Posts tagged "Fernandes"

Commonwealth v. Fernandes (Lawyers Weekly No. 10-018-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-10610   COMMONWEALTH  vs.  ODAIR FERNANDES.       Suffolk.     October 6, 2017. – February 2, 2018.   Present:  Gants, C.J., Budd, Cypher, & Kafker, JJ.     Homicide.  Joint Enterprise.  Constitutional Law, Fair trial.  Due Process of Law, Fair trial.  Fair Trial.  Evidence, Joint venturer.  Practice, Criminal, Fair trial, Argument by prosecutor, Instructions to jury, Capital case.       Indictments found and returned in the Superior Court Department on September 24, 2003.   The cases were tried before Margaret R. Hinkle, J.; and a motion for postconviction relief, filed on October 1, 2014, was considered by Garry V. Inge, J.     Deirdre L. Thurber for the defendant. Cailin M. Campbell, Assistant District Attorney (Patrick M. Haggan, Assistant District Attorney, also present) for the Commonwealth.     KAFKER, J.  A Superior Court jury convicted the defendant, Odair Fernandes, of murder in the first degree on the theory of deliberate premeditation, for the killing of Jose DaVeiga, and armed assault with intent to murder, for the shooting of Christopher Carvalho.[1]  The defendant’s direct appeal was consolidated with his appeal from the denial of his motion for a new trial.  The defendant raises four issues.  First, he argues that his right to a public trial under the Sixth Amendment to the United States Constitution was violated by the trial judge’s order limiting court room entry only to attendees whose names were submitted and approved.  Second, he claims that the evidence presented at trial was insufficient to support a finding of joint venture.  Third, he contends that the prosecutor in his closing argument used rhetorical questions to improperly shift the burden of proof and to address witness credibility.  Fourth, he argues that the trial judge erred in her instruction to the jury about how to evaluate the credibility of cooperating witnesses. We conclude that there has been no reversible error, and after a thorough review of the record, we decline to exercise our authority under G. L. c. 278, § 33E, to reduce or set aside the verdict of murder in the first degree.  Therefore, we affirm the defendant’s convictions.  We also affirm the denial of the defendant’s motion for postconviction relief. Background.  We summarize the facts that the jury could have found, reserving certain details for discussion of the legal issues. On April 17, 2003, the defendant was driving his Volkswagen automobile with passengers […]

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Posted by Massachusetts Legal Resources - February 2, 2018 at 11:48 pm

Categories: News   Tags: , , , ,

Fernandes v. Attleboro Housing Authority (Lawyers Weekly No. 10-186-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11580   DAVID FERNANDES  vs.  ATTLEBORO HOUSING AUTHORITY.     Bristol.     September 4, 2014. – November 19, 2014. Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.   Labor, Wages.  Superior Court, Jurisdiction.  Jurisdiction, Primary jurisdiction, Superior Court, Civil Service Commission.  Public Employment, Termination, Reinstatement of personnel.  Civil Service, Applicability of provisions, Termination of employment, Reinstatement of personnel.  Employment, Termination, Retaliation.  Damages, Additur.  Practice, Civil, Additur, Attorney’s fees.  Housing Authority.  Municipal Corporations, Housing authority.     Civil action commenced in the Superior Court Department on November 13, 2009.   The case was heard by Robert J. Kane, J., and motions for judgment notwithstanding the verdict, for reinstatement, and for a new trial or for additur were heard by him.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Maria M. Scott for the plaintiff. David D. Dowd for the defendant.          SPINA, J.  David Fernandes was employed by the Attleboro Housing Authority (AHA) as a maintenance mechanic II from January 16, 2001, until his termination on May 29, 2009.  Approximately six months later, he commenced an action in the Superior Court against the AHA for alleged violations of the Wage Act, G. L. c. 149, §§ 148 and 148A.  Fernandes claimed that the AHA violated § 148 by intentionally misclassifying his position as maintenance mechanic II, instead of maintenance mechanic I, and thereby failing to pay him the wages to which he was entitled.  Fernandes also alleged that the AHA violated § 148A by terminating him in retaliation for complaining about nonpayment of earned wages and filing a complaint with the Attorney General’s office.[1]  Following a trial in January, 2012, a jury, in response to special questions, found in favor of Fernandes on both claims.  The jury awarded damages against the AHA in the amount of $ 2,300 for unpaid wages due to misclassification, and $ 130,000 for lost wages due to retaliation. The parties then filed numerous posttrial motions.  Of relevance to the present appeal, the AHA filed a motion for judgment notwithstanding the verdict, contending that the Superior Court lacked subject matter jurisdiction over Fernandes’s wage and retaliation claims because, as a housing authority employee, Fernandes was required to bring such claims before the Civil Service Commission (commission) for resolution.  Fernandes filed a motion for reinstatement to the position of maintenance mechanic […]

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Posted by Massachusetts Legal Resources - November 19, 2014 at 5:13 pm

Categories: News   Tags: , , , , , ,