Heard: October 6, 2017.
found and returned in the Superior Court Department on March
29, 2007, and April 17, 2008.
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.
H. Mirsky (Joanne Petito also present) for the defendant.
Cho, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Gaziano, Budd, Cypher, & Kafker,
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. 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,
summarize the evidence that the jury could have found,
reserving certain details for discussion of specific issues.
The drug operation.
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
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.
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."
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]
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.
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.
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
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.
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
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.
The defendant's case.
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.
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. 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
Unauthorized police presence in ...