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Commonwealth v. Fernandez

Supreme Judicial Court of Massachusetts, Norfolk

August 24, 2018

COMMONWEALTH
v.
ANTONIO FERNANDEZ.

          Heard January 9, 2018.

         Indictments found and returned in the Superior Court Department on August 6, 2002.

         The 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.

          John H. Cunha, Jr., for the defendant.

          Pamela L. Alford, Assistant District Attorney, for the Commonwealth.

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

          LOWY, J.

         Almost 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.

         At 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).

         1. Background.

         We 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.

         On the 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.[1]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 companions.

         The 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.

         One of 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.

         The 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 scene.

         Police responded almost immediately and began performing first aid on the victim, but he died shortly after being shot. No gun, and no other weapon, ...


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