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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
                                                                    2


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.




     1
       The jury also convicted the defendant of carrying a
firearm without a license, and possessing ammunition without a
firearm identification card.
                                                                    3


    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 Danny Fernandes and Jose Alves when

he cut off a vehicle driven by Joao Nunes on Bowdoin Street in

the Dorchester section of Boston.    Nunes's passenger, Alfredo

Goncalves, got out of the automobile and threatened the

defendant, repeatedly stating that he was going to hurt him.

The defendant drove away.

    After acquiring a handgun, Nunes and Goncalves drove back

later that day to the Bowdoin Street neighborhood looking for

people with whom they had "dramas."     This included the Cape

Verdean Outlaws gang, of which the defendant and his friends

were members.    As Nunes drove past the defendant's house,

Goncalves pointed out Amilton Dosouto, an individual with whom

he had issues.   Dosouto was standing in the defendant's driveway

next to the defendant's Volkswagen Golf automobile, while Alves

sat on the porch.    As Nunes drove by, Goncalves fired from the

passenger side of the automobile, hitting Dosouto in the chest

and Alves in the stomach and the leg.    The defendant ran into

the street, firing at Goncalves.    His shots hit Nunes, who then

crashed his vehicle.
                                                                      4


    When police arrived at the scene, the defendant was near

Dosouto.   Boston police officer testified that he heard the

defendant state repeatedly, "Somebody is going to die for this,"

and that when asked for information about the shooting, the

defendant told him, "I got nothing to say to you.     Somebody's

going to die for this."     Alves testified that while he was

recovering in the hospital, he spoke to the defendant on the

telephone and the defendant said, "Don't worry about it,"

because the people responsible were "going to get it."     Dosouto

considered the defendant to be like a younger brother.

    On April 24, 2003, the defendant rented a white minivan.

There was no indication on the record that his Volkswagen Golf

automobile was inoperable.

    On April 28, 2003, three of Goncalves's friends, Jonathan

DaSilva, Jose DaVeiga, and Christopher Carvalho, left a night

club in Boston after 2 A.M.     DaSilva was driving his Ford Taurus

automobile and stopped at a red traffic light on East Berkley

Street when shots were fired at his automobile.    His passengers,

DaVeiga and Carvalho, were both hit multiple times.    DaVeiga

died as a result.   Carvalho survived but was paralyzed from the

neck down and blinded in his left eye.

    An eyewitness to the shooting testified that two or three

people fired shots at the Ford automobile from the passenger

side door of a white van.     The eyewitness testified that all of
                                                                       5


the van's occupants wore sports jerseys, and that one wore New

England Patriots colors while another wore a green and white

jersey.

    Shortly after the eyewitness notified the police of the

shooting, officers stopped a white minivan in Dorchester.       The

defendant, wearing a Boston Celtics jersey, was in the front

passenger seat.     Danny Fernandes, wearing a Dallas Cowboys

jersey, was in the driver's seat.     Carlos Silva, wearing a red,

white, and blue Atlanta Braves jacket, was in the rear passenger

seat.     The eyewitness was brought to the scene, where he

identified Danny Fernandes and Silva as the driver and shooter

but did not identify the defendant.

    A police search of the minivan recovered two .25 caliber

shell casings and a nine millimeter firearm hidden underneath a

cup holder in the back of the van.     The firearm was wrapped in a

piece of paper torn from a Volkswagen Golf automobile manual.         A

Volkswagen Golf automobile manual was also found in the van,

along with a crowbar.     The firearm did not match the bullets

recovered from the victims' bodies, but did match other spent

shell casings recovered at the scene of the shooting.     The

police also found a white minivan rental agreement in the

defendant's name, dated April 24, 2003.

    Discussion.     1.   Sixth Amendment right to public trial.

This case was permeated with concerns about security from the
                                                                    6


outset, as evidenced through six pretrial hearings and

conferences and discussions at trial.

     At a February 3, 2005, hearing on a protective order, the

trial judge stated that she was "terribly concerned" about

safety issues in this case.2   Several of the codefendants and

their family members had been shot at between the time of the

original shooting and the defendant's indictment, and

cooperating codefendants and witnesses had expressed concerns

regarding distribution of the paper records of their grand jury

testimony.3   As a result, protective orders were put in place to

restrict access to discovery materials, and the grand jury

minutes were impounded.

     At a May 11, 2006, pretrial conference, the judge again

raised concerns about security during trial, explaining that she

would "take every precaution," partly because the court was

short on court officers.   She also first raised the possibility

     2
       The involvement by the Cape Verdean Outlaws in ongoing
violence that generated specific concerns about retaliation and
witness intimidation, including threats to Jose Alves, was
discussed at the hearing on the protective order.
     3
       The defendant was set to be tried jointly with two
codefendants, Henrique Lopes and Jose Lopes, until the first day
of the defendant's trial, when the charges against the
codefendants were nol prossed because of a missing witness. The
Commonwealth's theory of the case was that the defendant and
seven other individuals (including Henrique Lopes and Jose
Lopes) perpetrated the crime in two separate automobiles. The
Commonwealth had alleged that Henrique Lopes and Jose Lopes were
two of the gunmen.
                                                                    7


of creating a list of people permitted to enter the court room,

and asked counsel to discuss this option.

    On May 25, 2006, the judge reiterated her concerns that the

gang elements of this case could exacerbate preexisting security

problems at the court house.    The judge again suggested an

approved attendees list and requested that counsel prepare lists

of family members and close friends that the parties might want

in attendance.   When counsel for then-codefendant Henrique Lopes

objected, the judge enumerated the concerns behind her request

for an approved attendees list.     She stated that there were

ongoing security issues at the court house, there was a lack of

sufficient court officers, and the case presented "at least

overtones of Cape Verdean gangs."     The judge noted that prior

cases with similar gang overtones had raised security issues,

and her concern was to protect the security of everyone in the

court room, including the defendant and court staff.     She

emphasized that media would be permitted to attend the trial and

reiterated that the court house was not a secure facility.

Counsel for the defendant and both codefendants all objected to

the proposed attendees list, and the judge noted these

objections for the record.     She also asked counsel to propose

other reasonable ways to address the underlying security

concerns.
                                                                       8


     On May 30, 2006, the judge clarified that the parties could

add people to the approved attendees list during trial with

twenty-four hours' advance notice.     The advance notice was

necessary to conduct sufficient background checks on the

individuals to ensure that they would not pose a safety risk in

the court room.   The judge further explained her concern about

insufficient court officer staffing:     six court officers would

be present in the court room during trial, but this would leave

no one to ensure security in the hallway outside.4

     On June 8, 2006, the parties were again before the judge

discussing trial security.   After the defendant and codefendants

submitted their initial lists of desired attendees, the

Commonwealth objected to two individuals on the lists.     The

judge excluded one individual because he was a known associate

of the defendant's gang, and the defendant did not object.       The

judge again stated that people could be added to the list with

twenty-four hours' advance notice.     She also stated that an

individual allowed in the court room could be removed for the

remainder of the trial if he or she exhibited "any untoward

behavior."   There were specific security concerns at this point

as the codefendants, Henrique Lopes and Jose Lopes, were out on

bail and might encounter witnesses or other trial attendees in

     4
       The protocol was to have two court officers present for
each defendant.
                                                                    9


the common areas of the court or during recesses.   The judge

wanted to avoid any potential inappropriate mingling.

     On June 12, 2006, the parties discussed safety issues

relating to a cooperating witness who was scheduled to plead

guilty to a related crime during the trial.   There were concerns

about holding or transporting the defendant and codefendants

near the cooperating witness.   There were also safety concerns

about remanding the codefendants to jail during the trial, as

there were many potential gang members in jail who might "at

least consider, rightly or wrongly," that the two men were

"involved in this series of violent episodes."    There also were

ongoing issues with a key witness in the case against the

codefendants, who were, at this point, being tried jointly with

the defendant.   The Commonwealth eventually nol prossed the

charges against Henrique Lopes and Jose Lopes on June 20, 2006,

because this key witness could not be located.5

     Several issues rose during the trial.    Before empanelling a

jury on the first day of trial, the judge allowed the

Commonwealth's motion to remove one of the persons on the



     5
       On June 8, 2006, the prosecutor informed the judge that he
had been unable to find or contact a key witness. On June 13,
2006, the Commonwealth filed a motion to continue because it
could not locate this witness. This witness's family members
were also out of contact with him and had reported their
concerns for his well-being to the Boston police department.
                                                                    10


defendant's trial attendees list because he had a record of a

number of violent offenses.6   The defendant did not object.7

       On the second day of trial, there were concerns that the

mother of one of the victims had suffered harm, as she had not

been in communication with her family for over two days and was

not present, though she had planned to attend the trial.    The

prosecutor also requested a warrant for Danny Fernandes, as he

had not responded to subpoenas and his attorney could not locate

him.

       On the third day of trial, individuals associated with the

defendant "stared down" a witness and the victim's family as

they left the court room, requiring the judge to speak with

defense counsel to reiterate that there was to be no

intimidation outside the court room.

       6
       Two people were also voluntarily removed by the
Commonwealth from their own list "as a matter of equity" because
they also had a "fairly extensive record of violent crimes."
The protective orders in this case showed that potential
witnesses had significant concerns for their safety should their
testimony fall into the wrong hands before trial.
       7
       Because of a motion in limine, the judge also was aware of
threats made by the defendant's brother to a judge in an
unrelated criminal matter. On March 1, 2002, the defendant was
on trial for an unrelated crime and his brother, Odairson
Fernandes, was present at the court house with Jose Lopes,
Henrique Lopes, and Joasihno Fernandes. When Odairson Fernandes
left the court room, a Boston police officer overheard him say,
"Fuck him that faggot ass judge. I'm seventeen years old, he
can't fucking tell me what to do." Joasihno Fernandes replied,
"Fuck that judge, I'll call him. What's the number, I call and
threaten his fucking ass, fuck him."
                                                                   11


    The approved attendees list was finalized on the third day

of trial.   The defendant did not object to this list, which

included five of his family members and five of his friends.

    On the fourth day of trial, the parties were supposed to

conduct a videotaped deposition of the surviving victim,

Carvalho, but he expressed "second thoughts" about participating

and was ultimately not deposed.

    On the fifth day of trial, the judge questioned DaSilva,

the driver of the vehicle in which the victims were riding,

about his desire to invoke his constitutional right not to

testify.    He repeatedly told the judge that he was "scared" to

testify, because "[t]he courtrooms are here, they ain't in the

streets.    The police ain't going to be there every day for me on

the streets."   He denied receiving any specific threats, but

maintained that he was "scared [for] his life" because of "all

the things going on."

    Dosouto, one of the victims of the April 17 shooting,

testified on the fifth day of trial.   On the sixth day of trial,

the prosecutor notified the judge that Dosouto's family had

found a portion of an extensive memo prepared by counsel for

former codefendant Henrique Lopes in their mailbox on the day

before Dosouto's testimony.   The protective orders in this case

were designed to prevent trial preparation material from being

disseminated.   The judge recognized that this raised an issue of
                                                                  12


"fairly grave concern" and stated that she was "profoundly

troubled" by the document's appearance, given the prior hearings

on the need for protective orders.

     On the eighth day of trial, the judge held a limited

evidentiary hearing to discuss the disappearance of Danny

Fernandes.   The judge stated that she took "very seriously . . .

any suggestion that the disappearance of a witness . . . in any

manner can be connected to any collusion, intimidation, or the

like."   The judge ultimately granted the Commonwealth's motion

for a continuance to give the Commonwealth time to find Danny

Fernandes, stating that she was "[p]rofoundly troubled by the

disappearance of these key witnesses."8   The Commonwealth was

unable to produce Danny Fernandes before the end of the trial.

     The defendant contends, as he did in his motion for a new

trial, that the trial judge's order requiring the use of an

approved attendees list during the trial constituted a closure

of the court room that violated his right to a public trial

guaranteed by the Sixth Amendment.   See Presley v. Georgia, 558

U.S. 209, 214 (2010); Commonwealth v. Rogers, 459 Mass. 249, 263


     8
       That same day, at the Commonwealth's request, the judge
allowed an individual who had been attending the trial, to be
asked to leave the court room because of a history of incidents
with Boston police detective who was scheduled to testify that
morning. Rather than exclude the individual for only the
detective's testimony and have to explain why to him, the judge
excluded him from the morning session.
                                                                  13


(2010), cert. denied, 565 U.S. 1080 (2011).   We conclude that

there was no such violation in these exceptional circumstances.

As explained infra, the trial judge satisfied the necessary

criteria to justify a partial closure of the court room given

the extreme security concerns presented by the case, and the

judge hearing the defendant's motion for a new trial (motion

judge) properly denied that motion in a carefully considered

decision.9

     "[A]n open court room 'enhances both the basic fairness of

the criminal trial and the appearance of fairness so essential

to public confidence in the system.'"   Commonwealth v. Cohen

(No. 1), 456 Mass. 94, 107 (2010), quoting Press-Enterprise v.

Superior Court, 464 U.S. 501, 508 (1984).   The right to a public

trial is not absolute, however, "and in limited circumstances a

court may bar spectators from certain portions of a criminal

trial."   Cohen (No. 1), supra.

     In Cohen (No. 1), 456 Mass. at 111, we adopted the modified

four-factor analysis established by the United States Supreme


     9
       We proceed under a partial rather than a full closure
analysis because the media, family members, and other
individuals beyond the parties and counsel were present in the
court room. See Commonwealth v. Cohen (No. 1), 456 Mass. 94,
110 (2010) (partial closure where family and other individuals
were present during jury selection). Cf. Commonwealth v. Hardy,
464 Mass. 660, 664, cert. denied, 134 S. Ct. 248 (2013)
(complete closure where court room cleared of spectators during
jury selection).
                                                                    14


Court in Waller v. Georgia, 467 U.S. 39, 48 (1984), to determine

whether a partial closure violated a defendant's Sixth Amendment

right to a public trial.     First, "where a closure is partial, it

is necessary to show a 'substantial reason' rather than an

'overriding interest' to justify the closing."     Cohen (No. 1),

supra.   Second, the closure must be "no broader than necessary

to protect [that] interest."     Id. at 113, quoting Waller, supra

at 48.   Third, the judge must consider "reasonable alternatives

to closing the proceeding."     Cohen (No. 1), supra at 115,

quoting Waller, supra.   Fourth, the judge must make "findings

adequate to support the closure."     Cohen (No. 1), supra at 115,

quoting Waller, supra.     "In a partial closure context . . . a

reviewing court may examine the record itself to see if it

contains sufficient support for the closure, even in the absence

of formal or express findings by the judge."     Cohen (No. 1),

supra.

    If the closure does not satisfy these factors, "the error

is deemed 'structural' in that prejudice is presumed and the

defendant is entitled to a new trial."     Commonwealth v.

Maldonado, 466 Mass. 742, 748, cert. denied, 134 S. Ct. 2312
                                                                       15


(2014), quoting Cohen (No. 1), supra at 118-119.10       We proceed by

examining each of the Waller factors in turn.

     a.     First Waller factor:   substantial reason.    In this

case, the record showed a substantial reason to partially close

the court room.     See Waller, 467 U.S. at 48; Commonwealth v.

Maldonado, 466 Mass. at 752.       Here, the threat of violence was

significant and the judge was properly focused on the need to

protect everyone present, including the defendant and court

staff.

     Deference is owed to a trial judge's perception of the

dangers of threats and intimidation in the court room.

Maldonado, 466 Mass. at 753.       The trial judge must constantly

monitor the tension in the court room, and its many different

manifestations, and court room atmospherics are difficult to

describe and evaluate on appeal.       See id.   Understandably, the

judge here was "terribly concerned" about witness intimidation

and trial safety issues.     In four separate incidents in June,

2003, before the defendant's indictment, several of the

codefendants and their family members had had shots fired at

them.     Codefendants and cooperating witnesses had expressed

     10
       Despite the fact that this trial took place eight years
before, and without the benefit of, Commonwealth v. Maldonado,
466 Mass. 742, cert. denied, 134 S. Ct. 2312 (2014), the judge
satisfied the requirements set out in that case. See id. at
752.
                                                                    16


grave concerns regarding retaliation.11    The disappearances of

important witnesses before the trial heightened the concerns.

     Security issues also arose during the trial, further

supporting the concerns about witness intimidation and trial

safety.     Different key witnesses were missing on the first and

last day of trial.    Arguable instances of gang intimidation

occurred:    individuals associated with the defendant "stared

down" a witness and the victim's family as they left the court

room, requiring the judge to speak with defense counsel to

reiterate that there was to be no intimidation outside the court

room.     A witness who had been shot at in the April 28 incident

told the judge that he was afraid to testify.

     In addition to the case-specific security concerns, the

judge noted that prior cases with similar gang overtones had

presented security issues.     The circumstances here are

comparable to those addressed by the court in Maldonado, 466

Mass. at 742, another case of murder in the first degree

involving a gang-related murder.     There, we held that

     "when a member of a gang is alleged to have committed a
     shooting, there is a risk that others associated with the
     gang may attempt to intimidate witnesses to cause them to
     exculpate, or at least avoid incriminating, the accused.
     There is also the risk that animosity that may exist
     between rival gangs, or between those associated with the

     11
       As mentioned, as a result of these concerns, protective
orders were in place to restrict access to discovery materials,
and the grand jury minutes were impounded.
                                                                    17


       accused and those associated with the victim, may spill
       over into the court room or the halls of the courthouse and
       lead to disruption of the court room."

Id. at 752-753.

       Finally, the judge had to take into account the number of

available court officers, and whether that number was sufficient

in these trying circumstances.12     The record leading up to the

trial showed the judge's significant security concerns that the

feuding gang issues in this particular case could exacerbate the

existing security challenges at the court house.

       For all of these reasons, the first Waller factor was

clearly satisfied.     See Waller, 467 U.S. at 48; Maldonado, 466

Mass. at 747-748.

       b.   Second Waller factor:   no broader than necessary.   The

second Waller factor requires us to determine whether the

partial closure here, which resulted from an approved trial

attendees list, was no broader than needed to accomplish its

purpose.     See Waller, 467 U.S. at 48; Maldonado, 466 Mass. at

747.    The list was expressly designed to minimize the risk of

witness intimidation and court room disruption.




       12
       The judge communicated with the chief of court house
security about her concerns. She stated that she did not
consider the court house to be a secure facility, and there was
no guarantee that there would be enough court officers to secure
both the court room and the common areas of the court house.
                                                                    18


    The list, as finalized by the judge, allowed friends and

family of the defendant and codefendants to attend, as well as

the press.   The judge also provided for additions to the list

with twenty-four hours' advance notice.   The twenty-four hour

advance notice was deemed necessary to allow all parties to

identify potentially disruptive or dangerous attendees and allow

court officers time to conduct criminal background checks.    See

Maldonado, 466 Mass. at 752.   See also United States v. DeLuca,

137 F.3d 24, 32 (1st Cir. 1998) ("The recorded information was

retained by the United States Marshal for use in determining

whether the bearer had a criminal background or any connection

with a defendant on trial such as might indicate a courtroom

security risk").   Prior to trial, the judge excluded one gang

member known to be an associate of the defendant.   On the first

day of trial, the judge allowed the Commonwealth's motion to

remove one of the persons from the defendant's trial attendees

list because he had a record of violent offenses.   The defendant

did not object in either instance.   When the approved attendees

list was finalized on the third day of trial, the defendant also

had no objections to this list, which permitted five of his

family members and five of his friends to attend.

    We conclude that the measures the judge took were justified

in these exceptional circumstances and no more intrusive than

necessary.   See Waller, 467 U.S. at 48; Maldonado, 466 Mass. at
                                                                    19


748. "A judge need not wait for a witness to be intimidated, the

court room to be disrupted, or a specific threat before taking

appropriate steps to address the risk of such misconduct."

Maldonado, supra at 753.     A judge's responsibility for the

safety, security, and integrity of the court room requires an

acute attention and an appropriate response to the risks of

violence and intimidation.    Maldonado, 466 Mass. at 753.    See

Commonwealth v. Petetabella, 459 Mass. 177, 187 (2011) (trial

judge has discretion to take into account special circumstances

like security concerns to protect court room and its occupants).

That response may be proactive as well as reactive.     See

Maldonado, supra.   Some deference is owed to the trial judge's

discretionary decisions in this regard. See id.

    Extraordinary security concerns were obviously present

here.   The threat of violence, retaliation, and intimidation was

manifest.   See Commonwealth v. Ray, 467 Mass. 115, 124 (2014),

overruled another grounds, Commonwealth v. Smith, 471 Mass. 161,

165 (2015), quoting Maldonado, 466 Mass. at 752 ("To impose a

condition on entry, 'there must be an articulable risk of

witness intimidation or court room disruption'").     Indeed, both

the prosecution and defense had expressed at different times

grave concerns about safety and security.     The list and the

exclusions were directly responsive to the significant

identified risks of gang-related violence and intimidation.
                                                                  20


United States v. Deluca, 137 F.3d 24, 35 (1st Cir.), cert.

denied, 525 U.S. 874 (1998) ("screening procedure was reasonably

designed to respond to [security] concerns").    Cf. Maldonado,

supra ("condition on entry" must be "based on the special

circumstances of the case").   Any exclusions were also

appropriately based on an individualized inquiry attentive to,

and directed at, the specific risk of violence and intimidation

previously identified.   Importantly, no one objected to the

particular individuals excluded.

     The defendant was able to put friends and family members on

the list.   Commonwealth v. Martin, 417 Mass 187, 195 (1994)

("typically, proceedings . . . may not be closed to the family

and close friends of the defendant").13   The defendant and the

Commonwealth also could add to the list other individuals they

wanted with twenty-four hours' advance notice.   Finally, the

press was expressly included on the list, and not in any way

excluded.

     Although we emphasize that there is a strong "presumption

of openness" and access to our court rooms, we conclude that in

these particularly dangerous circumstances the use of an

     13
       Additionally, the defendant submitted, with his motion
for a new trial, four affidavits from his cousins asserting that
they were not permitted to enter the court room during the
trial. There was, however, nothing in the record suggesting
that the affiants or the defendant requested that they be on the
list.
                                                                    21


approved but amendable attendees list to exclude those

presenting a demonstrated risk of violence and intimidation

satisfies the requirement that the intrusion on the right to a

public trial be no greater than is necessary.     See generally

Maldonado, 466 Mass. at 751-753 (sign-in and identification

procedure appropriate given risk of gang-related witness

intimidation).     See also Deluca, 137 F.3d at 32 (risk of

violence and intimidation justified screening and identification

procedure to allow criminal background checks or inquiry of

connection to defendant that might indicate court room security

threat).   Our conclusion here is reinforced by the fact that

both the prosecution and defense had grave security concerns and

the defendant did not object to the individuals excluded.

    c.     Third Waller factor:   reasonable alternatives.    The

third Waller factor was satisfied because the judge took

meaningful steps to consider reasonable alternatives to the

approved attendees list.     See Maldonado, 466 Mass. at 748,

quoting Waller, 467 U.S. at 48.     Here, the judge did not

disregard the parties' original objections to her proposed

partial closure mechanism and specifically sought input as to

alternative ways to address her concerns that the gang overtones

of this case could exacerbate preexisting security problems at

the court house.    See Commonwealth v. Wolcott, 77 Mass. App. Ct.

457, 465 (2010) (trial judge required to consider alternatives
                                                                    22


and must not reject objections out-of-hand).    She asked counsel

on several occasions to propose other reasonable ways to

sufficiently address her underlying security concerns.     The

Commonwealth discussed having extra Boston police officers

present, and the judge considered increasing the number of court

officers, but she expressed concern that the court lacked

sufficient personnel, as court officers were needed in other

sessions.   The judge also sought meaningful alternative

solutions by discussing her concerns with her chief justice and

the chief court officer, neither of whom could suggest a better

alternative.   See Presley v. Georgia, 558 U.S. at 214 (trial

courts obligated to consider alternatives even where none was

offered by parties).

    Although this case occurred eight years before Maldonado

established the requirement of providing counsel time for

interlocutory review, the judge specifically allowed time for

the parties to seek review by a single justice of this court and

expressed her desire for an appellate opinion on the matter.

See Maldonado, 466 Mass. at 752.   None of the counsel for any of

the defendant or codefendants offered any alternatives, and none

of the parties sought interlocutory review.    We are satisfied

that the trial judge took meaningful steps to consider

reasonable alternatives before implementing the approved
                                                                  23


attendees list, and that the motion judge did not err in so

finding.

    d. Fourth Waller factor:    adequate findings.   The final

Waller factor was also satisfied here, because there were

adequate findings in the record to support the closure.     See

Maldonado, 466 Mass. at 748, quoting Waller, 467 U.S. at 48.

Because this was a partial closure, we may consider the record

"to see if it contains sufficient support for the closure, even

in the absence of formal or express findings by the judge."

Cohen (No. 1), 456 Mass. at 115.   As noted above, this case

involved numerous requests for protective orders responding to

codefendant and witness concerns that testifying might result in

harm.   The minutes of the hearing on the defendant's bail status

were impounded because of this fear.   The trial judge

extensively discussed her security concerns and her reasoning

for imposing the approved attendees list with the parties on

multiple occasions prior to the trial.   Based on the substantial

record of pretrial discussions, the disappearance of a key

witness immediately prior to the defendant's trial, and the

events that occurred during the defendant's trial, we are

satisfied that the judge's findings adequately supported her

decision to partially close the court room using an approved

attendees list.   See Cohen (No. 1), supra at 116 (record must
                                                                   24


allow reviewing court "to glean sufficient support for the

extensive closure").

    Exceptional facts justify the exceptional measures taken

here.   Although the presumption should always be toward

openness, the partial closure here was a thoughtful, measured

response to a dangerous and difficult set of circumstances.

Given the legitimate security concerns present in this gang-

related murder, we conclude that the Waller factors were

satisfied and that the partial closure of the court room did not

abridge the defendant's Sixth Amendment right to a public trial.

    2.    Sufficiency of the evidence.   The defendant contends

that the trial judge erred by denying his motion for a required

finding of not guilty based on the Commonwealth's failure to

present sufficient evidence of the defendant's presence at the

scene of the shooting and shared intent.   In reviewing the

sufficiency of the evidence, we consider the evidence in the

light most favorable to the Commonwealth and determine whether

"any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt" (citation

omitted).   Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).

    We conclude that the Commonwealth presented sufficient

evidence to convict the defendant of murder in the first degree

on a joint venture theory.   In order to prove murder in the

first degree on the theory of joint venture, the Commonwealth
                                                                   25


must prove beyond a reasonable doubt that "at the time the

defendant knowingly participated in the commission of [murder in

the first degree by deliberate premeditation, the defendant] had

or shared the intent required for that crime."    Commonwealth v.

Zanetti, 454 Mass. 449, 470 (Appendix) (2009).    The evidence

need not be direct; circumstantial evidence and inferences drawn

therefrom may be sufficient.   Commonwealth v. Linton, 456 Mass.

534, 544 (2010), quoting Commonwealth v. Lao, 443 Mass. 770, 773

(2005), S.C., 450 Mass. 215 (2007) and 460 Mass. 12 (2011).

These inferences "need only be reasonable and possible and need

not be necessary or inescapable. "   Linton, supra, quoting Lao,

supra.

    Intent to kill may be inferred from the defendant's spoken

words.   See Commonwealth v. Fernandes, 427 Mass. 90, 95 (1998)

(declarant's threat to "get" someone admissible as evidence of

state of mind).   The defendant's intent to kill individuals

associated with Goncalves is sufficiently clear from his

statements made eleven days before the shootings at issue here,

when Goncalves had shot two of the defendant's friends.    See id.

A police officer heard   the defendant say that "[s]omebody is

going to die for this" fifteen to twenty times.   The defendant

later told Alves, "Don't worry about" the shooting, because the

people responsible were "going to get it."   Goncalves's

association with the victims of the April 28 shooting is evident
                                                                   26


by his presence at the scene that night in the aftermath of the

shooting.

    There is also ample circumstantial evidence to show that

the defendant participated in shooting the victims.    Shortly

after DaVeiga and Carvalho were shot, the defendant was arrested

in a white minivan, the vehicle that an eyewitness identified as

involved in the shooting.   See Commonwealth v. Gomes, 475 Mass.

775, 781-782 (2016) (evidence of defendant's knowing

participation in shooting sufficient where defendant was

involved in prior incident, was present at shooting, and fled

with shooters, and where shell casings found in his automobile

matched ballistics evidence from shooting).

    The defendant was in the front passenger seat of the

minivan, wearing Boston Celtics apparel, with Danny Fernandes in

the driver's seat and Silva in the back seat.    The eyewitness

told the police that the shooting was perpetrated by two or

three men, all wearing sports jerseys.   He specifically noted

that one of the men wore green and white, the colors of the

Celtics.    The eyewitness specifically identified Danny Fernandes

and Silva as participants in the shooting, but the Celtics

jersey-clad defendant was the only one in the van who matched

the eyewitness's description of someone wearing green and white.

See Commonwealth v. Watkins, 473 Mass. 222, 230 (2015) (evidence

of defendant's involvement in shooting sufficient where he
                                                                    27


wanted to fight victim, defendant's clothing and physical

characteristics matched description of shooter, and automobile

matched description of one seen shortly before shooting).

    The minivan identified as involved in the shooting was

rented by the defendant four days before the shooting, even

though he owned a functioning Volkswagen.    Police recovered a

nine millimeter firearm in the van that matched the ballistics

evidence from three spent shell casings found at the scene of

the shooting.    The firearm was hidden underneath a cup holder in

the back of the van and wrapped in a page torn from a Volkswagen

Golf manual, which was also in the van.     Police also found two

spent .25 caliber shell casings on the floor of the van.

    We conclude that this circumstantial evidence was more than

sufficient to show that the defendant participated in a joint

venture with intent to murder the victims.    See Gomes, 475 Mass.

at 781-782; Watkins, 473 Mass. at 230.    A rational trier of fact

could have found beyond a reasonable doubt that the defendant

knowingly participated in the commission of the charged crime

with the required intent.   See Commonwealth v. Rakes, 478 Mass.

22, 32 (2017).

    3.   Appropriateness of closing arguments.     The defendant

alleges two types of prosecutorial misconduct during closing

arguments:   improper burden-shifting and improper bolstering of

and attacks on witness credibility.   Specifically, the defendant
                                                                  28


objected to the following part of the prosecutor's closing

argument, in which the prosecutor asked what the defendant

wanted the jury to believe:

         "What does the defense want you to believe in this
    case, ladies and gentlemen? [The defendant's counsel] just
    gave a very eloquent closing argument. But it's all
    coincidence. It's all coincidence. It's all speculation.
    What does he want you to believe? Does the defense want
    you to believe that it just so happened that somebody used
    [the defendant's] minivan, somebody who also had the intent
    to kill, who had the motive for revenge? What is he asking
    you to believe? Is he asking you to believe that it's just
    coincidence that the murder weapon[14] is found in the car,
    that at 3:30 in the morning, as he continuously points out,
    near his house he happens to be in a passenger seat. Is
    that coincidence? Is that coincidence that his
    fingerprints are in there, that he's in there? Is it
    coincidence that the other people involved in this case,
    [are friends] of his? Is it coincidence that Carlos Silva
    is a friend of his, seen with him? Danny Fernandes,
    friend, cousin? Are those coincidences? Those are not
    coincidences, ladies and gentlemen, that is overwhelming
    evidence of joint venture. He was part of a team. And it
    doesn't matter whether he pulled the trigger that caused
    the fatal shots. It doesn't matter. He was part of a
    team. He shared the intent."

    Because the defendant objected at trial, we review that

claim for prejudicial error.   Commonwealth v. Kater, 432 Mass.

404, 423 (2000).

    The defense counsel focused his closing argument on the

circumstantial nature of the evidence presented by the

    14
       The prosecutor mischaracterized the firearm as the
"murder weapon" insofar as the recovered firearm in the minivan
was not the firearm that fired the bullets recovered from the
bodies of either of the victims. The recovered firearm was,
however, involved with the crime as it matched bullets found at
the scene.
                                                                    29


prosecution, arguing that the case was based on mere

speculation.   The prosecutor was entitled to point out the

weaknesses of the defendant's case and "make a fair reply to the

defendant's closing argument."   Commonwealth v. Smith, 404 Mass.

1, 7 (1989).   See Commonwealth v. Cassidy, 470 Mass. 201, 226

(2014).   The prosecutor here responded to the defendant's

closing argument by questioning whether the established facts

seemed like coincidence.   In closing argument, a prosecutor may

argue "forcefully for a conviction based on the evidence and on

inferences that may reasonably be drawn from the evidence."

Commonwealth v. Kozec, 399 Mass. 514, 516 (1987).    In doing so,

the prosecutor may not shift the burden of proof or argue that

the defendant has any affirmative duty to prove his innocence.

Commonwealth v. Johnson, 463 Mass. 95, 112 (2012), quoting

Commonwealth v. Tu Trinh, 458 Mass. 776, 787 (2011).    Nothing in

the prosecutor's language addressing whether the evidence was a

series of coincidences shifted the burden of proof or otherwise

suggested that the defendant had any affirmative duty to put

forward other witnesses or evidence.   Rather than shifting the

burden of proof, the prosecutor's language asking the jury to

draw inferences based on the facts presented during trial was a

fair response to the defendant's closing argument.     See Smith,

supra.
                                                                    30


    When the defendant objected to this portion of the closing

argument asking what the defendant would have the jury believe,

the judge responded that she would "make clear" where the burden

lies.   The judge's jury instruction appropriately highlighted

the Commonwealth's sole possession of the burden of proof.    The

judge clearly instructed the jury on the Commonwealth's burden

of the proof at the start of trial and immediately prior to

closing arguments.   See Kater, 432 Mass. at 423-424.   There was

no error.

    Additionally, although not timely objected to at trial, the

defendant contends that the prosecutor's use of rhetorical

questions constituted both burden-shifting and improper vouching

for the credibility of various witnesses.   We review this claim

for a substantial likelihood of a miscarriage of justice.

Commonwealth v. Johnson, 429 Mass. 745, 748 (1999).

    The rhetorical questions in the prosecutor's closing

argument can be divided into two categories:   those that speak

to the evidence and which the defendant claims constituted

improper burden-shifting, and those which speak to witness

credibility and which the defendant claims constituted improper

vouching.

    The prosecutor's rhetorical questions are exemplified by

the following language:
                                                                  31


         "And think about the premeditation. Think about the
    decisions that [the defendant] made. . . . [H]e gets on
    the [tele]phone to Jose Alves, [tells him] . . . [t]hey're
    going to get it bad. A few days later, four days before
    this murder he rents a white minivan. Why? You can make
    reasonable inferences from the facts, ladies and gentlemen.
    Why does he rent a white minivan four days before the
    murder, a couple days after saying, [t]hey're going to get
    it bad for what they did? Because he's premeditating."

    Rhetorical questions commenting on the evidence are not

improper.    They may permissibly suggest that the defendant's

defense is implausible based on the evidence and the reasonable

inferences that can be drawn therefrom.    See Commonwealth v.

Nelson, 468 Mass. 1, 13 (2014); Commonwealth v. Mattei, 90 Mass.

App. Ct. 577, 582-583 (2016).   Asking rhetorical questions about

why someone who owned a vehicle rented another one in the same

city does not shift the burden of proof.     Rather it asks the

jury to draw a reasonable inference.    See Nelson, supra; Mattei,

supra.

    The prosecutor similarly asked rhetorical questions in his

closing argument regarding the motive and credibility of key

witnesses including the eyewitness, the two cooperating

witnesses (Alves and Nunes), DaSilva, and Dosouto.

    A prosecutor may not vouch for the credibility of

witnesses.   Commonwealth v. Penn, 472 Mass. 610, 627 (2015),

cert. denied, 136 S. Ct. 1656 (2016).     In keeping with the

prosecutor's ability to point out the weaknesses of the

defendant's case and make a fair reply to his closing argument,
                                                                   32


however, a prosecutor may address the witness's lack of motive

to lie and do so by asking rhetorical questions relying on the

evidence presented.    See Cassidy, 470 Mass. at 226; Commonwealth

v. Smith, 450 Mass. 395, 408, cert. denied, 555 U.S. 893 (2008);

Smith, 404 Mass. at 7.    The prosecutor's rhetorical questions

about witness credibility were based on the evidence presented

and largely responded to the defense counsel's own discussion of

credibility in his closing argument.    The prosecutor addressed

the witnesses' motives in testifying with rhetorical questions

about what reasons someone may have to lie.15   This language was


     15
          The prosecutor stated:

     "[W]hat reason does [the eyewitness] have to lie?"

     "Jose Alves . . . Did he seem like someone who was trying
to say what the Commonwealth wanted? Did he seem like someone
who was lying, or did he seem like somebody who was scared,
somebody who was part of the mix, as he told you?"

     "Joao Nunes, what reason does he have to lie?    What is he
really getting from this?"

     "Jonathan DaSilva, how credible did he seem? Again, his
own friend is murdered right in front of him, another friend
paralyzed for life right next to him. But yet there he is, Oh,
I don't remember anything."

     "But then he actually wants you to believe, Amilton Dosouto
does, that when he's shot, [the defendant] is calmly over him
saying, Oh, it'll be all right. Everything is okay. Is that
credible? Of course not, ladies and gentlemen. What's credible
is what those Boston Police Officers told you, that he was
frantic, that he was screaming, Someone is going to die for
this. Amilton Dosouto was credible in certain instances and not
credible in others."
                                                                     33


not improper.    See Smith, 404 Mass. at 7.   Further, the jury

instructions clearly and repeatedly stated that closing

arguments were not evidence.    As discussed in more detail infra,

the jury instructions were also comprehensive as to the jury's

power to determine for themselves the credibility of witnesses.

The jury are presumed to have followed these instructions.        See

Cassidy, 470 Mass. at 226; Nelson, 468 Mass. at 13.     There was

no error.

    4.   Jury instruction on cooperating witness.     The defendant

contends that the judge erred in the instructing the jury about

cooperating witnesses.    Jose Alves and Joao Nunes testified for

the prosecution pursuant to cooperating witness agreements, and

copies of these agreements were submitted to the jury.    The

cooperation agreements were partially redacted at the defense

counsel's request.    The redacted cooperation agreement for Alves

retained the following relevant language:

         "Mr. Alves agrees to make himself available for
    interviews with law enforcement officials and to testify
    completely and truthfully before any grand jury
    investigating the shooting death of Jose DaVeiga and
    shooting of Christopher Carvalho and at any subsequent
    hearings or trials relating to the same. Mr. Alves agrees
    that he will neither withhold any information in his
    possession nor provide false information. Mr. Alves
    acknowledges . . . that no law enforcement official has
    told him what to say -– other than to tell the truth -– in
    any interview or testimony that Mr. Alves is to give.

            " . . .
                                                                  34


          "This agreement is also contingent upon Mr. Alves
     providing complete and truthful information and testimony
     before the grand jury and at any subsequent hearings or
     trials."

The redacted cooperation agreement for Nunes included

functionally the same language with respect to promises of

complete and truthful information and testimony.   Other

references to truthfulness were redacted from both agreements.

The language presented to the jury, including the limited

references to testifying truthfully, was agreed to by all

parties.

     The defendant requested that what he calls a truthfulness

instruction be given to the jury as provided in Commonwealth v.

Ciampa, 406 Mass. 257, 263-264 (1989).   The judge did not give

the instruction that the defendant requested, but did give the

following instruction:16

          "[Y]ou heard testimony from two witnesses, Jose Alves
     and Joao Nunes, who testified under an agreement with the
     prosecution. You should examine those witnesses'
     credibility with particular care when you assess their
     believability. Also, ladies and gentlemen, in assessing a
     witness' credibility you may consider any earlier
     statements made by the witness which you find differ from
     the testimony that the witness has given during the trial
     . . . . If you find that the earlier statement differs
     from the way that the witness testified in court, then you
     may consider that the witness' believability has been
     adversely affected, or you may decide that it is not
     adversely affected. But that earlier statement may be used

     16
       The defendant's preferred instruction on truthfulness was
not part of the record, but defense counsel's objection to the
jury instructions at trial indicated that it was not given.
                                                                  35


    by you only for that purpose, that is to determine whether
    the witness is testifying credibly at this trial. You may
    also . . . in assessing credibility take into account a
    witness' frankness or lack of frankness while testifying, a
    witness' believability or lack of believability in the
    testimony . . . . You may also take into account the
    reasonableness or the unreasonableness of the witness'
    testimony. You may take into account the probability or
    the improbability of the testimony. You may take into
    account the accuracy of the witness' recollection and the
    degree of intelligence demonstrated by the witness."
    (Emphasis added.)

The defendant asserts that despite the judge's instruction that

the jury take "particular care" in evaluating the credibility of

cooperating witnesses, the jury instruction failed to conform to

the requirements of Ciampa, because it failed to include

language indicating that "the government did not know whether

[the cooperating witness] was telling the truth" (citation

omitted).   Commonwealth v. Roman, 470 Mass. 85, 100 (2014).

Because the defendant objected to the limited nature of the

instruction, we determine whether there was prejudicial error.

Kater, 432 Mass. at 423.

    Where a witness testifies under a cooperation agreement

with the government, the judge must "specifically and

forcefully" instruct the jury to evaluate the witness's

credibility with "particular care."   Ciampa, 406 Mass. at 266.

This is necessary to counteract the cooperation agreement's

implied representation of credibility.   Id.   If the jury are

made aware that the witness promised to tell the truth as part
                                                                   36


of the cooperation agreement due to either trial testimony or

submission of the cooperation agreements as exhibits, the judge

should additionally "warn the jury that the government does not

know whether the witness is telling the truth."    Commonwealth v.

Meuse, 423 Mass. 831, 832 (1996).   Nevertheless, "failure to so

instruct, standing alone, is not reversible error. . . .    It is

only where the prosecutor has vouched for the witness or

suggested having special knowledge by which he or she can verify

the witness's testimony that such an instruction must be given

to avert reversible error" (citation omitted).    Roman, 470 Mass.

at 100.

     Here, the judge gave the particular care instruction but

did not give the instruction the defendant requested concerning

that the agreement was conditioned on truthfulness.17   This was

not, however, reversible error, as there was no vouching by the

prosecutor.   See Roman, 470 Mass. at 100.   Although the

prosecutor reminded the jury that Alves and Nunes had testified


     17
       The jury instruction to evaluate the credibility of
cooperating witness testimony with "particular care" also
immediately followed instructions to take into account a
witness's interest, bias, or prejudice with regard to the case
when evaluating credibility and were followed by further
instructions on evaluating witness demeanor, reasonability, and
motive. These instructions specifically alerted jurors to the
permissibility of considering a witness's motive for testifying.
See Commonwealth v. Ciampa, 406 Mass. 257, 264 (1989) (jury
instructions must "focus the jury's attention on the incentives
that could have influenced [the witness's] testimony").
                                                                  37


pursuant to cooperation agreements, his rhetorical questions did

not indicate any special knowledge of their truthfulness as

witnesses.   See Commonwealth v. Washington, 459 Mass. 32, 44

n.21 (2011).

    Moreover, there was no danger of prejudice here, as the

testimony of Alves and Nunes did not concern the April 28, 2003,

shooting of the victims but rather the defendant's motivation

for the shooting.    This testimony was merely duplicative of

other testimony, particularly the defendant's repeated

statements to a Boston police officer at the scene of the prior

April 17, 2003, shooting of Alves and Dosouto that "[s]omeone

was going to die for this."    For all these reasons, the

defendant was not prejudiced by the failure to give the

instruction the defendant requested.

    5.   Review under G. L. c. 278, § 33E.    We have reviewed the

record pursuant to G. L. c. 278, § 33E, and discerned no basis

to set aside or reduce the verdict of murder in the first degree

or to order a new trial.    Accordingly, we decline to exercise

our authority.

    Conclusion.     For the reasons stated above, we affirm the

defendant's convictions.    We also affirm the denial of the

defendant's motion for postconviction relief.

                                     So ordered.
