Commonwealth v. Simon

• Decision Date: 10 April 2019
• Docket Number: SJC-11666
• Citation: 481 Mass. 861,120 N.E.3d 679
• Parties: COMMONWEALTH v. Wally Jacques SIMON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

481 Mass. 861

120 N.E.3d 679

COMMONWEALTH

v.Wally Jacques SIMON.

SJC-11666

Supreme Judicial Court of Massachusetts, Middlesex..

Argued January 11, 2019

Decided April 10, 2019

Jennifer H. O'Brien, Billerica, for the defendant.

Emily K. Walsh, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Lenk, Gaziano, Cypher, & Kafker, JJ.

CYPHER, J.

A jury convicted the defendant, Wally Jacques Simon, of murder in the first degree on a theory of felony-murder for the killing of Christopher Barbaro (Christopher).¹ We consolidated the defendant's direct appeal with his appeal from the denial of his motion for a new trial. On appeal, the defendant contends that he received ineffective assistance of counsel; the prosecutor improperly shifted the burden of proof during cross-examination of a witness for the defendant; and the double jeopardy clause of the Fifth Amendment to the United States Constitution was violated when he was convicted of and sentenced for felony-murder as well as the predicate offenses of armed home invasion and armed robbery.

For the reasons stated infra, we vacate the defendant's underlying felony conviction of armed robbery as duplicative, affirm the defendant's remaining convictions, and affirm the denial of the defendant's motion for a new trial. After a thorough review of the record, we also decline to exercise our authority under G. L. c. 278, § 33E, to grant a new trial or to reduce or set aside the verdict of murder in the first degree.

1. Background. We summarize the facts that the jury could have found, reserving pertinent facts for the discussion of the defendant's arguments. On October 24, 2007, at approximately 12:30 A.M. , Christopher's brother, Bryan Barbaro (Bryan),² heard loud bangs and "some fumbling around" in the apartment below his own. The apartment was occupied by Christopher. Bryan went downstairs to investigate the loud noises and found his brother on the ground "flailing ... trying to get air." Bryan went to call for help, but was confronted by the defendant who was attempting to leave the apartment with a bag of money and rare coins.³ The defendant shot Bryan and a struggle ensued. During the struggle, the bag carrying the coins ripped open and coins scattered on the floor. The defendant fled the scene in a dark sport utility vehicle (SUV).

Bryan and Christopher had been friends of the defendant. Bryan had met the defendant at a local gym where the defendant exercised, and periodically, the defendant had worked for Bryan's construction company. Bryan had introduced the defendant to Christopher, and eventually, the defendant had supplied marijuana to Christopher, who was a marijuana dealer. Bryan testified that he had known the defendant for about seven years.⁴ The defendant also had been to Bryan and Christopher's residence.

After the defendant fled, Bryan went to his apartment to call 911. During the telephone conversation with the emergency dispatcher, Bryan stated that he recognized the assailant as "Wally," who worked out at a local gym. He also recounted the events of the shooting, gave a physical description of the assailant, and described the vehicle he drove -- a black SUV.

When police arrived, they observed a twenty dollar bill on the street in front of the house. Inside the house, police noticed coin books and various paper currency scattered on the stairway leading up to the second floor. The lock to the door of Christopher's apartment was broken. Inside his apartment, police found Christopher dead from a gunshot wound

to the head. There were multiple spent .25 caliber shell casings on the floor. On the third floor, police discovered Bryan lying on the couch with a gunshot wound to the chest. He was slipping in and out of consciousness. Bryan reiterated to the responding officers that Wally was the shooter.

Police immediately obtained the defendant's address from the local gym, located the defendant, and began to surveil him. The defendant was driving a dark SUV. Police followed the defendant to downtown Boston and approached him once he got out of his vehicle. Trooper Michael Banks of the State police stated that he wanted to talk to the defendant and pat frisked him while other officers stood nearby on the sidewalk. The defendant responded that he was speaking with his attorney on his cellular telephone (cell phone) and did not want to talk to police until meeting with his attorney.⁵ Soon thereafter, attorney Daniel Solomon came out to the street and approached the officers.⁶ Banks said to Solomon, "There was an incident in Winchester last night, and we want to talk to [the defendant] about it." Solomon informed Banks that he and the defendant would return to his office and that Solomon would notify police whether the defendant would speak with them. Banks gave Solomon his cell phone number, and waited with the other five or six officers downstairs for approximately one hour.

While waiting for Solomon to confer with the defendant, Banks received a telephone call from another trooper who had spoken with Bryan at the hospital. Bryan was shown a photographic array and identified the defendant as the man in his brother's apartment. Upon receiving this information, Banks telephoned Solomon to ask if the defendant would be willing to speak with them. Solomon consented, and the defendant, with Solomon present, proceeded to talk with Detective Paul DeLuca and Trooper Scott McCormack. Police did not give the defendant Miranda warnings prior to or during their questioning.

At the outset of the interview, McCormack stated that a double shooting and home invasion had taken place in Winchester the previous night, that one of the victims had died, and that the surviving victim had identified the defendant from a photographic array. McCormack then asked the defendant if he knew anyone in Winchester and where he had been the previous night. In response, the defendant said that he had known Bryan for several years and that they had met at the local gym. The defendant also said that he had worked for Bryan and knew Christopher through Bryan. In addition, the defendant provided an alibi for his whereabouts the previous night. He claimed that he was home watching a televised boxing event, and then went to his friend Dolores Mazil's home in Lynn before returning home to sleep. Before police could ask another question, Solomon advised the defendant not to say anything else. The interview lasted approximately five to ten minutes. The defendant was then arrested.

The next day, the defendant repeatedly telephoned an acquaintance, Anunzie Viel, who resided with Dolores in Lynn. Neither Mazil nor Viel could corroborate the defendant's alibi.⁷

After arresting the defendant, police searched his SUV and his home. In the defendant's SUV, police discovered a coin consistent with the types of coins Christopher collected. A search of the defendant's home produced a .25 caliber bullet in his top dresser drawer -- the same caliber as the gun that killed Christopher and injured Bryan. Police also discovered $ 1,000 in cash in the defendant's spouse's home.

2. Procedural history. Prior to trial, the defendant filed a motion to suppress the statements he made to police during his interview because he never received a Miranda warning.⁸ The motion judge denied the motion, and the defendant sought an interlocutory appeal, which a single justice reported to this court. We affirmed the motion judge's decision and concluded, inter alia, that although the defendant was in custody and police did not give him the Miranda warnings prior to conducting the interview, the presence of the defendant's attorney during police questioning, coupled with the fact that the defendant had an opportunity to consult with counsel before the questioning, substituted adequately for the giving of the Miranda warnings. Commonwealth v. Simon, 456 Mass. 280, 289, 923 N.E.2d 58, cert. denied, 562 U.S. 874, 131 S.Ct. 181, 178 L.Ed.2d 108 (2010) ( Simon I ). The defendant did not raise, and this court did not address, whether Solomon was ineffective for advising the defendant to speak with police without having conducted any factual investigation into the severity of the allegations against the defendant.

Following a jury trial, the defendant was convicted of murder in the first degree on a theory of felony-murder. In June 2016, the defendant filed a motion for a new trial. The motion was supported by his own affidavit and an affidavit from Solomon. In Solomon's affidavit, he testified that before conducting the interview with police he "asked the defendant repeatedly whether he knew why [police] were there and whether he ‘did anything.’ " Solomon claimed that the defendant "repeatedly and vociferously denied" any knowledge why police wanted to question him. Furthermore, Solomon stated: "During my meeting alone with the defendant, at no time did I go over his Miranda rights or his right to remain silent." Following a nonevidentiary hearing, the motion judge, who was also the trial judge, denied the defendant's motion. The motion judge presumed "for purposes of this decision only" that Solomon's conduct of conferring with the defendant and permitting him to speak with police fell measurably below that which might be expected from an ordinary fallible lawyer. The motion judge concluded, however, that Solomon's conduct did not deprive the defendant of an otherwise available, substantial ground of defense.

3. Discussion. a. Ineffective assistance of counsel. In his appeal from the denial of his motion for a new trial, the defendant contends that Solomon, who did not represent him at trial but was present during the police interview, was ineffective. The defendant contends that Solomon allowed him to confer with officers without first conducting an investigation into the allegations.

Generally, to establish ineffective assistance of counsel, the defendant bears the burden of showing "that there has been a ‘serious incompetency,...