(MARCH 2019)
[DNA, exigent circumstances, searches & seizures, consciousness of guilt]


In the early morning of October 2, 2009 Sheila dos Santos, the victim, was stabbed to death near the back entrance to her apartment building. A Superior Court jury convicted the defendant, her former boyfriend, of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty.

On appeal to the Massachusetts Supreme Judicial Court, the defendant challenged the denial of the motion for a new trial. He also argued that the evidence was insufficient to support the verdict, that it was an abuse of discretion to have denied his motion to suppress evidence that was seized without a warrant, and that a number of the judge’s evidentiary rulings were erroneous.

The Court ultimately affirmed the defendant’s conviction of murder in the first degree.


The victim lived on the fourth floor of an apartment building on Main Street in Everett, Massachusetts. She along with her sisters Rose Angela Carla dos Santos and Ana Paula Carla dos Santos, worked as dancers at a strip club in Chelsea, Massachusetts, and later in Stoughton, Massachusetts.

The victim met the defendant at the Chelsea club at some point in 2006. The defendant became friends with the victim and her sisters, and eventually started dating the victim. That relationship ended approximately six months prior to the victim’s death. Despite the break up, the defendant continued to socialize with the victim and her sister, Ana.

In April 2009, the victim entered into a relationship with a married man named Oliver (pseudonym). On September 26, 2009, the defendant encountered Oliver at the Stoughton club where the victim and her sisters worked. The next day the defendant visited Ana at her house, expressing his dismay over the victim’s decision to date a married man.

Four days later the defendant and one of his roommates Darles DeSouza attended a barbeque at Ana’s house to celebrate her birthday. The defendant got “a bit agitated” when the victim did not show up to the event. His efforts to get Ana to contact the victim to get her to join them were unsuccessful. Ana informed the defendant that the victim was on a date and might stop by later. As the night progressed, the defendant called the victim to see what time she would arrive.

In the early morning hours of October 1, 2009, the defendant telephoned Ana and told her that he could no longer be friends with her “because he was not a good person.” The defendant explained that he had been using drugs and that his life for the past six months had had no meaning. Ana attempted to console the victim by reminding him to think about his family and children. The defendant responded that he was only interested in the victim. Nevertheless, later that morning the defendant sent Ana a text message saying that he was feeling better.

At the time the defendant lived on Melvin Street in Somerville, Massachusetts with DeSouza and another roommate, Washington Silveira. On the evening of October 1, 2009 DeSouza noticed the defendant lying on his mattress in DeSouza’s bedroom wearing a jacket and pants. To DeSouza this was slightly unusual, but not entirely out of the ordinary. The defendant sometimes would be in bed dressed when he planned to go out later that night. When DeSouza woke up the next morning at 6 AM, he noticed the defendant talking to someone on his cell phone.

The victim worked at the Stoughton club in the evening of October 1-2, 2009, and drove home in her 2006 Honda CR-V shortly after the club closed at 1 AM.

Video surveillance footage of traffic passing through a traffic circle in Everett revealed a vehicle resembling the defendant’s Nissan Murano passing through the circle in the direction of the victim’s apartment building at 1:38 AM. A few minutes later, at 1:42 AM, a Honda CR-V resembling the victim’s drove around the circle, heading in the same direction.

Shortly before 2 AM, one of the victim’s neighbors, who lived on the second floor of the building, was awakened by a woman’s screams coming from the parking lot behind the apartment building. The neighbor got up, heard another scream, looked outside, but did not see anything. Less than a minute later the neighbor saw someone walk down the last few steps of the rear staircase of the building, and jog through the parking lot and around a dumpster. The neighbor went back to bed sometime around 2 AM.

At 1:43 AM, a woman who lived on Laurel Street, in an apartment that faced the rear of the victim’s building on Main Street was also awakened by a woman’s screams. She heard the woman yell, “Get off me, get off me, get away from me.” Believing that the screams were connected to one of the many parties that her neighbor hosted, the woman went back to bed without calling the police.  

At 4:30 AM, a resident of the victim’s building went outside to empty his trash and found the victim lying faced down in a pool of blood on the landing outside the back door. She had been stabbed and cut thirty-one times, with seventeen stab wounds in the torso and multiple knife wounds in both arms. This neighbor telephoned 911.

Police investigators spoke to members of the victim’s family. Ana told the officers, “I have a suspect for you” and reported that she believed the defendant was responsible for the murder.

A detective was able to reach the defendant on his cell phone. He agreed to meet investigators at the Everett police station at 2 PM, however he did not appear at the station at that time. Eventually, the defendant informed police that he was at the Malden District Court paying traffic fines. Three Everett police officers drove to the Malden District Court and met the defendant there. He agreed to accompany the officers to the Everett police station.

At the police station, one of the officers noticed injuries on the back of the defendant’s hands. An officer contacted a forensic scientist, Eric Koester, who worked at the state police crime lab, and asked him to come to the police station to test for possible nonvisible blood. Koester swabbed both of the defendant’s hands and the defendant then left the police station.

A crime lab analyst examined the DNA extracted from the swabs collected by Koester and determined that the victim was included as a possible contributor to a DNA mixture on the back of both of the defendant’s hands.

On October 2, 2009, police executed search warrants for the defendant’s apartment and his two vehicles, including the Nissan Murano. Police seized a pair of bloodstained sneakers from a bedroom closet in the process. Later testing showed that DNA from a bloodstain on the top of the toe of the left sneaker matched the victim’s DNA profile. Another bloodstain from the side of the victim’s right sneaker matched the victim’s DNA profile.

Discussion: Overview

The defendant made five claims in his appeal:

  • That the trial judge abused her discretion in denying his motion for a new trial based in large part upon evidence that forensic scientist Erick Koester had failed required proficiency tests
  • That the evidence presented that he killed the victim was insufficient to support a conviction
  • That law enforcement conducted an illegal warrantless search by swabbing his hands to detect the presence of nonvisible blood and that a subsequent warrant authorizing a search of the apartment was not supported by probable cause
  • That the trial judge abused her discretion in making certain evidentiary rulings, including allowing the introduction in evidence of an adoptive admission

The defendant also asked the court to exercise its authority to either order a new trial or direct the entry of a lesser degree of guilt.

Discussion: Motion for New Trial

The defendant moved for a new trial on the grounds of a post-conviction discovery provided by the Commonwealth to the defendant in February 2015. This discovery included a September 2014 memorandum from the state police crime lab reporting that Koester repeatedly had failed proficiency tests in bloodstain pattern analysis and the recovery of trace evidence. The Commonwealth also provided the defendant with a “corrected” report showing a significant reduction in the probabilities linking the blood found on the defendant to the victim.

The defendant moved for a new trial arguing that that Commonwealth failed to provide exculpatory evidence. The defendant added that the information constituted newly discovered evidence that casted real doubt on the justice of the conviction and likely would have been a real factor in the jury’s deliberations. The Commonwealth countered by arguing that at most the information regarding Koester should have only been considered newly discovered evidence.

The trial judge denied the motion without a hearing. She found that the issues raised by Koester’s failed proficiency tests did not negate the “overwhelming” evidence that the defendant had killed the victim. As to the corrected statistics involving the probability of DNA matches, the judge noted that the new calculations did not eliminate the defendant as a possible contributor to the DNA found underneath the victim’s right hand fingernails.

The Court noted that its job was to examine the motion judge’s conclusions only to determine whether there had been a significant error or law or other abuses of discretion in denying the motion.

In March of 2012 Koester became the subject of an ongoing corrective action by Lab Management of the State police. The State police were aware of his deficient performance at least before the end of the defendant’s trial.

To obtain a new trial on the basis of non-disclosed exculpatory evidence, a defendant must establish that:

  • The evidence was in the possession, custody, or control of the prosecutor or a person subject to the prosecutor’s control
  • The evidence is exculpatory
  • Prejudice is present

Where a defendant’s pretrial motion was merely a general request for exculpatory evidence, the defendant must show that the withheld evidence would probably have been a real factor in the jury’s deliberations.In other words, the Court needed to evaluate whether there was a substantial risk that the jury would have reached a different conclusion if the evidence had been admitted at trial.

Given the limited role of Koester in this case, the Court concluded that there was no abuse in discretion in the trial judge’s decision that the defendant was not entitled to relief. It reasoned that Koester responded to the crime scene, marked the location of evidence, and performed a bloodstain pattern analysis that was not central to the case. The swabs he collected were submitted to another scientist for DNA testing. Although Koester officially supervised the two criminalists who searched the defendant’s apartment, Koester was not present when they rediscovered the defendant’s sneakers.

Discussion: Calculation of DNA Statistics

The defendant also contended that he was entitled to a new trial because the State police crime lab had revised the method it used to calculate the probability of random matches in cases involving DNA.

From the DNA samples taken and tested, it was determined that the defendant was included as a potential contributor to the DNA mixed with that of the victim’s.

The forensics analyst testified from these tests that the probability of a randomly selected, unrelated individual having the same DNA profile was one in 326,900 of the Caucasian population, one in 423,000 of the African-American population, and one in 118,900 of the Hispanic population. After the correction, these likelihoods were decreased to one in 1,065 for the Caucasian population, one in 936 for the African-American population, and one in 561 for the Hispanic population.

The Court agreed with the defendant’s DNA expert that the difference between the original and corrected match probabilities were “statistically significant.” However, in the circumstances of the case the Court added that the revised probability calculations did not cast doubt on the justice of the conviction.

The Court added that the value of the revised statistics needed to be considered in light of the other DNA evidence introduced at trial connecting the defendant to the crime.This evidence included a bloodstain found on the defendant’s left sneaker matching the victim’s DNA profile, with probabilities of one in 14.96 quintillion of the Caucasian population, one in 3.26 septillion of the African-American population, and one in 9.443 quintillion of the Hispanic population.

Discussion: Sufficiency of the Evidence

The defendant contended that there was insufficient evidence to support his murder conviction. He argued that the evidence, at best, established that he had had a prior relationship with the victim. He also argued that several pieces of exculpatory evidence justified this claim, including that:

  • The defendant’s roommates did not hear him leave the apartment the night of the stabbing
  • The police searched his apartment and vehicles and did not recover the murder weapon
  • He and the victim had ended their relationship amicably
  • Others had motive to kill the victim, such as Oliver or an unknown strip club patron

To assess these arguments, the Court addressed the question of whether, after viewing the evidence of the case in question in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubtA conviction can be based entirely on circumstantial evidence as long as the inferences drawn are reasonable.

The Court concluded that the evidence against the defendant was overwhelming and that there was no error in the denial of his motion for a directed verdict.

Discussion: Motion to Suppress

The defendant in part also sought to suppress the DNA evidence from the swabbing of his hands on the ground that the Everett police lacked probable cause and the defendant did not consent to the taking of swabs from his hands at the police station, and that there was no probable cause to support the issuance of a warrant to search the apartment.

After a two day evidentiary hearing, a Superior Court judge denied the defendant’s motion to suppress. The judge found that the warrantless search of the defendant’s hands was supported both by probable cause to believe that the defendant’s hands contained evidence of a crime and exigent circumstances.

The Court concluded that up until the point in which the defendant concluded the tests he agreed to participate in, there was probable cause to believe that the defendant had indeed been involved in the killing.

On the question of the warrant, the Court established that when a search is conducted without a warrant, the burden is on the Commonwealth to show that the search falls within a narrow class of permissible exceptions to the warrant requirement.One such exception to this requirement is a search based on probable cause and exigent circumstances that make obtaining a warrant impracticable. A reasonable belief as to the potential loss or destruction of evidence can create exigent circumstances permitting the warrantless seizure of that evidence.

The Court reasoned that there was no abuse of discretion in the motion judge’s determination, based on uncontroverted evidence, that nonvisible blood might have been lost if the defendant were allowed to leave the police station and wash his hands.

Discussion: Search of the Defendant’s Apartment

The defendant argued that evidence seized from his apartment should have been suppressed because there was insufficient evidence to have issued the search warrant. The motion judge found that the warrant affidavit established a substantial basis to believe that there was a nexus between the murder of the victim, the defendant, his vehicles, and his apartment.

The officer who prepared the warrant affidavit, Trooper Jeffrey A. Saunders, stated that the police had learned through interviews with the victim’s family and friends that the defendant had been threatening to kill the victim if she did not have sex with him as recently as Thursday, October 1, 2009.

The defendant argued that these statements were “primarily” or “entirely” hearsay, and that the information did not satisfy Court precedent concerning an informant’s basis of knowledge and veracity. The Court concluded that it discerned no error in the judge’s determination that there was probable cause to issue the search warrant for the defendant’s house and vehicles.

Discussion: Adoptive Admissions

The Commonwealth moved to admit certain statements by the defendant as adoptive admissions or as consciousness of guilt. The defendant opposed this motion. After a hearing, the judge allowed the testimony to be introduced.

At trial, over the defendant’s objection, Ana testified that, when she learned of the victim’s death from her sister Rose, she called the defendant and asked him, “Where is my sister?” The defendant answered, “I don’t know. I haven’t seen her for a week.” Ana then accused the defendant of killing her sister, saying, “You killed my sister. You can run. I’m gonna kill you. I’m gonna kill your family. I’m gonna kill your children. I’m gonna kill everyone.” The defendant hung up.

To prove that a statement was an adoptive admission on the basis that a defendant remained silent in the face of an accusation, the Commonwealth must establish that:

  • The defendant heard and understood the statement
  • The defendant had an opportunity to respond
  • The context was one in which an individual would have been expected to respond to an accusation of criminal conduct

The Court ruled that the lower court judge’s decision to allow the introduction of these statements as an adoptive admission was an abuse of discretion. The Court reasoned that hanging up the telephone and refusing to deal further with an irate and threatening caller was a natural response and could not be seen as an admission of guilt.

The Court qualified this decision by stating that although the evidence should not have been admitted, there was no prejudice to the defendant from its admission requiring reversal. The jury, it stated, most likely gave the testimony little weight given that Ana’s threats did not reasonably call for a response.

Discussion: Grand Jury Testimony:

The defendant also argued that the lower court judge erred by allowing the Commonwealth to introduce a portion of a testifying witness’s testimony to the grand jury as a prior recorded statement. The Court needed to review, due to the defendant’s objection, whether there was a prejudicial error. The Court concluded that the Commonwealth did not establish a sufficient foundation for the admission of the testimony in question.

The disputed testimony was an interview between a prosecutor and the defendant’s roommate Washington Silveira. The prosecutor sought to introduce a prior recorded testimony, or a portion of Silveira’s grand jury testimony. The judge allowed the prosecutor to introduce the testimony.

In evaluating whether the judge acted appropriately in allowing the introduction of grand jury testimony as substantive evidence, a judge must find that:

  • The witness is in fact feigning his or her lack of memory
  • The grand jury testimony was not coerced
  • The grand jury testimony was in the witness’s own words, involving mere confirmations or denials of statements made by the interrogator

The Court did not agree with the Commonwealth’s contention that the judge made implicit findings that supported the admission of the testimony. Nonetheless, the Court also concluded that Silveira’s testimony had little impact on the jury. The significance of the derogatory comments was outweighed by the threats made by the defendant himself.


The Court discerned no reason to order a new trial or to reduce the degree of guilt.

Judgment AFFIRMED.



Source: Commonwealth v. Antonio Marcos Ferreira, SJC-11479

Commonwealth v. FERREIRA 


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