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Commonwealth v. Barbosa

Supreme Judicial Court of Massachusetts, Suffolk

August 25, 2017


          Heard: February 10, 2017.

         Indictments found and returned in the Superior Court Department on May 23, 2012.

         A motion to dismiss was heard by Charles J. Hely, J., and the case was tried before Christine M. McEvoy, J.

          Patricia A. DeJuneas for the defendant.

          Teresa K. Anderson, Assistant District Attorney (Patrick M. Haggan, Assistant District Attorney, also present) for the Commonwealth.

          Present: Gants, C.J., Hines, Lowy, & Budd, JJ.[1]

          HINES, J.

         On February 23, 2012, Anthony Depina was shot and killed outside a bar in the Roxbury section of Boston. The defendant, Jason Barbosa, was indicted on the charges of murder in the first degree and unlawful possession of a firearm as an armed career criminal[2]. The Commonwealth proceeded against him on the theory of deliberate premeditation. Specifically, the Commonwealth's theory at trial was that the shooting was committed as part of a joint venture wherein the defendant was a knowing participant, either as the shooter or as an accomplice. The jury convicted the defendant of murder in the first degree, and did not specify whether they found the defendant guilty as a principal or as a joint venturer.

         On appeal, the defendant argues that (1) the Commonwealth presented insufficient evidence to support his conviction as both the shooter and as a knowing participant with shared intent to kill; (2) the judge abused her discretion in admitting prejudicial gang evidence; (3) the prosecutor's opening statement and closing argument were improper; (4) the judge allowed inadmissible statements, which unfairly bolstered the Commonwealth's theory of gang retaliation and allowed improper interpretive testimony; (5) trial counsel provided ineffective assistance of counsel; and (6) the motion judge erroneously denied the defendant's motion to dismiss the indictments. We affirm the conviction and decline to grant relief pursuant to G. L. c. 278, § 33E.


         We recite the relevant facts the jury could have found. We reserve certain details of the evidence presented to the grand jury for later discussion of the defendant's motion to dismiss. The defendant and the victim had ties to rival Cape Verdean gangs. The defendant was a member of the Woodward Avenue gang, and the victim was associated with the Wendover Street gang. Although the groups were aligned at one point, around 2005, the relationship between them deteriorated and they became involved in an ongoing feud active through February, 2012, when the victim was murdered.

         On December 24, 2011, the defendant and two other members of the Woodward Avenue gang, Kenneth Lopes and Manuel Montrond, were involved in an altercation with several members of the Wendover Street gang, including the gang's leader, at a gasoline station in Boston. The defendant and Lopes were injured during the altercation, but neither cooperated with the police investigation.

         Two months later, on February 23, 2012, around 9:30 P.M., the defendant, who was on probation and wearing a global positioning system (GPS) tracking bracelet, and Montrond arrived at a bar near the intersection of Burrell Street and Norfolk Avenue in Roxbury in a black Cadillac CTS rented by Montrond. Minutes later, Lopes alighted from a different vehicle. Montrond signaled Lopes by flashing his headlights twice. The three men entered the bar.[3] The actions of the defendant, Montrond, and Lopes were captured by the bar's eleven video surveillance cameras. The cameras inside the bar were continuously recording, while the cameras outside the bar were motion-activated. Analysis of the time stamp on the video surveillance and the defendant's GPS data[4] revealed that the time stamp on the video recordings was approximately four minutes and thirty seconds fast. Other actions that were relevant were tracked by the coordinates of the GPS and involved streets that were near the bar.

         Once inside the bar, the men socialized with the defendant's ex-girl friend, and her cousin. A few minutes after the men arrived, Montrond left the bar and went outside to sit in the Cadillac. The victim walked by and waved at Montrond on his way into the bar.

         Although the bar is located in territory claimed by Woodward Avenue gang members, members of the Wendover Street gang, including the victim, also patronized the bar. The defendant and the victim grew up together and were friends when they were younger, but their relationship changed when the defendant, who had been affiliated with the Wendover Street gang, began to associate with members of the Woodward Avenue gang. Despite the change in their relationship, when the victim arrived at the bar just before 10 P..M. with Maria Teixeira, the victim greeted the defendant with a handshake and then walked to the end of the bar.

         The defendant and the victim each left the bar at different times and returned without incident, including when the defendant was in Montrond's vehicle while the victim walked by.

         At one point, however, the defendant left the bar and drove around, returning to the area of the bar at around 10:20 P..M., and then drove to Woodward Avenue. The defendant returned to Burrell Street and walked toward the bar. The victim and Teixeira left the bar just before 10:30 P..M. and stopped by the victim's home before leaving again. Meanwhile, the defendant appeared to be searching the area; he walked down Burrell Street, where the victim's vehicle had been parked, and then turned around, returning to his vehicle and driving to Albion Street, where Teixeira lived. At around 10:45 P.M., the defendant returned to the area of Burrell Street and Norfolk Avenue, followed by Montrond's rented black Cadillac. The defendant alighted from a small, dark-colored sport utility vehicle (SUV) and went inside the bar. A black Cadillac followed the vehicle the defendant had been in. Once inside the bar, the defendant looked around the interior of the establishment, searching the bar area, pool room, lounge, and bathroom before leaving less than a minute after arriving.

         At around 11 P.M., the victim and Teixeira returned to the area of Burrell Street and Norfolk Avenue near the bar. The victim previously had made plans with Joseph Rosa, a member of the Wendover Street gang, and two women to meet at the bar for drinks. The victim and Teixeira arrived in the victim's vehicle and parked on Burrell Street, with the driver's side of the vehicle next to the sidewalk, near a dark alley. Although the plan was to go have drinks at the bar, the people the victim was meeting decided not to go inside. Instead, the victim and Teixeira walked over to Rosa's vehicle and spoke with the occupants through the passenger-side window while standing on the sidewalk. While the group was talking, the defendant pulled up driving a small black SUV, and stopped alongside Rosa's vehicle. The defendant said something to the effect of, "You don't belong here." The victim said something back to the defendant, and the defendant quickly drove away, followed by the black Cadillac.

         As a result of the interaction with the defendant, Rosa and one of the women encouraged the victim to leave, but he refused, insisting that he was a "tough kid" and that no one could tell him where he can go. Rosa and the two women left. The victim and Teixeira went back to the bar, intending to have a drink. Teixeira went inside the bar to use the bathroom; the victim stayed outside and smoked a cigarette. The defendant drove past the bar slowly in the small black SUV. As the defendant drove by, the victim stood by the front door of the bar and pointed at the defendant.

         Seconds later, the victim went inside the bar; he first went to the bathroom and then waited for Teixeira at the bar, declining a drink. When Teixeira joined him at the bar, he told her that he had changed his mind and wanted to leave. The victim did not tell Teixeira why he had changed his mind and appeared normal, but a little "mad." As the victim and Teixeira left the bar and walked to his vehicle, they had a conversation about the earlier interaction with the defendant at Rosa's vehicle. As Teixeira and the victim approached his vehicle, headlights from a vehicle up the street flashed four times. The victim looked toward the street. Teixeira heard him use the defendant's nickname and say, "Are you for real, Little J?" Teixeira looked down the street and saw an individual walking in the middle of the street, but she could not see the individual's face.[5] Immediately thereafter, another individual fired multiple gunshots at the victim from the nearby alley.[6] The victim was shot in the head and torso, and he fell to the ground, face up, in between the driver's side door of his vehicle and the curb.

         At or about the time of the shooting, which was approximately 11:10:43 P.M., the defendant's GPS data points[7]established that at 11:10:05 P.M., he was located on Burrell Street, near Batchelder Street, traveling zero miles per hour. At 11:10:36 P.M., the defendant was on Burrell Street headed toward Norfolk Avenue, near the bar, traveling two miles per hour. There was a missing data point directly after the murder, which should have recorded at 11:11:06 P.M. Seconds after the shooting, the dark-colored SUV drove down Burrell Street, turned right on Norfolk Avenue, and then took another right onto Marshfield Street.[8] At that time, 11:11:35 P.M., the defendant's GPS coordinates show him traveling on Marshfield Street at thirty-eight miles per hour. Minutes after the shooting, the defendant returned to a house on Woodward Avenue.[9]

         After Teixeira heard the gunshots, she ran across the street and back inside the bar. Although Teixeira saw the victim go down, she did not realize he had been shot when she fled the gunfire. As she re-entered the bar, Teixeira kept saying "shots fired, shots fired." Eventually, she went back outside to discover the victim's body, lying face-up between his vehicle and the curb. The bartender telephoned 911.

         When police officers arrived at around 11:15 P.M., Teixeira was hysterical. Officers had to physically restrain her as well as hold her upright because she was distraught, screaming, and crying. She was transported to Boston police headquarters. On the way, she stated, "They're going to kill me for this." In the interview room at the police station, she was still so emotionally upset that she became physically ill. Shortly thereafter, she was asked some questions. She stated, "These people want to kill people because of the fucking street." After she identified the victim, Teixeira announced, "I'm going to die for this. I'm going to tell you anyway." In response to the detective's question "Who shot?, " Teixeira replied, "Little J, Jason."

         The victim suffered gunshots wounds to the head and torso, both of which were independently fatal and caused his death within seconds. Although ballistics evidence was recovered from the victim's body and the crime scene, analysis was inconclusive as to whether the bullet fragments were fired from the same weapon. The shell casings were identified as nine millimeter Lugar caliber and were fired from the same semiautomatic pistol. No firearm was recovered in connection with the victim's shooting.

         As part of the investigation, detectives sought to identify and locate the Cadillac that Montrond had rented and the small black SUV the defendant was driving on the night of the shooting. The small black SUV was never located. Although the rental contract on the Cadillac was set to end on February 29, 2012, Montrond returned the vehicle the day after the shooting, canceled the contract, and established a new rental contract for a 2012 Buick Lacrosse.[10]

         Two days after the shooting, the defendant and Montrond were stopped by police, who seized the defendant's cellular telephone. Pursuant to a search warrant, detectives searched the defendant's cellular telephone and telephone records. The telephone records established that approximately two minutes before the shooting, the defendant telephoned one of the leaders of the Woodward Avenue gang, and that approximately one minute after the shooting, at 11:12 P.M., the defendant made a telephone call to another leader of the Woodward Avenue gang. Between 11:13 P.M. ...

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