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Commonwealth v. Barbosa
Citations: 463 Mass. 116; 972 N.E.2d 987; 2012 WL 3139732; 2012 Mass. LEXIS 689
Court: Massachusetts Supreme Judicial Court; August 6, 2012; Massachusetts; State Supreme Court
On December 26, 2008, a shooter fired a .38 caliber bullet into a crowded party in Brockton, fatally striking Hercules Dossantos. The defendant was identified as the shooter by three witnesses and was indicted for first-degree murder and four firearms offenses. The jury convicted him on all charges, including murder based on premeditation and extreme atrocity. The defendant raised multiple claims of error, primarily contesting the introduction of a nine millimeter round and magazine clip found in his apartment, arguing that their prejudicial effect outweighed any probative value. He also objected to evidence regarding security measures in his apartment and testimony from a State trooper about a conversation in which he allegedly offered to pay a witness to recant his testimony. The defendant contended that these evidentiary rulings were improper and potentially inflamed the jury. Despite acknowledging errors in the evidentiary rulings, the court found them non-prejudicial given the strength of the Commonwealth's case, which included three eyewitness identifications and corroborating evidence from the defendant's telephone records. The jury had sufficient basis to credit the eyewitness accounts despite some inconsistencies. Ultimately, the court rejected the defendant's remaining challenges and upheld the convictions, affirming the judgment without ordering a new trial. On December 25, 2008, Alina Miranda and Maria Andrade hosted a party at their Brockton apartment attended by approximately fifteen to twenty young adults, many of whom were Cape Verdean. The defendant, known as “Fish,” arrived with relatives, including his stepbrother Admilson “Fausto” Rodriguez. Notably, the defendant wore a distinctive black leather jacket and was the godfather to Andrade’s infant daughter. During the party, Lopes, who was intoxicated, danced with his infant daughter and accidentally caused her to hit her head on the ceiling. When Miranda attempted to take the baby to check for injuries, Lopes refused, leading to an altercation. The defendant intervened, grabbing Lopes by the throat, which resulted in Lopes punching him. The defendant ultimately took the baby from Lopes and handed her to Miranda, after which a physical fight ensued between Fausto and Lopes. During the chaos, the defendant brandished a silver gun, which prompted shouts of “stop” from partygoers. After leaving the apartment, the defendant returned up the rear staircase, where he fired a shot towards the living room before fleeing. Subsequently, Dossantos, a party attendee, was found injured and later died from a gunshot wound that had severed two major blood vessels. Testing indicated that the gunshot was fired from a distance of three feet or less. A spent .38 caliber casing was found on the kitchen floor, matching the bullet retrieved from Dossantos's body. Following this, Brockton police obtained a search warrant for the defendant's apartment, where they uncovered nine millimeter ammunition and a magazine. No attempt was made to link the shoe containing the magazine to any apartment occupant. In the defendant's bedroom, police discovered a large television with a security camera feed of the building's front door and a police scanner tuned to Brockton police frequencies, alongside three pit bull puppies. The defendant contested the admission of the nine millimeter ammunition and magazine, arguing they were improperly included as evidence. The judge agreed there was no direct connection to the murder weapon but permitted the evidence to show the defendant's familiarity with firearms, citing the prosecutor's argument that the security measures indicated ownership of the ammunition. The judge allowed the evidence, providing the jury with instructions on considering the ammunition's relevance only if the defendant was found to have knowingly possessed it. The judge did not specify how the jury should regard the security equipment. Precedents confirm that weapons potentially related to a crime may be admissible, though caution is advised when no direct link exists. This aligns with previous rulings where evidence unrelated to the crime weapon was discouraged. The court determined that evidence related to calibers other than .38 was improperly admitted, as it lacked sufficient relevance to the case. The argument that this evidence indicated the defendant’s familiarity with weapons was rejected, emphasizing that such tenuous relevance does not outweigh the potential for unfair prejudice against the defendant. Although prior cases allowed the admission of weapons-related evidence under certain conditions, in this instance, two significant factors counseled against its admission. Firstly, forensic evidence indicated that the nine millimeter weapon could not have been used in the crime. Secondly, any claim of the defendant's personal possession of the nine millimeter was speculative. The judge's decision to admit this evidence was thus considered erroneous, as it was likely to unfairly prejudice the defendant. Additionally, the admission of testimony regarding the defendant’s security measures, including a security camera, police scanner, and pit bulls, was also deemed irrelevant to the accused crime. Despite these errors, the court concluded that they did not have a prejudicial impact on the trial's outcome. The determination was based on the overall strength of the properly admitted evidence and the minimal focus on the contested evidence during the trial. Ultimately, the court asserted that the errors had at most a very slight effect on the jury's decision. In Commonwealth v. Flebotte, the testimony of three key witnesses identified the defendant as the shooter from various locations: DeMiranda tracked him from the staircase, Jelissa DeLeon saw his face from the kitchen, and Jonathan Andrade recognized his distinctive jacket. All three witnesses selected the defendant in a photographic array. Additional witnesses, including Anthomesha Gomes, Joao Alves, and Alina Miranda, confirmed that the defendant, known as “Fish,” wore a distinctive black leather jacket and had been seen fighting with Lopes, though they did not witness the shooting's aftermath. Paulo Gomes did not identify the shooter but noted the shooter held the gun in his left hand, consistent with the identifying witnesses. The Commonwealth presented eleven witnesses discussing the crime scene, forensics, and telephone records, which supported the accounts of the primary witnesses. Specifically, the defendant's phone records indicated a call to Nicholas Loring shortly after the shooting, corroborating DeMiranda's account of subsequent events. Testimony regarding evidence found in the defendant's apartment was notably brief. Detective John Lonergan and Trooper Elvin Morales testified about the discovery of ammunition, a security camera, and clothing but only a small portion of the trial focused on these items. The prosecutor mentioned them briefly in closing arguments, emphasizing their relevance to the defendant's familiarity with ammunition without suggesting illegal possession or intent. The judge provided a limiting instruction to the jury regarding the consideration of the nine-millimeter evidence solely to assess the defendant's familiarity with firearms, which the jury did not question. The defendant contended that the prejudicial effect of the evidence was exacerbated by the perceived lack of credibility of the prosecution's witnesses. Three eyewitnesses identified the defendant despite previously denying seeing the shooter in statements to police, citing fear or reluctance. Eyewitness Andrade, who initially refused to testify, could not recall his identification on the stand, prompting the prosecution to read his grand jury testimony. DeMiranda, another witness, implicated himself in a conversation, claiming "We got the wrong dude." He faced extensive impeachment regarding potential bias due to favorable treatment in his own criminal matters. Despite these inconsistencies, the totality of evidence led to a conclusion that doubts raised would not have altered the jury's decision, as multiple witnesses supported the identification. The defendant objected to the admission of hearsay from State Trooper Robert Klimas, which corroborated DeMiranda's claims about the defendant attempting to persuade him to recant his testimony. Although the court acknowledged that the hearsay should not have been admitted, it determined there was no prejudice since the information was cumulative and presented neutrally. DeMiranda testified about the defendant's offer to pay him to leave the country and his subsequent refusal to sign an affidavit recanting his statements. The defense did not contest this testimony. Additionally, recordings of calls between the defendant and DeMiranda were excluded, but the judge permitted testimony regarding the circumstances of DeMiranda's disclosure about the affidavit request. Trooper Klimas testified that DeMiranda reported in October 2009 that the defendant and a defense investigator were trying to persuade him to alter his testimony. The judge allowed this testimony despite the defendant's hearsay objection, ruling it admissible to address potential recent fabrication by DeMiranda. Klimas detailed that the defendant allegedly offered DeMiranda a ticket to Cape Verde for changing his story and that a defense investigator had requested DeMiranda to sign an affidavit. DeMiranda arranged this meeting in the presence of an undercover officer, who did not testify, while Trooper Klimas lacked clarity on how he knew the details of this encounter. DeMiranda appeared nervous but ultimately refused to sign the affidavit. The defense investigator corroborated DeMiranda's account, stating that DeMiranda did not express feeling pressured or coerced. The court found Klimas’s hearsay testimony inadmissible as a prior consistent statement, typically excluded unless the witness's credibility has been impeached by claims of recent fabrication. In this case, the defendant did not allege that DeMiranda fabricated conversations regarding the defendant or the investigator, nor did any other hearsay exceptions apply. Despite the improper admission of Klimas's testimony, it was deemed non-prejudicial because it was cumulative of other testimonies from DeMiranda and the investigator. Additionally, other witnesses corroborated DeMiranda's critical observations of the events surrounding the shooting. The defendant’s counsel utilized Klimas's testimony to challenge DeMiranda's credibility effectively. The judge ensured that the testimony did not unfairly portray the police investigation or imply misconduct by the defense. DeMiranda affirmed during his testimony that he felt no duress regarding the affidavit, and the judge sustained objections to any misleading characterizations of the affidavit as containing a "false story." The judge advised the prosecutor against mentioning an undercover police officer, but the defendant's actions opened the door to this issue by pointing out inconsistencies in DeMiranda’s accounts based on police presence. The court concluded that the hearsay admitted was not prejudicial to the defendant, as it was cumulative of properly admitted evidence and did not outweigh the evidence of guilt. The defendant contested the admissibility of DeMiranda’s testimony regarding his prior identifications of the defendant in a photographic array and before a grand jury. The court determined that such identifications are admissible for substantive purposes as long as the witness testifies at trial and is subject to cross-examination, regardless of whether the witness also identifies the defendant in court. Pretrial identifications hold substantive value due to their occurrence under nonsuggestive conditions and proximity to the offense. The court upheld the admissibility of both in-court and pretrial identifications, stating that once a witness identifies the defendant in court and acknowledges prior identifications, corroborative testimony from police regarding those identifications is permissible. The court rejected the defendant’s suggestion to restrict the admission of pretrial identifications based on potential incentives to fabricate. The jury's role is to assess witness credibility and the weight of identifications, rather than to question admissibility. The Commonwealth properly questioned DeMiranda about inconsistencies between his initial denial of seeing the shooter and his later identification of the defendant. The court upheld this practice, noting that the defendant had extensively cross-examined DeMiranda on these statements and could not claim error on appeal. Regarding the search warrant, the defendant argued that the warrant application failed to meet the Aguilar-Spinelli test requirements. However, the search revealed items related to the case, including ammunition and the defendant's jacket, which he claimed to have worn during the incident. Despite the prosecutor's assertion that the defendant lied about the jacket, the court found no error in the admission of this evidence. The sufficiency of the search warrant was assessed based on the affidavit's content, which included information from three confidential informants who witnessed the events at the party. Each informant provided detailed accounts, identifying individuals involved in a fight and describing a shooting incident, thus supporting the reliability of the information gathered for the warrant. Informant no. 3 observed "Fish" at a party and followed him up the stairs, where a gunshot was heard from the third-floor doorway. The defendant, identified as "Fish," confirmed his presence at the party and his actions leading up to the shooting after being read his Miranda rights. He argued that the affidavit lacked sufficient basis for probable cause. However, the first-hand accounts from informants met the Aguilar-Spinelli standard for knowledge, as they provided consistent and detailed observations. The informants corroborated each other's statements, particularly regarding the shooter's description and actions, which aligned with the defendant's own account. This collective information established probable cause for a search warrant related to the homicide. Regarding the sufficiency of evidence for extreme atrocity or cruelty, the defendant's objection was moot since the jury also found him guilty of deliberate premeditation. Additionally, the defendant claimed that the jury should have been instructed on manslaughter based on excessive force in defense of another and reasonable provocation; however, no request for such an instruction was made, nor did the defendant object during trial. The court noted that the defense centered on misidentification, making a manslaughter instruction tactically awkward. Ultimately, the evidence did not support an instruction on excessive force or reasonable provocation, as it was not warranted based on the facts presented. The defendant contends that his videotaped statement to police indicated his belief that his stepbrother, Fausto, was being attacked and that he intervened on Fausto's behalf. Justification for using force in defense of another requires that a reasonable person in the same situation would see the intervention as necessary, and that the third person would be justified in using similar force for self-defense. Excessive force in defense may reduce a murder charge to manslaughter. However, a person who provokes an assault typically cannot claim self-defense. Additionally, a third party cannot use force in defense of another if the other person voluntarily engaged in the fight. Witness testimony revealed that Fausto initiated the confrontation by striking Lopes, and moments before the shooting, Fausto was physically dominating Sandy while bystanders tried to separate them. The defendant had sufficient time to assess the situation before firing, and despite his subjective belief that Fausto was being attacked, a reasonable person would not conclude that Fausto was justified in using deadly force at the moment of the shooting. Regarding voluntary manslaughter, an instruction is warranted if provocation leads to a loss of self-control and the killing follows before the accused has time to cool off. However, if the defendant has "cooled off" and regained self-control before the attack, a manslaughter instruction is not justified. In this case, following an altercation, the defendant left the party and returned after several minutes, indicating he had calmed down. Therefore, no manslaughter instruction was appropriate. After reviewing the case under G. L. c. 278, 33E, the court found strong evidence supporting the murder conviction and determined that any minor errors did not impact the outcome. As a result, the judgments were affirmed. At sentencing, the judge dismissed the indictment for possession of ammunition without a firearm identification card, deeming it duplicative of the indictment for possession of a loaded firearm. The Commonwealth attempted to liken this case to prior cases involving narcotics, where defendants claimed mere presence in an apartment, but security measures indicated constructive possession. In contrast, the security systems in this case were limited to the defendant’s personal space, confirming his possession of items in his room, which he did not contest. On appeal, the Commonwealth argued that evidence from a police scanner and security system indicated the defendant's consciousness of guilt, although such arguments are generally not considered if raised for the first time on appeal. The Commonwealth failed to provide evidence that the security systems were newly installed. Nevertheless, the court found that their admission was not prejudicial given the overwhelming evidence of guilt. The judge instructed the jury to consider this evidence solely for evaluating the defendant's consciousness of guilt. The defendant objected to testimony regarding police monitoring, suggesting it implied wrongdoing. The judge ruled that the investigator's actions were not improper, and during cross-examination, defense counsel highlighted inconsistencies in witness testimony regarding the presence of police. Detective Dominic Persampieri administered a photographic array to a witness, and the pretrial identifications made by two other witnesses were deemed admissible, with any issues regarding their clarity affecting weight rather than admissibility.