-: SJC-09903 Commonwealth v Leon Robinson.
Budd: Okay, attorney Cattick, whenever you're ready.
-: Okay, may it please the court.
Elizabeth Cattick for Leon Robinson.
There were two main defenses in this case.
One was mistaken identity
and one was the origin of the minuscule dot of blood
on Mr. Robinson's jacket.
Due to a number of errors by counsel of the court
and the district attorney,
these defenses were all but defeated.
First, the trial attorney committed
ineffective assistance of counsel
by not hiring an eyewitness ID expert.
The second was the failure to admit the swatch of blood
that the jury specifically asked for.
And the third was the court's failure
to give an honest but mistaken identification instruction.
-: Can I ask you about the swatch?
Cattick: Yeah.
-: Because we have the chemist, I take it, testifies that,
you know, I swabbed and I took out this little swatch,
and here's a jacket, and there's a missing piece.
And the failure was not to put the actual swatch
into evidence.
But this testimony was two millimeters.
And then there's a ruler that shows
this tiny two millimeter.
So how is that prejudicial given the evidence
that was properly before the jury?
-: Well, a couple of reasons.
One is it it was relevant to the jury.
They asked for it, they asked if it was admitted,
so they wanted to see it.
They already had the ruler,
they already heard the testimony.
-: But what are they gonna do with a little,
a tin that has a little tiny piece of fabric in it?
-: Well, for the same reason that the commonwealth
always wants to admit physical evidence,
the defense should have wanted to admit physical evidence.
It's very persuasive.
It's more persuasive than a ruler
and looking at the two little lines
and trying to be able to.
-: And it's a jacket with the hole essentially in it.
-: Yeah, but the hole doesn't represent the spot of blood.
So the relevance, of course, to the spot of blood
was that, even the commonwealth's expert agreed
that it was so small that it's hard for it to have been
a blood spatter because it's so small,
it doesn't travel much of a distance.
And she agreed that there can be transfer of blood
and DNA through contact.
And so the defense was that.
Gaziano: It was the handshake.
-: Yeah, and there was evidence that
the third party culprit defense was that it was the brother
and that there was evidence, even from the brother,
that he met Mr. Robinson later that day
and they may have shook hands.
So that's one of the failures.
-: Which way does it cut not to introduce it?
I mean, normally you're benefited by their failure
to dot their I's and cross their T's, right?
So why does this hurt you that they don't put this in?
-: Because the damage of the DNA testimony was already in.
They had the forensic scientists state
that the DNA was that of the victim.
And so the defense was that the spot of blood was so small,
it wasn't blood spatter.
It wasn't put there at the time of the shooting.
And so that's why it was important,
'cause it was now an item of defense as opposed to.
-: Wasn't it clear from all the testimony
and everything that it was a very tiny spot.
-: Right, but in my mind, I can't envision
what two millimeters is.
Gaziano: That's why you need a ruler.
-: But even a ruler,
how often do you look at a ruler
and you're trying to figure out
whether you're looking at inches or centimeters,
and where's one, where's two?
So, no, it's it's the spot of blood.
It's actually seeing that.
Well actually, seeing that you can't see it.
I mean, it hadn't been found, apparently,
for a year and a half.
It had been in the Commonwealth's possession
for a year and a half.
Someone eventually spotted it.
And so that was necessary for the jury to see.
And when the defense attorney knew that the jury came back
with a question asking if it was admitted,
knowing that the smallness of it,
the minuscule size of it was what was exculpatory,
he should have asked to reopen the evidence and admit it.
Certainly there could have been no harm,
because all the harm had already been done
with the testimony by the forensic scientist.
-: Can I ask you a different question
that you raised on the honest but mistaken instruction
that was asked for and not provided?
Are you aware of any cases
where we've said it should have been given,
but the standard instruction,
where it says something to the effect of,
"you may consider the witness may simply be mistaken,"
is sufficient to excuse a failure to give an honest
but mistaken instruction?
-: Well, I don't remember finding a case like that.
I cited cases in the brief where the court,
one was the appeals court, had stated that,
in that particular case,
because there could have been an honest
but mistaken identification, it was reversible error
not to give it when it was requested.
-: Yeah, I guess, more I'm concerned about the context
of the general instruction that does have some language,
not maybe enough to your liking,
but it does have some language in it.
-: Right, but it simply stated
that someone could have been mistaken,
but the honest but mistaken instruction goes into it more
and actually makes the witnesses seem more sympathetic
and allows the jury to feel that these witnesses
were trying to be honest, were trying to remember correctly,
but they were just mistaken.
-: Oh, that's actually, you answered the question,
the honest part of the honest but mistaken
is what's missing.
-: Right, exactly.
And it talks about how they try to do their best,
but people can be mistaken.
Also in this case,
that was such a legitimate instruction
because we had, which ties into the failure
to get an eyewitness identification expert,
we had the possibility of bystander misidentification
where Mr. Robinson was in the barbershop
getting his hair cut, continuing to socialize.
And all the research that shows,
and the research was available even before this 2005 trial,
that people will misidentify an innocent bystander,
sometimes three times as much as,
or sometimes six times as much
instead of the actual culprit.
Also, there was this change blindness, right?
We found out at trial that one of the eyewitnesses
said that Mr. Robinson left the barbershop
and sometime later came back in.
And so the argument by counsel,
but he didn't have an expert for it,
was that he could have just perceived,
as the research on change blindness says,
people expect continuity.
So they saw him go out,
and they expected him to come back in.
-: The motion judge found that the expert
could have cut both ways,
given the well lit area at the time,
the fact that observations were made beforehand
in a non-stressful environment,
and the interactions between the parties.
That cuts the other way on an expert.
-: Well, but if you still have bystander misidentification,
they had a long time to look at the bystander,
and then the change blindness.
Who they were describing was Robinson.
I think one example.
-: This is a strategic decision, correct?
-: Well, no, I disagree.
He said it was, he said that it could cut both ways.
-: Defense attorney said it was.
-: Yes, but he spoke in general terms about,
well, an expert could cut both ways.
There's no evidence that he even.
-: I thought he said he made the tactical decision not to.
-: Yeah, but that's not the end of the evaluation.
Just 'cause he says, oh, I did a fine job.
I mean, it had to have been reasonable when made,
and it would've been reasonable.
-: But it's our standard though, right?
'Cause we take ineffective assistance,
and even in murder cases, on strategic decisions
differently than we do other decisions.
-: That could be, but even a tactical decision,
as I said, has to be reasonable when made.
And had he hired an eyewitness ID expert,
consulted with him, and then decided,
oh, this is a double-edged sword.
I'm not going to call him.
Then it would be much harder to argue against.
But he didn't, he didn't specify
anything specific about why it would be difficult
in this case.
And what we have, some evidence of change blindness,
is that Rainey and Macintosh, the two eyewitnesses,
and Rainey had only been in there about 20 minutes.
They had testified that Leon Robinson walked with a limp.
None of them had testified that afterwards
they saw the shooter walk with a limp.
The only person who saw just the shooter
was Dorinda Carter.
She saw him walk out of the store
and she saw him walking along Commonwealth Avenue
when she was turning around.
And she said she paused for about 10 seconds
as she was making a U-turn and she saw the shooter walking.
She was asked specifically, did he have a limp?
She said, no.
So there's evidence to support not only the need
for an eyewitness ID expert,
but also for the honest but mistaken identification.
And that went along with what the defense attorney
was arguing in his closing remark,
that they made a mistake
and they had the weapon.
They were stressed.
He left, he came back and they misidentified him
as being there just for the haircut.
So by not having the instruction,
the instruction would've become the law of the case
had the judge given it.
By not giving the instruction, then the defense attorney
was left with just making his own argument,
which the judge told them is not evidence.
So that's why the instruction was important.
And so that was another way that one of his defenses
was defeated.
And there, I'd also like to get to
the improper closing argument about motive.
The defense, of course, was that it was Michael
who was the shooter,
and there was a substantial amount of evidence
that the night before the shooting,
Bobby Stevens had a fight with the victim,
and he claimed the victim had choked him.
He got very upset.
He came into the store
and he made a motion with his hand in his pocket
as if he had a gun.
Some people ran.
He went to his cousin Michael,
and explained to Michael what the victim had done,
and said, "I wanna kill him."
And Michael said to him, "I'll take care of it."
And during his testimony,
Bobby Stevens admitted to this.
He admitted that he even said to Ricardo, the victim,
"I'm going to get someone to get you."
And he said to the police, "And by that I meant Michael."
Then later, the night before the murder,
Bobby Stevens goes to these three
Boston College students' house and rants about Ricardo,
and says he's going to kill him.
And that his cousin, Michael, said he'd take care of it.
And then the defense evidence was that Robinson
met up with his brother Michael later that day.
And Michael admitted on the stand
they could have shaken hands.
So that was a well-crafted third party culprit defense
that it was Michael who was the shooter.
Then after all this at closing argument,
the Commonwealth said, well, Michael and Leon are brothers.
So saying that only Michael has the motive
and not Leon doesn't make sense.
Aren't they both brothers?
Doesn't Leon have the same motive?
Well, there was no evidence that Leon had any motive.
There was no evidence that he was at all involved
or knew anything about the fight the evening before.
And yet what the.
-: Did they live together?
Leon and Michael?
-: No.
No, and there's the evidence of,
Michael lived right near there,
and Leon lived in West Roxbury, not in Braden.
And the defense counsel objected to the argument,
and the judge overruled it.
So it gave the appearance.
I mean, not only was there not a curative instruction,
the jury was given the impression
that it was a legitimate argument
and it was something that they could consider.
And so again, that was the additional way
in which the defenses were defeated
by these errors at trial.
I would like to then, anyone have any questions
about those arguments?
Okay, I would like to talk about
the denial of his motion to proceed pro se,
because of his desire to present a specific defense
that his defense counsels did not.
There were two hearings.
-: Did the colloquy take care of that?
-: No.
Oh, the colloquy?
No, because what the judge did is ask him.
-: You feel like they struck a bargain.
-: No, no, no.
I think if you carefully read it, they did not.
What he did is, after she said,
"I understand the how difficult this will be,
you're an intelligent person.
I know you have some experience in the criminal law,
though, not a jury trial, and I know you understand
what you're facing, but I'm not comfortable
with you representing yourself,
because this is a first degree murder case
and you need the skill of a lawyer,"
or words to that effect.
And so she then denied him his right to proceed pro se.
And then he said, "Well, I understand,
but I want to put on the record my objection,
that I want my defense presented."
And then she said, clearly as a way to placate him,
well, she didn't say, you can then,
after the defense rests, she said,
after the defense rests, if you want,
you can come up to sidebar
and you could put an objection on the record.
She certainly didn't say,
"Okay, I'm suspending my decision on this.
Let's go to trial.
And if you don't like how it's going, then come up
and remake your motion to proceed pro se
and I'll take it from there."
That's not at all what she said.
She was just telling him he could put his objection
on the record during trial if he wanted.
So that was very different.
And so the defense attorneys were clear,
stating multiple times.
-: Sorry, can I just ask, so did he take her up on that?
-: He did not, but the defense attorneys did.
They took a sidebar when the DNA expert was about to testify
and told the court, "I am questioning this expert
for our defense.
I am not raising the defense my client wants,
and he wants me to put on the record
that this defense we're raising is over his objection."
So it was put on the record during trial,
but it was by defense counsel.
-: I'm sorry.
So the defendant didn't come up
and say, here we are,
this is the issue that I wanted to deal with?
-: No, but there's no way he could have presented
his case.
-: Was he unambiguous in his quest to be pro se?
-: Yes.
And it's because the defense attorneys came in,
particularly on March 10th, 2005, in that hearing,
and said, "We've had hours and hours of discussion with him.
We are at an impasse.
We are not going to raise his defense.
And he said he would rather go pro se."
And throughout that hearing, they said,
"He wants to go pro se."
And that is legitimate.
I've cited case law that says that a lawyer
can speak for the client,
particularly when the client is right there.
And so there was never.
-: The quote I have is, "Your honor,
I understand it'll be a tremendous task.
I'm not as good with the law as it might seem.
I'm not.
I'm willing to go along with counsel with their theory
and not to go pro se on this."
-: Right, are you quoting from the Commonwealth's brief?
Because the defendant then goes on to say,
"But I want my defense presented."
I mean, he was willing to have the defense.
It was the defense attorneys who said,
"We can't do both, we can't say that."
-: I'm quoting from the record.
-: Oh, okay.
When I looked at what the Commonwealth quoted,
and I went to the record, he said,
"But I still want my defense presented."
He was willing to have both the defense attorney.
-: But it seems like he wants his cake and eat it.
He says, "I don't wanna go pro se,
but I want it my way."
-: Well, what he's saying is,
"I know it's difficult to go pro se,
but if I have to, if that's the only way
I can get my defense presented, then that's what I want."
I agree, he's inarticulate.
-: We'll look at the record carefully
to see whether or not he unambiguously said
he wanted to go pro se and he was denied.
-: He did unambiguously say he wanted to go pro se.
I think the most the Commonwealth could argue
is that he conceded that the lawyers
could raise their defense and his defense.
Initially, he was, I don't want their defenses
blaming my brother.
I don't like that, and I want mine.
And he eventually said, okay, they can raise their defense,
but I want my defense raised too.
If there are no further questions, thank you.
-: Attorney MacLean.
-: Good afternoon, may it please the court,
Ian MacLean on behalf of the Commonwealth.
I'd like to acknowledge the presence of two members
of the victim, Ricardo Robinson's family,
with us in the gallery here today,
as well as several of Mr. Robinson's family members
watching the live stream.
Your honors, I'd like to start
with the Guidardo issue briefly
before I go turn to the argument specifically raised by.
-: Is there any case law that says that if,
because a post-conviction case takes 18 years,
there's a waiver?
-: Not the number 18 years, your honor,
but Beauchamp from this court in 1997.
The test, as it was articulated then,
was where defendant, by his own fault,
fails to take a direct appeal in a timely fashion.
So the timely fashion has not been.
-: He was a runner, right?
-: Correct, your Honor.
He fled and was ultimately apprehended in California.
He picked up federal charges, had to settle at that time.
-: A little different than this.
MacLean: I'm sorry, your Honor?
-: Little different than this.
We have someone running.
Gaziano: This is on direct appeal.
-: Yes it is, 18 years after his conviction.
And, your honor, I think that the point there
is that if the defendant, by his own fault,
however it occurred by his own fault,
drags out the case, as he did here,
essentially dragging this appeal to a halt,
taking 18 years, he's not due the benefit
of changes in the law that happened there.
So that "timely fashion" that they referred to in Beauchamp,
not defined, but this court a few years ago
established the standing order to track
first degree murder cases and said,
18 months is the time period.
I'm not suggesting every case is actually gonna make it
in that standing order time period, but double it,
or even triple it.
-: This is the firearm conviction, right?
-: I'm sorry, your Honor?
-: We're dealing with the firearm conviction, right,
in this case?
-: Yes, your Honor.
Yes, your Honor.
-: Let me ask about the murder conviction.
MacLean: Sure.
-: On the honest but mistaken,
I take your brief, and it says that the judge said,
"You may consider whether the witness
simply may be mistaken."
That was in the standard instruction,
and the judge denied the honest but mistaken instruction.
Are there cases, to your knowledge, that say
that that language suffices to satisfy an instance
where an honest but mistaken should be given?
-: Well, your Honor, I think the Presley case
acknowledged the Rodriguez standard instruction
doesn't include that extra bit that the judge gave here,
but didn't provide any mandated language.
So to my knowledge, there are no cases
that provide the actual mandated language
to cover honest but mistaken.
-: Your knowledge is honest but mistaken is not mandated.
-: That's my understanding, your Honor.
And it's not covered in the standard Rodriguez.
But what was given here was not
the specific requested instruction by the defendant,
but this was the additional language
tacked onto the end of the Rodriguez charge.
-: Your opposing counsel
references an appeals court decision,
which reverses when it's not given.
What is your reaction to that?
-: Devrosio they refused to give it.
My understanding is that there's not any case law
that mandates it being given,
but they outright refused to give it.
And there they determined yes,
it should have been given there.
There's not a blanket.
-: But that case doesn't have the tack on
that the judge did in this case.
-: Correct, your honor.
That's what was refused.
In addition to the Rodriguez, the tack on was refused.
So here the tack on is,
"In analyzing identification testimony,
you may consider whether or not the witness
might simply be mistaken."
From my perspective, from the Commonwealth's perspective,
that covers the honest but mistaken portion of the charge.
And I'd point the court to Fawn,
as we all know, we read instructions.
-: Okay, I'm getting lost.
So that would wipe out the need
to ever give the honest but mistaken instruction then.
If mistake is enough,
then all our cases about this honest but mistaken,
it's all gratuitous.
That doesn't make sense, does it?
-: Well, your honor, I would point out
that this case happened, this trial happened back in 2005.
So the judge at the time didn't have the benefit
of any cases that have happened since then.
What the judge gave.
-: Again, and unlike Justice Gaziano,
I wasn't doing this in 2005, at least regularly.
What is, I'm confused though.
2005, wasn't the honest but mistaken instruction
in play at that time?
-: From my understanding.
Kafker: That's a question, not an answer
-: From my understanding, no, your Honor.
Rodriguez was sometime in the eighties, I believe,
and then Presley was the case that acknowledged
the possibility of an honest but mistake instruction.
Kafker: And that's what year?
MacLean: '83.
And there was no actual language given in Presley
as to mandated language to use
to communicate an honest but mistaken identification.
-: So when do we start regularly giving
the honest but mistaken instruction?
-: I'm not sure your honor, but it was after 2005.
-: So it's after this case
it becomes sort of a regular occurrence.
-: Yeah, so the point is not the magic language
that were used, but the language the judge used
at the time did that adequately communicate the concept.
-: But your opposing counsel does a good job of saying,
honest but mistaken gives a jury
a different take on things than mistaken.
You know, it's more sympathetic to,
or more receptive to, hey, a person can be doing
the best they can, but they've just got it wrong.
And it's not just, it's possible for having a mistake,
but it, it's more helpful,
or it wouldn't be de rigor, right?
-: Well, your Honor, I think if you read the tack on
to the Rodriguez instruction that was given here at 8-54,
that we've we're talking about,
and then you read that
in conjunction with the instructions on 8-13,
and those instructions are,
"You have to determine which witnesses to believe
and how much weight to give their testimony.
Also, in addition to finding the facts,
you also have to assess the credibility of the witnesses."
So I think when you read those three things together,
it covers both that they're blatantly lying to you
about their identification,
or that they believe it, but they're incorrect.
-: That's correct.
Then the honest but mistaken instructions.
Gaziano: Did she give you, I'm sorry.
-: Go ahead, go ahead.
-: Did she give you instruction that said
you can believe some of what a witness says,
and all of it, or parts of what they say?
-: I don't remember that that specific phrasing came in,
but you have to determine which witnesses to believe
and how much weight to give their testimony.
In addition, you have to also assess
the credibility of the witnesses.
That means the believability of the witness.
So to me that means you could believe part, all, some, none.
So they were given that instruction,
and as we said, there's no magic language,
and we have to read the instructions as a whole under Fan.
So while they didn't specifically use that word,
"Honest but mistaken,"
I think that was adequately communicated
through the combination of all the instructions
that were given here.
So I would then turn from there to the claims
of ineffective assistance of counsel,
beginning with the swatch.
-: Before you, 'cause I'm more bothered by this issue
than others.
So when we go through the case law out there,
we're not gonna find cases where the decision
not to give this honest but mistaken language
was reversible error,
or are we gonna find that?
-: I don't believe so, your Honor.
In and of itself, Devrosio,
the case the defendant cited, is the case that gets closest.
Kafker: That's the only one.
-: That gets closest.
But there, there was no additional language
to the standard Rodriguez given at all.
Nothing additional.
So turning to the ineffective assistance claims,
first regarding the swatch of the jacket,
attorney Boudreaux in his affidavit at defense exhibit 129,
or defense appendix 129,
acknowledged that this was not an error,
it was a tactical decision.
He didn't want to put in the commonwealth's evidence.
So because it was a tactical decision,
we look at whether it was manifestly unreasonable.
So what did he know at the time he made that decision?
He knew that the jacket itself was in evidence exhibit 38.
He knew that there was testimony
about the stain on the sleeve.
There was testimony about the size of the stain,
that it was two millimeters.
There was testimony about the cutting from the jacket,
again, the jacket itself being in evidence.
He knew that a ruler had come in so that they could measure,
the jurors could measure the size of the stain.
And he knew about the testimony
about the testing of the stain on the jacket
and the DNA results.
The two arguments that he wanted to make
as a result of the blood on the jacket
was they were not impacted
by the absence of the swatch itself.
And the swatch itself was merely cumulative
of all of the other pieces of evidence that came in.
So when you're analyzing the question
of whether it was a rational decision for him at the time
to not try to reopen evidence and then put the swatch in,
it was cumulative of all of the other evidence,
and it didn't prohibit him or prevent him
from making the two arguments he wanted to make
about the blood.
-: What about the argument of opposing counsel,
that the jury was specifically interested in the swatch?
They had asked a question.
How does that factor into the reasonableness
of this tactical decision?
-: I don't think it changes the analysis at all.
If you look at the marked document,
which is Record Appendix 120,
what the handwritten question said was,
"We would like to see the videotape."
So that's what they're concerned about,
something entirely unrelated.
And was the leather swatch part of the evidence?
That's all that they asked.
So I don't think that affects the situation at all.
And what Attorney Boudreaux said is,
regardless of whether it was at the time during the trial
or at the time when the question came, his response is,
"Why would I put the government's evidence in?
Why would I help the Commonwealth with their case?"
So was that decision manifestly unreasonable or not?
And it wasn't, because the ability to make the arguments
that he wanted to make from that piece of evidence
still existed,
and he made those arguments during his close.
-: Speaking of the closing, was it fair game
for the Commonwealth to say that,
"Well, they're brothers, so they had the same motive."?
-: Yes, your Honor.
Yes, your honor, it absolutely was.
Look at the defense closing argument.
The very first thing that he says is, "Who has the motive?"
And then three pages later, on volume 8 at page 123,
he says, "Michael Robinson had the motive."
So that's a fair response,
when the prosecution stands up to respond
to that argument that was made.
-: But is it speculative that, just because they're brothers,
that he would have the same motive?
-: Not necessarily, your Honor.
So Bobby Stevens, the person
that had the fight with the victim,
had the fight with the victim, came and reported to Michael,
the defendant's brother,
that he had this fight and was furious with him.
Then the testimony that did happen, justice Kafker,
they didn't live together, but the brother did testify
that he saw the defendant, Leon Robinson, every single day.
So from there you can draw the inference
that what was communicated to Michael Robinson
from Bobby about the fight that he had
was then communicated from Michael to his brother Leon,
the defendant in the case.
So it's an inference,
but it's a fair inference based on evidence that came in,
and it is a response which is completely appropriate
to the closing argument from the defense counsel
that led with, "Who has the motive?"
-: Did the defendant request to go pro se?
-: No, your Honor.
He waffled, and oscillated,
and prevaricated back and forth.
And that doesn't meet the standard.
Wendlandt: Which one?
-: All three.
All three, which he's basically still doing now.
So the right to counsel is automatic.
The right to represent yourself to proceed pro se
has to be invoked unequivocally.
And the reasoning for that is so that we don't have
this exact situation where a defendant comes up
and prevaricate, and waffles,
and goes back and forth, as this defendant did.
So this case is categorically different from Barbosa,
where the defendant unequivocally said,
"I wanna proceed pro se.
I'll represent myself and I'll proceed pro se."
Here, if you read the transcript
of the ex parte hearing on the 10th of May,
he said several things.
"I agree with the theory that they have at this point,"
was one of the statements he made.
"I probably wouldn't have any problems
with counsel's theory, with their first theory.
I really don't have no problem with it, your Honor.
And also I'm willing to go along with counsel,
with their theory, and not go pro se on this."
That is the exact opposite of unequivocally invoking
your right to represent yourself.
And I'd also remind the court,
as the Supreme Court has reminded us
in Brewer versus Williams, that courts must indulge
every reasonable presumption
against waiver of the right to counsel.
So here where there's waffling,
where there's going back and forth,
it doesn't meet that unequivocal standard.
So he did not invoke the right to represent himself.
Excuse me.
From there, unless there's somewhere in particular
the court would like to go, I'd address the Brady claim
that was raised.
So what we're talking about here, just as a brief reminder,
was during a pretrial interview,
a witness, Macintosh, indicated that the defendant
actually stepped from the doorway
outside of the barbershop for a moment
before he stepped back in,
and the lecture continued, and then the gun was drawn.
And that detail about stepping out
wasn't captured in his pretrial statements
that were produced in discovery.
So the defendant claims
that that constituted a Brady violation,
and respectfully, it's not even close to a Brady violation.
Brady violation requires three things.
One, that it was in the prosecution's care,
custody, or control.
We acknowledged that we were aware of it.
Two, that it's actually exculpatory,
this is not exculpatory, it's in innocuous detail.
And then three, that the defendant
suffered prejudice from it, which he didn't here.
By comparison or contrasting, I'd look at the Vaughn case,
where the new, or the undisclosed information,
completely undermined the defense theory
and arguably placed the defendant at the scene.
This is not anything like that.
Four different witnesses placed the defendant at the scene,
and the particular witness that we're talking about here,
Macintosh, indicated that the two,
the victim and the defendant, were in a discussion
in the doorway of the barbershop.
At some point during that discussion,
the defendant stepped outside of the barbershop
onto the sidewalk,
then he returned back into the barbershop.
That discussion, that lecture from the victim,
then continued.
Not there was a new conversation, continued.
That is a statement that it's the same person
that stepped out, stepped back in,
and the conversation continued.
Then the defendant drew the gun
and shot the victim in the abdomen.
So this detail that he stepped outside of the doorway
for a moment before stepping back in is an innocuous detail.
It's nothing like the details that were seen in Pope.
It's nothing like the details
that were seen in Rodriguez and Jevez,
where the defendant was unable
to effectively cross-examine the witness
because the new detail, he needed expert assistance
to be able to address that new detail.
Similar kind of situation in Vaughn.
This is categorically unlike those situations.
There was no Brady violation here.
This additional innocuous bit of information
was not exculpatory.
There was no failure to disclose
exculpatory information here.
Addressing the search warrant,
unless there's a different place
the court would like to go.
-: Can I take you back?
I'm just looking at the honest but mistaken.
I've got Commonwealth versus Presley from 1983,
which is the SJC case.
The defendant asked the judge
to repeat the jury instructions and tell Fair,
but we're talking about, and then the case ends
with the failure to give the honest but mistaken instruction
that was prejudicial and we reversed there.
So that's a 1983 SJC case.
MacLean: Yes, your Honor.
-: Saying you've gotta give it or we're gonna reverse.
So it's not just this lonely appeals court rescript,
but we got a SJC case right on point here.
-: Presley's the case, your Honor,
that acknowledged that the Rodriguez instruction
doesn't contain an honest but mistake of fact
component to it.
That's what Presley says.
-: But we were also reversed because they didn't give
the honest but mistaken instruction.
-: Because there was nothing additional that was given.
-: They didn't give any mistake there?
-: No, your Honor, my understanding is that Presley
is the standard Rodriguez charge,
which doesn't contain any additional information.
-: Has nothing about mistake, the standard Rodriguez charge?
-: No, your Honor, and that's what Presley was explaining
and held right there, that there has to be
some additional instruction given,
but we're not gonna tell you what exact language
has to be given, but some additional language.
And here there was additional language given,
just not the exact language
that the defendant asked to have given.
So the question is under Fan then,
looking at the charge as a whole,
did the judge adequately convey that concept,
and respectfully, he did,
when you combine the additional that he gave on 54,
volume 8-54 with the components of the charge
that came on pages 12 and 13 of volume eight.
So turning to the search warrant claim
that there was a lack of nexus.
Respectfully, the affidavit had all that was needed
to establish a nexus to the defendant's residence.
The affidavit established the defendant was the shooter,
multiple people identified him,
multiple known, named people in the affidavit
identified him as the shooter.
The affidavit established that the residence,
the apartment 53, was his.
He admitted that after he was Mirandized,
they confirmed it with the Boston Housing Authority.
Then the question is, how do we get to,
these items are within the apartment itself?
What we have is him being taken into custody
six hours after the murder occurred,
wearing a jacket consistent with the descriptions
that were provided by multiple witnesses at the scene.
But the clothing he's wearing underneath the jacket,
not consistent.
And he was taken into custody at a convenience store
right outside of his apartment complex,
after the meeting was arranged
through conversations with his mother.
So what we have is him wearing one item of clothing,
but not the other items of clothing when he's arrested,
taken into custody near his apartment
a few hours after the murder.
It's an entirely reasonable inference
that he went home, changed his clothes,
and those clothes are still in the apartment.
It's also reasonable that the gun,
an item, a durable good of continuing utility
would also be in the residence.
Even if you were unwilling to accept that inference,
saying that it may have inherently incriminating value,
so it wouldn't be in the residence.
The other factor you have to consider
is his opportunity to get rid of it.
Would he have had enough time to get rid of it
in that six hour window?
Not necessarily.
He was still in the same area.
Then the third thing is the ammunition,
absent of a prior conviction,
which there isn't anything about in the affidavit.
Ammunition itself would not automatically be incriminating.
So that argument that maybe he wouldn't keep a gun
in the residence
because of its inherently incriminating nature
doesn't apply to ammunition.
And the search warrant was seeking the clothing
that he was wearing, that they had a description for,
the firearm and ammunition.
There was an adequate nexus to the residence.
It was a valid search warrant.
The last claim that we haven't really touched on yet
was the motion to view the file.
This court actually denied that motion
on a recommendation from the special master.
The defendant was seeking access,
unfettered access to the district attorney's file.
That motion was properly denied
for the reasons this court stated in its order.
It wasn't tethered to a pending motion for a new trial.
A motion to view the district attorney's file
is a motion for post-conviction discovery.
And under 30C4, any motion for post-conviction discovery
has to be tethered to a pending motion for new trial
with a specific claim.
And that's what prevents the phishing expedition,
because it's tethered with a prima facie showing
to a specific claim and an explanation
as to what this thing is
and how it's gonna support that claim.
Here, all of those precursors or requirements were absent,
so this court properly denied that motion to view the file.