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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 […]