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Commonwealth v. Moseley

Supreme Judicial Court of Massachusetts, Middlesex

October 3, 2019

William MOSELEY.

         Argued March 8, 2019

         [131 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.

         Matthew A. Kamholtz, Boston, for the defendant.

         Casey E. Silvia, Assistant District Attorney (Elizabeth A. Dunigan, Assistant District Attorney, also present) for the Commonwealth.

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


         LENK, J.

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          In the 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.

          In 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.

         For the 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.

         [131 N.E.3d 803] 1. Background.

         We recite the facts as the jury could have found them, reserving certain details for later discussion.

          The 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.

         On the morning of August 9, 2012, the defendant packed a

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suitcase of his belongings and left the apartment.[1] 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 time.

         The 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.[2] 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.

          When 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.

          The 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.

         Reeves 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

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want to leave. She ended the call shortly thereafter.[3]

         [131 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.

          The 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.

         When 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.[4]

         An 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.[5]

         At trial, the only contested issue was whether the ligature strangulation had occurred deliberately or inadvertently. The Commonwealth

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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 thereafter.[6]

         After a six-day trial, the jury convicted the defendant of murder in the first degree on a theory ...

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