Commonwealth v. Barnett

• Decision Date: 11 July 2019
• Docket Number: SJC-11910
• Citation: 125 N.E.3d 724,482 Mass. 632
• Parties: COMMONWEALTH v. Michael BARNETT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

482 Mass. 632

125 N.E.3d 724

COMMONWEALTH

v.Michael BARNETT.

SJC-11910

Supreme Judicial Court of Massachusetts, Middlesex..

Argued March 8, 2019.

Decided July 11, 2019.

Dennis A. Shedd, Lexington, 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.

Background. 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 conversation to the Somerville police department, which to that point had had little success investigating the victim's death.

The jury also heard expert testimony from a supervisor in the DNA unit at the State police crime laboratory. DNA testing was conducted on several samples from the crime scene, including the cords used to strangle the victim, a wallet, fingernail clippings, and two microphones from video game headsets. The laboratory had DNA samples from the victim, the defendant, the victim's mother, the victim's brother, and the police officer who had removed the cords from around the victim's neck. Two DNA profiles were found both on the cords wrapped around the victim's neck and on one of the microphones -- a major profile matching the victim's DNA, and a second of inconclusive origin. The second microphone had a major profile matching the victim's DNA and a second profile from which the defendant's DNA was excluded. The fingernail clippings matched the victim's DNA, while the victim's mother's wallet and purse each contained a mixture of DNA samples, none of which was conclusive. Defense counsel did not mention the DNA evidence in his closing argument, although the Commonwealth emphasized that because the second DNA sample found on the cords was inconclusive, "we can't tell you whether or not it's [the defendant]."

Finally, the jury heard conversations between Murray and the defendant, recorded while the defendant was in jail, in which the defendant attempted to help Murray avoid speaking to the police.

2. Motion for a new trial. After the defendant had been convicted, he filed a motion for a new trial asserting that his trial counsel was ineffective for failing to (1) sufficiently investigate the DNA evidence or retain a DNA expert; (2) move to exclude the Commonwealth's inconclusive DNA evidence; (3) adequately undercut inconsistencies in the Commonwealth expert's testimony on cross-examination; and (4) emphasize that the Commonwealth did not prove that the PlayStation that Gesse activated was the same PlayStation that was stolen from the victim's apartment. The motion judge, who was also the trial judge, denied the defendant's request for an evidentiary hearing on his motion. A DNA expert reviewed the DNA report on which the Commonwealth's expert had relied and provided an affidavit in which he opined that the defendant's DNA should have been excluded as a possible contributor to the second DNA sample found on the cords. The DNA expert also stated in his affidavit that the interpretation process utilized by the Commonwealth's expert was inconsistent with the protocols that were in place at the time at the State police crime laboratory.

Trial counsel submitted an affidavit in which he discussed receiving the State police crime laboratory's report that the DNA on the cords was inconclusive. Trial counsel indicated that, after reviewing those results, he "thought an inconclusive result was good. I did not consider retaining a DNA expert to review the evidence, moving to exclude the inconclusive results, objecting to the evidence when it was presented, or eliciting in cross-examination of the Commonwealth's expert that [the defendant] has alleles^{[5 ]} at at least six locations that were not present on the cords."

In denying the motion, the judge concluded that defense counsel's failure to investigate the DNA evidence through his own expert did not prejudice the defendant because the inconclusive DNA evidence was not a significant part of the Commonwealth's case, and therefore any testimony from a defense expert was unlikely to have had any effect on the jury's conclusion. She further held that, because the defense suggested the possibility that the defendant would pursue a Bowden defense in his opening statement and through cross-examination, the evidence was relevant and any motion to exclude it would have been denied. She further concluded that even if its admission had been erroneous, the inconclusive nature of the evidence did not prejudice the defendant and did not create a substantial risk of a miscarriage of...