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SJC-09903 Commonwealth v Leon Robinson.
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Okay, attorney Cattick, whenever you're ready.
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Okay, may it please the court.
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Elizabeth Cattick for Leon Robinson.
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There were two main defenses in this case.
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One was mistaken identity
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and one was the origin of the minuscule dot of blood
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on Mr. Robinson's jacket.
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Due to a number of errors by counsel of the court
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and the district attorney,
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these defenses were all but defeated.
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First, the trial attorney committed
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ineffective assistance of counsel
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by not hiring an eyewitness ID expert.
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The second was the failure to admit the swatch of blood
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that the jury specifically asked for.
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And the third was the court's failure
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to give an honest but mistaken identification instruction.
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Can I ask you about the swatch?
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Yeah.
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Because we have the chemist, I take it, testifies that,
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you know, I swabbed and I took out this little swatch,
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and here's a jacket, and there's a missing piece.
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And the failure was not to put the actual swatch
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into evidence.
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But this testimony was two millimeters.
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And then there's a ruler that shows
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this tiny two millimeter.
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So how is that prejudicial given the evidence
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that was properly before the jury?
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Well, a couple of reasons.
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One is it it was relevant to the jury.
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They asked for it, they asked if it was admitted,
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so they wanted to see it.
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They already had the ruler,
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they already heard the testimony.
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But what are they gonna do with a little,
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a tin that has a little tiny piece of fabric in it?
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Well, for the same reason that the commonwealth
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always wants to admit physical evidence,
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the defense should have wanted to admit physical evidence.
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It's very persuasive.
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It's more persuasive than a ruler
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and looking at the two little lines
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and trying to be able to.
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And it's a jacket with the hole essentially in it.
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Yeah, but the hole doesn't represent the spot of blood.
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So the relevance, of course, to the spot of blood
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was that, even the commonwealth's expert agreed
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that it was so small that it's hard for it to have been
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a blood spatter because it's so small,
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it doesn't travel much of a distance.
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And she agreed that there can be transfer of blood
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and DNA through contact.
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And so the defense was that.
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It was the handshake.
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Yeah, and there was evidence that
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the third party culprit defense was that it was the brother
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and that there was evidence, even from the brother,
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that he met Mr. Robinson later that day
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and they may have shook hands.
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So that's one of the failures.
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Which way does it cut not to introduce it?
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I mean, normally you're benefited by their failure
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to dot their I's and cross their T's, right?
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So why does this hurt you that they don't put this in?
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Because the damage of the DNA testimony was already in.
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They had the forensic scientists state
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that the DNA was that of the victim.
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And so the defense was that the spot of blood was so small,
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it wasn't blood spatter.
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It wasn't put there at the time of the shooting.
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And so that's why it was important,
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'cause it was now an item of defense as opposed to.
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Wasn't it clear from all the testimony
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and everything that it was a very tiny spot.
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Right, but in my mind, I can't envision
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what two millimeters is.
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That's why you need a ruler.
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But even a ruler,
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how often do you look at a ruler
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and you're trying to figure out
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whether you're looking at inches or centimeters,
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and where's one, where's two?
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So, no, it's it's the spot of blood.
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It's actually seeing that.
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Well actually, seeing that you can't see it.
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I mean, it hadn't been found, apparently,
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for a year and a half.
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It had been in the Commonwealth's possession
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for a year and a half.
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Someone eventually spotted it.
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And so that was necessary for the jury to see.
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And when the defense attorney knew that the jury came back
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with a question asking if it was admitted,
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knowing that the smallness of it,
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the minuscule size of it was what was exculpatory,
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he should have asked to reopen the evidence and admit it.
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Certainly there could have been no harm,
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because all the harm had already been done
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with the testimony by the forensic scientist.
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Can I ask you a different question
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that you raised on the honest but mistaken instruction
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that was asked for and not provided?
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Are you aware of any cases
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where we've said it should have been given,
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but the standard instruction,
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where it says something to the effect of,
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"you may consider the witness may simply be mistaken,"
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is sufficient to excuse a failure to give an honest
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but mistaken instruction?
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Well, I don't remember finding a case like that.
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I cited cases in the brief where the court,
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one was the appeals court, had stated that,
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in that particular case,
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because there could have been an honest
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but mistaken identification, it was reversible error
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not to give it when it was requested.
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Yeah, I guess, more I'm concerned about the context
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of the general instruction that does have some language,
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not maybe enough to your liking,
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but it does have some language in it.
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Right, but it simply stated
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that someone could have been mistaken,
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but the honest but mistaken instruction goes into it more
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and actually makes the witnesses seem more sympathetic
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and allows the jury to feel that these witnesses
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were trying to be honest, were trying to remember correctly,
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but they were just mistaken.
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Oh, that's actually, you answered the question,
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the honest part of the honest but mistaken
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is what's missing.
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Right, exactly.
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And it talks about how they try to do their best,
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but people can be mistaken.
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Also in this case,
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that was such a legitimate instruction
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because we had, which ties into the failure
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to get an eyewitness identification expert,
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we had the possibility of bystander misidentification
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where Mr. Robinson was in the barbershop
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getting his hair cut, continuing to socialize.
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And all the research that shows,
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and the research was available even before this 2005 trial,
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that people will misidentify an innocent bystander,
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sometimes three times as much as,
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or sometimes six times as much
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instead of the actual culprit.
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Also, there was this change blindness, right?
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We found out at trial that one of the eyewitnesses
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said that Mr. Robinson left the barbershop
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and sometime later came back in.
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And so the argument by counsel,
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but he didn't have an expert for it,
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was that he could have just perceived,
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as the research on change blindness says,
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people expect continuity.
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So they saw him go out,
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and they expected him to come back in.
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The motion judge found that the expert
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could have cut both ways,
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given the well lit area at the time,
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the fact that observations were made beforehand
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in a non-stressful environment,
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and the interactions between the parties.
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That cuts the other way on an expert.
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Well, but if you still have bystander misidentification,
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they had a long time to look at the bystander,
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and then the change blindness.
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Who they were describing was Robinson.
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I think one example.
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This is a strategic decision, correct?
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Well, no, I disagree.
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He said it was, he said that it could cut both ways.
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Defense attorney said it was.
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Yes, but he spoke in general terms about,
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well, an expert could cut both ways.
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There's no evidence that he even.
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I thought he said he made the tactical decision not to.
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Yeah, but that's not the end of the evaluation.
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Just 'cause he says, oh, I did a fine job.
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I mean, it had to have been reasonable when made,
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and it would've been reasonable.
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But it's our standard though, right?
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'Cause we take ineffective assistance,
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and even in murder cases, on strategic decisions
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differently than we do other decisions.
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That could be, but even a tactical decision,
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as I said, has to be reasonable when made.
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And had he hired an eyewitness ID expert,
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consulted with him, and then decided,
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oh, this is a double-edged sword.
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I'm not going to call him.
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Then it would be much harder to argue against.
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But he didn't, he didn't specify
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anything specific about why it would be difficult
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in this case.
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And what we have, some evidence of change blindness,
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is that Rainey and Macintosh, the two eyewitnesses,
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and Rainey had only been in there about 20 minutes.
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They had testified that Leon Robinson walked with a limp.
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None of them had testified that afterwards
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they saw the shooter walk with a limp.
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The only person who saw just the shooter
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was Dorinda Carter.
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She saw him walk out of the store
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and she saw him walking along Commonwealth Avenue
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when she was turning around.
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And she said she paused for about 10 seconds
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as she was making a U-turn and she saw the shooter walking.
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She was asked specifically, did he have a limp?
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She said, no.
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So there's evidence to support not only the need
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for an eyewitness ID expert,
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but also for the honest but mistaken identification.
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And that went along with what the defense attorney
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was arguing in his closing remark,
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that they made a mistake
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and they had the weapon.
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They were stressed.
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He left, he came back and they misidentified him
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as being there just for the haircut.
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So by not having the instruction,
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the instruction would've become the law of the case
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had the judge given it.
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By not giving the instruction, then the defense attorney
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was left with just making his own argument,
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which the judge told them is not evidence.
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So that's why the instruction was important.
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And so that was another way that one of his defenses
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was defeated.
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And there, I'd also like to get to
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the improper closing argument about motive.
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The defense, of course, was that it was Michael
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who was the shooter,
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and there was a substantial amount of evidence
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that the night before the shooting,
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Bobby Stevens had a fight with the victim,
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and he claimed the victim had choked him.
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He got very upset.
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He came into the store
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and he made a motion with his hand in his pocket
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as if he had a gun.
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Some people ran.
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He went to his cousin Michael,
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and explained to Michael what the victim had done,
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and said, "I wanna kill him."
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And Michael said to him, "I'll take care of it."
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And during his testimony,
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Bobby Stevens admitted to this.
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He admitted that he even said to Ricardo, the victim,
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"I'm going to get someone to get you."
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And he said to the police, "And by that I meant Michael."
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Then later, the night before the murder,
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Bobby Stevens goes to these three
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Boston College students' house and rants about Ricardo,
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and says he's going to kill him.
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And that his cousin, Michael, said he'd take care of it.
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And then the defense evidence was that Robinson
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met up with his brother Michael later that day.
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And Michael admitted on the stand
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they could have shaken hands.
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So that was a well-crafted third party culprit defense
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that it was Michael who was the shooter.
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Then after all this at closing argument,
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00:13:51.240 --> 00:13:55.530
the Commonwealth said, well, Michael and Leon are brothers.
267
00:13:55.530 --> 00:13:59.250
So saying that only Michael has the motive
268
00:13:59.250 --> 00:14:01.200
and not Leon doesn't make sense.
269
00:14:01.200 --> 00:14:02.550
Aren't they both brothers?
270
00:14:02.550 --> 00:14:04.680
Doesn't Leon have the same motive?
271
00:14:04.680 --> 00:14:07.350
Well, there was no evidence that Leon had any motive.
272
00:14:07.350 --> 00:14:10.170
There was no evidence that he was at all involved
273
00:14:10.170 --> 00:14:14.640
or knew anything about the fight the evening before.
274
00:14:14.640 --> 00:14:15.870
And yet what the.
275
00:14:15.870 --> 00:14:17.940
Did they live together?
276
00:14:17.940 --> 00:14:18.773
Leon and Michael?
277
00:14:18.773 --> 00:14:20.010
No.
278
00:14:20.010 --> 00:14:21.990
No, and there's the evidence of,
279
00:14:21.990 --> 00:14:24.390
Michael lived right near there,
280
00:14:24.390 --> 00:14:28.323
and Leon lived in West Roxbury, not in Braden.
281
00:14:29.430 --> 00:14:34.430
And the defense counsel objected to the argument,
282
00:14:34.770 --> 00:14:36.510
and the judge overruled it.
283
00:14:36.510 --> 00:14:38.520
So it gave the appearance.
284
00:14:38.520 --> 00:14:42.180
I mean, not only was there not a curative instruction,
285
00:14:42.180 --> 00:14:43.410
the jury was given the impression
286
00:14:43.410 --> 00:14:45.750
that it was a legitimate argument
287
00:14:45.750 --> 00:14:48.330
and it was something that they could consider.
288
00:14:48.330 --> 00:14:51.330
And so again, that was the additional way
289
00:14:51.330 --> 00:14:54.480
in which the defenses were defeated
290
00:14:54.480 --> 00:14:56.763
by these errors at trial.
291
00:14:59.400 --> 00:15:04.400
I would like to then, anyone have any questions
292
00:15:04.500 --> 00:15:07.320
about those arguments?
293
00:15:07.320 --> 00:15:09.450
Okay, I would like to talk about
294
00:15:09.450 --> 00:15:14.450
the denial of his motion to proceed pro se,
295
00:15:16.530 --> 00:15:21.530
because of his desire to present a specific defense
296
00:15:22.184 --> 00:15:25.530
that his defense counsels did not.
297
00:15:25.530 --> 00:15:26.430
There were two hearings.
298
00:15:26.430 --> 00:15:29.520
Did the colloquy take care of that?
299
00:15:29.520 --> 00:15:30.353
No.
300
00:15:30.353 --> 00:15:31.186
Oh, the colloquy?
301
00:15:31.186 --> 00:15:34.980
No, because what the judge did is ask him.
302
00:15:34.980 --> 00:15:36.450
You feel like they struck a bargain.
303
00:15:36.450 --> 00:15:38.744
No, no, no.
304
00:15:38.744 --> 00:15:43.020
I think if you carefully read it, they did not.
305
00:15:43.020 --> 00:15:48.020
What he did is, after she said,
306
00:15:48.037 --> 00:15:53.037
"I understand the how difficult this will be,
307
00:15:53.280 --> 00:15:54.840
you're an intelligent person.
308
00:15:54.840 --> 00:15:57.270
I know you have some experience in the criminal law,
309
00:15:57.270 --> 00:16:01.717
though, not a jury trial, and I know you understand
310
00:16:01.717 --> 00:16:05.820
what you're facing, but I'm not comfortable
311
00:16:05.820 --> 00:16:07.440
with you representing yourself,
312
00:16:07.440 --> 00:16:09.330
because this is a first degree murder case
313
00:16:09.330 --> 00:16:10.890
and you need the skill of a lawyer,"
314
00:16:10.890 --> 00:16:12.210
or words to that effect.
315
00:16:12.210 --> 00:16:17.190
And so she then denied him his right to proceed pro se.
316
00:16:17.190 --> 00:16:21.240
And then he said, "Well, I understand,
317
00:16:21.240 --> 00:16:24.300
but I want to put on the record my objection,
318
00:16:24.300 --> 00:16:27.540
that I want my defense presented."
319
00:16:27.540 --> 00:16:32.070
And then she said, clearly as a way to placate him,
320
00:16:32.070 --> 00:16:36.030
well, she didn't say, you can then,
321
00:16:36.030 --> 00:16:38.610
after the defense rests, she said,
322
00:16:38.610 --> 00:16:41.130
after the defense rests, if you want,
323
00:16:41.130 --> 00:16:43.080
you can come up to sidebar
324
00:16:43.080 --> 00:16:45.753
and you could put an objection on the record.
325
00:16:46.680 --> 00:16:47.947
She certainly didn't say,
326
00:16:47.947 --> 00:16:50.718
"Okay, I'm suspending my decision on this.
327
00:16:50.718 --> 00:16:52.560
Let's go to trial.
328
00:16:52.560 --> 00:16:54.690
And if you don't like how it's going, then come up
329
00:16:54.690 --> 00:16:57.120
and remake your motion to proceed pro se
330
00:16:57.120 --> 00:16:57.960
and I'll take it from there."
331
00:16:57.960 --> 00:16:59.490
That's not at all what she said.
332
00:16:59.490 --> 00:17:01.890
She was just telling him he could put his objection
333
00:17:01.890 --> 00:17:04.241
on the record during trial if he wanted.
334
00:17:04.241 --> 00:17:06.330
So that was very different.
335
00:17:06.330 --> 00:17:10.530
And so the defense attorneys were clear,
336
00:17:10.530 --> 00:17:12.000
stating multiple times.
337
00:17:12.000 --> 00:17:15.540
Sorry, can I just ask, so did he take her up on that?
338
00:17:15.540 --> 00:17:18.600
He did not, but the defense attorneys did.
339
00:17:18.600 --> 00:17:23.600
They took a sidebar when the DNA expert was about to testify
340
00:17:24.125 --> 00:17:29.125
and told the court, "I am questioning this expert
341
00:17:30.462 --> 00:17:32.880
for our defense.
342
00:17:32.880 --> 00:17:36.962
I am not raising the defense my client wants,
343
00:17:36.962 --> 00:17:39.720
and he wants me to put on the record
344
00:17:39.720 --> 00:17:42.960
that this defense we're raising is over his objection."
345
00:17:42.960 --> 00:17:45.390
So it was put on the record during trial,
346
00:17:45.390 --> 00:17:47.163
but it was by defense counsel.
347
00:17:49.680 --> 00:17:50.949
I'm sorry.
348
00:17:50.949 --> 00:17:52.620
So the defendant didn't come up
349
00:17:52.620 --> 00:17:54.853
and say, here we are,
350
00:17:54.853 --> 00:17:59.703
this is the issue that I wanted to deal with?
351
00:18:01.020 --> 00:18:04.650
No, but there's no way he could have presented
352
00:18:07.290 --> 00:18:09.690
his case.
353
00:18:09.690 --> 00:18:14.690
Was he unambiguous in his quest to be pro se?
354
00:18:16.050 --> 00:18:16.890
Yes.
355
00:18:16.890 --> 00:18:20.400
And it's because the defense attorneys came in,
356
00:18:20.400 --> 00:18:23.970
particularly on March 10th, 2005, in that hearing,
357
00:18:23.970 --> 00:18:27.287
and said, "We've had hours and hours of discussion with him.
358
00:18:27.287 --> 00:18:29.550
We are at an impasse.
359
00:18:29.550 --> 00:18:32.109
We are not going to raise his defense.
360
00:18:32.109 --> 00:18:36.591
And he said he would rather go pro se."
361
00:18:36.591 --> 00:18:39.847
And throughout that hearing, they said,
362
00:18:39.847 --> 00:18:42.510
"He wants to go pro se."
363
00:18:42.510 --> 00:18:45.180
And that is legitimate.
364
00:18:45.180 --> 00:18:48.420
I've cited case law that says that a lawyer
365
00:18:48.420 --> 00:18:50.100
can speak for the client,
366
00:18:50.100 --> 00:18:52.980
particularly when the client is right there.
367
00:18:52.980 --> 00:18:54.489
And so there was never.
368
00:18:54.489 --> 00:18:57.810
The quote I have is, "Your honor,
369
00:18:57.810 --> 00:18:59.730
I understand it'll be a tremendous task.
370
00:18:59.730 --> 00:19:02.010
I'm not as good with the law as it might seem.
371
00:19:02.010 --> 00:19:02.970
I'm not.
372
00:19:02.970 --> 00:19:05.430
I'm willing to go along with counsel with their theory
373
00:19:05.430 --> 00:19:07.200
and not to go pro se on this."
374
00:19:07.200 --> 00:19:10.860
Right, are you quoting from the Commonwealth's brief?
375
00:19:10.860 --> 00:19:14.043
Because the defendant then goes on to say,
376
00:19:14.887 --> 00:19:17.760
"But I want my defense presented."
377
00:19:17.760 --> 00:19:21.450
I mean, he was willing to have the defense.
378
00:19:21.450 --> 00:19:24.787
It was the defense attorneys who said,
379
00:19:24.787 --> 00:19:27.611
"We can't do both, we can't say that."
380
00:19:27.611 --> 00:19:28.680
I'm quoting from the record.
381
00:19:28.680 --> 00:19:29.513
Oh, okay.
382
00:19:32.340 --> 00:19:35.640
When I looked at what the Commonwealth quoted,
383
00:19:35.640 --> 00:19:39.157
and I went to the record, he said,
384
00:19:39.157 --> 00:19:42.990
"But I still want my defense presented."
385
00:19:42.990 --> 00:19:45.000
He was willing to have both the defense attorney.
386
00:19:45.000 --> 00:19:46.710
But it seems like he wants his cake and eat it.
387
00:19:46.710 --> 00:19:48.720
He says, "I don't wanna go pro se,
388
00:19:48.720 --> 00:19:50.490
but I want it my way."
389
00:19:50.490 --> 00:19:51.697
Well, what he's saying is,
390
00:19:51.697 --> 00:19:55.020
"I know it's difficult to go pro se,
391
00:19:55.020 --> 00:19:58.872
but if I have to, if that's the only way
392
00:19:58.872 --> 00:20:03.480
I can get my defense presented, then that's what I want."
393
00:20:03.480 --> 00:20:04.710
I agree, he's inarticulate.
394
00:20:04.710 --> 00:20:06.120
We'll look at the record carefully
395
00:20:06.120 --> 00:20:08.850
to see whether or not he unambiguously said
396
00:20:08.850 --> 00:20:11.043
he wanted to go pro se and he was denied.
397
00:20:12.660 --> 00:20:15.510
He did unambiguously say he wanted to go pro se.
398
00:20:15.510 --> 00:20:20.510
I think the most the Commonwealth could argue
399
00:20:20.984 --> 00:20:25.984
is that he conceded that the lawyers
400
00:20:27.300 --> 00:20:30.450
could raise their defense and his defense.
401
00:20:30.450 --> 00:20:32.280
Initially, he was, I don't want their defenses
402
00:20:32.280 --> 00:20:33.210
blaming my brother.
403
00:20:33.210 --> 00:20:35.970
I don't like that, and I want mine.
404
00:20:35.970 --> 00:20:38.970
And he eventually said, okay, they can raise their defense,
405
00:20:38.970 --> 00:20:41.013
but I want my defense raised too.
406
00:20:45.450 --> 00:20:47.793
If there are no further questions, thank you.
407
00:20:51.270 --> 00:20:52.233
Attorney MacLean.
408
00:20:54.330 --> 00:20:55.710
Good afternoon, may it please the court,
409
00:20:55.710 --> 00:20:57.900
Ian MacLean on behalf of the Commonwealth.
410
00:20:57.900 --> 00:21:01.080
I'd like to acknowledge the presence of two members
411
00:21:01.080 --> 00:21:03.090
of the victim, Ricardo Robinson's family,
412
00:21:03.090 --> 00:21:04.380
with us in the gallery here today,
413
00:21:04.380 --> 00:21:06.780
as well as several of Mr. Robinson's family members
414
00:21:06.780 --> 00:21:08.030
watching the live stream.
415
00:21:09.030 --> 00:21:11.100
Your honors, I'd like to start
416
00:21:11.100 --> 00:21:13.140
with the Guidardo issue briefly
417
00:21:13.140 --> 00:21:16.058
before I go turn to the argument specifically raised by.
418
00:21:16.058 --> 00:21:18.840
Is there any case law that says that if,
419
00:21:18.840 --> 00:21:21.522
because a post-conviction case takes 18 years,
420
00:21:21.522 --> 00:21:24.390
there's a waiver?
421
00:21:24.390 --> 00:21:25.890
Not the number 18 years, your honor,
422
00:21:25.890 --> 00:21:28.050
but Beauchamp from this court in 1997.
423
00:21:28.050 --> 00:21:29.700
The test, as it was articulated then,
424
00:21:29.700 --> 00:21:31.650
was where defendant, by his own fault,
425
00:21:31.650 --> 00:21:34.590
fails to take a direct appeal in a timely fashion.
426
00:21:34.590 --> 00:21:36.330
So the timely fashion has not been.
427
00:21:36.330 --> 00:21:38.160
He was a runner, right?
428
00:21:38.160 --> 00:21:38.993
Correct, your Honor.
429
00:21:38.993 --> 00:21:40.950
He fled and was ultimately apprehended in California.
430
00:21:40.950 --> 00:21:42.978
He picked up federal charges, had to settle at that time.
431
00:21:42.978 --> 00:21:43.811
A little different than this.
432
00:21:43.811 --> 00:21:44.644
I'm sorry, your Honor?
433
00:21:44.644 --> 00:21:46.294
Little different than this.
434
00:21:46.294 --> 00:21:48.990
We have someone running.
435
00:21:48.990 --> 00:21:50.820
This is on direct appeal.
436
00:21:50.820 --> 00:21:53.493
Yes it is, 18 years after his conviction.
437
00:21:54.690 --> 00:21:56.250
And, your honor, I think that the point there
438
00:21:56.250 --> 00:21:58.450
is that if the defendant, by his own fault,
439
00:21:58.450 --> 00:22:00.720
however it occurred by his own fault,
440
00:22:00.720 --> 00:22:02.550
drags out the case, as he did here,
441
00:22:02.550 --> 00:22:05.070
essentially dragging this appeal to a halt,
442
00:22:05.070 --> 00:22:07.200
taking 18 years, he's not due the benefit
443
00:22:07.200 --> 00:22:08.850
of changes in the law that happened there.
444
00:22:08.850 --> 00:22:11.250
So that "timely fashion" that they referred to in Beauchamp,
445
00:22:11.250 --> 00:22:13.920
not defined, but this court a few years ago
446
00:22:13.920 --> 00:22:16.260
established the standing order to track
447
00:22:16.260 --> 00:22:17.490
first degree murder cases and said,
448
00:22:17.490 --> 00:22:19.200
18 months is the time period.
449
00:22:19.200 --> 00:22:21.390
I'm not suggesting every case is actually gonna make it
450
00:22:21.390 --> 00:22:23.700
in that standing order time period, but double it,
451
00:22:23.700 --> 00:22:24.773
or even triple it.
452
00:22:24.773 --> 00:22:27.300
This is the firearm conviction, right?
453
00:22:27.300 --> 00:22:28.133
I'm sorry, your Honor?
454
00:22:28.133 --> 00:22:30.291
We're dealing with the firearm conviction, right,
455
00:22:30.291 --> 00:22:31.286
in this case?
456
00:22:31.286 --> 00:22:32.274
Yes, your Honor.
457
00:22:32.274 --> 00:22:33.510
Yes, your Honor.
458
00:22:33.510 --> 00:22:34.950
Let me ask about the murder conviction.
459
00:22:34.950 --> 00:22:36.277
Sure.
460
00:22:36.277 --> 00:22:38.790
On the honest but mistaken,
461
00:22:38.790 --> 00:22:42.337
I take your brief, and it says that the judge said,
462
00:22:42.337 --> 00:22:43.950
"You may consider whether the witness
463
00:22:43.950 --> 00:22:45.630
simply may be mistaken."
464
00:22:45.630 --> 00:22:48.447
That was in the standard instruction,
465
00:22:48.447 --> 00:22:52.170
and the judge denied the honest but mistaken instruction.
466
00:22:52.170 --> 00:22:55.620
Are there cases, to your knowledge, that say
467
00:22:55.620 --> 00:23:00.620
that that language suffices to satisfy an instance
468
00:23:01.680 --> 00:23:03.840
where an honest but mistaken should be given?
469
00:23:03.840 --> 00:23:07.200
Well, your Honor, I think the Presley case
470
00:23:07.200 --> 00:23:09.450
acknowledged the Rodriguez standard instruction
471
00:23:09.450 --> 00:23:12.510
doesn't include that extra bit that the judge gave here,
472
00:23:12.510 --> 00:23:14.850
but didn't provide any mandated language.
473
00:23:14.850 --> 00:23:16.590
So to my knowledge, there are no cases
474
00:23:16.590 --> 00:23:18.990
that provide the actual mandated language
475
00:23:18.990 --> 00:23:21.150
to cover honest but mistaken.
476
00:23:21.150 --> 00:23:24.570
Your knowledge is honest but mistaken is not mandated.
477
00:23:24.570 --> 00:23:26.053
That's my understanding, your Honor.
478
00:23:26.053 --> 00:23:28.170
And it's not covered in the standard Rodriguez.
479
00:23:28.170 --> 00:23:29.400
But what was given here was not
480
00:23:29.400 --> 00:23:31.470
the specific requested instruction by the defendant,
481
00:23:31.470 --> 00:23:32.820
but this was the additional language
482
00:23:32.820 --> 00:23:34.800
tacked onto the end of the Rodriguez charge.
483
00:23:34.800 --> 00:23:36.180
Your opposing counsel
484
00:23:36.180 --> 00:23:37.860
references an appeals court decision,
485
00:23:37.860 --> 00:23:40.680
which reverses when it's not given.
486
00:23:40.680 --> 00:23:43.530
What is your reaction to that?
487
00:23:43.530 --> 00:23:45.543
Devrosio they refused to give it.
488
00:23:46.440 --> 00:23:48.000
My understanding is that there's not any case law
489
00:23:48.000 --> 00:23:49.590
that mandates it being given,
490
00:23:49.590 --> 00:23:51.180
but they outright refused to give it.
491
00:23:51.180 --> 00:23:52.230
And there they determined yes,
492
00:23:52.230 --> 00:23:53.310
it should have been given there.
493
00:23:53.310 --> 00:23:54.143
There's not a blanket.
494
00:23:54.143 --> 00:23:55.890
But that case doesn't have the tack on
495
00:23:55.890 --> 00:23:57.780
that the judge did in this case.
496
00:23:57.780 --> 00:23:58.613
Correct, your honor.
497
00:23:58.613 --> 00:23:59.490
That's what was refused.
498
00:23:59.490 --> 00:24:01.680
In addition to the Rodriguez, the tack on was refused.
499
00:24:01.680 --> 00:24:03.487
So here the tack on is,
500
00:24:03.487 --> 00:24:05.430
"In analyzing identification testimony,
501
00:24:05.430 --> 00:24:07.050
you may consider whether or not the witness
502
00:24:07.050 --> 00:24:09.090
might simply be mistaken."
503
00:24:09.090 --> 00:24:10.710
From my perspective, from the Commonwealth's perspective,
504
00:24:10.710 --> 00:24:14.160
that covers the honest but mistaken portion of the charge.
505
00:24:14.160 --> 00:24:15.720
And I'd point the court to Fawn,
506
00:24:15.720 --> 00:24:17.132
as we all know, we read instructions.
507
00:24:17.132 --> 00:24:19.950
Okay, I'm getting lost.
508
00:24:19.950 --> 00:24:22.830
So that would wipe out the need
509
00:24:22.830 --> 00:24:26.184
to ever give the honest but mistaken instruction then.
510
00:24:26.184 --> 00:24:28.110
If mistake is enough,
511
00:24:28.110 --> 00:24:32.117
then all our cases about this honest but mistaken,
512
00:24:32.117 --> 00:24:33.930
it's all gratuitous.
513
00:24:33.930 --> 00:24:36.270
That doesn't make sense, does it?
514
00:24:36.270 --> 00:24:37.440
Well, your honor, I would point out
515
00:24:37.440 --> 00:24:39.840
that this case happened, this trial happened back in 2005.
516
00:24:39.840 --> 00:24:41.370
So the judge at the time didn't have the benefit
517
00:24:41.370 --> 00:24:43.350
of any cases that have happened since then.
518
00:24:43.350 --> 00:24:44.490
What the judge gave.
519
00:24:44.490 --> 00:24:46.770
Again, and unlike Justice Gaziano,
520
00:24:46.770 --> 00:24:51.210
I wasn't doing this in 2005, at least regularly.
521
00:24:51.210 --> 00:24:54.030
What is, I'm confused though.
522
00:24:54.030 --> 00:24:58.062
2005, wasn't the honest but mistaken instruction
523
00:24:58.062 --> 00:25:00.033
in play at that time?
524
00:25:01.250 --> 00:25:03.030
From my understanding.
525
00:25:03.030 --> 00:25:04.980
That's a question, not an answer
526
00:25:04.980 --> 00:25:06.210
From my understanding, no, your Honor.
527
00:25:06.210 --> 00:25:08.100
Rodriguez was sometime in the eighties, I believe,
528
00:25:08.100 --> 00:25:10.650
and then Presley was the case that acknowledged
529
00:25:10.650 --> 00:25:13.320
the possibility of an honest but mistake instruction.
530
00:25:13.320 --> 00:25:14.610
And that's what year?
531
00:25:14.610 --> 00:25:15.630
'83.
532
00:25:15.630 --> 00:25:18.780
And there was no actual language given in Presley
533
00:25:18.780 --> 00:25:21.090
as to mandated language to use
534
00:25:21.090 --> 00:25:24.300
to communicate an honest but mistaken identification.
535
00:25:24.300 --> 00:25:26.730
So when do we start regularly giving
536
00:25:26.730 --> 00:25:29.370
the honest but mistaken instruction?
537
00:25:29.370 --> 00:25:31.950
I'm not sure your honor, but it was after 2005.
538
00:25:31.950 --> 00:25:33.270
So it's after this case
539
00:25:33.270 --> 00:25:36.060
it becomes sort of a regular occurrence.
540
00:25:36.060 --> 00:25:38.400
Yeah, so the point is not the magic language
541
00:25:38.400 --> 00:25:40.860
that were used, but the language the judge used
542
00:25:40.860 --> 00:25:43.443
at the time did that adequately communicate the concept.
543
00:25:43.443 --> 00:25:46.248
But your opposing counsel does a good job of saying,
544
00:25:46.248 --> 00:25:48.510
honest but mistaken gives a jury
545
00:25:48.510 --> 00:25:52.200
a different take on things than mistaken.
546
00:25:52.200 --> 00:25:56.043
You know, it's more sympathetic to,
547
00:25:57.270 --> 00:26:00.900
or more receptive to, hey, a person can be doing
548
00:26:00.900 --> 00:26:03.783
the best they can, but they've just got it wrong.
549
00:26:04.770 --> 00:26:08.010
And it's not just, it's possible for having a mistake,
550
00:26:08.010 --> 00:26:09.930
but it, it's more helpful,
551
00:26:09.930 --> 00:26:13.470
or it wouldn't be de rigor, right?
552
00:26:13.470 --> 00:26:15.360
Well, your Honor, I think if you read the tack on
553
00:26:15.360 --> 00:26:17.760
to the Rodriguez instruction that was given here at 8-54,
554
00:26:17.760 --> 00:26:18.780
that we've we're talking about,
555
00:26:18.780 --> 00:26:20.299
and then you read that
556
00:26:20.299 --> 00:26:22.410
in conjunction with the instructions on 8-13,
557
00:26:22.410 --> 00:26:23.287
and those instructions are,
558
00:26:23.287 --> 00:26:25.022
"You have to determine which witnesses to believe
559
00:26:25.022 --> 00:26:27.120
and how much weight to give their testimony.
560
00:26:27.120 --> 00:26:29.820
Also, in addition to finding the facts,
561
00:26:29.820 --> 00:26:33.000
you also have to assess the credibility of the witnesses."
562
00:26:33.000 --> 00:26:34.800
So I think when you read those three things together,
563
00:26:34.800 --> 00:26:37.530
it covers both that they're blatantly lying to you
564
00:26:37.530 --> 00:26:38.580
about their identification,
565
00:26:38.580 --> 00:26:40.440
or that they believe it, but they're incorrect.
566
00:26:40.440 --> 00:26:41.730
That's correct.
567
00:26:41.730 --> 00:26:43.180
Then the honest but mistaken instructions.
568
00:26:43.180 --> 00:26:44.278
Did she give you, I'm sorry.
569
00:26:44.278 --> 00:26:45.142
Go ahead, go ahead.
570
00:26:45.142 --> 00:26:45.975
Did she give you instruction that said
571
00:26:45.975 --> 00:26:47.040
you can believe some of what a witness says,
572
00:26:47.040 --> 00:26:50.786
and all of it, or parts of what they say?
573
00:26:50.786 --> 00:26:53.910
I don't remember that that specific phrasing came in,
574
00:26:53.910 --> 00:26:56.220
but you have to determine which witnesses to believe
575
00:26:56.220 --> 00:26:57.960
and how much weight to give their testimony.
576
00:26:57.960 --> 00:27:01.230
In addition, you have to also assess
577
00:27:01.230 --> 00:27:02.280
the credibility of the witnesses.
578
00:27:02.280 --> 00:27:03.870
That means the believability of the witness.
579
00:27:03.870 --> 00:27:06.387
So to me that means you could believe part, all, some, none.
580
00:27:06.387 --> 00:27:08.580
So they were given that instruction,
581
00:27:08.580 --> 00:27:10.200
and as we said, there's no magic language,
582
00:27:10.200 --> 00:27:13.020
and we have to read the instructions as a whole under Fan.
583
00:27:13.020 --> 00:27:15.517
So while they didn't specifically use that word,
584
00:27:15.517 --> 00:27:17.070
"Honest but mistaken,"
585
00:27:17.070 --> 00:27:18.422
I think that was adequately communicated
586
00:27:18.422 --> 00:27:20.310
through the combination of all the instructions
587
00:27:20.310 --> 00:27:21.363
that were given here.
588
00:27:24.840 --> 00:27:27.090
So I would then turn from there to the claims
589
00:27:27.090 --> 00:27:28.680
of ineffective assistance of counsel,
590
00:27:28.680 --> 00:27:30.210
beginning with the swatch.
591
00:27:30.210 --> 00:27:33.656
Before you, 'cause I'm more bothered by this issue
592
00:27:33.656 --> 00:27:34.650
than others.
593
00:27:34.650 --> 00:27:39.180
So when we go through the case law out there,
594
00:27:39.180 --> 00:27:44.180
we're not gonna find cases where the decision
595
00:27:44.640 --> 00:27:48.570
not to give this honest but mistaken language
596
00:27:48.570 --> 00:27:50.010
was reversible error,
597
00:27:50.010 --> 00:27:52.560
or are we gonna find that?
598
00:27:52.560 --> 00:27:53.850
I don't believe so, your Honor.
599
00:27:53.850 --> 00:27:55.920
In and of itself, Devrosio,
600
00:27:55.920 --> 00:27:58.570
the case the defendant cited, is the case that gets closest.
601
00:27:58.570 --> 00:27:59.403
That's the only one.
602
00:27:59.403 --> 00:28:00.236
That gets closest.
603
00:28:00.236 --> 00:28:01.140
But there, there was no additional language
604
00:28:01.140 --> 00:28:03.120
to the standard Rodriguez given at all.
605
00:28:03.120 --> 00:28:04.233
Nothing additional.
606
00:28:06.690 --> 00:28:08.640
So turning to the ineffective assistance claims,
607
00:28:08.640 --> 00:28:11.520
first regarding the swatch of the jacket,
608
00:28:11.520 --> 00:28:14.190
attorney Boudreaux in his affidavit at defense exhibit 129,
609
00:28:14.190 --> 00:28:15.810
or defense appendix 129,
610
00:28:15.810 --> 00:28:17.610
acknowledged that this was not an error,
611
00:28:17.610 --> 00:28:19.050
it was a tactical decision.
612
00:28:19.050 --> 00:28:21.750
He didn't want to put in the commonwealth's evidence.
613
00:28:21.750 --> 00:28:23.820
So because it was a tactical decision,
614
00:28:23.820 --> 00:28:25.650
we look at whether it was manifestly unreasonable.
615
00:28:25.650 --> 00:28:28.620
So what did he know at the time he made that decision?
616
00:28:28.620 --> 00:28:33.060
He knew that the jacket itself was in evidence exhibit 38.
617
00:28:33.060 --> 00:28:34.380
He knew that there was testimony
618
00:28:34.380 --> 00:28:35.700
about the stain on the sleeve.
619
00:28:35.700 --> 00:28:37.890
There was testimony about the size of the stain,
620
00:28:37.890 --> 00:28:39.051
that it was two millimeters.
621
00:28:39.051 --> 00:28:41.350
There was testimony about the cutting from the jacket,
622
00:28:41.350 --> 00:28:44.730
again, the jacket itself being in evidence.
623
00:28:44.730 --> 00:28:47.280
He knew that a ruler had come in so that they could measure,
624
00:28:47.280 --> 00:28:49.500
the jurors could measure the size of the stain.
625
00:28:49.500 --> 00:28:50.820
And he knew about the testimony
626
00:28:50.820 --> 00:28:52.710
about the testing of the stain on the jacket
627
00:28:52.710 --> 00:28:54.450
and the DNA results.
628
00:28:54.450 --> 00:28:56.910
The two arguments that he wanted to make
629
00:28:56.910 --> 00:28:59.940
as a result of the blood on the jacket
630
00:28:59.940 --> 00:29:03.390
was they were not impacted
631
00:29:03.390 --> 00:29:05.730
by the absence of the swatch itself.
632
00:29:05.730 --> 00:29:07.470
And the swatch itself was merely cumulative
633
00:29:07.470 --> 00:29:09.360
of all of the other pieces of evidence that came in.
634
00:29:09.360 --> 00:29:10.950
So when you're analyzing the question
635
00:29:10.950 --> 00:29:14.280
of whether it was a rational decision for him at the time
636
00:29:14.280 --> 00:29:17.640
to not try to reopen evidence and then put the swatch in,
637
00:29:17.640 --> 00:29:19.650
it was cumulative of all of the other evidence,
638
00:29:19.650 --> 00:29:21.270
and it didn't prohibit him or prevent him
639
00:29:21.270 --> 00:29:22.860
from making the two arguments he wanted to make
640
00:29:22.860 --> 00:29:23.693
about the blood.
641
00:29:23.693 --> 00:29:26.130
What about the argument of opposing counsel,
642
00:29:26.130 --> 00:29:29.520
that the jury was specifically interested in the swatch?
643
00:29:29.520 --> 00:29:31.050
They had asked a question.
644
00:29:31.050 --> 00:29:33.420
How does that factor into the reasonableness
645
00:29:33.420 --> 00:29:35.040
of this tactical decision?
646
00:29:35.040 --> 00:29:37.080
I don't think it changes the analysis at all.
647
00:29:37.080 --> 00:29:40.290
If you look at the marked document,
648
00:29:40.290 --> 00:29:42.660
which is Record Appendix 120,
649
00:29:42.660 --> 00:29:44.737
what the handwritten question said was,
650
00:29:44.737 --> 00:29:46.219
"We would like to see the videotape."
651
00:29:46.219 --> 00:29:48.030
So that's what they're concerned about,
652
00:29:48.030 --> 00:29:49.740
something entirely unrelated.
653
00:29:49.740 --> 00:29:52.770
And was the leather swatch part of the evidence?
654
00:29:52.770 --> 00:29:54.690
That's all that they asked.
655
00:29:54.690 --> 00:29:57.510
So I don't think that affects the situation at all.
656
00:29:57.510 --> 00:29:59.070
And what Attorney Boudreaux said is,
657
00:29:59.070 --> 00:30:01.320
regardless of whether it was at the time during the trial
658
00:30:01.320 --> 00:30:03.907
or at the time when the question came, his response is,
659
00:30:03.907 --> 00:30:06.120
"Why would I put the government's evidence in?
660
00:30:06.120 --> 00:30:08.490
Why would I help the Commonwealth with their case?"
661
00:30:08.490 --> 00:30:12.180
So was that decision manifestly unreasonable or not?
662
00:30:12.180 --> 00:30:14.730
And it wasn't, because the ability to make the arguments
663
00:30:14.730 --> 00:30:17.310
that he wanted to make from that piece of evidence
664
00:30:17.310 --> 00:30:18.480
still existed,
665
00:30:18.480 --> 00:30:21.000
and he made those arguments during his close.
666
00:30:21.000 --> 00:30:24.000
Speaking of the closing, was it fair game
667
00:30:24.000 --> 00:30:25.537
for the Commonwealth to say that,
668
00:30:25.537 --> 00:30:28.980
"Well, they're brothers, so they had the same motive."?
669
00:30:28.980 --> 00:30:29.813
Yes, your Honor.
670
00:30:29.813 --> 00:30:31.276
Yes, your honor, it absolutely was.
671
00:30:31.276 --> 00:30:33.300
Look at the defense closing argument.
672
00:30:33.300 --> 00:30:36.150
The very first thing that he says is, "Who has the motive?"
673
00:30:36.150 --> 00:30:39.420
And then three pages later, on volume 8 at page 123,
674
00:30:39.420 --> 00:30:42.540
he says, "Michael Robinson had the motive."
675
00:30:42.540 --> 00:30:44.010
So that's a fair response,
676
00:30:44.010 --> 00:30:45.690
when the prosecution stands up to respond
677
00:30:45.690 --> 00:30:46.650
to that argument that was made.
678
00:30:46.650 --> 00:30:49.650
But is it speculative that, just because they're brothers,
679
00:30:49.650 --> 00:30:51.270
that he would have the same motive?
680
00:30:51.270 --> 00:30:52.627
Not necessarily, your Honor.
681
00:30:52.627 --> 00:30:54.690
So Bobby Stevens, the person
682
00:30:54.690 --> 00:30:56.705
that had the fight with the victim,
683
00:30:56.705 --> 00:30:58.470
had the fight with the victim, came and reported to Michael,
684
00:30:58.470 --> 00:30:59.303
the defendant's brother,
685
00:30:59.303 --> 00:31:01.590
that he had this fight and was furious with him.
686
00:31:01.590 --> 00:31:04.410
Then the testimony that did happen, justice Kafker,
687
00:31:04.410 --> 00:31:08.970
they didn't live together, but the brother did testify
688
00:31:08.970 --> 00:31:12.630
that he saw the defendant, Leon Robinson, every single day.
689
00:31:12.630 --> 00:31:14.580
So from there you can draw the inference
690
00:31:14.580 --> 00:31:16.860
that what was communicated to Michael Robinson
691
00:31:16.860 --> 00:31:18.930
from Bobby about the fight that he had
692
00:31:18.930 --> 00:31:22.230
was then communicated from Michael to his brother Leon,
693
00:31:22.230 --> 00:31:23.790
the defendant in the case.
694
00:31:23.790 --> 00:31:25.170
So it's an inference,
695
00:31:25.170 --> 00:31:27.480
but it's a fair inference based on evidence that came in,
696
00:31:27.480 --> 00:31:30.570
and it is a response which is completely appropriate
697
00:31:30.570 --> 00:31:33.154
to the closing argument from the defense counsel
698
00:31:33.154 --> 00:31:36.530
that led with, "Who has the motive?"
699
00:31:36.530 --> 00:31:40.293
Did the defendant request to go pro se?
700
00:31:42.390 --> 00:31:43.223
No, your Honor.
701
00:31:43.223 --> 00:31:45.360
He waffled, and oscillated,
702
00:31:45.360 --> 00:31:47.160
and prevaricated back and forth.
703
00:31:47.160 --> 00:31:48.270
And that doesn't meet the standard.
704
00:31:48.270 --> 00:31:49.620
Which one?
705
00:31:49.620 --> 00:31:50.490
All three.
706
00:31:50.490 --> 00:31:53.880
All three, which he's basically still doing now.
707
00:31:53.880 --> 00:31:57.180
So the right to counsel is automatic.
708
00:31:57.180 --> 00:32:00.810
The right to represent yourself to proceed pro se
709
00:32:00.810 --> 00:32:03.060
has to be invoked unequivocally.
710
00:32:03.060 --> 00:32:04.950
And the reasoning for that is so that we don't have
711
00:32:04.950 --> 00:32:07.770
this exact situation where a defendant comes up
712
00:32:07.770 --> 00:32:09.330
and prevaricate, and waffles,
713
00:32:09.330 --> 00:32:12.270
and goes back and forth, as this defendant did.
714
00:32:12.270 --> 00:32:17.270
So this case is categorically different from Barbosa,
715
00:32:18.210 --> 00:32:20.557
where the defendant unequivocally said,
716
00:32:20.557 --> 00:32:22.410
"I wanna proceed pro se.
717
00:32:22.410 --> 00:32:24.900
I'll represent myself and I'll proceed pro se."
718
00:32:24.900 --> 00:32:26.550
Here, if you read the transcript
719
00:32:26.550 --> 00:32:29.430
of the ex parte hearing on the 10th of May,
720
00:32:29.430 --> 00:32:30.919
he said several things.
721
00:32:30.919 --> 00:32:34.260
"I agree with the theory that they have at this point,"
722
00:32:34.260 --> 00:32:36.157
was one of the statements he made.
723
00:32:36.157 --> 00:32:37.920
"I probably wouldn't have any problems
724
00:32:37.920 --> 00:32:39.570
with counsel's theory, with their first theory.
725
00:32:39.570 --> 00:32:41.820
I really don't have no problem with it, your Honor.
726
00:32:41.820 --> 00:32:43.560
And also I'm willing to go along with counsel,
727
00:32:43.560 --> 00:32:45.870
with their theory, and not go pro se on this."
728
00:32:45.870 --> 00:32:48.780
That is the exact opposite of unequivocally invoking
729
00:32:48.780 --> 00:32:50.820
your right to represent yourself.
730
00:32:50.820 --> 00:32:52.110
And I'd also remind the court,
731
00:32:52.110 --> 00:32:53.520
as the Supreme Court has reminded us
732
00:32:53.520 --> 00:32:55.731
in Brewer versus Williams, that courts must indulge
733
00:32:55.731 --> 00:32:57.690
every reasonable presumption
734
00:32:57.690 --> 00:33:00.270
against waiver of the right to counsel.
735
00:33:00.270 --> 00:33:01.410
So here where there's waffling,
736
00:33:01.410 --> 00:33:02.880
where there's going back and forth,
737
00:33:02.880 --> 00:33:04.920
it doesn't meet that unequivocal standard.
738
00:33:04.920 --> 00:33:07.833
So he did not invoke the right to represent himself.
739
00:33:09.901 --> 00:33:11.130
Excuse me.
740
00:33:11.130 --> 00:33:14.400
From there, unless there's somewhere in particular
741
00:33:14.400 --> 00:33:17.490
the court would like to go, I'd address the Brady claim
742
00:33:17.490 --> 00:33:18.423
that was raised.
743
00:33:19.680 --> 00:33:22.620
So what we're talking about here, just as a brief reminder,
744
00:33:22.620 --> 00:33:24.960
was during a pretrial interview,
745
00:33:24.960 --> 00:33:28.230
a witness, Macintosh, indicated that the defendant
746
00:33:28.230 --> 00:33:29.580
actually stepped from the doorway
747
00:33:29.580 --> 00:33:31.290
outside of the barbershop for a moment
748
00:33:31.290 --> 00:33:32.790
before he stepped back in,
749
00:33:32.790 --> 00:33:35.310
and the lecture continued, and then the gun was drawn.
750
00:33:35.310 --> 00:33:37.380
And that detail about stepping out
751
00:33:37.380 --> 00:33:39.660
wasn't captured in his pretrial statements
752
00:33:39.660 --> 00:33:41.610
that were produced in discovery.
753
00:33:41.610 --> 00:33:42.540
So the defendant claims
754
00:33:42.540 --> 00:33:44.340
that that constituted a Brady violation,
755
00:33:44.340 --> 00:33:47.400
and respectfully, it's not even close to a Brady violation.
756
00:33:47.400 --> 00:33:48.990
Brady violation requires three things.
757
00:33:48.990 --> 00:33:50.580
One, that it was in the prosecution's care,
758
00:33:50.580 --> 00:33:51.413
custody, or control.
759
00:33:51.413 --> 00:33:53.400
We acknowledged that we were aware of it.
760
00:33:53.400 --> 00:33:54.960
Two, that it's actually exculpatory,
761
00:33:54.960 --> 00:33:57.600
this is not exculpatory, it's in innocuous detail.
762
00:33:57.600 --> 00:33:58.590
And then three, that the defendant
763
00:33:58.590 --> 00:34:01.040
suffered prejudice from it, which he didn't here.
764
00:34:02.700 --> 00:34:05.850
By comparison or contrasting, I'd look at the Vaughn case,
765
00:34:05.850 --> 00:34:08.126
where the new, or the undisclosed information,
766
00:34:08.126 --> 00:34:10.590
completely undermined the defense theory
767
00:34:10.590 --> 00:34:12.480
and arguably placed the defendant at the scene.
768
00:34:12.480 --> 00:34:14.670
This is not anything like that.
769
00:34:14.670 --> 00:34:17.550
Four different witnesses placed the defendant at the scene,
770
00:34:17.550 --> 00:34:19.800
and the particular witness that we're talking about here,
771
00:34:19.800 --> 00:34:22.350
Macintosh, indicated that the two,
772
00:34:22.350 --> 00:34:24.090
the victim and the defendant, were in a discussion
773
00:34:24.090 --> 00:34:26.580
in the doorway of the barbershop.
774
00:34:26.580 --> 00:34:28.830
At some point during that discussion,
775
00:34:28.830 --> 00:34:30.630
the defendant stepped outside of the barbershop
776
00:34:30.630 --> 00:34:31.800
onto the sidewalk,
777
00:34:31.800 --> 00:34:33.900
then he returned back into the barbershop.
778
00:34:33.900 --> 00:34:36.450
That discussion, that lecture from the victim,
779
00:34:36.450 --> 00:34:38.790
then continued.
780
00:34:38.790 --> 00:34:41.280
Not there was a new conversation, continued.
781
00:34:41.280 --> 00:34:43.680
That is a statement that it's the same person
782
00:34:43.680 --> 00:34:45.120
that stepped out, stepped back in,
783
00:34:45.120 --> 00:34:47.370
and the conversation continued.
784
00:34:47.370 --> 00:34:49.830
Then the defendant drew the gun
785
00:34:49.830 --> 00:34:52.110
and shot the victim in the abdomen.
786
00:34:52.110 --> 00:34:54.630
So this detail that he stepped outside of the doorway
787
00:34:54.630 --> 00:34:57.510
for a moment before stepping back in is an innocuous detail.
788
00:34:57.510 --> 00:35:00.030
It's nothing like the details that were seen in Pope.
789
00:35:00.030 --> 00:35:01.380
It's nothing like the details
790
00:35:01.380 --> 00:35:04.440
that were seen in Rodriguez and Jevez,
791
00:35:04.440 --> 00:35:05.760
where the defendant was unable
792
00:35:05.760 --> 00:35:07.954
to effectively cross-examine the witness
793
00:35:07.954 --> 00:35:11.520
because the new detail, he needed expert assistance
794
00:35:11.520 --> 00:35:14.400
to be able to address that new detail.
795
00:35:14.400 --> 00:35:16.500
Similar kind of situation in Vaughn.
796
00:35:16.500 --> 00:35:18.510
This is categorically unlike those situations.
797
00:35:18.510 --> 00:35:19.860
There was no Brady violation here.
798
00:35:19.860 --> 00:35:22.222
This additional innocuous bit of information
799
00:35:22.222 --> 00:35:24.660
was not exculpatory.
800
00:35:24.660 --> 00:35:25.920
There was no failure to disclose
801
00:35:25.920 --> 00:35:27.453
exculpatory information here.
802
00:35:29.490 --> 00:35:30.510
Addressing the search warrant,
803
00:35:30.510 --> 00:35:31.500
unless there's a different place
804
00:35:31.500 --> 00:35:32.490
the court would like to go.
805
00:35:32.490 --> 00:35:33.750
Can I take you back?
806
00:35:33.750 --> 00:35:36.780
I'm just looking at the honest but mistaken.
807
00:35:36.780 --> 00:35:39.990
I've got Commonwealth versus Presley from 1983,
808
00:35:39.990 --> 00:35:42.000
which is the SJC case.
809
00:35:42.000 --> 00:35:42.960
The defendant asked the judge
810
00:35:42.960 --> 00:35:45.633
to repeat the jury instructions and tell Fair,
811
00:35:49.650 --> 00:35:52.620
but we're talking about, and then the case ends
812
00:35:52.620 --> 00:35:56.403
with the failure to give the honest but mistaken instruction
813
00:35:56.403 --> 00:35:58.860
that was prejudicial and we reversed there.
814
00:35:58.860 --> 00:36:02.700
So that's a 1983 SJC case.
815
00:36:02.700 --> 00:36:03.533
Yes, your Honor.
816
00:36:03.533 --> 00:36:05.310
Saying you've gotta give it or we're gonna reverse.
817
00:36:05.310 --> 00:36:09.032
So it's not just this lonely appeals court rescript,
818
00:36:09.032 --> 00:36:12.390
but we got a SJC case right on point here.
819
00:36:12.390 --> 00:36:13.410
Presley's the case, your Honor,
820
00:36:13.410 --> 00:36:16.050
that acknowledged that the Rodriguez instruction
821
00:36:16.050 --> 00:36:18.780
doesn't contain an honest but mistake of fact
822
00:36:18.780 --> 00:36:20.130
component to it.
823
00:36:20.130 --> 00:36:21.390
That's what Presley says.
824
00:36:21.390 --> 00:36:24.680
But we were also reversed because they didn't give
825
00:36:24.680 --> 00:36:25.680
the honest but mistaken instruction.
826
00:36:25.680 --> 00:36:27.600
Because there was nothing additional that was given.
827
00:36:27.600 --> 00:36:30.090
They didn't give any mistake there?
828
00:36:30.090 --> 00:36:32.060
No, your Honor, my understanding is that Presley
829
00:36:32.060 --> 00:36:33.720
is the standard Rodriguez charge,
830
00:36:33.720 --> 00:36:35.790
which doesn't contain any additional information.
831
00:36:35.790 --> 00:36:38.520
Has nothing about mistake, the standard Rodriguez charge?
832
00:36:38.520 --> 00:36:40.770
No, your Honor, and that's what Presley was explaining
833
00:36:40.770 --> 00:36:42.180
and held right there, that there has to be
834
00:36:42.180 --> 00:36:43.650
some additional instruction given,
835
00:36:43.650 --> 00:36:45.420
but we're not gonna tell you what exact language
836
00:36:45.420 --> 00:36:47.056
has to be given, but some additional language.
837
00:36:47.056 --> 00:36:49.219
And here there was additional language given,
838
00:36:49.219 --> 00:36:50.700
just not the exact language
839
00:36:50.700 --> 00:36:53.250
that the defendant asked to have given.
840
00:36:53.250 --> 00:36:54.930
So the question is under Fan then,
841
00:36:54.930 --> 00:36:56.640
looking at the charge as a whole,
842
00:36:56.640 --> 00:36:59.340
did the judge adequately convey that concept,
843
00:36:59.340 --> 00:37:00.840
and respectfully, he did,
844
00:37:00.840 --> 00:37:04.110
when you combine the additional that he gave on 54,
845
00:37:04.110 --> 00:37:07.440
volume 8-54 with the components of the charge
846
00:37:07.440 --> 00:37:11.343
that came on pages 12 and 13 of volume eight.
847
00:37:13.350 --> 00:37:15.960
So turning to the search warrant claim
848
00:37:15.960 --> 00:37:17.510
that there was a lack of nexus.
849
00:37:18.600 --> 00:37:20.700
Respectfully, the affidavit had all that was needed
850
00:37:20.700 --> 00:37:22.830
to establish a nexus to the defendant's residence.
851
00:37:22.830 --> 00:37:24.960
The affidavit established the defendant was the shooter,
852
00:37:24.960 --> 00:37:26.580
multiple people identified him,
853
00:37:26.580 --> 00:37:29.220
multiple known, named people in the affidavit
854
00:37:29.220 --> 00:37:30.960
identified him as the shooter.
855
00:37:30.960 --> 00:37:32.730
The affidavit established that the residence,
856
00:37:32.730 --> 00:37:34.680
the apartment 53, was his.
857
00:37:34.680 --> 00:37:36.540
He admitted that after he was Mirandized,
858
00:37:36.540 --> 00:37:39.318
they confirmed it with the Boston Housing Authority.
859
00:37:39.318 --> 00:37:40.980
Then the question is, how do we get to,
860
00:37:40.980 --> 00:37:43.860
these items are within the apartment itself?
861
00:37:43.860 --> 00:37:45.780
What we have is him being taken into custody
862
00:37:45.780 --> 00:37:47.730
six hours after the murder occurred,
863
00:37:47.730 --> 00:37:50.190
wearing a jacket consistent with the descriptions
864
00:37:50.190 --> 00:37:53.310
that were provided by multiple witnesses at the scene.
865
00:37:53.310 --> 00:37:55.140
But the clothing he's wearing underneath the jacket,
866
00:37:55.140 --> 00:37:56.790
not consistent.
867
00:37:56.790 --> 00:37:58.860
And he was taken into custody at a convenience store
868
00:37:58.860 --> 00:38:00.630
right outside of his apartment complex,
869
00:38:00.630 --> 00:38:01.980
after the meeting was arranged
870
00:38:01.980 --> 00:38:04.290
through conversations with his mother.
871
00:38:04.290 --> 00:38:06.870
So what we have is him wearing one item of clothing,
872
00:38:06.870 --> 00:38:09.840
but not the other items of clothing when he's arrested,
873
00:38:09.840 --> 00:38:11.970
taken into custody near his apartment
874
00:38:11.970 --> 00:38:13.710
a few hours after the murder.
875
00:38:13.710 --> 00:38:15.570
It's an entirely reasonable inference
876
00:38:15.570 --> 00:38:17.250
that he went home, changed his clothes,
877
00:38:17.250 --> 00:38:19.560
and those clothes are still in the apartment.
878
00:38:19.560 --> 00:38:20.910
It's also reasonable that the gun,
879
00:38:20.910 --> 00:38:23.730
an item, a durable good of continuing utility
880
00:38:23.730 --> 00:38:25.830
would also be in the residence.
881
00:38:25.830 --> 00:38:27.870
Even if you were unwilling to accept that inference,
882
00:38:27.870 --> 00:38:30.540
saying that it may have inherently incriminating value,
883
00:38:30.540 --> 00:38:32.850
so it wouldn't be in the residence.
884
00:38:32.850 --> 00:38:34.080
The other factor you have to consider
885
00:38:34.080 --> 00:38:35.910
is his opportunity to get rid of it.
886
00:38:35.910 --> 00:38:37.890
Would he have had enough time to get rid of it
887
00:38:37.890 --> 00:38:39.480
in that six hour window?
888
00:38:39.480 --> 00:38:40.890
Not necessarily.
889
00:38:40.890 --> 00:38:42.754
He was still in the same area.
890
00:38:42.754 --> 00:38:45.706
Then the third thing is the ammunition,
891
00:38:45.706 --> 00:38:48.420
absent of a prior conviction,
892
00:38:48.420 --> 00:38:50.220
which there isn't anything about in the affidavit.
893
00:38:50.220 --> 00:38:53.400
Ammunition itself would not automatically be incriminating.
894
00:38:53.400 --> 00:38:55.710
So that argument that maybe he wouldn't keep a gun
895
00:38:55.710 --> 00:38:56.543
in the residence
896
00:38:56.543 --> 00:38:58.711
because of its inherently incriminating nature
897
00:38:58.711 --> 00:39:00.840
doesn't apply to ammunition.
898
00:39:00.840 --> 00:39:03.390
And the search warrant was seeking the clothing
899
00:39:03.390 --> 00:39:05.250
that he was wearing, that they had a description for,
900
00:39:05.250 --> 00:39:07.230
the firearm and ammunition.
901
00:39:07.230 --> 00:39:08.940
There was an adequate nexus to the residence.
902
00:39:08.940 --> 00:39:11.250
It was a valid search warrant.
903
00:39:11.250 --> 00:39:14.020
The last claim that we haven't really touched on yet
904
00:39:15.240 --> 00:39:17.373
was the motion to view the file.
905
00:39:18.780 --> 00:39:20.640
This court actually denied that motion
906
00:39:20.640 --> 00:39:23.280
on a recommendation from the special master.
907
00:39:23.280 --> 00:39:24.540
The defendant was seeking access,
908
00:39:24.540 --> 00:39:27.851
unfettered access to the district attorney's file.
909
00:39:27.851 --> 00:39:30.600
That motion was properly denied
910
00:39:30.600 --> 00:39:32.880
for the reasons this court stated in its order.
911
00:39:32.880 --> 00:39:36.630
It wasn't tethered to a pending motion for a new trial.
912
00:39:36.630 --> 00:39:38.661
A motion to view the district attorney's file
913
00:39:38.661 --> 00:39:41.670
is a motion for post-conviction discovery.
914
00:39:41.670 --> 00:39:44.970
And under 30C4, any motion for post-conviction discovery
915
00:39:44.970 --> 00:39:47.910
has to be tethered to a pending motion for new trial
916
00:39:47.910 --> 00:39:49.620
with a specific claim.
917
00:39:49.620 --> 00:39:52.110
And that's what prevents the phishing expedition,
918
00:39:52.110 --> 00:39:54.210
because it's tethered with a prima facie showing
919
00:39:54.210 --> 00:39:56.010
to a specific claim and an explanation
920
00:39:56.010 --> 00:39:57.210
as to what this thing is
921
00:39:57.210 --> 00:39:58.740
and how it's gonna support that claim.
922
00:39:58.740 --> 00:40:01.920
Here, all of those precursors or requirements were absent,
923
00:40:01.920 --> 00:40:05.403
so this court properly denied that motion to view the file.