Commonwealth v. Rosario (Lawyers Weekly No. 10-075-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12115 COMMONWEALTH vs. VICTOR ROSARIO. Middlesex. November 8, 2016. – May 11, 2017. Present: Gants, C.J., Botsford, Hines, Gaziano, Lowy, & Budd, JJ.[1] Burning a Dwelling House. Homicide. Fire. Constitutional Law, Admissions and confessions, Voluntariness of statement. Evidence, Admissions and confessions, Voluntariness of statement. Practice, Criminal, New trial, Admissions and confessions, Voluntariness of statement. Indictments found and returned in the Superior Court Department on June 30, 1982. A motion for a new trial, filed on October 19, 2012, was heard by Kathe M. Tuttman, J. The Supreme Judicial Court granted an application for direct appellate review. Jessica Langsam, Assistant District Attorney (Thomas F. O’Reilly, Assistant District Attorney, also present) for the Commonwealth. Lisa M. Kavanaugh, Committee for Public Counsel Services (Andrea Petersen also present) for the defendant. Chris Fabricant, Karen Newirth, James C. Dugan, Vincent P. Iannece, Lara S. Kasten, & Kathryn J. Ranieri, of New York, Stephanie Roberts Hartung, & Sharon L. Beckman, for New England Innocence Project and others, amici curiae, submitted a brief. BUDD, J. The defendant, Victor Rosario, was convicted in 1983 of one count of arson in a dwelling house and eight counts of murder in the second degree; all the charges stem from a fire that occurred in 1982. In 2012, the defendant filed the motion for a new trial at issue here, arguing principally that newly discovered evidence regarding fire science and the conditions under which he confessed to the crime warranted a new trial. Following an evidentiary hearing, a Superior Court judge who was not the trial judge allowed the motion, ruling that the defendant had presented newly discovered evidence, which cast real doubt on the justice of his convictions. The Commonwealth appealed. We allowed the defendant’s application for direct appellate review, and we affirm the order allowing the defendant’s motion for a new trial, but on different grounds.[2] Background. 1. Evidence presented at trial. We summarize relevant evidence introduced at trial. The fire started on the first floor of a multi-unit apartment building in Lowell, and was accompanied by the sound of breaking glass. The first telephone call to 911 was placed shortly after 1 A.M. on March 5, 1982. Police officers arrived, minutes later, to find the building “fully engulfed in flames.” It took […]
Commonwealth v. Rosario (and a companion case) (Lawyers Weekly No. 11-156-16)
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 15-P-752 Appeals Court 15-P-753 COMMONWEALTH vs. CARLOS ROSARIO (and a companion case[1]). Nos. 15-P-752 & 15-P-753. Essex. May 17, 2016. – October 26, 2016. Present: Cypher, Blake, & Henry, JJ. Controlled Substances. Practice, Criminal, Identification of defendant in courtroom, Required finding, Disclosure of evidence. Constitutional Law, Identification. Due Process of Law, Identification. Evidence, Identification, Chain of custody, Disclosure of evidence, Cross-examination. “School Zone” Statute. Complaints received and sworn to in the Lawrence Division of the District Court Department on May 16, 2014. The cases were tried before Mark A. Sullivan, J. Daniel K. Sherwood for Carlos Rosario. Stephen E. Meltzer for Lylibeth Rosario. Quentin Weld, Assistant District Attorney, for the Commonwealth. CYPHER, J. In this consolidated appeal, the defendants, Carlos Rosario and Lylibeth Rosario, appeal from their convictions for distribution of heroin in violation of G. L. c. 94C, § 32(a), and a drug violation near a school or park in violation of G. L. c. 94C, § 32J. In addition, Carlos[2] was charged with possession of heroin in violation of G. L. c. 94C, § 34. The defendants filed a motion in limine to exclude any in-court identification of the defendants, which was denied. They argue that the trial judge committed error by admitting the confidential informant’s in-court identification in the absence of any pretrial identification procedure. They also argue that the chain of custody was inadequate to connect the drug evidence presented at trial to this case and, therefore, the evidence was insufficient to prove the drug charges beyond a reasonable doubt. Lylibeth also argues that she was not given pretrial notice of a map offered by the Commonwealth and admitted in evidence that supported the school zone charge. We affirm both defendants’ convictions. Background. On May 15, 2014, the Lawrence police department’s drug enforcement unit (unit) was conducting supervised controlled buys with the assistance of a paid confidential informant named William Demers. Detective Carmen Purpora searched Demers and the female who accompanied him for money and contraband before each controlled buy and then gave Demers marked currency to complete the drug transactions. Detective Purpora and Demers agreed that Demers would take off his hat and place it by his side to signal that a drug transaction had taken place. That morning, Demers and the unit […]
Commonwealth v. Rosario (Lawyers Weekly No. 11-065-13)
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 11‑P‑2005 Appeals Court COMMONWEALTH vs. ANGEL M. ROSARIO. No. 11‑P‑2005. Hampden. October 3, 2012. ‑ May 22, 2013. Present: Graham, Vuono, & Hanlon, JJ. Intimidation of Witness. Witness, Intimidation. Intent. Evidence, Intent. Indictment found and returned in the Superior Court Department on October 19, 2009. The case was tried before Daniel A. Ford, J. Michael Tumposky for the defendant. Dianne M. Dillon, Assistant District Attorney, for the Commonwealth. VUONO, J. On appeal from a conviction of intimidation of a witness, the defendant contends that the judge erred in denying his motion for a required finding of not guilty. In the circumstances of this case, we conclude that the defendant’s act of pointing his fingers to his head as if he were shooting a gun while stating that the victim-witness “would die” constitutes intimidation of a witness. Consequently, we affirm the defendant’s conviction. Background. The defendant, Angel M. Rosario, was initially charged with armed assault with intent to murder and assault and battery by means of a dangerous weapon in connection with the stabbing of Joseph Alvarado on July 11, 2008. There is no dispute that the defendant and Alvarado had an acrimonious relationship. The tension between them stemmed from Alvarado’s suspicion that the defendant had become romantically involved with Angela Perez, the mother of Alvarado’s children, while Alvarado was in prison. Perez was close to the defendant and turned to him for protection from Alvarado, who abused her. In fact, the stabbing incident arose, in part, as a result of Alvarado’s mistreatment of Perez. About four months after the stabbing, the defendant confronted Alvarado in the hallway of the courthouse, known as the Hall of Justice, in Springfield. This encounter led to the additional charges of intimidation of a witness and threat to commit murder. Following a jury trial in Superior Court on all the charges, the defendant, who claimed that he had stabbed Alvarado in self-defense and in defense of another, was acquitted of all the charges except intimidation of a witness. On appeal, the defendant concedes that the evidence was sufficient for the jury to find that he threatened Alvarado and that Alvarado was to be a witness against him in a criminal proceeding. He claims, however, that his motion for a required finding […]