What are the pieces of evidence that would support this NOT being an act performed in the "sudden heat of passion"? I'm not saying it wasn't necessarily murder 1 but curious if the evidence in the PH supports it.
While motive is not needed for M1, it certainly does help. The Judge stated out loud in court that he needed no further evidence that the Morphew marriage was a dumpster fire (paraphrasing). If Barry did not intend to kill Suzanne, but merely to tranquilizer her and...what? Have sex with her? Inject truth serum? Anyway - if she died due to his injection while he merely intended to restrain her and ask her questions, but she died, it's not M1.
Preplanning is always M1.
So...is the fact that Barry knew Suzanne was leaving him (from May 6 onward) evidence that he then began to think about killing her? Is it enough?
IOW, if Barry just grabbed what he had on hand (darts) when he found Suzanne sending photos to her lover (he knew something was wrong, he was suspicious, he was looking for just such a moment - perhaps not to kill her, but simply to denounce and interrogte her), and without thinking, he darted her (and then she died)...that's M2.
But if I were the judge I'd make him confess to that as a plea bargain - I wouldn't reduce the charges until the prosecution had a chance to provide all the evidence (SD's involvement, CC's involvement, GD's involvement, Fire Chief's observations, table of ALL the lies Barry has told) to a jury. Then let the jury decide between M1 and M2.
DV itself (whacking her on the nose, pinning her to the bed, making her wrestle herself away from him) can be considered premeditation of murder (because people can die from such events, especially if they are a bit frail). Don't punch a cancer patient in the face and expect a future judge or jury to look at you as innocent of preplanning harm to that person (there are at least 3 pieces of evidence about this type of violence). Judge also has the AA, where I'm sure there's a bit more.
There's also the body hiding/evidence destroying set of charges. Who put the files and the journal in the fireplace? Let the prosecution prove it was Suzanne's journal (at trial). Even if it was M2, those are enhancements to the sentence.
This all hangs on whether the Judge believes Barry had been trying to get Suzanne alone all week to kill her, or not. IMO. There's no evidence of a particular dart being filled with the specific purpose of rendering Suzanne helpless.
Barry doesn't change to Sunday as the start time for work scheduled for Monday until...Sunday, IIRC. Not evidence of premeditation (just very convenient). Seems he mostly destroyed evidence after the fact.
But if the Judge believes there was a tranquilizer dart that was filled (just that one dart) to shoot Suzanne, then it's M1, IMO. Again, probably best to put it before a jury - but I bet the Judge will be rereading many parts of the evidence/A.A. over with a different viewpoint this time.