Commonwealth v. Barbosa (Lawyers Weekly No. 11-001-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 16-P-1030 Appeals Court COMMONWEALTH vs. ADERITO BARBOSA. No. 16-P-1030. Suffolk. September 8, 2017. – January 3, 2018. Present: Rubin, Neyman, & Henry, JJ. Practice, Criminal, Motion to suppress. Constitutional Law, Search and seizure. Search and Seizure, Search incident to lawful arrest. Indictments found and returned in the Superior Court Department on June 30, 2015. A pretrial motion to suppress evidence was heard by Kenneth W. Salinger, J. An application for leave to prosecute an interlocutory appeal was allowed by Fernande R.V. Duffly, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. Donna Jalbert Patalano, Assistant District Attorney, for the Commonwealth. Michael P. Doolin for the defendant. NEYMAN, J. After an evidentiary hearing, a Superior Court judge allowed, in part, the defendant’s motion to suppress evidence. A single justice of the Supreme Judicial Court allowed the Commonwealth’s application for leave to file an interlocutory appeal, and reported the matter to this court. See Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). The sole issue is whether the judge erred in suppressing a statement made by the defendant based on limitations set forth in G. L. c. 276, § 1, and Commonwealth v. Blevines, 438 Mass. 604 (2003), regarding the use of evidence seized incident to an arrest. We reverse. Background. The parties do not contest the judge’s comprehensive findings of fact, which we summarize, supplemented where appropriate by the testimony from the motion hearing.[1] See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). This case stems from an investigation into the crime of trafficking of persons for sexual servitude, G. L. c. 265, § 50 (human trafficking),[2] which was prompted by an illicit online advertisement on the Web site Backpage.com (Backpage). On May 7, 2015, as part of that investigation, Detective Ludwik Bartkiewicz, along with State and Federal law enforcement officers, went to the Park Plaza Hotel (hotel) in Boston to locate the person who had posted the advertisement on Backpage.[3] Around 10:00 A.M., the officers met the hotel’s head of security on the first floor of the hotel. One of the officers, Agent Tony Freitas, telephoned the number listed in the Backpage advertisement. A woman answered and told him to come to the fifth floor via the service […]
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 […]
Barbosa v. Commonwealth (Lawyers Weekly No. 10-137-16)
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-11760 RICARDO BARBOSA vs. COMMONWEALTH. August 26, 2016. Supreme Judicial Court, Superintendence of inferior courts. Bail. Ricardo Barbosa appeals from a judgment of the county court denying his petition for relief under G. L. c. 211, § 3, by which he sought a reduction in bail. We affirm. Barbosa stands indicted on charges of rape and of being a habitual criminal. A judge in the Superior Court set his bail at $ 25,000, with GPS monitoring and other conditions.[1] Barbosa’s G. L. c. 211, § 3, petition followed. A single justice of this court denied relief without a hearing. “This court’s review of the judgment of the single justice is ‘limited to correcting errors of law and abuse of discretion.’” Leo v. Commonwealth, 442 Mass. 1025, 1026 (2004), quoting Preston v. Commonwealth, 391 Mass. 1017, 1017 (1984). There was no error of law or abuse of discretion in this case. The amount of bail was not excessive merely because Barbosa could not afford to post it or because he will be compelled to remain in pretrial detention. See Leo, supra. On the record before us, we see no basis to disturb the judge’s implicit finding that the amount was necessary to secure Barbosa’s presence at trial. Finally, as to Barbosa’s challenge to the applicable bail statute itself, we have previously held that G. L. c. 276, § 57, does not violate the constitutional guarantee of due process. Querubin v. Commonwealth, 440 Mass. 108, 110-120 (2003). It is clear from the record that Barbosa had ample opportunity to be heard on the subject of bail. The single justice was well within his discretion to deny extraordinary relief. Judgment affirmed. Ricardo Barbosa, pro se. Michael McGee, Assistant District Attorney, for the Commonwealth. [1] During the pendency of this appeal, the judge reduced Barbosa’s bail to $ 20,000, with GPS monitoring and other conditions. The Commonwealth suggests that this renders this appeal moot. We disagree, as Barbosa has sought not merely a $ 5,000 reduction in the amount of bail, but to be released on his own recognizance. In Al Hajj Maliki Almahdi v. Commonwealth, 450 Mass. 1005 (2007), on which the Commonwealth relies, the defendant had in fact been released on his own recognizance, and the charges against him had been disposed of, before the court decided his […]