Case Information
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SJC-09264
COMMONWEALTH vs. ANTONIO FERNANDEZ.
Norfolk. January 9, 2018. - August 24, 2018.
Present: Gants, C.J., Lowy, Cypher, & Kafker, JJ. Homicide. Firearms. Practice, Criminal, Continuance, Fair trial, Sentence, Capital case. Constitutional Law, Fair trial, Sentence. Due Process of Law, Fair trial, Sentence. Fair Trial.
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.
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.,
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 wеre 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 thе 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 interactiоn 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 spаt 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 bеing shot. No gun, and no other weapon, was found on or near the victim's person.
Later that night, the defendant bragged about the shooting, proclaiming that he was "the number one clapper," meaning that he was the number one shooter. The following day, the defendant telephoned one of his friends who was with him during the shooting and asked if the friend would travel with him to the Dominican Republic. His friend declined, and the defendant fled to New York, where he was apprehended three days later.
At trial, the defendant did not contest that he killed the victim; instead, he claimed that he was acting in self-defense. Defense counsel argued that the defendant believed the victim or one of the victim's friends was armed, and the defendant believed he was facing serious and imminent bodily harm. The jury found the defendant guilty of murder in the first degree on the theory of deliberate premeditation and possession of a firearm without a license.
2. Discussion. a. Motion for funds for an expert and a continuance. After several continuances, the defendant's trial was scheduled to begin on November 13, 2003. [2] On November 10, three days before trial, the defendant filed a motion for funds to hire an expert on adolescent brain development to evaluate the defendant and testify in his defense. [3] When defense counsel filed this motion, she had been representing the defendant for approximatеly one and one-half years. Although defense counsel sought funds to hire an expert on the eve of trial, she did not claim that she was unprepared for trial. The trial judge construed the defendant's "motion for funds" as a motion for a continuance because granting the motion to hire an expert would necessitate a continuance of the trial by several months.
The defendant's motion generally asserted that an expert could evaluate the development of his brain by conducting a brain scan. In the event the scan indicated that the defendant's brain was underdeveloped for purposes of decision- making and impulse control, the defendant could then argue, with the support of expert testimony, that he did not have the capacity to form the specific intent necessary to commit murder in the first degree on the theory of deliberate premeditation. In support of the motion, the defendant attached an article published by the National Juvenile Defender Center describing how the science of adolescent brain development had progressed considerably over the previous five years, and that the adolescent brain was generally less developed than previously believed. The article further posited that adolescents with less developed brains tended to react with "gut instinct" rather thаn organized, reasoned thought. The defendant also included an article describing the technology used to scan the brain as having "a brilliant future in medicine, psychology, psychiatry, and in the neurosciences in general, for studying the relation between [brain] structure and function." There was nothing in the materials submitted in support of the defendant's motion indicating that all adolescent brains develop at the same rate, or that there was necessarily a direct correlation between an individual's age and his or her brain development. According to the defendant, brain development directly correlated to an adolescent's ability to control impulses, perfоrm organized thought, and form specific intent.
A hearing on the defendant's motion took place the day before trial was set to begin. Defense counsel explained that she began Internet research the week prior, looking for possible ways to "break this case down from a murder to a manslaughter." In the course of this research, defense counsel discovered the materials describing the advances in the science of adolescent brain development that gave rise to the request for funds to hire an expert and a continuance. The article the defendant principally relied on had been published in April, 2003, approximately six months earliеr. Defense counsel argued that conducting scans of the defendant's brain could demonstrate the extent to which the defendant's brain was developed, which, in turn, could potentially indicate whether the defendant was more likely to think impulsively and whether he was capable of forming the specific intent to commit murder in the first degree.
The judge, who was aware of the advances in the science of adolescent brain development, acknowledged that the material submitted indicated that adolescents are "subject to these potential risks and dangers," but noted that "no study says that all juveniles develop in the same way," and that the studies had margins of error. Criticаlly, the judge noted that the defendant failed to provide any information suggesting that the defendant fell within the group of adolescents identified in the literature. In other words, the defendant failed to submit sufficient evidence, such as psychological or behavioral studies, suggesting brain scans would provide useful information for the defendant's case. The judge also noted that although defense counsel had been representing the defendant for approximately one and one-half years, she raised this issue for the first time on the eve of trial. The judge's decision to deny the defendant's motion centered on the fact that the defendant had belatedly requested the continuanсe and failed to substantiate that the defendant fell within the group of adolescents generally described by the studies. [4]
Because the judge's denial had nothing to do with the
request for funds itself, but instead focused on the defendant's
implicit request for a continuance, we consider whether the
judge erred in denying the defendant's motion for a
continuance. 5,6 "Whether a motion for continuance should be
granted lies within the sound discretion of the judge, whose
action will not be disturbed unless there is patent abuse of
that discretion, which is to be determined in the circumstances
of each case." Commonwealth v. Pena,
(1976), "we are guided by the circumstances present in every
case, particularly in the reаsons presented to the trial judge
at the time the request is denied" (citation and quotation
omitted). Commonwealth v. Cruz,
Based on the particular circumstances presented in the
defendant's request for a continuance, we conclude that the
judge did not abuse his discretion in denying the motion. After
representing the defendant for approximately one and one-half
years, and having successfully moved for funds to hire a private
investigator and a ballistics expert on April 30, 2003, defense
counsel moved for what would amount to the functional equivalent
of a continuance at least several months long, three days before
trial. Beyond the belated nаture of this request, the defendant
did not support the motion with information or evidence -- other
than the defendant's age at the time of the offenses --
indicating that the requested brain scans would yield helpful
information. Defense counsel did not present evidence
concerning the defendant's medical, psychological, or behavioral
history; school records; or any information suggesting that he
was a particularly psychologically troubled adolescent who might
fall within the group of adolescents described in the
literature. The defendant's motion relied exclusively on
articles, which do not appear to be peer-reviewed medical or
psychological studies or journals, that discuss generally the
advancement of the science of adolescent brain development in
the previous five years, and that argue that juvenile brains, in
general, are less developed than adult brains. In short, the
defendant failed to support his motion with any evidence
specific to him suggesting that a continuance to hire an
adolescent brain development expert would furnish exculpatory
evidence in his case. See Snell,
In support of his argument, the defendant focuses on our
scientific and legal understanding of adolescent brain
development as it exists in 2018, not the understanding of the
science or law as it existed at the time of his trial in 2003.
There is no question that our scientific and legal understanding
of adolescent brain development has advanced since the
defendant's trial. See Miller v. Alabama,
(2012) (invalidating sentencing scheme that mandates life in
prison without possibility of parole for juvenile offenders
convicted of homicide offenses); Graham v. Florida,
Despite these changes in the science and law as they relate
to juvenile sentencing, we do not impute our contemporary legal
or scientific understanding of adolescent brain development in
evaluating whether the trial judge abused his discretion by
denying the defendant's motion for a continuance on the eve of
trial in 2003.
[7]
Instead, "we are guided by the circumstances
present in [this] case" (citation and quotation omitted), Cruz,
From the circumstances presented here, notably the
defendant's failure to substantiate his request with specific
evidence -- other than his age -- the defendant failed to make a
"case-specific argument for granting a continuance at that
juncture." Ray,
continuance and instead relied on general assertions that the
defense could 'benefit' from more time"). Viewing the evidence
presented by the defendant in his motion for funds and for a
continuance in light of the science in 2003, and its acceptance
in our legal system, it is unlikely that a delay could have
measurably contributed to the fair resolution of the case. Ray,
supra, citing Miles,
b. Sufficiency of the evidence of premeditation. The
defendant contends that the еvidence in his case indicates
spontaneity rather than deliberate premeditation, and therefore,
that we should exercise our extraordinary authority under G. L.
c. 278, § 33E, to reduce his verdict from murder in the first
degree to murder in the second degree or manslaughter. Pursuant
to G. L. c. 278, § 33E, our duty is "to consider broadly the
whole case on the law and the facts to determine whether the
verdict is consonant with justice" (citation and quotation
omitted). Commonwealth v. Howard,
We begin by noting thаt "a primary consideration" in
determining whether a conviction of murder in the first degree
based on deliberate premeditation is consonant with justice "is
whether the killing reflects spontaneity rather than
premeditation" (citation and quotation omitted). Commonwealth
v. Ruci,
In Commonwealth v. Colleran,
There was a brief verbal spat between two groups of teenagers. No punches were thrown. The interaction, although hostile, only consisted of name-calling and posturing. The squabble between the two groups ended, and the defendant turned away from the victim, got on his bicycle, and began to ride away. After having traveled approximately forty-five feet, the defendant stopped his bicycle and exclaim to his friend, "Fuck that shit." At that point, he then took out a handgun, cocked it, walked back toward the victim, and shot him in the chest.
The circumstances here indicate that the defendant did not
shoot the victim in the midst of a senseless brawl or in the
heat of sudden combat. It was reasonable for the jury to
conclude that the defendant had time to reflect as he was riding
away from the scene, and that his statement, "Fuck that shit,"
before cocking the gun and walking back toward the victim,
evinced that the defendant had an opportunity to reflect,
actually reflected on the situation, and formed the intent to
kill before shooting the victim. In addition to a period
sufficient for the defendant to have "cooled off" and formed the
intent to kill, the events here also show that the defendant
left the scene of the altercation and returned with the weapon
with the intent to kill the victim. See Commonwealth v. Taylor,
There is no question that this was a minor controversy that
exploded into the killing of a human being. See Commonwealth v.
Baker,
c. Court room closure claim. The defendant avers that his right to a public trial under the Sixth Amendment to the United States Constitution was violated because during jury empanelment the trial judge conducted individual voir dire of the jurors in a court room that was not open to the public. During the final pretrial conference, defense counsel specifically requested that the judge conduct individual voir dire of the jurors for purposes of asking questions related to self-defense. The judge allowed the request and set forth the procedure he intended to use for conducting the voir dire: After asking general questions of the venire in the court room where the case was being tried, prospective jurors would be individually brought into an adjacent court room and questioned by the trial judge in the prеsence of the defendant, counsel for both sides, and the court reporter. After the judge outlined this proposed procedure, defense counsel agreed to it and thanked the judge for accommodating her request for individual voir dire. Jury empanelment and the individual voir dire occurred exactly as the judge and defense counsel had agreed on at the final pretrial conference. Moreover, counsel and the defendant were present for the individual voir dire procedure and did not object.
Where defense counsel not only requested individual voir
dire and agreed to the individual voir dire procedure used in
this case, but also was present fоr it and did not raise a
contemporaneous objection, we conclude that the defendant did
not preserve his court room closure claim. Commonwealth v.
Robinson,
d. Relief under G. L. c. 278, § 33E. The defendant was
sixteen years old at the time of the crime. After conviction,
he received the mandatory sentence for murder in the first
degree under G. L. c. 265, § 2 -- life without the possibility
of parole. Pursuant to our holding in Diatchenko, 466 Mass. at
658–659, the defendant's life sentence remains in force, but the
exception then present in G. L. c. 265, § 2, rendering him
ineligible for parole, is no longer applicable. Commonwealth v.
Brown,
So ordered.
Notes
[1] There was evidence that the defendant and one of the other individuals he was with were riding bicycles, while the third individual approached on foot.
[2] The defendant's trial was originally scheduled for October 14, 2003. On September 17, 2003, the trial date was continued and set for November 10, 2003. On October 24, 2003, the trial was further continued and set for November 13, 2003.
[3] The defendant also filed a motion in limine to admit the expert testimony on adolescent brain development.
[4] In denying the defendant's motion for а continuance, the judge stated: "I don't think it would have been unreasonable at that time, a year-and-a-half ago, to immediately request funds for such an evaluation." The judge further explained: "Here we are on the eve of trial, for the first time without specific supporting information, you're asking me, without the Commonwealth having the opportunity to rebut, get their own evidence, witnesses, whatever, for what essentially is a several months long, at least, continuance to be able to fully explore this to be fair to both sides. I don't think the motion is fairly raised at the right time without any supporting information. And I'm going to deny it for those reasons."
[5] The defendant filed a posttrial motion to reduce thе verdict and a renewed motion for funds to hire an adolescent brain development expert. The trial judge denied both motions.
[6] The defendant filed a motion for reconsideration concerning the denial of the motion for funds and a continuance. The trial judge reiterated that the denial had nothing to do with the defendant's indigent status or the fact that the defendant had requested funds. Rather, the judge denied the motion based on its lack of support and the belated timing of the motion given that counsel had been involved in the case for approximately fifteen months.
[7] On appeal, the defendant does not claim that the
advancements in adolescent brain devеlopment since his trial
constitute newly discovered evidence. See Commonwealth v.
Grace,
[8] Even under the case law as it exists tоday, it is far from
clear that a similar motion, three days before trial, would be
allowed on this record -- a record devoid of evidence concerning
this particular defendant's psychological or behavioral status
or evidence suggesting that a scan of his brain would furnish
helpful evidence. See Commonwealth v. Okoro,