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Commonwealth v. Ferreira

Appeals Court of Massachusetts, Middlesex

October 14, 2016


          Heard: February 2, 2016.

         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.

          Present: Vuono, Grainger, & Massing, JJ.

          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. 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.

         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.


         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 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 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 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 Maria 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 ...

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