Tavares v. Commonwealth (Lawyers Weekly No. 10-021-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12211 PAULO TAVARES vs. COMMONWEALTH. February 5, 2018. Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Discovery, Postconviction relief, Capital case. Paulo Tavares appeals from a judgment of the county court denying his petition for relief under G. L. c. 211, § 3. We affirm the judgment. Tavares has been convicted by a jury of murder in the first degree and other offenses. Before trial, Tavares successfully moved to suppress evidence of surreptitiously recorded conversations between him and a confidential informant. We affirmed the suppression order on the Commonwealth’s interlocutory appeal. Commonwealth v. Tavares, 459 Mass. 289, 303 (2011). After he was convicted, Tavares moved for a new trial and for postconviction discovery of copies or transcripts of the recorded conversations.[1] The trial judge denied both motions. Tavares’s appeal from his convictions and from the denial of his posttrial motions is pending in this court and has not yet been briefed. In his G. L. c. 211, § 3, petition, Tavares sought relief from the denial of his motion for postconviction discovery. A single justice of this court denied the petition as well as a subsequent motion for reconsideration. “[R]elief under G. L. c. 211, § 3, is properly denied where the petitioning party has or had an adequate and effective avenue to seek and obtain the requested relief other than G. L. c. 211, § 3.” Donald v. Commonwealth, 437 Mass. 1007, 1007 (2002), quoting Hunt v. McKendry, 434 Mass. 1025, 1026 (2001). “An established route for the petitioner to obtain appellate review of the denial of his motion for postconviction discovery would be in connection with an appeal from the denial of his motion for a new trial . . . .” Donald, supra. We regularly address postconviction discovery issues in connection with such appeals. See, e.g., Commonwealth v. Morgan, 453 Mass. 54, 61-64 (2009); Commonwealth v. Martinez, 437 Mass. 84, 97-98 (2002); Commonwealth v. Stewart, 383 Mass. 253, 261 (1981). Tavares has not carried his burden of “demonstrat[ing] the absence or inadequacy of other remedies.” Callahan v. Superior Court Dep’t of the Trial Court, 432 Mass. 1023, 1023 (2000). The single justice did not err or abuse her discretion by denying relief under G. L. c. 211, § 3. Judgment affirmed. Janet Hetherwick Pumphrey for the petitioner. Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth. […]
Tavares v. Commonwealth (Lawyers Weekly No. 10-178-16)
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-11829 DANIEL D. TAVARES vs. COMMONWEALTH. November 10, 2016. Bail. Supreme Judicial Court, Superintendence of inferior courts. The petitioner, Daniel D. Tavares, appeals from a judgment of a single justice of this court that denied his petition pursuant to G. L. c. 211, § 3, but directed that he could seek, in the Superior Court, return of certain forfeited bail. We affirm. Tavares has been charged, in three different indictments, with possession with intent to distribute cocaine, in violation of G. L. c. 94C, § 32A (c); conspiracy to violate the drug law, in violation of G. L. c. 94C, § 40; and larceny over $ 250, in violation of G. L. c. 266, § 30 (1). Each of the cases originated with a complaint in the District Court and was subsequently transferred to the Superior Court after the corresponding indictment issued. The cases are now pending in the Superior Court where, according to their respective dockets, that court has imposed a “unified bail.” Although the record before us is not entirely clear, it appears that the bail set in the District Court in the possession with intent to distribute case and in the conspiracy case was transferred to the Superior Court, after Tavares was indicted on those charges, in the total amount of $ 2,500. In the larceny case, it does not appear that bail was transferred. Rather, it appears that, after Tavares was indicted on that charge, the bail that had been set in the District Court — $ 1,000 — was reduced to zero and the posted amount returned to the surety. Bail was then set in the Superior Court in the amount of $ 500, bringing the total bail in the three Superior Court cases to $ 3,000. 2 Docket entries for each of the cases indicate that on September 11, 2013, Tavares defaulted and a warrant issued. On October 21, 2013, Tavares was brought into court, the default was removed, and the warrant was recalled. The following day, the court held a new bail hearing, revoked the previous order of bail, and set a new unified bail in the amount of $ 13,000. On November 5, 2013, the court held a bail forfeiture hearing, after which the court denied forfeiture in the possession with intent to distribute and conspiracy cases but allowed it in the larceny […]
Commonwealth v. Tavares (Lawyers Weekly No. 11-059-15)
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 14-P-190 Appeals Court COMMONWEALTH vs. DANIEL D. TAVARES. No. 14-P-190. Barnstable. December 9, 2014. – June 5, 2015. Present: Cypher, Wolohojian, & Blake, JJ. Uttering Forged Instrument. Tendering a False Note. Larceny. False Pretenses. Practice, Criminal, Required finding. Evidence, Inference, Identity. Complaints received and sworn to in the Barnstable Division of the District Court Department on October 31, 2011. The cases were tried before Joan E. Lynch, J. Kevin S. Nixon for the defendant. Julia K. Holler, Assistant District Attorney, for the Commonwealth. CYPHER, J. A jury convicted the defendant, Daniel D. Tavares, of possessing counterfeit currency, uttering a counterfeit note, and larceny by false pretenses of property not exceeding $ 250 in value. The defendant appeals and asks us to hold that the judge erred by denying the defendant’s motion for a required finding of not guilty. The defendant argues, as he did below, that there was insufficient evidence of identity, when viewed in the light most favorable to the Commonwealth, to support the conclusion beyond a reasonable doubt that the defendant was the person who had uttered a counterfeit note and committed larceny by false pretenses. The defendant also argues, for the first time on appeal, that there was insufficient evidence to prove that he knew the $ 100 bills in question were counterfeit.[1] We disagree. 1. Factual background. The jury could have found the following facts. On October 30, 2011, at approximately 9:00 P.M., a man asked for $ 30 of gasoline at West Main Gas, a gasoline station in Barnstable. The man was driving a black sport utility vehicle (SUV). There was a woman in the passenger seat. The gasoline station employee, Sherif Nakhla, pumped the gasoline as requested. The man had a $ 100 bill in his hand. Nakhla gave the man $ 70 in cash, and then the man handed Nakhla the $ 100 bill. Nakhla examined the $ 100 bill and realized “it d[id]n’t look like money at all.” Nakhla told the man that the $ 100 bill was not real. The man responded by saying, “I don’t know, man,” and then drove off. Nakhla tried to catch the SUV but was unable to do so. At trial Nakhla did not identify the defendant as the gasoline station customer, and provided only a very general […]
Commonwealth v. Tavares (Lawyers Weekly No. 10-080-15)
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-11508 COMMONWEALTH vs. SANDRO TAVARES. Suffolk. January 9, 2015. – May 14, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, & Duffly, JJ. Homicide. Joint Enterprise. Evidence, Joint venturer, Intent, Argument by prosecutor, Firearm. Intent. Malice. Jury and Jurors. Practice, Criminal, Instructions to jury, Question by jury, New trial, Argument by prosecutor, Capital case. Firearms. License. Indictments found and returned in the Superior Court Department on October 27, 2009. The cases were tried before Elizabeth B. Donovan, J. Dennis Shedd for the defendant. Sarah Montgomery Lewis, Assistant District Attorney (John P. Pappas, Assistant District Attorney, with her) for the Commonwealth. 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 (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 […]