Commonwealth v. Ferreira (Lawyers Weekly No. 11-149-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-13 Appeals Court COMMONWEALTH vs. MICHAEL FERREIRA. No. 15-P-13. Middlesex. February 2, 2016. – October 14, 2016. Present: Vuono, Grainger, & Massing, JJ. Collateral Estoppel. Practice, Criminal, Collateral estoppel, Dismissal. Perjury. Homicide. Indictment found and returned in the Superior Court Department on May 26, 2011. A motion to dismiss was heard by Richard T. Tucker, J. Robert J. Bender, Assistant District Attorney, for the Commonwealth. Eric R. Wilson for the defendant. VUONO, J. The issue in this case concerns the proper application of the doctrine of collateral estoppel, as embodied in the double jeopardy clause of the Fifth Amendment to the United States Constitution and in Massachusetts statutes and common law. See Ashe v. Swenson, 397 U.S. 436 (1970); Commonwealth v. Benson, 389 Mass. 473 (1983). See also G. L. c. 263, § 7; Commonwealth v. Leggett, 82 Mass. App. Ct. 730, 734 (2012). In 2011, nearly forty-two years after the body of fifteen year old John McCabe was found in a field near the railroad tracks in the city of Lowell, the defendant, Michael Ferreira, and Walter Shelley each were indicted by a grand jury on one count of murder. A third individual, Edward Brown, was indicted on one count of manslaughter.[1] The defendant also was charged with perjury arising from allegedly false testimony he gave on April 16, 2008, before a grand jury investigating the murder, specifically, testimony denying any knowledge of what happened to McCabe.[2] Following a jury trial on the murder indictment at which Brown testified for the Commonwealth pursuant to a cooperation agreement, the defendant was acquitted. In a separate trial, Shelley was convicted of murder in the first degree by extreme atrocity and cruelty. After his acquittal, the defendant moved to dismiss the perjury indictment on the ground of collateral estoppel. He asserted that the not guilty verdict was based on the jury’s rejection of Brown’s testimony and claimed that, because the Commonwealth could not prove the perjury charge without presenting Brown’s testimony, the Commonwealth is estopped from prosecuting the perjury charge. In a thoughtful memorandum of decision and order, a Superior Court judge (motion judge), who was not the trial judge, allowed the motion, from which the Commonwealth now appeals.[3] Because we conclude that the defendant failed to satisfy his […]