Commonwealth v. Fernandes
| Citation | 492 Mass. 469,212 N.E.3d 785 |
| Docket Number | SJC-11668 |
| Decision Date | 21 July 2023 |
| Parties | COMMONWEALTH v. Jose FERNANDES. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
James W. Rosseel, Worcester, for the defendant.
Mary Lee, Assistant District Attorney, for the Commonwealth.
Present: Budd, C.J., Lowy, Kafker, Wendlandt, & Georges, JJ.
The defendant, Jose Fernandes, was tried before a Bristol County jury and convicted of murder in the first degree for the May 17, 2009, shooting death of Troy Pina (victim).1 The Commonwealth proceeded against the defendant on theories of deliberate premeditation and joint venture liability. Among other evidence, the jury heard testimony from the defendant's associate, Alexis Cruz, that the defendant confessed to participation in the shooting.2
Cruz's testimony was supported by secret recordings of the defendant discussing his involvement.3
On appeal from the verdicts and from the denials of his motions for a new trial, for an evidentiary hearing, and for further discovery, the defendant claims a number of errors, including that the secret recordings were not authorized by law and should not have been admitted in evidence, that Cruz should not have been permitted to testify to his understanding of certain slang used by the defendant, and that the defendant was prejudiced by the failure of the Commonwealth to turn over certain discovery.
We address these contentions and others infra, and for the reasons that follow, we affirm the denial of the motion for a new trial, the denial of the motion for an evidentiary hearing, and the denial of the motion for further discovery; we affirm the defendant's convictions on the charge of murder in the first degree, the three charges of armed assault with intent to murder, and the charge of carrying a firearm without a license; we vacate as duplicative the defendant's convictions on the three charges of assault by means of a dangerous weapon; and after a thorough review of the entire trial record, we decline to allow relief under G. L. c. 278, § 33E.
Background. Viewing the evidence in the light most favorable to the Commonwealth, we recite the essential facts that the jury could have found, reserving certain details for our discussion of the issues. The defendant and Brian Lacombe were drug dealers, and both were part of "Supreme Team,"4 an association that also included Thomas Jeffreys, Marcus Mitchell, Joey Gomes, and Cruz.
In May 2008, a feud began between Supreme Team and an individual named Francisco Monteiro.5 As one way of obtaining money, Mitchell and other members of Supreme Team managed or promoted dancers at strip clubs. Monteiro did the same. At that time, Mitchell and Monteiro both were in South Carolina with dancers they promoted, during an event known as "Bike Week." A dancer associated with Mitchell tried to convince certain dancers associated with Monteiro to work with Mitchell instead, and Monteiro became upset (South Carolina dispute). The victim, a friend of Monteiro, was involved in this dispute as well.
By early 2009, the feud escalated into violence when Mitchell grabbed the victim and pushed him against a vending machine. After a verbal confrontation with Monteiro around the same time, Mitchell asked Jeffreys for a gun, and he obtained a .40 caliber gun from Jeffreys's girlfriend. The jury could have inferred that the defendant was the source of the gun given to Mitchell, as the defendant was acquiring guns from drug customers and supplying them to the team.
One or two months later, Monteiro "sucker punched" Jeffreys. Jeffreys was angry and vowed to shoot Monteiro. After that, Jeffreys, Mitchell, Cruz, Lacombe, and the defendant met at a pizza parlor. Jeffreys told everyone that "it was on" between Supreme Team, on the one hand, and Monteiro and the victim, on the other. From that point onward, the members of Supreme Team traveled together and carried guns. The defendant typically traveled with Lacombe. About one week after Monteiro punched Jeffreys, Monteiro shot Cruz outside a bar in Taunton. The other members of Supreme Team were angry and vowed revenge.
On May 16 and into the early morning hours of May 17, 2009, the defendant was traveling with Lacombe in one vehicle, and Jeffreys was traveling with Mitchell in another. The defendant carried a .45 caliber gun, and the three others carried .40 caliber guns. The defendant later told Cruz that they were "patrolling, hunting." Supreme Team encountered Monteiro at around midnight in the Whittenton area of Taunton, and Jeffreys fired three shots at him. The defendant and Lacombe were nearby but drove away after encountering a police vehicle.
Later that night, Jeffreys and the defendant positioned their vehicles to intercept Monteiro's vehicle on the highway. At about 1:40 A.M. , Jeffreys and Mitchell shot at Monteiro's vehicle with .40 caliber guns from Jeffreys's black Infiniti. The defendant shot at Monteiro's vehicle with a .45 caliber gun from the vehicle that he was driving. At least three guns were used in the shooting, two .40 caliber guns and a .45 caliber gun. The victim, who was riding in the front passenger's seat of the vehicle driven by Monteiro, was killed.
In the hours leading up to and following the shooting, the defendant maintained cell phone contact with Jeffreys. After the shooting, Jeffreys parked the Infiniti where it was not visible from the street, and later that morning, the defendant went to the same location to pick up the Infiniti. At that time, a witness heard the defendant talking about something happening on the highway. Later examination of the Infiniti revealed a hasty repair to cover up what the jury could have inferred was a hole from a bullet that passed from inside to outside the vehicle. The same day, the defendant and Lacombe went to a remote area with a box and a shovel. When they returned, they did not have the box. Asked what they were doing, Lacombe joked that they were burying a goldfish or a cat, and the defendant and Lacombe both laughed. About two weeks later, the defendant also traveled with Jeffreys and his brother, John Jeffreys,6 when they went to intimidate a grand jury witness into providing false testimony regarding the shooting.
On August 23, 2010, the defendant was arrested for conspiracy to violate the drug laws. While the defendant was held on bail, in November 2010, the Commonwealth applied for and obtained a warrant authorizing the secret recording of the defendant. The recording was effected that same month by Cruz, a member of Supreme Team who cooperated with the Commonwealth after his arrest on gun charges. In the recordings and in other conversations with Cruz, the defendant admitted that he participated in the shooting along with Jeffreys and Mitchell; that he supplied the guns used in the shooting, which came from his customer; that he was carrying a .45 caliber gun that evening; and that he killed the victim. In fact, the victim was killed by a .40 caliber bullet, but a .45 caliber bullet was found on the floor near the front passenger's seat where the victim had been sitting. The defendant confessed to "doing one" person and not being afraid of "doing another." He also expressed his anger at how Mitchell had disposed of one of the guns.
In March 2013, a Bristol County jury found the defendant guilty of one count of murder in the first degree, three counts of armed assault with intent to murder, three counts of assault by means of a dangerous weapon, and one count of unlawful possession of a firearm.7 In May 2019, after a series of extensions and stays of appeal, the defendant filed a motion for postconviction discovery in this court, which motion was remanded to the Superior Court. A Superior Court judge allowed the motion and ordered production of the Commonwealth's file related to the grand jury investigation, but the judge subsequently revised the order to exclude materials subject to work product protections.
In March 2020, the defendant filed with this court his motions for a new trial, for an evidentiary hearing, and for further discovery, which were also remanded to the Superior Court. A Superior Court judge (motion judge) denied all three motions, and the appeal from these denials was consolidated with the appeal from the defendant's convictions.
Discussion. 1. Standard of review. We review the defendant's consolidated appeal pursuant to G. L. c. 278, § 33E, assessing preserved issues according to the appropriate constitutional or common-law standard and unpreserved issues for a substantial likelihood of a miscarriage of justice. See Commonwealth v. Upton, 484 Mass. 155, 159-160, 139 N.E.3d 1159 (2020). In analyzing the defendant's motion for a new trial where the motion judge neither presided at trial nor held an evidentiary hearing, we "examine [his] conclusion only to determine whether there has been a significant error of law or other abuse of discretion," although as he did not assess the credibility of any witnesses, we "regard ourselves in as good a position as the motion judge to assess the trial record." Commonwealth v. Jackson, 468 Mass. 1009, 1010, 9 N.E.3d 844 (2014), quoting Commonwealth v. Grace, 397 Mass. 303, 307, 491 N.E.2d 246 (1986).
2. Admissibility of secret recordings. The defendant's primary argument on appeal is that the jury should not have heard the secret recordings of the defendant's confessions to Cruz. The question then is whether the trial judge properly denied the defendant's motion in limine to exclude these recordings. We review the instant issue de novo because the defendant disputes only points of law, see Commonwealth v. Mitchell, 468 Mass. 417, 421, 11 N.E.3d 86 (2014), specifically, (a) whether the evidence before the trial judge established a nexus to organized crime for purposes of the Massachusetts wiretap statute's "one-party consent exception," G. L. c. 272, § 99 B 4 ; and (b) whether the secret recordings violated certain of the defendant's constitutional...
To continue reading
Request your trial