Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Breaking And Entering And Maybe Drugs Lead To Murder Charges Plus One In Massachusetts

This one isn’t so funny. It involves the type of tragedy that happens all the time, particularly in urban areas. Of course, this one has a couple of twists.

This wasn’t the big city…it was Winchester, Massachusetts. In a peaceful dead-end street lined with single and multifamily houses where residents have lived for generations. Chris and Bryan Barbaro were two brothers living on the same street where they were raised. The same street where their parents and sister still live.

Now, they are both dead.

In October, 2007, Wally S., 30 (hereinafter, the “Defendant”) allegedly kicked in the door and forced his way into the Barbaros’ three-family home and shot 48-year-old Bryan Barbaro in the chest, a wound he survived after being rushed to Massachusetts General Hospital. Brother Chris was shot in the forehead and died at that time.

Despite being wounded, Bryan Barbaro was able to call 911 and report that both he and his brother had been shot, officials said.

Although Assistant District Attorney Nathaniel Yeager told the court that 50-year-old Chris Barbaro was killed by the gunshot to the forehead, the Defendant was not immediately charged with the murder.

According to the Winchester Star, a spokesman for Middlesex District Attorney Gerard T. Leone Jr., said that the investigation was ongoing and that more charges against the Defendant were possible.

While not yet charged with the murder of one brother or the wounding of the other, the Defendant was held on $250,000 cash bail, and his bail in a pending Middlesex Superior Court case was revoked. The Defendant was charged with seven charges, including two counts of unlawful possession of a firearm.

Turn the clock ahead a bit,

December, 2007. The charges against the Defendant were changed after it was heard by a Grand Jury. Once in Superior Court, the Defendant found his charges amended to include murder, armed robbery, home invasion, assault and battery with a dangerous weapon and carrying a firearm without an FID license.
The trial was set for September.

But wait…there is more. Remember brother Bryan? The one who got shot in the chest and survived?

He died in July.

The autopsy recently conducted by the Chief Medical Examiner determined that Bryan Barbaros’ death was caused by cardiac arrest related to coronary artery disease. Family members are convinced it was a delayed result of the gunshot wound he suffered in the home invasion. Although he recovered from the wounds, the bullet had never been removed from his body.

According to Susan Siegel, the brothers’ younger sister, Bryan had never had a previous heart attack, and had not been previously diagnosed with heart disease. The only health problem, in which she is aware, that could possibly be connected to heart disease, was her brother’s battle with high cholesterol.

“It was probably stress related,” said Siegel, who added that the home invasion, and seeing his brother killed, may have contributed to the heart attack.

“I do believe that all this built up to the stress that resulted in the heart attack,” she said. “He was in pain and couldn’t work. That was very stressful, seeing what he saw.”

Middlesex District Attorney Gerry Leone’s office, who is pursuing the first-degree murder charge against the Defendant, has said that a second murder charge would not be filed for the death of Bryan Barbaro, and that the case against the Defendant is progressing despite the loss of the key eyewitness.

“Basically, it was ruled a heart attack and they can’t link it,” said Siegel. “The case is just moving forward.”

The Barbaro brothers apparently knew the Defendant for a number of years before the home invasion and robbery took place. Chris Barbaro allegedly bought large amounts of marijuana from him on a regular basis, according to court documents.

The case against the Defendant is temporarily on hold while the Massachusetts Supreme Judicial Court hears a defense appeal regarding the court’s ruling on a motion to suppress evidence.

“My goal is that [the Defendant] gets found guilty for murdering Chris,” she said. “I know he’s ultimately responsible [for Bryan’s death too], but am I going to be able prove it? No.”

Samuel’s take:

There are various types of homicide cases. Some are straight forward, others are not.

First of all, not every homicide case results in a “murder” charge. There are varying degrees, usually depending on the alleged intent involved. This is true of manslaughter as well as degrees of the murder charge itself.

Likewise, a homicide does not have to be an absolutely specifically intended act to be murder. For example, say I try to shoot person A, but accidently shoot person B who ran in the way. It is pretty obvious that I will be charged with the murder of person B. This is because my “specific intent” to kill person A is deemed transferred to person B, who would not be dead but for my shooting him.

Similarly, a killing that takes place during certain activities in which one could expect such a result is usually treated as murder. For example, if I am in the process of simply robbing a bank, and I shoot someone during the course of it, I win the charge of murder.

Because murder is considered the most heinous of our crimes, it is assumed that the murder defendant has the greatest incentive to flee the jurisdiction and not return to court to face the charges. As a result, bail is very often denied in such a case.

In this case, the Defendant was not immediately charged with Chris’ murder. While the reason for this is a bit unclear, maybe being related to the Commonwealth’s desire to have all unanswered questions answered before so charging, it did not appear to make too much of a difference. He ended up being held without bail because of the pending case for which he had been out on bail. Under Massachusetts law, a defendant can be held for up to 60 days without bail should he be arrested on a new matter while out on bail. After that, the bail conditions tend to go up.

It is not terribly unusual for a defendant to find himself facing new and more severe charges when his case moves up to Superior Court. And it is those charges that really count.

The issue of Bryan’s death is a more interesting question. A person can be charged with a homicide even if the person does not die right away. Further, under both criminal and civil law, if it can be shown that the person would not have died but for the act at issue (here, the shooting), such charges can be brought.

A person can be sued civilly independent of any criminal proceeding. Therefore, Bryan’s’ family could bring their own lawsuit against the Defendant for the wrongful death. After all, the burden of proof is lower in a civil case, the preponderance of the evidence instead of beyond a reasonable doubt.

However, such a lawsuit can be expensive. Jail cannot be the result of a civil case and so the family could only hope to be awarded money. There is no sign here that the Defendant is in much of a position to pay much money should he be found responsible.

And then, there is that issue of proof. It is natural to figure that the shooting directly, or indirectly, contributed to Bryan’s death. It may well have. However, with the autopsy results drawing no link, it is a much harder case to prove.

This is likely why the Commonwealth has decided to stay with the one count of murder instead of adding a new charge. Besides, if convicted, the Defendant faces a life without parole sentence. He is likely to serve only one of them anyway.

So, what does this have to do with you?

Things happen. Sometimes things go wrong. For all we know, this case resulted from a simple breaking and entering that went wrong. As a criminal defense attorney in Boston, as well as a homicide prosecutor in Brooklyn, I have handled many cases where a simple argument went wrong. People lose their temper. People die.

I have clients who feel that if they are “dissed”, they have to act out on it. Violently.

The message? Don’t.

Situations which you never expected to lead to a tragedy can do so very easily. If you are wronged, consult an experienced attorney or handle it in some peaceful way or…dare I say it…walk away.

It is better than causing a death and, as a result, living the rest of your years out behind bars.

The full articles of this story can be found at :

http://www.wickedlocal.com/winchester/news/x635428475/Heart-disease-or-bullet-Victim-s-kin-believes-latter
http://www.wickedlocal.com/winchester/ ,

http://www.milforddailynews.com/state/x1720640779/Heart-disease-or-bullet-Victim-s-kin-blames-gunshot , http://www.wickedlocal.com/medford/archive/x224604333 and http://www.boston.com/news/local/articles/2007/10/25/winchester_man_dies_in_double_shooting/

Contact Information