Commonwealth v. BARBOSA, SJC-10380.

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation933 N.E.2d 93,457 Mass. 773
Docket NumberSJC-10380.
Decision Date07 September 2010

457 Mass. 773
933 N.E.2d 93



Supreme Judicial Court of Massachusetts,Suffolk.

Argued Feb. 12, 2010.
Decided Sept. 7, 2010.

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Elizabeth Doherty, for the defendant.

Elisabeth Kosterlitz, Assistant District Attorney, for the Commonwealth.



457 Mass. 774

The defendant was charged with shooting Geraldo Carbuccia and Edward Serret on October 6, 2004, injuring Carbuccia and killing Serret. On February 2, 2007, a jury in the Superior Court convicted the defendant of murder in the first degree of Serret on the theories of deliberate premeditation and extreme cruelty or atrocity, and of armed assault of Carbuccia with intent to murder. 1

Represented by new counsel, the defendant appeals from his

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convictions. On appeal, the defendant claims that his constitutional right of confrontation was violated when a senior criminalist at the Boston police department's crime laboratory testified to the results of deoxyribonucleic acid (DNA) testing that she did not conduct. The defendant also argues that the trial judge erred in admitting evidence of (1) an earlier, uncharged murder, allegedly committed by the defendant; (2) an out-of-court statement by Carbuccia and Serret that they had witnessed the earlier, uncharged murder; (3) the defendant's unequivocal, post-Miranda denials of guilt; and (4) an autopsy photograph depicting Serret's injuries. Finally, the defendant claims that the judge did not adequately instruct the jury with respect to (1) the limited permissible use of the uncharged murder evidence, and (2) the failure of the police to tape record its postarrest interrogation of him. While we conclude that there were some errors in the conduct of the trial, they do not justify reversal. After a review of the record, we also conclude that there is no basis to exercise our power under G.L. c. 278, § 33E, to reduce his murder conviction to a lesser degree of guilt or to order a new trial. Accordingly, we affirm the defendant's convictions.

1. Background. The evidence, viewed in the light most favorable to the Commonwealth, showed that, at approximately 7 p.m. on October 6, 2004, Serret and Carbuccia were walking on a street in the Roxbury section of Boston when they encountered the defendant on his bicycle. Carbuccia had seen the defendant only twice before, but he knew that Serret and the defendant were better acquainted. The three walked together to Robey Street, where the defendant left them in an alleyway, and they waited for him to return. After five to ten minutes, the defendant returned, and immediately pulled out a gun. From ten to fifteen feet away, the defendant shot Carbuccia in the shoulder, and he fell to the ground. While on the ground, Carbuccia heard three or four more shots, and then heard Serret

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say to the defendant, “Dammit, you're going to kill me.”

An eyewitness, Luis Sanches, heard three or four shots fired on Robey Street and then saw the defendant and Serret running from Robey Street onto Marshfield Street. They were punching each other as they ran down the sidewalk across the street from Sanches's house. Sanches heard one more gunshot, and Serret fell to the ground. As Serret lay on the ground, the defendant

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continued to punch him before running away and turning the corner at Norfolk Avenue.

After the police were called, a paramedic in a city of Boston ambulance, while en route to Marshfield Street, noticed Carbuccia lying near the corner of East Cottage and Robey Streets and stopped his vehicle. Carbuccia was not alert or conscious and appeared to be suffering profound shock from a gunshot to his upper extremity, with significant blood loss. The paramedic quickly put Carbuccia in the back of the vehicle and continued to Marshfield Street, where he saw Serret, who had no signs of life and obvious trauma to his interior chest, neck, and skull region. Serret was moved into another ambulance and pronounced dead, while Carbuccia survived.

Between 8 and 8:30 p.m. that evening, Officers William Hubbard and Charles MacKinnon were in uniform and patrolling the Uphams Corner area in a marked Boston police cruiser when they received a radio call to respond to the scene at Marshfield Street. Approximately one minute later, when they were on Burrell Street, about one or two blocks from Marshfield Street, they observed the defendant walking toward them, moving at a brisk pace in the direction of Clifton Street. He appeared to be short of breath, and his face was glistening with sweat. Officer Hubbard rolled down his window and asked the defendant whether he had heard gunshots. Pointing to the intersection of Burrell and Bachelder Streets, toward which the officers were headed, and making excited gestures with his hands, the defendant said, “Over there, I heard shots, they are crazy, I had to run.” As he said this, he stepped away from the cruiser.

Officer Hubbard opened his door, and the defendant immediately began to run. Officer Hubbard followed him on foot, yelling, “Boston police, stop,” but the defendant did not comply. After the defendant stumbled and lost a boot, Officer Hubbard caught up to the defendant and tackled him in the street. While still on the defendant's back, Officer Hubbard ordered him to show his hands. Instead, the defendant crawled toward the sidewalk, about five feet away. As they struggled on the ground, Officer Hubbard heard a loud splash and saw the defendant's hand emerge from a catch basin. The defendant then showed his hands to Officer Hubbard and ceased to struggle. The defendant

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was handcuffed, placed in the back of another cruiser that had arrived, and the boot that he had lost was returned to him.

In order to retrieve the item that the defendant dropped in the catch basin, the police contacted Daniel O'Brien, a supervisor of operations for the Boston Water and Sewer Commission. O'Brien attempted to retrieve the item by lowering a powerful magnet attached to a nylon rope on his truck down into the basin, “almost like fishing.” He could feel the magnet attracted to something, but could not pull up the object. One of O'Brien's employees, Kevin McNeil, then brought a “clam truck,” which was used to scoop debris from the basin and dump it onto the sidewalk. A nine millimeter Bryco semiautomatic pistol was recovered in the first

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scoop; O'Brien testified that “usually, if you find something the first scoop it hasn't been there that long.” No other items of interest were recovered from the catch basin.

At approximately 9:25 p.m. that night, Detective Dennis Harris, with Sergeant Detective Thomas O'Leary also present, interviewed the defendant at Boston police headquarters. Detective Harris read the defendant his Miranda warnings, and the defendant initialed and signed a Miranda warnings sheet. The interview was not tape recorded. The defendant was sober, alert, and calm. He stated that he had just left a bar on Shirley Street and was at the intersection of Shirley and George Streets when he heard gunshots. When the police pulled up next to him in their cruiser and he saw the officers leaving the cruiser, he decided to run because he believed there was a warrant for his arrest based on a motor vehicle infraction. 2 The defendant then changed his previous account, saying that he was going to, not coming from, the bar on Shirley Street. He initially said his route included Marshfield Street, but then denied having been on Marshfield Street that evening. When asked directly, the defendant denied any involvement in the shootings and denied throwing anything into the catch basin.

Detective Harris left the interview room at 10:05 p.m., called an officer still at the scene, and learned that a firearm had been recovered from the catch basin. Detective Harris returned to the interview room and informed the defendant that a firearm was

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found and that he was being charged with its unlawful possession. When he heard this, the defendant dropped his head to his knees. The interview ended shortly thereafter.

When Detective John Callahan interviewed Carbuccia on October 11 at the hospital, Carbuccia stated that he did not know who had shot him because he “didn't get a good look” at the shooter. 3 On October 16, when Carbuccia was out of the hospital and at his mother's house, Detective Callahan again spoke with Carbuccia, but Carbuccia provided no new information. Two days later, however, after Carbuccia had contacted Detective Callahan's partner, Sergeant Detective Richard Daley, Carbuccia gave a tape-recorded statement in which he said that the defendant shot him and selected a photograph of the defendant from an array of eight photographs. 4

It was not until Carbuccia met with the district attorney on December 21, 2006, in preparation for trial that Carbuccia first said that he had witnessed the defendant shoot another man on September 21, 2004, approximately two weeks before the defendant shot him and Serret. 5 At trial, Carbuccia testified that on September 21, 2004, he was with Serret when he saw the defendant, with two other persons, walk past them on a sidewalk on Dudley Street

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in Roxbury. Serret, who knew the defendant, asked him, “What up?,” but the defendant replied that he was unable to talk. Serret and Carbuccia then watched as the defendant shot a Hispanic man in the head after the defendant and his two companions had persuaded the man to exit his parked vehicle. The man fell onto the hood of the vehicle and died.

That night, Serret and Carbuccia told Serret's mother that they “saw something.” After Serret died, three pieces of paper

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