456 Mass. 534 (2010), SJC-09972, Commonwealth v. Linton

Docket Nº:SJC-09972
Citation:456 Mass. 534, 924 N.E.2d 722
Opinion Judge:GANTS, J.
Attorney:[924 N.E.2d 727]James M. Doyle, Boston, for the defendant. Loretta M. Lillios, Assistant District Attorney, for the Commonwealth.
Case Date:April 16, 2010
Court:Supreme Judicial Court of Massachusetts

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456 Mass. 534 (2010)

924 N.E.2d 722



Damion LINTON.

No. SJC-09972

Supreme Judicial Court of Massachusetts, Middlesex.

April 16, 2010

Argued Dec. 10, 2009.

INDICTMENT found and returned in the Superior Court Department on March 22, 2005. Pretrial motions to suppress evidence were heard by Peter M. Lauriat, J.; the case was tried before him, and a motion for new trial, filed on February 25, 2008, was considered by him.

[924 N.E.2d 727]James M. Doyle, Boston, for the defendant.

Loretta M. Lillios, Assistant District Attorney, for the Commonwealth.



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A jury in the Superior Court convicted the defendant of murder in the first degree on a theory of extreme atrocity or cruelty for the strangulation of his wife, Andrea Harvey.1 Represented by new counsel, the defendant appeals from his conviction and from the order of the trial judge denying his motion for a new trial. On appeal, the defendant argues that the evidence presented at trial was insufficient to support the jury's verdict and that we should reverse the judge's denial of his motion for a required finding of not guilty. In the alternative, he argues for a new trial, claiming that the judge erred by admitting in evidence the victim's account of the defendant's prior assault on her and by refusing to instruct the jury on the elements of involuntary manslaughter as an alternative, lesser

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charge to murder. Finally, the defendant claims that he was denied effective assistance of counsel by the failure of his trial counsel to challenge certain aspects of the Commonwealth's case. We conclude that the evidence was sufficient to sustain the verdict and that the judge's rulings were not error. We also conclude that the defendant's ineffective assistance of counsel claim is without merit. Accordingly, we affirm the defendant's conviction and the denial of his motion for a new trial. After a complete review of the record, we also conclude that there is no basis to exercise our power under G.L. c. 278, § 33E, to reduce his conviction to a lesser degree of guilt or to order a new trial.

1. The evidence at trial.

Because the defendant challenges the sufficiency of the evidence, we summarize in detail the evidence, considering it in the light most favorable to the Commonwealth and reserving certain details for our analysis of the other issues raised on appeal.

At approximately 2 P.M. on Thursday, February 24, 2005, Cedric and Shirley [924 N.E.2d 728] Harvey discovered the body of their daughter, Andrea Harvey, in her apartment. The victim was lying on the floor, " somewhat on her side," curled up in something like a " fetal" position. She was dressed in a sweatsuit and lay on a sheet next to the apartment's baseboard heater, wrapped to the neck in blankets. The thermostat in the apartment was set to eighty-five degrees. The victim's body was stiff; rigor mortis had set in. Blood or other bodily fluids had seeped out of her mouth and stained the carpet and the sheet. On the floor by her head was the victim's cellular telephone and a cup of clear liquid, which appeared to be water. The victim's father dialed 911 on his cellular telephone, and a Cambridge police officer arrived at the scene minutes later.

The front door of the apartment had been locked when the parents arrived at the apartment. They opened the two door locks with keys they had obtained from the building's rental agent. Police officers who investigated the crime scene testified that there were no signs of damage or forced entry into the apartment. The back door of the apartment was inaccessible because it was blocked with furniture, exercise weights, and other items. All of the apartment's windows were closed securely.

The Commonwealth's medical examiner, Dr. Richard Evans,

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who conducted the autopsy, testified that the victim's death was due to manual strangulation. The physical evidence of the strangulation included multiple abrasions to the right side of the victim's neck below her jaw, consistent with fingernail marks, and a larger bruise on the left side of the victim's rib cage that, from its size and the pressure required to form it, could have been caused by the force of a knee on the victim's chest. The nature of these abrasions indicated that they had been inflicted while the victim was still alive.

Dr. Evans testified that, to determine the time of the victim's death, he considered the presence of rigor mortis, various indications of decomposition, and signs of lividity in the corpse.2 While acknowledging that estimating a time of death is an inexact science, he offered the opinion that the victim could have died any time from " eight hours up to twenty-four hours, maybe even slightly beyond twenty-four hours" before the time her body was photographed by police on February 24. Dr. Evans opined that, while in normal circumstances it would have taken two to three days to reach the state in which the victim's body was discovered, here, because of the high temperature in the apartment, that time had been cut " [r]oughly in half." At the earliest, the medical examiner's estimate would have placed the time of the victim's death around midday on Wednesday, February 23.

The parents last saw the victim on the evening of Tuesday, February 22. The three had gone for a walk together, and the victim had seemed " positive" and " hopeful." The victim's father had left his wife and daughter around 7 P.M., but the two women continued walking through Cambridge and Boston for two more hours. After the victim stopped at a video rental store, her mother drove to Cambridge and dropped her off sometime around 9:15 P.M. Just before 10 P.M., they spoke to once more on the telephone.

The parents did not see the victim on February 23, but the victim's mother called her daughter's cellular telephone at [924 N.E.2d 729] 8:16 A.M. and left a voice-mail message when the victim did not answer. The victim, a mathematics teacher at East Boston High

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School, was on vacation on February 23, but she had discussed going to the school to clean her classroom that day with another teacher, Matthew Glavin. When Glavin called the victim's cellular telephone that morning at 10:15 A.M. to offer her a ride to school, the victim did not answer.

The defendant was married to the victim, but had been having an affair with Latricia Carter, which was discovered by the victim on the morning of February 23. Carter testified that she and the defendant had met in early January 2005, and first had sexual relations on February 14. They sometimes spent evenings together at Carter's home, and she would visit him in the mornings or at midday at his apartment; she never visited his apartment at night. The defendant did not tell Carter that he was married. When they were together, the defendant would receive telephone calls from someone he described as his " ex-girlfriend." He often told Carter that this former girl friend had repeatedly threatened that, should he break up with her, she was going to purchase " a bottle of pills to do something to herself and make everyone think that he did it to her."

On the morning of February 23, Carter had an appointment to take a series of work-related tests at a training facility in Somerville. Because the testing facility was near the defendant's apartment, she and the defendant made plans for her to visit before her morning appointment. Carter arrived outside the defendant's apartment building driving her father's pickup truck. She rang the doorbell in the building's first-floor entry twice, but no one answered or let her in. Just as Carter decided to leave, the defendant came downstairs; he was talking on a cellular telephone. When the defendant finished his call, Carter asked him why he had carried on his telephone conversation standing in the entryway when the weather was so cold. She then heard a loud noise from upstairs. The defendant explained, " Well you know that crazy, crazy girl I told you about, she's upstairs." Carter left the apartment entryway and returned to the truck; the defendant followed her and let himself in by the unlocked passenger side door. Carter began to shout at the defendant, demanding to know why the woman was in his apartment and the nature of their relationship. Eventually, the defendant admitted that the woman upstairs had not simply let herself in, but that she was there every

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night, and that she lived with him. As Carter and the defendant continued to argue, a young, " dark-skinned" woman with her hair in dreadlocks, a description matching that of the victim, came out to the street, leaned over to look in the window of the truck, and exclaimed, " Oh, my gosh, another woman." She then told the defendant, " Give me my phone," and he passed the telephone to her through the open truck window.

After being discovered by the victim, Carter and the defendant drove away and began to circle the neighborhood. At one point, they passed the victim, who was walking on the street one block from the apartment she shared with the defendant. Carter then dropped the defendant off and drove to the testing center, arriving sometime before 8:45 A.M. After completing two tests, she went to her office, where the defendant telephoned her around 1:30 P.M. that afternoon. He told her that after she had left, he and the victim had argued about her and that he " had to pack a bag and leave" because the victim had started saying again that she was going to hurt herself and blame it on him. He asked if he could come by and pick up her house [924 N.E.2d 730] keys so he would have a place to stay, but Carter refused.

Early in the afternoon of February 24, the victim's mother received a telephone call from the defendant. The defendant told her that he was calling from North Carolina, where his brother lived...

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