Com. v. Fernandes

• Decision Date: 02 July 1997
• Citation: 681 N.E.2d 270,425 Mass. 357
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. Stephen FERNANDES.

Page 270

681 N.E.2d 270

425 Mass. 357

COMMONWEALTH v. Stephen FERNANDES.

Supreme Judicial Court of Massachusetts,

Plymouth.

Argued April 7, 1997.

Decided July 2, 1997.

Roger A. Cox, Ashland, for defendant.

John E. Bradley, Assistant District Attorney, for the Commonwealth.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY and FRIED, JJ.

ABRAMS, Justice.

At issue is whether G.L. c. 233, § 20I, requires that the testimony of an immunized witness be corroborated by evidence of the defendant's actual participation in the crime. The defendant, Stephen Fernandes, claims that his conviction of murder in the first degree was based primarily on the evidence of an accomplice who was testifying under a grant of immunity. He asserts that the immunized witness's testimony was insufficient to establish his actual participation in the crime. The defendant asks us to modify our holding in Commonwealth v. DeBrosky, 363 Mass. 718, 297 N.E.2d 496 (1973), to include a requirement that the corroboration of an immunized witness's testimony include evidence of the defendant's actual participation in the crime. We decline to modify our holding in DeBrosky. We affirm the defendant's conviction of murder in the first degree. We decline to exercise our power under G.L. c. 278, § 33E, in favor of the defendant.

We set forth the facts in the light most favorable to the Commonwealth. See Commonwealth v. Scanlon, 373 Mass. 11, 19, 364 N.E.2d 1196 (1977); Commonwealth v. Sandler, 368 Mass. 729, 740, 335 N.E.2d 903 (1975). The victim was shot numerous times at approximately 2:15 A.M. on November 3, 1991. The victim was seated in the driver's seat in a parked motor vehicle outside his mother's apartment in Brockton. The victim's cousin, Jesse Starks, was seated in the front passenger seat. Starks did not see the individuals who fired the twenty to thirty gunshots because he slumped down in his seat to avoid being shot. The autopsy showed that four bullets struck and killed the victim.

The immunized witness said that he had attended the party on the night of the shooting along with the defendant and others. At some point, the defendant told the immunized witness that he was "sick of" the victim because the victim had pulled a gun on the defendant earlier that week or the week before. The defendant said that he wanted to go to the east side of Brockton with a group of others and "wet them bitches up," meaning that they wanted to kill the victim and his friend. The immunized witness saw that the defendant had a Glock nine millimeter handgun in his possession, "a black [nine millimeter]. A regular gun." ¹ Several other members of the defendant's group also had handguns.

The immunized witness testified that he drove four others to "the eastside projects." They followed behind another vehicle carrying four other people, including the defendant. When they arrived at the projects, the two drivers stayed by their vehicles while the others walked into the projects. The immunized witness heard one gunshot, then a flurry of shots, and then the defendant and the others came running back to the parked vehicles. The group drove away.

The immunized witness also recounted the details of the meeting the following day at the apartment of the other driver. The defendant was present, as were the others involved in the shooting. The group discussed what to do if "the cops came around." They also discussed getting the guns out of the home of a girl friend of one of the group members.

Evidence from other sources showed that the victim and the defendant had been in an argument two weeks before the shooting; the defendant told Starks approximately one week before the shooting that he was "going to get" the victim and Starks; the defendant and a codefendant had attended a party in Brockton on the night of the shooting and the codefendant had a gun in his possession; the defendant left the party with a group of others in two cars, one of which was driven by the immunized witness.

The Commonwealth also presented the testimony of the roommate of the driver of the second car that transported the defendant and his friends from the party on the night of the murder. According to this witness, the group went into one of the bedrooms in his apartment, but this witness was told to stay out because the meeting did not concern him. He overheard some of the conversation from the room which included a discussion about what to do with certain guns and who to "blame it on." One person suggested that the group should blame it on "some kids from Boston."

General Laws c. 233, § 20I, provides: "No defendant in any criminal proceeding shall be convicted solely on the testimony of, or the evidence produced by, a person granted immunity under the provisions of [§ 20E]." The defendant urges us to reconsider our decision in DeBrosky, supra, and require some proof of the defendant's actual participation in the crime to corroborate the testimony of an immunized witness.

"The purpose of the statute is to require support for the credibility of the immunized witness. That support may come as much in the form of corroboration of evidence of the commission of the crime as it does from proof that the defendant was a participant." DeBrosky, supra at 730, 297 N.E.2d 496, citing J. Wigmore, Evidence § 2059, at 327 (3d ed.1940). We decline to modify our holding in DeBrosky.

The policy basis of evaluating credibility remains the most important factor behind the statute. Cases from...