Supreme Judicial Court of Massachusetts, Middlesex
March 8, 2019
N.E.3d 802] Homicide . Evidence, Hearsay,
State of mind. Practice, Criminal, Capital case,
Hearsay, State of mind, Request for jury instructions,
Assistance of counsel, Argument by counsel.
INDICTMENT found and returned in the Superior Court
Department on September 25, 2012. The case was heard by
Kathe M. Tuttman, J., and a motion for a new trial,
filed on December 29, 2016, was heard by her.
A. Kamholtz, Boston, for the defendant.
E. Silvia, Assistant District Attorney (Elizabeth A. Dunigan,
Assistant District Attorney, also present) for the
Gants, C.J., Lenk, Lowy, Budd, & Kafker, JJ.
early morning hours of August 10, 2012, the defendant
strangled to death his former girlfriend, Cecilia Yakubu, in
the bedroom of their shared apartment in Malden. At trial,
the defendant acknowledged that he killed the victim when he
caused the tank top she was wearing to wrap around her neck.
He contended, however, that the strangulation occurred
unintentionally, during the course of a heated, physical
struggle. The Commonwealth, by contrast, proceeded on the
theory that the defendant had tightly and deliberately
wrapped the tank top around the victim’s neck, twice, in an
effort to kill her following an argument. The only issue for
the jury was the defendant’s degree of culpability. The jury
ultimately convicted the defendant of murder in the first
degree on the theory of deliberate premeditation.
this consolidated appeal from the conviction and from the
denial of his motion for a new trial, the defendant contends
that the judge erred in allowing the admission of several
hearsay statements, and in declining to instruct the jury on
the elements of involuntary manslaughter. Additionally, the
defendant argues that his trial counsel rendered
constitutionally ineffective assistance by failing to elicit
testimony about the reasons why the defendant kept a knife
under his pillow, and by delivering an unfocused closing
argument that did not marshal the evidence in favor of a
conviction of voluntary manslaughter.
reasons set forth infra, we affirm the defendant’s
conviction and the denial of his motion for a new trial.
After a thorough review of the record, we discern no reason
to employ our extraordinary authority under G. L. c. 278, �
33E, to grant a new trial or to reduce the verdict.
N.E.3d 803] 1. Background.
recite the facts as the jury could have found them, reserving
certain details for later discussion.
victim and the defendant lived together in a two-bedroom
apartment in Malden. They had been involved in a romantic
relationship for approximately five years, but the
relationship had begun to deteriorate. As a result, the
defendant removed his belongings from the bedroom that he and
the victim previously had shared and began sleeping in the
second bedroom. The victim and the defendant continued this
arrangement until, in August of 2012, they decided that the
defendant should move out.
morning of August 9, 2012, the defendant packed a
suitcase of his belongings and left the
apartment. One of his friends, Tuesday Reeves,
collected the defendant from the train station; from there,
they went grocery shopping. Afterward, the defendant and
Reeves returned to Reeves’s apartment and visited for a short
defendant told Reeves that he could not return to the
apartment that he had shared with the victim, and asked if he
could stay with Reeves instead. Reeves said no, and asked
the defendant to leave her apartment because the man whom she
was dating would be coming over later that evening. The
defendant then left Reeves’s apartment and went to sell
perfume oils in Cambridge, which he did occasionally to earn
extra income. Later in the evening, he telephoned Reeves and
asked once more if he could stay at her apartment; she again
refused. The defendant then took one of the last trains
running from Cambridge to Malden that evening, and returned
to the victim’s apartment around 11:30 P.M.
the defendant showed up at the apartment, the victim was
using the landline telephone to speak with several of her
friends. She expressed to them her frustration that the
defendant had returned, unannounced, after leading her to
believe that he had moved out.
defendant also used the landline telephone over the course of
the night, primarily to speak with Reeves. The defendant told
Reeves that the victim was "going crazy" because of
his return to the apartment. He mentioned that Reeves might
not see him for the next ten years, and that she should know
that he loved her. He then hung up.
attempted to call back, but the victim answered. Reeves could
hear the defendant in the background getting "louder and
louder" as he argued with the victim; he seemed quite
angry. The victim also was upset. She told Reeves that she
was "sick of his shit" and that if the defendant
"puts his hands on her" she would call the police.
The victim also told Reeves that the defendant had to go
elsewhere, preferably to Reeves’s house. Reeves responded
that he could not stay with her, and suggested that, instead,
the victim leave the apartment. The victim did not
want to leave. She ended the call shortly
N.E.3d 804] The defendant subsequently went into the victim’s
bedroom, where the argument between them quickly escalated.
The victim hit the defendant in the face with a telephone,
and the defendant ripped the cord and jack out of the wall. A
struggle quickly ensued. During the course of that struggle,
the defendant twice wound the victim’s tank top around her
neck. After "a few minutes," the victim’s body went
limp, and she became unresponsive.
defendant then went into his bedroom and, using a different
landline telephone, made several calls to his mother and
sister, both of whom lived in another State; those calls
spanned the period of time from approximately 12:40 A.M. to
5:10 A.M. At 5:15 A.M., approximately four to five hours
after the victim had died, the defendant telephoned 911 and
reported that he had "just killed [his] wife.... She’s
dead." He told the 911 operator that he would be waiting
outside the apartment for police to arrive.
the first police officer responded, the defendant told him
that he had "just killed [his] wife," and that he
had "strangled her." Police entered the apartment
to find the victim lying face down on the floor of the
bedroom in a small pool of blood; a black tank top was
wrapped tightly around her neck, and a telephone cord was
draped across her shoulders. One of the officers tried to
find a pulse on the victim’s neck, but the tank top was
wrapped too tightly and the officer could not get his fingers
underneath it. He instead checked for a pulse on the victim’s
wrist and found none.
autopsy subsequently revealed that the victim had several
abrasions on the side of her neck that were consistent with
efforts to remove the tank top before she lost consciousness.
The victim also had several bruises and scratches on her body
that were consistent with having been struck.
trial, the only contested issue was whether the ligature
strangulation had occurred deliberately or inadvertently. The
argued that the defendant tightly wrapped the victim’s tank
top around her neck, twice, in order to kill her. The
defendant testified that his hand inadvertently became caught
up in the victim’s tank top during a struggle; he then pulled
it back in order "[t]o restrain her," but the
victim became unresponsive and limp shortly
six-day trial, the jury convicted the defendant of murder in
the first degree on a theory ...