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SJC orders new sentencing for teen convicted in 2010 murder of 14-year-old Nicholas Fomby-Davis

Joshua Fernandes, in yellow, and Crisostomo Lopes in court in 2012 during their trial in the murder of 14-year-old Nicholas Fomby-Davis. The state’s high court Thursday threw out a life without parole sentence for Fernandes, who was 16 years old when he fatally shot Fomby-Davis on a Dorchester street in 2010.
Joshua Fernandes, in yellow, and Crisostomo Lopes in court in 2012 during their trial in the murder of 14-year-old Nicholas Fomby-Davis. The state’s high court Thursday threw out a life without parole sentence for Fernandes, who was 16 years old when he fatally shot Fomby-Davis on a Dorchester street in 2010.Byun, Yoon S. Globe Staff

The state’s high court Thursday threw out a life-without-parole sentence for Joshua Fernandes, who was 16 when he fatally shot 14-year-old Nicholas Fomby-Davis on a Dorchester street in 2010.

The unanimous decision by the Supreme Judicial Court retroactively applied a landmark US Supreme Court ruling decided four days after Fernandes was convicted of first-degree murder in a Boston courtroom on June 21, 2012, according to court records.

That decision, known as Miller vs. Alabama, said juvenile brain development is scientifically different than in adults, and that sentencing teenagers to life without parole violated the constitutional ban on cruel and unusual punishment. The Supreme Judicial Court applied the same legal thinking under the state’s constitution in 2013.

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“The sentence of life in prison is vacated and set aside, and the matter is remanded to the Superior Court for resentencing on the murder conviction,” Justice Frank M. Gaziano wrote for the SJC.

Fernandes and his codefendant, Crisostomo Lopes, lived in the same Dorchester neighborhood as Fomby-Davis, who was riding with his brother on a scooter when they nearly collided with a man on a bicycle on May 20, 2010, the SJC said.

Both were wearing helmets with different appearances. Fomby-Davis’s brother returned home to get cash for a movie while his younger brother continued to drive the scooter — while wearing his older brother’s helmet, the Globe has reported.

Fernandes and Lopes crouched behind a vehicle, lying in wait for Fomby-Davis to drive past them. When he did, Lopes pulled the boy off the scooter and held him while Fernandes shot Fomby-Davis four times, the court said.

Fernandes and Lopes were arrested by Boston police within minutes when an off-duty member of the department’s gang unit heading home came upon the scene and witnessed the shooting, the court said.

Lopes and Fernandes were tried together and Lopes’ conviction was upheld by the SJC in 2018.

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Lopes was 20 at the time of the crime and remains serving a life-without-parole sentence at the Souza Baranowski Correctional Center, the state’s maximum security prison, records show.

Fernandes is currently housed at MCI-Norfolk, a medium-security prison, according to records.

When Fernandes and Lopes were given their life sentences in 2013, the victim’s father, Nathaniel Davis Jr., told the two to stay away from his family while admonishing them for choosing to kill his son.

Davis looked at the teenagers, who were once his neighbors, and told them of the pain he and his family have suffered because of their brutality, the Globe reported.

“I have to go down to Bowdoin Street, corner of Norton Street, and watch where my son was killed,’' said Davis. “You should’ve been showing him how to play basketball or something.”

Davis could not be reached Thursday.

Rosemary Scapicchio represented Fernandes during the trial and handled the appeal before the SJC. During the trial, she said, then-Superior Court Judge Patrick Brady blocked her from having an expert witness testify about the way a juvenile brain works — even as the Supreme Court thought it worthy of examination.

Now, she said, the SJC is essentially agreeing with the position she took during the 2012 trial, but it’s too late for jurors to hear information that could have led them to reach a different verdict.

“I am angry that Joshua did not get a fair trial, that’s what I am angry about,’' she said in a telephone interview Thursday. " I am angry that we can bring these very serious issues to a trial judge and have them ignored. And then when we bring it up to the SJC, they defer to the trial judge. Around and around and around, and in the interim, Joshua is in the middle.”

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Suffolk District Attorney Rachael Rollins said in a statement she was “grateful” the SJC upheld Fernandes’ conviction and while expressing approval for the elimination of the life sentence he faced.

“Mr. Fernandes was only 16 years old at the time he took part in this violent murder of an innocent child,’' she said. “It is long settled in both our federal and state courts that juveniles should not face the same mandatory term of life in prison without the possibility of parole as adult killers.”

Rollins noted that the SJC is now considering two cases that once again aim at making the current science of brain development applied in the Massachusetts criminal justice system.

“As we explore current scientific understanding of the developing brain and its implications for individuals who have committed murder as emerging adults, my staff and I are committed to ensuring accountability and fairness in every proceeding while providing survivor families with necessary services and resources at every stage of the criminal legal process,’' she said.

Rollins said her office will provide support services to Fomby-Davis’ family.



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John R. Ellement can be reached at john.ellement@globe.com. Follow him on Twitter @JREbosglobe.