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Commonwealth v. Barnett

Supreme Judicial Court of Massachusetts, Middlesex

July 11, 2019


          Heard: March 8, 2019.

         Indictments found and returned in the Superior Court Department on March 28, 2013. The case was heard by Heidi E. Brieger, J., and a motion for a new trial, filed on September 19, 2016, was considered by her.

          Dennis A. Shedd for the defendant.

          Hallie White Speight, Assistant District Attorney (Christopher M. Tarrant, Assistant District Attorney, also present) for the Commonwealth.

          Present: Gants, C.J., Lenk, Lowy, Budd, & Kafker, JJ.

          LOWY, J.

         The defendant was convicted of murder in the first degree on theories of deliberate premeditation and felony- murder in the strangulation death of the victim.[1] The defendant filed a motion for a new trial, arguing that his trial counsel's performance was constitutionally ineffective, particularly counsel's treatment of deoxyribonucleic acid (DNA) evidence presented by the Commonwealth. The motion for a new trial and subsequent motion for reconsideration were denied. On appeal, the defendant raises the same ineffective assistance of counsel claims, raises for the first time a challenge that certain testimony should have been excluded as hearsay, and alternatively asks us to exercise our power under G. L. c. 278, § 33E, to reduce his conviction from murder in the first degree to murder in the second degree. We affirm.


         1. Facts.

         We recite the essential facts, reserving some additional facts for later discussion. The victim, his older brother, and their mother lived together in an apartment in Somerville. The victim spent the evening of November 22, 2009, playing video games with his brother. The victim had two video game consoles: an Xbox 360 (Xbox), which he kept in the living room, and a PlayStation 3 (PlayStation), which he kept in his bedroom. The victim and his brother were using the Xbox in the living room when their mother returned from work at approximately 6 P.M. She went to sleep shortly thereafter. The brothers continued using the Xbox until approximately 8:30 P.M., and at around 9:30 P.M., the victim's brother took a taxicab to a friend's house.

         The victim's brother returned to the victim's and their mother's apartment on the morning of November 23, but his knocks on the door went unanswered. When his mother woke up at approximately noon, she found the victim dead on the floor with cords wrapped around his neck and a bag over his head.

         A police officer unwrapped the cords from the victim's neck and realized that he was dead. A search of the apartment revealed several video game cartridges, but neither the Xbox nor the PlayStation were found.[2] The victim's cause of death was asphyxia by ligature strangulation.

         The defendant had grown up in the same neighborhood as the victim, and the two were acquaintances. The defendant and his girlfriend, Kelly Murray, were each drug users, and after the victim had been found dead the defendant agreed to speak with police. On the night of November 22, the defendant's drug dealer, Durevil Admiral, was not answering the defendant's calls from either Murray's cell phone, which they shared, or a "landline" telephone. The defendant went to the victim's apartment between 11:30 P.M. and midnight to use the victim's telephone to contact Admiral, in hopes that Admiral would not recognize the incoming telephone number and answer the call. The defendant told police that he stayed at the victim's apartment for approximately one hour, and that the victim's Xbox was in the living room when he left. Telephone records admitted in evidence at trial indicated that 101 calls had been made from the victim's telephone to a cell phone number used by Admiral between 11:42 P.M. on November 22 and 1:09 A.M. on November 23. Records further indicated that Admiral had received numerous calls from a telephone that belonged to Murray earlier in the night on November 22, and that Murray's cell phone also was used to make several calls to Amery Gesse, who also sold drugs to the defendant.

         Murray testified that she had smoked "crack" cocaine with the defendant on November 22 and went to sleep at some point before midnight. The defendant was still awake when Murray went to sleep. When she woke up at approximately 6:30 A.M., the defendant was in the apartment and a video game system was in his mother's bedroom. Murray thought it was a PlayStation but was "not a hundred percent sure." The system had not been there the night before. As Murray left the apartment to bring her daughter to school that morning, she saw Gesse in the hallway. When Murray returned to the apartment, the defendant "was coming off of being high," and the video game console she had seen for the first time that morning was gone.

         Both Admiral and Gesse also testified. Admiral recalled that the defendant had called him several times at around the time of the victim's death and had offered to sell him a popular game that could be played with "an Xbox or a PlayStation," but he could not recall which console. Gesse testified that the defendant contacted him offering a PlayStation, and that Gesse bought it from him for fifty dollars. The PlayStation was missing a power cord. According to records from Sony Computer Entertainment America LLC (Sony), [3] a PlayStation was activated on December 16, 2009, with Gesse's e-mail address and Internet protocol (IP) address.

         Manual Leal, an acquaintance of the defendant's and Murray's, testified to an incident that took place when he was with the defendant in 2011. After overhearing the defendant argue with Murray on his cell phone, Leal saw a text message sent by Murray to the defendant saying that the defendant "was going down" and that "he was a murderer."[4] The defendant then "got a little emotional" and, when Leal asked what that text message was about, told him that "he fucked up," "that he killed Chris," that "[h]e strangled him with a cord" and had broken into the victim's apartment and stolen a video game console. Several months later, Leal relayed this ...

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