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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.
                                                                   2


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.




     1
       The grand jury returned indictments against Shelley
(murder), Brown (manslaughter), and the defendant (perjury) on
May 26, 2011. The defendant was indicted for murder on August
12, 2011, after proceedings pursuant to G. L. c. 119, § 72A,
were held in the Juvenile Court.
     2
       We are unable to determine from the record whether the
grand jury that returned the perjury indictment is the same
grand jury before which the defendant testified. Given the
passage of time between the two events, it is likely that there
were two different grand juries. In any event, nothing turns on
this issue.
                                                                    3


     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 burden of showing that

collateral estoppel is applicable in the circumstances

presented, we reverse the order of dismissal.

     Background.   1.   Facts.   The jury could have found the

following facts.   On the evening of September 26, 1969, McCabe

attended a dance at the Knights of Columbus hall in the town of

Tewksbury.   When McCabe failed to return home, his parents

contacted the police and drove around town with a police officer

looking for him, without success.    The following morning McCabe

was found dead in a field off of Maple Street and adjacent to

the railroad tracks in Lowell.    He was fully clothed and lying

prone on the ground.    His eyes and mouth were covered with


     3
       The Commonwealth also appeals from the order denying its
motion for reconsideration.
                                                                     4


adhesive tape, his hands were tied behind his back, and his

ankles were tied together with a separate piece of rope.    A

third piece of rope was wrapped around McCabe's neck and

knotted, resulting in ligature furrows that encircled the entire

neck.    There was conflicting evidence about whether the rope

from McCabe's neck had been tied to the rope binding his ankles.

Brown testified that McCabe was "hog-tied," meaning that the

rope from McCabe's neck was tied to the rope around his ankles

such that his legs were up in the air.    However, when the body

was found, McCabe's legs were straight and the rope that had

been tied around his neck was not tied to any other rope.       In

addition, Dr. Kimberley Springer, a forensic pathologist and

medical examiner for the Commonwealth, opined that, while the

ligature furrows that appeared around McCabe's neck could be

consistent with a rope tied in the manner described by Brown,

without more information, she could not be certain how the rope

had been tied.4   The defendant's expert, Dr. Thomas Andrew, did

not believe that McCabe had been hog-tied and opined that there

was no forensic evidence to support this theory.5   Despite this




     4
       The medical examiner who performed the autopsy was not
available at the time of trial. Dr. Springer testified to the
cause of death.
     5
       At the time of his testimony, Dr. Andrew was chief medical
examiner for the State of New Hampshire.
                                                                     5


discrepancy, there was no dispute that McCabe died by

asphyxiation by strangulation.

     The police investigation immediately following the

discovery of McCabe's body did not point to any definite

suspects.   Many witnesses were questioned, including the

defendant, who told the police that he saw McCabe on the night

in question while he was riding in a car driven by Nancy

Williams, to whom he was married at the time of trial.6     McCabe

was on his way to the dance and Nancy, along with the defendant,

gave McCabe a short ride.   Thereafter, the defendant was with

his friend, Shelley.   The two visited a friend who was

babysitting and, at about 12:15 A.M., the two drove to Lowell to

buy cigarettes and beer at a store known as "Cunningham's,"

which is located near the railroad bridge.

     About two weeks after the murder, the defendant stated to

friends that he thought the police suspected him of killing

McCabe.   When his friends asked him why he thought that, the

defendant responded, "I did it."    He immediately followed with

the statement, "[J]ust kidding."

     The murder investigation remained open and decades passed

without significant developments.    Then, in 1997, the defendant

attended a pig roast at the home of a childhood friend, Brian

     6
       Because the defendant's wife changed her surname to
Ferreira, we use her first name to avoid confusion.
                                                                    6


Gath.   Jack Ward, who was a close friend of McCabe's, also

attended the party.    While there, Ward and the defendant had a

conversation about the unsolved murder during which the

defendant told Ward that he knew who killed McCabe.     The

defendant stated that Shelley committed the crime because McCabe

was paying too much attention to Shelley's girl friend, thirteen

year old Marla Shiner.    This information, which was provided to

the police at some point in 2002, prompted the police to contact

Shiner who was living in California.    In a telephone interview,

she confirmed that she had been dating Shelley at the time of

McCabe's murder.    However, when she testified at trial, Shiner

claimed that the relationship began some time after the date of

the murder.   Shiner married Shelley when she turned eighteen.

The couple subsequently divorced.

     The investigation continued, and on October 30, 2003, the

police went to see the defendant at his home in Salem, New

Hampshire.    Nancy was present as well.   During the ensuing

interview, the defendant stated that he remembered the events of

the night of the murder and then gave a slightly different

version of his activities than he had given in 1969.     In 2003,

he stated that he was with Brown in addition to Shelley on the

night McCabe was murdered.    He identified Shiner as Shelley's

girl friend and said she was with him (the defendant), Shelley,

and Brown for part of the evening.     The defendant described
                                                                      7


Shelley as a jealous boy friend who beat Shiner.    The defendant

again stated that he went to Cunningham's with Shelley, but this

time (in 2003) he said that Brown and Shiner also were present.

In response to questions regarding what he told Ward at the pig

roast in 1997, the defendant acknowledged that he said Shelley

killed McCabe.   Upon hearing this, Nancy reacted angrily.      The

defendant then qualified his response by stating, "I didn't say

he did it, I said he probably did it."

    A few years later, on April 16, 2008, the defendant

testified before a grand jury that was investigating McCabe's

murder.   During the course of his testimony, the defendant was

asked if he knew what happened to McCabe and he answered, "No."

He also was asked if he had seen McCabe after the Knights of

Columbus dance in Tewksbury, to which the defendant also

responded, "No."   Finally, the defendant was asked if he had any

knowledge of how McCabe was placed at the field off of Maple

Street, and the defendant again responded, "No."    The perjury

indictment is based on the defendant's negative responses to

these three questions.

    The police also interviewed Brown at various times between

the fall of 2007 and March, 2011.   Brown consistently denied

having any knowledge of the murder until March 9, 2011, when he

confessed that he, Shelley, and the defendant kidnapped McCabe,

tied him up, and left him in a field in Lowell.    As we have
                                                                     8


stated, Brown entered into a cooperation agreement with the

Commonwealth, which required him to testify truthfully and to

plead guilty to manslaughter.   He was promised no jail time in

exchange for his cooperation.

     Brown then testified at the defendant's murder trial and

recounted the events that resulted in McCabe's death in more

detail.7   Brown, who was seventeen years old in September, 1969,

stated that he and the defendant, who was then sixteen years

old, were passengers in Shelley's car and had been drinking beer

while driving around looking for McCabe.    When they saw him on

the street, the defendant forced McCabe into Shelley's car.     As

Brown explained it, "[t]he plan was to teach [McCabe] a lesson

for messing with Marla."

     Shelly parked in a field off of a dirt road beyond the

railroad tracks in Lowell.    Brown then pushed McCabe out of the

passenger seat after which Shelley and the defendant pushed

McCabe to the ground, bound his ankles and wrists with rope, and

then hog-tied McCabe by placing a separate piece of rope around

McCabe's neck and tying it to the rope that bound McCabe's

ankles.    Brown said that McCabe was squirming and that when he

tried to speak, Shelley and the defendant taped his mouth closed

and then covered his eyes with tape as well.   After telling

     7
       The defendant successfully had moved to sever the perjury
indictment from the murder indictment.
                                                                     9


McCabe not to "mess with Marla anymore," the three teenagers

left and drove around drinking more beer.   Brown recalled that

McCabe's legs were up in the air at a ninety-degree angle when

they left and they were in the same position when they returned

to release McCabe about one hour later.8

     Brown remained in the car while Shelley and the defendant

approached McCabe and discovered that McCabe was dead.     Brown

described the defendant's demeanor when he returned to the car

as "[s]tartled, surprised, [and] scared."   The three friends

made a promise never to speak about what had happened, a promise

they kept for decades.

     At the conclusion of the defendant's two-week murder trial,

the jury were instructed on three theories of guilt:     (1) murder

in the first degree by extreme atrocity and cruelty, (2) murder

in the second degree, and (3) murder in the second degree

committed in the course of a felony, i.e., kidnapping.    The jury

were not asked to return verdicts on kidnapping or manslaughter.

The jury deliberated for more than five hours over the course of

two days before returning a general verdict of not guilty.

     2.   Dismissal of the perjury indictment.   As we have noted,

the defendant filed a motion to dismiss the perjury indictment,


     8
       Brown testified that "[b]ecause [McCabe's] punishment
should have been known by [then], [they] were going to let him
go."
                                                                  10


claiming that Brown's testimony was the only direct evidence of

the defendant's involvement in the kidnapping and the murder of

McCabe and, because the issue of Brown's credibility already had

been decided in the defendant's favor, the Commonwealth was

estopped from presenting Brown's testimony at the defendant's

perjury trial.   The Commonwealth acknowledged its intent to

present Brown's testimony again, but argued that it could not be

estopped from trying the defendant because the perjury charge

involves different issues.   The Commonwealth also argued that

because the jury returned a general verdict, it was not possible

to determine whether Brown's testimony had been rejected for

lack of credibility and, therefore, collateral estoppel did not

apply.9

     Following a hearing, the motion judge conducted a thorough

review of the record and ultimately determined that the

Commonwealth was estopped from prosecuting the perjury

indictment.   He began his analysis with an overview of the

doctrine of collateral estoppel.   As defined by the United

Stated Supreme Court in Ashe, 397 U.S. at 443, the doctrine of

collateral estoppel provides that "when an issue of ultimate

fact has once been determined by a valid and final judgment,


     9
       The Commonwealth also claimed below that it had been
prejudiced when the defendant's motion to sever the perjury
indictment was allowed but does not pursue this argument on
appeal.
                                                                  11


that issue cannot again be litigated between the same parties in

any future lawsuit."     To establish collateral estoppel, the

party raising the bar has the burden of providing a "concurrence

of three circumstances":     (1) a factual issue common to both

prosecutions, (2) "a prior determination of that issue in

litigation between the same parties," and (3) a determination in

the prior proceeding favorable to "the party seeking to raise

the estoppel bar."   Commonwealth v. Coleman, 20 Mass. App. Ct.

541, 547 (1985).10   Following Federal precedent, our cases

further instruct "that the rule of collateral estoppel in

criminal cases is not to be applied with the hypertechnical and

archaic approach of a 19th century pleading book, but with

realism and rationality," Ashe, supra at 444.     See, e.g.,

Commonwealth v. Ringuette, 60 Mass. App. Ct. 351, 360-361, S.C.,

443 Mass. 1003 (2004).     Finally, where a prior judgment of

acquittal was based on a general verdict, as here, we must

"examine the record of [the] prior proceeding[s], taking into

account the pleadings, evidence, charge, and other relevant

matter, and conclude whether a rational jury could have grounded


     10
       The three-part test of Coleman was stated to be a five-
factor test in Commonwealth v. Ringuette, 60 Mass. App. Ct. 351,
357, S.C., 443 Mass. 1003 (2004), by the adoption of additional
factors, not in contention in the instant inquiry, of whether
the party claiming estoppel had the incentive to litigate
thoroughly the issue in the first proceeding, and requiring that
the applicable law must be identical in both proceedings.
                                                                   12


its verdict upon an issue other than that which the defendant

seeks to foreclose from consideration."    Ashe, supra (citation

omitted).

     Applying these principles to the question presented, the

motion judge concluded that the Commonwealth was not

collaterally estopped from pursuing the perjury charge as a

result of the acquittals of murder in the first and second

degrees.    He reasoned that the jury could have believed all of

Brown's testimony and acquitted the defendant of murder in the

first and second degrees based on a reasonable doubt that the

element of intent or malice had been proven because Brown

testified that the motive behind the incident was to teach

McCabe a lesson, not to kill him.    The judge went on to

conclude, however, that the acquittal of murder in the second

degree based on a theory of felony-murder, with kidnapping as

the predicate felony, demonstrated that the jury necessarily

rejected Brown's testimony.    In the judge's view a rational jury

could not have acquitted the defendant of felony-murder in the

second degree, individually or as a joint venturer, if Brown's

testimony had been deemed credible.11   Thus, the judge reasoned

that because the jury rejected Brown's testimony, the

     11
       The judge observed: "the jury could not have believed or
accepted Brown's testimony and then not found [the defendant]
guilty of kidnapping and of a killing occurring during the
commission of the kidnapping."
                                                                    13


Commonwealth's use of his testimony in the perjury trial would

amount to a retrial of the issue already litigated.

     We agree with the judge's reasoning insofar as he

concluded that the acquittals of murder in the first and second

degrees do not bar the Commonwealth from prosecuting the perjury

indictment.   Our analysis differs, however, on the question

whether the acquittal of the charge of felony-murder in the

second degree warrants dismissal of the perjury indictment.

    Discussion.   In Commonwealth v. Benson, 389 Mass. at 478,

the Supreme Judicial Court stated that the doctrine of

collateral estoppel may work in two ways.     "First, it may bar

totally a subsequent prosecution if one of the issues

necessarily decided at the first trial is an essential element

of the alleged crime in the second trial.     Second, even if a

prosecutor may proceed to a second trial, the doctrine may bar

the introduction of certain facts determined in the defendant's

favor at the first trial."

    We first consider whether the not guilty verdict bars

completely the prosecution for perjury.     Clearly, it does not.

None of the elements of perjury was required to be proved in the

murder trial.   See Carrasquillo v. Commonwealth, 422 Mass. 1014,

1015 (1996) (where defendant found not guilty of murder,

collateral estoppel did not bar subsequent prosecution for

conspiracy to commit same murder).   More fundamentally, the only
                                                                  14


fact determined here in the murder trial was that the defendant

did not participate as a principal or as a joint venturer in

killing McCabe.   That fact is not necessary to prove perjury.

The defendant's argument that the Commonwealth cannot prove he

committed perjury in 2008 without also proving that he

participated in the kidnapping and the murder of McCabe rests on

a misreading of the perjury indictment.   The indictment

specifies that the defendant falsely denied having any knowledge

of what happened to McCabe, not that he falsely denied that he

was involved in committing the crime of murder.   Because the

perjury offense is distinct from the murder offense, and does

not require the Commonwealth to prove the defendant's

involvement in the underlying murder, a subsequent prosecution

for perjury does not implicate the doctrine of collateral

estoppel.12


     12
       The case of Commonwealth v. Hude, 492 Pa. 600 (1980),
upon which the defendant primarily relies, is distinguishable.
In that decision, the Supreme Court of Pennsylvania addressed
two appeals, both of which raised the issue whether a defendant
may be tried for perjury arising out of statements he made in a
prior trial in which he was acquitted of the charges brought
against him. Id. at 607. In Manfred Hude's appeal, the perjury
conviction was reversed because it was based on the same
evidence -- the defendant's testimony at trial denying his
involvement in the crime -- that was accepted as true in the
first trial. Id. at 621. Because the jury already had rejected
the Commonwealth's case and had accepted the defendant's
testimony, relitigation of the defendant's truthfulness at the
perjury trial violated the prohibition against double jeopardy.
Ibid. In Dennis Klinger's appeal, there were multiple perjury
charges, some of which were based on his testimony at his murder
                                                                    15


     We now turn to the second question, that is, whether the

Commonwealth is estopped from presenting Brown's testimony at

the perjury trial because the issue of his credibility has

already been litigated.   The answer is no.   Taking the rational

and realistic approach advocated by the United States Supreme

Court in Ashe, and in our cases, we conclude that the jury could

have believed Brown was telling the truth while acquitting the

defendant of felony-murder in the second degree.    Regarding

felony-murder with kidnapping as the predicate felony, the jury

properly were instructed by the trial judge that they were

required to find beyond a reasonable doubt that the kidnapping

was committed "with a conscious disregard for the risk to human

life."13   The judge further specified:   "[t]he felony of

kidnapping must have occurred in a way known by the defendant to




trial denying culpability and others that were related to his
testimony regarding his alibi. Id. at 608-609. The court
concluded that the defendant's denying committing the murder
could not be the basis for a subsequent perjury charge, but held
that the other perjury charges could proceed because the jury's
verdict of acquittal did not reasonably reflect that they
accepted the truth of the alibi testimony. Id. at 625-627.
     13
       The judge instructed the jury in pertinent part as
follows: "the Commonwealth must prove to you beyond a
reasonable doubt . . . that the killing occurred while the
defendant was committing or attempted to commit a kidnapping,"
that "the killing occurred in connection with the kidnapping and
at substantially the same time and place," and that the
defendant "committed or attempted to commit the felony of
kidnapping with a conscious disregard for the risk to human
life."
                                                                  16


be dangerous to life or likely to cause death."14   Viewing the

entire case and all the circumstances, including the age of the

defendant at the time of the crime (sixteen years old), the

motive behind the kidnapping (to teach McCabe a lesson), the

defendant's consumption of alcohol (beer), and the defendant's

reaction upon discovering McCabe was dead (startled, surprised,

and scared), we are persuaded that the jury could have acquitted

the defendant in accordance with the trial judge's instructions

by concluding that the defendant was not cognizant of the danger

posed to McCabe's life during the kidnapping and therefore did

not commit the felony of kidnapping with a conscious disregard

for the risk to human life.15




     14
       While conceding the absence of any law in Massachusetts
to support his position, the defendant nonetheless urges us to
hold that kidnapping is an inherently dangerous felony. Even if
we were inclined to follow the defendant's suggestion, he would
fare no better. There is no doubt that the jury reasonably
could have concluded that the defendant committed the kidnapping
with a conscious disregard for human life. However, the point
is they were not required to do so on the basis of Brown's
testimony.
     15
       As we observed in Commonwealth v. Lopez, 80 Mass. App.
Ct. 390, 394 n.5 (2011), "[c]onscious disregard demands conduct
more dangerous than that required for involuntary manslaughter.
Involuntary manslaughter requires wanton or reckless conduct,
that is, conduct involving 'a high degree of likelihood that
substantial harm will result to another.' Conduct evincing
conscious disregard thus requires more than a mere threat of
substantial physical harm; conduct supporting felony-murder
liability must pose a foreseeable risk of actual loss of life."
Ibid. (citations omitted).
                                                                  17


    While we cannot determine the basis on which the jury

reached their verdict, see Commonwealth v. Benson, 389 Mass. at

481 ("A finding of not guilty at a criminal trial can result

from any number of factors having nothing to do with the

defendant's actual guilt" [citation omitted]), we can say that,

in acquitting the defendant, the jury did not necessarily decide

that Brown was not credible.   Because the jury may have reached

their decision on an issue other than Brown's credibility, the

defendant has not met his burden of proving that the jury

necessarily rejected Brown's testimony and, consequently, the

Commonwealth is not estopped from calling Brown as a witness in

the perjury trial.

                                   Order allowing motion to
                                     dismiss indictment
                                     reversed.
