State of New Hampshire v. Anderson Pereira

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0257, State of New Hampshire v.
Anderson Pereira, the court on March 18, 2025, issued the
following order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the parties’ oral arguments, and has determined to
resolve the case by way of this order. See Sup. Ct. R. 20(3). The defendant,
Anderson Pereira, appeals his conviction, following a jury trial in the Superior
Court (Delker, J.), for first degree murder. See RSA 630:1-a, I(a) (Supp. 2024).
He argues that the trial court erred by: (1) denying his motion to suppress
statements made in a custodial interrogation; (2) ruling that a statement made
by an “alternative perpetrator” constituted inadmissible hearsay; and (3) failing
to strike expert testimony relevant to the alibi of the proposed “alternate
perpetrator.” We conclude that the trial court did not err in denying the
defendant’s motion to suppress statements made during a custodial
interrogation. We also conclude that any errors associated with the trial
court’s evidentiary rulings were harmless beyond a reasonable doubt.
Accordingly, we affirm.

I. Facts

The jury could have found the following facts. In 2019, Flavia de Oliveira
lived with the defendant in an apartment in Methuen, Massachusetts. She and
the defendant were in a long-term relationship. Later that year, de Oliveira
began communicating with the victim via Facebook and text. In November
2019, after meeting the victim only a few times, she moved to the victim’s home
in Manchester. Soon after, she and the victim married. In January 2020, de
Oliveira’s son, Gabriel Baronto, came to the victim’s house for a long-term visit.

On March 7, an argument broke out between Baronto and the victim.1
Baronto threatened to punch the victim in the face, and the victim ultimately
ordered Baronto to leave his house. Baronto and de Oliveira left and returned
to the defendant’s apartment. Subsequently, Baronto sent the victim Facebook
messages that stated: “I’m going to give you the beating you deserve” and “I will
block you.”

1 Gabriel Baronto speaks only Portuguese. During the argument, Baronto and the victim
communicated by using Google Translate.
 During the following week, de Oliveira alternated between staying at the
victim’s house and the defendant’s apartment. On the morning of March 12,
de Oliveira and the victim discussed whether the victim was willing to allow
Baronto to return to his house and the victim’s concerns that he “did not want
[de Oliveira] spending time with the [d]efendant.” Later that day, de Oliveira
returned to the defendant’s apartment.

She and Baronto remained at the defendant’s apartment throughout the
evening of March 12 and into the morning of March 13. The defendant,
however, did not spend the evening at the apartment. Instead, he worked at a
nearby restaurant from approximately 2:00 p.m. to 9:30 p.m. He did not
return to the apartment after his shift ended.

At approximately 11:00 p.m., surveillance footage captured a vehicle
entering the victim’s neighborhood. The vehicle dropped off an individual,
whom investigators believed to be the assailant. The footage showed him
walking toward the victim’s house. About two hours later, the defendant
drove a box truck, used by the victim for work, from the victim’s home to a
parking lot in Methuen. The defendant parked the box truck in a parking lot,
then walked back to his apartment. Throughout the evening, cell location
data identified the defendant’s phone traveling together with the victim’s
phone and smartwatch.

During the afternoon of March 13, the defendant returned to the parking
lot, purchased a shovel from a nearby hardware store, and then went to work.
Later that night, he went to the location in Methuen where investigators
eventually discovered the victim’s body, and then to another site where the
victim’s box truck was later discovered. There, the defendant exited the box
truck, discarded some items, and left in an Uber.

On March 14, the victim’s family became concerned after he failed to
appear for work. They tracked his smartwatch and discovered the victim’s box
truck parked next to a dumpster. Thereafter, law enforcement opened a
missing person investigation. They subsequently discovered clothing and a
smartwatch in a nearby dumpster and found blood stains on the interior of
the truck. Months later, law enforcement discovered the victim’s body at the
Methuen location that the defendant visited during the night of March 13.

The defendant was later arrested in Florida in connection with the
victim’s murder. In October 2021, New Hampshire law enforcement
interviewed the defendant. The investigators began the interview by reading
the defendant his Miranda rights. See Miranda v. Arizona, 384 U.S. 436
(1966). The defendant responded that he understood the rights, discussed the
implications of waiving them, and thereafter signed the waiver form.
Subsequently, the defendant was charged with, among other things, first
degree murder. See RSA 630:1-a, I(a).

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 Prior to trial, the defendant moved to suppress “[a]ll statements” made
after he “expressly invoked [his Miranda] rights” by saying “[n]o, I don’t want
to waive” during the October 2021 interview. The defendant argued that the
detectives violated the New Hampshire and United States “Constitutions when
they did not cease all questioning as soon as [the defendant] unambiguously
invoked his rights.” (Emphasis and capitalization omitted). The State
objected, asserting that the defendant’s statements were not unambiguous
assertions of his constitutional rights. The trial court held evidentiary
hearings on November 4 and December 8, 2022. The State subsequently filed
a post-hearing memorandum in support of its objection to the defendant’s
motion. After reviewing the transcript and audio and video recording of the
interrogation, the trial court denied the defendant’s motion to suppress,
concluding that “the defendant’s purported invocation was ambiguous.”

The State and the defendant also filed pre-trial motions in limine related
to the admissibility of evidence that an alternative perpetrator murdered the
victim. In its February and March 2022 motions, the State sought, inter alia,
to “preclude . . . statements made by Gabriel Baronto through voice mail and
text messages” and “details of an argument between the victim and Baronto
that resulted in the victim removing Baronto from the victim’s home in
Manchester.” The defendant objected and moved in limine to be allowed to
introduce evidence that an alternative perpetrator committed the murder.

On January 6, 2023, the trial court issued an order ruling on all the pre-
trial motions in limine. As relevant here, the trial court denied the State’s
motion to exclude evidence of Baronto’s argument with the victim and granted,
in part, the defendant’s motion, ruling that “to the extent the defendant asserts
that Baronto is the alternative perpetrator, his threats against the victim just
days before the victim disappeared [are] relevant to establish intent and
motive.” The trial court also denied the State’s motion to exclude text message
and voicemail statements between Baronto and the victim for the same
reasons.

At the beginning of the defendant’s case, the State argued that some
portions of Baronto’s messages included in the State’s and defendant’s exhibits
were inadmissible because certain phrases constituted hearsay and did not fall
under a hearsay exception. The trial court ruled that a portion of the
messages, including Baronto’s statement to the victim that said, ‘“[y]ou stay
there saying bad things to my mother, but you are forgetting a simple fact. I
am not the same as she who forgives the other,’” constituted inadmissible
hearsay. The defendant asked the court to reconsider its ruling, contending
that the statement constituted a threat. The trial court declined, responding
that the statement was also inadmissible under New Hampshire Rule of
Evidence 403 and concluding that the unfair prejudice caused by its admission
outweighed its probative value.

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 As part of its case, the State introduced evidence that Baronto remained
at the defendant’s apartment on March 12 and into the morning of March 13
watching the television show “Stranger Things.” To establish Baronto’s alibi in
order to disprove the defendant’s alternative perpetrator theory, the State
introduced a forensic audio expert. The expert testified that three recordings,
recovered from Baronto’s phone and made between midnight and 1 a.m. on
March 13, contained audio from “Stranger Things” in the background. On
cross-examination, the defendant asked a line of questions about whether the
“Stranger Things” audio could be picked up through a phone call rather than
from a television in the same room as the phone that made the recording.

On redirect, the State asked the expert to clarify whether he agreed with
this hypothesis, to which the expert responded, “No, not at all.” The defendant
objected and moved to strike the State’s question and the expert’s answer,
arguing that the expert’s response constituted an undisclosed opinion and that
the requisite foundation to offer the opinion was lacking. The court overruled
the defendant’s objection and declined to strike the testimony.

At the conclusion of the 14-day jury trial, the jury found the defendant
guilty of first degree murder. RSA 630:1-a, I(a). This appeal followed.

II. Analysis

On appeal, the defendant argues that the trial court erred by
denying his motion to suppress statements made after he allegedly invoked his
privilege against self-incrimination under Part I, Article 15 of the New
Hampshire Constitution and the Fifth and Fourteenth Amendments to the
United States Constitution. See Miranda, 384 U.S. at 478-79. Specifically, the
defendant contends that his statement, “[n]o, I don’t want to waive,” was “clear
and unambiguous” and constituted an unequivocal invocation pursuant to
Miranda. The State disagrees, arguing that the trial court correctly denied the
motion to suppress because “no unambiguous invocation occurred” and that
“the totality of the circumstances . . . reflected possible confusion on [the
defendant’s] part.” We agree with the State.

We first address the defendant’s claim under the State Constitution and
rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-
33 (1983). The New Hampshire Constitution guarantees a criminal defendant
protection from compelled self-incrimination. State v. Watson, 170 N.H. 720,
724 (2018). Although neither the Federal nor the State Constitution requires
“any specific code of procedures for protecting the privilege against self-
incrimination during custodial interrogation,” the United States Supreme Court
and this court have developed rules for safeguarding that privilege. Id.
(quotation omitted). Thus, when a person is taken into custody or deprived of
his freedom in any significant way, prior to interrogating him, the police must
tell him that he has the right to remain silent, that anything he says can and

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will be used against him, and that he has the right to counsel. Id. (quotation
omitted); see Miranda, 384 U.S. at 467-73. Before a defendant’s responses
made during a custodial interrogation may be used against him, the State
must prove, beyond a reasonable doubt, that the interrogation did not violate
his constitutional rights under Miranda. State v. Lynch, 169 N.H. 689, 693
(2017).

In Miranda, the Supreme Court held that, if an accused is in police
custody, has been informed of his rights, and “indicates in any manner, at any
time prior to or during questioning, that he wishes to remain silent, the
interrogation must cease.” Lynch, 169 N.H. at 693 (quotation omitted); State v.
Laurie, 135 N.H. 438, 442 (1992) (deciding under the State Constitution that
whenever a suspect in custody exercises his option to cut off questioning, the
police must scrupulously honor that request). Although we review a trial
court’s findings concerning which words a defendant used to invoke his
Miranda rights under the clearly erroneous standard, whether the defendant’s
words constitute an invocation of his rights is a question of law, which we
review de novo. Lynch, 169 N.H. at 693.

To invoke his Miranda rights, the accused must do so unambiguously.
Watson, 170 N.H. at 727. To determine whether the defendant successfully
invoked his Miranda rights, we examine his statements under the totality of the
circumstances. Lynch, 169 N.H. at 693. Under this inquiry, the question is
whether a reasonable officer, in light of the totality of the circumstances, would
understand the statement as an invocation. Id. at 694-95. If a statement is
“ambiguous or equivocal in that a reasonable officer in light of the
circumstances would have understood only that a suspect might be invoking”
his Miranda rights, precedent “does not require the cessation of questioning.”
Id. (quotations omitted). Although responses subsequent to the defendant’s
request may not be used to cast retrospective doubt on the clarity of the initial
request itself, the court may consider whether the circumstances preceding the
alleged invocation render the statement ambiguous. Smith v. Illinois, 469 U.S.
91, 98, 100 (1984). “When a suspect makes an ambiguous or equivocal
statement it will often be good police practice for the interviewing officers to
clarify whether or not” the accused intended to invoke his Miranda rights.
Lynch, 169 N.H. at 694-95 (quotation omitted).

The defendant maintains that he unambiguously invoked his Miranda
rights to counsel and silence during a custodial interrogation by saying: “No, I
don’t want to waive.” At the outset of the interrogation, the detective reviewed
the Manchester Police Department’s standard form setting forth the
defendant’s Miranda rights. The detective read to the defendant each right, one
at a time. Every time the detective read a right, the defendant then initialed
the form to acknowledge that he understood the right, in accordance with the
detective’s instructions. Then, the following exchange occurred:

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 [Detective]: “are you willing to waive each of these rights and answer
questions?”
[Defendant, tilting his head to the side]: “If I wanted to waive?”
[Detective]: “Yes.”
[Defendant]: “No, I don’t want to waive.”

The trial court reasoned that it could not review these statements in isolation
but “must consider them in the context of the interrogation as a whole.” See
State v. Jeleniewski, 147 N. H. 462, 467 (2002). The court found that the video
and audio recording of the interrogation “provides the Court with that needed
context.” Based on its review of this evidence, the trial court found that “[a]t
this juncture, the defendant’s demeanor and his words indicated to a
reasonable police officer that the defendant may be confused about what the
officer just asked him.”

Upon conducting a de novo review of the same evidence considered by
the trial court, we reach the same conclusion. Specifically, the defendant’s tilt
of his head, hesitation, and follow-up question signaled confusion as to the
meaning of the term “waive” that rendered his subsequent statement, “[n]o, I
don’t want to waive,” ambiguous to a reasonable officer. This is particularly
true in light of both the detective’s earlier instruction to the defendant to initial
the form if he understood the statement and the defendant’s response to this
instruction by promptly initialing next to each right. Here, the defendant’s
hesitation to initial the form and his clarifying question cast doubt as to
whether the defendant understood the previous statement, and whether he
intended to invoke his Miranda rights with his response. Accordingly, the trial
court correctly concluded that the “demeanor of both participants, the timing
and pace of their exchange, and the content of the dialogue establish that” the
defendant’s statement, “[n]o, I don’t want to waive,” did not unambiguously
invoke his Miranda rights. Therefore, we conclude that the trial court did not
err in denying the defendant’s motion to suppress his statements. Because the
Federal Constitution affords the defendant no greater protection than the State
Constitution under these circumstances, we reach the same result under the
Federal Constitution as we do under the State Constitution. Watson, 170 N.H.
at 727.

Next, the defendant challenges two of the trial court’s evidentiary rulings.
First, the defendant argues that the trial court erred by overruling his objection
and failing to strike a portion of the State’s expert testimony related to the
defendant’s alternative perpetrator theory. Second, the defendant argues that
the trial court unsustainably exercised its discretion by ruling that part of one
of the messages that Baronto sent to the victim constituted inadmissible
hearsay. The State counters that the trial court ruling was not an
unsustainable exercise of discretion because the excluded portion of the text
message was not a threat; rather it constituted an inadmissible hearsay
statement offered for the truth of the matter asserted. The State also argues

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that any errors associated with the trial court’s evidentiary rulings were
harmless beyond a reasonable doubt. We need not determine whether the trial
court erred, because we agree with the State that any errors associated with
the trial court’s rulings were harmless beyond a reasonable doubt. Our review
of the record reveals that the admission of the expert’s testimony and the
exclusion of the portion of Baronto’s message to the victim were cumulative or
inconsequential in relation to the strength of the State’s case, particularly in
view of the overwhelming nature of the alternative evidence of the defendant’s
guilt.

To establish harmless error, the State must prove beyond a reasonable
doubt that the error did not affect the verdict. State v. Boudreau, 176 N.H. 1,
11 (2023). This standard applies to both the erroneous admission and
exclusion of evidence. Id. We consider the alternative evidence presented at
trial as well as the character of the erroneously admitted or excluded evidence
itself. Id. To determine whether the State has proven beyond a reasonable
doubt that an error did not affect the verdict, we must evaluate the totality of
circumstances at trial. Id. at 11-12.

The factors that we have considered in assessing whether an error did
not affect the verdict include, but are not limited to: (1) the strength of the
State’s case; (2) whether the admitted or excluded evidence is cumulative or
inconsequential in relation to the strength of the State’s case; (3) the frequency
of the error; (4) the presence or absence of evidence corroborating or
contradicting the erroneously admitted or excluded evidence; (5) the nature of
the defense; (6) the circumstances in which the evidence was introduced at
trial; (7) whether the court took any curative steps; (8) whether the evidence is
of an inflammatory nature; and (9) whether the other evidence of the
defendant’s guilt is of an overwhelming nature. Id. No one factor is dispositive.
Id.

First, we address whether the defense counsel’s initial solicitation of the
expert’s opinion on cross-examination rendered the expert’s redirect testimony
on the same point cumulative. At trial, the State’s expert witness testified
about the background sounds in audio recordings recovered from Baronto’s
phone that were made during the early morning of March 13. The expert
testified that he prepared a report for the State, in which he concluded that the
“background audio was identified as belonging to season 1 episodes 4 and 5 of
the show” “Stranger Things.” The expert’s conclusion corroborated de
Oliveira’s testimony that she and Baronto watched “Stranger Things” at the
defendant’s apartment on the evening of March 12 and into the early morning
on March 13. Additionally, the defendant’s Netflix records confirmed that
“Stranger Things” played from his account during the same period of time.

On cross-examination, the defense questioned the State’s expert
regarding the possibility that the recordings from Baronto’s phone picked up

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audio from “Stranger Things” through a speaker phone conversation rather
than from a television. The following exchanges between the defendant’s
counsel and the State’s expert took place:

[Defendant]: [Y]ou were not asked to determine [whether] that
background noise [was] actually coming from a TV in the same room as
the person on the phone?
[Expert]: Well, it would have to be.

The defendant followed up by asking this hypothetical:

[Defendant]: [I]f my teenager daughter walked in [the room] . . . [and] she
has a live video feed going to her friend, if I happened to be watching
Stranger Things, the friend might hear that audio, right, in the . . .
background?
[Expert]: It would be very difficult to hear coming through a phone
speaker . . . it would be so minute that I don’t think it would be recorded.

Subsequently, the defendant asked the expert:

[Defendant]: So if you have your phone, and you’re chatting with your
brother in Germany . . . and both of you are doing a video call so that . . .
you’re using speaker phones, then don’t you think that if your brother
happens to be watching Stranger Things, that you might hear it on your
end in the background?
[Expert]: Yeah, but I don’t think it would have the same . . . residual
frequencies that were picked up on the recording.

On redirect examination, the State asked the expert:

[State]: But even though you weren’t asked to do that, do you agree with
his hypothesis?
[Expert]: No, not at all.

The defendant objected, arguing that the expert’s redirect testimony
constituted an undisclosed opinion and that the State did not establish an
adequate foundation to offer the testimony. He subsequently moved to strike
the State’s question and the expert’s answer. The State responded that the
defense elicited the expert’s opinion during cross-examination. The trial court
agreed with the State and overruled the objection.

On appeal, the State correctly observes that the defendant initially
solicited during cross-examination the expert’s opinion about the possibility
that the audio recordings did not capture the “Stranger Things” audio from a
television located in the same room as Baronto. After establishing that its
theory was beyond the scope of the expert’s report, the defense proposed its

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hypothesis and did not object to the expert’s responses. On redirect
examination, the State asked the expert to clarify whether or not he agreed
with the theory. Accordingly the expert’s testimony on redirect examination
was cumulative because the defendant previously solicited the expert’s opinion
on the matter three times and did not move to strike that opinion when the
expert initially disagreed.

Next, we address whether the portion of Baronto’s message to the victim
that the trial court excluded is also cumulative. The statement, in relevant
part, said: “You stay there saying bad things to my mother, but you are
forgetting a simple fact. I am not the same as [my mother] who forgives the
other.” The trial court ruled that this statement constituted inadmissible
hearsay because the message described something that happened in the past
and constituted a statement of fact offered for the truth of the matter asserted.

However, the defendant introduced other similar statements that
threatened physical harm to the victim that were not excluded as inadmissible
hearsay. The jury heard testimony at trial that Baronto sent messages to the
victim saying, “I’m going to give you the beating you deserve” and “I will block
you.” The jury also heard testimony that Baronto told the victim during an
argument that he would “beat him up” and would “punch him in . . . his face.”
Additionally, another witness testified that she overheard Baronto threaten the
victim, saying: “wait until you see what I’m going to do with your good side of
your face.” In light of the testimony about these similar threats that Baronto
made against the victim, the excluded portion of the message is cumulative.

Finally, we address the strength of the State’s case. At trial, the State
introduced ample evidence that would allow the jury to reasonably conclude
that Baronto had an alibi the night of the victim’s disappearance. Specifically,
the State introduced testimony, cell phone records, photos, and video evidence
showing that Baronto remained at the defendant’s apartment on the night of
the victim’s disappearance.

Additionally, the alternative evidence of the defendant’s guilt was
overwhelming. See id. Surveillance footage and cell phone location data from
the night that the victim disappeared placed the defendant and the victim in
the same locations. Video footage captured an individual — believed to be the
primary suspect — exiting a vehicle in the victim’s neighborhood and walking
toward the victim’s house the night he disappeared. Around 1:15 a.m. on
March 13, the victim’s box truck exited the neighborhood.

Thereafter, cell phone and smartwatch location data and records
indicated that the defendant and the victim traveled southbound on the
highway toward Salem, to Methuen, and then to a parking lot. Next, the
defendant’s cell phone records showed that he left the parking lot and traveled
to his apartment. The following day, surveillance footage and location records

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and data from the defendant’s cell phone established that he returned to the
parking lot, purchased a shovel from a nearby hardware store, visited the site
where investigators later discovered the victim’s body, and abandoned the
victim’s box truck.

The State also introduced evidence establishing that the defendant fled
the week after the victim’s disappearance. Five days after the victim’s
disappearance, investigators interviewed the defendant. The next day the
defendant left his apartment and never returned. He stopped going to work,
without any explanation, and, over the subsequent week, he began emptying
his bank accounts. These withdrawals began in Massachusetts and ended in
Florida. Thereafter, all his banking activity stopped.

Accordingly, the alternative evidence of the defendant’s guilt was
overwhelming, and the State expert’s statement and the portion of Baronto’s
message to the victim were cumulative and plainly inconsequential in relation
to the strength of the State’s case. Therefore, we conclude that, based upon
the totality of the circumstances, any error that the trial court made by
admitting the expert’s testimony on redirect examination and excluding a
portion of Baronto’s message to the victim did not affect the verdict and thus
was harmless beyond a reasonable doubt.

Affirmed.

BASSETT, DONOVAN, and COUNTWAY, JJ., concurred.

Timothy A. Gudas,
Clerk

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