Criminal – Double jeopardy – Collateral estoppel

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Where a defendant moved to dismiss a perjury charge after he was acquitted of murder, the motion should have been denied because the defendant failed to meet his burden of showing the applicability of the doctrine of collateral estoppel.

“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. 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. 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. 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. …

“… 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.

“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 [v. Swenson, 397 U.S. 436 (1970), 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. …

“While we cannot determine the basis on which the jury reached their verdict, … 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.”

            Commonwealth v. Ferreira (Lawyers Weekly No. 11-149-16) (17 pages) (Vuono, J.) (Appeals Court) Motion to dismiss heard by Tucker, J., in Superior Court. Robert J. Bender for the commonwealth; Eric R. Wilson, of Wilson, Bush, Durkin & Keefe, for the defendant (Docket No. 15-P-13) (Oct. 14, 2016).