Commonwealth v. Fernandes ( 2018 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-10610
COMMONWEALTH vs. ODAIR FERNANDES.
Suffolk. October 6, 2017. - February 2, 2018.
Present: Gants, C.J., Budd, Cypher, & Kafker, JJ.
Homicide. Joint Enterprise. Constitutional Law, Fair trial.
Due Process of Law, Fair trial. Fair Trial. Evidence,
Joint venturer. Practice, Criminal, Fair trial, Argument
by prosecutor, Instructions to jury, Capital case.
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.
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
2
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.
1
The jury also convicted the defendant of carrying a
firearm without a license, and possessing ammunition without a
firearm identification card.
3
Background. 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.
4
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
5
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.
Discussion. 1. Sixth Amendment right to public trial.
This case was permeated with concerns about security from the
6
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
2
The involvement by the Cape Verdean Outlaws in ongoing
violence that generated specific concerns about retaliation and
witness intimidation, including threats to Jose Alves, was
discussed at the hearing on the protective order.
3
The defendant was set to be tried jointly with two
codefendants, Henrique Lopes and Jose Lopes, until the first day
of the defendant's trial, when the charges against the
codefendants were nol prossed because of a missing witness. The
Commonwealth's theory of the case was that the defendant and
seven other individuals (including Henrique Lopes and Jose
Lopes) perpetrated the crime in two separate automobiles. The
Commonwealth had alleged that Henrique Lopes and Jose Lopes were
two of the gunmen.
7
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.
8
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
4
The protocol was to have two court officers present for
each defendant.
9
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
5
On June 8, 2006, the prosecutor informed the judge that he
had been unable to find or contact a key witness. On June 13,
2006, the Commonwealth filed a motion to continue because it
could not locate this witness. This witness's family members
were also out of contact with him and had reported their
concerns for his well-being to the Boston police department.
10
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.
6
Two people were also voluntarily removed by the
Commonwealth from their own list "as a matter of equity" because
they also had a "fairly extensive record of violent crimes."
The protective orders in this case showed that potential
witnesses had significant concerns for their safety should their
testimony fall into the wrong hands before trial.
7
Because of a motion in limine, the judge also was aware of
threats made by the defendant's brother to a judge in an
unrelated criminal matter. On March 1, 2002, the defendant was
on trial for an unrelated crime and his brother, Odairson
Fernandes, was present at the court house with Jose Lopes,
Henrique Lopes, and Joasihno Fernandes. When Odairson Fernandes
left the court room, a Boston police officer overheard him say,
"Fuck him that faggot ass judge. I'm seventeen years old, he
can't fucking tell me what to do." Joasihno Fernandes replied,
"Fuck that judge, I'll call him. What's the number, I call and
threaten his fucking ass, fuck him."
11
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
12
"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
8
That same day, at the Commonwealth's request, the judge
allowed an individual who had been attending the trial, to be
asked to leave the court room because of a history of incidents
with Boston police detective who was scheduled to testify that
morning. Rather than exclude the individual for only the
detective's testimony and have to explain why to him, the judge
excluded him from the morning session.
13
(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 concerns presented by the case, and the
judge hearing the defendant's motion for a new trial (motion
judge) properly denied that motion in a carefully considered
decision.9
"[A]n open court room 'enhances both the basic fairness of
the criminal trial and the appearance of fairness so essential
to public confidence in the system.'" Commonwealth v. Cohen
(No. 1), 456 Mass. 94, 107 (2010), quoting Press-Enterprise v.
Superior Court, 464 U.S. 501, 508 (1984). The right to a public
trial is not absolute, however, "and in limited circumstances a
court may bar spectators from certain portions of a criminal
trial." Cohen (No. 1), supra.
In Cohen (No. 1), 456 Mass. at 111, we adopted the modified
four-factor analysis established by the United States Supreme
9
We proceed under a partial rather than a full closure
analysis because the media, family members, and other
individuals beyond the parties and counsel were present in the
court room. See Commonwealth v. Cohen (No. 1), 456 Mass. 94,
110 (2010) (partial closure where family and other individuals
were present during jury selection). Cf. Commonwealth v. Hardy,
464 Mass. 660, 664, cert. denied, 134 S. Ct. 248 (2013)
(complete closure where court room cleared of spectators during
jury selection).
14
Court in Waller v. Georgia, 467 U.S. 39, 48 (1984), to determine
whether a partial closure violated a defendant's Sixth Amendment
right to a public trial. First, "where a closure is partial, it
is necessary to show a 'substantial reason' rather than an
'overriding interest' to justify the closing." Cohen (No. 1),
supra. Second, the closure must be "no broader than necessary
to protect [that] interest." Id. at 113, quoting Waller, supra
at 48. Third, the judge must consider "reasonable alternatives
to closing the proceeding." Cohen (No. 1), supra at 115,
quoting Waller, supra. Fourth, the judge must make "findings
adequate to support the closure." Cohen (No. 1), supra at 115,
quoting Waller, supra. "In a partial closure context . . . a
reviewing court may examine the record itself to see if it
contains sufficient support for the closure, even in the absence
of formal or express findings by the judge." Cohen (No. 1),
supra.
If the closure does not satisfy these factors, "the error
is deemed 'structural' in that prejudice is presumed and the
defendant is entitled to a new trial." Commonwealth v.
Maldonado, 466 Mass. 742, 748, cert. denied, 134 S. Ct. 2312
 15
(2014), quoting Cohen (No. 1), supra at 118-119.10 We proceed by
examining each of the Waller factors in turn.
a. First Waller factor: substantial reason. In this
case, the record showed a substantial reason to partially close
the court room. See Waller, 467 U.S. at 48; Commonwealth v.
Maldonado, 466 Mass. at 752. Here, the threat of violence was
significant and the judge was properly focused on the need to
protect everyone present, including the defendant and court
staff.
Deference is owed to a trial judge's perception of the
dangers of threats and intimidation in the court room.
Maldonado, 466 Mass. at 753. The trial judge must constantly
monitor the tension in the court room, and its many different
manifestations, and court room atmospherics are difficult to
describe and evaluate on appeal. See id. Understandably, the
judge here was "terribly concerned" about witness intimidation
and trial safety issues. In four separate incidents in June,
2003, before the defendant's indictment, several of the
codefendants and their family members had had shots fired at
them. Codefendants and cooperating witnesses had expressed
10
Despite the fact that this trial took place eight years
before, and without the benefit of, Commonwealth v. Maldonado,
466 Mass. 742, cert. denied, 134 S. Ct. 2312 (2014), the judge
satisfied the requirements set out in that case. See id. at
752.
 16
grave concerns regarding retaliation.11 The disappearances of
important witnesses before the trial heightened the concerns.
Security issues also arose during the trial, further
supporting the concerns about witness intimidation and trial
safety. Different key witnesses were missing on the first and
last day of trial. Arguable instances of gang intimidation
occurred: 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. A witness who had been shot at in the April 28 incident
told the judge that he was afraid to testify.
In addition to the case-specific security concerns, the
judge noted that prior cases with similar gang overtones had
presented security issues. The circumstances here are
comparable to those addressed by the court in Maldonado, 466
Mass. at 742, another case of murder in the first degree
involving a gang-related murder. There, we held that
"when a member of a gang is alleged to have committed a
shooting, there is a risk that others associated with the
gang may attempt to intimidate witnesses to cause them to
exculpate, or at least avoid incriminating, the accused.
There is also the risk that animosity that may exist
between rival gangs, or between those associated with the
11
As mentioned, as a result of these concerns, protective
orders were in place to restrict access to discovery materials,
and the grand jury minutes were impounded.
17
accused and those associated with the victim, may spill
over into the court room or the halls of the courthouse and
lead to disruption of the court room."
Id. at 752-753.
Finally, the judge had to take into account the number of
available court officers, and whether that number was sufficient
in these trying circumstances.12 The record leading up to the
trial showed the judge's significant security concerns that the
feuding gang issues in this particular case could exacerbate the
existing security challenges at the court house.
For all of these reasons, the first Waller factor was
clearly satisfied. See Waller, 467 U.S. at 48; Maldonado, 466
Mass. at 747-748.
b. Second Waller factor: no broader than necessary. The
second Waller factor requires us to determine whether the
partial closure here, which resulted from an approved trial
attendees list, was no broader than needed to accomplish its
purpose. See Waller, 467 U.S. at 48; Maldonado, 466 Mass. at
747. The list was expressly designed to minimize the risk of
witness intimidation and court room disruption.
12
The judge communicated with the chief of court house
security about her concerns. She stated that she did not
consider the court house to be a secure facility, and there was
no guarantee that there would be enough court officers to secure
both the court room and the common areas of the court house.
18
The list, as finalized by the judge, allowed friends and
family of the defendant and codefendants to attend, as well as
the press. The judge also provided for additions to the list
with twenty-four hours' advance notice. The twenty-four hour
advance notice was deemed necessary to allow all parties to
identify potentially disruptive or dangerous attendees and allow
court officers time to conduct criminal background checks. See
Maldonado, 466 Mass. at 752. See also United States v. DeLuca,
137 F.3d 24, 32 (1st Cir. 1998) ("The recorded information was
retained by the United States Marshal for use in determining
whether the bearer had a criminal background or any connection
with a defendant on trial such as might indicate a courtroom
security risk"). Prior to trial, the judge excluded one gang
member known to be an associate of the defendant. On the first
day of trial, the judge allowed the Commonwealth's motion to
remove one of the persons from the defendant's trial attendees
list because he had a record of violent offenses. The defendant
did not object in either instance. When the approved attendees
list was finalized on the third day of trial, the defendant also
had no objections to this list, which permitted five of his
family members and five of his friends to attend.
We conclude that the measures the judge took were justified
in these exceptional circumstances and no more intrusive than
necessary. See Waller, 467 U.S. at 48; Maldonado, 466 Mass. at
19
748. "A judge need not wait for a witness to be intimidated, the
court room to be disrupted, or a specific threat before taking
appropriate steps to address the risk of such misconduct."
Maldonado, supra at 753. A judge's responsibility for the
safety, security, and integrity of the court room requires an
acute attention and an appropriate response to the risks of
violence and intimidation. Maldonado, 466 Mass. at 753. See
Commonwealth v. Petetabella, 459 Mass. 177, 187 (2011) (trial
judge has discretion to take into account special circumstances
like security concerns to protect court room and its occupants).
That response may be proactive as well as reactive. See
Maldonado, supra. Some deference is owed to the trial judge's
discretionary decisions in this regard. See id.
Extraordinary security concerns were obviously present
here. The threat of violence, retaliation, and intimidation was
manifest. See Commonwealth v. Ray, 467 Mass. 115, 124 (2014),
overruled another grounds, Commonwealth v. Smith, 471 Mass. 161,
165 (2015), quoting Maldonado, 466 Mass. at 752 ("To impose a
condition on entry, 'there must be an articulable risk of
witness intimidation or court room disruption'"). Indeed, both
the prosecution and defense had expressed at different times
grave concerns about safety and security. The list and the
exclusions were directly responsive to the significant
identified risks of gang-related violence and intimidation.
20
United States v. Deluca, 137 F.3d 24, 35 (1st Cir.), cert.
denied, 525 U.S. 874 (1998) ("screening procedure was reasonably
designed to respond to [security] concerns"). Cf. Maldonado,
supra ("condition on entry" must be "based on the special
circumstances of the case"). Any exclusions were also
appropriately based on an individualized inquiry attentive to,
and directed at, the specific risk of violence and intimidation
previously identified. Importantly, no one objected to the
particular individuals excluded.
The defendant was able to put friends and family members on
the list. Commonwealth v. Martin, 417 Mass 187, 195 (1994)
("typically, proceedings . . . may not be closed to the family
and close friends of the defendant").13 The defendant and the
Commonwealth also could add to the list other individuals they
wanted with twenty-four hours' advance notice. Finally, the
press was expressly included on the list, and not in any way
excluded.
Although we emphasize that there is a strong "presumption
of openness" and access to our court rooms, we conclude that in
these particularly dangerous circumstances the use of an
13
Additionally, the defendant submitted, with his motion
for a new trial, four affidavits from his cousins asserting that
they were not permitted to enter the court room during the
trial. There was, however, nothing in the record suggesting
that the affiants or the defendant requested that they be on the
list.
21
approved but amendable attendees list to exclude those
presenting a demonstrated risk of violence and intimidation
satisfies the requirement that the intrusion on the right to a
public trial be no greater than is necessary. See generally
Maldonado, 466 Mass. at 751-753 (sign-in and identification
procedure appropriate given risk of gang-related witness
intimidation). See also Deluca, 137 F.3d at 32 (risk of
violence and intimidation justified screening and identification
procedure to allow criminal background checks or inquiry of
connection to defendant that might indicate court room security
threat). Our conclusion here is reinforced by the fact that
both the prosecution and defense had grave security concerns and
the defendant did not object to the individuals excluded.
c. Third Waller factor: reasonable alternatives. The
third Waller factor was satisfied because the judge took
meaningful steps to consider reasonable alternatives to the
approved attendees list. See Maldonado, 466 Mass. at 748,
quoting Waller, 467 U.S. at 48. Here, the judge did not
disregard the parties' original objections to her proposed
partial closure mechanism and specifically sought input as to
alternative ways to address her concerns that the gang overtones
of this case could exacerbate preexisting security problems at
the court house. See Commonwealth v. Wolcott, 77 Mass. App. Ct.
457, 465 (2010) (trial judge required to consider alternatives
22
and must not reject objections out-of-hand). She asked counsel
on several occasions to propose other reasonable ways to
sufficiently address her underlying security concerns. The
Commonwealth discussed having extra Boston police officers
present, and the judge considered increasing the number of court
officers, but she expressed concern that the court lacked
sufficient personnel, as court officers were needed in other
sessions. The judge also sought meaningful alternative
solutions by discussing her concerns with her chief justice and
the chief court officer, neither of whom could suggest a better
alternative. See Presley v. Georgia, 558 U.S. at 214 (trial
courts obligated to consider alternatives even where none was
offered by parties).
Although this case occurred eight years before Maldonado
established the requirement of providing counsel time for
interlocutory review, the judge specifically allowed time for
the parties to seek review by a single justice of this court and
expressed her desire for an appellate opinion on the matter.
See Maldonado, 466 Mass. at 752. None of the counsel for any of
the defendant or codefendants offered any alternatives, and none
of the parties sought interlocutory review. We are satisfied
that the trial judge took meaningful steps to consider
reasonable alternatives before implementing the approved
23
attendees list, and that the motion judge did not err in so
finding.
d. Fourth Waller factor: adequate findings. The final
Waller factor was also satisfied here, because there were
adequate findings in the record to support the closure. See
Maldonado, 466 Mass. at 748, quoting Waller, 467 U.S. at 48.
Because this was a partial closure, we may consider the record
"to see if it contains sufficient support for the closure, even
in the absence of formal or express findings by the judge."
Cohen (No. 1), 456 Mass. at 115. As noted above, this case
involved numerous requests for protective orders responding to
codefendant and witness concerns that testifying might result in
harm. The minutes of the hearing on the defendant's bail status
were impounded because of this fear. The trial judge
extensively discussed her security concerns and her reasoning
for imposing the approved attendees list with the parties on
multiple occasions prior to the trial. Based on the substantial
record of pretrial discussions, the disappearance of a key
witness immediately prior to the defendant's trial, and the
events that occurred during the defendant's trial, we are
satisfied that the judge's findings adequately supported her
decision to partially close the court room using an approved
attendees list. See Cohen (No. 1), supra at 116 (record must
24
allow reviewing court "to glean sufficient support for the
extensive closure").
Exceptional facts justify the exceptional measures taken
here. Although the presumption should always be toward
openness, the partial closure here was a thoughtful, measured
response to a dangerous and difficult set of circumstances.
Given the legitimate security concerns present in this gang-
related murder, we conclude that the Waller factors were
satisfied and that the partial closure of the court room did not
abridge the defendant's Sixth Amendment right to a public trial.
2. Sufficiency of the evidence. The defendant contends
that the trial judge erred by denying his motion for a required
finding of not guilty based on the Commonwealth's failure to
present sufficient evidence of the defendant's presence at the
scene of the shooting and shared intent. In reviewing the
sufficiency of the evidence, we consider the evidence in the
light most favorable to the Commonwealth and determine whether
"any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt" (citation
omitted). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
We conclude that the Commonwealth presented sufficient
evidence to convict the defendant of murder in the first degree
on a joint venture theory. In order to prove murder in the
first degree on the theory of joint venture, the Commonwealth
25
must prove beyond a reasonable doubt that "at the time the
defendant knowingly participated in the commission of [murder in
the first degree by deliberate premeditation, the defendant] had
or shared the intent required for that crime." Commonwealth v.
Zanetti, 454 Mass. 449, 470 (Appendix) (2009). The evidence
need not be direct; circumstantial evidence and inferences drawn
therefrom may be sufficient. Commonwealth v. Linton, 456 Mass.
534, 544 (2010), quoting Commonwealth v. Lao, 443 Mass. 770, 773
(2005), S.C., 450 Mass. 215 (2007) and 460 Mass. 12 (2011).
These inferences "need only be reasonable and possible and need
not be necessary or inescapable. " Linton, supra, quoting Lao,
supra.
Intent to kill may be inferred from the defendant's spoken
words. See Commonwealth v. Fernandes, 427 Mass. 90, 95 (1998)
(declarant's threat to "get" someone admissible as evidence of
state of mind). The defendant's intent to kill individuals
associated with Goncalves is sufficiently clear from his
statements made eleven days before the shootings at issue here,
when Goncalves had shot two of the defendant's friends. See id.
A police officer heard the defendant say that "[s]omebody is
going to die for this" fifteen to twenty times. The defendant
later told Alves, "Don't worry about" the shooting, because the
people responsible were "going to get it." Goncalves's
association with the victims of the April 28 shooting is evident
26
by his presence at the scene that night in the aftermath of the
shooting.
There is also ample circumstantial evidence to show that
the defendant participated in shooting the victims. Shortly
after DaVeiga and Carvalho were shot, the defendant was arrested
in a white minivan, the vehicle that an eyewitness identified as
involved in the shooting. See Commonwealth v. Gomes, 475 Mass.
775, 781-782 (2016) (evidence of defendant's knowing
participation in shooting sufficient where defendant was
involved in prior incident, was present at shooting, and fled
with shooters, and where shell casings found in his automobile
matched ballistics evidence from shooting).
The defendant was in the front passenger seat of the
minivan, wearing Boston Celtics apparel, with Danny Fernandes in
the driver's seat and Silva in the back seat. The eyewitness
told the police that the shooting was perpetrated by two or
three men, all wearing sports jerseys. He specifically noted
that one of the men wore green and white, the colors of the
Celtics. The eyewitness specifically identified Danny Fernandes
and Silva as participants in the shooting, but the Celtics
jersey-clad defendant was the only one in the van who matched
the eyewitness's description of someone wearing green and white.
See Commonwealth v. Watkins, 473 Mass. 222, 230 (2015) (evidence
of defendant's involvement in shooting sufficient where he
27
wanted to fight victim, defendant's clothing and physical
characteristics matched description of shooter, and automobile
matched description of one seen shortly before shooting).
The minivan identified as involved in the shooting was
rented by the defendant four days before the shooting, even
though he owned a functioning Volkswagen. Police recovered a
nine millimeter firearm in the van that matched the ballistics
evidence from three spent shell casings found at the scene of
the shooting. The firearm was hidden underneath a cup holder in
the back of the van and wrapped in a page torn from a Volkswagen
Golf manual, which was also in the van. Police also found two
spent .25 caliber shell casings on the floor of the van.
We conclude that this circumstantial evidence was more than
sufficient to show that the defendant participated in a joint
venture with intent to murder the victims. See Gomes, 475 Mass.
at 781-782; Watkins, 473 Mass. at 230. A rational trier of fact
could have found beyond a reasonable doubt that the defendant
knowingly participated in the commission of the charged crime
with the required intent. See Commonwealth v. Rakes, 478 Mass.
22, 32 (2017).
3. Appropriateness of closing arguments. The defendant
alleges two types of prosecutorial misconduct during closing
arguments: improper burden-shifting and improper bolstering of
and attacks on witness credibility. Specifically, the defendant
28
objected to the following part of the prosecutor's closing
argument, in which the prosecutor asked what the defendant
wanted the jury to believe:
"What does the defense want you to believe in this
case, ladies and gentlemen? [The defendant's counsel] just
gave a very eloquent closing argument. But it's all
coincidence. It's all coincidence. It's all speculation.
What does he want you to believe? Does the defense want
you to believe that it just so happened that somebody used
[the defendant's] minivan, somebody who also had the intent
to kill, who had the motive for revenge? What is he asking
you to believe? Is he asking you to believe that it's just
coincidence that the murder weapon[14] is found in the car,
that at 3:30 in the morning, as he continuously points out,
near his house he happens to be in a passenger seat. Is
that coincidence? Is that coincidence that his
fingerprints are in there, that he's in there? Is it
coincidence that the other people involved in this case,
[are friends] of his? Is it coincidence that Carlos Silva
is a friend of his, seen with him? Danny Fernandes,
friend, cousin? Are those coincidences? Those are not
coincidences, ladies and gentlemen, that is overwhelming
evidence of joint venture. He was part of a team. And it
doesn't matter whether he pulled the trigger that caused
the fatal shots. It doesn't matter. He was part of a
team. He shared the intent."
Because the defendant objected at trial, we review that
claim for prejudicial error. Commonwealth v. Kater, 432 Mass.
404, 423 (2000).
The defense counsel focused his closing argument on the
circumstantial nature of the evidence presented by the
14
The prosecutor mischaracterized the firearm as the
"murder weapon" insofar as the recovered firearm in the minivan
was not the firearm that fired the bullets recovered from the
bodies of either of the victims. The recovered firearm was,
however, involved with the crime as it matched bullets found at
the scene.
29
prosecution, arguing that the case was based on mere
speculation. The prosecutor was entitled to point out the
weaknesses of the defendant's case and "make a fair reply to the
defendant's closing argument." Commonwealth v. Smith, 404 Mass.
1, 7 (1989). See Commonwealth v. Cassidy, 470 Mass. 201, 226
(2014). The prosecutor here responded to the defendant's
closing argument by questioning whether the established facts
seemed like coincidence. In closing argument, a prosecutor may
argue "forcefully for a conviction based on the evidence and on
inferences that may reasonably be drawn from the evidence."
Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). In doing so,
the prosecutor may not shift the burden of proof or argue that
the defendant has any affirmative duty to prove his innocence.
Commonwealth v. Johnson, 463 Mass. 95, 112 (2012), quoting
Commonwealth v. Tu Trinh, 458 Mass. 776, 787 (2011). Nothing in
the prosecutor's language addressing whether the evidence was a
series of coincidences shifted the burden of proof or otherwise
suggested that the defendant had any affirmative duty to put
forward other witnesses or evidence. Rather than shifting the
burden of proof, the prosecutor's language asking the jury to
draw inferences based on the facts presented during trial was a
fair response to the defendant's closing argument. See Smith,
supra.
30
When the defendant objected to this portion of the closing
argument asking what the defendant would have the jury believe,
the judge responded that she would "make clear" where the burden
lies. The judge's jury instruction appropriately highlighted
the Commonwealth's sole possession of the burden of proof. The
judge clearly instructed the jury on the Commonwealth's burden
of the proof at the start of trial and immediately prior to
closing arguments. See Kater, 432 Mass. at 423-424. There was
no error.
Additionally, although not timely objected to at trial, the
defendant contends that the prosecutor's use of rhetorical
questions constituted both burden-shifting and improper vouching
for the credibility of various witnesses. We review this claim
for a substantial likelihood of a miscarriage of justice.
Commonwealth v. Johnson, 429 Mass. 745, 748 (1999).
The rhetorical questions in the prosecutor's closing
argument can be divided into two categories: those that speak
to the evidence and which the defendant claims constituted
improper burden-shifting, and those which speak to witness
credibility and which the defendant claims constituted improper
vouching.
The prosecutor's rhetorical questions are exemplified by
the following language:
31
"And think about the premeditation. Think about the
decisions that [the defendant] made. . . . [H]e gets on
the [tele]phone to Jose Alves, [tells him] . . . [t]hey're
going to get it bad. A few days later, four days before
this murder he rents a white minivan. Why? You can make
reasonable inferences from the facts, ladies and gentlemen.
Why does he rent a white minivan four days before the
murder, a couple days after saying, [t]hey're going to get
it bad for what they did? Because he's premeditating."
Rhetorical questions commenting on the evidence are not
improper. They may permissibly suggest that the defendant's
defense is implausible based on the evidence and the reasonable
inferences that can be drawn therefrom. See Commonwealth v.
Nelson, 468 Mass. 1, 13 (2014); Commonwealth v. Mattei, 90 Mass.
App. Ct. 577, 582-583 (2016). Asking rhetorical questions about
why someone who owned a vehicle rented another one in the same
city does not shift the burden of proof. Rather it asks the
jury to draw a reasonable inference. See Nelson, supra; Mattei,
supra.
The prosecutor similarly asked rhetorical questions in his
closing argument regarding the motive and credibility of key
witnesses including the eyewitness, the two cooperating
witnesses (Alves and Nunes), DaSilva, and Dosouto.
A prosecutor may not vouch for the credibility of
witnesses. Commonwealth v. Penn, 472 Mass. 610, 627 (2015),
cert. denied, 136 S. Ct. 1656 (2016). In keeping with the
prosecutor's ability to point out the weaknesses of the
defendant's case and make a fair reply to his closing argument,
32
however, a prosecutor may address the witness's lack of motive
to lie and do so by asking rhetorical questions relying on the
evidence presented. See Cassidy, 470 Mass. at 226; Commonwealth
v. Smith, 450 Mass. 395, 408, cert. denied, 555 U.S. 893 (2008);
Smith, 404 Mass. at 7. The prosecutor's rhetorical questions
about witness credibility were based on the evidence presented
and largely responded to the defense counsel's own discussion of
credibility in his closing argument. The prosecutor addressed
the witnesses' motives in testifying with rhetorical questions
about what reasons someone may have to lie.15 This language was
15
The prosecutor stated:
"[W]hat reason does [the eyewitness] have to lie?"
"Jose Alves . . . Did he seem like someone who was trying
to say what the Commonwealth wanted? Did he seem like someone
who was lying, or did he seem like somebody who was scared,
somebody who was part of the mix, as he told you?"
"Joao Nunes, what reason does he have to lie? What is he
really getting from this?"
"Jonathan DaSilva, how credible did he seem? Again, his
own friend is murdered right in front of him, another friend
paralyzed for life right next to him. But yet there he is, Oh,
I don't remember anything."
"But then he actually wants you to believe, Amilton Dosouto
does, that when he's shot, [the defendant] is calmly over him
saying, Oh, it'll be all right. Everything is okay. Is that
credible? Of course not, ladies and gentlemen. What's credible
is what those Boston Police Officers told you, that he was
frantic, that he was screaming, Someone is going to die for
this. Amilton Dosouto was credible in certain instances and not
credible in others."
33
not improper. See Smith, 404 Mass. at 7. Further, the jury
instructions clearly and repeatedly stated that closing
arguments were not evidence. As discussed in more detail infra,
the jury instructions were also comprehensive as to the jury's
power to determine for themselves the credibility of witnesses.
The jury are presumed to have followed these instructions. See
Cassidy, 470 Mass. at 226; Nelson, 468 Mass. at 13. There was
no error.
4. Jury instruction on cooperating witness. The defendant
contends that the judge erred in the instructing the jury about
cooperating witnesses. Jose Alves and Joao Nunes testified for
the prosecution pursuant to cooperating witness agreements, and
copies of these agreements were submitted to the jury. The
cooperation agreements were partially redacted at the defense
counsel's request. The redacted cooperation agreement for Alves
retained the following relevant language:
"Mr. Alves agrees to make himself available for
interviews with law enforcement officials and to testify
completely and truthfully before any grand jury
investigating the shooting death of Jose DaVeiga and
shooting of Christopher Carvalho and at any subsequent
hearings or trials relating to the same. Mr. Alves agrees
that he will neither withhold any information in his
possession nor provide false information. Mr. Alves
acknowledges . . . that no law enforcement official has
told him what to say -– other than to tell the truth -– in
any interview or testimony that Mr. Alves is to give.
" . . .
34
"This agreement is also contingent upon Mr. Alves
providing complete and truthful information and testimony
before the grand jury and at any subsequent hearings or
trials."
The redacted cooperation agreement for Nunes included
functionally the same language with respect to promises of
complete and truthful information and testimony. Other
references to truthfulness were redacted from both agreements.
The language presented to the jury, including the limited
references to testifying truthfully, was agreed to by all
parties.
The defendant requested that what he calls a truthfulness
instruction be given to the jury as provided in Commonwealth v.
Ciampa, 406 Mass. 257, 263-264 (1989). The judge did not give
the instruction that the defendant requested, but did give the
following instruction:16
"[Y]ou heard testimony from two witnesses, Jose Alves
and Joao Nunes, who testified under an agreement with the
prosecution. You should examine those witnesses'
credibility with particular care when you assess their
believability. Also, ladies and gentlemen, in assessing a
witness' credibility you may consider any earlier
statements made by the witness which you find differ from
the testimony that the witness has given during the trial
. . . . If you find that the earlier statement differs
from the way that the witness testified in court, then you
may consider that the witness' believability has been
adversely affected, or you may decide that it is not
adversely affected. But that earlier statement may be used
16
The defendant's preferred instruction on truthfulness was
not part of the record, but defense counsel's objection to the
jury instructions at trial indicated that it was not given.
35
by you only for that purpose, that is to determine whether
the witness is testifying credibly at this trial. You may
also . . . in assessing credibility take into account a
witness' frankness or lack of frankness while testifying, a
witness' believability or lack of believability in the
testimony . . . . You may also take into account the
reasonableness or the unreasonableness of the witness'
testimony. You may take into account the probability or
the improbability of the testimony. You may take into
account the accuracy of the witness' recollection and the
degree of intelligence demonstrated by the witness."
(Emphasis added.)
The defendant asserts that despite the judge's instruction that
the jury take "particular care" in evaluating the credibility of
cooperating witnesses, the jury instruction failed to conform to
the requirements of Ciampa, because it failed to include
language indicating that "the government did not know whether
[the cooperating witness] was telling the truth" (citation
omitted). Commonwealth v. Roman, 470 Mass. 85, 100 (2014).
Because the defendant objected to the limited nature of the
instruction, we determine whether there was prejudicial error.
Kater, 432 Mass. at 423.
Where a witness testifies under a cooperation agreement
with the government, the judge must "specifically and
forcefully" instruct the jury to evaluate the witness's
credibility with "particular care." Ciampa, 406 Mass. at 266.
This is necessary to counteract the cooperation agreement's
implied representation of credibility. Id. If the jury are
made aware that the witness promised to tell the truth as part
36
of the cooperation agreement due to either trial testimony or
submission of the cooperation agreements as exhibits, the judge
should additionally "warn the jury that the government does not
know whether the witness is telling the truth." Commonwealth v.
Meuse, 423 Mass. 831, 832 (1996). Nevertheless, "failure to so
instruct, standing alone, is not reversible error. . . . It is
only where the prosecutor has vouched for the witness or
suggested having special knowledge by which he or she can verify
the witness's testimony that such an instruction must be given
to avert reversible error" (citation omitted). Roman, 470 Mass.
at 100.
Here, the judge gave the particular care instruction but
did not give the instruction the defendant requested concerning
that the agreement was conditioned on truthfulness.17 This was
not, however, reversible error, as there was no vouching by the
prosecutor. See Roman, 470 Mass. at 100. Although the
prosecutor reminded the jury that Alves and Nunes had testified
17
The jury instruction to evaluate the credibility of
cooperating witness testimony with "particular care" also
immediately followed instructions to take into account a
witness's interest, bias, or prejudice with regard to the case
when evaluating credibility and were followed by further
instructions on evaluating witness demeanor, reasonability, and
motive. These instructions specifically alerted jurors to the
permissibility of considering a witness's motive for testifying.
See Commonwealth v. Ciampa, 406 Mass. 257, 264 (1989) (jury
instructions must "focus the jury's attention on the incentives
that could have influenced [the witness's] testimony").
37
pursuant to cooperation agreements, his rhetorical questions did
not indicate any special knowledge of their truthfulness as
witnesses. See Commonwealth v. Washington, 459 Mass. 32, 44
n.21 (2011).
Moreover, there was no danger of prejudice here, as the
testimony of Alves and Nunes did not concern the April 28, 2003,
shooting of the victims but rather the defendant's motivation
for the shooting. This testimony was merely duplicative of
other testimony, particularly the defendant's repeated
statements to a Boston police officer at the scene of the prior
April 17, 2003, shooting of Alves and Dosouto that "[s]omeone
was going to die for this." For all these reasons, the
defendant was not prejudiced by the failure to give the
instruction the defendant requested.
5. Review under G. L. c. 278, § 33E. We have reviewed the
record pursuant to G. L. c. 278, § 33E, and discerned no basis
to set aside or reduce the verdict of murder in the first degree
or to order a new trial. Accordingly, we decline to exercise
our authority.
Conclusion. For the reasons stated above, we affirm the
defendant's convictions. We also affirm the denial of the
defendant's motion for postconviction relief.
So ordered.