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Commonwealth v. Woollam

Supreme Judicial Court of Massachusetts, Bristol

December 13, 2017


          Heard: October 6, 2017.

         Indictments found and returned in the Superior Court Department on March 29, 2007, and April 17, 2008.

         A pretrial motion to suppress evidence was heard by Robert J. Kane, J.; the cases were tried before Barbara A. Dortch-Okara, J.; and a motion for a new trial, filed on May 29, 2013, was heard by Renee P. Dupuis, J.

          David H. Mirsky (Joanne Petito also present) for the defendant.

          Yul-mi Cho, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Gaziano, Budd, Cypher, & Kafker, JJ.

          BUDD, J.

         In February, 2009, a jury convicted the defendant, Derek Woollam, of murder in the first degree on a theory of deliberate premeditation in connection with the shooting death of John Oliveira in July, 2006.[1] In this appeal, the defendant asserts error in the unauthorized presence of police officers in the grand jury room during the presentation of witness testimony in support of the indictments against him, as well as the admission of certain evidence at trial due to ineffective assistance of counsel and prosecutorial misconduct. He also seeks relief under G. L. c. 278, § 33E. After full consideration of the record and the defendant's arguments, we affirm his convictions and the denial of his motion for a new trial, and we decline to grant extraordinary relief pursuant to G. L. c. 278, § 33E.


         We summarize the evidence that the jury could have found, reserving certain details for discussion of specific issues.

         1. The drug operation.

         In 2006, John Oliveira ran a large-scale drug operation out of a studio apartment in a duplex in Swansea. At the time of his death, he had two "employees": the defendant, who delivered marijuana to customers and collected the money; and Dylan Hodgate, who broke down the larger quantities of marijuana and repackaged them into smaller bags. Oliveira's girl friend lived in the other apartment in the duplex.

         Oliveira had several rules in connection with his drug business, all designed to protect the operation and minimize detection. For instance, the exterior doors were always to be kept locked, no others could be brought to the house, and one of the four of them was always to be present at the house. Further, the defendant, the girl friend, and Hodgate were prohibited from being under the influence of drugs.

         In January or February of 2006, Oliveira's girl friend discovered that the defendant was using drugs, and began procuring pills from him. The defendant and Oliveira's girl friend agreed not to tell Oliveira about their use of pills. Over the course of several months, the relationship between Oliveira and the defendant deteriorated. Oliveira complained to his girl friend that the defendant was "never on time, " was "a slacker, " and "wasn't doing what he was supposed to do."

         2. The shooting.

         On July 4, 2006, Oliveira discovered a text message from his girl friend on the defendant's cellular telephone (cellphone) asking the defendant for pills. Oliveira was very upset and told the defendant, "You broke the rules." When the defendant lied and said that the pills were likely for the girl friend's cousin, Oliveira said that he would speak to the girl friend that night and would "let [the defendant] know" after that. Oliveira sent a text message to his girl friend to let her know that he was "pissed, " and that he would be coming by the apartment to discuss the matter, warning her "not [to] lie."

         Later that night, although Oliveira and his girl friend had seemingly resolved the matter, he was still angry with the defendant. At approximately 12:15 A.M., Oliveira received a telephone call and told his girl friend that he was going to pick up Hodgate and would be right back. He never returned.

         The last call made from Oliveira's cellphone was to Hodgate's cellphone at 1:28 A.M. At approximately 1:43 A.M., a Swansea police officer on routine patrol saw a black Mercury Sable (the make, model, and color of the defendant's automobile) pull out of the driveway of the house with two people inside.

         The next morning, Oliveira's girl friend saw Oliveira's automobile in the driveway. The interior door to the studio apartment was locked, and there was no answer when she knocked. This was unusual because Hodgate was normally supposed to be there during the day. She was unable to reach Oliveira, the defendant, or Hodgate by telephone despite many attempts over the course of the day. When she returned later that afternoon, Oliveira's automobile was in the same spot. When she knocked on the studio apartment door, there was still no answer, and she noticed that the television inside was abnormally loud. Eventually, she discovered that the exterior back door to the studio apartment was unlocked. When she entered, she found Oliveira's body lying in a pool of blood. He had been shot several times and was cold to the touch.

         An autopsy revealed that Oliveira had been shot four times. Two shots to the head were fatal: one bullet entered through the left cheek, and a second entered through the right forehead. The location and path of a third bullet, which entered the lower right side of his torso, was consistent with Oliveira having been shot while lying on his back. The fourth bullet grazed the back of his head.

         3. The aftermath.

         Soon after Oliveira's girl friend discovered the body, the defendant arrived. Before the police were called, the defendant removed marijuana in large duffel bags from the studio apartment and left with them in his black four-door automobile.

         Over the next few days, the defendant enlisted help from others to distribute the marijuana that came from the studio apartment, and to clear out a storage locker in his name containing guns and ammunition. He also removed the batteries and subscriber identity module (SIM) cards from his cellphones to avoid being tracked. He admitted to one of the people who assisted him, Michael Pacheco, that he killed the victim because he believed that the victim was going to kill him after learning about the pills, and that Oliveira suspected that the defendant was having an affair with Oliveira's girl friend. One to two weeks later, the defendant and Pacheco went together to burn a bag containing the sneakers and clothes from the night of the shooting.

         4. The defendant's case.

         The defendant, who testified at trial, denied killing the victim. He also attacked the credibility of the Commonwealth's witnesses and cast doubt on the thoroughness of the police investigation, as well as the conclusiveness of the physical evidence, noting that the Commonwealth did not produce incriminating fingerprint or deoxyribonucleic acid evidence. Finally, he also raised the possibility of a third-party culprit, which included Hodgate, Mexican drug dealers, and a tall, white male who hung around a local bar.


         The issues that the defendant raises in his direct appeal are the same ones he raised in his motion for a new trial. He argues that the presence of investigating police officers in the grand jury room during witness testimony resulted in structural error requiring the reversal of his convictions, and that it was ineffective assistance for his counsel to fail to move to dismiss the indictments. He further claims ineffective assistance in trial counsel's failure to object to the admission of certain cellphone record evidence, failure to object to the admission of evidence of his bad character, and failure to rebut the false testimony of a cooperating witness.[2] Finally, the defendant claims that the admission of statements he made during an interview with police violated his Miranda rights. We examine each claim in turn.

         1. Unauthorized police presence in ...

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