Com. v. Ferreira

• Decision Date: 06 August 1980
• Citation: 381 Mass. 306,409 N.E.2d 188
• Parties: COMMONWEALTH v. Daniel K. FERREIRA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 188

409 N.E.2d 188

381 Mass. 306

COMMONWEALTH v. Daniel K. FERREIRA.

Supreme Judicial Court of Massachusetts, Bristol.

Argued April 8, 1980.

Decided August 6, 1980.

Daniel E. Callahan, Lynn, for defendant.

William A. Schroeder, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, WILKINS and ABRAMS, JJ.

ABRAMS, Justice.

Convicted of murder in the first degree for the slaying of Officer John Ruggiero, a member of the Fall River police department, Daniel K. Ferreira appeals to this court pursuant to G.L. c. 278, §§ 33A-33G. On appeal Ferreira argues three assignments of error: (1) that the judge erred in his rulings which limited to impeachment purposes only evidence on a material issue showing state of mind of the Commonwealth's main witness; (2) that the judge erred in allowing the defendant to be impeached by his silence when he was given Miranda warnings; and (3) that improper closing argument by the prosecutor requires reversal. We find neither reversible error nor any reason to exercise our power under G.L. c. 278, § 33E to enter a verdict of a lesser degree of guilt or to order a new trial, and therefore we affirm.

At trial, the main issue was whether one Joseph Silva or the defendant committed the homicide. ¹ We summarize the evidence concerning the identification of the defendant. In support of its contention that Ferreira was the person responsible for killing Officer Ruggiero, the Commonwealth offered two eyewitnesses to the crime: Officer Robert Fortin and Joseph Silva.

In the early morning hours of July 23, 1973, Officer Fortin saw a police cruiser driven by Ruggiero drive by him and make a U-turn. The cruiser was following a black Cadillac automobile which had its headlights out. After the Cadillac turned, it went into a parking lot; the police cruiser stopped in the middle of the street adjacent to the parking lot. The area was fairly well lighted.

Two men ran from the Cadillac toward the cruiser. The shorter of the two men (later identified as the defendant) was at least one-and-one-half feet ahead of the taller man (later identified as Silva). The defendant reached the cruiser first. When the shorter man was about four inches from the side view mirror of the cruiser, Fortin heard four or five shots and saw flashes go from the middle of the shorter man (the defendant) into the cruiser. Although Fortin did not see a gun in the hands of either man, his testimony was that all the flashes originated from the shorter man (the defendant). ² The two men ran back to the Cadillac as the police cruiser rolled downhill. The Cadillac left the parking lot and drove toward Fortin.

Fortin, who had known both Silva and Ferreira for a number of years, recognized Silva as the driver and the defendant as the passenger. As the car passed Fortin at a distance of ten to fifteen feet, the defendant pointed a gun at Fortin but did not fire it. Fortin ducked behind a car and emptied his gun, shooting at the Cadillac, hitting the taillight and the trunk; the car continued down the street at a speed of fifty to seventy miles an hour. As a result of Fortin's radio messages, two officers on cruiser patrol saw the Cadillac and gave chase.

After the officers lost sight of the Cadillac for a few minutes, the car was found parked on the street near the apartment building where Silva resided. Ferreira was apprehended hiding in the grass about five feet from the car. The gun used in the slaying was found on the opposite side of a six-foot fence, approximately eight feet from where the defendant was arrested.

Silva testified for the Commonwealth as to the following facts. He and the defendant had been together drinking all day and into the evening of July 22. Silva was driving a Cadillac which he had recently purchased. After the bars closed, both men continued drinking at the homes of friends, one of them being Frank Souza. They then proceeded to Ferreira's apartment to pick up Silva's girl friend, Margaret Strickland.

The defendant went into the apartment alone and came out five or ten minutes later, waving a gun. The defendant suggested they continue drinking and both men got back into the car. Silva drove a few blocks when he noticed a police car behind him. Silva made a right turn, hoping the cruiser would not follow him. When it did, he turned into a parking lot.

Both Silva and the defendant got out of the Cadillac and went toward the police car, the defendant some five or six feet ahead of Silva. When Ferreira reached the window of the police car, Silva saw Ferreira fire several shots into the car. Silva was still some distance behind the defendant. After the defendant fired, both men turned and ran back to the Cadillac. Silva drove back to his apartment, left the defendant sitting in the car outside, and remained in his apartment until the police arrived a couple of hours later. Silva admitted on cross-examination that he had received his Class 1 license (permitting him to operate a tractor-trailer) a few months prior to July 22, and he believed that if he were convicted of driving under the influence of alcohol he would lose his driver's license, including his Class 1 license. When he turned into the parking lot, he intended to ask the police officer to give him a break if he promised to go to the apartment of a friend in the building next to the parking lot and leave his car there. He therefore had a reason to get out of his car to talk to the police officer. He testified that the defendant had no such reason, and said that Ferreira shot Ruggiero simply because Ferreira was "nuts."

The defendant did not testify, but he did present witnesses on his behalf. Robert Luiz testified that about ten days before the crime Silva asked him where he could get a gun. Luiz responded that he did not know. Frank Souza testified that when both Silva and the defendant were at his house an hour or two before the shooting, Silva lifted up his shirt, showed Souza a gun, and said: "These cops are on my ass, and I'm going to shoot a f ing cop before the night is out." ³ The defendant was in the bathroom when this episode took place.

1. The testimony of both Luiz and Souza regarding the statements allegedly made by Silva were admitted in evidence for impeachment purposes only. The jury was specifically instructed by the judge in the charge that these statements could not be considered as affirmative evidence. Defense counsel was precluded from arguing the statements as probative evidence. The evidence regarding Silva's possession of a gun was admitted for its full probative value. The defendant claims that it was error to limit the testimony of Souza and Luiz as to Silva's statements solely to their impeachment value. The Commonwealth asserts that the limitation placed on this testimony was within the judge's discretion.

Statements, not too remote in time, which indicate an intention to engage in particular conduct, are admissible to prove that the conduct was, in fact, put in effect. "The existence in the mind of a deliberate design to do a certain act, when once proved, may properly lead to the inference that the intent once harbored continued and was carried into effect by acts long subsequent to the origin of the motive by which they were prompted." Cook v. Moore, 11 Cush. 213, 217 (1853). A statement indicating intent "is not excluded by the hearsay rule; either it is not hearsay, or it is within an exception to the hearsay rule." Commonwealth v. Wampler, 369 Mass. 121, 123, 337 N.E.2d 892, 894 (1975). "(T)he nature of the act to be evidenced by the design has nothing whatever to do with the admissibility of declarations of design. The latter are absolutely admissible as statements of a mental condition . . . to prove the design; what the design evidences, or whether it is relevant at all, does not affect (the admissibility of the declarations)." 6 J. Wigmore, Evidence § 1725, at 139 (Chadbourn rev. 1976). See Commonwealth v. Wampler, supra; Commonwealth v. Fiore, 364 Mass. 819, 824, 308 N.E.2d 902 (1974); Goldman, petitioner, 331 Mass. 647, 651, 121 N.E.2d 843 (1954), cert. denied sub nom. Goldman v. Fogarty, 348 U.S. 942, 75 S.Ct. 363, 99 L.Ed. 737 (1955); Commonwealth v. Rubin, 318 Mass. 587, 588-589, 63 N.E.2d 344 (1945); Commonwealth v. Trefethen, 157 Mass. 180, 192-193, 31 N.E.2d 961 (1892). See also McCormick, Evidence § 295, at 697 (2d ed. 1972); W. B. Leach & P. J. Liacos, Massachusetts Evidence 249 (4th ed. 1967). ⁴ See Proposed Mass.R.Evid. 803(3) (July, 1980).

Tested by this well-established principle, there was no error in limiting Luiz's testimony. A request for a gun is not a declaration of intent. The statement, moreover, does not tend to show that Silva intended to kill a police officer. Rather, it merely implied a desire for a gun, an issue collateral to the issue being tried. See Commonwealth v. Hodge (No. 2), --- Mass. ---, --- - ---, ^a 406 N.E.2d 1015 (1980). Thus, the judge did not abuse his discretion in concluding that the statement was not indicative of a state of mind relevant to a material issue at trial. Lastly, the judge could well conclude that the statement was too remote in time to evidence an existing state of mind. There was no error.

We next consider the limitation on Souza's testimony. Ferreira grounded his defense on the theory that Silva committed the murder. Since the Commonwealth offered no evidence of joint enterprise, ⁵ a finding that Silva fired the shots resulting in Officer Ruggiero's death mandated a finding of not guilty for the defendant. It was in effect a necessary corollary to the Commonwealth's case that Silva did not shoot Officer Ruggiero. Where the evidence tended to show that both possible perpetrators had the same opportunity, evidence of the intent of either one of them is clearly material. ⁶ The statement of intent made by the only other possible perpetrator of the murder is material evidence and normally is...