Com. v. Ferrer, 97-P-1390

• Decision Date: 30 August 1999
• Docket Number: No. 97-P-1390,97-P-1390
• Citation: Com. v. Ferrer, 715 N.E.2d 461, 47 Mass.App.Ct. 645 (Mass. App. 1999)
• Parties: COMMONWEALTH v. Antonio FERRER.
• Court: Appeals Court of Massachusetts

Page 461

715 N.E.2d 461

47 Mass.App.Ct. 645

COMMONWEALTH v. Antonio FERRER.

No. 97-P-1390.

Appeals Court of Massachusetts Bristol.

Argued Feb. 9, 1999.

Decided Aug. 30, 1999.

John H. LaChance, Framingham, for the defendant.

Christopher M. Markey, Assistant District Attorney, for the Commonwealth.

Present: KASS, KAPLAN, & LAURENCE, JJ.

KASS, J.

Antonio Ferrer was convicted of second degree murder. On appeal he argues that the trial judge erred (1) in denying a motion for a required finding of not guilty; and (2) in ruling, on the authority of Commonwealth v. Harris, 364 Mass. 236, 241-242, 303 N.E.2d 115 (1973), that the prosecutor could impeach the fourteen year old defendant with statements that the trial judge had ordered suppressed as to the government's case-in-chief.

1. Facts. On the basis of the evidence taken in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), the jury could have found facts as follows. On January 2, 1992, the defendant Ferrer, together with Andre Cortes, walked into a Dunkin' Donuts shop in New Bedford and ordered coffee, hot chocolate, sandwiches, and two donuts. While Donna Bertozzi, the server, filled the order, Cortes accosted her, thus: "You're cute ... I'd like to lick you from head to toe." Cortes followed up with a question about when Bertozzi went off shift and added, "Well, we'll be back." The two paid for their food and took it into a red Chevrolet automobile in the parking lot, Cortes getting in on the driver's side and Ferrer on the other. Bertozzi, because she "was scared," told two regular customers, one of whom was Joseph Freitas, the eventual victim, what Cortes had said.

Eight minutes later, Ferrer returned and ordered two more croissants. Freitas and Ferrer exchanged stares, which led to words (Ferrer: "Do you have an eye problem?" Freitas: "No, do you?") and a fight. Ferrer said, "Let's take this outside"; they did. Outside Freitas shoved Ferrer to the ground. Ferrer got up and ran to the passenger side of the red Chevrolet. The car backed up about one hundred feet, the dome light on. Cortes was at the wheel; Ferrer looking down and to his right. After about two minutes, the dome light went off and the Chevrolet approached the entrance to the shop, where Freitas stood. As the car slowed to a stop, the passenger side faced the entrance. One shot rang out and Freitas fell, fatally wounded. After the shot, the defendant leaned back in the passenger seat; Cortes had a hand on the wheel and was looking to his right. The Chevrolet sped off. At the scene, police found a .22-caliber shell casing and a sandwich box with Ferrer's fingerprints on it. Freitas' mortal wound had been inflicted by a .22-caliber bullet.

2. Denial of required finding of not guilty. Although there were percipient witnesses no one actually saw the firearm in the hands of Ferrer or saw a gunshot flash out the passenger window of the Chevrolet. On that basis, the defense argues that the evidence pointed equally at Cortes as the trigger man. In order to get over the bar described in Commonwealth v. Latimore, supra, the Commonwealth need not exclude all other possibilities as to how the crime was committed. See Commonwealth v. Leach, 156 Mass. 99, 101-102, 30 N.E. 163 (1892); Commonwealth v. Fancy, 349 Mass. 196, 200, 207 N.E.2d 276 (1965); Commonwealth v. Holmes, 32 Mass.App.Ct. 906, 907, 584 N.E.2d 1150 (1992). It had been Ferrer, not Cortes, who had been in a confrontation with Freitas and had been bested outside the Dunkin' Donuts. Ferrer, more than Cortes, could be found to have had a motive to shoot Freitas. See Commonwealth v. Robinson, 30 Mass.App.Ct. 62, 72, 565 N.E.2d 1229 (1991). Cortes was seen driving the car. To shoot out the passenger window, he would have had to shoot in front of Ferrer's body, a possible but unlikely maneuver. It was Ferrer, not Cortes, who fled from Massachusetts to Florida, a fact from which the jury could infer consciousness of guilt. See Commonwealth v. Booker, 386 Mass. 466, 469, 436 N.E.2d 160 (1982). All in all, the jury could reasonably infer that Ferrer fired the fatal shot. The evidence did not "tend[ ] equally to sustain either of two inconsistent propositions," as in Commonwealth v. Salemme, 395 Mass. 594, 601, 481 N.E.2d 471 (1985).

3. Use of suppressed statements for impeachment purposes. As noted, Ferrer had fled to Florida, where he found refuge with an aunt. After their investigation, the New Bedford police obtained a juvenile arrest warrant for Ferrer which they placed in the hands of the Metro-Dade Police Department in Miami, Florida. Officers from that department arrested Ferrer at approximately 5 P.M. on January 9, 1992, and took him to headquarters. A police officer made one attempt to call Ferrer's aunt, but she was not at home. At around 6 P.M., Metro-Dade police read Ferrer his Miranda rights, asked if he understood them, and received an affirmative response. Over the next four hours, in a series of interviews with the Florida police, Ferrer told three different stories about the shooting in New Bedford. First, he denied he was at the Dunkin' Donuts. Later, he admitted he was there on the fatal night with Cortes but denied any knowledge of a killing. Still later, he gave a sworn statement to a stenographer in which he admitted the fight with Freitas but said Cortes did the shooting. By virtue of their inconsistency alone, these statements were damaging to Ferrer.

Acting on a pretrial motion, the Superior Court judge, on the authority of Commonwealth v. A Juvenile, 389 Mass. 128, 134-135, 449 N.E.2d 654 (1983), suppressed evidence of Ferrer's Florida statements. That case held that a juvenile who has reached age fourteen would not be considered to have waived the right to remain silent voluntarily unless there had been "a meaningful consultation with [a]...