Barboza v. Bissonnette

• Decision Date: 20 April 2006
• Docket Number: Civil. Action No. 03-10600-JLT.
• Parties: George BARBOZA, Petitioner, v. Lynne BISSONNETTE, Respondent.
• Court: U.S. District Court — District of Massachusetts

434 F.Supp.2d 25

George BARBOZA, Petitioner, v. Lynne BISSONNETTE, Respondent.

Civil. Action No. 03-10600-JLT.

United States District Court, D. Massachusetts.

April 20, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert L. Sheketoff, Boston, MA, for Petitioner.

David M. Lieber, Assistant Attorney General, Boston, MA, for Respondent.

ORDER

TAURO, District Judge.

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 20 Report and Recommendations Action on motion: DENIED.(Abaid, Kim) (Entered: 05/17/2006)

REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

DEIN, United States Magistrate Judge.

I. INTRODUCTION

On April 24, 1998, the petitioner George Barboza ("Barboza" or the "petitioner") was convicted by a Middlesex County jury of four counts of rape of a child under sixteen in violation of Mass. Gen. Laws ch. 265, § 23, and two counts of indecent assault and battery on a child under fourteen in violation of Mass. General Laws ch. 265, § 13B. Of relevance to the instant matter is that during the trial tape recordings made by the victim's father, without consent, of two telephone conversations between Barboza and the minor were introduced into evidence over Barboza's objection. In addition, Barboza was precluded from cross-examining the victim and his mother about the victim's family's goals in contacting and meeting with a civil attorney, by which testimony Barboza aimed to establish bias.

Barboza's conviction was affirmed by the Massachusetts Appeals Court in Commonwealth v. Barboza, 54 Mass.App.Ct. 99, 763 N.E.2d 547 (2002), and his application for leave to obtain further appellate review ("ALOFAR") by the Massachusetts Supreme Judicial Court ("SJC") was denied without opinion. Commonwealth v. Barboza, 436 Mass. 1104, 768 N.E.2d 1086 (2002) (table). Barboza filed a timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the admission of the tape recordings as being violative of the federal wiretapping statute, Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510 ("Title III"), and challenging the limitation on cross-examination as being a violation of his Sixth Amendment right of confrontation. For the reasons detailed herein, this court recommends to the District Judge to whom this case is assigned that Barboza's Petition for Writ of Habeas Corpus be DENIED.

II. STATEMENT OF FACTS¹

The Underlying Crime

The relevant facts, as recited in the Appeals Court decision, are as follows.

The victim (referred to by the Appeals Court by the pseudonym "Tom"), was born on May 7, 1981. Barboza, 54 Mass.App. Ct. at 101, 763 N.E.2d at 550. The victim's father worked for Barboza, but the family had little contact with him until approximately 1993, when the family moved to the same town as Barboza. Thereafter, there was frequent contact between the family and the petitioner, including occasions when the victim stayed overnight with the petitioner in his home. Id. In 1995, the victim visited the petitioner alone in Florida over February vacation, and in 1996 the victim and his family visited with the petitioner in Florida. During this visit, the victim and petitioner shared one hotel room while the parents and another child stayed in another room. Id. It was after this visit that the parents began to feel uneasy about their son's close relationship with Barboza. Id. After the family returned from Florida in December 1996, the petitioner called the victim regularly on the phone. Following these calls, the victim would be unusually quiet, and would be secretive about the calls. Id.

Because of the parents' concern, the victim's father bought a tape recorder he had seen in a magazine to secretly record telephone conversations at the house. Id. The recorder was installed without the victim's knowledge. Id. In all, four conversations between the victim and Barboza were recorded: two on January 30, 1997, one on February 2, 1997 and one on February 5, 1997. Id. at 101-102, 763 N.E.2d at 550. As the Appeals Court found, "[i]n all of the conversations, the defendant declared that he loved Tom, and in at least the last three conversations there are references to masturbation. Further, in the second call on January 30, the defendant mentions `making love.'" Id. at 102, 763 N.E.2d at 550.

After the calls on January 30, 1997, the victim's father met with members of the police department, and played them portions of the second taped conversation. Id. at 102, 763 N.E.2d at 550-51. On February 5, the parents confronted the victim, "informing him that they knew there `was some kind of sexual thing going on' between him and ... [Barboza]." Id. at 102, 763 N.E.2d at 551. On February 7, the victim and his father went to the district attorney's office. During that meeting, the father was asked by the district attorney's office not to tape any more calls, but he did so anyway. Id.

A police officer, with the victim's consent, subsequently listened in on two additional telephone conversations between the victim and the petitioner. Id. These were not recorded and were not the subject of the motion to suppress brought before the trial court, although they were included in his appeal. The petitioner was arrested upon his return from Florida on February 14, 1997. Id.

The Criminal Proceedings

The petitioner was indicted by a Middlesex Country grand jury on March 7, 1997. He moved to suppress the tape recordings, and a hearing was held. The parents and victim testified to the facts as detailed above. Id. at 101, 763 N.E.2d at 550. At the end of the hearing, "the motion judge stated that there's no question in the Court's mind at all that the parents' primary concern was their son and that everything they did was not to assist law enforcement in their minds but to try to figure out what was going on and what's right for their son and for their family." Id. at 102, 763 N.E.2d at 551 (internal punctuation omitted). The motion judge denied the motion to suppress as to the two conversations on January 30, which had been recorded before any contact with police, but allowed the motion as to the subsequent recorded conversations. Id. The judge reasoned that although the parents had been told not to record any more conversations, "under the circumstances, silence by the police made the parents unwitting agents of the police for the purposes of continuing to record telephone calls from the defendant." Id. at 102-03, 763 N.E.2d at 551.

The Testimony at Trial

The victim, his parents, the police officer who listened in on the telephone conversations² and the defendant testified at trial. The victim's testimony included "descriptions of numerous acts of indecent touching, and oral and anal sex committed by the defendant." Id. at 100, 763 N.E.2d at 549-50. The Appeals Court characterized the evidence against the petitioner as being "overwhelming" and summarized it as follows:

[The evidence] included the tape recordings of conversations between Tom and the defendant; Tom's detailed description of indecent touching and the oral and anal sex acts committed by the defendant; a sentimental greeting card the defendant sent to Tom; and the defendant's own testimony, including his attempts (which the jury could well have found implausible) to explain parts of the recorded conversations in which he refers to "making love" and discusses masturbation.

Id. at 110, 763 N.E.2d 547, 763 N.E.2d at 556.³

During cross-examination at trial, the victim was asked "whether he met with a `private civil lawyer.'" Id. at 109, 763 N.E.2d at 555. The government's objection to this questioning was sustained. The victim's mother was asked during her cross-examination whether she "took [Tom] to see an attorney" but the trial judge cut off this line of questioning as well. Id. By so doing, Barboza argues, he was precluded from developing the testimony to establish that the victim and his family had a motive to lie, i.e., that they hoped to sue the petitioner in a civil suit for monetary damages. See id. at 109-11, 763 N.E.2d 547, 763 N.E.2d at 555-56.

The Appeal

Barboza filed a timely appeal with the Appeals Court. Therein he argued that "(1) the recordings of the two earlier calls should have been suppressed; (2) other evidence which he claims was obtained as a result of the recordings should have been suppressed as `fruit of the poisonous tree'; (3) his attorney's cross-examination of witnesses for bias was improperly limited; and (4) ineffective assistance of counsel" on the grounds that his counsel had not raised the issue whether the recordings violated the federal wiretap law. Id. at 100, 105, 763 N.E.2d at 550, 553. The Appeals Court affirmed the convictions. Of relevance to the instant habeas petition, the Appeals Court found that the admission of the recordings did not violate either the Massachusetts wiretap statute, Mass. Gen. Laws ch. 272, § 99 or Title III and that, therefore, it was not ineffective assistance of counsel to fail to raise the federal law before the trial judge. In addition, the Appeals Court concluded that the limitation on cross-examination at trial was in error, because the defendant should have been able to explore even a remote possibility of bias. Nevertheless, the court found that "the error was not materially prejudicial" and that the court could "conclude with assurance that the judge's error did not substantially sway the outcome of the case." Id. at 111, 763 N.E.2d at 556.

The petitioner filed a timely ALOFAR. Therein he raised the following issues:

1. Did the trial court err by refusing to suppress tape recordings that were made in violation of this state's criminal law and the federal and state wiretap statutes by private parties; or, does Commonwealth v. Santoro, 406 Mass. 421, 548 N.E.2d 862 (1990), put all such conduct beyond the reach of the exclusionary rule?

2. Did the trial court err by not suppressing the fruits of the illegal recordings?

3. Did the...