Commonwealth v. Tavares

• Decision Date: 14 May 2015
• Docket Number: SJC–11508.
• Citation: 30 N.E.3d 91,471 Mass. 430
• Parties: COMMONWEALTH v. Sandro TAVARES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

471 Mass. 430

30 N.E.3d 91

COMMONWEALTH

v.Sandro TAVARES.

SJC–11508.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 9, 2015.

Decided May 14, 2015.

Dennis Shedd, Lexington, for the defendant.

Sarah Montgomery Lewis, Assistant District Attorney (John P. Pappas, Assistant District Attorney, with her) for the Commonwealth.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, & DUFFLY, JJ.

Opinion

BOTSFORD

, J.

In October, 2011, a jury in the Superior Court convicted the defendant of murder in the first degree based on deliberate premeditation in connection with the fatal shooting of Manuel Monteiro and Jovany Eason.¹ The defendant did not fire the gun that killed the victims, but was convicted on a theory of joint venture with the shooter, who took the gun from the defendant's hand and began shooting.

On appeal, the defendant argues that there was insufficient evidence to convict him of murder in the first degree based on a joint venture theory, that the judge erred in not instructing the jury on involuntary manslaughter and in misstating the law of joint venture in her response to a jury question, and that the prosecutor made improper statements in his closing argument.² We conclude that the judge's mistaken response to the jury question regarding the law of joint venture created a substantial likelihood of a miscarriage of justice. Therefore, we vacate the defendant's conviction on the murder charges and remand for a new trial on those indictments.³

Background. Because the defendant challenges the sufficiency of the evidence presented, we summarize the facts the jury could have found in the light most favorable to the Commonwealth. See Commonwealth v. Earle, 458 Mass. 341, 342, 937 N.E.2d 42 (2010)

. We reserve certain facts for further discussion in connection with other issues raised.

Around 1 a.m. on August 2, 2009, an argument erupted at a bar and restaurant (bar) in the Dorchester section of Boston that was a popular gathering spot for members of the Cape Verdean community.

The argument led to a physical fight in the restroom of the bar, and later to the fatal shooting of the two victims. Much of the incident was recorded by surveillance cameras inside and outside the bar and outside a building across the street.

The argument began shortly after the defendant and a companion, Stephen Depina, arrived at the bar.⁴ The defendant embraced a friend who was at the bar and said to him, “I don't understand why you hang with the Draper Street niggas.” Eason, who was standing behind the defendant at the time, and who was friendly with people from the Draper Street neighborhood, overheard this comment, and an angry exchange ensued. Adilson Resende was working security at the bar that night, and he separated the two men; immediately thereafter, the defendant left the bar with Depina. Once outside, the defendant and Depina turned right and walked south.

Inside the bar, the dispute continued. Otelino Goncalves, another patron, argued with Eason; other men became involved as well, and the argument moved to the restroom. Around the same time, the defendant's codefendant, Emmanuel Pina, approached the bar from the south, crossed to the other side of the street, and, less than a minute later, came back across the street and entered the bar.⁵ Once inside, Pina headed directly to the restroom and joined Goncalves in arguing with Eason and two of Eason's friends. The owner of the bar attempted to quell the argument, but the situation quickly escalated into a physical fight, with punches and kicks being thrown, and Resende and a bartender rushed in to intervene. Goncalves and Pina were forced out of the restroom and out the front door of the bar, with Goncalves exiting first, Pina second, and Adelberto Brandao (another patron who had assisted the employees in removing Goncalves and Pina) third. Eason left the bar on his own about fifteen seconds ahead of Goncalves and Pina and headed to his motor vehicle, which was parked right in front of the bar.

While the fight was developing inside the restroom, the defendant and Stephen Depina returned to the area outside the bar; the

defendant was carrying a gun. The defendant waited by the side of the bar for a few seconds before moving back to the sidewalk in front of the building and then crossing to the other side of the street.

As Eason was opening his vehicle's door to leave, Goncalves approached him, and the two squared off in the middle of the street as if to engage in a second round of their earlier fight. Before the fight began, however, the defendant approached Eason from the sidewalk across the street and pointed the gun at him. Joao Depina, another patron who was inside the bar watching this scene through a window, saw the defendant try to “rack” the gun, meaning to pull the slide back in order to position a bullet in the chamber so that the gun could be fired. Eason pointed his hand at the defendant, and the men backed away from one another.

Pina then grabbed or took the gun from the defendant.⁶ With gun in hand, Pina ran toward Eason, shooting at him. One shot broke through a window near the front door of the bar and hit Monteiro (a cook in the restaurant portion of the bar who was standing at the window watching the altercation outside) in the chest. Monteiro collapsed shortly after being hit; he died from the gunshot wound

and was pronounced dead at the scene.

Eason, meanwhile, was running north up the street followed by Pina, who was continuing to shoot at him, hitting Eason multiple times in the back. A few seconds behind Pina ran Brandao and the defendant. At an intersection, Eason turned left, where he fell to the ground and was later discovered by police officers. Pina turned right and ran up another street. The defendant followed Pina to the corner of the intersection, but then turned and ran off in another direction. Emergency medical personnel arrived shortly thereafter and transported Eason to Boston Medical Center, but he died of gunshot wounds

before arriving at the hospital.

The defendant as well as Pina were indicted for the murders of Monteiro and Eason and for possession of a firearm without a license in violation of G.L. c. 269, § 10 (a )

. In late November, 2009, approximately one month after the defendant's indictments issued, the defendant was arrested in Atlanta, Georgia, where he had been living under an assumed name. He and Pina were tried

before a jury in September, 2011, and at the close of the evidence, the defendant moved for a required finding of not guilty, which was denied. The judge instructed the jury on principles of joint venture and transferred intent. After deliberation, the jury convicted the defendant and Pina of murder in the first degree of both victims on the theory of deliberate premeditation.⁷ The jury also found the defendant guilty of the firearm possession charge. The defendant filed a timely appeal from his convictions.

Discussion. 1. Sufficiency of the evidence. The defendant contends that the judge erred in declining to grant his motion for a required finding of not guilty, because there was insufficient evidence to convict him of deliberately premeditated murder. As previously noted, we consider the evidence on this issue in the light most favorable to the Commonwealth, and, “drawing all inferences in [the Commonwealth's] favor,” ask whether evidence existed to “permit a rational jury to find each essential element of the crime beyond a reasonable doubt.” Earle, 458 Mass. at 346, 937 N.E.2d 42

. See Commonwealth v. Latimore, 378 Mass. 671, 676–677, 393 N.E.2d 370 (1979).

Because the defendant's murder convictions were based on his role in the killings as a joint venturer, the Commonwealth was required to prove to the jury that “the defendant knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense.” Commonwealth v. Zanetti, 454 Mass. 449, 467–468, 910 N.E.2d 869 (2009)

. “The defendant's intent may be inferred from his knowledge of the circumstances and participation in the crime,” Commonwealth v. Norris, 462 Mass. 131, 139, 967 N.E.2d 113 (2012), quoting Commonwealth v. Carnes, 457 Mass. 812, 823, 933 N.E.2d 598 (2010), and any inferences drawn “need only be reasonable and possible, and need not be necessary or inescapable.” Commonwealth v. Elliot, 430 Mass. 498, 500, 721 N.E.2d 388 (1999), quoting Commonwealth v. Pucillo, 427 Mass. 108, 113, 692 N.E.2d 15 (1998).

The defendant clearly was present at the scene of the murders and actively participated in the events leading to the two victims' deaths, thereby meeting the first part of the test for joint venture. See Commonwealth v. Akara, 465 Mass. 245, 253, 988 N.E.2d 430 (2013)

. However, the defendant contends that he lacked the intent required to sustain a conviction of murder in the first degree based on deliberate premeditation and that, therefore, the second prong of

the test for joint venture—possession of the requisite intent for the offense, see id. —was absent with respect to this crime. Thus, the question regarding the sufficiency of the evidence is whether the evidence concerning the defendant's intent was sufficient.

In order to have committed murder in the first degree with deliberate premeditation, a defendant must have had or shared an “intent to kill or cause death,” Norris, 462 Mass. at 139, 967 N.E.2d 113

, which was the “product of ‘cool reflection.’ ” Zanetti, 454 Mass. at 455, 910 N.E.2d 869, quoting Commonwealth v. Freeman, 442 Mass. 779, 783, 817 N.E.2d 727 (2004). Commonwealth v. Gambora, 457 Mass. 715, 732, 933 N.E.2d 50 (2010), quoting Commonwealth v. Coleman, 434 Mass. 165, 167, 747 N.E.2d 666 (2001). “[N]o particular period of reflection is required, and ... a plan to murder may be formed in seconds.” Gambora, supra at 733, 933 N.E.2d 50, quoting Coleman, supra at 168, 747 N.E.2d 666. Thus, if there was evidence presented from which the jury could infer that the defendant intended to...