Commonwealth v. Luis Barbosa.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-179

COMMONWEALTH

vs.

LUIS BARBOSA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury found the defendant guilty of rape of

a child with force, G. L. c. 265, § 22A, and indecent assault

and battery on a person over fourteen, G. L. c. 265, § 13H. The

defendant argues his convictions should be reversed because of

improperly admitted evidence in violation of the wiretap

statute, G. L. c. 272, § 99, and the introduction of evidence

which violated the first complaint doctrine. We affirm.

Wiretap statute violation. The defendant asserts that a

phone call between himself and the victim was "secretly"

intercepted by the victim's mother and that the admission of

evidence regarding the phone call violated the wiretap statute.

The defendant also claims that his counsel was ineffective for
failing to move to suppress the call and its contents. At

trial, the victim testified she called the defendant, and her

mother was listening on another telephone. During that

telephone call the victim questioned the defendant about his

past actions of rape, and the defendant asked why she was

"bringing it up now?" She stated that she was "going to tell

[her] mother." In response, the defendant said that if she told

her mother, the victim would be "breaking [the] family apart."

Based on these statements, we can infer that the defendant was

not aware the mother was on the phone call and thus that the

call was unlawfully intercepted. 1

The defendant had explicit statutory standing pursuant to

the wiretap statute to move to suppress the contents of the

intercepted telephone call. Section 99 P states, "Any person

who is a defendant in a criminal trial in a court of the

commonwealth may move to suppress the contents of any

intercepted wire . . . communication or evidence derived

therefrom, for the following reasons: 1. That the

communication was unlawfully intercepted." G. L. c. 272,

§ 99 P. Section 99 does not, however, require the suppression

1 General Laws c. 272, § 99 B 4, defines "interception" as
"to secretly hear, secretly record, or aid another to secretly
hear or secretly record the contents of any wire or oral
communication through the use of any intercepting device."

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of all communications intercepted in violation of its

provisions. See Commonwealth v. Ennis, 439 Mass. 64, 68-69

(2003). The Supreme Judicial Court held in Commonwealth v.

Santoro, 406 Mass. 421, 423 (1990), that where neither the

police nor the government are involved in the recording of

telephone conversations, "[n]o deterrent purpose would be served

by suppressing the intercepted conversations." There, a private

individual "engaged in unlawful activity himself" by

"record[ing] the defendant's conversations." Id. Likewise,

here, the police were not involved in recording the conversation

between the victim, her mother, and the defendant. Thus, we

find no error in the admission of the call, 2 nor do we conclude

that defense counsel was ineffective for failing to move to

suppress the call, which would have been futile.

First complaint. We next address the defendant's argument

that the judge abused her discretion in admitting testimony in

violation of the first complaint doctrine. The first complaint

2 Nothing in Commonwealth v. Du, 495 Mass. 103 (2024), calls
the Santoro decision into question. The Du decision concerned
"the scope of the suppression remedy provided by the wiretap
act, G. L. c. 272, § 99 P, when police violate that statute"
(emphasis added). Du, supra at 103. It emphasized that the
Legislature's focus in the statute and in the suppression remedy
"was on the protection of privacy rights and the deterrence of
interference therewith by law enforcement officers'
surreptitious eavesdropping as an investigative tool" (emphasis
added). Id. at 109, quoting Commonwealth v. Rainey, 491 Mass.
632, 643 (2023).

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doctrine allows the first person the victim told of an alleged

sexual assault to testify to the fact of the first complaint and

the details of the disclosure. See Commonwealth v. King, 445

Mass. 217, 218-219 (2005), cert. denied, 546 U.S. 1216 (2006).

Generally, the Commonwealth is limited to one first complaint

witness. 3 Id. at 242-243.

At trial, the victim testified that approximately one month

before the defendant began sexually assaulting her, he started

coming into her room in the morning; he would crawl into bed

next to her and "spoon" her -- first with his boxers on, and

then, naked. The victim testified that she told her mother of

the defendant's conduct, but her mother did not take it

seriously and did nothing about it. Importantly, the victim's

conversation with her mother occurred approximately one month

before the defendant began to rape her. The evidence was

admitted to establish that the victim never told her mother

3 A trial judge has discretion to permit testimony from a
substitute witness in lieu of the Commonwealth's designated
first complaint witness if, for example, the designated witness
is unavailable or incompetent. See King, 445 Mass. at 243-244.
In this case, the first person the victim told was her
grandmother, but, by the time of trial, the grandmother was not
competent to testify. The trial judge allowed the Commonwealth
to substitute the victim's close friend, whom she told about the
rape approximately fourteen years after the rape. The defendant
does not challenge this designation.

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about the sexual assaults. There was no objection to the

admission of this evidence.

Because that testimony was not about a sexual assault, it

is not governed by the first complaint rule. See King, 445

Mass. at 219. The victim's statements were admitted to show

that her mother did nothing about the disclosure and thus was

admissible to explain why the victim did not later tell her

mother about the sexual assaults. See Mass. G. Evid. § 413(b)

(2025). Further, the defendant's conduct of "spooning" the

victim while naked in her bed was relevant and admissible to

show the history of the relationship between the defendant and

the victim, and there was no error in its admission. 4 See

Commonwealth v. Centeno, 87 Mass. App. Ct. 564, 567 (2015). See

also Mass. G. Evid. § 404(b)(2). Nor was the probative value of

the testimony outweighed by its prejudicial effect. See

Commonwealth v. Peno, 485 Mass. 378, 386 (2020) (even if

evidence of prior bad act relevant, "its prejudicial effect must

not outweigh its probative value").

The defendant also contends that the victim's testimony

regarding her conversation with a police officer was a violation

of the first complaint doctrine. However, that testimony is not

4 The trial judge, sua sponte, properly provided the jury
with limiting instructions regarding the victim's testimony both
contemporaneously and in her final instructions.

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governed by the first complaint doctrine either. See King, 445

Mass. 218-219. Rather, it was admissible because a witness may

be rehabilitated after there is cross-examination testimony

discrediting her testimony with showings that she fabricated

allegations. See Commonwealth v. Kebreau, 454 Mass. 287, 298-

299 (2009). During cross-examination, defense counsel

questioned the victim's credibility by repeatedly asking her

about the conversation she had with the police officer. 5 During

the Commonwealth's redirect examination, the victim testified

that she told a Medford police officer about the contents of the

three-way telephone call with her mother and the defendant. She

did not provide any details of the disclosure. Thus, we

conclude there was no substantial risk of a miscarriage of

justice because this evidence provided no details of the alleged

sexual encounters and was admitted to rebut the inferences made

by the cross-examination. See Commonwealth v. Roby, 462 Mass.

398, 409 (2012).

Lastly, the defendant argues that the testimony by the

victim and the mother regarding disclosures that the victim made

just before the telephone call with the defendant were in

5 Additionally, counsel attempted to elicit that the victim
told the officer she was concerned about getting pregnant when
the rapes took place, thereby attempting to impeach the victim's
earlier testimony where she stated that she did not know what
sex was.

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violation of the first complaint doctrine. During that

conversation, the victim told the mother what the defendant "did

to [her]." We agree that this testimony should not have been

admitted because it was cumulative first complaint testimony.

See Commonwealth v. Murungu, 450 Mass. 441, 447-448 (2008). The

defendant did not object to this testimony, thus any errors in

its admission are reviewed for a substantial risk of a

miscarriage of justice. See Commonwealth v. McCoy, 456 Mass.

838, 845-846 (2010).

There was no substantial risk here, as the prosecutor

interrupted the victim before she was able to testify to any

details of the conversation. Further, the mother's testimony

focused on what the defendant was asking her, such as why the

victim had stopped coming by the house. The mother then stated

that the victim disclosed the prior sexual abuse by the

defendant. We conclude that no substantial risk of a

miscarriage of justice occurred where this testimony was brief

and provided no explicit details of the alleged sexual abuse.

See Roby, 462 Mass. at 409. The evidence also "could have been

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viewed as inherently biased" because the victim and mother "were

making claims against the defendant." Id.

Judgments affirmed.

By the Court (Massing,
Englander & D'Angelo, JJ. 6),

Clerk

Entered: May 19, 2025.

6 The panelists are listed in order of seniority.

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