Commonwealth v. Barbosa (Lawyers Weekly No. 10-144-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11720 COMMONWEALTH vs. JASON BARBOSA. Suffolk. February 10, 2017. – August 25, 2017. Present: Gants, C.J., Hines, Lowy, & Budd, JJ.[1] Homicide. Joint Enterprise. Evidence, Joint venturer, Expert opinion, Hearsay, Spontaneous utterance, Opinion. Practice, Criminal, Capital case, Opening statement, Argument by prosecutor, Assistance of counsel, Indictment. 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. 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. Background. 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 […]