By DAMIEN FISHER, InDepthNH.org

Anderson Pereira’s murder conviction stands after the New Hampshire Supreme Court ruled he did not invoke his Miranda rights before he was questioned by police.

Pereira, 45, is serving a life sentence without the possibility of parole for the 2020 murder of Zakhia Charabaty, 52, of Manchester. Charabaty had married Pereira’s ex-girlfriend, Brazilian woman Flavia Deoliveira, reportedly in order for her to obtain a green card.

In his appeal to the state Supreme Court, Pereira claimed his statements to detectives should have been thrown out since he had invoked his right to remain silent.

But the justices ruled in a case order released Wednesday that Pereira’s statements to detectives about his Miranda rights were ambiguous, and the investigators were legally justified in questioning him after his statements.

“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:

[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 state Supreme Court ruled that when Pereira said “No, I don’t want to waive,” it is not clear if he was waiving his right to remain silent and speak to an attorney because in the video of that exchange he tilted his head.

“Specifically,the defendant’s tilt of his head, hesitation, and follow-up questionsignaledconfusion 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,” the justices ruled. 

Charabaty and Deoliveira lived together with Deoliveira’s teen son, Gabriel Baronto. Baronto and Charabaty did not get along, and the two frequently argued. In March of 2020, Charabaty and Baronto had an argument during which Baronto made threats, according to court records. 

Deoliveira and Baronto went to Methuen, Mass., to stay with Pereira after that fight. Soon, Deoliveira and Charabaty reconciled and she was planning to go back to Manchester on March 13, 2020. But Pereira got there first.

Prosecutors presented evidence, including surveillance video, showing Pereira in Charabaty’s neighborhood in the early morning hours of March 13, 2020. Prosecutors say Pereira got into the house and killed Charabaty. After the murder, Pereira wrapped the dead man in his own bed sheets and put him in the back of Charabaty’s work truck.

Pereira then drove to a construction site in Massachusetts and buried Charabaty there, according to prosecutors. Police would not find Charabaty’s body for another four months, and by then the exact cause of death could not be determined.

At trial, Pereira’s lawyers tried to cast suspicion on Baronto for the murder. In his appeal, Pereira challenged Hillsborough Superior Court Judge William Delker’s ruling during the trial that some of Baronto’s text messages to Charabaty were inadmissible as hearsay. 

The relevant message deemed hearsay was Baronto writing: “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.” Delker ruled that this message described a past incident and was not a relevant threat.

The Supreme Court justices noted Delker allowed the jury to see evidence of other texts from Baronto to Charabaty that contained threats of actual violence, such as “I’m going to give you the beating you deserve” and “I will block you.”

“The jury also heardtestimony 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,” the Justices wrote.

Pereira also objected to prosecutors undermining his defense team’s questioning of an expert witness. The witness testified that audio messages Baronto recorded at the time of the murder picked up audio of the television show “Stranger Things.” Baronto and Deoliveira’s alibi was that they were together watching the show during the time Charabaty was killed. Pereira’s lawyers tried to imply that the audio could have come from another source, meaning Baronto was not with his mother.

According to Pereira’s appeal, prosecutors got the expert witness to offer an opinion that the defense theory that the “Stranger Things” audio did not come from a television wasn’t valid. The appeal states that testimony constituted an undisclosed opinion and that prosecutors did not establish an adequate foundation to offer the opinion. 

Combined with the withheld text from Baronto, the appeal argues the jury was improperly swayed against Pereira.

But the justices wrote that even with the expert witness’s opinion and the withheld message, the state presented a strong case to the jury, and Pereira’s theory that either Baronto or his mother killed Charabaty was weak.

Police honed in on Pereira as a suspect after Charabaty was first reported missing. After detectives had an initial conversation with Pereira, he closed his bank accounts and went to Florida where he lived under an assumed name. He wasn’t found until October of 2021 when he was arrested in Florida. 

Prosecutors presented evidence at the trial that Pereira’s cell phone location data linked him to the crime, as well as the surveillance video. Prosecutors also presented a video of Pereira buying a shovel at a Home Depot around the time of the alleged murder.

“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,” the justices wrote.