120 N.E.3d 679
Mass.2019Background
- On Oct. 24, 2007, Christopher Barbaro was shot dead in his apartment; his brother Bryan was shot and later identified Wally Simon as the assailant in a 911 call and grand jury testimony.
- Police located and interviewed Simon at his attorney Daniel Solomon’s office; Solomon advised or acquiesced to the interview, no Miranda warnings were given, and the interview lasted ~5–10 minutes.
- Physical evidence: coins from Christopher’s collection were found in Simon’s SUV; a .25 caliber bullet matching the murder weapon was found at Simon’s home; cash was found at his spouse’s residence.
- Simon was tried and convicted of first‑degree felony murder (based on armed robbery and armed home invasion) and related offenses; he sought suppression of his statements and later moved for a new trial alleging ineffective assistance by Solomon.
- The motion judge denied the new trial motion; the Supreme Judicial Court reviewed ineffective‑assistance, alleged prosecutorial burden‑shifting during cross‑examination/closing, and a double‑jeopardy challenge to duplicative convictions.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Simon) | Held |
|---|---|---|---|
| Ineffective assistance for attorney who allowed interview | Solomon’s brief consultation and presence substituted for Miranda and did not prejudice the defense | Solomon failed to investigate or advise about Miranda; his conduct caused Simon to make statements and likely affected verdict | No reversal: counsel’s conduct caused the statement but statements were exculpatory and cumulative; no substantial likelihood of miscarriage of justice |
| Burden‑shifting by prosecutor re: failure to record interview | Questions/responding inferences about why no recording existed were proper responses to defense questioning | Cross and closing comments shifted burden by highlighting defendant’s failure to preserve evidence | No reversible error: prosecution responded to defense themes; jury instructed on burden and caution re: unrecorded interview |
| Double jeopardy / duplicative convictions | Conviction for underlying felony is duplicative when murder is under felony‑murder theory | Simon argued both armed robbery and armed home invasion should not both survive alongside felony murder | Vacated the armed robbery conviction (deemed the better predicate); affirmed murder and other convictions; underlying predicate felony vacated as duplicative |
| Motion for new trial / §33E relief | Commonwealth opposed new trial and extraordinary relief | Simon sought new trial based on ineffective assistance and urged §33E relief | Denied: trial judge’s denial of new trial affirmed; no basis for §33E extraordinary relief |
Key Cases Cited
- Commonwealth v. Celester, 473 Mass. 553 (attorney must investigate and advise before telling client to speak; counsel‑caused statements can prejudice verdict)
- Commonwealth v. DiGiambattista, 442 Mass. 423 (preference for recording custodial interrogations; jury may be instructed to weigh unrecorded statements with caution)
- Commonwealth v. Rasmusen, 444 Mass. 657 (when multiple predicate felonies exist, court selects which offense better serves as predicate; other duplicative convictions vacated)
- Commonwealth v. Gunter, 427 Mass. 259 (underlying felony in felony‑murder is a lesser included offense and its conviction is duplicative)
- Commonwealth v. Celester (repeated reasoning cited alongside Millien and Williams), 473 Mass. 553 (see above)
- Commonwealth v. Millien, 474 Mass. 417 (standards for ineffective assistance review)
- Commonwealth v. Williams, 453 Mass. 203 (defendant may receive review under more favorable prejudice standard in capital or first‑degree murder context)
- Commonwealth v. Miranda, 458 Mass. 100 (limits on impermissible burden‑shifting by prosecutor)
- Commonwealth v. Lucien, 440 Mass. 658 (vacating duplicate predicate felony convictions in felony‑murder cases)