Clerk: SJC-11251 Commonwealth vs. Eric Denson.
Attorney, occur him whenever you're ready.
(background clattering)
-: Good morning, may it please the court,
Dana Curhan for Eric Denson.
The identity of the assailant here
was the central issue at trial.
And there were some questionable identifications
that we contend substantially contributed to the verdict.
It includes, Michael Shay, who specifically identified
Denson at trial, they also included
Tony Taylor who identified the gas station photo
as depicting the assailant
and other witnesses who provided descriptions.
I think the problem here is that Taylor
threw two people out of the club
three or four minutes apart,
as somebody described as a troublemaker,
a black male troublemaker, and Denson,
or I'm sorry, the assailant who was also a black male,
and we contend that there's a reasonable possibility
that the witnesses may have confused the two.
So in connection with this
defense counsel sought to call Dr. Steven Penrod,
who was an expert on eye witness identification.
-: Mr. Curhan. -: Yes?
Lowy: Just before you get into that, on the ID,
putting aside that this is before Collins and Creighton
and putting aside that the Commonwealth
doesn't argue in its closing, the Shay ID,
is this an ID of he's the assailant,
or is this an ID based on the hat, clothing,
and who's left at what particular time
and went over to the Racing Mart?
-: I disagree that the Commonwealth
did not use the Shea identification.
There was one passage where he said something like,
just looking at the people who knew him,
or something like that,
but I don't think that's disclaiming Shay.
When you look at,
I think it's Volume 19 pages 63 and 74,
there are specific references
to Shay's identification testimony.
So he identified him as the person Taylor was throwing out.
He identified him as the person he was chasing.
And, you know, I think that the identification testimony
was pretty clear that, I mean,
he kept referring to him as I think, the stabber,
and things like that,
and was very clear that he was identifying Denson
as the person who did the stabbing.
Lowy: But he never said that, right,
he never said that, didn't he refer to him
as the person who left at a certain time
and then went over to the Racing Mart?
Maybe I have this wrong, but he's not saying
he was a percipient witness to the stabbing is he?
-: He is, well, he didn't say,
I think he said he looked
like a second after the stabbing had taken place
and he started identifying him as the stabber.
And there were objections sustained
and then there was a voir dire.
And then after the voir dire the judge said,
okay, he comes in and then he gave
full identifications of him as the person he chased,
the person who was thrown out,
the person who stabbed my friend Connor,
and so, you know, unquestionably,
that was an unequivocal identification of Denson
as the assailant.
So that really, I mean, that's actually the second issue
and I can start with that because I think
Creighton and Collins make it very clear
that this is improper.
In Collins, the issue was not preserved
it was raised as ineffective assistance.
In Creighton the issue was preserved
and the I think I in my brief
I said it was overturned on other issues,
it was actually overturned on this issue,
plus two other issues.
And I think when you look at this in that context
there were specific objections,
there were motions in limine to exclude it,
and there was the voir dire,
and there was a motion for mistrial.
There were all these things that happened
so it was extremely well-preserved
and there were other issues that I think contributed
to the conviction here.
Lowy: But so that you can have a chance
to respond to the Commonwealth before they say it,
they're going to say this is not an ID
of what a person looks like,
this is an ID based on,
Taylor took the person out,
they're going to go through the clothing,
there is a red hat, black hat issue with the brim,
but they are going to talk about
this is the person who ran across,
so they're going to argue
that this is not a quintessential ID, that's the person,
and so rather than not be able to respond to that,
can you address that issue?
-: Well, I mean, this was a specific identification
of the assailant as the assailant.
I mean he may have not been looking at him
during the second that he stabbed him,
but as he was turning away
that's when he identified him,
where he identified him and... -: But I'm not
asking the question right, I guess.
It's not because, oh, he looks like the person,
it's because they're following the person,
the person has certain clothes,
the person's the first one out,
the person runs across to the Racing Mart,
they follow him, you I'm sure
have a very good response to it
but that's what they're going to say.
-: Well, I think they did,
he did identify him as the assailant,
not necessarily based on the description.
You know he came into court and said,
Eric Denson's the guy who did it.
Kafker: You're talking about Shay at this point?
-: Shay.
Kafker: But so I think, I have the same concern
that Justice Lowy has though.
We've got a bunch of different identifications,
some by people who know
the defendant, right? -: Right.
Kafker: Why don't you walk through it,
like five or six people are doing IDs
at the same time here, right?
We've got Shay, we've got Taylor,
we've got his cousins picking him up or whoever in the car,
right, it's sort of a tracking device, right yeah.
-: Right, and I don't really have an issue
with the people who knew him saying,
yeah, that's Eric Denson.
Kafker: Right, but I think that's what
Justice Lowy is getting at, right,
is that we've got,
at a certain point we know who,
we've got people who know the defendant
identifying the defendant.
Earlier we have Taylor drawing a distinction
between two different people, right,
and where they leave and which door they go out of, right?
-: I'm sorry, there was the troublemaker,
and there was the assailant.
Kafker: And Taylor identifies the two, right,
and says he threw one person out one door
and the other out the other door, right?
Dana: That's right.
Kafker: And there's blood on the door,
one door and not the other door, right?
-: I think that's right.
The problem is that there's a real possibility
that some of the people who didn't know him,
none of the people who did know him
had anything really specific to say
identifying him as the assailant.
Kafker: So could you just sort of an offer of proof then,
if the expert,
and I mean everyone recognizes this guy as an expert,
I mean we even point him out, right,
as one of the leading. -: Right.
Kafker: (coughing) So what would he have testified to
in this context and how would it have helped the defendant?
I'm just trying to understand it more precisely.
-: Well, the offer of proof essentially
tracked the the Gomes factors,
the five Gomes factors and- -: But be more precise.
So in this context where we have
identification of the defendant by people know him,
once he's out of the building,
and it would undermine the Shay identification,
or is that what
it would undermine? -: It would undermine
the Shay identification,
as well as the people who didn't know him
who gave descriptions of his clothing.
Kafker: The expert would've testified that,
'cause it's clear that the guy's wearing a hat
with either a red brim, or a red hat,
I mean, I'm just trying to understand,
what would the expert have testified on that point
that would've helped you?
-: Well, I mean, I think he would have testified on,
generally on identifications
and the problem is that the judge gave
the Rodriguez instruction. -: Right, and he also gave
across racial identification instruction too, right?
-: He did. -: And in good faith.
-: Very briefly, but the thing is the Rodriguez instruction,
which is based, it came out in 1979,
and was based on a 1972 case,
the Rodriguez instruction essentially says,
use your common sense.
You know people might- -: Yeah, I get
that part of it.
I'm trying to understand though,
so like he would've testified
that people make bad IDs
'cause they confuse clothing with faces, right,
that's one of the points that he was gonna make,
but I don't understand how that works in this case.
-: I don't think he would've given specific instructions
as to, you know, people say that it was a red hat,
maybe it was a black hat,
I think what he would've said
is that human memory does not act like a,
operate like a video recording.
He would've talked about a witness's level of confidence,
that goes to directly to Michael Shay,
because he was very confident of his identification.
He would've talked about high levels of stress
that can reduce the likelihood
of making a proper identification.
He would've talked about information from other witnesses,
or outside sources, that can affect the reliability.
And of course Shay and others
had seen Denson's picture on TV.
Lowy: But when you look at Fenton, for instance,
who testifies that he saw the assailant
being taken out of the club,
and you look at Hudson, and you look at Alvarado,
and they're talking about the assailant is taken out.
None of those people are saying,
oh, the defendant looks like that person,
they're saying that's who they followed going out.
I mean honest but mistaken ID
was given, but how does what the expert would've said,
help as it relates to that kind of identification?
I think that's what Justice Kafker's asking
and I'd like to try and understand.
-: So, Ashley Hudson and Harmony Alvarado both knew Denson,
so I don't have a problem with them saying,
that was Eric Denson,
but here is the problem, Ashley Hudson testified
that Denson was thrown out of the mailbox door,
that's the one near the pool table
where the assailant was thrown out.
Harmony Alvarado testified
that Denson was thrown out of the entry door,
not the mailbox door, and she saw no one thrown out
before Denson. -: Yeah, that's a good point,
and he doubles down pretty hard on that.
-: Right. -: That's a good point,
that's certainly important.
-: And of course, you know,
somebody did come out after he got thrown out,
that's the taller guy. -: Right.
-: And that's the one he ran off with.
And the taller guy,
there was one witness who testified
that the assailant was a taller guy.
Now, the Commonwealth says that that
is one of the victim's friends, but, you know,
I think it's really up to the jury
to make that determination.
And I think there's a real possibility in this case
that the juror, that the witnesses
confused the troublemaker with the assailant.
Now,
there is a real possibility here
that Denson was the troublemaker and not the assailant.
Lowy: Except you've got the issue
of the blood in the Saturn.
-: You do have that, but there were a lot of people
who were covered with blood from the victim.
Lowy: Not the person who went out first.
-: Well, the person who went out first did not,
he remained in the parking lot for some period of time,
and he ran off with somebody who had been in the club
who possibly could've had blood on him.
Now, I'm not saying that the evidence
isn't legally sufficient,
what I am saying is that the jury
should have been permitted to hear testimony that
there are problems with eye-witness identifications,
and those problems potentially could have,
they're counterintuitive, they're not common sense,
they're not, the Rodriguez instruction is not sufficient.
Lowy: So you gotta deal with the forensics though
and the error from your perspective
as a matter of strategy of calling Dr. Bernstein,
and the problem here obviously
is that there's a one in, it's a randomly person,
that's one in 2.55 quadrillion,
as it relates to the blood in the Saturn,
and you've got it on the inside handle,
and when you're dealing with that, I mean,
there's only really one way out of that
and that is to raise serious questions
about the quality of the investigation
and Dr. Bernstein has all sorts of baggage
that you very effectively point out,
but without him, you got, how's the blood in there?
-: I mean,
I think a jury could very well have found
that the blood evidence, and the DNA evidence,
tied Denson to the victim.
The question is, were there other ways
he could've gotten blood on him?
Now again, I do not dispute
that the evidence was legally sufficient
to support the conviction,
what I dispute is that there is a reasonable possibility
that had the jury heard evidence from an expert on,
you know, here if you're considering the confusion
between the troublemaker and the assailant,
maybe everybody has made a collective mistake,
or a lot of people have made a collective mistake.
Kafker: But does that work with the,
I'm going back to the ID,
so we now know that the defendant has
the victim's blood on him,
otherwise it's not in the car.
We've got two different possibilities on ID, right?
I'm just wondering whether you can't have the ID problem,
be that big a problem given the,
we know these, there are two different people
who could've possibly done this, right,
but the defendant has the blood on him
and the other person is removed before everything happens.
So I'm just wondering whether the ID problem
that you're identifying goes away
because it's clear that we've got two different people
and the only question is do we have
them mix-matched somehow, but. -: Nobody ever
identified the troublemaker.
Nobody ever came forward and said, you know,
oh, I know who the troublemaker was.
Kafker: The troublemaker though,
really can't have the blood on his hand, right,
I mean is this- -: The troublemaker
can actually have blood on him.
Kafker: Only if he gets it from somebody else
running out of the building.
-: Exactly, or remained in the parking lot
when the victim came out,
because there were a lot of people
who ended up with the victim's blood on them.
And there was, I assume that there was
a small amount of blood
because nobody seems to have seen it on him,
but there was, he left a drop of blood in the Saturn.
So, you know, that goes to,
that probably goes to the weight of the evidence,
but I think the identification
was clearly the key issue at trial
and I think even with the blood, and the DNA evidence,
I think it is problematic.
Because again, even if you say that expert testimony
should not have been admitted or,
the judge was entitled to exclude the expert testimony,
the instructions that were given were inadequate
and this court said that in Gomes.
Lowy: Before you run outta time could you address
your hearsay argument?
-: The hearsay argument,
I mean that kind of bolsters the identification,
because somebody, unknown, said to Mr. Faley,
or he overheard somebody saying, Eric be buggin',
which would suggest that this defendant was outta control
and was upset and therefore was the perpetrator.
The problem was that there's a confrontation issue
and there's actually a foundation issue
because he said, well, I don't know if he said,
Eric be buggin' or E be buggin',
or he be buggin'.
Lowy: Isn't there another issue
that eh-na-ors to you a favor,
which is, actually the testimony doesn't come in
that the witness says that the out of court declarant said
that Eric be buggin',
he said that that's what he told the police.
-: I mean, I think none of it should've
come in. -: I understand, I understand,
I'm saying that you are arguing
that this spontaneous utterance
of what he said he heard
raises these issues of confrontation
and of an excited utterance.
I'm saying your arguments better than that,
because he doesn't testify as to what he heard,
he testifies as to what he told the police.
Dana: I will take that.
Clerk: Okay, any other questions?
Thank you. -: Thank you.
Clerk: Okay, attorney Sheppard-Brick.
-: Thank you, Chief Justice,
but may it please the court,
David Sheppard-Brick on behalf of the Commonwealth.
I'd like to start with the troublemaker
'cause I think that's a bit of a distraction issue
in terms what the evidence actually was.
Tony Taylor, who was the one
who ejected both of these individuals
said that he described the troublemaker
as a medium to light-skinned male,
wearing a tan leather jacket with embroidery
and some type of hood.
He described the assailant as a black-skinned male
wearing a black jacket.
And I would note that Taylor also described Reynolds,
as a medium-skinned male with no tan.
So I think that sort of right out of the water says
the defendant is not the troublemaker.
He also testified that he,
when he ejected the troublemaker,
he simply pushed him out the door.
He said, I pushed him out the door,
I didn't go outside, I didn't see anyone outside
because I wasn't outside,
I just sort of pushed him to the door and he went out.
He said that when he ejected the assailant
he carried him, bear hug,
carried him to the door
and they both sort of tumbled out the door
and he almost, he said, he dropped him on the door,
in the doorframe, or basically just right out the door.
Both Ashley Hudson, and Harmony Alvarado,
testified that they saw the defendant tackled out the door.
So, I don't think there's really any argument
that, I mean there is obviously,
but I don't think there's any really strong argument
that the defendant is the troublemaker.
He, in addition,
I know there was some confusion between,
I think it was Hudson who said mailbox door,
Alvarado said no, it was the entry door,
which is the door the troublemaker went out,
but she also was certain that
there was, that the people screaming and covered in blood
came out the same door that the defendant was ejected
and there was blood all over the mailbox door,
not the entry door, so again,
she's clearly confused about which door.
They also both testified that they heard panicked screams
right before the defendant was tackled out the door.
So that, and the testimony inside was there was a fight,
there was raised voices,
but certainly the screaming as (indistinct) testified,
she started screaming once Mr. Reynolds had been stabbed.
So, the defendant comes out after the screaming
so there's really, again,
no argument that he is the troublemaker.
And then of course you have the blood evidence,
which is, it's both on his, it's on his jacket,
which the testimony was, and the video evidence showed,
that he was out of the out of the club
and the witnesses who saw him
said, well, he was there for a second,
this guy came out and joined him,
then they ran over to the,
speeding fines double sign,
and then they were over at the Racing Mart
and you see in the video at the Racing Mart
the defendant has his hands in his pockets
as he passes through the gas station,
Shay testified that the assailant,
he never actually identified
the defendant as the assailant,
he said, I believe he heard him,
all of the references to him being the stabber
were struck from the record,
his testimony was very clear,
he didn't see the assailant,
he didn't actually see the stabbing
it was just the person he believed had hurt his friend,
he was the only one around who he didn't recognize.
Lowy: So what he was doing on the witness stand
was inappropriately drawing an inference
and when he would do so the judge would strike it?
-: That, yes, that's what happened.
And I think through cross-examination and redirect,
it was made clear that he actually had not
seen the stabbing.
Kafker: I get that
you may be able to distinguish
the two of them pretty clearly,
but that, wasn't it still an error not to allow,
I'm not sure if it's meaningful error,
but wasn't, I mean the guy's an expert,
he's pointing out the problems
with this kind of identification,
particularly during a melee,
Shay's identification is, he still believes it to be him.
It's based on clothing,
you know clothing you tend to get confused,
I don't know is it, can we really say
it's not an error to let this in
'cause it still is an ID case in some fashion?
-: I think you can both say that it was not an error,
and that it was nonprejudicial
and one I would point the court
to Commonwealth vs Snyder,
which is cited in the defendant's brief,
475 Mass. 445, you're dealing with
a very similar situation
where you have a pre-Gomes trial,
the same identification expert,
it's Dr. Penrod,
this court held that it was no error to exclude him
and that the defendant wasn't prejudiced,
and I think the lack of prejudice.
Kafker: Can you explain,
and I don't remember the case well enough right now,
so tell me why we found it was an error with Penrod?
-: So, it's sort of the same reason
that the trial judge in this case excluded him,
which was, if you look at the voir dire of Dr. Penrod,
he doesn't really discuss a lot of the issues
that might be pertinent to this case.
When he talks about the sort of identification of clothing,
versus facial, versus,
he said there's one study I recall
where it compared facial IDs, to clothing IDs,
to voice IDs, he didn't really discuss it any further
whether it was people, someone,
whether it was dealing with people who knew the individual,
but there wasn't, he didn't discuss a lot.
He talked about how clothing
could impact
sort of photo arrays,
or lineups and that sort of thing.
Shay was given a photo array
and picked out another individual
who he said was 80% sure
that that was the assailant,
which- -: So let's do Shay's
for a second.
So Shay identifies him by clothing, mostly by clothing,
or how does he identify him?
-: He said that he saw part of his face,
I think is what his testimony was.
The in court, I mean it's a facial ID, it has to be.
Lowy: But doesn't Penrod say that when you identify,
when someone's wearing distinctive clothing,
that's the kinda thing that leads
to bad facial identification?
David: He did testify that that is a factor to consider.
Lowy: So is that a possibility here too,
because the defendant, the assailant,
is wearing distinctive clothing,
a red brimmed, or a red hat,
and that's really what's triggering
Shay's tracking of the guy, is his clothing, right?
David: I think there's- -: By the way,
is the first guy thrown out wearing a hat or not?
-: Again, Taylor's testimony was,
alright, medium to light-skinned male
wearing a tan leather jacket with embroidery
and some type of hood.
Kafker: So, he's got a hood too, okay.
-: Which the,
the assailant, the defendant,
what have you, was identified as wearing a black jacket
with a red cap with potentially black on it.
Kafker: Can I ask one other thing?
-: Yes. -: 'Cause I did read
the voir dire.
The judge, and again, it's hard,
he's being judged on standards
that have changed, but- -: Right.
-: He's focusing in on corroboration
that there's corroboration, so is that right
that we don't care about the,
when there's that kind of corroboration
we're not focused on ID issue problems?
-: I think what,
I think what was happening there
is he was sort of more looking at,
there were certainly some older cases,
but I think what he's looking at is
the court said it wasn't prejudicial
to exclude the testimony in those cases.
Kafker: So it's really, the corroboration goes,
just what we're talking about here,
to the prejudice not the, he focused,
but he used it to prevent it from being admitted.
-: I think he did in part. -: Yeah, um-hum.
-: He also excluded it because he didn't find
that it would be helpful to the jury
on the identifications that were really at issue.
And when he was initially put forward
he was put forward really for
this gas station photo identification.
It's clear that you can't see,
you know, watch the video,
you look at those photos, you can't see a face.
His friends watched the video and said,
yeah, that's him, both 'cause
they saw him that night dressed that way,
but they also, one of them had known him for 10 years,
one of them was his cousin,
so that sort of wasn't an issue,
it really only goes potentially to the Shay identification,
and I think the Shay identification is nonprejudicial
because of all the other evidence.
Is there anything else the court would like me to address?
I can address the hearsay issue if you'd like.
Lowy: That'd be Great, Mr. Sheppard-Brick.
-: So if I have re-read footnote 18 from Wardsworth,
I would've used the Primary Purpose Test from the outset,
but obviously it's not,
the primary purpose of the statement
was not to create a record
for future prosecution,
it's yelled out in a chaotic scene.
Lowy: Well, here's my question,
if the testimony was, I went and I read the transcript
of the direct and cross,
and if what was admitted in evidence was,
he did it, he did it, or Eric,
then I would understand that you are dealing with
what was arguably a spontaneous utterance,
and certainly wasn't to create
a substitute for trial testimony.
The problem is that when I went back
and I read the transcript, that's not what came in.
There's all this confusion going on
during the testimony about whether they're dealing with
a prior inconsistent statement,
or refreshing recollection,
or past recollection recorded,
and what comes out of that sort of cluster
is that the witness testifies
as to what he told
the police he heard. -: Right.
Lowy: Now that raises issues.
Not, if the evidence had been,
as you're about to argue it,
then I don't know there'd be any issue.
-: Right, so and my recollection of the testimony
was that he told the police that he heard someone say,
he be buggin' and that in his statement it said,
Eric be buggin, but he never said that.
That's my memory of the, I know I read through it
a few times, it's very confused
in terms of what he's actually saying.
Lowy: On the witness stand
he's not owning that statement,
but the adequate statement
of what he told the police- -: Right.
-: Which was inculpatory- -: Right.
Lowy: Came in and what he heard somebody say,
you'd be fine, which you're about to argue,
you'd be fine. -: Right.
Lowy: But that's not what happened.
The arguments better for the defendant than that.
-: Well, right, so it really came in
as a prior inconsistent statement and the judge gave
a prior inconsistent statement instruction
in his final charge,
basically saying that anything that someone,
a prior statement made by an individual
is not offered for the truth,
so I think that that instruction cures it
because it tells the jury you can't consider that.
So it's only admitted, it was only admitted
to impeach the witness, not for any substantive purpose.
And so, because of that, it wasn't admitted erroneously,
and even if it was it's a very, you know,
a fleeting statement, it wasn't argued in closing
to any significant degree, if at all.
And the overwhelming evidence
where his friends identify him
getting thrown out of the club
sort of cures any potential prejudice to that.
Kafker: Mr. Curhan provides an explanation
of what Eric be buggin' means,
do you agree with that,
or do you have any,
I don't know what Eric be buggin' means.
There's no testimony of what it means I take it.
-: I don't think that there was,
I recall there being some discussion,
I don't know that it ever came in on the record about,
I guess, bugging out would be the sort of,
that he's acting crazy,
or that he's running away,
either one of those things, again,
it's sort of a non, I don't know
that it's much of an issue, but yeah,
I don't precisely know what they meant in that instance.
If there are no further questions
I'll rest on my brief.
-: Okay. -: Thank you.
Clerk: Thank you very much.
We're gonna take a morning break at this time.