Supreme Judicial Court of Massachusetts, Plymouth
Heard: January 9, 2018.
found and returned in the Superior Court Department on
December 19, 2011.
case was tried before Thomas F. McGuire, Jr., J.
Belger for the defendant.
Anderson, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Budd, Cypher, & Kafker, JJ.
defendant, Marcelo Almeida, stabbed the victim numerous times
with a knife, causing her death. After a jury trial, the
defendant was convicted of murder in the first degree on the
theories of deliberate premeditation and extreme atrocity or
appeal, the defendant claims that reversal of his conviction
is required because the judge erred by (1) allowing evidence
of a prior bad act in which the defendant waited outside the
victim's bathroom with a knife and later stated that he
would have killed her if she opened the door; (2) permitting
the prosecutor to comment in her closing argument on
omissions in the defendant's statement to a police
officer, which the defendant contends were not inconsistent
with the defendant's trial testimony and were caused by
the officer's statements that he should discontinue
speaking with police officers; and (3) failing to provide sua
sponte a jury instruction addressing the omissions, and
providing, over the defendant's objection, a
consciousness of guilt instruction. For the reasons stated
below, we conclude that the trial judge did not err. After a
thorough review of the record, we also decline to exercise
our authority under G. L. c. 278, § 33E, to reduce or
set aside the verdict of murder in the first degree.
Therefore, we affirm the defendant's conviction.
summarize the facts that the jury could have found, reserving
certain details for discussion of the legal issues.
defendant and victim were involved in a relationship
together. Both came to the United States from Brazil and
lived with a mutual friend, Lucas Ferreira, in an apartment
in Marshfield. The defendant and victim also had a child
together, who lived in Brazil with the child's
summer of 2011, trouble within the relationship escalated as
the defendant and the victim fought verbally on numerous
occasions. In July, 2011, while living with the defendant,
the victim and the defendant engaged in a fight that resulted
in the victim locking herself in the apartment bathroom. The
defendant then knocked on the door and banged his head
against a wall, telling the victim to open the door. After
this incident, the victim left the defendant's apartment
and moved into her aunt's house. The next day, the
defendant telephoned a mutual friend and said, "[T]hank
God [the victim] didn't open the door because I would
have kill[ed] her because I had a knife in my hand." The
defendant also told another mutual friend about the incident,
stating that when the victim was in the bathroom, he
"took a knife" and "was going to kill
July and August, 2011, while the victim was living with her
aunt, the defendant repeatedly telephoned the victim, asking
the victim to move back into his apartment. In one telephone
call with the victim, the aunt overheard, on speakerphone,
the defendant say that if the victim did not return, he
"would kill her" and her mother and their son in
Brazil. In another telephone call directly to the aunt, the
defendant said "he wanted [the victim] to return, and if
she didn't return, he would kill her."
August, 2011, after living with her aunt for approximately
three weeks, the victim moved back into the defendant's
apartment. Approximately two weeks later, the defendant and
victim had another argument during which the defendant took
the victim's belongings, threw them into the living room
of the apartment, and told the victim to leave, stating that
"he didn't want her anymore."
this argument, the victim once again moved out of the
defendant's apartment and moved into her friend's
apartment, which was located downstairs in the same apartment
building. While the victim was moving into her friend's
apartment, the defendant saw the victim and called her names
including "snake" and "prostitute."
the victim's move, the defendant continued to contact the
victim every day, often calling the victim on the telephone
more than ten times a day. Sometimes the victim would answer;
most of the time she did not. During this time, the defendant
frequently telephoned mutual friends, as well as the
victim's mother, who still lived in Brazil. In one of the
telephone calls to the victim's mother, the defendant
threatened to kill the victim, stating that he "was
going to buy a gun to kill her, " but then that he would
kill her with a knife. Despite these statements, the
defendant repeatedly tried to convince the victim and others
that he loved the victim and wanted the victim to move back
in with him.
Saturday before the victim's death, which was
approximately three weeks after the victim moved into her
friend's apartment, the defendant invited the victim to
go to a rodeo with him, but the victim declined. The next
day, Sunday, September 25, the defendant saw the victim at a
friend's house and again asked if she would attend the
rodeo with him. The victim told the defendant to "go on
with his life" and that their relationship "would
not work out." That day, the victim went to the rodeo
with two other men.
defendant remained at the friend's house, where he
consumed more than twelve beers. Additionally, the defendant
testified that he consumed cocaine that night for the first
time. While at the house, the defendant went outside with his
housemate, Ferreira, and explained that the victim had lied
to him about going to the rodeo. The defendant then told
Ferreira that he was "going to do something crazy"
and that "he felt like killing [the victim], "
repeating this statement more than once. The defendant also
stated that "what he was going to do, not even his own
mother would forgive him" and that "he knew that he
would never see his son and that his family [would] never
forgive him." In response, Ferreira said that
"there was no need for [the defendant] to do that, he
had a beautiful son, that [the victim] is from a good
family." The defendant replied that he "could not
promise." At trial, Ferreira testified that he had no
difficulty in understanding the defendant, and that the
defendant appeared agitated, sad, and "pissed off."
same afternoon, the defendant made a telephone call to a
mutual friend of the victim, telling the friend, "Thank
you very much. Thank you for everything. Thank you very much
for everything. I'm sorry. Thank you and I'm
sorry." On hearing this statement from the defendant,
the friend tried telephoning the victim five times, but she
that evening, the defendant attempted to find the victim and
speak with her. Unable to find the victim, the defendant
telephoned the victim 232 times throughout the night, but
never spoke to her.
next day, Monday, September 2 6, the defendant saw the victim
at the apartment building. As the victim was leaving for
work, the defendant stabbed the victim eleven times, causing
the victim's death. An autopsy of the victim revealed
that the victim suffered numerous stab wounds with a sharp
object, leading to severe blood loss and the death of the
stabbing the victim with a knife, the defendant sliced his
neck, threw the knife into the stairwell, and proceeded back
to his apartment. Following this, the defendant obtained
another knife from his apartment and then proceeded out of
the apartment. The defendant headed towards the exit of the
apartment building and passed by two friends telling them
that he "killed [the victim]" and that he "did
it for love." He then left the apartment building
carrying the second knife, which he used to stab himself in
an attempted suicide. The defendant subsequently ran into
nearby woods and discarded the knife. The defendant was later
found in a shed by the State police and handcuffed. While in
custody, the defendant was transported to a local hospital to
treat his injuries.
hospital, the defendant was guarded by State police Troopers
Robert Lima and Brian Galvin and had one wrist handcuffed to
the hospital bed. Soon after entering the defendant's
hospital room, Lima read the defendant the Miranda rights in
Portuguese, the defendant's native language. The
defendant signed the Portuguese-translated Miranda form. The
defendant then told Lima that he would talk. In response,
Lima, in Portuguese, told the defendant that Galvin had
spoken with ...