Com. v. Ferraro

• Court: United States State Supreme Judicial Court of Massachusetts
• Citation: 674 N.E.2d 241,424 Mass. 87
• Parties: COMMONWEALTH v. James FERRARO (and twelve companion cases).
• Decision Date: 10 January 1997

Page 241

674 N.E.2d 241 424 Mass. 87 COMMONWEALTH
v.
James FERRARO (and twelve companion cases). Supreme Judicial Court of Massachusetts,
Suffolk. Argued Dec. 3, 1996.
Decided Jan. 10, 1997.

Page 242

Richard H. Gens, Centerville, for defendant.

Varsha Kukafka, Assistant District Attorney, for Commonwealth.

Before WILKINS, C.J., and ABRAMS, LYNCH, O'CONNOR and GREANEY, JJ.

ABRAMS, Justice.

A single justice has stayed the proceedings and reserved and reported the question whether it was error for a motion judge to deny the Commonwealth's motion for joinder of indictments charging the defendant with sexual assaults on seven young boys. The Commonwealth asserts that its evidence "in its totality shows a common scheme and a pattern of operation that tends to prove all the indictments." Commonwealth v. Feijoo, 419 Mass. 486, 494-495, 646 N.E.2d 118 (1995). The Commonwealth argues that joinder is mandated because its "evidence would [be] admissible at all the trials if each indictment had been tried separately ... to show that each incident occurred pursuant to an ongoing plan." Id. at 495, 646 N.E.2d 118. The Commonwealth also argues that it was error of law for the judge not to have joined the trial of all the indictments. We agree. We remand the case to the county court for the entry of a [424 Mass. 88] judgment vacating the denial of the Commonwealth's motion for joinder.

A grand jury indicted the defendant, James Ferraro, on sexual assaults on seven boys, six of which assaults occurred in Randolph, and one in the nearby city of Quincy. All the attacks took place within a four-mile radius of the defendant's home. Each occurred near the defendant's victim's home and near a place that the defendant was known to frequent. ¹ All the attacks involved an assailant in a hooded sweatshirt and a bandanna or mask of some kind who knocked down the boy, asked about money, and then committed a sexual assault.

Five of the boys received multiple telephone calls from the assailant following the attacks. ² All but one of these five received telephone calls on or about the first anniversary of the attack. ³ One boy (Doe) received a telephone call from his assailant one to two months after the attack and each year thereafter

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on or near the date of the assault. ⁴ These telephone calls continued even after Doe's family made its telephone number unpublished and moved to Hanover.

One telephone call to Doe was traced to the office of the school where the defendant worked as a day janitor. The night janitor saw the defendant alone in the office on the night when the telephone call was made. The defendant was arrested. When he was arrested, two bandannas and a black hooded, sweatshirt, zipped up the front, were found in his vehicle. On being questioned by the police, the defendant said that he had been a victim of a sexual assault as a young boy. He stated that he had been on his way home from a religious class at Saint Bernadette's hall when an assailant forced him to the ground, asked him if he had any money, threatened to stab him, fondled his penis and buttocks, and performed oral [424 Mass. 89] sex on him. ⁵ The defendant also mentioned that his assailant telephoned him after the assault to remind him of the incident.

Prior to the trial, the Commonwealth moved for joinder of all the indictments. ⁶ The motion judge determined that five of the assaults were similar enough to merit joinder, but that two should not be joined. She cited the geographic dissimilarity as the reason for not permitting joinder but did not mention or place any weight on multiple telephone calls made to five boys. The motion judge did not focus on the other similarities. See note 7, infra.

Telephone calls made to victims after attacks have been noted by an Appeals Court in Texas to "evidence a peculiar diligence in locating ... names and telephone numbers [of victims] and a peculiar persistence of interest in them which rises to the level of signature status." Lang v. State, 698 S.W.2d 735, 737 (Tex.Ct.App.1985). Four victims in the case at bar...