Attorney Scapicchio Secures Nolle Prosequi in Two Separate Homicide Cases and One Witness Intimidation Case in Plymouth County
Michael Goncalves was charged with first-degree murder in 2011 in two separate homicide cases and was charged with witness intimidation in 2014 out of Plymouth County. Attorney Scapicchio was able to successfully expose prosecutorial misconduct within the Plymouth County District Attorney's Office, which resulted in the Commonwealth's dismissal of all three cases against Goncalves.
Goncalves was charged with the homicide of Manuel Rodrigues and three firearms offenses on January 28, 2011. The Commonwealth alleged that Goncalves and his co-defendant, Joao Fernandes, murdered Rodrigues to prevent him from testifying against Michael Barros in a separate homicide trial. Rodrigues was the getaway driver in the homicide of Moises Vicente and testified against Barros claiming that Barros was the shooter.
The Commonwealth alleged that Goncalves and Fernandes were friends with Barros and as a result, had the motive to prevent Rodrigues from testifying. The Commonwealth alleged that Goncalves drove Fernandes to Nilsson Street in Brockton on February 17, 2010 where Fernandes allegedly shot Rodrigues outside of his girlfriend's home.
The trial commenced on January 6, 2015. One cooperating witness for the Commonwealth alleged that Fernandes confessed to him and also implicated Goncalves in the homicide, claiming Goncalves was paying Fernandes to commit the shooting. A second cooperating witness claimed Goncalves confessed to him while incarcerated at the Plymouth County Sheriff's Department.
During the course of the trial, a dispute arose as to whether the second witness received a deal in his unrelated case in exchange for his cooperation in Goncalves' case. Through her diligence, Attorney Scapicchio learned that while the Commonwealth claimed the witness heard Goncalves allegedly confess, the prosecutor who handled the witness's prosecution on unrelated charges included in her notes during plea negotiations that the witness was not receiving leniency on his case because he did not have any first-hand information relating to the case in which he was cooperating. The prosecutor was no longer employed by the Plymouth County District Attorney's Office at the time of Goncalves' trial, so Attorney Scapicchio only learned this information through her own investigation.
After Attorney Scapicchio called the prosecutor as a witness to testify as to the contents of her notes, the Commonwealth claimed there was information within the prosecutor witness's personnel file asserting she failed to turn over exculpatory evidence in an unrelated homicide case and that her veracity was questioned by members of the PCDAO. The Commonwealth also tried to intimidate the former prosecutor by releasing partial emails contained within the PCDAO email database. The prosecutor witness ultimately testified despite the Commonwealth's attempt to discredit her.
The trial resulted in a hung jury on February 6, 2015 after the jury reported that it could not reach a unanimous verdict.
After trial, Attorney Scapicchio was able to expose that the damaging information was not in the prosecutor witness's personnel file when she left the office, implying that the information was placed there in an attempt to intimidate the witness out of testifying for the defense. Attorney Scapicchio also filed motions requesting all emails within the PCDAO to determine whether there were any emails exhibiting that the PCDAO was engaging in selective prosecution based on race, an issue that arose as a result of the previously disclosed emails.
Due to the fact that the prosecutor witness also testified in Commonwealth v. Evangelista, however, her personnel file was never provided to the defense in that case, District Attorney Timothy Cruz and Assistant District Attorney Frank Middleton were ordered to provide affidavits outlining the cause for the discrepancy. ADA Middleton claimed in his affidavit that he was not aware the witness prosecutor testified in the Evangelista case, a claim which was contradicted by the prosecutor who handled the Evangelista case. Subsequently, ADA Middleton resigned from the PCDAO.
Soon after ADA Middleton's resignation and prior the Court issuing a decision on the motion for all PCDAO emails, the Commonwealth declined to prosecute Goncalves further on the Rodrigues homicide and filed a nolle prosequi.
Goncalves was also charged for the murder of Shaian Colon and for aggravated assault and battery with a dangerous weapon and armed assault with intent to murder relating to Rosando Marcelino. The Commonwealth alleged that Goncalves shot the men while they were sitting in a van parked in a Green Street driveway. The Commonwealth alleged that the shooting was in relation because members of Colon and Marcelino's group had shot Goncalves' cousins.
While preparing for trial scheduled to commence in September of 2015, the trial judge learned that the first cooperating witness in the January 2015 trial claimed that the prosecutor handling the case told him to lie during Goncalves' trial. As a result of this information and because the Commonwealth provided a considerable amount of discovery just six weeks prior to trial that it had in its possession since 2006, Attorney Scapicchio filed a Motion to Dismiss the indictments.
A hearing on the Motion to Dismiss the indictments was scheduled for Monday, August 3, 2015. Attorney Scapicchio subpoenaed ADA Middleton and ADA Flanagan to testify during the hearing to determine which prosecutor, if any, instructed the first cooperating witness in the January 2015 trial to lie.
On Thursday, July 30, 2015, the Commonwealth informed Attorney Scapicchio that it would no longer be pursuing the prosecution against Goncalves and filed a nolle prosequi all charges: (1) first-degree murder, (2) assault and battery with a dangerous weapon causing serious bodily injury, (3) armed assault to murder, (4) carrying a firearm without a license, and (5) possessing a firearm without an FID card. The Commonwealth also filed a nolle prosequi a witness intimidation charge where the Commonwealth alleged Goncalves attempted to intimidate the second cooperating witness in the January 2015 trial.