Heard: February 2, 2016.
found and returned in the Superior Court Department on May
26, 2011. A motion to dismiss was heard by Richard T. Tucker,
J. Bender, Assistant District Attorney, for the Commonwealth.
R. Wilson for the defendant.
Present: Vuono, Grainger, & Massing, JJ.
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) .
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. 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. 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
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. 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.
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. 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. Despite this discrepancy, there was no
dispute that McCabe died by asphyxiation by strangulation.
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. 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
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."
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 ...