Court orders new trial for one of two men convicted of double murder at Cape Verdean restaurant in 2009

The Supreme Judicial Court today overturned the first-degree murder conviction of a man a jury said shared the guilt for the two men shot to death at Ka-Carlos even though he did not pull the trigger.

The state's highest court said that Sandro Tavares deserved a new trial because the judge left jurors with the incorrect impression that if they convicted Emmanuel Pina, whom prosecutors said fired the gun, of first-degree murder, they also had to convict Tavares of the same offense, under the "joint venture" theory.

In their ruling, the justices acknowledged prosecutors made a strong case that Tavares was as much to blame as Pina - whose own appeal has yet to come before the court - for the deaths of a man with whom the two had argued and a cook who had nothing to do with the dispute. Tavares was the one who started the argument inside the restaurant - when he loudly asked somebody what he was doing hanging with the wrong crowd - then left and returned with a gun with which he threatened one of the victims, before handing it over to Pina, who ran after the victim, shooting him repeatedly until he fell, dead.

However, the court continued, enough of the evidence was vague enough that a jury could have concluded that while Tavares started things, he didn't intend to kill the intended victim, let along the cook, which would have made him guilty of a lesser offense than the man who did fire the bullets.

[M]uch of the defendant's handling of the gun occurred out of view of the surveillance cameras, and the nature of the events that were not captured on camera was in dispute. For example, the jury could have found that the defendant never tried to "rack" the gun and, instead, simply pointed the gun at Eason and then backed away.

The jury also could have found that Pina grabbed the gun unexpectedly from the defendant, and that the defendant did not know Pina would take the gun or that he would fire it.

Had the jury reached these conclusions, they might have also believed, as the defendant now suggests, that the defendant's actions of returning to the area outside of the bar and pointing the gun at Eason were meant only to scare or intimidate him, and not to kill him.

The court noted that Tavares's lawyer failed to ask the judge to include the concept of involuntary manslaughter in her charge to the jury. By itself, that might not have been enough to overturn the verdict, except, the court said, when coupled with what happened when the jury then asked the judge: "If person A aids and abets person B, does the degree of charge of person B affect the degree of charge of person A?"

The judge basically said yes, it does, but the justices said that would have been the wrong answer if the jury had already decided to convict Pina of first-degree murder and was trying to come to a decision on Tavares and thought he might not be as culpable as Pina. Since the judge had no way of knowing what the jurors had done, that was the wrong answer, they reasoned, and shows why the judge should have included a discussion of the lesser charge of involuntary manslaughter in her charge to the jury.

But since she didn't, her answer may have left the jury no choice but to convict Pina on a charge with a sentence of life without parole, the SJC said And that, the justices concluded, "created a substantial likelihood of a miscarriage of justice" that calls for a new trial.