Man: SJC 11512, (indistinct) Daniel Lewis.
-: Okay, now Mr. Black.
-: Sorry, I'm kind of in an awkward position here,
trying to get notes all over the place
since I'm not at my desk.
Good morning Chief Justice.
Good morning
Justices.
My name is Alan black,
I represent a Daniel Lewis in this matter,
both on the motion for new trial of course and the appeal.
-: Mr. Black, is there a difference with the analysis
with the CSLI and the text messages?
-: No.
No. -: They rely on
the rule 17 affidavit.
-: The cases that I cited Carpenter and Augustine,
treat them the same.
And Carpenter treat them the same.
You need probable cause and you need a warrant.
So they're both,
I believe they're both the same under those decisions.
-: Standard of review the same?
-: Excuse me.
-: Is the standard of review the same?
-: I think so,
that would be my opinion.
-: All right, because there's issues as to what,
precisely what was preserved.
-: Well, there is.
I mean I would absolutely agree with that statement,
what's preserved and what wasn't preserved.
He did object to the admissibility of both I believe
when they were coming in.
He did not file any motions, but of course at the time
probable cause was not the standard.
-: Yeah but the objection on the text messages
he said he didn't have enough time with them,
not probable cause,
nothing to do with, not that Fulldrim existed,
but nothing to do with Fulldrim or Augustine.
It was on how little time he had the text messages.
-: Well it's true, he had the text messages for two days
and that shouldn't have happened
because the Commonwealth withdrew their motion to get them.
-: I appreciate that point, that's a good point,
the Commonwealth even recognized that's a very good point.
But nonetheless, the question was whether or not
the text message is preserved.
-: So if you go back to this issue,
when it comes up in trial
and I just did about 10 minutes ago,
he uses the word probable cause and the court uses,
says, "You don't need probable cause."
That's my understanding of the discussion, but please,
obviously I know you'll look at it,
but look at it, 'cause that's what I think was said.
But he did use the word probable cause
and the judge said they didn't need it under 2703.
That's my memory of it.
-: In your view is there anything different
between looking at an affidavit under section 2703
or a Lampron affidavit?
As far as whether or not there's probable cause,
'cause this is obviously tried well before Augustine.
-: Way before Augustine and before Carpenter as well.
But of course I argued that they were retroactive.
(Lowy clears throat)
That's an interesting question
because there's definitely a difference
between probable cause and Lampron and 2703.
They're more alike than the analysis for probable cause.
And then the judge recognized
that the analysis for probable cause,
he said, "I don't have to do an analysis
under probable cause because it's not required."
And it certainly wasn't then.
So he didn't do the analysis as the judge.
Didn't do the analysis under probable cause,
because it wasn't required.
The trial attorney objected anyway.
And the scope of the objection,
I think he said the word probable cause,
but I don't know for sure.
But in any case I would argue
it didn't meet the probable cause standard.
Because it didn't have to at the time.
But now Carpenter and Augustine changed the law,
the constitutional law, in my opinion.
And therefore under the (indistinct) standard
I think it's absolutely retroactive.
-: Well the Commonwealth, go ahead excuse me.
-: I'm sorry.
Lowy: No, go ahead.
-: No, I just wanted to know
if you had any other follow up questions about that point.
-: Well, the Commonwealth is going to argue
that the probable cause is strong here
with the text messages with Mr. Pierce to the victim.
The would be first victim,
the conversations I think it's Mr Abrams maybe
with the defendant concerning the gun
and the use of the telephone,
the cell phone to plan the would be robbery
and the robbery and the coordination necessary.
Why do you say there wasn't?
-: Well, in our argument on the,
and it's a motion hearing 1419,
in the argument when the Commonwealth was arguing that.
And I'm talking about the argument
for the motion for a new trial.
She said, "The texts were important pieces of evidence
because the two other witnesses
were facing significant charges."
I mean that was her quote,
because the Commonwealth was trying to argue,
"Hey there was sufficient, there's plenty evidence anyway,
didn't really matter."
Clearly the motion judge felt otherwise.
I mean she said, "Texts were important pieces of evidence
because the two witnesses were facing significant charges."
Well they were.
-: That goes to the (indistinct) Sarah argument,
we're not there yet.
You're one step ahead of yourself.
-: Okay.
Thank you your honor.
So you're asking me,
then I misunderstood what you were asking me.
So I apologize, but could you repeat?
-: No, I was just asking for your argument,
why there wasn't probable cause with the conversations
with Mr. Jacobs and your client going to get the,
pick him up, having a gun, putting it in the trunk,
all those issues
and that presumably cell phones would be utilize
to coordinate everything.
-: Well there's a part in Carpenter and I think Augustine,
but at least carpenter that said,
general statements like the two of them
must have been communicating
because that's how they communicate to arrange things,
is not enough, that's a general statement.
And frankly, I agree.
-: But here don't we have more?
We have more than just,
"Oh they must have been communicating."
We've got actual texts going out to the vic,
the first victim, the foiled first victim, the texts,
the phone call between Jacobs and your client.
Isn't there more than just general communication
but actual communication by cell?
-: Well the communications to the victims I believe
were done by somebody else not my client.
I understand it's a joint venture theory.
But they weren't done by my client.
And I argued in the brief that the communications
between
my client to Jacobs,
or was it Jacobs to my client, I can't remember right now
but those communications, you don't know, actually.
You're assuming that it's my client,
but you don't know who's on the other side of them.
There's a bunch of communications to Jacobs,
and you don't know who's on the other,
you don't know what was said,
you don't know who was on the other side.
So I don't see that as a strong case in any means.
And then that you identific,
I know now I'm jumping ahead of myself.
The identification was just absurdly ridiculous, frankly.
So I don't see that as any,
I don't see that as evidence that this case was very strong.
I don't know if you wanna get to the ID yet
but it was one of the most suggestive identifications
that I've ever seen.
Anything else?
I'm sorry.
-: You can continue.
-: Oh okay, thank you.
So I was gonna get into the identification
from Marina Delmar.
First of all, they both say under oath
one was promised, the first guy Elvis,
was promised
no jail time,
they wouldn't charge him with anything more serious
other than accessory after.
And he would, if he testifies quote truthfully,
he would get probation, he testified that,
to that under oath.
And Marina (indistinct) also said that if she helps,
she would get no time and not be charged at all
or maybe being charged with, again something very minor.
As for the identification,
I know under the new law, this would not fly,
and you would get incredible amount of instructions on this.
But of course, Rodriguez was the standard then,
and not Gomes and certainly not Henderson in New Jersey.
But
she testifies at the first hearing
she can't identify anybody,
I mean at the first identification.
Second identification was just after she saw a YouTube video
of the defendant, now I'm 75% sure.
And then after,
then at trial,
she testifies, "Oh no, I'm sure, I'm a hundred percent."
Wow, I know now with,
after Gomes and cases like that,
there would be many, many, many many instructions
concerning that whole procedure.
I don't think that makes the case stronger,
I think it makes the case weaker for the Commonwealth.
How couldn't it here?
Here you have a woman who says, "Yeah, that's him,
hundred percent, I'm sure."
Yet I'm not sure five days ago.
-: If it makes it weaker for the Commonwealth,
if the ID makes it weaker for the Commonwealth,
where is your
substantial likelihood of miscarriage of justice?
-: Well, I argued that under 33E.
Because it was more of an ineffective assistance
of counsel argument.
-: Yeah I know, but that second prong's the same,
that's why I phrased it that way.
-: Didn't I not mention substantial miscarriage of justice?
-: No, I'm sorry.
No, you said that it makes the case weaker
for the Commonwealth.
I'm just trying to understand
if it made it weak for the Commonwealth
how did it hurt your case?
-: Well, I'm arguing now on appeal that it made it weaker
for the Commonwealth, but that ID came in at trial
and
he, trial counsel objected to it
when it was being introduced
but never filed a motion to suppress.
Now, I guess the argument would be
why would he if that was not the state,
if Rodriguez was the state of the law, but,
and the Commonwealth kind of
I wouldn't say the word chastised,
but kind of responded to this argument by saying,
by saying well,
that me saying that the trial counsel should have argued,
objected to it and argued Henderson, New Jersey case,
is absurd basically.
However I wanna say that Gomes,
before
way before the law changed, at trial I'm talking about,
Gomes cited the Henderson case.
I mean, you have to start somewhere
and if Henderson was around at the time,
all you had to do was say,
"Hey I'm citing this New Jersey case."
Maybe he would, they would say no.
But there was no objection, no motion to suppress,
until he realized trial counsel,
that oh my God,
he's gonna say a hundred percent identification.
He didn't know that,
because it went from zero to 75 to a hundred.
So I have it under 33E in effective assistance counsel
because your decisions, not your
but your court's decisions have long said
that the 33E standard on ineffective is more favorable
to defendants than the other.
So I, that's how I argued it, I put it in under 33E review,
because I think that was so prejudicial,
so prejudicial,
that it did create a substantial miscarriage of justice.
I mean these are,
all these parts of that identification proceeding
are things that were addressed
in all of your subsequent cases,
starting with Gomes and going onward.
Needless to say,
any lawyer
now, would have asked for all the Gomes instructions,
would have objected, would have filed a motion to suppress,
would have done all of that.
And even then, Gomes didn't come from nowhere.
I mean, the attorney knew what the law was,
how the law was changing and how the science was changing
and knew about Henderson and filed the motion anyway.
You gotta get there somewhere.
And a lot of what we do sometimes in court is,
all right just as quite, not quite the law
but we're gonna do this
because we wanna preserve for in the future
or do this, or do that,
he just ignored it and then all of a sudden was shocked
when it came in at trial.
That's why I argued it under 33E.
I can say that court,
that ruling had to have a significant impact at this trial.
Had to have.
I mean yeah, that's him.
Five days later, it wasn't him,
Five days earlier it wasn't him.
So that's my argument there.
Oh, I see the time.
Well, I'm gonna rest on the brief
unless you have more questions for me.
-: Does anyone have any further questions?
Okay, thank you very much attorney Black.
Okay, Mr. Charles
-: Morning your honors, may I please the court,
assistant district attorney Jamie Michael Charles
appearing for Middlesex on behalf of Commonwealth.
I'll start where my brother did,
I suppose with the question of the text messages.
And I just wanna say at the outset,
unless this court wants me to,
I'm not planning to address the CSLI.
I think I'm, as I mentioned in a footnote in my brief
I think it's pretty clear cut
that under Hobbes and the case law that has come out,
even, if you suggest that the Commonwealth
did have to make a higher showing
than what was made originally at the rule 17 hearing.
There is ample evidence here
that the defendant had a phone on him
and was participating in the crime,
which is really all that is required now
in order to get an individual CSLI
under the probable cause standard.
So turning to the text messages,
and again I guess I'll say here,
Justice Lowy since you discussed it with my brother,
I can see that there is an,
at a minimum, an open question
about whether this would be preserved or not.
But I think the Commonwealth's position,
if you look at the motion for new trial hearings
and even now in our brief,
is that really the question of what degree of prejudice
needs to be shown is sort of irrelevant here,
because the Commonwealth's argument
is that there's ample probable cause
under this court's case law.
And if you look at the Fulldrim case,
as long as the Commonwealth can demonstrate
that it did submit an affidavit,
albeit in the context of a rule 17 hearing,
but it was before a judge had submitted an affidavit.
Chief Justice Scanson,
the McCarthy case sort of alluded to this
in it's concurrence as well, right?
In the context of electronic communications,
that the Commonwealth should should submit an affidavit
and then if it turns out
you have to prove a different standard.
The court can evaluate whether that standard is met.
And so here I would submit
that the Commonwealth satisfied the probable cause standard
in its affidavit.
And therefore it really doesn't matter
whether we're looking at this under harmless
beyond a reasonable doubt or substantial likelihood
of the miscarriage of justice,
'cause the defendant can't even get through
that second prong.
I think both the rule 17 judge, Justice Billings
and the motion from trial judge, Justice Totman,
separately articulated very clearly and eloquently
why the Commonwealth met its burden here.
So I just wanna reiterate what they said.
Justice Billings said that the affidavit established quote,
"That each defendant used his cell phone
in the planning, execution and aftermath
of the robbery, homicide, as did to material witnesses."
That's at page 64 of the supplemental record appendix.
Justice Totman in her opinion said the affidavit quote,
"Does not simply establish that the defendant
and other parties were communicating by cell phone
on the day of the shooting.
It points to a specific instances
in which their cell phones were used
in the planning and the commission
of both the attempted robberies and the shooting.
The affidavit contains enough instances
of other co ventures using text messages and calls
to further the commission of the crimes,
such that it is reasonable to infer
that the defendant's text messages
contain similar evidence."
And that's at 107, 108
of the Commonwealth supplemental record appendix.
And I'd say, this is consistent, right?
With this court's pronouncement and wide
and subsequent cases with the appeals courts
(indistinct) decision,
we certainly have direct evidence here
that the defendant at a minimum made phone calls
or was called by other co ventures.
But even if there wasn't direct evidence
of the defendant's communications, the courts
this court's been clear
that you don't need that direct evidence
if you can show through other evidence that it's likely
that there was communications among the joint ventures here.
-: You would say that there's an inference that Jacobs
was talking to the defendant
based on what happened afterwards
and then with the defendant's duffle bag.
-: Also, I don't think there's an inference,
certainly you'd have to draw an inference
as to what the specific subject matter
of the conversation was,
but if you look at paragraph 10 of the affidavit
that was submitted in support of the rule 17,
and that affidavit is at page,
I think it is page 31 through 43
of our supplemental record appendix,
paragraph 10 of that affidavit explicitly says
that during his interview,
Jacob stated he called Daniel Lewis.
So there's no dispute that they talked.
And then I think it's clear from,
I think it's paragraph 15 and 16 if you look at that,
that there was information in the affidavit,
the four central players here, right?
Although Marina Delmar was sort of on the fringes,
the four central players were Mr. Lewis, Mr. Jacobs,
Mr. Pierce, and Mr. Duarte.
Now the affidavit establishes that while Duarte, Pierce
and Jacobs were all physically together earlier in the day,
going to get masks from the dollar store
to sort of plan their crime,
that at that point in time
when three of the four were together,
Jacobs was speaking with another individual
who was referred to as his cousin I believe,
who he was seeking to get firearms from.
And that that individual wanted to participate in the crime.
The affidavit then establishes that immediately after that,
they go to Boston and they pick up Daniel Lewis
and he has a black bag that is later found
behind Pine Street, 50 Pine Street, that contains a gun.
So I think it's clearly reasonable to infer
that Daniel Lewis was the individual Shaquan Jacobs
was talking to on the phone about procuring a gun
and then was picked up
and subsequent participated in the robbery.
So I don't think that's a closed question at all.
And I, like I was saying before,
I think if you look even most recently,
I sent a 16 (indistinct) on Friday
because I think this court,
I cited the appeals court's Snow decision in my brief,
but subsequently this court last month issued its decision
in the Snow case on further thought review.
And I think that's probably the most salient case
in terms of establishing
that you don't actually have to show
that Daniel Lewis sent text messages to anyone
for his text messages to be relevant and to be authorized,
to be searched, pursuant if probable cause is shown, right?
In the Snow case, I believe essentially
I don't wanna oversimplify it,
but the defendant called his girlfriend
regarding the car that was involved in the homicide,
immediately after the shooting.
There was evidence of planning
among the various co-defendants, right?
As evidenced by people changing in the car
and the fact that they all clearly came together
from different locations.
And finally, there was evidence that a co-defendant
had communicated, I think via text with the victim.
So there was no evidence that this defendant in Snow
texted anybody, but there was evidence of planning,
there was evidence that a co-defendant had texted the victim
and there was evidence that the defendant used his phone
to make a phone call, that's basically our case here.
I would submit a stronger case here, right?
Because every co-defendant involved in this,
the four I've listed to you, as well as Ms. Delmar,
we're all communicating amongst themselves,
the affidavit establishes that.
They communicated with both victims, Ms. Lobe,
and then subsequently Mr. Cavani, via phone and text.
There's evidence that Mr. Lewis did at a minimum
speak to Mr. Jacobs and the strong inference
in the affidavit is that that had to do
with the crime itself and guns
and procuring guns.
And there's no question if you read the affidavit
that this defendant was a central player
in the crimes themselves, right?
And that's why I sort of dismissed my brother's citations
to the Moren case and Fulldrim in his brief,
because those cases had way less
than what we have here, right?
All you have in those cases is,
and again I'm oversimplifying
just because I know both of them are slightly different,
but essentially it's a co-defendant
having phone communication with another co-defendant
and the victim on the date of the murder,
and a couple of other little things
but that's pretty much it.
And in both cases, what was lacking
was evidence that the person
whose phone they wanted to search
or whose text messages they wanted,
the law enforcement wanted to search
actually participated in the crime.
There wasn't, that hook was lacking in the affidavit.
And so I would submit that here
there's plenty of probable cause in the affidavit
to suggest that this defendant played a central role
and was in fact the individual who shot the victim,
Mr. Cavani, during the course of the second
failed armed robbery attempt.
That combined with the CSLI evidence,
combined with the variety of evidence of communications
in the affidavit which I outlined in my brief
at pages 37 and 38 with paragraphs citations.
That established the requisite nexus here
to look at communications.
And as this court recognized in Holly,
communications include real-time text messages,
even if you only know the individual's call.
We don't narrow the scope that much
if it's clear that there was planning,
there was coordination
and these people were talking to each other,
you can look at all the different ways
that they would be talking to each other,
if you establish the requisite probable cause.
And so if there's no further questions on that issue,
I'll just briefly touch on the in-court ID.
Again, I just wanna stress
that the Commonwealth did not attempt to introduce
either of the pretrial identifications at trial,
those came in on cross examination.
Which I would argue was a very effective cross examination
by defense trial counsel
in an effort to impeach the credibility
of the witnesses identification of the defendant.
But pre-Collins, under the case law that we had,
whether this would now be admissible,
I would submit as a much tougher argument
for the Commonwealth.
-: But Totman went further than,
she went further than many judges did back in 2010.
There's no motion to suppress.
She does a Wadia and makes a determination
that there would be clear and convincing evidence
of an independent source from any unnecessarily suggestive
out of court ID, considering it was 2010
and the state of the law was prescient,
pretty thorough the way she handled it.
-: So I think if you look,
well I admit that this certainly wouldn't suffice today
and post (indistinct).
If you look at the circumstances,
what was elicited at the voir dire,
and what do we know about Ms. Delmar
and her exposure to the defendant?
This was not a situation like say the Greenwood case
from the appeals court that I cited in my brief,
where a victim had 10 minute opportunity
to observe his assailing, right?
And in that case that was sufficient
to allow him to make an ID,
even in the absence of a pretrial ID.
Here you have essentially a cohort of the defendant
who spends hours with him on the night of the crime, right?
Both in the car together, conversing and observing him.
And then later, also outside, under streetlights
as they're attempting to effectuate
both of the failed armed robberies.
So this witness had an excellent opportunity
to observe him on the night of.
She testifies during the voir dire
that during that October 1st photo array,
the first where she failed to make an identification,
she testifies that she had literally just found out
that the victim had died and that she was extremely scared
and confused and not thinking straight.
So she provides a concrete explanation
for why she didn't make an identification that night.
And if you look, I apologize, I forget which footnote it is.
It might be 15, but I may be misstating it.
The Commonwealth sort of speaks to the fact that
there were also different photos of this defendant
in both arrays.
And those arrays by the way, had been reproduced
in the Commonwealth supplemental record appendix.
In the first array on October 1st,
there was a photograph of this defendant without cornrows,
which is this hairstyle that Ms Delmar testified
he had on the evening of the shooting.
In the second array which happened six days later,
there's a new photo of the defendant with cornrows.
And she specifically testified at the voir dire
and on the stand that he appeared much more familiar to her
in that second array,
because he looked more like the individual
she remembered from that night.
The individual with the same hairstyle.
So I think that there's an explanation,
both in terms of the photograph that was used
and also her state of mind
to explain why she failed to make an identification
on the first instance.
And then on the second array again, she
it was not an unequivocal identification,
but I believe she ultimately said she was 75% sure
it was him.
I'd point out that her brief observation of a YouTube video,
had nothing to do with law enforcement.
So there's no due process issue there
because we're not talking about the suggestiveness
of the photo arrays or any actions law enforcement took
to taint her observations.
We're talking about an extraneous observation
that law enforcement had nothing to do with.
And that's why I cited the (indistinct) case in my brief,
because that was sort of a similar situation
where a police flyer with the defendant's photo
that was meant to be only for internal use,
ends up making its way into the community
and several witnesses see it
and then subsequently either make a photo array ID
or a grand jury lineup ID of the defendant based,
not based on that observation,
but based on their observations on the date of the crime,
having viewed the defendant's photograph in the interim.
And the court ultimately said that that was fine.
The court felt that
there was a firm enough contemporaneous observation
of both those witnesses at the time of the event.
And that combined with the fact
that law enforcement was not directly responsible
for their observation of that photo, suggested that,
I'm sorry?
-: Didn't he have this face covered at the arraignment
to some extent?
-: There was some indication from Ms. Delmar
that the defendant and Jacobs
who was being arraigned at the same time,
were covering their face.
Obviously I've never seen the actual YouTube video.
It was not in the record, but-
-: But there could have been a common law argument for,
there could have been a common law argument
to exclude the evidence under unduly prejudicial.
-: I'm not dismissing
that there could be a common law argument,
but I mean the case law suggested
that it had to be especially suggestive circumstances.
And I'm not sure that the observation of a co,
let's call her a co-defendant who was with the defendant
for hours on the night of the crime,
seeing that same individual
who's covering their face briefly be arraigned on YouTube,
is the sort of a specially suggestive circumstance
that would trigger common law suppression.
And then as far as her in-court ID
again at the time the law was,
if the Commonwealth could demonstrate
that the pretrial array was not so impermissibly suggestive
as to give rise to a very substantial likelihood
of a reparable misidentification,
then the in-court ID was admissible at the time.
And Ms. Delmar, when pressed by Justice Totman,
stated that her identification
was based on her observations that night,
not on the fleeting observation of the YouTube arraignment.
And so in the absence of a basis to conclude
that her trial ID, setting aside the fact
that she unequivocally identified him at trial
and only 75% at the second pretrial ID setting that aside,
there was no basis to believe
that the experience she had pretrial
whether it be in either of the arrays
or the brief observation of the YouTube video.
So irreparably tainted, what she did at trial
such that it had to be suppressed
and certainly it wasn't an abuse of the judge's discretion
to make that determination after conducting a voir dire,
at the defense attorney's request.
And so I would suggest that
there's no ineffective assistance of counsel here
based on the state of the law and what steps he took.
And there, even if you find that there was error,
which again the Commonwealth does not concede.
There wasn't a substantial likelihood
of a miscarriage of justice here
because of the overwhelming amount of evidence
against this defendant.
Two separate cooperating witnesses
who were complicit in the crimes,
who testified to the defendant's central role.
CSLI evidence that not only placed the defendant
with all of the co-defendants at relevant times
but other cell records
that showed his communications with them.
And also disputed statements he made to police
during his interview.
The fact that the black bag
that the defendant was seen bringing into the car in Boston
was then recovered from behind Pine Street.
And I believe Mr. Duarte stated
that he believed it was the same bag
and that it contained the murder weapon.
This was not a closed case.
This is not a situation,
I'm not gonna dismiss that
the fact that an ID of a defendant from a co-conspirator
carries some weight, it does.
But if we're looking at it from a substantial likelihood
of a miscarriage of justice if we want to assume error here,
it was so much incriminating evidence here
that it could not have substantially swayed the jury.
So I would submit that you'd still wouldn't,
the defendant still would not satisfy second prong
and effectiveness and would still not necessitate reversal.
And my, no my brother didn't really express it,
but again, this also is not a situation
where reduction of the verdict is warranted under 33E.
This defendant brought the firearm.
This defendant egged everyone on
after the first robbery failed to get a new target,
said he had to, he didn't come all the way out here
not to do something.
He shot the victim during a robbery,
that by all intents and purposes was over at the time,
the other witnesses essentially said,
the victim said he dropped the percocets,
he was on the ground.
He said, just take them, we couldn't find them.
And they turned to leave
and then heard the defendant shoot the victim.
And the defendant was laughing about it in the car,
saying, "I shot him in the rear,
his rear is burning right now."
I'm not using the words he used, but,
so the defendant seemed to take pleasure in this.
It was an unnecessary act
at the end of a failed armed robbery.
There's no reason, he was 21 years old
at the time of the crime.
There's no reason for this court
to reduce the verdict under 33E.
And so I'd asked that you affirm
the defendant's convictions.
Budd: Okay, thank you very much.
-: Thank you your honors.
Man: All rise.
(indistinct)
(loud bang)