Supreme Judicial Court of Massachusetts, Middlesex
Heard: March 8, 2019.
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.
A. Shedd for the defendant.
White Speight, Assistant District Attorney (Christopher M.
Tarrant, Assistant District Attorney, also present) for the
Present: Gants, C.J., Lenk, Lowy, Budd, & Kafker, JJ.
defendant was convicted of murder in the first degree on
theories of deliberate premeditation and felony- murder in
the strangulation death of the victim. 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
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.
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.
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. The victim's cause of
death was asphyxia by ligature strangulation.
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
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.
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),  a PlayStation was activated on
December 16, 2009, with Gesse's e-mail address and
Internet protocol (IP) address.
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." 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 ...