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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 fivefactor 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.