125 N.E.3d 724
Mass.2019Background
- Defendant convicted of first-degree murder (premeditation and felony-murder) for victim's ligature strangulation; defendant also convicted of armed robbery and acquitted of witness intimidation.
- Key circumstantial evidence: defendant admitted being in victim's apartment late Nov 22; victim's Xbox/PlayStation missing; defendant's girlfriend saw a console next morning; defendant sold a PlayStation to Gesse the morning after; phone records show calls from victim's phone to defendant's drug dealer after defendant said he used victim's phone.
- Witness Leal testified he saw a text from Murray calling defendant a "murderer" and that defendant later confessed to Leal that he strangled the victim; recorded jail calls show defendant trying to help Murray avoid police.
- State police DNA testing: cords and one headset mic had a major profile matching victim and a second, "inconclusive" minor profile; an independent affidavit later opined the defendant should have been excluded from that minor profile and criticized lab protocols.
- Defendant moved for a new trial claiming ineffective assistance for (inter alia) failing to retain a DNA expert, failing to exclude inconclusive DNA results, inadequate cross-examination on DNA, and failing to press that the PlayStation sold to Gesse was not proved to be the victim's; motion denied and appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Murray's text via Leal (hearsay) | Text was context only; necessary to explain defendant's confession | Testimony was hearsay and prejudicial; no limiting instruction | Admission not erroneous: text provided context for defendant's party-opponent confession; no substantial likelihood of miscarriage of justice |
| Ineffective assistance — failure to retain DNA expert | Counsel's failure to obtain/consult an expert prejudiced defense; independent affidavit shows exclusion/opinion issues | DNA was inconclusive and of limited importance; counsel reasonably assessed result as favorable and not worth expert battle | No substantial likelihood of miscarriage of justice; admission of inconclusive DNA was proper and defense would not have been helped materially |
| Failure to object/move to exclude "inconclusive" DNA | Counsel should have moved to exclude or seek Bowden instruction | Inconclusive results admissible where investigation issues suggested; defense itself raised investigative delay; motion would likely fail | Admission appropriate; omission did not prejudice verdict given other strong evidence |
| Closing argument re: PlayStation identity | Counsel should have challenged Sony activation records to sever link to victim | Counsel did argue lack of proof the PlayStation sold was victim’s; other theme-based strategy reasonable | No ineffective assistance; alternative arguments would be hindsight improvements only |
| § 33E reduction to second-degree murder | Defendant asks court to reduce verdict based on record errors | Commonwealth opposes; argues errors (if any) were harmless | Court declines § 33E relief; affirms convictions; notes one DNA testimony error but finds it harmless given overall evidence |
Key Cases Cited
- Commonwealth v. Bonnett, 472 Mass. 827 (contextual use of accusatory statements can remove hearsay character)
- Commonwealth v. Marshall, 434 Mass. 358 (statements by party-opponent admissible)
- Commonwealth v. Mattei, 455 Mass. 840 (definition and treatment of "inconclusive" DNA results)
- Commonwealth v. Mathews, 450 Mass. 858 (admissibility of inconclusive DNA when investigation integrity questioned)
- Commonwealth v. Talbot, 444 Mass. 586 (trial judge discretion on relevance)
- Commonwealth v. Bowden, 379 Mass. 472 (defense may argue inadequate police investigation)
- Commonwealth v. Copeland, 481 Mass. 255 (review standard for substantial likelihood of miscarriage of justice)
- Commonwealth v. Alicea, 464 Mass. 837 (same standard discussion)
- Commonwealth v. Gonzalez, 443 Mass. 799 (ineffective assistance review language)
- Commonwealth v. MacKenzie, 413 Mass. 498 (ineffective assistance baseline)
- Commonwealth v. Grace, 397 Mass. 303 (deference to trial judge on new-trial motions)
- Commonwealth v. Woollam, 478 Mass. 493 (failure to object to admissible records not prejudicial)
- Commonwealth v. Field, 477 Mass. (battle of experts and impact on verdict)
- Commonwealth v. Denis, 442 Mass. 617 (closing-argument weakening does not alone show ineffective assistance)
- Commonwealth v. Salazar, 481 Mass. 105 (§ 33E broad review duty)
- Commonwealth v. Vargas, 475 Mass. 338 (§ 33E standards)
- Commonwealth v. Cameron, 473 Mass. 100 (distinguishing inconclusive from nonexclusion DNA results)
- Commonwealth v. Nesbitt, 452 Mass. 236 (context on nonexclusion DNA implications)
- Commonwealth v. Curnin, 409 Mass. 218 (definition of alleles)
- Commonwealth v. Barbosa, 463 Mass. 116 (cumulative testimony and harmlessness)