Supreme Judicial Court of Massachusetts, Middlesex
Heard: January 11, 2019.
Felony-Murder Rule. Robbery. Constitutional Law, Assistance
of counsel, Burden of proof, Double jeopardy. Practice,
Criminal, Capital case, New trial, Assistance of counsel,
Cross-examination by prosecutor, Presumptions and burden of
proof, Duplicative convictions, Double jeopardy.
found and returned in the Superior Court Department on
December 13, 2007. The cases were tried before Maynard M.
Kirpalani, J., and a motion for a new trial, filed on June
20, 2016, was heard by him.
Jennifer H. O'Brien for the defendant.
K. Walsh, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Lenk, Gaziano, Cypher, & Kafker,
convicted the defendant, Wally Jacques Simon, of murder in
the first degree on a theory of felony- murder for the
killing of Christopher Barbaro (Christopher),  We consolidated
the defendant's direct appeal with his appeal from the
denial of his motion for a new trial. On appeal, the
defendant contends that he received ineffective assistance of
counsel; the prosecutor improperly shifted the burden of
proof during cross-examination of a witness for the
defendant; and the double jeopardy clause of the Fifth
Amendment to the United States Constitution was violated when
he was convicted of and sentenced for felony-murder as well
as the predicate offenses of armed home invasion and armed
reasons stated infra, we vacate the defendant's
underlying felony conviction of armed robbery as duplicative,
affirm the defendant's remaining convictions, and affirm
the denial of the defendant's motion for a new trial.
After a thorough review of the record, we also decline to
exercise our authority under G. L. c. 278, § 33E, to
grant a new trial or to reduce or set aside the verdict of
murder in the first degree.
summarize the facts that the jury could have found, reserving
pertinent facts for the discussion of the defendant's
arguments. On October 24, 2007, at approximately 12:30 A.M.,
Christopher's brother, Bryan Barbaro (Bryan),
heard loud bangs and "some fumbling around" in the
apartment below his own. The apartment was occupied by
Christopher. Bryan went downstairs to investigate the loud
noises and found his brother on the ground "flailing . .
. trying to get air." Bryan went to call for help, but
was confronted by the defendant who was attempting to leave
the apartment with a bag of money and rare
coins. The defendant shot Bryan and a struggle
ensued. During the struggle, the bag carrying the coins
ripped open and coins scattered on the floor. The defendant
fled the scene in a dark sport utility vehicle (SUV).
and Christopher had been friends of the defendant. Bryan had
met the defendant at a local gym where the defendant
exercised, and periodically, the defendant had worked for
Bryan's construction company. Bryan had introduced the
defendant to Christopher, and eventually, the defendant had
supplied marijuana to Christopher, who was a marijuana
dealer. Bryan testified that he had known the defendant for
about seven years. The defendant also had been to Bryan and
the defendant fled, Bryan went to his apartment to call 911.
During the telephone conversation with the emergency
dispatcher, Bryan stated that he recognized the assailant as
"Wally," who worked out at a local gym. He also
recounted the events of the shooting, gave a physical
description of the assailant, and described the vehicle he
drove -- a black SUV.
police arrived, they observed a twenty dollar bill on the
street in front of the house. Inside the house, police
noticed coin books and various paper currency scattered on
the stairway leading up to the second floor. The lock to the
door of Christopher's apartment was broken. Inside his
apartment, police found Christopher dead from a gunshot wound
to the head. There were multiple spent .25 caliber shell
casings on the floor. On the third floor, police discovered
Bryan lying on the couch with a gunshot wound to the chest.
He was slipping in and out of consciousness. Bryan reiterated
to the responding officers that Wally was the shooter.
immediately obtained the defendant's address from the
local gym, located the defendant, and began to surveil him.
The defendant was driving a dark SUV. Police followed the
defendant to downtown Boston and approached him once he got
out of his vehicle. Trooper Michael Banks of the State police
stated that he wanted to talk to the defendant and pat
frisked him while other officers stood nearby on the
sidewalk. The defendant responded that he was speaking with
his attorney on his cellular telephone (cell phone) and did
not want to talk to police until meeting with his
attorney. Soon thereafter, attorney Daniel Solomon
came out to the street and approached the
officers. Banks said to Solomon, "There was an
incident in Winchester last night, and we want to talk to
[the defendant] about it." Solomon informed Banks that
he and the defendant would return to his office and that
Solomon would notify police whether the defendant would speak
with them. Banks gave Solomon his cell phone number, and
waited with the other five or six officers downstairs for
approximately one hour.
waiting for Solomon to confer with the defendant, Banks
received a telephone call from another trooper who had spoken
with Bryan at the hospital. Bryan was shown a photographic
array and identified the defendant as the man in his
brother's apartment. Upon receiving this information,
Banks telephoned Solomon to ask if the defendant would be
willing to speak with them. Solomon consented, and the
defendant, with Solomon present, proceeded to talk with
Detective Paul DeLuca and Trooper Scott McCormack. Police did
not give the defendant Miranda warnings prior to or during
outset of the interview, McCormack stated that a double
shooting and home invasion had taken place in Winchester the
previous night, that one of the victims had died, and that
the surviving victim had identified the defendant from a
photographic array. McCormack then asked the defendant if he
knew anyone in Winchester and where he had been the previous
night. In response, the defendant said that he had known
Bryan for several years and that they had met at the local
gym. The defendant also said that he had worked for Bryan and
knew Christopher through Bryan. In addition, the defendant
provided an alibi for his whereabouts the previous night. He
claimed that he was home watching a televised boxing event,
and then went to his friend Dolores Mazil's home in Lynn
before returning home to sleep. Before police could ask
another question, Solomon advised the defendant not to say
anything else. The interview lasted approximately five to ten
minutes. The defendant was then arrested.
next day, the defendant repeatedly telephoned an
acquaintance, Anunzie Viel, who resided with Dolores in Lynn.
Neither Mazil nor Viel ...