Commonwealth v. Fernandes

Decision Date01 July 2021
Docket NumberSJC-11586
Citation487 Mass. 770,170 N.E.3d 286
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Rosemary Curran Scapicchio, Boston, for the defendant.

Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

Present: Budd, C.J., Gaziano, Lowy, Kafker, & Wendlandt, JJ.


In May of 2010, when the defendant was sixteen years old, he shot and killed fourteen year old Nicholas Fomby-Davis on a street in Boston. At a joint trial, the defendant and his codefendant Crisostomo Lopes were both convicted of murder in the first degree. In accordance with G. L. c. 265, § 2, as the statute stood at the time of his trial, the defendant was sentenced to life in prison without the possibility of parole.1

In this direct appeal, the defendant argues that reversal of his convictions is required because of issues with jury empanelment, the statute requiring him to be tried as an adult, the exclusion of expert testimony on juvenile brain development, the jury instructions on extreme atrocity or cruelty, the denial of his motions to suppress and to sever, and certain statements in the prosecutor's closing argument. After considering all of these issues, and reviewing the whole case as required by G. L. c. 278, § 33E, we affirm the defendant's convictions. We remand for resentencing, however, in accordance with Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 658-659, 1 N.E.3d 270 (2013), S.C., 471 Mass. 12, 27 N.E.3d 349 (2015), where we held that a life sentence for a juvenile defendant, without the possibility of parole, violates art. 26 of the Massachusetts Declaration of Rights.

1. Factual background. We recite the facts the jury could have found, reserving some details for later discussion of specific issues.

On a Sunday evening in May 2010, the victim and his older brother were riding around their neighborhood in Boston on a scooter; the brother was driving and both were wearing helmets.

Near an intersection, the brother almost collided with a man on a bicycle as the man rode off the sidewalk into the street. The brother stopped the scooter and was able to see the man, briefly but clearly, while the man rode away. The brother later identified the man as Lopes. A short time later, the brother stopped at their house to pick up some cash so they could go to a fast food restaurant, while the victim continued to do laps around the block on the scooter, wearing his brother's helmet.

At around the same time, Anthony Williams, an off-duty Boston police officer and a member of the department's youth violence strike force, was driving through the neighborhood in his personal vehicle when he saw the defendant and Lopes walking on the street with a bicycle. Their manner of walking, as though they were "on a mission," made Williams suspicious, so he pulled over to watch them. Williams observed the two wait by an intersection, crouching down and appearing to be looking for someone; the defendant had his hand in his pocket. When the victim passed by on the scooter, Lopes darted out into the street, grabbed the victim, and beckoned to the defendant. The defendant approached, removed a gun from his pocket, and shot the victim three or four times at close range.

Williams had an unobstructed view of these events from inside his stopped vehicle, five to six feet away. His testimony was corroborated, with minor variations, by another eyewitness, as well as by surveillance video footage. The footage, however, did not capture the actual shooting.

The victim stumbled from the middle of the street into a nearby store, where he fell to the ground and started shaking. He was gasping for air and had blood on his shirt. He was carried outside to the sidewalk, where another police officer who arrived on scene attempted to revive him as he passed in and out of consciousness. Paramedics arrived and treated the victim, but by that point he showed no signs of life, and he was pronounced dead on reaching the hospital. The victim had suffered gunshot wounds to the chest, near his left armpit, and on his right thigh.

The defendant meanwhile fled down the street and around a corner, holding a gun, with Williams driving after him and giving instructions to other officers over his radio, including one who arrived on the scene in a marked cruiser. At some point while he was running, the defendant slowed down and ducked near a Toyota Camry, parked along the street next to a pickup truck; thereafter, Williams no longer saw the gun in his hand. Williams eventually overtook and arrested the defendant with the assistance of one of the officers from the cruiser. That officer observed that the defendant was smiling. The defendant was pat frisked and no weapon was found. After a brief search, a .25 caliber pistol was located under the Toyota Camry that was parked where the defendant had been seen to duck down as he was running. Ballistics analysis later established that it was the weapon that had been used to kill the victim.

Immediately after the defendant had been handcuffed, Lopes, on a bicycle, appeared behind the officers; Williams noticed that he was the same person who earlier had grabbed the victim from the scooter, so Williams arrested Lopes. As he was being taken into custody, Lopes said to Williams, "What are you going to do, shoot me? You can catch one, too" -- a threat that Williams understood to mean that he himself would get shot. Lopes then yelled, "Homes Ave., motherfuckers," and "that's right, bitches, Homes Ave. on the block," referring to a nearby street and a gang police knew to be based there.

In a statement to police several hours after the shooting, the defendant disavowed any knowledge of how the killing occurred.2 He said that he had been walking alone when the scooter "came at" him, trying to hit him, and that he then "just blacked out." Sometime after 1 A.M. , while the defendant and Lopes were in nearby cells at the police station awaiting booking, Lopes yelled to the defendant at least three times, in Cape Verdean Creole, that the defendant should "take the fault." The defendant responded, but neither the officers in the booking area nor Lopes were able to hear what he said.

The jury deliberated for less than one day before finding the defendant guilty of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty; further, the jury convicted him of possession of a firearm. Lopes also was found guilty of murder in the first degree on both theories; in 2018, we affirmed his conviction. See Commonwealth v. Lopes, 478 Mass. 593, 607, 91 N.E.3d 1126 (2018).

2. Discussion. The defendant argues that reversal of his convictions is required because the use of peremptory challenges to exclude younger members of the venire from the jury violated his constitutional

rights; the statute requiring him to be tried as an adult is unconstitutional; he was improperly precluded from offering expert testimony on juvenile brain development; the jury should not have been instructed on the theory of extreme atrocity or cruelty; statements he made to police should have been suppressed; his trial should have been severed from that of his codefendant; and the prosecutor's closing argument was improper.

a. Jury empanelment. The defendant argues that his right to an impartial jury under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights was impaired by the prosecutor's use of peremptory challenges to keep younger members of the venire from being seated on the jury. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ; Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979).3 Of the Commonwealth's thirty-two peremptory challenges, the prosecutor used twenty-one on college students, and an additional five on nonstudents under the age of thirty. The prosecutor told the judge that

"the Commonwealth has tried to exclude or to use challenges on the individuals who are less than [twenty-five] or college students. It is the Commonwealth's position, based upon experience, that individuals who are in college, not to disparage, but they often times have difficulties in deciding what classes to take, never mind whether or not somebody is guilty of first-degree murder."

Counsel for the defendant objected to these challenges strenuously and repeatedly. Eventually, one college student was seated, after the prosecutor had exhausted the Commonwealth's peremptory challenges.

Article 12 protects a "defendant's right to be tried by a fairly drawn jury of his or her peers." Commonwealth v. Jones, 477 Mass. 307, 319, 77 N.E.3d 278 (2017). Peremptory challenges thus may not be used "to exclude members of discrete groups, solely on the basis of bias presumed to derive from that individual's membership in the group." Soares, 377 Mass. at 488, 387 N.E.2d 499. "Discrete groups that are protected include groups defined by potential jurors' sex, race, color, creed, or national origin." Commonwealth v. Obi, 475 Mass. 541, 551, 58 N.E.3d 1014 (2016).4 In Soares, supra at 488–489, 387 N.E.2d 499, we said that art. 1 of the Massachusetts Declaration of Rights, as amended by art. 106 (Equal Rights Amendment), was "definitive" as to the "generic group affiliations which may not permissibly form the basis for juror exclusion," namely, sex, race, color, creed, and national origin. See Commonwealth v. Aponte, 391 Mass. 494, 507, 462 N.E.2d 284 (1984).

Federal constitutional jurisprudence reaches a similar result by focusing on how the use of peremptory challenges to target members of certain protected groups violates the equal protection rights of both the defendant and the excluded juror. Commonwealth v. Sanchez, 485 Mass. 491, 493, 151 N.E.3d 404 (2020). See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 130, 114 S.Ct. 1419...

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