Man: This is SJC-11582 Commonwealth V Dwayne Moore.
-: Attorney Wood, Good morning.
-: Good morning.
May I please the court, Chauncey Wood
for appellant Dwayne Moore.
The Commonwealth's theory in this robbery murder case
was the Dwayne Moore laid in wait
with Kimani Washington outside 23 Sutton Street.
Kimani, the Commonwealth star witness who was testifying
pursuant to a plead agreement,
asserted that he watched Moore call drug dealer Simba Martin
in order to lure him outside so that they could rob him.
Kimani testified after Moore called Simba,
Simba came out and Moore participated in the robbery,
holding a gun and eventually shot all of the victims.
None of that was true.
The cell phone records,
the Commonwealth presented to the jury
supported its version of events, a version that made sense.
Indeed, the Commonwealth argued in closing
that those records provided ironclad corroboration
for Kimani's testimony.
But if the jury had been given
Simba Martin's cell phone records,
the Commonwealth's version of events
suddenly would not have made any sense.
In the words of the prosecutor in closing,
phone records don't lie.
The Commonwealth would've been forced to resort
to accidental butt dials
to try to make sense of these records.
The parties failed to present indisputable evidence
that Simba's customer Marcus Herd called him at 12:40 a.m.
As Herd was turning onto Sutton Street,
and that Simba was already outside his apartment
at 23 Sutton street at 1240 waiting for Herd at that time.
both Herd and Kimani Washington testified
that as Herd parked his car,
Simba approached Herd's silver Ford Edge,
they chatted briefly and Simba got in the passenger side.
Herd testified that two to three minutes later,
sorry, Kimani approached the car
and began the robbery at approximately 12:42 a.m.
because Moore's last call to Simba was at 12:52 a.m.
Simba's cell phone records provide powerful evidence
that Moore was not present when Simba left his apartment
at 12:40 a.m.
When Simba began the robbery strike that,
when Kimani began the robbery
or when Moore placed his call at 12:52 a.m.
Had the jury known Simba was outside his apartment
at 12:40 a.m.,
it obviously would've affected their conclusion.
Given that this flatly contradicted
the Commonwealth's theory of the case.
The Commonwealth never disputes
that Simba was already outside his apartment at 12:40 a.m,
when his customer Herd called him
as he was turning onto Sutton Street.
And yet the Commonwealth does dispute
that Moore placed his 12:52 .am. call
after the robbery began, the Commonwealth seemed...
-: Attorney Wood, I don't want to interrupt you,
but all of these cell phone records,
is it your argument that they support the inference
that Mr. Moore was not there?
-: Yes, absolutely.
-: From that premise though, that's not the only evidence
upon which the Commonwealth rested its argument.
There was eyewitness testimony,
there were statements made by Mr. Moore himself
that were contradictory that he'd never left his apartment,
but then his cell phone records put him in the vicinity.
So the identification of the shooter
wasn't just based on this,
there was other evidence that corroborated that fact
and the other one was maybe just inferentially,
Mr. Herd testified that Kimani made statements
to the effect that I'm leaving,
if you wanna know who did it,
or you want retribution I'm from the Point,
come to the Point.
So there is no testimony.
There's no dispute that Mr. Herd
said that the other perpetrator had gone.
So if you add all of the other stuff with the eyewitness,
a description of someone
who matched Mr. Moore's physical appearance,
his contradictory statements
that he was not in the vicinity, but his cell phone records,
isn't there other evidence upon which the jury
could have found other than just these cell phone records?
So how dispositive could they have been
to the jury's to is the determination of identity?
-: Well, your honor,
I detect at least three big questions there,
and I wanna address all of them.
The answer to your bottom line question is,
I'm attempting to demonstrate and I believe firmly,
the answer is the cell phone records were absolutely central
and material, but that's where I'm going
with this very long answer to three questions.
First of all, the witnesses you say,
didn't the Commonwealth site three other eyewitnesses?
The answer is yes.
In their closing argument,
they did cite three other eyewitnesses,
specifically Deidrich Cole, Marcus Herd, and James Jones.
Now, I've already briefed my view about Deidrich Cole
and Marcus Herd.
Very shortly, very briefly,
Deidrich Cole was not an eyewitness.
All he said was Dwayne Moore called me up
and asked to borrow a car for a robbery.
He wasn't present.
He can't place Moore at the scene.
But beyond that more importantly, very bluntly.
The police looked at Deidrich Cole's cell phone records.
There is no corroboration.
Dwayne Moore never called him not with his main cell phone,
which he used to call Kimani Washington and Simba Martin
and not with his track phone,
which the police found in his apartment.
Bluntly Deidrich Cole is lying.
Second, Marcus Herd,
the Commonwealth for reasons I don't understand and closing
sited Marcus Herd as corroboration,
but as we outline in our briefing, very carefully,
Marcus Herd was merely corroborating
that Kimani Washington was there.
He never the best he can say about the other guys
is one of them was a tall skinny guy.
Well, that's not helpful.
That's all he can say.
The third person, James Jones,
because of the briefing constraints
and we submitted a very long brief
with the court's permission.
I could not adequately brief James Jones.
So I'm gonna have to rely on the court to dig into this.
This is crucial.
James Jones is one of the eyewitnesses
who claims to see somebody exactly fitting
Dwayne Moore's body type across the street shooting,
what we now know is Simba Martin,
twice in the head with a 40 Caliber Iberia.
Here's the two crucial points you need to know,
one, Fitzgerald Allen, please remember this,
Fitzgerald Allen testifies to the exact same thing,
but he describes this shooter as a stocky male.
He is describing Kimani Washington.
And more importantly,
how do we know that Fitzgerald Allen's right
and James Jones is wrong?
Follow the 40 Caliber Iberia handgun, there's no dispute.
Kimani admits it's his gun.
The ballistics demonstrate that whoever was shooting
Simba Martin in the head while he is lying in intersection
is holding the 40 Caliber Iberia.
Where's the 40 caliber Iberia go?
Kimani Washington says he takes his black bag
with his two handguns,
one of which is Iberia straight to his brother's house,
hides it under his brother's bed.
The police find that bag with the two handguns,
including the Iberia the next day,
and Kimani admits those are my guns.
That demonstrates that Fitzgerald Allen is right.
Kimani Washington was the guy who gave the two head shots
to Simba Martin with the 40, and not Dwayne Moore.
So that's that corroboration, those witnesses.
Second, your second question.
What about Dwayne Moore's statement?
He placed himself at the scene for goodness's sake.
He's obviously lying.
With all due respect, Dwayne Moore's statement
that he made to the police.
He says, I'm trying to buy drugs from Simba Martin,
but in any event,
what he says is he comes to the scene after the robbery
has started, he says he hears voices upstairs and he leaves.
That's what he says.
It's also in response to a false allegation
by detective Brown, that they could place him at the scene.
They couldn't actually, but the main point is
he's saying I come upon the scene after the fact,
that is not proof that he's there
for the beginning of the robbery.
Finally-
-: But isn't that, isn't that his second statement though?
Because didn't he make a statement
that he wasn't even there,
that he never left his apartment
or something to that effect and he said, check the records,
check the records.
-: Yes.
Yes.
So you're right that he gave two statements
and you're right.
That in the first statement he denies, denies, denies,
and you're right that in the third statement,
denies in the sense I never left my apartment,
and you're right that in the, sorry,
not third statement, in the second statement,
he says, okay, I did leave my apartment.
And his apartment is at 725 Morton Street,
right around the corner,
as well, he says, I walked over to 23 Sutton Street.
I heard voices upstairs and I left.
That's what he says.
So you're right that he gives two different versions,
but he does not place himself at the scene
at the beginning of the robbery.
Now, finally, the get back speech.
You make reference to Kimani Washington speech,
the get back speech,
the get back speech is in fact exculpatory.
That's very important evidence.
I think your significance,
I think you're attaching to it and correct me if I'm wrong
and misunderstanding, is that he makes clear that he leaves.
And so they, therefore,
I'm not quite sure the other two robbers,
Kimani's not the gunman.
I'm not quite sure how that implicates Dwayne Moore,
but it is crucial evidence.
Go ahead.
I'm sorry.
Go ahead.
-: It implicates it in the sense of there's other evidence
that would put Moore on the scene as being the shooter.
So I understand, but the concern that I have is
a lot of what you've described for us
seems to be credibility assessments and judgements
that the jury is the final arbiter of,
and I understand that you say that it should be looked at
a way that's more favorable to Mr. Moore,
but the jury's not obligated to look at it
the way that you're looking at it.
-: Right.
So I'm gonna answer the impeachment question that you raised
and then finish, I think coming back
to the importance of the get back speech.
So how is this not mere impeachment of Kimani Washington?
And you could stated further look,
this jury clearly didn't believe
everything Kimani Washington said,
so isn't this just Moore impeachment.
And haven't we said all over the place,
mere impeachment can't possibly reverse a conviction,
nevermind a quadruple murder of conviction
for heaven's sake.
Here's the crucial point to that very good question.
Kimani Washington was the sole pillar
of the Commonwealth's case.
I've already gone through the other evidence.
He's the sole pillar corroborated only by, in my view,
reliably cell phone records,
but an incomplete version of cell phone records.
So what we really are talking about
is the significance of the impeachment of the sole pillar
with impeachment of the sole corroboration,
cell phone records.
And I cite in my brief at page 78,
the dispositive case here, Commonwealth V Cowells
where new evidence impeaches or undermines a key witness
whose credibility at trial was suspect,
that's Kimani Washington, whose credibility was suspect,
it increases the importance,
the jury would've assigned
to that additional impeaching evidence.
So here's the point.
The point is that in this sole pillar case
where Kimani Washington is the centerpiece,
evidence that would further impeach it.
-: I understand that.
-: Thank you.
Sorry.
-: I guess my question to you is a little more basic,
what is the new evidence exactly?
I understand the jury had some phone records.
What phone records did they not have?
That you did not have access to
or that your client did not have access to?
-: Thank you.
Okay.
So thank you for that question.
It's a very complicated fact record.
The answer to your question is that the jury was not given,
not introduced into evidence,
Simba Martin's cell phone records.
So the Marcus Herd's cell phone records were never produced.
Nobody got them.
And by the time I got involved, we couldn't get them.
So Marcus Herd's cell phone records were never produced.
What we're talking about
is Simba Martin's cell phone records.
Now the defense did have those records.
-: Yeah, so the defense did those.
-: Yes.
-: Okay.
-: Yes.
And the prosecution had them as well.
So this is why we framed that it's doctrinally complicated
because both sides could have introduced them
and neither side did.
So we've raised this both as a due process violation,
prosecutors failure to introduce relevant evidence
and ineffective assistance for defense counsel's failure
to introduce the records.
In the evidentiary hearing on the new trial motion,
we make clear that defense counsel did not appreciate
this exculpatory aspect
that Simba Martin's cell phone records established.
And this is the second answer to your question,
why are those so important?
What do they add that the other records
that were introduced did not add?
That's what I think you're asking as well.
They established and only Simba's records established
that he was outside at 12:40 a.m.
Because Marcus Herd is calling him.
We know that from Simba's records,
that Marcus's call comes in at 12:40 a.m.
as he's turning onto Sutton street
as he's saying, hey, I'm here to pick up my weed.
Sutton street is only one block long.
He says very clearly in his testimony,
he heard I was calling him
as I was turning onto Sutton street,
his house is one house away from the corner.
And I saw him outside as I hung up,
that places Simba outside at 12:40 a.m.
So that's the crucial, crucial exculpatory point.
Now I wanna finish my answer to Justice Georges
because I think this takes me to the second point,
the get back speech.
What's the importance of that?
That takes us to the second issue,
the suppression of exculpatory evidence.
This is a Brady claim.
during the crime Kimani gave this get back speech
in which he said,
I'm from the Point a synonym for the Columbia Point Dogs,
the law largest street gang in Boston at the time
with a reputation for committing precisely
this sort of crime,
one, violent robberies of local drug dealers.
Two, while ripping the point, that is,
announcing they were committing the crime
on behalf of Columbia Point Dogs.
And it is clear, this is what transforms this into Brady.
It's clear that the Boston police investigating this crime
were aware first, the existence of the Columbia Point Dogs,
two, that they were known as the Point
as Kimani kept saying I'm from the Point,
three, that they robbed local drug dealers.
Simba Martin was a drug dealer
and four that they repped the point during robberies,
this might seem to us a strangely specific thing,
the police understood at the time
what repping the Point meant,
they understood Kimani Washington's speech
in the middle of this horrific crime
to be something very specific.
I'm from the Point, not the geographic location,
Columbia point, but from the Columbia Point Dogs,
therefore they investigated.
They admit this.
This is not subject to dispute.
The police admit they investigated the possibility
that this get back speech meant
that Kimani was repping the Point
and therefore was from the Columbia Point Dogs,
detective McLaughlin frankly admitted
that he investigated this.
On top of that Dwayne Flonory,
the brother of victim Eyanna Flonory,
the uncle of victim Amani Smith
called his brother from the jail and said,
let's get retribution against the Point
or the Columbia Point Dogs.
So the police knew that as well.
They understood from multiple points,
self affiliation by Kimani,
the substance of Kimani's get back speech
and Dwayne Flonory,
and they believed this is possible that this was a crime
on behalf of the Columbia Point Dogs.
Finally, why is that exculpatory of Dwayne Moore?
Why can't Columbia Point Dog Kimani be doing this
and doing it with Dwayne Moore?
The answer is that if Kimani is doing this
on behalf of the Columbia Point Dogs,
he suddenly has a very specific incentive to blame someone
who is not his fellow gang member.
This is a point recognized by this court over
and over again, that where you have gang affiliation.
-: What is the connection
between the newly discovered evidence of a connection
between Kimani and the Columbia Point Dogs?
Where is that in the record?
Is it just the statement?
Is it the subsequent investigation by the feds?
I thought that they looked over 18 months and found nothing
connecting Kimani to the Columbia Point Dog.
-: So the answer to your question, I'll go back.
There is evidence, there's indisputably evidence.
The evidence is Kimani's self affiliation.
This court in Commonwealth V Lopes explicitly recognizes
self affiliation,
I'm from X gang is evidence of affiliation.
Two...
-: That isn't what he said.
-: He said, if you want get back I'm from the Point,
that's what he said.
-: And isn't there some evidence that he lived
at (indistinct)
-: So I addressed this in detail
at the very beginning of my reply brief,
nobody who really knows Columbia Point in 2010
could possibly misunderstand that statement
as come find me at the Columbia Point housing project
that didn't exist in 2010.
If you're in that neighborhood, in that place,
you understand, but more importantly,
you understand Columbia Point
is now the university of Massachusetts Boston in 2010,
it's the Kennedy Library.
It's not Columbia Point housing project,
that was long since gone.
So first of all, anybody who's from the neighborhood
understands he's not saying come find me at Columbia Point.
He's say saying, I'm from the Point.
This is most important, the police, and they admit this,
understood that when you say,
in the context of a drug robbery, I'm from the Point,
what you're saying is I'm from the Columbia Point Dogs.
And there's no dispute about this,
The police understood this was a possibility
and they investigated it.
That's the important point.
Now your second question is, yeah, but they went to the guy
who's an expert in rising tide, this federal investigation.
And those guys said, no,
we don't have any evidence that he's in Columbia Point Dogs.
Isn't that the end of the matter?
The answer is no.
This is where I said, my response was absence of evidence
is not evidence of absence, but more to the point,
what I'm really saying is that the fact that the police
couldn't find additional corroboration
of Dwayne Flonory statement,
of Kimani Washington statement
does not prove that therefore,
he definitely was not a member of this criminal enterprise.
They don't give out cards,
membership cards to criminal organizations.
The point here is this is the suppression
of exculpatory evidence.
The government clearly believed it was possible
that Kimani was a member of the Columbia Point Dogs
for a lot of reasons, which I've summarized,
they should have at that point
handed that information over to the defense
to let the defense determine for itself,
if they could find evidence of Kimani's affiliation
with the Columbia Point Dogs
because this is exculpatory evidence,
but they decided themselves.
No, good enough.
We can't find any evidence
of Columbia Point Dog affiliation, so there must not be any.
So here's the final statement, I know my time is up.
If I could just summarize, we have a combination here.
We have powerful evidence that Dwayne Moore
is not present for this crime,
see Simba Martin's cell phone records,
combine that with the suppression of exculpatory evidence
that Kimani was affiliated with and committing this crime
on behalf of the Columbia Point Dogs.
We submit that if the jury
had all of this evidence together,
that would've created a reasonable possibility
that the jury would've concluded,
come to a different outcome.
Kimani Washington was highly motivated to blame this crime
on somebody else who was not Columbia Point Dogs
who was not present.
And for that reason we submit this case must be reversed.
Thank you.
-: Thank you.
Attorney Campbell.
-: Thank you.
Good morning.
And may I please, Calin Campbell
on behalf of the Commonwealth.
Before I'd start,
I'd like to acknowledge the trial prosecutor Admin Zabin,
who's watching via the livestream,
as well as the victim's families who are also watching.
We ask you today to affirm the defendant's convictions
for the brutal and senseless murders of Simba Martin,
Levaughn Washum-Garrison, Eyanna Flonory,
and Amani Hotte Smith.
I wanna start, and my brother spoke almost exclusively
about issues that he raised in his motion for new trial.
But I think it's important to view that
in the correct context,
which is the question that this court
is tasked with answering is whether Judge Locke
who was the trial judge abused his discretion
in denying the defendant's motion for new trial.
The defendant makes many assertions
and in his brief in here today,
an argument as to what the truth was.
And quite honestly,
it was for the jury to determine what the truth
was based on all of the evidence
that was presented before them.
But even more than that,
there was a six-day evidentiary hearing
on the claims raised by the defendant
in his motion for new trial.
And it was for Judge Locke to credit the witnesses
and the evidence that was before him
and make factual findings,
factual findings which should be upheld
unless they're clearly erroneous.
And when engaging in that analysis,
the court asks whether there is record support
for the findings that judge block made, and there was.
I'll take it outta order and start with the gang evidence.
I think it's crucial.
Judge Locke finds that there's absolutely no evidence
that the defendant presented that Kimani Washington
was in fact a member of CPD, that finding is supported.
He talks about the 18 month federal investigation
in which there is no evidence that Kimani Washington
was a member of CPD.
He talks about gang experts who say in their knowledge,
there is no evidence that Kimani Washington
is a member of CPD.
Though he says I'm from the Point,
I disagree with my brother as to what that means.
I also disagree with his citation to the Lopes case.
Lopes was the case in which someone in the aftermath
of a shooting did yell out a gang affiliation,
but there was much more evidence in that case
as to that defendant's gang affiliation.
There were gang experts who testified
that that individual was a member of a specific gang,
and that the shooting bend in a rival gang territory,
it was qualitatively a different type of case.
And that individual's gang affiliation
did not rest upon a simple statement
that they made in the aftermath of a crime.
I'd also disagree with my brother's assertion,
that the Point indisputably meant
that someone was a member of CPD.
If you look throughout the transcript
and you'll see that they talk about Marcus Herd
and that there was a Herd family that was from the Point,
there's never any suggestion that Marcus Herd himself
or the Herd family was a member of CPD either.
It was just simply how they referred to people
who had lived in that neighborhood in the past.
So I would say that Judge Locke's findings on this point
are absolutely supported by the record
and should be upheld.
He did not abuse his discretion in finding
that there was no evidence that Kimani Washington
was a member of CPD.
Turning to the cell phone evidence, at base,
my brother is arguing that Simba Martin's cell phone records
definitively proved that the defendant wasn't there
that night, they don't, again,
Judge Locke had the benefit of sitting through the trial
and had the benefit of this evidentiary hearing,
had the benefit of Christopher Ritchell,
who is a senior radio engineer from AT and T
who described what these cell phone records show
and what they don't show.
It doesn't show anything of about Dwayne Moore
and his presence or his not presence on the street
at the time of the shooting.
I disagree with my brother's assertion here today
that the Commonwealth agreed with him
as to the sequence of events.
If you look at specifically transcript 29,
page 13 through 15, and that's Marcus Herd's testimony,
he says that he calls Simba Martin
to try to set up the drug deal.
He turns onto the street, he parks a few houses.
He parks and then Simba Martin comes out of the house.
So it's not his testimony that he calls
and Simba Martin is just standing there
waiting on the street and immediately goes over to his car.
That's simply not the testimony,
I think as shown through the Commonwealth's briefing,
but think that, you know,
the Commonwealth never disputed
and if you look at the way that this case was submitted
to the jury, it was clear that this was a messy timeline
from witnesses who gave imprecise evidence,
which makes sense if you think of Marcus Herd
and what he went through it,
it's not simply that he's recounting what happens.
He was shot.
He was paralyzed, a lot happened between the time that,
you know, this event happened
and the time that he was testifying
so he gives some different statements
and he does give different timeframes
at different times to the police
and as opposed to what his testimony was at trial.
I don't think that definitively
sort of the sequence of events
that is presented by my brother
is necessarily the only sequence of events.
And certainly that these witnesses that were imprecise,
that there were factual differences,
that Kimani Washington was unreliable,
that he had motive to lie,
that he had ingested both marijuana and liquor that night
was certainly before the jury
to take into consideration when they were deciding
whether to credit or discredit this evidence.
So for that reason,
I don't think that there's any basis
to find that Judge Locke abuses discretion
in determining that Simba Martin's cell phone records
would've had any difference at all in this crime
where they don't show at a base level
what the defendant is saying that they do show.
I think it's important here too because this is not a case.
The defendant pauses that the sole pillar
of the Commonwealth case was Kimani Washington,
and I'm not going to dispute that Kimani Washington
was an important witness, he was,
but I think that key aspects of his testimony
are absolutely corroborated by other evidence
and by other independent evidence.
So I'll walk you through that.
I mean, you have the defendant's cell phone records,
which established that he had a relationship with Martin.
They established that he was calling Martin with frequency,
the night of the murder.
He calls him a three times before the murder.
His phone is utilizing cell towers
that are close to 23 Sutton street,
including 20 minutes before the murder.
The defendant claims that that doesn't show
that he was at the scene of the murder.
But I think it's important that in his second interview
with the police, he puts himself at the scene of the murder.
He puts himself on Sutton Street
while he's speaking with Simba Martin.
The defendant was the only person who had the motive
to commit these crimes.
He admitted that he had previously lived
at 23 Sutton Street,
but they'd been forced out at gunpoint
a month before the murder.
There was absolutely no evidence that Kimani Washington
or any other person had had the motive
to commit this murder.
The defendant also exhibited consciousness of guilt
by at first having a extreme physical reaction
to the police request to speak to him.
When they just ask if they would speak to him,
when they take him out of the Point street
in where he was working, he asked the officer
if he's going to shoot him,
he then in his first interview lies to the police
and says that he never left his apartment at all that night,
which they find to not be true.
And he minimizes his relationship
and communications with Kimani Washington.
The defendant through these interviews though
also corroborates key parts
of Kimani Washington's testimony.
He told the police that the two had met
and exchanged phone numbers first at Carney Hospital,
and then near Blue Hill Avenue.
They should know that there were communications that night,
both before the murder, and two times after the murder
at 1:32 a.m. and 1:50 a.m.
the 1:32 a.m. call between the two
corroborated Kimani's testimony
that the two were not together at that time.
They're using cell towers
in different parts of the different parts of Dorchester.
The 1:50 a.m call supports that the defendant was moving
towards Kimani's home as it is a distance away
from the cell tower he had been using
towards the location of 45 Fowler Street where Kimani was.
The defendant also texted Kimani that night at 2:32 a.m
telling him to put the blame on someone else,
which is indicative of their participation in the crime.
The phone records also corroborated
that Kimani saw the defendant the next day.
And there are a number of texts exchanged messages
between the two that are showing a planned meetup.
And it's during this meetup that Kimani testified
that the defendant told him that he shot the individuals
in this case.
You also have Marcus Herd's physical description
of the other individual,
while the defendant tries to downplay it,
it is consistent with what the defendant looks like.
Herd corroborated Kimani's testimony that it gave a speech
about being from the point that he left 23 Sutton first
and that by the time the victims were marched out
at gunpoint, Kimani was gone.
James Jones, who is a percipient witness.
Also, I think rare occasion where I agree with my brother,
but I think his testimony is critical.
Now, my brother points to Fitzgerald Allen
and shows that Fitzgerald Allen must be telling the truth.
That was for the jury to decide,
both of those witness testified before the jury.
They were able to look and see
what as James Jones' viewpoint was
as compared to the other viewpoint.
And it was for the jury to determine who to credit.
But James Jones' description is striking
in that it's the way that he describes the defendant.
He describes the same height.
He describes the same build,
but he also describes a head shape that his head was small
and that he had a low or bald haircut
because he could see the streetlight shining off his head.
That completely matches the defendant's description.
It also matches Kimani Washington's mother
who gives a very similar description of the defendant,
gives the same type of haircut
and gives same specific type of description
as to the shape and size of his head.
So I think when you look at all of that evidence together,
it provides a constellation of facts that determine,
and that shows beyond a reasonable doubt
that the defendant was the individual
who with Kimani Washington, committed this robbery
and who is responsible for the death of the four victims
in this case.
-: Attorney Campbell,
because I don't wanna not get to this point.
Obviously, when you look at the transcript of this trial,
I mean, you've got two very experienced,
heavyweight attorneys here with Mr. Amabile and Mr. Zabin.
Did attorney Zabin cross the line?
I know what I know what you might think
that default-wise you've gotta say no, right?
Campbell: Right.
-: But we've said over and over
that some of the tactics employed here
about putting the jury,
asking them to put themselves in the victim's shoes,
this was a horrible, horrible, horrible crime.
And what else would illicit sympathy,
but asking them to do something like this?
That's one, the other is the reference to attorney Amabile,
which is bothersome,
I understand that what he's alluding to
may necessarily be what the jury's gonna be charged with,
right?
They're the sole judges of the facts of the case.
We get that,
but to continue to refer to attorney Amabile
as the person representing this murderer, why is that okay?
-: So I'll take the last point first
and then go to the first question.
So I think it's important to look at it in context,
(indistinct) has even said it two times
and both times it was in the same context.
So in the first, and this can be found the area
where he says it is volume 30 pages 105 to 106,
he tells the jury,
I don't need to tell you what the evidence is.
His honor, doesn't need to tell you what the evidence is.
And the man who is representing the man charged with murder
in this case, doesn't have to tell you what the evidence is.
You know what the evidence is in this case,
and the evidence ladies and gentlemen
show that these murders,
this incident was the very definition of brutal
on premeditated, first degree murder
committed with extreme atrocity and cruelty.
So it's in reference to the roles
that each individual was playing.
-: Yeah.
I get that.
If he stood up there and says,
you don't need this scumbag
to tell you what the facts are.
Would that be okay?
-: Scumbag, I believe is more loaded.
The man who's representing the man charged with murder
is a factual description of what he's there to do.
You know, the second time, which is volume 30 pages,
110 to 111, and it's almost exactly the same,
the way that he uses it, you know, he says,
it's not for Ms. Anderson or even respectfully his honor.
And it's not for the attorney
representing the man charged with murder.
That decision belongs to you and you alone,
and is a decision that you must make with great caution
and care.
That is the law on what you should do anyway.
You know, the defendant did object to this.
So my answer is no, I don't believe so,
because I believe it's a factual description,
the way that it was argued in context
is a factual description of what each person
was there to do.
But even setting that aside, there was an objection to it.
There was a curative instruction given
after the curative instruction is given,
Judge Locke invites them up to sidebar, and he says, okay,
do you want me to say anything else?
And defense counsel says, and this is on volume 31, page 42.
I think that was good.
So he never suggests-
-: Wasn't there a conversation the next day?
Wasn't this revisited by attorney Amabile?
-: He wanted a mistrial,
at the point that Judge Locke is saying, okay,
tell me what else you need to hear?
He doesn't say, you didn't say X.
You didn't say Y, you know,
he renews his motion for a mistrial, but I think a curative,
A, I think the curative that was given
secured any potential prejudice,
not that I believe there was prejudice
because I believe it's a potential proper argument,
but when given the chance right then to tell Judge Locke,
okay, and I need you to do X, Y, and Z.
He doesn't.
And I think that that's telling too.
As to the sympathy part of the argument,
I think it's qualitatively different
than cases in which it's found to be over the line.
I think it's a case that was tried on an extreme atrocity
and cruelty basis.
Do I think it is right up at the line?
Yes, but if you look at the context
of when they're talking about it,
he's talking about the fact that they went on the view
that they stood in these places,
that these places now have more meaning to the jury
because they now know the evidence of the case.
-: But there was a little bit more discreet
that bothers me about this.
And it was the idea that there was a chronology to this
and the sympathy part of it if you're gonna just silo it,
maybe I hear you.
But if you're telling the jury to watch
through the eyes of that mother,
as she saw 1, 2, 3,
when there was no testimony of the order of the murders
that it went from Herd to all of these other people,
while this mother is laying there watching,
waiting for her and her son's next turn in line,
that's a big deal.
Is it not?
-: So my response to that is as to the first,
I think it's a fair inferences to the chronology.
If you look at Marcus Herd's testimony
that they're lined up, he's the first one out,
he's shot first he's then face down
and he hears gunshots.
I think if you look at the placement of the bodies,
it supports the chronology as well.
So I think it's a fair inference
based on both Herd's testimony
and where the bodies are actually found
that supports the chronology that's given.
As to the argument about Eyanna Flonory,
I don't think if you look at it in context,
that it did go over the line, if it did,
that is just one portion.
Where the chronology, I believe was a fair inference
based on the facts that were elicited in Herd's testimony,
where it was not objected to
and where the jury absolutely was told
that sympathy was to play no part in their deliberations.
I don't think it's a problem,
I think too if you look at the verdict that was returned,
they weren't overly prejudice and swayed by this
because the defendant wasn't found guilty
of extreme atrocity and cruelty.
So for all those reasons, I don't think that this argument,
even if it wasn't a proper point,
I'm not conceding would require reversal in this case.
-: Thank you.
-: Yeah.
I'm to happy to answer any questions
that the panel may have,
otherwise Commonwealth will on it's brief
and ask that you affirm the convictions of this case.