Commonwealth v. Ferreira ( 2016 )

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15-P-13 Appeals Court
COMMONWEALTH vs. MICHAEL FERREIRA.
No. 15-P-13.
Middlesex. February 2, 2016. - October 14, 2016.
Present: Vuono, Grainger, & Massing, JJ.
Collateral Estoppel. Practice, Criminal, Collateral estoppel,
Dismissal. Perjury. Homicide.
Indictment found and returned in the Superior Court
Department on May 26, 2011.
A motion to dismiss was heard by Richard T. Tucker, J.
Robert J. Bender, Assistant District Attorney, for the
Commonwealth.
Eric R. Wilson for the defendant.
VUONO, J. The issue in this case concerns the proper
application of the doctrine of collateral estoppel, as embodied
in the double jeopardy clause of the Fifth Amendment to the
United States Constitution and in Massachusetts statutes and
common law. See Ashe v. Swenson, 397 U.S. 436 (1970);
Commonwealth v. Benson, 389 Mass. 473 (1983). See also G. L.
2
c. 263, § 7; Commonwealth v. Leggett, 82 Mass. App. Ct. 730, 734
(2012).
In 2011, nearly forty-two years after the body of fifteen
year old John McCabe was found in a field near the railroad
tracks in the city of Lowell, the defendant, Michael Ferreira,
and Walter Shelley each were indicted by a grand jury on one
count of murder. A third individual, Edward Brown, was indicted
on one count of manslaughter.1 The defendant also was charged
with perjury arising from allegedly false testimony he gave on
April 16, 2008, before a grand jury investigating the murder,
specifically, testimony denying any knowledge of what happened
to McCabe.2 Following a jury trial on the murder indictment at
which Brown testified for the Commonwealth pursuant to a
cooperation agreement, the defendant was acquitted. In a
separate trial, Shelley was convicted of murder in the first
degree by extreme atrocity and cruelty.
1
The grand jury returned indictments against Shelley
(murder), Brown (manslaughter), and the defendant (perjury) on
May 26, 2011. The defendant was indicted for murder on August
12, 2011, after proceedings pursuant to G. L. c. 119, § 72A,
were held in the Juvenile Court.
2
We are unable to determine from the record whether the
grand jury that returned the perjury indictment is the same
grand jury before which the defendant testified. Given the
passage of time between the two events, it is likely that there
were two different grand juries. In any event, nothing turns on
this issue.
3
After his acquittal, the defendant moved to dismiss the
perjury indictment on the ground of collateral estoppel. He
asserted that the not guilty verdict was based on the jury's
rejection of Brown's testimony and claimed that, because the
Commonwealth could not prove the perjury charge without
presenting Brown's testimony, the Commonwealth is estopped from
prosecuting the perjury charge. In a thoughtful memorandum of
decision and order, a Superior Court judge (motion judge), who
was not the trial judge, allowed the motion, from which the
Commonwealth now appeals.3 Because we conclude that the
defendant failed to satisfy his burden of showing that
collateral estoppel is applicable in the circumstances
presented, we reverse the order of dismissal.
Background. 1. Facts. The jury could have found the
following facts. On the evening of September 26, 1969, McCabe
attended a dance at the Knights of Columbus hall in the town of
Tewksbury. When McCabe failed to return home, his parents
contacted the police and drove around town with a police officer
looking for him, without success. The following morning McCabe
was found dead in a field off of Maple Street and adjacent to
the railroad tracks in Lowell. He was fully clothed and lying
prone on the ground. His eyes and mouth were covered with
3
The Commonwealth also appeals from the order denying its
motion for reconsideration.
4
adhesive tape, his hands were tied behind his back, and his
ankles were tied together with a separate piece of rope. A
third piece of rope was wrapped around McCabe's neck and
knotted, resulting in ligature furrows that encircled the entire
neck. There was conflicting evidence about whether the rope
from McCabe's neck had been tied to the rope binding his ankles.
Brown testified that McCabe was "hog-tied," meaning that the
rope from McCabe's neck was tied to the rope around his ankles
such that his legs were up in the air. However, when the body
was found, McCabe's legs were straight and the rope that had
been tied around his neck was not tied to any other rope. In
addition, Dr. Kimberley Springer, a forensic pathologist and
medical examiner for the Commonwealth, opined that, while the
ligature furrows that appeared around McCabe's neck could be
consistent with a rope tied in the manner described by Brown,
without more information, she could not be certain how the rope
had been tied.4 The defendant's expert, Dr. Thomas Andrew, did
not believe that McCabe had been hog-tied and opined that there
was no forensic evidence to support this theory.5 Despite this
4
The medical examiner who performed the autopsy was not
available at the time of trial. Dr. Springer testified to the
cause of death.
5
At the time of his testimony, Dr. Andrew was chief medical
examiner for the State of New Hampshire.
5
discrepancy, there was no dispute that McCabe died by
asphyxiation by strangulation.
The police investigation immediately following the
discovery of McCabe's body did not point to any definite
suspects. Many witnesses were questioned, including the
defendant, who told the police that he saw McCabe on the night
in question while he was riding in a car driven by Nancy
Williams, to whom he was married at the time of trial.6 McCabe
was on his way to the dance and Nancy, along with the defendant,
gave McCabe a short ride. Thereafter, the defendant was with
his friend, Shelley. The two visited a friend who was
babysitting and, at about 12:15 A.M., the two drove to Lowell to
buy cigarettes and beer at a store known as "Cunningham's,"
which is located near the railroad bridge.
About two weeks after the murder, the defendant stated to
friends that he thought the police suspected him of killing
McCabe. When his friends asked him why he thought that, the
defendant responded, "I did it." He immediately followed with
the statement, "[J]ust kidding."
The murder investigation remained open and decades passed
without significant developments. Then, in 1997, the defendant
attended a pig roast at the home of a childhood friend, Brian
6
Because the defendant's wife changed her surname to
Ferreira, we use her first name to avoid confusion.
6
Gath. Jack Ward, who was a close friend of McCabe's, also
attended the party. While there, Ward and the defendant had a
conversation about the unsolved murder during which the
defendant told Ward that he knew who killed McCabe. The
defendant stated that Shelley committed the crime because McCabe
was paying too much attention to Shelley's girl friend, thirteen
year old Marla Shiner. This information, which was provided to
the police at some point in 2002, prompted the police to contact
Shiner who was living in California. In a telephone interview,
she confirmed that she had been dating Shelley at the time of
McCabe's murder. However, when she testified at trial, Shiner
claimed that the relationship began some time after the date of
the murder. Shiner married Shelley when she turned eighteen.
The couple subsequently divorced.
The investigation continued, and on October 30, 2003, the
police went to see the defendant at his home in Salem, New
Hampshire. Nancy was present as well. During the ensuing
interview, the defendant stated that he remembered the events of
the night of the murder and then gave a slightly different
version of his activities than he had given in 1969. In 2003,
he stated that he was with Brown in addition to Shelley on the
night McCabe was murdered. He identified Shiner as Shelley's
girl friend and said she was with him (the defendant), Shelley,
and Brown for part of the evening. The defendant described
7
Shelley as a jealous boy friend who beat Shiner. The defendant
again stated that he went to Cunningham's with Shelley, but this
time (in 2003) he said that Brown and Shiner also were present.
In response to questions regarding what he told Ward at the pig
roast in 1997, the defendant acknowledged that he said Shelley
killed McCabe. Upon hearing this, Nancy reacted angrily. The
defendant then qualified his response by stating, "I didn't say
he did it, I said he probably did it."
A few years later, on April 16, 2008, the defendant
testified before a grand jury that was investigating McCabe's
murder. During the course of his testimony, the defendant was
asked if he knew what happened to McCabe and he answered, "No."
He also was asked if he had seen McCabe after the Knights of
Columbus dance in Tewksbury, to which the defendant also
responded, "No." Finally, the defendant was asked if he had any
knowledge of how McCabe was placed at the field off of Maple
Street, and the defendant again responded, "No." The perjury
indictment is based on the defendant's negative responses to
these three questions.
The police also interviewed Brown at various times between
the fall of 2007 and March, 2011. Brown consistently denied
having any knowledge of the murder until March 9, 2011, when he
confessed that he, Shelley, and the defendant kidnapped McCabe,
tied him up, and left him in a field in Lowell. As we have
8
stated, Brown entered into a cooperation agreement with the
Commonwealth, which required him to testify truthfully and to
plead guilty to manslaughter. He was promised no jail time in
exchange for his cooperation.
Brown then testified at the defendant's murder trial and
recounted the events that resulted in McCabe's death in more
detail.7 Brown, who was seventeen years old in September, 1969,
stated that he and the defendant, who was then sixteen years
old, were passengers in Shelley's car and had been drinking beer
while driving around looking for McCabe. When they saw him on
the street, the defendant forced McCabe into Shelley's car. As
Brown explained it, "[t]he plan was to teach [McCabe] a lesson
for messing with Marla."
Shelly parked in a field off of a dirt road beyond the
railroad tracks in Lowell. Brown then pushed McCabe out of the
passenger seat after which Shelley and the defendant pushed
McCabe to the ground, bound his ankles and wrists with rope, and
then hog-tied McCabe by placing a separate piece of rope around
McCabe's neck and tying it to the rope that bound McCabe's
ankles. Brown said that McCabe was squirming and that when he
tried to speak, Shelley and the defendant taped his mouth closed
and then covered his eyes with tape as well. After telling
7
The defendant successfully had moved to sever the perjury
indictment from the murder indictment.
9
McCabe not to "mess with Marla anymore," the three teenagers
left and drove around drinking more beer. Brown recalled that
McCabe's legs were up in the air at a ninety-degree angle when
they left and they were in the same position when they returned
to release McCabe about one hour later.8
Brown remained in the car while Shelley and the defendant
approached McCabe and discovered that McCabe was dead. Brown
described the defendant's demeanor when he returned to the car
as "[s]tartled, surprised, [and] scared." The three friends
made a promise never to speak about what had happened, a promise
they kept for decades.
At the conclusion of the defendant's two-week murder trial,
the jury were instructed on three theories of guilt: (1) murder
in the first degree by extreme atrocity and cruelty, (2) murder
in the second degree, and (3) murder in the second degree
committed in the course of a felony, i.e., kidnapping. The jury
were not asked to return verdicts on kidnapping or manslaughter.
The jury deliberated for more than five hours over the course of
two days before returning a general verdict of not guilty.
2. Dismissal of the perjury indictment. As we have noted,
the defendant filed a motion to dismiss the perjury indictment,
8
Brown testified that "[b]ecause [McCabe's] punishment
should have been known by [then], [they] were going to let him
go."
10
claiming that Brown's testimony was the only direct evidence of
the defendant's involvement in the kidnapping and the murder of
McCabe and, because the issue of Brown's credibility already had
been decided in the defendant's favor, the Commonwealth was
estopped from presenting Brown's testimony at the defendant's
perjury trial. The Commonwealth acknowledged its intent to
present Brown's testimony again, but argued that it could not be
estopped from trying the defendant because the perjury charge
involves different issues. The Commonwealth also argued that
because the jury returned a general verdict, it was not possible
to determine whether Brown's testimony had been rejected for
lack of credibility and, therefore, collateral estoppel did not
apply.9
Following a hearing, the motion judge conducted a thorough
review of the record and ultimately determined that the
Commonwealth was estopped from prosecuting the perjury
indictment. He began his analysis with an overview of the
doctrine of collateral estoppel. As defined by the United
Stated Supreme Court in Ashe, 397 U.S. at 443, the doctrine of
collateral estoppel provides that "when an issue of ultimate
fact has once been determined by a valid and final judgment,
9
The Commonwealth also claimed below that it had been
prejudiced when the defendant's motion to sever the perjury
indictment was allowed but does not pursue this argument on
appeal.
11
that issue cannot again be litigated between the same parties in
any future lawsuit." To establish collateral estoppel, the
party raising the bar has the burden of providing a "concurrence
of three circumstances": (1) a factual issue common to both
prosecutions, (2) "a prior determination of that issue in
litigation between the same parties," and (3) a determination in
the prior proceeding favorable to "the party seeking to raise
the estoppel bar." Commonwealth v. Coleman, 20 Mass. App. Ct.
541, 547 (1985).10 Following Federal precedent, our cases
further instruct "that the rule of collateral estoppel in
criminal cases is not to be applied with the hypertechnical and
archaic approach of a 19th century pleading book, but with
realism and rationality," Ashe, supra at 444. See, e.g.,
Commonwealth v. Ringuette, 60 Mass. App. Ct. 351, 360-361, S.C.,
443 Mass. 1003 (2004). Finally, where a prior judgment of
acquittal was based on a general verdict, as here, we must
"examine the record of [the] prior proceeding[s], taking into
account the pleadings, evidence, charge, and other relevant
matter, and conclude whether a rational jury could have grounded
10
The three-part test of Coleman was stated to be a five-
factor test in Commonwealth v. Ringuette, 60 Mass. App. Ct. 351,
357, S.C., 443 Mass. 1003 (2004), by the adoption of additional
factors, not in contention in the instant inquiry, of whether
the party claiming estoppel had the incentive to litigate
thoroughly the issue in the first proceeding, and requiring that
the applicable law must be identical in both proceedings.
12
its verdict upon an issue other than that which the defendant
seeks to foreclose from consideration." Ashe, supra (citation
omitted).
Applying these principles to the question presented, the
motion judge concluded that the Commonwealth was not
collaterally estopped from pursuing the perjury charge as a
result of the acquittals of murder in the first and second
degrees. He reasoned that the jury could have believed all of
Brown's testimony and acquitted the defendant of murder in the
first and second degrees based on a reasonable doubt that the
element of intent or malice had been proven because Brown
testified that the motive behind the incident was to teach
McCabe a lesson, not to kill him. The judge went on to
conclude, however, that the acquittal of murder in the second
degree based on a theory of felony-murder, with kidnapping as
the predicate felony, demonstrated that the jury necessarily
rejected Brown's testimony. In the judge's view a rational jury
could not have acquitted the defendant of felony-murder in the
second degree, individually or as a joint venturer, if Brown's
testimony had been deemed credible.11 Thus, the judge reasoned
that because the jury rejected Brown's testimony, the
11
The judge observed: "the jury could not have believed or
accepted Brown's testimony and then not found [the defendant]
guilty of kidnapping and of a killing occurring during the
commission of the kidnapping."
13
Commonwealth's use of his testimony in the perjury trial would
amount to a retrial of the issue already litigated.
We agree with the judge's reasoning insofar as he
concluded that the acquittals of murder in the first and second
degrees do not bar the Commonwealth from prosecuting the perjury
indictment. Our analysis differs, however, on the question
whether the acquittal of the charge of felony-murder in the
second degree warrants dismissal of the perjury indictment.
Discussion. In Commonwealth v. Benson, 389 Mass. at 478,
the Supreme Judicial Court stated that the doctrine of
collateral estoppel may work in two ways. "First, it may bar
totally a subsequent prosecution if one of the issues
necessarily decided at the first trial is an essential element
of the alleged crime in the second trial. Second, even if a
prosecutor may proceed to a second trial, the doctrine may bar
the introduction of certain facts determined in the defendant's
favor at the first trial."
We first consider whether the not guilty verdict bars
completely the prosecution for perjury. Clearly, it does not.
None of the elements of perjury was required to be proved in the
murder trial. See Carrasquillo v. Commonwealth, 422 Mass. 1014,
1015 (1996) (where defendant found not guilty of murder,
collateral estoppel did not bar subsequent prosecution for
conspiracy to commit same murder). More fundamentally, the only
14
fact determined here in the murder trial was that the defendant
did not participate as a principal or as a joint venturer in
killing McCabe. That fact is not necessary to prove perjury.
The defendant's argument that the Commonwealth cannot prove he
committed perjury in 2008 without also proving that he
participated in the kidnapping and the murder of McCabe rests on
a misreading of the perjury indictment. The indictment
specifies that the defendant falsely denied having any knowledge
of what happened to McCabe, not that he falsely denied that he
was involved in committing the crime of murder. Because the
perjury offense is distinct from the murder offense, and does
not require the Commonwealth to prove the defendant's
involvement in the underlying murder, a subsequent prosecution
for perjury does not implicate the doctrine of collateral
estoppel.12
12
The case of Commonwealth v. Hude, 492 Pa. 600 (1980),
upon which the defendant primarily relies, is distinguishable.
In that decision, the Supreme Court of Pennsylvania addressed
two appeals, both of which raised the issue whether a defendant
may be tried for perjury arising out of statements he made in a
prior trial in which he was acquitted of the charges brought
against him. Id. at 607. In Manfred Hude's appeal, the perjury
conviction was reversed because it was based on the same
evidence -- the defendant's testimony at trial denying his
involvement in the crime -- that was accepted as true in the
first trial. Id. at 621. Because the jury already had rejected
the Commonwealth's case and had accepted the defendant's
testimony, relitigation of the defendant's truthfulness at the
perjury trial violated the prohibition against double jeopardy.
Ibid. In Dennis Klinger's appeal, there were multiple perjury
charges, some of which were based on his testimony at his murder
15
We now turn to the second question, that is, whether the
Commonwealth is estopped from presenting Brown's testimony at
the perjury trial because the issue of his credibility has
already been litigated. The answer is no. Taking the rational
and realistic approach advocated by the United States Supreme
Court in Ashe, and in our cases, we conclude that the jury could
have believed Brown was telling the truth while acquitting the
defendant of felony-murder in the second degree. Regarding
felony-murder with kidnapping as the predicate felony, the jury
properly were instructed by the trial judge that they were
required to find beyond a reasonable doubt that the kidnapping
was committed "with a conscious disregard for the risk to human
life."13 The judge further specified: "[t]he felony of
kidnapping must have occurred in a way known by the defendant to
trial denying culpability and others that were related to his
testimony regarding his alibi. Id. at 608-609. The court
concluded that the defendant's denying committing the murder
could not be the basis for a subsequent perjury charge, but held
that the other perjury charges could proceed because the jury's
verdict of acquittal did not reasonably reflect that they
accepted the truth of the alibi testimony. Id. at 625-627.
13
The judge instructed the jury in pertinent part as
follows: "the Commonwealth must prove to you beyond a
reasonable doubt . . . that the killing occurred while the
defendant was committing or attempted to commit a kidnapping,"
that "the killing occurred in connection with the kidnapping and
at substantially the same time and place," and that the
defendant "committed or attempted to commit the felony of
kidnapping with a conscious disregard for the risk to human
life."
16
be dangerous to life or likely to cause death."14 Viewing the
entire case and all the circumstances, including the age of the
defendant at the time of the crime (sixteen years old), the
motive behind the kidnapping (to teach McCabe a lesson), the
defendant's consumption of alcohol (beer), and the defendant's
reaction upon discovering McCabe was dead (startled, surprised,
and scared), we are persuaded that the jury could have acquitted
the defendant in accordance with the trial judge's instructions
by concluding that the defendant was not cognizant of the danger
posed to McCabe's life during the kidnapping and therefore did
not commit the felony of kidnapping with a conscious disregard
for the risk to human life.15
14
While conceding the absence of any law in Massachusetts
to support his position, the defendant nonetheless urges us to
hold that kidnapping is an inherently dangerous felony. Even if
we were inclined to follow the defendant's suggestion, he would
fare no better. There is no doubt that the jury reasonably
could have concluded that the defendant committed the kidnapping
with a conscious disregard for human life. However, the point
is they were not required to do so on the basis of Brown's
testimony.
15
As we observed in Commonwealth v. Lopez, 80 Mass. App.
Ct. 390, 394 n.5 (2011), "[c]onscious disregard demands conduct
more dangerous than that required for involuntary manslaughter.
Involuntary manslaughter requires wanton or reckless conduct,
that is, conduct involving 'a high degree of likelihood that
substantial harm will result to another.' Conduct evincing
conscious disregard thus requires more than a mere threat of
substantial physical harm; conduct supporting felony-murder
liability must pose a foreseeable risk of actual loss of life."
Ibid. (citations omitted).
17
While we cannot determine the basis on which the jury
reached their verdict, see Commonwealth v. Benson, 389 Mass. at
481 ("A finding of not guilty at a criminal trial can result
from any number of factors having nothing to do with the
defendant's actual guilt" [citation omitted]), we can say that,
in acquitting the defendant, the jury did not necessarily decide
that Brown was not credible. Because the jury may have reached
their decision on an issue other than Brown's credibility, the
defendant has not met his burden of proving that the jury
necessarily rejected Brown's testimony and, consequently, the
Commonwealth is not estopped from calling Brown as a witness in
the perjury trial.
Order allowing motion to
dismiss indictment
reversed.