Court clerk: SJC-11529 Commonwealth, B Manuel Andrade.
-: Great, get yourself together.
-: We'll hear from you attorney Scapicchio.
Absolutely
(papers rustling)
-: Good morning your honors, may it please the court.
My name is Rosemary Scapicchio
and I represent Manny Andrade
in this appeal of his conviction for first degree murder.
There are a number of issues in my brief.
There are three that I would like to cover today.
The first is the inconsistent arguments
in the Brady violation.
The second is the closed courtroom issue.
And the third is the Santiago instruction
which we say all either individually or combined
resulted in an unfair trial for Mr. Andrade.
Now with respect to the inconsistent argument
this was a case where there were two defendants.
The case was severed,
Mr. Barros who was the co-defendant went first
and Barros' his trial the Commonwealth,
the same DA who represented the Commonwealth
in Mr. Andrade's case elicited information
that suggested that the car that Mr Andrade was in
was moving at the time it was fired on
and that Andrade returned fire.
That's what they said to the Barros' jury
to try to convict Barros of first degree murder.
When it came time for Mr. Andrade trial,
they changed their theory
and the core of their theory.
They now said that Mr. Andrade
was standing outside of the car and the car was stationary
either the car was moving
or the shooter was moving at the time that shots were fired.
-: Counsel I don't mean to interrupt you
but with respect to that though,
in either of the trials the theory at root
was still that these two were engaged in the gunfire,
in a gun battle.
I know that you're saying that in one
they said the car might've been moving
but the central component
that these two were firing at one another.
And therefore that's what both were being argued
in both trials.
-: Not exactly your honor.
Let me explain why.
So in the Barros trial,
it was important for the Commonwealth to present a theory
in which Barros was the aggressor.
Barros fired first and Andrade returned fire
in order to convict Andrade at a separate trial
the Commonwealth had to allege
that Andrade was outside of the car
at the time that the shots were fired,
because if he was merely responding
to a shot that was fired at him
as they had told the barrel story
then we would have been entitled
to a self-defense instruction
it would have been mitigation.
And he wouldn't have been convicted of first degree murder.
So it's not just that there was a gunfight
it was the manner in which they portrayed the gunfight
that was problematic.
And it was problematic because the only way
they could get a Santiago instruction
is if they claimed that this was one continuous act.
And that's what they tried to do at the Andrade trial
while at the Barros trial
they claimed it was a shooting of Barbosa
that my client Andrade was leaving the premises
retreating to his car, got in his car,
the car started moving and then was fired upon.
That's not a shooter.
That's not a shooter at all.
Even if you wanna believe that Mr. Andrade
pulled a weapon on Mr. Barros under Colis,
which this court just decided two weeks ago
aiming a weapon at someone is not a shooter.
So where is it that the shootout starts?
In the Barros case the shootout started
when they claimed that Barros fired upon the moving car
and not just claimed that, but they had their expert.
They had a trajectory expert who testified at trial.
And the hypothetical that was presented to the expert
at the Barros trial was assuming the car was moving.
Assuming the car was moving and the shooter was stationary.
That was the Barrow's trial.
Now you move on to Andrade
and the assumption by the same prosecutor
with the same expert is assumed
either the car is moving or the shooter is moving.
And that's important because
if we were able to tell our jury
that in a separate trial to convict a different defendant
they claim the car was moving.
That would've made a huge impact on whether or not
the Commonwealth ever even would've got
a Santiago instruction
to be able to prove any type of intent
on behalf of my client.
And so it's very important
that not only did the Commonwealth change theories
in terms of what they were doing
from trial one to trial two,
but they actually elicited the opposite information
from their expert.
And then didn't tell us--
-: I'm confused though, your client fires...
You're leaving out sort of an initial part of this, right?
Which is your client.
There's evidence that your client shot Barbosa
inside 415 Geneva Avenue before.
So I don't know how your self-defense works
(audio breaks)
your point is you're somehow deprived
of a self-defense argument because of the way they did this
but your client, this isn't the Colis case.
Your client shot before this all begins,
right? -: Right.
Don't we have to take that into account.
-: Well, it depends on how you take it
into account, your honor.
So this is what the problem is with that argument.
So if you're saying it's the same continuous event
and Mr. Andrade fired at Mr. Barbosa .
Barbosa, isn't the one who fires back at Andrade .
That's not what happens here.
A completely separate person, Mr. Barros fires at Andrade .
So when Mr. Barros fires at a Andrade ,
Andrade has a right at least in terms of mitigation,
to tell the jury that did a last trial,
the Commonwealth had a completely different theory
about how this crime happened.
So when you say he started it even if you believe,
if you believe--
-: We're not dealing with a case
in which we don't have a shootout,
your calling it shoots Barbosa
then the other guy comes out and shoots at your client
and then your client fires back.
I mean, it's not the case we just decided
where somebody fires a gun
and it's not even clear that the defendant fired
or did anything but point a gun in the air, right?
We've got a (audio breaks)
That's the whole point here.
And I don't mean to interrupt
but there were four passengers in that car,
other than Mr. Andrade,
three of them testified at trial.
And all three of them said, never saw Andrade with a gun,
never saw Andrade fire a weapon.
The jury was free to believe that.
And disbelieve Nunez who said Andrade had a gun
and was fired.
And if the jury believed those witnesses
who had no skin in the game at that point,
their friends had been killed.
Two of the witnesses said, never saw Andrade fire weapon.
One of them initially said the car had been moving
at the time that the shots were fired.
And then there was another witness who said
the only reason that Andrade had turned around
is because he yelled.
He heard someone yell, "pop them, pop them"
and he was warning Andrade to look out
and everyone else in the car to duck.
So if the jury believes that scenario
then that's not one continuous event.
Those are two separate events.
Barros had no right to take revenge on Andrade.
Andrade could not have anticipated
that someone other than Barbosa would fire back.
This isn't a situation where this court would ever say
that if someone shot at...
If I shot at somebody and then another person
has the right to shoot at me,
this court has never said that.
And in order to make this theory fit
that's what has to happen here.
It can't be that there is the shooting in the house
and my client is retreating from that.
And then a whole different person comes up
and starts firing when that person starts firing
that's where the mitigation comes in.
Either it's sudden combat or heated passion at that point,
or self-defense all of which were taken away from us,
by the way that Commonwealth tried this case.
-: Well, let's talk about that for a second
because at least with respect,
not necessarily the mitigation
but the self-defense component of it,
the trial counsel was specifically asked.
And so was that your client
whether or not they wanted a self-defense instruction
and trial counsel represented
to the court that Andrade did not
and then the court inquired directly of Mr. Andrade
who also said the same thing.
And then the other things
about the way the case was presented in Mr. Barros ' trial.
All of the...
Weren't all the transcripts turned over to Mister.
Didn't he have all of the information about
who argued there and what would the witness testimony?
-: The problem was that the Barros trial ended
on February 27th.
The Andrade trial started on March 19th,
there was not enough time-- -: But counsel,
sometimes people watch those trials
when they're related to another trial.
-: And isn't there evidence that Mr. Andrade's counsel
sat through Mr. Barros'.
-: I was Mr. Andrade's counsel.
-: Oh, pardon me.
But didn't you sit through-
-: Yes, but let me just explain that
the Commonwealth is not relieved of its due diligence
obligation under Brady,
simply because they think the defendant might know something
and to sit in on a trial in and out all day
doesn't necessarily give you the same flavor
of what the transcripts would give you in this case.
And so there's a third circuit case that I'd like to bring
to the court's attention about this due diligence argument.
The cases, Dennis vs Secretary
it's 834 F.3d 263, 2016 case
which says essentially the Commonwealth is not relieved
of their obligation under due diligence under Brady
just because they think that the defendant might know
what's going on.
And further I think the court said
that the defendants not obligated to scavenger for hints
of undisclosed Brady information.
I mean, as far as the expert was concerned,
A, was an expert I was entitled to an opinion
that impeached him.
But more than that, it was a statement of a witness
but it was clearly entitled to.
And if I don't sit through the expert testimony
and find out what the expert says,
how am I supposed to find that out
before I go to trial three weeks later?
I can't know that unless the Commonwealth tells me
and the Commonwealth in this case, isn't telling me
because they know that if I know that
I'm gonna use it at the trial
and in the theory would be imploded.
So what we have to prove in terms of inconsistency
is that first thing was factual inconsistencies
which clearly they were.
And that it went to the core of the case
that this wasn't just a witness making a mistake.
And it's not just a witness making a mistake.
In this case, when you have the same prosecutor
arguing two different things to two different juries
to convict two different defendants of the same crime
that's a due process violation.
That's clear.
And this court said that in Keel
when they referred to Commonwealth versus Higgins,
where you said
"use of factually contradictory theories
"against different defendants for the same crime
"violates the principles of due process."
That's exactly what happened here.
It was use of contradictory evidence
elicited by the Commonwealth '
to convict two different defendants of the same crime
if they didn't have that trajectory analysis.
And just so we're clear
on what the prosecutor did in this case.
Not only did he switch theories
but when I went to cross examine the expert about
whether or not the car was moving or the car wasn't moving
the prosecutor went one step further
and in closing argument told the jury,
"it didn't matter if the car was moving."
That's not the point here.
And in fact it was the whole point that the car was moving
'cause if the car is moving, my client's in it.
And if my client's in it, then he's not standing
like Nunez said and shooting back.
And they never could have got a CNC audio instruction
based on that, they couldn't have it.
And that's why it went to the core of what happened here.
That's why it's a violation of due process
in addition to being a violation
of the Brady information.
So under Brady, we proved here that it was exculpatory
'cause clearly it's an opposite opinion from an expert.
And we're not even getting to Jessica Nunez at this point
that it was withheld and it was prejudicial.
We've proven all of that in this case
which should require the reversal
of Mr. Anrade's conviction.
Now,(clears throat) I know this court talked about Colis
and said that this case is different from Colis.
But I think if you break it up compartmentally
it's not much different from Colis
in terms of the allegation
that my client pointed a weapon at Mr. Barros,
if you believe that alone,
A, you don't know if Barros saw it
'cause Barros didn't testify.
You don't know if he saw it,
B, you don't know at that point
what he thinks Barros has
'cause Barros hasn't done anything at that point,
you would think that if Barros was gonna retaliate
for Babosa's shooting
he would've pulled out his gun and did it right there.
But that didn't happen.
-: You're limiting.
I'm just trying to understand that
'cause it just seems strange to me.
So your client starts a shootout inside the building,
he shoots one guy,
the guy's friend comes out and shoots him.
Your view that's not a shootout under Santiago
that I'm accepting some of your arguments
about inconsistent.
That's not a shootout, really?
That's not a shootout?
It's like I can go shoot somebody
and not expect their friends to come out firing at me.
I mean, we've said that in cases
that's not a Santiago shootout.
-: Well, if this was a gang case
which we tried to introduce gang (indistinct)
-: Well, we don't need it to be aa gang case
people have friends, we shouldn't-
-: As the defendant Mr. Andrade is supposed to,
if he's involved in that shooting,
you have to remember that shooting
is also contradictory evidence about that shooting.
The shooting inside was that somebody
was holding a bottle over and dropped his head
that somebody else was there when in altercation
with Andrade and then the shot was fired.
-: Yeah, but we look at this in the light most favorable
of the Commonwealth.
We don't look at it in the light most favorable to you.
And there's clear testimony
that your client shot someone inside.
And then one of the guy's friends
came out firing at your client after shootout.
-: If my client was retreating
nobody here would say he had the right to fire upon him.
And that's exactly the scenario
that the Commonwealth presented in Dallas
my client was retreating.
There was nothing for him to take revenge on.
If he was backing in self defense
he had time to pull off.
If he was shooting
because he thought someone shot his friend
how was that a shootout for my client?
If my client is in the car driving away,
it can't be a shootout.
-: The question is your client responsible
for starting a shootout that results
in somebody else getting shot.
I don't see how your--
-: I think the question here is whether or not
it's one continuous act and the Commonwealth said
for the purposes of the Santiago instruction,
it was one continuous act.
And then for the purposes of sentencing
they changed their mind and said it was separate acts.
And then in Barros they would say
it was completely separate acts
because my client was in a position to fire back.
So imagine this jury, the Andrade juror,
if they were able to learn in this case,
that the very last case that the Commonwealth had
on these backs alone that the Commonwealth had alleged
that my client fired back, returned fire.
He wasn't standing in the middle of the street.
He was in a car retreating.
They wouldn't have got the Santiago instruction.
That's not a shootout.
And that's part of the argument that I wanted to make.
I know I'm running out of time for it,
On Santiago how do you define a shooter?
How do you define him?
Can you shoot someone one day
and then the next day someone comes and shoots you?
Is that too long of a period of time?
So what is a shootout.
Does a shootout encompass somebody who is retreating?
Because that's not a (indistinct)
-: How much time passes here between
again, the light most favorable the Commonwealth
between your client shooting someone
inside Geneva Street and the second set of bullets fired
in the opposite direction.
How much time passes?
-: And the light most favorable to Commonwealth
a minute and a half.
-: Okay,
that's different from two days later, isn't it?
-: Okay, but you would say
if this was a self-defense case and balanced
with how you view self-defense
you would say he had no right you do anything at that point
because there was time for him to do other things,
to make themselves safe.
-: You're not representing Barros .
You're representing Andrade, right?
-: Andrade right.
But I'm saying that you wouldn't be able
to make this argument if you were talking about Andrade
so Andrade doesn't have a right to go
while they continue this fight
or start a new fight, but then he does it
and It's not a shootout.
And that's the problem with the Santiago instruction
is that it's not defined in the way that it should be.
-: Counsel, could I ask you about Andrade trial?
-: Yes.
-: Was evidence presented for the defense consistent
with what you're saying the Commonwealth argued
at Barros is trial.
That is that Mr. Andrade was in the car and was shot at.
-: No we tried to get that evidence out
to one of the friends of the victim
who was actually in the car.
He had initially said the car was going
for a period of time.
I think he said a minute and some seconds
before it was fired upon
but he did not recall having said that at our trial.
So no, there was no evidence of Mr. Andrade retreating,
other than the fact that he was shot in the rear end.
And we tried to make some evidence of that
with the medical examiner
about how that shot could have happened.
If he was standing in the middle of the street
as the Commonwealth had alleged in the Andrade trail.
-: And then how do we factor in the conscious decision
to not take advantage of the trial judges offer
to give the self-defense instruction?
-: Because the trial judge had previously said
he's not giving a self-defense instruction.
It wasn't an offer.
He had already made a determination
that he wasn't giving a self-defense instruction.
And that's contained in my reply brief
exactly where he says that.
-: Well, what do we make of the transcript then
what's the point of asking you and Mr. Andrade
whether or not you wish to have a self-defense instruction.
-: The point at that point, I don't know
what was in judge Gaziano's was mind.
I have no idea
what was in the trial judge's mind at that point.
But he had already told us
that we weren't getting a self-defense instruction.
He said those words to us before we ever did anything.
So at that point, I was trying to make a determination
as to whether or not my client was going to testify.
There had been a decision
that I wasn't getting a self-defense instruction.
My client didn't testify.
I had no reason to believe
that the judge was gonna change his opinion
of whether or not self-defense was it
but it's not just self-defense
it's mitigation. -: Sure.
-: And if you look at the mitigation,
one of the issues that we raised
is this legally inconsistent theory
where the whole premise on the Santiago
of how Andrade gets convicted of first degree murder,
is that he intended to murder Barros
but the jury only finds him guilty
of assault with intent to kill.
So they found mitigation with respect to the intent
to murder Barros ,
but not mitigation with respect to the first degree murder
for Mr. Andrade and it's the same crime.
It's the same mitigation.
But they didn't find it with respect
to the first degree murder.
So we're saying that's legally inconsistent.
I know my time is running out.
I just do want to check to check on two quick issues.
If I may, your honor
the first is the post court room issue.
This is a case where over my objection,
the trial judge set up a desk outside of the courtroom
and required people to present identification
before they came into the court.
There are at least seven people who filed affidavits
that are contained in the record appendix
that suggests they weren't allowed in
because they didn't have any identification.
We don't find out about that until 2011
we file a motion for a new trial.
It gets denied without an evidentiary hearing
because the Commonwealth says we don't need
an evidentiary hearing.
This court has never said ever
that having identification is a prerequisite to walking
into a courtroom in terms of a sixth amendment right
to a public trial.
This is a different scenario from Maldonado
which the Commonwealth says
is dispositive of this case in Maldonado
what this court said was essentially,
yes you could ask someone for their identification
to make sure they're not on a witness list
and they need to be sequestered
but you can't ask them for identification
and then exclude them if they don't have it
Maldonado never said that.
And that's what the Commonwealth
is asking the court to do in this case
to say an actual closing of the courtroom,
seven potential public members wanted to get in
who didn't get in.
At a minimum it's a partial closure
it's a structural error and it requires reversal
of Mr. Andrade's conviction.
And then the final thing is the Santiago instruction.
And again, I don't wanna repeat anything
but we're saying Santiago instruction in of itself
was a violation of due process
because it failed to adequately regulate
the fact-finders discretion.
It was standardless
and it was injected into the instruction
on first degree murder.
So Santiago in terms of causation,
what the court said to the jurors in our case
is that if you believe that there was a shootout
that that's enough for first degree murder.
And this court has never said that
but that's the way it was presented to the jury.
And specifically, if you look at page
I think it's volume 12 page 100.
What the court said to the jurors is that
"an act which in the natural continuous sequence results
"in death and without which death would not occur
"is the cause of death.
"The defendant's act need not be the sole
"or exclusive cause of death.
"The Commonwealth not required to prove
"that the defendant fired the fatal shot
"in order to find the defendant guilty
"of first degree murder,
"by choosing to engage in a shootout,
"a defendant may be the cause of the shootout
"either by either side.
"And the death of bystander
"is a natural result of the shootout."
Now this insertion of guilty of first degree murder
that's not what Santiago says.
What Santiago says is you don't get a pass on a homicide
because you're going to shoot out
and they can't prove who fired the fatal bullet.
This court has never said
that it's enough to prove first degree murder.
And that's essentially what the court said
to them under these circumstances,
we're suggesting that the Santiago instruction
is a constructive malice problem
that there is vexatious liability,
that there's proximate cause theory.
And that it is...
(clears throat)
So proximate cause, vexatious liability,
constructive malice, and conclusive presumption of intent.
Now those are all the major problems
with this Santiago instruction
because things are undefined
because the jury's...
The ability of the jury to look at whatever they wanted to
was not prescribed in any way.
And with that, if there are no additional questions
I would rest on my brief.
-: Thank you. -: Thank your honors
and thank you for the additional time.
-: Okay, Attorney Celio.
(paper raffling)
Can we start with the jury instruction issue
on the Santiago instruction?
-: Sure and may it please the court
my name is Kathleen Celio.
I'm representing the Commonwealth.
And just before I start
I just want to acknowledge the victim's family
who will be watching here.
In addition to the assistant district attorney
James Seaman who was the trial attorney
and Aaron Knight who was on the brief.
And thank you .
Regarding the Santiago instruction
this is an instruction on causation, not intent.
This court made it clear in Santiago.
And I think Colis highlights that as well
that this goes to causation.
That's how the jury was instructed as to causation.
They also were instructed that they had to prove
that the defendant intended to cause
the death of his alleged target
which was Casimiro Barros
and he did so with deliberate premeditation.
What Santiago allowed was that the defendant's act
of firing at Barros outside 415 Geneva Ave
that he could be the cause of Miss Levin's death
as she was waiting in that Cadillac.
And I just want to...
and unless this court has any questions regarding
the appropriateness of the Santiago instruction
I'll just move to the inconsistent theories that
Ms. Scapicchio spent her time with.
I just want to point to a couple of citations
in the record.
First, your honor I think brought up Ms. Scapicchio
conceitedly said she sat through Barros' trial.
That's on the 18th of March on page 12,
there was also references in the transcripts of the party.
I mean in the Andrade transcripts
of them having the prior testimony of the witnesses
the judge referenced that I believe in some
of his pretrial motions regarding whether or not
he was gonna allow Sergeant detective Dougan
testify regarding the glass,
his view of whether or not the window was open or closed
in the escalate
he said, I have to look at the transcripts
and see what his testimony was during that.
During Jessica Nunez testimony
I believe the trial prosecutor referenced the transcripts
and having her looking to her prior testimony
in Mr. Barros' trial.
And I believe at least in another witness.
And I have those citations in my brief regarding
the fact that they had the transcripts in that.
And just turning your honor's, just to--
-: Can I just ask you to be clear
when you say they had the transcripts
you mean defense counsel had the transcript?
-: So to be clear, the judge referenced transcripts.
I don't remember if in any of the trial testimony
counsel used it or not,
but I know the trial prosecutor had it.
And I just could not imagine a situation
where the judge had transcripts
and the prosecutor had transcripts
and defense counsel didn't have transcripts.
So I do not believe --
-: Isn't that the Brady violation?
-: I believe that would have been raised at trial, your honor
regarding the judge having transcripts,
the prosecutor having transcripts
and defense counsel not having transcripts.
-: Counsel arguably those transcripts
would have been available to anybody
who is seeking transcripts, is that right?
So they're not under your control?
-: Correct, correct.
Those came from the prior trial which counsel sat through.
So counsel had the opportunity to cross examine
any of the witnesses in which she felt
that was misleading the jury regarding the facts.
The facts remain the same,
substantially the same in both trials,
it's borne out in the closing arguments
of the assistant district attorney,
two men were responsible for the murder of Chira Levin.
He certainly marshaled the evidence differently
Barros' was an act of retaliation.
The defendant was started at when he went inside
415 Geneva Ave and he shot Barbosa
pulled the gun on Barros and then engaged in a shootout.
-: Can I just stop you for a second.
I just wanna be clear.
Are you saying that the prosecutor disclose the experts
witness statements given during the Barros' trial?
Is that what you're...
Are you representing that, that happened?
-: The expert testified
at Barros' trial. -: Yes.
-: All the exhibits were the same from Barros
that was an issue obviously raised
the the same exhibits were used at Barros' trial
as Andrade's trial.
That was-- -: And I guess my question is,
are you representing
that the prosecutor disclosed the witness statement
of the expert given during the Barros trial
in connection with the Andrade case?
Or are you relying on the fact that counsel sat in?
-: Correct and that there are referred--
-: That counsel sitting in during the Barros trial
excuses the Brady obligation of the prosecutor
to disclose witness statements,
which as you know are required to be disclosed.
-: So there was actually an interchange during witness
where the judge she brought up,
I believe it was in Sergeant detective Dougan's testimony.
And I don't have the exact cite
where she complained about the lack of disclosure
of something else.
I'm saying unrelated.
And Judge Gaziano said,
"did you sit through this testimony?
"Were you aware of this testimony?"
"Yes, I was."
And he said, "there's no prejudice to you."
And that is so I'm bleeding from the transcripts
your honor.
But I think it's a fair, accurate representation
of what was going on your honor, that Ms. Scapicchio
sat through Mr. Barros' trial,
that there were transcripts
and there was access to this.
The expert and this is--
-: I think your position as I understand it
is that even if there was a failure
to disclose the prior witness statements
i.e the transcripts from the Barros trial
it did not ignore to the prejudice
of the defendant because his counsel had actually sat in.
-: Yeah and also I just want to be clear too
what she's referring to in terms of the expert.
It was not raised Ms. Scapicchio did not raise
that he was testifying to something different
than what she had notice of
that did not come out in Andrade's trial.
And obviously in the defendant's record appendix
there is the closing argument
of the trial prosecutor's closing and Mr. Barros' trial.
I just went through it again.
Maybe I misread something there's no reference
of the Cadillac moving.
There was a reference to Mr. Andrade moving,
which was consistent with him backpedaling,
which was consistent.
And that's comes from Jessica Nunez's testimony
in both trials that he was moving backwards
but there was no testimony.
There was no allegation that the car was moving.
What was the import of the trajectory?
I don't even know what I'm saying that right
Trajectory expert was he gave a range,
starting from the Pathfinder
that had the 380 bullet found in it.
He gave a range based on his analysis, based on the height
and the angle in which the bullet went into the Pathfinder
of where the shooter possibly could have been.
And at what angle the shooter would have been firing at,
at certain heights of the shooter.
And that was the import of that trajectory analyst.
It was not whether or not the car was moving.
And it's clear based on the closing argument
of Mr. Zaban as well.
And he made that clear.
-: Can I ask about this--
-: You're saying that there is no prejudice
because it didn't matter whether or not
that Andrade in the vehicle moving
or whether he was backpedaling.
-: Yeah, I actually think factually that
what we relied upon or referenced
was Andrade moving backwards.
Not necessarily whether or not the car was moving.
Mr. Andrade was shot outside the car.
There was a bullet hole.
If you look at...
There was a bullet that went through
I believe at least the front passenger seat
there was a bullet hole that went through there.
So it was always our contention in both trials
that Mr. Andrade fired from the area
of the weighting Cadillac
which was corroborated by numerous witnesses as well.
And so our theory never changed.
We definitely emphasized each person's involvement
at different points in the different trials
but that would be expected
in a situation where there are separate trials.
If this court has no further questions on that
I'll move quickly to the ID issue.
So as...
And I just want to draw this court's attention
to a case that actually wasn't in my brief
and I will provide it to the court.
It's Commonwealth versus Ray, which is 467 Mass 115.
It was decided after Maldonado
and similar to this case was a case that was tried
prior to Maldonado, which is what the court did
not have the benefit of Maldonado.
And so this court said in Maldonado,
there are certain things that the trial judge should do
going forward which is I think very fair
when you have such a condition of entry
such as requiring a photograph.
First it's whether or not it should be mandatory or not.
And whether or not what would happen
if someone couldn't enter.
And so this court has said that
and I think it's wise, right?
But going back then to the to the trial
that had occurred in 2009
and what we're looking at then
is whether there was an articulable risk
of witness intimidation
and whether or not it was no broader than necessary.
And that is whether or not then this court can see
whether or not the judge abuses discretion
in requiring this condition of entry.
And so it really is born out
on the 18th of March
which is when the Commonwealth filed its motion.
It actually filed a motion
with a five-page affidavit of Sergeant Dougan.
-: What are the security concerns?
'cause we've approved I mean, you don't cite it
in Commonwealth vs Fernandez,
we approved an approved list.
We've gone further with the security conditions justify it
but what are the security conditions here
that justify the ID to go into court?
What are they?
-: So that was articulated by the prosecutor
who was relying on the affidavit
that was actually in paper number 76 in the docket
that there was a number of things involving a concern
about witness intimidation that was on page three.
And there was actually an incident at the prior trial
involving two women who were believed to be related
to this defendant who...
And it goes on to page four and then five
about how they were trying to actually intimidate
a witness who was Carlos Barros that actually was brought
to the prosecutor's attention during that the prior trial
it brought to Judge McEvoy's attention.
That was on page four.
And so there were then certain procedures set
in place and that sign in procedure.
So there was a..
To also to be sure,
there was a lot of reluctant witnesses
in this trial as well.
And that's fair now the testimony
Jessica Nunez had to testify
had to receive certain payments for relocation.
So there was definitely, it was tense.
And there was a specific incident
at the prior trial that gave rise
for the Commonwealth to ask for the additional security
in the courthouse and for the condition of entry.
And based on that the court was within his discretion
to impose that.
-: So was it just, they had to show ID
or was there a list of people that were not allowed in?
-: No, it was just to show ID.
-: So what was the purpose of having people show ID?
So the prosecutor actually articulated it well
that there was some of the witnesses were fearful
for retribution from their testimony
so then by ensuring that the court would know who was there
or that individuals had to identify themselves,
then that would give them specific security
in testifying.
And that was specifically articulated.
And as I said, articulated
in Sergeant detective Dougan's affidavit,
which the court has. -: But counsel,
if people were as attorneys Scapicchio
mentions that she has affidavits that averted the same,
that if just folks off the street
that had a right to be in a public courtroom
to go and observe this
who just didn't happen to have their IDs on them that day
were then turned away, isn't that problematic?
-: So actually this court addressed it
in footnote seven of Ray.
And again, I will provide the court with
the cite of it.
As I said, it's 467 Mass 115.
And it was in the same scenario
that affidavits were submitted by the defendant afterwards
saying that they were not able to get in.
And this court said the fact
that some individuals may have been excluded
from the courtroom does not in it of itself suggest
that the condition was overly broad.
So in some ways, the sign in procedure
which is not a courtroom(coughing) closure
this court said that a Maldonado
is not a courtroom closure issue
I think is relevant to whether or not
it was overbroad or not.
It wasn't here.
I would just also raise
that the affidavits counsel said she had him in 2011.
She filed her motion for new trial in 2018
after even the trial judge left the superior court bench.
It's very hard to say that the court
abused his discretion when that was even never raised
for him to be able to remedy it at the time too
which Maldonado takes care of
what the court could be concerned of here
because it instructs in the future
for the judge to instruct the court officers
to maybe only make it prefer preferable,
not a set condition mandatory,
but also to figure out with councils and the court staff,
what happened if someone doesn't have it
and to raise that to the judge
'cause I think it needs to be raised
to the judge at the time.
So the judge can remedy it.
-: Okay but you can't use that here, right?
Because counsel said, she didn't know what was going on.
(Celio sneezing)
-: Correct, your honor.
So what we're looking at,
this is why I cite to Ray.
It really is only whether or not it is too overbroad.
That's the relevance of it because it's not a closure.
This is what the court said.
You're just looking at whether or not
he abused his discretion.
And so there's other remedial tasks
that this court has now asked trial judge to do
if they impose it.
Because nine years later
she produces affidavits that say, I wasn't allowed in
it doesn't mean the court abused his discretion
back in 2009 to impose this condition of entry.
-: But wasn't it obvious that some people might not
have their ID and wasn't that an obvious potential?
-: Correct and this court considered that
in Maldonado and Ray, and knew that,
that it could actually be a consequence.
And that's why Maldonado talked about going in the future.
This is what judges could do to try to make sure
that if people...
Show that that the court staff really
who were sitting out there
could bring it to someone's attention.
And so that is what the court has said in Maldonado.
And that was obviously perspective.
So really what this court is looking at
is whether or not the judge abuses discretion
in allowing this condition entry.
-: And your honors, if you have no further questions
regarding anything in the Commonwealth brief
the Commonwealth would respectfully ask you
to refer the defendant's conviction of first degree murder
and for the other convictions,
for his participation in the shootout
outside A15, Geneva Ave.
And I thank you for your time.