair ones," pointed
the handgun at the victim's chest, and fired. The bullet
struck the victim in the center of his chest, passing through
his left lung and heart before leaving his body. The victim
collapsed nearby, bleeding profusely from his chest. The
defendant ran away laughing. He and his friends fled the
responded almost immediately and began performing first aid
on the victim, but he died shortly after being shot. No gun,
and no other weapon, ...