89 N.E.3d 1130
Mass.2018Background
- In April 2003 defendant Odair Fernandes was involved in an earlier shooting incident in which he threatened retaliation, saying "Somebody is going to die for this." Eleven days later (April 28, 2003) two men (DaVeiga and Carvalho) were shot while in a Ford; DaVeiga died and Carvalho was severely injured.
- An eyewitness said shots were fired from the passenger side of a white van by occupants wearing sports jerseys (one in green/white). Police soon stopped a white rental minivan registered to Fernandes; Fernandes was a front-seat passenger wearing a Boston Celtics jersey.
- A 9mm gun (ballistically linked to shell casings at the scene) plus .25 cal casings and a torn page from a Volkswagen Golf manual were found in the van; the rental agreement was in Fernandes’s name though he owned a working Volkswagen.
- At trial the Commonwealth proceeded on a joint-venture theory; Fernandes was convicted of first‑degree murder (deliberate premeditation) and armed assault with intent to murder. Defense later filed a motion for a new trial and a postconviction relief motion; both were denied.
- Pretrial and trial proceedings involved repeated security concerns (shots at codefendants, missing witnesses, indications of intimidation). The trial judge required an approved attendees list (media, family, and friends allowed; additions with 24‑hour notice) to address safety and intimidation risks.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether limiting courtroom entry to an approved attendees list violated the Sixth Amendment public‑trial right | Commonwealth: security measures were necessary given gang‑related threats and limited court‑officer resources | Fernandes: order effectively closed the courtroom, violating public‑trial guarantee | Court: No reversible error; partial closure justified under Waller/Cohen factors (substantial reason, narrowly tailored, alternatives considered, adequate findings) |
| Sufficiency of evidence to support joint‑venture murder conviction | Commonwealth: circumstantial evidence (renting the van, presence in van, clothing match, weapon in van, prior threats) supports participation and shared intent | Fernandes: evidence insufficient to prove presence at scene and shared intent | Court: Evidence sufficient; reasonable inferences support joint venture and intent to kill |
| Whether prosecutor’s closing argument shifted burden or improperly vouched for witnesses | Commonwealth: prosecutor fairly responded to defense attack on circumstantial case and challenged coincidences; rhetorical questions invited permissible inferences | Fernandes: prosecutor shifted burden and impermissibly bolstered/attacked witness credibility | Court: No prejudicial error; argument did not shift burden and rhetorical questions about credibility were permissible; jury instructions reinforced burden allocation |
| Whether jury instruction regarding cooperating‑witness credibility was inadequate | Fernandes: requested Ciampa/"truthfulness" instruction warning that government may not know whether witness is truthful | Commonwealth: judge’s instruction to assess cooperating witnesses with "particular care" was given; prosecutor did not vouch | Court: No reversible error—particular‑care instruction given, no vouching, testimony largely cumulative, and no prejudice shown |
Key Cases Cited
- Presley v. Georgia, 558 U.S. 209 (2010) (public‑trial right protects courtroom access)
- Waller v. Georgia, 467 U.S. 39 (1984) (four‑factor test for closure of criminal proceedings)
- Commonwealth v. Cohen (No. 1), 456 Mass. 94 (2010) (adopts modified Waller analysis for partial closures)
- Commonwealth v. Maldonado, 466 Mass. 742 (2013) (gang‑related security risks can justify entry conditions; need for alternatives and findings)
- Commonwealth v. Gomes, 475 Mass. 775 (2016) (circumstantial evidence placing defendant with shooters can support conviction)
- Commonwealth v. Watkins, 473 Mass. 222 (2015) (clothing and vehicle matching eyewitness description can support inference of participation)
- Commonwealth v. Latimore, 378 Mass. 671 (1979) (standard for reviewing sufficiency of evidence)
- Commonwealth v. Ciampa, 406 Mass. 257 (1989) (cooperating‑witness testimony requires jury to be instructed to evaluate credibility with particular care)
- Commonwealth v. Roman, 470 Mass. 85 (2014) (failure to give additional truthfulness warning is reversible only where prosecutor vouches or suggests special knowledge)