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Barbosa v. Gelb

United States District Court, D. Massachusetts

August 6, 2014

BRUCE GELB as Superintendent of the Souza-Baranowski Correctional Center, Respondent.


DENISE J. CASPER, District Judge.

I. Introduction

Petitioner Helder Barbosa ("Barbosa") has filed a petition for a writ of habeas corpus ("Petition") pursuant to 28 U.S.C ยง 2254 alleging that the state court denied him his Sixth Amendment right to confrontation. D. 1. Respondent Bruce Gelb opposes the Petition, arguing that Barbosa has failed to show that the state-court adjudication of his claim was contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court. For the reasons set forth below, the Court DENIES Barbosa's Petition.

II. Background

A. Factual and Procedural History

On November 15, 2004, a Suffolk County grand jury indicted Barbosa with murder in the first degree, armed assault with intent to murder, assault and battery with a dangerous weapon and unlawful firearm possession. Pet. at 1; S.A. at 30.[1] All of these charges related to the shooting of Edward Serret and Geraldo Carbuccia on the night of October 6, 2004 in Roxbury, Massachusetts. Commonwealth v. Barbosa , 457 Mass. 773, 774 (2010). Serret died from his injuries. Id . at 775. The prosecution's theory of the case was that Barbosa shot Serret and Carbuccia because Carbuccia had witnessed Barbosa commit another murder. Id . at 778.

Shortly after the shooting, between 8:00 and 8:30 p.m., Boston Police officers encountered Barbosa in the area of the shooting, whom the officers arrested after Barbosa attempted to flee. Id . at 776. After 9:00 p.m. that night, Detective Dennis Harris interviewed Barbosa at police headquarters after reading Barbosa his Miranda warnings. Id . at 777. Although Barbosa stated that he ran from the officers because he had a warrant for a motor vehicle infraction, a search of the police database revealed that there was no warrant outstanding. Id.

B. Relevant Proceedings in Superior Court

At trial, the prosecution introduced evidence that Carbuccia had told investigators that he had witnessed Barbosa fatally shoot another man in September 2004. Id . at 778.

Julie Lynch, a criminalist for the Boston Police Department described DNA samples taken from Barbosa's left boot and testified to the significance of Serret's inclusion as a "possible source of the DNA." Id . at 779. She further testified that the DNA profile found on Barbosa's boot could be found in one in thirty-five quadrillion Caucasians, one in fourteen quadrillion African-Americans, and one in 7.1 quadrillion South Eastern Hispanics. Id . Lynch also testified as to the process that DNA examiners use to test DNA samples, but did not personally participate in the testing process. Id . at 782. Another examiner, Cheryl Delatore, performed the DNA testing on the samples and prepared a table showing the characteristics of the DNA profiles, which Lynch used during her direct examination. Id . at 781-82. Lynch did, however, review Delatore's work and signed Delatore's final report regarding the testing that Delatore had performed. Id . at 782. Moreover, she used Delatore's work to form her own independent opinion about the nature of the results. Id . at 781. A jury convicted Barbosa on all charges. Id . at 774 & n. 1.

C. Barbosa's Appeal to the Supreme Judicial Court

Barbosa timely appealed. S.A. at 13. On appeal, Barbosa argues that Lynch's testimony violated his Sixth Amendment right to confrontation and:

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.

Barbosa , 457 Mass. at 775. The Supreme Judicial Court determined that Barbosa's confrontation rights were not violated by the admission of Lynch's opinion, but were violated by Lynch's testimony as to Delatore's findings and opinion and the admission of a table prepared by Delatore showing the DNA characteristics of the four tested samples. Id . at 786. However, the court found that this was not a reversible error because Barbosa did not preserve this objection at trial and in light of the other "overwhelming" evidence against Barbosa. Id . at 792-93. In addition, the court found that the trial judge did not err by admitting Carbuccia's testimony about Barbosa's prior alleged murder and an autopsy photograph. Id . at 793, 801. The Supreme Judicial Court held that the trial court correctly instructed the jury regarding the limited use of the uncharged murder evidence, but erred in giving only one part of an instruction pertaining to the alleged recording of Barbosa's interrogation, but that the error was not prejudicial. Id . at ...

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