Commonwealth v. Fernandes

• Decision Date: 06 July 2020
• Docket Number: SJC-11732
• Parties: COMMONWEALTH v. Ashley FERNANDES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

485 Mass. 172

148 N.E.3d 361

COMMONWEALTH

v.Ashley FERNANDES.

SJC-11732

Supreme Judicial Court of Massachusetts, Essex..

Argued February 14, 2020.

Decided July 6, 2020.

Leslie W. O'Brien, Boston, for the defendant.

Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Lenk, Budd, Cypher, & Kafker, JJ.

KAFKER, J.

A jury convicted the defendant, Ashley Fernandes, of murder in the first degree in connection with the strangulation death of his girlfriend, Jessica Herrera. At trial, the Commonwealth successfully pursued theories of both deliberate premeditation and extreme atrocity or cruelty. The defendant was also convicted of assault and battery, but acquitted of attempted murder by strangling, in connection with a separate domestic violence incident involving the victim three and one-half months before the murder.

Information about the murder first came to light on the night of April 5, 2008, just hours after the victim's death, when during a casual conversation with another patron at a bar the defendant twice "blurted out" that his girlfriend was dead in his apartment. The next morning, the concerned bar patron reported the conversation to the police. Further investigation led to a motor vehicle stop of the defendant's car that afternoon. During the stop, the defendant spontaneously invited police to search his nearby apartment. In a back room of the Peabody apartment, police found the victim's naked body rolled in a blanket. Police took the defendant into custody, and later that evening he confessed to strangling the victim inside the apartment. Police immediately sought and executed a search warrant of the apartment, where they found graphic images of the victim, taken at or near the time of her death, stored in a digital camera tucked inside a kitchen drawer.

In this consolidated appeal from his convictions and from several related orders denying postconviction relief, the defendant asserts reversible error arising from the denial of his pretrial motion to suppress the digital camera images. He contends that the relevant warrant applications lacked sufficient information to connect either the camera or its contents to the homicide, such that the warrants issued without probable cause.

The defendant, who is from India and is not a citizen of the United States, also claims that violations of his consular notification and access rights under art. 36 of the Vienna Convention on Consular Relations resulted in constitutional errors of structural magnitude, namely deprivation of his constitutional rights to (a) representation by counsel of his choice, and (b) court-appointed conflict-free counsel. We also address additional claims that trial counsel's decision not to introduce certain evidence amounted to ineffective assistance, and that the trial judge's failure to give a requested intoxication instruction was error. The defendant also seeks extraordinary relief pursuant to G. L. c. 278, § 33E. Whereas each of the above claims lacks merit, and we discern no basis to grant extraordinary relief after plenary review of the record on appeal, we affirm the defendant's convictions and the orders denying each of his motions for postconviction relief.

Factual background. 1. The domestic homicide. The evidence, viewed in the light most favorable to the Commonwealth, Commonwealth v. Anderson, 396 Mass. 306, 311, 486 N.E.2d 19 (1985), permitted the jury to find the following facts. The defendant came to the United States in 2005, when he was twenty-five. In April or May of 2007, the defendant met the victim at a local bar. The victim, who was in her mid-twenties, was then working as a dental hygienist and living in Peabody with her husband and her two sons, both under two years old. The Department of Social Services (department) was involved with the family, and the victim's husband moved out shortly after she met the defendant. Although the defendant and the victim were not then involved in a romantic relationship, he moved in with her to help pay rent and expenses, and assisted with child care. By early September, the victim and the defendant had established an exclusive intimate relationship.

The severity of the victim's drinking problem soon contributed to growing turbulence in her relationship with the defendant. According to the defendant, one day in October 2007, he returned home from work early to find the victim's children in the living room crying and the victim "having sex" with a man he did not know in a different room. At the defendant's request, the man left. Unprompted by the defendant, the victim went with him. Finding himself alone with two distraught children, the defendant called the department. Representatives of the department arrived promptly and removed the children; the victim lost custody of both boys. By working with the department, she managed to regain custody, however briefly, just before Christmas.

On Christmas Eve, the children went for an overnight visit with their father's family. Since the defendant's birthday is the same day as Christmas, the defendant and the victim met up with another couple to celebrate. The festivities were cut short, however, because of the victim's excessive alcohol consumption. After their company left, the victim and the defendant went to sleep.

According to the victim's later statements to police, she awoke suddenly to find herself on the floor with the defendant straddled over her, punching her, slamming her head against the floor, and calling her a "whore" and a "bitch." He told her that he would kill her, and that she would die and no one would hear her scream. The beating went on for more than two hours, as she struggled in and out of consciousness, trying to get up off the floor. He choked her until she could not breathe. She blacked out. When she regained consciousness, her ears were ringing, and she begged and pleaded with him to stop, "trying to say anything for him not to kill [her]." Finally, he relented. The area around the victim's left eye was black and blue, and the white of the eyeball was completely blood red.¹ She did not call police, fearing the department would take her boys away.²

A few days after Christmas, the victim's stepfather drove to Peabody to bring the victim back with him to Cape Cod, where she stayed with her parents for a time. On January 4, 2008, the victim visited the Peabody police station, seeking help to "remove" the defendant from the apartment. She spoke with the head of the domestic violence unit, who asked what had happened. The victim described the attack, made a written statement, and permitted the officer to photograph her injuries.³ Later the same day, police arrested the defendant and a complaint issued in the Peabody Division of the District Court Department charging him with assault and battery. Following a weekend in jail, and a Monday court hearing,⁴ the defendant was released. The victim obtained a restraining order and "moved out" for a time.

On Valentine's Day, the defendant accompanied the victim to court, where she successfully moved to vacate the restraining order. Reconciliation was short lived, however, and during a telephone argument soon thereafter, the defendant told the victim's stepfather that he (the defendant) "would be sending [the victim] home in a box." Before February ended, the victim left Peabody again. Her stepfather convinced her to try a rehabilitation program, but she stayed only one day before leaving to reunite with the defendant. In early March, the victim again returned to her parents' home on Cape Cod, where she stayed with her stepfather for about three weeks. During this time, the victim met and began spending time with a man in his early twenties named Brett. She also interviewed for jobs in the area and started looking for an apartment nearby. The defendant's pending assault and battery case was scheduled for trial on April 11, and the department would not allow the children to visit the victim while she lived with him. Still, the victim allowed the defendant to visit her on Cape Cod and had moved back in with him by March 23. They then spent several days together at a hotel on Cape Cod, returning to Peabody on or about April 1.

On Thursday, April 3, the defendant visited Salem Hospital with symptoms including numbness and chest pain. Doctors admitted him overnight for testing and advised rest. On April 4, he returned home to find the apartment a mess and the victim drunk; she continued drinking and playing loud music, disturbing his efforts to rest. At 12:06 A.M. on April 5, the victim spoke to Brett by telephone and asked him to come to Peabody and drive her back to Cape Cod. Around 12:45 A.M. , she called back to say that circumstances had "changed" and she would "be fine until the morning."

On the morning of Saturday, April 5, the defendant answered the victim's cell phone to a male voice saying, "hello sweetheart."

Upset, the defendant asked the victim who was on the telephone. She ignored him, and then took the call in another room. That afternoon, around 2:30 P.M. , the victim telephoned Brett to say that she had a ride to Harwich later. The defendant took the victim to buy a twelve-pack of beer, and then both returned to the apartment, where she invited him to have a drink with her. The defendant had two or three beers, and the victim drank the remaining nine or ten. At about 5 P.M. , the victim called Brett again, sounding distressed. She asked him to drive from Plymouth to pick her up in Peabody, and Brett agreed to come.⁵

Not long after the victim ended the telephone call, she and the defendant argued, and the verbal altercation escalated into a physical struggle on the living room floor. As the defendant himself described during the video-recorded confession to police the night of his arrest, he put his hands on the victim's neck and pushed hard, choking her until she urinated. The victim struggled, "trying kicks" to escape out from...