Commonwealth v. Barbosa

• Citation: 463 Mass. 116,972 N.E.2d 987
• Decision Date: 06 August 2012
• Docket Number: SJC–10930.
• Parties: COMMONWEALTH v. Manuel James BARBOSA.
• Court: United States State Supreme Judicial Court of Massachusetts

463 Mass. 116

972 N.E.2d 987

COMMONWEALTH

v.Manuel James BARBOSA.

SJC–10930.

Supreme Judicial Court of Massachusetts,

Plymouth.

Argued Feb. 10, 2012.

Decided Aug. 6, 2012.

Joseph A. Hanofee, Northampton, for the defendant.

Mary Lee, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., CORDY, BOTSFORD, DUFFLY, & LENK, JJ.

CORDY, J.

Shortly after midnight on December 26, 2008, an individual fired a single shot from a .38 caliber firearm into a dark and crowded party in Brockton. The bullet struck the victim, Hercules Dossantos, in the back, and he was pronounced dead three hours later. Three attendees identified the defendant as the shooter, and he was subsequently indicted for murder in the first degree, G.L. c. 265, § 1, and for four firearms offenses: carrying a firearm without a license in violation of G.L. c. 269, § 10( a); carrying a loaded firearm in violation of G.L. c. 269, § 10( n); possession of ammunition without a firearm identification card in violation of G.L. c. 269, § 10( b); and discharging a firearm within 500 feet of a building in violation of G.L. c. 269, § 12E. A jury found the defendant guilty on all charges, including murder in the first degree on theories of both premeditation and extreme atrocity or cruelty.¹

The defendant raises numerous claims of error, principally that the judge erred by permitting the prosecution to introduce a nine millimeter round of ammunition and a magazine clip that were found in the defendant's apartment. Although the judge instructed the jury that these items could be considered only to show the defendant's familiarity with or access to firearms, the defendant argues that any probative value this evidence might have had was substantially outweighed by its prejudicial effect, where the seized ammunition and magazine could not have been used in conjunction with the .38 caliber murder weapon and the items were found in a common area of the apartment that was not specifically connected to the defendant. In the same vein, the defendant claims that the judge improperly permitted the prosecution to introduce evidence of security measures found in the defendant's apartment consisting of three pit bull dogs, a security camera trained on the apartment's front door and connected to a television in the defendant's bedroom, and a police scanner tuned to the Brockton police channel.

The defendant further claims that the judge incorrectly permitted a State trooper to testify to the substance of a conversation between the defendant and the key identifying witness, Jose DeMiranda, in which the defendant offered to pay DeMiranda to leave the country in exchange for recanting his testimony. The trooper's recollections of DeMiranda's statements were hearsay, and the judge admitted them solely as prior consistent statements that bore on DeMiranda's credibility. The defendant further argues that the State trooper should not have been permitted to testify about DeMiranda's refusal to sign an affidavit recanting his testimony, which was observed by a different police officer acting undercover, because the testimony could have inflamed the jury by suggesting that the defendant wrongfully pressured the witness.

We conclude that although the judge erred in the above evidentiary rulings, they were not prejudicial to the defendant. The Commonwealth's case was strong. Three eyewitnesses identified the defendant as the shooter, and additional eyewitnesses corroborated their accounts of the events at the party. The defendant's telephone records corroborated DeMiranda's account of the defendant's actions after leaving the party. The defendant's attempt to pay DeMiranda to leave the country demonstrated the defendant's consciousness of guilt. Although each of the three identifying eyewitnesses was impeached with prior inconsistent statements, the jury were entitled to credit their statements at trial, which were largely consistent with each other. Against this substantial evidence, the admission of evidence on the collateral matters to which the defendant objects (and which was appropriately accompanied by limiting instructions) could not have appreciably swayed the jury. See Commonwealth v. Martinez, 431 Mass. 168, 174–175, 726 N.E.2d 913 (2000); Commonwealth v. Flebotte, 417 Mass. 348, 353, 630 N.E.2d 265 (1994), and cases cited.

We reject the defendant's remaining challenges, and we decline to exercise our extraordinary power under G.L. c. 278, § 33E, to reverse the defendant's convictions and order a new trial. We therefore affirm.

1. Background. We recite the facts the jury could have found, reserving certain details for later discussion. On December 25, 2008, Alina Miranda and Maria Andrade hosted a party in their third-floor apartment at 88 Weston Street in Brockton. The apartment was accessed by two staircases. A front staircase opened into a bedroom, and a rear staircase opened into the kitchen. During the party, a “disc jockey” played music, the lights were off in the living room, and a “disco ball” was flashing.

Approximately fifteen to twenty young adults attended the party. Many of the partygoers were Cape Verdean and referred to each other by nicknames. The defendant, also known as “Fish,” arrived with three relatives, including his stepbrother Admilson “Fausto” Rodriguez. The defendant was godfather to Maria Andrade's infant daughter. The defendant was wearing a black leather jacket with patches of various colors. Nobody else at the party wore a similar jacket. His long hair was tied back in a ponytail.

Dossantos, the victim, arrived with five friends, including his brother, Paulo Gomes, and his friend, Sandy Lopes. Lopes's former girl friend was also at the party with their infant daughter. Lopes, who came to the party inebriated, started to dance with his infant daughter in the living room and threw her in the air. The baby hit her head on the ceiling and fell to the floor. Miranda ran to the screaming baby and attempted to pick her up. Lopes grabbed the baby's feet. Miranda told Lopes that she wanted to take the baby into the bedroom to make sure that she was not hurt. Lopes refused to release the baby, stating that he was the father and he would take care of her.

The defendant intervened and grabbed Lopes by the throat. As the defendant attempted to seize the baby, Lopes punched the defendant in the eye. The defendant eventually wrested the baby away and handed her to Miranda. He walked away, angry. Fausto then entered the fight. Fausto was on top of Lopes, beating him. Many of the partygoers, including the victim, unsuccessfully tried to stop the fight. The defendant brandished a silver gun in his left hand; people shouted “stop.” The defendant then left the apartment by the back stairs.

Jose DeMiranda also left the apartment while the fight was ongoing. He knew both Fausto and Lopes and did not want to get involved in the fight. Outside, DeMiranda saw the defendant behind the house. The defendant asked DeMiranda whether the fight was still ongoing, and DeMiranda responded in the affirmative. The defendant then climbed back up the rear staircase toward the kitchen. DeMiranda followed. Four to five minutes had elapsed since the altercation over the baby. When the defendant reached the landing at the top of the staircase, he raised the gun in his left hand, pointed toward the living room, and fired one shot. He then ran down the stairs, past DeMiranda, and outside. DeMiranda reached the apartment's kitchen a couple of seconds later and quickly followed the defendant down the stairs.

The defendant made a telephone call and told someone to pick him up. The defendant's telephone records showed that he had called a number that belonged to the mother of Nicholas Loring. Loring lived in the defendant's apartment and was the defendant's sister's boy friend. Two men arrived in a vehicle and picked up the defendant and DeMiranda.

Back at the party, the victim staggered to a bedroom, where he complained that his back was burning. He fell to the ground and cycled in and out of consciousness until the police arrived fifteen minutes later. The victim was taken to a hospital, where he was pronounced dead at 3 a.m. The single gunshot had severed two major blood vessels. Testing of gunshot residue on the victim's jacket showed that the distance between the muzzle of the firearm and the victim's jacket was three feet or less.

A spent casing of .38 caliber ammunition for an automatic weapon was found on the kitchen floor. The bullet taken from the victim's body during the autopsy was consistent with .38 caliber automatic weapons.

The Brockton police thereafter obtained a search warrant for the defendant's apartment. The defendant lived in a two-bedroom apartment with his girl friend; his sister, Loring, and their child; and another man who slept on the couch. While executing the warrant, the police found one round of nine millimeter ammunition under the stove and a magazine for a nine millimeter firearm inside a man's shoe in a storage closet. No attempt was made to match the shoe with any of the occupants of the apartment. Inside the defendant's bedroom, police found a large television connected to a security camera displaying the front door of the building and a police scanner tuned to the channel used by the Brockton police. Three pit bull puppies were found in the apartment.

2. Admission of ammunition, magazine, and security measures. The defendant argues that the nine millimeter ammunition, magazine, and security measures were improperly admitted in evidence. We agree, but conclude that the error did not cause prejudice to the defendant.

After conducting a voir dire on the compatibility of the ammunition and magazine with .38 caliber weaponry, the judge concluded that the ammunition and magazine could not have been used in conjunction with the murder weapon. Consequently, the judge ruled that the ammunition and magazine would not be admissible on...