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Commonwealth v. Ferreira

Supreme Judicial Court of Massachusetts, Middlesex

March 18, 2019

COMMONWEALTH
v.
ANTONIO MARCOS FERREIRA.

          Heard: November 9, 2018.

         Homicide. Evidence, Exculpatory, Admission by silence, Consciousness of guilt, Testimony at prior proceeding. Deoxyribonucleic Acid. Search and Seizure, Probable cause, Exigent circumstances, Warrant, Affidavit. Probable Cause. Constitutional Law, Search and seizure, Probable cause, Admissions and confessions. Practice, Criminal, Capital case, Motion to suppress, New trial, Admissions and confessions.

         Indictments found and returned in the Superior Court Department on November 19, 2009. A pretrial motion to suppress evidence was heard by Bruce R. Henry, J.; the case was tried before Elizabeth M. Fahey, J., and a motion for a new trial, filed on May 15, 2017, was considered by her.

          James E. Methe for the defendant.

          Hallie White Speight, Assistant District Attorney, for the Commonwealth.

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

          GAZIANO, J.

         In the early morning of October 2, 2009, the victim, Sheila dos Santos, was stabbed to death near the back entrance to her apartment building. A Superior Court jury convicted the defendant, her former boyfriend, of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty.

         In this consolidated appeal from his conviction and from the denial of his motion for a new trial on the ground of undisclosed exculpatory evidence, the defendant challenges the denial of the motion for a new trial. He argues also that the evidence was insufficient to support the verdict, that it was an abuse of discretion to have denied his motion to suppress evidence that was seized without a warrant, and that a number of the judge's evidentiary rulings were erroneous. In addition, the defendant seeks relief pursuant to G. L. c. 278, § 33E.

         We affirm the defendant's conviction of murder in the first degree, and, having reviewed the entire record pursuant to our statutory duty under G. L. c. 278, 33E, we decline to order a new trial or reduce the verdict.

         1. Background.

         Because the defendant challenges the sufficiency of the evidence, we recite the facts in the light most favorable to the Commonwealth, reserving some details for later discussion. See Commonwealth v. Boiling, 462 Mass. 440, 442 (2012).

         The victim lived on the fourth floor of an apartment building on Main Street in Everett. She, along with her sisters, Rose Angela Carla dos Santos and Ana Paula Carla dos Santos, worked as dancers at a strip club in Chelsea, and later in Stoughton.[1] She met the defendant at the Chelsea club at some point in 2006. The defendant became friends with the victim and her sisters, and eventually started dating the victim. That relationship ended approximately six months prior to the victim's death. Despite the break up, the defendant continued to socialize with the victim and her sister, Ana. The three of them went out together to nightclubs and other gatherings attended by members of the Brazilian community, and the three frequently spoke on the telephone.

         In April 2009, the victim entered into a relationship with a married man named Oliver.[2] On September 26, 2009, a week before the victim's death, the defendant and Oliver were at the Stoughton club where the victim and her sisters worked. The victim paid attention to Oliver in between dances, and the defendant did not stay long. The next day, the defendant visited Ana at her house. He sat down on the floor, and was "a little sad" and "quiet"; he expressed dismay over the victim's decision to date a married man.

         On September 30, 2009, the defendant and one of his roommates, Darles DeSouza, attended a barbeque at Ana's house to celebrate her birthday. The defendant got "a bit agitated" when the victim did not show up. He asked Ana to contact the victim to get her to join them. When Ana told the defendant that the victim was on a date and might stop by later, the defendant commented that he had suspected that she was out with someone. As the night progressed, the defendant called the victim to see what time she would arrive; he held his cellular telephone in his hand and appeared to be waiting for her. After the defendant and DeSouza returned to their Somerville apartment, the defendant remained outside in his silver Nissan Murano and attempted to telephone the victim.

         In the early morning hours of October 1, 2009, the defendant telephoned Ana and told her that he could no longer be friends with her "because he wasn't a good person." The defendant explained that he had been using drugs and that his life for the past six months had had no meaning. He asked Ana to give her sister (the victim) a message that "[s]he was dealing with a person who has no life." Ana attempted to console the defendant; she told him to think about his family and children, and that she would help him find another girlfriend. The defendant responded that he only was interested in the victim.

         Later that morning, the defendant sent Ana a text message that he was feeling better. He also would "not do anything wrong." Before Ana left for her evening shift at the club, she and the defendant spoke by telephone. The defendant said that he had not wanted to go to work that day because he "wasn't in the mood." He asked Ana, "Is your sister going to work today?" Ana replied, "I don't know. I think so."

         At that time, the defendant lived on Melvin Street in Somerville with DeSouza and another roommate, Washington Silveira. The defendant slept on a spare mattress in DeSouza's bedroom, and stored some of his belongings in the closet. In the evening of October 1, 2009, DeSouza came home from work, ate dinner with the defendant, and began watching a movie in the living room. The defendant went into the bedroom before the movie ended. After the movie, DeSouza went into his bedroom, and noticed that the defendant was lying on his mattress wearing a jacket and pants. This was slightly unusual, but not entirely out of the ordinary; the defendant sometimes would be in bed, dressed, when he planned to go out later that night. DeSouza fell asleep. When he woke up the next morning, at 6 A.M., the defendant was talking to someone on his cellular telephone.

         The victim worked at the Stoughton club in the evening of October 1-2, 2009, and drove home in her 2006 Honda CR-V shortly after the club closed at 1 A.M. At 1:11 A.M, during her drive home, the victim called her sister Ana; she sounded "normal." At 1:12 A.M, a vehicle that appeared to be consistent with the defendant's Nissan Murano was captured by a surveillance video camera located on the corner of Melvin Street and Broadway in Somerville. The video recording showed this vehicle pull out of a parking space on Melvin Street, near the defendant's apartment building.

         At 1:38 A.M., a vehicle resembling the defendant's Nissan Murano drove around a traffic circle in Everett and headed in the direction of the victim's apartment building. A few minutes later, at 1:42 A.M., a Honda CR-V drove around the traffic circle, heading in the same direction. At 1:44 A.M., surveillance footage from a camera facing Tileston Street in Everett captured an image of a similar vehicle driving near the victim's apartment building. Back on Melvin Street in Somerville, at 1:53 A.M., a vehicle that appeared similar to the defendant's Nissan Murano pulled up and parallel parked in the same space from which a vehicle like a Nissan Murano had pulled out fifty-one minutes earlier. A man got out of the vehicle and walked in the direction of the defendant's apartment building.[3]

         Shortly before 2 A.M., one of the victim's neighbors, who lived on the second floor of the building, was awakened by a woman's screams coming from the parking lot behind the apartment building. He got up, heard another scream, looked outside, and did not see anything. Approximately thirty to forty seconds after the second scream, the neighbor saw someone walk down the last few steps of the rear staircase, and jog through the parking lot and around a Dumpster. The neighbor described the individual as a man in his twenties or thirties, wearing a tan or brown jacket and jeans. The neighbor went back to bed sometime around 2 A.M.

         At 1:43 A.M., a woman who lived on Laurel Street, in an apartment that faced the rear of the victim's building on Main Street, also was also awakened by a woman's screams. She heard the woman yell, "Get off me, get off me, get away from me," but did not see anything amiss when she looked outside. Believing that the screams were connected to one of the many parties that her neighbors hosted, the woman went back to bed without calling the police.

         At 4:30 A.M., a resident of the victim's building went outside to empty his trash and found the victim lying face down in a pool of blood on the landing outside the back door. She had been stabbed or cut thirty-one times; she had seventeen stab wounds in the torso, and multiple knife wounds in both arms. The victim's handbag, cellular telephone, and keys were next to her body. The wallet contained her credit cards and a few hundred dollars in cash. This neighbor telephoned 911.

         Police investigators spoke to members of the victim's family. Ana told the officers, "I have a suspect for you." The police then attempted to locate the defendant. A detective was able to reach the defendant on his cellular telephone. The defendant agreed to meet investigators at the Everett police station at 2 P.M.; he did not appear at the police station at that time. Eventually, the defendant informed police that he was at the Maiden District Court paying traffic fines. Three Everett police officers drove to the Maiden District Court and met the defendant there. He agreed to accompany the officers to the Everett police station. When they arrived at the station, one of the officers noticed injuries on the back of the defendant's hands. An officer contacted a forensic scientist, Eric Koester, who worked at the State police crime laboratory (crime lab), and asked him to come to the police station to test for possible nonvisible blood. Koester swabbed both of the defendant's hands, and the defendant then left the police station.

         A crime lab analyst examined deoxyribonucleic acid (DNA) extracted from the swabs collected by Koester and determined that the victim was included as a possible contributor to a DNA mixture on the back of both of the defendant's hands. The swab from the right hand was a mixture of at least three people. The defendant matched the major profile, and the victim was included as a potential contributor to the minor profile. The swab from the left hand contained a mixture of DNA from at least two people; the defendant's DNA matched the major profile, and the victim was included as a potential contributor to the minor profile.

         On October 2, 2009, police executed search warrants for the defendant's apartment and his two vehicles (the Nissan Murano and a GMC pickup truck). Police seized a pair of bloodstained sneakers from a bedroom closet. Later testing showed that DNA from a bloodstain on the top of the toe of the left sneaker matched the victim's DNA profile. Another bloodstain on the side of the right sneaker, not visible to the naked eye, contained a mixture of DNA; the major profile from that sample matched the victim's DNA profile.[4]

         Police also collected scrapings from underneath the victim's fingernails. The scrapings from her left hand tested positive for male "Y-STR" DNA, [5] and contained a mixture of DNA from at least four men. The defendant (and his paternal relatives) were included as possible contributors to the major profile. Oliver (and his paternal relatives) were included as a potential source of the minor profile in this DNA mixture. The crime lab obtained both STR and Y-STR DNA results from the victim's right fingernail scrapings. With respect to the STR profile, the defendant was included as a possible contributor, and Oliver was excluded. The Y-STR DNA testing produced a mixture of at least three male profiles. The defendant (and his paternal relatives) were included as possible contributors to the major profile; and Oliver (and his paternal relatives) were included as possible contributors to the minor profile.[6]

         2. Discussion.

         In this direct appeal, the defendant presents four claims, and asks this court to grant him relief under G. L. c. 278, § 33E, and order a new trial or direct the entry of a verdict of a lesser degree of guilt. The defendant contends that the trial judge abused her discretion in denying his motion for a new trial based in large part upon evidence that forensic scientist Eric Koester had failed required proficiency tests. The defendant also challenges the sufficiency of the evidence that he killed the victim. In addition, he argues that the police conducted an illegal warrantless search by swabbing his hands to detect the presence of nonvisible blood, and that a subsequent warrant authorizing a search of his apartment was not supported by probable cause. The defendant argues further that the trial judge abused her discretion in making certain evidentiary rulings, including allowing the introduction in evidence of an adoptive admission. Finally, the defendant asks this court to exercise its authority, pursuant to G. L. c. 278, § 33E, and order a new trial or direct the entry of a lesser degree of guilt.

         a. Motion for new trial.

         Following his conviction of murder in the first degree in March 2012, the defendant's appeal was entered in this court in June 2013. In February 2015, the Commonwealth provided the defendant with postconviction discovery. The discovery included a September 2014 memorandum from the crime lab reporting that Koester repeatedly had failed proficiency tests in bloodstain pattern analysis and the recovery of trace evidence. The Commonwealth also provided the defendant with a "corrected" DNA STR and Y-STR report that showed a significant reduction in the probabilities of the combined STR and Y-STR results appearing randomly in the population.[7]

         After receiving the information concerning Koester's failed proficiency tests, the defendant filed a motion for a new trial in this court, on the ground that the Commonwealth had failed to provide exculpatory evidence. In the alternative, the defendant argued that the information constituted newly discovered evidence that "casts real doubt on the justice of the conviction" and "probably would have been a real factor in the jury's deliberations." See Commonwealth v. Lykus, 451 Mass. 310, 326 (2008). In addition, the defendant maintained that errors in the DNA probability calculations, combined with other issues concerning ...


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