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July 22, 1977


Bristol. Indictment found and returned in the Superior Court on August 13, 1973. The case was tried before Brogna, J.

Hennessey, C.j., Quirico, Braucher, Kaplan, & Liacos, JJ.


Homicide. Practice, Criminal, Charge to jury. Evidence, Redirect examination. Words, "Reasonable doubt."

The opinion of the court was delivered by: Hennessey

At the trial of an indictment for murder in the first degree, where evidence of the defendant's guilt was not overwhelming, it was reversible error to instruct the jury as to the sentencing and parole consequences of murder in the first and second degrees. [123-128]

At a murder trial, the Judge erred in his instructions to the jury on the standard of reasonable doubt. [128-130]

At the trial of one of two men charged with murder, it was prejudicial to the defendant to exclude his explanation as to why he did not give a statement to the police where the prosecutor had elicited testimony on cross-examination that, when the second man had accused him of the murder at a police station, the defendant had replied, "Is that right, Joe?" [130-131]

The defendant, Daniel K. Ferreira, brings this appeal pursuant to G. L. c. 278, §§ 33A-33G, from his conviction of the murder in the first degree of Fall River police Officer John Ruggiero on July 23, 1973. He raises three issues in this appeal: (1) whether it was reversible error for the trial Judge to charge the jury as to the sentencing and parole consequences for murder in the first and second degrees; (2) whether the trial Judge erred in charging the jury that the reasonable doubt standard required that they be convinced of the defendant's guilt to the same degree of certainty they would have used in making important economic or social decisions in their own lives; (3) whether the trial Judge erred in preventing the defendant from explaining why he did not give a statement to the police. We conclude that there was error, and we reverse.

The evidence in this case is highly material to our Conclusions herein, especially as it relates to the Commonwealth's claim of harmless error. In particular, the record shows that the case against the defendant was not so overwhelming as to exclude logical argument that one Joseph Silva, not the defendant, committed the homicide. So also, with regard to the Judge's disputed instructions as to the punishments for murder in the first and second degrees, the evidence in its entirety did not make out an overwhelming case of murder in the first degree. Accordingly, we summarize the evidence in some detail.

Testimony of Officer Fortin. The circumstances of Officer Ruggiero's death were described at trial by Fall River police Officer Robert Fortin, an eyewitness. Fortin testified that as he was walking his beat at approximately 3:20 A.M. he observed Ruggiero in his cruiser following a black Cadillac automobile which had no lights on. The Cadillac stopped in the middle of the street, the cruiser came to a stop behind it, and the Cadillac then pulled partially into an adjacent parking lot. Fortin was approximately 210 feet away at this point.

Two men ran from the car toward Ruggiero's cruiser. The shorter of the two men, later identified as the defendant, wearing a dark shirt, ran to within four inches of the cruiser, to a point even with the rear view mirror outside Ruggiero's window. The taller man, later identified as Joseph Silva, who was wearing a white shirt or jacket, also ran to a point near Ruggiero's window about one and one-half feet behind and to the right of the other man, at a point approximately even with the division between the driver's window and the rear window. Fortin heard four or five gunshots and saw flashes beginning about four inches from the window. He could not tell which man fired the shots.

Both men then ran back to the Cadillac and sped toward Fortin. When the car was ten to fifteen feet away from him, Fortin recognized the driver as Joseph Silva and the passenger as the defendant. *fn1 He saw the defendant pointing a gun out the window at him as the car sped past. Fortin then fired several shots at the rear of the Cadillac, following which he radioed to other officers to apprehend Silva and the defendant for the shooting of Officer Ruggiero.

The arrest of the defendant. Officers Lawrence Ferreira, *fn2 William Lake and Gerald Souza testified that about 3:30 A.M. they heard broken radio messages that Officer Ruggiero had been shot and that the Cadillac involved was heading west on a named street; however, they did not recall the suspects' names being mentioned in the broadcast. All three officers were in the vicinity in separate cruisers, and each gave chase but could not keep pace with the Cadillac. The Cadillac, with bullet holes in the rear, was found a short time later parked at an intersection. Lake and Souza, who were the first to arrive at the intersection, did not see anyone get out of the car but found the defendant lying in some tall grass near a fence, four to five feet away from the open passenger's door. He was wearing tight shorts and a dark pullover shirt. The officers apprehended him, although he twice attempted to escape, sustaining a head wound in the process. About eight feet from the spot where the defendant was lying, Lake found a gun which he guarded until Detective-Sergeant Lawrence M. Ferreira retrieved it.

Officer Ferreira stated that, once the defendant had been placed in a cruiser and advised of his Miranda rights, the defendant said, "You know who I am. What's this all about?" Detective Paul Carey, who arrived at the scene with Detective Francis McDonald and read the defendant his Miranda rights, testified that the defendant told him that he knew his rights and that Silva was across the street. Detective Carey added that the defendant asked him not to tell Silva that he disclosed where he was and to forget that he had been given his rights. About 5 A.M. Carey and McDonald entered the house across the street, found Silva in bed, and took him to the station for questioning.

The physical evidence. Detective-Sergeant Ferreira identified the gun that he recovered near the Cadillac as a .38 caliber weapon made by the Charter Arms Company. He took it to the police station, where it was transmitted to State police Sergeant Arthur Turcotte. Sergeant Turcotte testified that between 3:30 and 4 A.M. on July 23, 1973, he examined both the gun and the five cartridge cases inside for latent prints, but found none.

Detective Edward Pedro testified that no paraffin test was performed on the defendant or Silva because the test is unreliable and no one in the Fall River police department was qualified to give it. He denied that the defendant asked for a test on his hands, but said that the defendant had requested that the gun be checked for fingerprints. Pedro also testified that he questioned Silva at the police station and that Silva mentioned a box of ...

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