Com. v. Costa

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation609 N.E.2d 465,414 Mass. 618
Decision Date15 March 1993

Donald A. Harwood, for defendant.

Elspeth B. Cypher, Asst. Dist. Atty., for the Com.


NOLAN, Justice.

On Friday, October 2, 1987, at approximately 7:00 A.M., Steven Combs brought his dogs into the Freetown State Forest for a run. While running the dogs, Steven Combs found the body of a person who had been shot. Combs notified a Freetown State Forest ranger of the discovery. The ranger communicated with the Freetown police department, whose officers discovered the body of a white male lying face up on Ledge Road, a dirt travel way. The victim was wearing gray and white jeans, a red tee-shirt, and a maroon sweatshirt. A blanket was draped over the victim's shoulders. Officers observed gunshot wounds to the victim's head, groin, and chest. There were several abrasions on the victim's skin. The blanket, the victim's clothing, and the right side of his face, including his beard, had been burned. A book of matches and a cigarette butt were found near the victim's body.

Responding officers testified that they observed several footprints--shoe impressions--around the body, and tire tread impressions at the scene. It appeared that a vehicle had driven right up to the area where the body was discovered. From the tire tracks, the officers discerned that when the vehicle left the area, it backed away from the spot where they found the body, turned to the right, drove around the body, and proceeded down Ledge Road. The left rear tire of the vehicle had a different tread pattern than the other three tires. Officers found six Federal brand "410 gauge" shotgun shells near the body.

Testimony revealed that four or five weeks prior to October 2, 1987, Patricia Casey, a Fall River resident, met the victim, a drifter named Edward Cereto. At the time, Cereto was living in a septic tank at M & S Concrete Company's storage yard near Casey's residence at 26 Mt. Hope Avenue in Fall River. Casey hired Cereto to do some odd jobs and permitted him to live in a storage area under a three-family home she owned at 8 Mt. Hope Avenue. Casey testified that Cereto did not show up for work as she expected on October 2, 1987. Casey checked the storage area but Cereto was not found. The following day Casey called Freetown police and gave them a description of Cereto. A newspaper article published October 3, which reported that police had found a body in Freetown state forest, prompted Casey's call. Casey's description of Cereto matched that of the victim.

On Sunday night, October 4, at approximately 6:45 P.M., Bruce Frank, accompanied by a friend, visited Patricia Casey. Fall River police Officer Robert Aguiar and State Trooper Deborah Bruce arrived shortly after Frank. The officers spoke with Frank and left the house with him. The three walked to a woodpile in an adjacent yard. Frank lifted up boards in the woodpile and revealed a 410 gauge Mossberg 183DA shotgun. Frank admitted the gun belonged to him. Ballistics tests showed that all six shotgun shells found near the Cereto's body were fired from Frank's shotgun.

Earlier in the day on October 4, at approximately 1:00 P.M., State Troopers Deborah Bruce and Jose Gonsalvez questioned Steven A. Costa, the defendant, at his Fall River home. The defendant's parents and his brother were present. The conversation lasted approximately one-half hour. The troopers asked the defendant where he had been during the evening of October 1. The defendant said that after work he had driven with Bruce Frank and another person, identified only as "Timmy," to New Hampshire. The defendant said they had gotten two flat tires, which caused them to delay their return to Massachusetts until the afternoon of October 2.

Later on October 4, at approximately 4:30 P.M., State Trooper Kevin Butler and Freetown police detective Alan Alves returned to the defendant's home. They asked the defendant to accompany them to the Fall River police station for further questioning. The defendant drove his own automobile, a 1976 Pontiac Grand Prix, and followed the police to the station. The defendant parked his car a block or two from the station house. Detective Alves met the defendant and brought him into a conference room. In the meantime, Trooper Butler went to inspect the defendant's vehicle. Trooper Butler observed that the vehicle had three tires of identical brand with a correspondingly similar tread pattern. The tread and brand of the left rear tire were different from the other three. Trooper Butler returned to the police station after taking instant photographs of the tires and tire treads.

At about 5:00 P.M., Trooper Butler, Detective Alves, and Trooper Jose Gonsalvez proceeded to question the defendant. Before initiating the questioning, Trooper Butler advised the defendant of his Miranda rights. The defendant signed a State police interrogation form thereby acknowledging that he had been advised of his rights and that he understood them. At the outset, Troopers Butler and Gonsalvez advised the defendant that his story was inconsistent with one they had received from Bruce Frank. In response, the defendant repeated the story he had told officers earlier in the day--that he had gone to New Hampshire on Thursday, October 1, and returned Friday afternoon, October 2. When the officers questioned the defendant about the details of his excursion to New Hampshire, the defendant could not provide specifics, such as the route travelled, bars visited, or the names of the cities or towns where the flat tires were repaired. Trooper Butler next showed the defendant photographs of his tire tread and of the tread found near Cereto's body. The defendant noted the similarity, but indicated that he had no idea how his car could have been involved since he had parked his car on Duke Street before he left for New Hampshire. 1 At that point, defendant said he had "[n]o recollection whatsoever as to his activities on the night in question."

Trooper Butler and, a few minutes later, Trooper Gonsalvez, left the room. Detective Alves, now alone with the defendant, informed him that his story would be more believable if he could provide some details of the journey. The defendant, as Detective Alves testified, repeated his earlier statement and said that he fell asleep in the car after leaving Fall River on October 1. The defendant added that he did not wake up until the trio returned from New Hampshire at 4:00 P.M. the following day. Detective Alves pointed out that, if true, the defendant would have been asleep for a period in excess of nineteen hours, including the period when two of the car's tires went flat and were subsequently repaired. Nonetheless, the defendant maintained that he had been asleep during the trip.

Detective Alves asked the defendant if they could have gone to Freetown State Forest and if Edward Cereto could have been in the car. The defendant denied it. Detective Alves asked how the defendant could be so sure if he had been asleep. The defendant said he just "knew." The defendant also said that he left his car, locked, on Duke Street and that he had the only set of keys. The defendant said that on his return on October 2, his car was in the same condition in which he left it the previous day.

Detective Alves told the defendant that his story was lacking. Trooper Maryann Dill then entered the room. Detective Alves testified: "We began questioning him again. We told him all we wanted was the truth. He [the defendant] indicated that he didn't want to be a canary. I said, 'What do you mean, we're not talking about a broken window here, we're talking about a murder. What do you mean you don't want to be a canary?' ... Then [the defendant] grabbed photos [of the scene] that were in the room ... and he said, 'You missed something.' We questioned what he was talking about and he said, 'The shells.' He said, 'He loaded the shotgun,' and we could get fingerprints off of them. At that time we said, 'Well, who's he?' At that moment he didn't mention who he was. Then he said, 'Look I'm going to tell you this once and only once, so here it is.' And at that time [the defendant] made a statement implicating himself, Bruce Frank, [and his cousins] Michael Costa, and Kevin Costa." Detective Alves reduced the statement to writing, and the defendant signed it.

The defendant told the officers that he picked up Bruce Frank and drove to the Riviera restaurant and bar in Fall River. They met Kevin and Michael Costa (cousins of the defendant), Bruce Frank's sister, and a couple of friends. The defendant had three or four beers and a couple of shots of "Yukon Jack" whiskey. At about 9:00 P.M., the defendant, with his cousins, went to the China Royal restaurant. On the way the defendant parked his car outside of Bruce Frank's home because he did not want to drive. 2

At the China Royal, the defendant ate dinner, shared a "scorpion bowl," and had a couple more beers. After leaving the China Royal, the defendant and his two cousins returned to the defendant's car, and observed that the left rear tire was flat. After changing the tire, the defendant walked to the area where Edward Cereto lived. The defendant asked Cereto if he knew who flattened the tire. Cereto did not respond. Cereto came outside and the defendant asked him if he were working with the police to bust him for possession of marihuana. 3 Cereto would not answer. The defendant, with Michael and Kevin Costa, began pushing and slapping Cereto. Cereto still would not answer. Bruce Frank walked over and said, "Let's go shooting and really scare him, I'll go get my gun." Frank returned with his gun, a 410 gauge shotgun. They forced Cereto into the trunk of the defendant's automobile. They got into the defendant's car and the defendant drove...

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