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Commonwealth v. Almeida

Supreme Judicial Court of Massachusetts, Plymouth

May 17, 2018


          Heard: January 9, 2018.

         Indictment found and returned in the Superior Court Department on December 19, 2011.

         The case was tried before Thomas F. McGuire, Jr., J.

          Amy M. Belger for the defendant.

          Audrey Anderson, Assistant District Attorney, for the Commonwealth.

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

          KAFKER, J.

         The 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 cruelty.

         In his 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.


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

         The 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 grandmother.

         In the 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 her."

         In late 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."

         In late 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."

         Following 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."

         After 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.

         On the 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.

         The 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."

         That 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 was unsuccessful.

         Later 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.

         The 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 victim.[1]

         After 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.

         At the 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 ...

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