-: SJC-11667, Commonwealth versus Tamik Kirkland.
-: Okay, Attorney Schnipper, whenever you're ready.
-: Good morning, Chief Justice Budd,
and may it please the court.
I'm Merritt Schnipper here today
on behalf of the defendant, Tamik Kirkland.
As a practical matter,
the post-conviction evidence we introduced
establishes beyond meaningful dispute
the defendant did not have and could not have had
cornrow braids in his hair on the date of these offenses.
That means that he lacked the signature trait
that Darryl King attributed to the barbershop shooter.
Just as significantly, it means
that three Commonwealth witnesses testified
to what we now know is an impossible fact.
-: But can you help me out as far as the evidence
of the barbershop (indistinct)?
'Cause I thought the evidence was that
the assailant had the hoodie up.
Merritt: Right, so the evidence was that he-
-: Yeah take me through that,
as far when the hoodie's up and down.
-: Darryl King testified that the assailant kind of backed in
with the hood up on his head, stepped, turned around,
and began shooting at him,
the hood apparently had ridden back sort of
to the mid-head point so that he could see the braids
on the front of the person's head.
And then of course, the firing ensued,
he went down, and then the shooter fled.
So basically, the post-convicting evidence
that we put together in the form of expert testimony
from Joy Talbot, the member
of the Barbering Registration Board
and her viewing of the booking photographs
that were introduced at trial,
and her testimony that the hair
as shown in those booking photographs
was too short for the defendant's hair
to have been cornrowed,
combined with the fact that he, of course,
was taken into custody at 46 Burr Street,
which is the location in which three witnesses
claimed he did have the cornrows,
that they all said they saw those cornrows,
including two police officers.
I mean, he, of course, is in custody
at all times until those photographs are taken.
So simply with expert testimony like that
that was provided by Ms. Talbot
at the post-conviction hearing
and the booking photographs that were already introduced
as part of the gov...
Excuse me, the defendant's case.
I think that powerfully indicates
that he could not have had the sort of
the signature attribute that King described
on his assailants.
-: Counselor, could I push back on that for a second?
Because you keep saying it was a signature trait, right?
But didn't he make...
Wasn't he unequivocal in his testimony
that he didn't rely on the hair to make the identification?
That it was once, like you just described,
when the hood came backwards
that he saw facial features of the shooter,
and that was what he used to identify
the defendant as the shooter?
-: Certainly guided by the prosecutor,
primarily at the suppression hearing,
but also later at the trial,
he did say, "Agree with the prosecutor, yes,
"I looked at his eyes, I looked at his cheekbones,
"I looked at his ears, these types of things."
So he did disclaim reliance on the braids.
Of course, when he first discusses looking at the array,
he says, "I noticed that he had braids just like me,
"and obviously like the shooter."
And of course, one of the issues
that I'm raising in my brief is how much,
given the current state of understanding
of eyewitness identification science,
we can really rely just on the overt statement
from a witness, "Well, this is what I relied on.
"This is what I didn't rely on."
And, of course, in combination
with the post-conviction evidence we presented
from Joy Talbot, we also brought in a very
sort of detailed and exhaustive testimony
from an eyewitness identification expert
who explained that not only all the things
that were wrong with the procedure
and the observation conditions that happened in this case,
but I would argue most significantly the way
that King's limited prior familiarity with the defendant,
both from around the around the neighborhood familiarity
and then to exposure to his photograph,
which also showed him with cornrowed braids
following his escape from prison
at the time he was at large,
that all that is very strongly arguably
the source of his recognition of the defendant
as the barbershop shooter.
Dr. Quinleven explained in, I think,
very significant and extensive detail,
how King talked about how a person came up to him
a few days before at the barbershop,
talked about mamas and papas getting shot.
King immediately turned around and calls his son, said,
"I hope you don't have anything to do
"with this woman getting shot."
And then when he's in the hospital,
being officered by this...
Excuse me, interviewed by the state troopers,
the very first thing he says is,
"I'm in here shot up
"because of my son's activities in the street."
As Dr. Quinleven even explains,
you can tell he's drawing a direct line
between the anticipatory fears that he had
in relation to both the incident that happened
at the barbershop with the fellow who approached him,
his viewing of the pre-incident publicity
around Kirkland's escape, and then of course,
the process of transference by which a person
who basically has a set of expectations in their mind
and a set of concerns in their mind,
fears of retributive violence in their mind,
how that combines with the fact that
he barely had an opportunity to see this individual at all,
that he was under extremely stressed out conditions
that reduce identification accuracy
in the range of 30 to 40%.
He's got a viewing time that, she puts it,
29% accuracy rate basis on an
under 12 second viewing opportunity.
So all these factors then you've got, as she describes,
the process of elimination that he uses
where he's sorting through the photographs.
He goes from eight to four to two, finally to one.
Dr. Quinleven explains how prior familiarity
and poor viewing conditions
would combine to effect what she calls relative judgment
in that type of circumstance.
Frank: Can I ask you about the elephant in the room?
-: Sure.
-: The firearms? -: Yes, so,
you mean the one that he has in his hand
-: Yes. -: And the one
that's in the house, right.
So obviously we're not in any way suggesting
that there's not significant circumstantial evidence
of the defendant's involvement in the crimes,
but I think you have to look at that elephant
as well as the like, sort of, other elephants,
the sweatshirt with DNA on it and stuff,
and you have to view them in the context
of the way the third party culprit defense
played out in this case.
Because it's interesting, isn't it,
that in the Commonwealth's opening,
there's no mention of a third party culprit,
there's no mentioning of another actor involved.
By the time the closing of the Commonwealth's case happens,
the prosecutor says to the jury,
"Well obviously this guy, Trevin Smith,
has to be involved in some way.
We know that.
But he's not the barbershop shooter for these reasons.
But if you look at the case in its entirety,
and you theory-
-: Before you leave the entirety,
I wanna go to 24 on your brief for a second.
Cause I got confused by your description of the guns
for a second. -: Okay.
-: So State Trooper Crane testified
to gathering discharged cartridge casings
from both Browns and 46 Burr.
Crane opined that 15 cases from Browns
were discharged by the Ruger,
four found there were discharged by the Taurus.
And the Ruger fired two bullets
recovered from Innocent's body.
Okay, so obviously both guns are firing at Browns, right?
Frank: Correct.
-: I don't understand the last sentence you write.
"He could not opine on whether the Taurus fired any bullets
"or projectile fragments recovered from the barbershop."
What do you mean by that?
-: What I just mean is that he was able
to connect cartridge casing evidence
from both guns to the barbershop,
but only projectile evidence from the Ruger
that was found at the house.
And the implication there is simply that
the gun that was found in Kirkland's hand,
there was no ballistic,
no projectiles. -: So we have...
So the guns used, both guns are at both places, right?
But both guns are being fired at the barbershop.
Merritt: Correct.
-: The second gun,
one of the guns is recovered on your client.
-: That's the Taurus, yes. The second gun
is brought into the house, right?
-: There's no- -: It's found in the house.
-: Found in the house, and we've got testimony.
Is her name Campbell?
I can't remember her name.
-: There's Lekeanna Carter and Carolyn Wright
are the two witnesses at the house,
mmhmm. -: Okay, so,
and the woman who's getting her hair cut,
says- -: That's Carolyn Wright.
-: He comes in and brings in and drops the gun on the couch.
Right? -: No, Lekeanna Carter
is the one who says he puts the gun in the easy chair.
-: Okay, so he puts the gun in the easy chair.
Is she also the one who watches...
She watches him.
She identifies he has cornrows, right?
-: No, Carolyn Wright is the one who says he has cornrows.
She says she identifies him by a side array
that shows he has cornrows,
that as I'm arguing he could not have had.
But he, so I mean-
-: Oh, I thought you were arguing that he's a different guy.
-: Well, what I'm arguing is that
there's a strong third (indistinct) party culprit defense
based on the idea that Kirkland is hiding out
at 46 Burr Street because he's on the run from the police
after his escape from prison,
and that this fellow, Trevin Smith,
who's the third party culprit,
who all three civilian witnesses at the house
lied about his presence there that morning,
and that the third party culprit defense
is around the idea that he's the one
who went down to the barbershop, committed the shooting,
ran back up to the house, dropped all his stuff,
and took off to God knows where.
-: Doesn't the sweatshirt have your client's DNA on it?
-: The sweatshirt had his DNA on it, yes it did.
But all that means is that...
I mean the whole idea that he has to be
somehow associated with Smith really cuts both ways, right?
So if he and Smith are trading off clothing
or part of the same group or whatever,
but if Smith's gonna go do this crime,
there is no evidence to suggest
any sort of joint venture liability
between the two of them about this crime.
And, of course, there's no instruction
to the jury about joint venture liability.
This is a case that's tried exclusively on the theory
that Kirkland's the shooter.
-: The gloves we can assume, though,
are near the Ruger have your client's DNA
and gunshot residue on them as well, right?
-: The gun, the Ruger does not have any DNA-
-: No, I meant the gloves.
-: The gloves have that, yes.
That's established at trial.
So it's certainly established at trial
that he's been in contact with this clothing
that has his DNA on it.
-: So on the Commonwealth's theory
that basically the shooter would have to have two guns.
-: Well, the shooter, I mean, we certainly,
the evidence is that the shooter had two guns.
And so the third party culprit theory is that at the time,
that after the third party culprit comes back to the house
and abandons his stuff,
that Kirkland, who's trying to make his escape,
grabs one of the guns and takes off to defend himself
as he's making his escape.
-: Oh, and then goes into the trunk
with the gun that the shooter had carried...
With one of the guns
that the shooter had carried. -: Yes, that's right.
And of course, and I think it's
eminently reasonable to believe that if a shooter
commits a crime and runs to the house
where you're hiding out because you're on the run
after escaping from prison,
that you would then try to get away
under the understanding that the police
are gonna be following that individual
to the house where you're hiding out.
-: But how does it fit that the gloves
have your client's DNA on it, if that's the scenario?
-: Well, it's just that there's stuff
that he's been wearing around his house.
-: Basically you would have to have someone discard
the inculpatory evidence,
the gloves and the sweatshirt, in the house.
-: That's right. -: That being your client.
-: Well, I mean the theory behind
that aspect of things is that the fact that that
has that stuff on it doesn't mean that he was the shooter.
It simply means that he's got stuff
that has his distinguishing marks on it
that is quite similar to what the shooter was wearing.
-: With gunshot residue. -: That's right.
-: Okay.
-: But, I mean I think this is why you
have to get right to the nut of the case,
which is, well then what on earth is going on
with this testimony that he could have had cornrowed braids
when we know it was impossible
for him to have cornrowed braids.
So why, and I would just like focus the court
on the rebuttal evidence presented
by Springfield Officer Patricia Capozza,
who's not on the Commonwealth's witness list,
who's simply brought in as a rebuttal witness
solely for the purpose of coming to the court
and testifying that she rode in a prisoner transport
to the hospital with him, sat next to him for 20 minutes,
three feet away from him.
On the ride from 46 Burr Street
she observed tight to the head cornrowed braids-
-: And can you tell us how that
played out at trial as opposed to the post-conviction?
'Cause there's an argument about
how much it was played up, the defense counsel,
and the tactical reasons. -: Sure, well,
I mean that- -: Didn't get into
the cornrow issue. -: After Patricia Capozza
gives that testimony, which is supposedly from her
just personal memory from two years ago
with no report written or anything.
She just shows up.
That's burned in my memory, "That guy had cornrowed braids."
The defendant at that point
refuses to come out for trial he's so upset.
He wants to introduce additional evidence
that could have proved he didn't have braid on that day
and couldn't have had braids on that day,
and he says that that establishes,
not only his innocence of the shootings,
but the false testimony by three witnesses.
Obviously counsel reads into the record
a very lengthy statement by the defendant
about his objection, but says,
we as experienced defense lawyers
have decided not to go this route.
The defendant wants to introduce a photograph of himself
with a woman named Chelsea Blake taken at Shirley minimum,
excuse me, right before he escapes
to establish just how short his hair was
eight days before the crimes.
Counsel says we decided not to call her
'cause we're concerned about the Pandora's box
that her testimony might open.
But of course, at the new trial hearing counsel concedes,
"We never reached out to her and spoke to her.
"We had no idea what she might say."
-: What did...
I think I saw a blurry photograph of it perhaps,
but what did the booking photograph show?
-: The booking photograph of the defendant
showed him sitting, sort of as a profile
and straight on and showed him.
He was in a hospital Johnny
and some kind of bloody gauze around him,
but with hair that's kind of a little puffy on top,
quite short on the sides, and not rated.
And when Joy Talbot, the expert takes a look at it,
she looks at all three sets of photographs,
but those ones, which were already in the trial record,
she says, "This is the clearest example of no,
"this hair could not have been braided."
-: The defense attorney had that information.
Of course he had the book and photograph.
-: Yes, he introduced it as part of the defense case.
-: All right, yeah saying that
the description of the shooter is with cornrows,
here's the book and photograph.
-: He didn't have cornrows. -: He certainly didn't
get his hairstyle in between the shooting-
-: That's exactly what he says.
So what does the prosecutor,
who very ably handles this case, argues?
He says, "Well, nobody knows what happens
"in the six days between the time he's captured
"and the time these photographs were taken.
"What we know is that hairstyles can change.
"You can have braids, your braids can go in,
"and your braids can go out."
-: I missed that, I'm sorry.
So there was a delay in the booking
because he was hospitalized.
-: That's right. -: Okay.
-: But of course, under significant guard
given the status of the offenses
he was- -: But weren't there
photographs taken while he was in the hospital
that were introduced?
-: Yes, those were the day after.
That was kind of stills from a video
that was taken by a, which of course also showed him...
I mean two things that I think are relevant there.
The first is that they were not of great quality.
The trial judge denied the defense request
to introduce an enhanced version of that video
that a company had produced.
She felt it would just have been cumulative.
But of course the government argued
that you couldn't quite tell it looked, in those photos,
as though he had braids, and then, okay, now he doesn't.
But we don't know what happened in those six days.
But the point is that nothing that could have happened
in those six days was relevant to what he,
whether he could have had cornrows in his hair,
because his hair was too short six days later,
which just means it was a 10th of an inch shorter
on the days of the crimes.
This is what Joy Talbot testified to,
hair grows at a half an inch a month
as just a matter of biological fact.
-: Could I press you on Ms. Talbot for a second?
Because one of the things
that struck me about her testimony.
Merritt: This is Talbot, I'm sorry?
-: Ms. Talbot, yeah.
So if I understand the motion judge's rationale,
the infirmity with her testimony is
you can't establish what it looked like beforehand,
have some measure of whether or not
you could cornrow that hair.
But one of the foundational requirements for admissibility
is that it will be helpful to assist the trier of fact.
And she testifies to something that I hope
that maybe you could help me understand.
She testifies at her hearing at the,
pardon me, motion to suppress...
I believe that the...
I just wanna make sure I have it right.
Oh, here it is.
And you questioned her the motion for new trial?
On page 24 to 25 of the transcript you ask,
"Is there a sort of minimum length at which a person's hair
"would have to grow to be cornrowed?"
And she responds, "Any layman could tell you
"that you need enough hair to grab ahold of and pull."
Doesn't that necessarily mean
that we don't need her testimony
if she's saying herself that any layperson
could look at someone to tell whether or not
the hair was long enough to be cornrowed?
-: I frankly think that that's attributing
a little bit too much to her use of the word layperson.
What she basically means is that everybody understands,
or this is what I believe she was saying,
that everybody understands that you need
to be able to hold onto hair to braid it, right?
But what we're talking about here
is a specialized style of hair that's not just braided,
it's- -: It's cornrows.
That's what she used. -: That's right.
-: You said cornrow. -: Oh yes, no,
that's what I was asking about.
So the fact is that you can't necessarily tell,
I don't think, just by looking at one photo,
whether the hair can be taken in hand
and stretched out enough to braid.
That's the first question.
I certainly didn't intuit that,
and I frankly don't think trial counsel understood that,
because they hadn't spoken to someone
with the relevant knowledge.
But the more important fact is that
you have the government getting up and arguing something
that had testimony like hers been introduced at trial,
that would've just rebutted what he makes
as kind of like a common sense type of argument.
Well, no one knows what happened in these six days,
but she's gonna...
The defense could have said
it doesn't really matter what happened in those six days.
It's not about your layperson's take on,
well, people can change their hairstyle.
We all know that.
The question is, could this person have had
tight to the head cornrowed braids on one date
and six days later not?
And it's not simply that the hair was too short.
It's that she had said if cornrows are removed,
there's gonna be signature grooves and markings
and plates where the hair was parted.
If extensions meant to simulate them were cut out,
there'd be patches in a a pile of waste product.
I don't think either of those are
within the common knowledge of the jury.
And what's really important here, I think,
is that you've got a case that's powerfully circumstantial
against the defendant,
and you need more than simply cross examining the witnesses
in order to mount the most effective defense.
And what you've got is a defense that's predicated
on two things, challenging King's identification,
and the defendant could not have cornrows,
and there was easily available expert testimony
to really substantiate the aspect
of couldn't have had cornrows.
-: Can I interrupt you there
so that you can maybe focus on that a little bit more
in context of the case that you emailed us
from the US District Court, Ayala.
How would all this interact
in our consideration of the case today?
-: Sure, what I think, obviously,
so Ayala is a case that this court decided,
and among the things the court decided
was that counsel there was not effective
for not getting an identification expert here.
That's not the issue that I cited the habeas decision for.
The habeas decision discusses the fact this court said,
well it was completely reasonable
instead of getting an identification expert in that case
to cross examine the eyewitness
based on his mental health problems
and all the psychological troubles he had had
and how they might have related
to his perceptive capacities on the day of the crime.
What the habeas court said, which by the way,
the habeas judge was the prosecutor in this case,
what the habeas court said, Judge Mastriani-
Elspeth: Oh, okay.
-: That he prosecuted this case as the Hampden DA.
-: Oh, okay.
I just got, nevermind.
Got a little
mixed up there for a minute. -: This is that long ago.
But, so basically what he said is, yes,
counsel was ineffective
because that was a coherent strategy,
just like this court said,
but if you're going to follow that strategy
for challenging the idea, you have to go all the way.
You have to actually get the psychological records
that would show truly the depth of perceptive issues
that were established
by the defendant's psychological problems.
And when those records were obtained,
it showed that the eyewitness
had been having hallucinations that actually bore
a strange similarity to the events
he claimed to witness in the Ayala case.
-: This case is a garden variety pre-Gomes case, correct?
-: Well, it does happen pre-Gomes.
I wouldn't call it garden variety.
-: No, but as far as focus on the weapon,
all the factors that we've talked about.
But there are lots of cases we've had-
-: Sure, we're not trying to retroactively apply Gomes.
What we're really trying to say is that under the analysis
this court advanced the Commonwealth versus Epps,
it's well established by the issuance
of the study group report
a month after the trial in this case,
that there was substantial science
that could have been the foundation of a defense
based on eyewitness ID at that time.
In the time since the trial,
the utility of such science is only strengthened
in cases like this,
such that if the trial were tried even a few years later,
it would've been manifestly unreasonable
not to get an ID expert in that context-
-: But we've had many cases involving a failure to use an ID,
pre-Gomes case failure to use identification expert.
-: You have.
I would urge you to take a look at
the specific facts of this case,
because it's not just about the Gomes factors.
It's about the way that familiarity plays a role
in this identification that's completely contrary
to the way this court talks about
the role of familiarity in Commonwealth versus Thomas.
This is a case in which familiarity
creates a risk of mistaken identification,
does not make up for bad procedures
or poor viewing opportunity,
is a case in which I haven't found any case
discussed by this court which a person's
individual preconceptions about a person
and what they might do
can be read to have informed the nature
of an identification made under very poor circumstances.
I think that's why Dr. Quinleven...
This is not simply a case...
'cause there's almost every identification case,
there's some utility an expert could have provided.
But this is a case in which the evidence
is more or less a checklist of things
that not only an expert could have effectively addressed,
but that there's really no other way to understand
how this could be a mistaken identification
except with the aid of an expert,
because everything that she's talking about
is completely counterintuitive.
Familiarity isn't a balm for bad procedures.
It increases the risk.
The prosecutor in his closing argument says,
"Darryl King started with eight, (indistinct) to four,
"went down to two, how else would you want him to do it?"
That's called being careful.
What Dr. Quinleven says is that's
completely common sense and appealing
and completely incorrect.
When there's vague prior familiarity
and poor viewing opportunities,
the relative judgment enabled by a process of elimination
creates a significantly heightened
risk of misidentification.
The witness, back to Justice George's earlier question,
the witness may believe he's being very careful,
he may believe he's looking at the things
that he is consciously saying he's looking at,
but what we know from the science is that
different things are going on below the conscious level,
and that's what an expert
is there to talk about. -: Familiarity has kind of a
heads I win, tales you lose aspect to it,
because if there's no familiarity,
there'd be a point saying that the identification was false.
Right?
Or tend do- -: Would there be an argument
if you had never seen him before?
Frank: Right.
-: I mean I suppose there would be-
-: And then you say, well this familiarity is not good,
is poor as well.
-: Well, I mean the fact that there's
a theoretical argument from both directions
I don't think changes the gravity of the argument
that's being made here,
because I think here is what this court has talked about
the utility of expert testimony
when identification issues are counterintuitive.
And I think it's quite counterintuitive
that prior familiarity can actually
be a risk for misidentification rather than an aid.
-: And the old jury instruction didn't
cover that. -: I certainly don't think
it did, especially because it told the jurors
that prior exposure is something to consider
in terms of opportunity to observe.
But I think that was also quite misleading.
-: I don't think the old Rodriguez instruction-
-: The Rodriguez instruction did,
I mean obviously this court changed it for many reasons
among that. -: Right.
-: So, I see my time is up.
If there aren't any further questions,
I just ask that the court reverse
the defendant's convictions for the barbershop crimes.
Thank you. -: Thank you.
-: Okay, Attorney Calaflores.
-: Morning, and may it please the court,
Joseph Calaflores for the Commonwealth.
In 2015 this court decided Gomes.
In 2018 this court once again decided Gomes two,
as well as Commonwealth via Ayala.
I would like to start briefly by addressing
the kinda history of the ineffective assistance of counsel,
and then I would then proceed to
whether or not there are facts within this case
for this court on 33E review.
Gomes one changed landscape of identification instructions.
No one can doubt that.
It offered instructions that expanded upon
or ultimately changed the Rodriguez instructions.
When the defendant went to trial in this matter,
the Rodriguez instructions were in full effect.
The defendant and the court did not have the benefit
of either the SJC study, work study...
Excuse me.
Work group on identification nor the decision in Gomes one.
Therefore, when the defendant,
trial counsel dor the defendant went to trial,
he was faced with an ultimate decision,
whether or not to retain an expert in identification
or proceed with the strong evidence
that the defendant did not have cornrows
based upon a video taken in the hospital
shortly after the crime.
Now without the benefit of the study group
or of Gomes one counsel cannot be found effective.
Gomes one and Gomes two and Ayala require that.
The defendant here is trying to expand
a holding from the SJC back to his case,
and hold not that he was ineffective
in requesting or supporting the instructions,
but that he was ultimately ineffective
for failure to call that witness
or to support his argument at the motion to suppress.
The Commonwealth urges this court to hold
that such practice, such litigation at the time,
before Gomes one and before the working group
is not ineffective assistance of counsel.
Elspeth: Do you agree that that expert
would've been available at that time?
-: This specific expert or?
-: An expert who could testify to this material,
would they have been available at the time of the trial
before Gomes one and Gomes two?
-: An expert may have been available at that time.
The expert that testified here is Dr. Quinleven,
who is, if I'm not mistaken, from a state down south.
Dr. Quinleven is actually cited in the Gomes one decision
in a footnote and is heavily relied upon
for an article that she authored in 2009.
-: But this evidence, this expert testimony
was certainly around.
We have the New Jersey cases that-
-: And the trial court was well aware that it was around.
Trial counsels, both trial counsel
brought this issue before the trial judge
and raised it and requested
the New Jersey model instruction.
However, the Commonwealth objected
that it was a New Jersey case
and that had not been subject to any
kind of evidentiary hearing,
Daubert-Lanigan here in the Commonwealth.
So that brings me back to the argument
that Gomes one and two are completely applicable here.
In Gomes two the court stated that
we cannot hold counsel to some superhero level
of knowing extra jurisdictional cases,
especially from New Jersey.
And the Commonwealth would argue that
to require such a holding would require attorneys
to read 50 states and as many jurisdictions
to keep minimally aware of what's going on in other areas.
Now, the defendant is arguing on appeal that-
-: Well, but wait for a minute,
in a murder case that's pretty serious.
Certainly that's kind of within
the scope of the research somebody could do.
I mean, it's not that hard, is it?
-: I agree, it's not that hard.
I can't speak to the level of how easily things
are searchable on the internet in 2009.
In modern times it certainly is.
However, in 2011 to 2013
when they're preparing for this trial,
the knowledge is out there,
the Commonwealth cannot dispute that.
However, we're looking back
at whether or not that is ineffective assistance of counsel
at that time to a reasonable attorney.
-: Was this idea that familiarity
leads to sort of this transferred identity,
was that out there at the time?
I haven't seen a lot of those cases, right?
I understand the limits of stranger ID.
We've got plenty of cases on that.
This idea that, oh, I know the person,
therefore I transferred my vision of them onto this person,
was that out there running around at the time, too?
-: I do not recall right at this moment.
The literature that has been developed from then till now
is very expansive, so I just can't recall
what timeframe certain areas
of identification theory were developed.
I will say that...
That the Rodriguez's instructions
did instruct the jury to consider familiarity.
While it's not as forceful as the modern day instructions,
it does instruct the jury to consider it.
And,
while it's a little convoluted on this record
at the motion to suppress, Darryl King the barber
testified that he knew the defendant
from around the neighborhood
from his interactions within the community,
not nefarious interactions.
He was a coach at the Boys and Girls Club for basketball,
and the defendant was always around the facility.
-: Right, but he'd just escaped from prison,
and he was infamous at that point, right?
Whether he had a neutral reputation before,
he's just escaped from prison, what,
three or four days before this,
and he's been on the news, right?
Joseph: Certainly.
-: Can you address the cornrow issue
and why it's not ineffective
when there was available evidence
that this characteristic of the shooter
could not have been worn by the defendant?
-: So, I think that requires a brief look at this escape.
When we're lookin' at this
ineffective assistance of counsel claim,
it's manifestly reasonable for trial counsel at that time
to try and avoid any reference
to his incarceration, his escape.
-: He could have tried.
He could have asked the judge,
"There's a photograph of the defendant
"with this woman right after, at a date and time."
He could have tried and get the judge to bide to that.
-: One of the concerns that trial counsel Andreopoulos had,
he testified post-conviction, but Andy Kleinman did not.
Andreopoulos testified that one of the concerns,
and there are two photographs at issue here,
one with Tiara Galbreath and one with Amy Blake.
Now, he testified that both of those photos
represented issues that would have been present,
foremost whether or not the defendant was incarcerated.
Particularly with the photo of Ms. Blake,
he was specifically concerned that Ms. Blake
knew certain information both about the defendant,
Darryl King, and their relationship.
So trial counsel was very aware of certain information that,
from the record, it appears that
he did not want to come in at trial,
which was on top of the fact
that he was incarcerated at that time.
Given the fact that prior counsel was present
at the hospital with an investigator, Mike Chaptalane,
and took a video, which clearly showed
very short and un-cornrowed hairs
while sitting in the hospital bed.
That is quite strong evidence.
-: I'm confused by all the different photos for...
Do you have the record in front of you?
'Cause I...
218, is that the booking photo?
And then we have the pictures,
I assume the hospital photos come a little later, right?
Again, I'm not an expert on cornrows,
but is 218 his booking photo?
And are the hospital photos at...
And then the first pic, 230.
We have 218, we have 230 with the defendant
and a young woman.
And then we have another one later.
I just can't separate out all the photos
and what we've got in terms of cornrow,
'cause his hair is very short
in all of these pictures, right?
-: So if you're looking at the record appendix,
pages 216 through 223,
that is the lineup that is shown
to Darryl King in the hospital.
-: Right, I...
And he's at 218, right? -: Yes.
-: And 218 is an older photograph.
-: Okay, that's an older photo.
Then we got hospital photos come at a little later, right?
They're at...
Well then we have his jail,
the jail photos are at 253.
Is that right?
-: 230 and,
yes, 253 and 254.
-: 253 and 254.
And then we have hospital photos come a little later, right?
Yes. -: They're at 255.
And you can't see the back of his head, right?
And the second photo, I mean,
am I able to know that this person
doesn't have cornrows from that?
-: Having some familiarity with cornrows
and general hair characteristics-
-: Well, but that's where
I'm going- -: I think it would be possible
to make a determination.
But I...
It is a poor quality photograph.
And I would argue that the,
this is even,
this is clear and the video
and the proffered enhanced video,
it gives you a little more detail.
But if...
It just gives you a little bit more detail
than this photograph.
-: And the...
There's expert, expert testimony,
at least at the motion for new trial on...
Or is there?
I can't remember.
Tell me,
how do we know about converting cornrows
into non....
I mean, do we have testimony on this?
-: I guess I don't- -: Besides the barber...
Is the barbershop person
at the corrections department the expert?
Is that...
I'm confused where we are on that.
-: Ms. Talbot testified post-conviction.
Ms. Talbot is a certified barber instructor
and runs the barbershop program at-
Justice: I think it was Susa.
-: I believe so.
-: She runs the program there
and basically teaches all of the inmates there
on how to give haircuts.
She's been a barber instructor for a lengthy amount of time
as well as been cutting hair for
equally lengthy amount of time and is well versed
in hairstyle. -: And is she the one
who said the layman point,
that a layman knows you can't do this?
Or is that somebody else?
-: I believe that was her testimony.
Now, her testimony,
when she was shown the earlier photograph,
she says it's hard to tell.
When she's shown the later photographs
she says it is either impossible or-
Justice: Be specific about what photographs
she's been shown.
-: I'm sorry, so photographs of Ms. Blake
and Tiara Galbreath she says it would be,
it's hard to tell just based on the photograph,
but when shown the photograph from the bedside
at the hospital,
she says it would be impossible or difficult to do that.
-: To take those cornrows out.
-: To cornrow that here. -: Cornrow that hair.
Right, right.
-: There's no testimony in the intervening time
if there was any medical intervention in the head
that necessitated removing
or even paying attention to the head area.
So the length of time between the transport to the hospital
and then that video, there's really nothing that explains-
-: Do we know when 255 is taken?
Is it taken right when he is brought to the hospital
or is 255 taken five days later
after he could have cut his hair?
-: My memory is that 255 is a screenshot from a video
which was taken about a few days later, maybe a week later.
I don't have that exact date in front of me.
I don't know if that's a fair inference
that he would've been able to go get a haircut
while he's in the hospital.
Especially after having suffered
numerous gunshots in the trunk.
-: I mean, he's got...
Is he wounded in his neck?
I can't tell what that is in 255.
-: I'm unsure what that could be.
It could be a wound, it could be a PICC line.
There's nothing in the record
that gives any kind of evidence
as to what that white patch is.
The defendant...
If there are no further questions on the photographs,
I'd like to return to some of the case law that is-
-: But the defense attorneys have these photographs,
trial counsel have these photographs.
-: Trial counsel had at least one of these photographs,
one of the jailhouse photographs.
Tiara Galbreath says that she gave the photograph to him.
However, I believe the attorney testified
that she does not recall receiving them.
-: And it's your position that calling these witnesses
of the jailhouse photographs were fraught with danger,
not only if you could sanitize
the fact that he was in custody,
but also this mode of evidence
in these witnesses? -: Yes.
Ms. Galbreath testified
that she knew the defendant since they were children.
So she has a lot of information about him.
Specifically, trial counsel has an issue with Ms. Blake
who has an indeterminate amount of information
between the relationship between the defendant
and (indistinct).
-: Two different females. -: Two different witnesses,
but one of 'em doesn't have the mode of evidence or both do?
Ms. Blake has stronger evidence, which is alluded to;
however, Ms. Galbreath, who testified
at this (indistinct) Ms. Blake did not testify.
Ms. Galbreath testified that the,
she knew him since they were childhood friends.
So, there's a concern with if she testifies
whether or not she's gonna start testifying
to any of his involvement that resulted him
in going to prison,
and as general impeachment evidence
as a favorable witness for him.
-: But don't you think that an effective lawyer could say,
"Judge, I have this evidence of his hairstyle
"at the relevant time,
"and I'd like you to exclude the fact that he was in jail,
"'cause it's more prejudicial than probative.
"The only issue is what is his hairstyle at a certain date?"
-: I think that would be a fair ask.
I can't dispute that. -: And then if the judge,
and if the judge says no, then you don't call the witness.
-: I certainly can't dispute that would be one tact
for an attorney trying this case to take.
However, Attorney Andreopoulos did state on the record
that he was immensely concerned
with the background information of these two witnesses.
-: And there was no motion to eliminate to address this?
-: I do not believe so.
I think the only record evidence we have
is that on one of the trial record transcripts,
Attorney Andreopoulos is having a discussion with the judge
about the Commonwealth contextualizing the photographs.
-: I mean, what strikes me is
the question is, well why not?
Why not try this evidence?
What's the harm?
All the judge can do is say,
"No, I'm not going to allow you
"to avoid the circumstances of the photograph."
-: I can't speak to what was going through
on trial counsel's mind as to
what he imagined the harm would be-
-: But we can only base it upon
the motion for new trial testimony, right?
Or at least one of the lawyers.
-: Right.
Presenting that type of evidence
would certainly have strengthened any argument at that time
about the length of hair.
However, looking at the photographs
of Galbreath and of Blake, it's not a very clear photograph.
It doesn't add anything that would not have been shown
by the video later on.
It's a distant photo, full length.
More than full length.
I think it's even got some foreground to the,
to the photograph.
So, I don't see any reason to rely upon that
to establish a baseline for the later photograph.
And the later photograph, as you can see on 255,
is much shorter hair.
-: Well the witness I assume could have been asked,
"You were with him, photograph was taken,
"did he have cornrows?"
-: She could have been asked that question,
and she certainly would've answered either yes or no.
Ms. Galbreath, at the post-conviction hearing,
testified that he was attempting to grow waves,
which is sort of a short cropped haircut,
according to the record.
-: How many people identified...
I know one of the women in the house
said the person had cornrows.
Did any of the police officers,
the police reports at the time when they arrest him,
when they pull him out of the car,
any of them describe him as having cornrows?
I know at trial some of them testified.
Is there contemporaneous evidence
that he was described as having cornrows
when he was pulled out of the car?
-: So Patricia Capozza is the officer
that counsel referred to
that was brought in last minute on rebuttal.
The trial record shows that she claimed she wrote a report.
However, there is nothing in the Commonwealth's discovery
showing that a report-
-: Counsel, but didn't the police officer that was shot
give a report and say that he had cornrows?
-: I was about to go there.
I don't recall what his report says.
In my recent review of the trial transcript,
he testifies that the defendant in the trunk had cornrows.
On cross examination,
he was not impeached with the absence
of any statement about hairstyle within his reports.
Hairstyle was not touched upon at all
in the cross examination of Trooper Gregorczyk.
-: So he test...
Again, just to summarize,
that he testified at trial that the person had cornrows
and we're not sure whether his police report
at the time indicated.
He wasn't cross-examined about its absence,
but we don't know what the police report said at the time
about whether he had cornrows or not?
-: On the stand right now,
I don't recall what specifically his police report
stated, Trooper Gregorczyk.
-: Your brother is arguing that about eight people
lied about cornrows, right?
So I'm just trying to get those eight people,
or the number.
There are a number of people testifying.
There's the woman who reports that the person
who runs into the house says cornrows.
There's this officer who says cornrows.
-: I think the position is they're not lying about cornrows.
-: No, I get it.
Yeah, he's saying they're all lying.
But I take it you're saying we got seven or eight people
saying he has cornrows at the time.
-: Yes, at trial, on the topic of hairstyle,
Trooper Gregorczyk testified,
Patricia Capozza testified, and Darryl King testified.
Now, and this kind of dovetails into my second area
that I wanna touch upon
is when we're looking at this case as a whole,
and given the context of what ultimately becomes
the Gomes one instructions
of the totality of the circumstances for the identification,
we have a near-continuous showing
of a shooting at the barbershop.
Two percipient witnesses observe one man
matching the description fleeing the barbershop
and running down the street.
Neither of these two witnesses described the haircut,
but they describe a man wearing black clothing
running down the street.
One man saw him go into the barbershop
and then only one man come out the barbershop
and begin running down the street.
That man was running down the street as well
and saw him running down the street.
That man goes into a home and the other man,
the defendant, keeps running,
and a short time later he hears gunshots.
So we have clear evidence that at the time of the shooting
there was one shooter with two weapons.
He flees down the street, confirmed by two witnesses,
and then enters into a home.
Now two officers on the street are parked at the corner
and observe the motor vehicle pull up
and park cockeyed on the street.
Their language.
It then backs into it.
Both officers are aware of this house generally
and are observing this vehicle because of its mannerisms.
They see the defendant get out of the back door,
look around, up and down the street, and get into the trunk.
The car then begins to leave.
Those two officers then stop the car-
Frank: Was there a shift in the Commonwealth's theory
about another perp?
-: Trevin Smith is the only other
proffered third party culprit.
He was well known to the Commonwealth,
and the defendant argues that a certain statement
should have been admitted at trial.
-: But what about the Commonwealth's closing argument?
Did these change courses?
-: I would argue that it didn't really change courses.
It just included a little bit more
that was not necessarily addressed earlier.
-: So what did the Commonwealth say about the third party
in the closing argument?
-: Your Honor, I actually don't recall right offhand.
I do know...
I did remark to myself that the differences
between openings and closings really
should not be held against the Commonwealth,
because evidence evolves throughout the course of trial.
Evidence that- -: How was...
How about Smith in general?
So Smith has cornrows, right?
-: Smith does have cornrows.
-: He's somehow connected to the defendant.
What is his connection to the defendant?
-: So that morning, I'm not sure what their
friendship level is.
They are aware of each other and interact.
The driver of the motor vehicle testifies
that that morning she bumped into Mr. Smith,
and he then later arranged for her to go pick something up
at the house without telling her what it is.
-: And where does she bump into Mr. Smith earlier?
-: It's on the street while she is walking.
I don't recall the street name off the top of my head.
However, it is that morning.
So he is generally placed in the area
of the shooting in that neighborhood.
-: And at the time of the barbershop, is there any...
Are we gonna be able to figure out sort of
anything about Smith at the time of the barbershop shooting?
'Cause- -: I don't believe
that there's anything in the record about
whether or not he stayed in that area.
The driver of the vehicle testifies
that she was talking to him on the cellphone,
and he instructed her to go to the back.
"Do you have anything in the trunk?
"Open the trunk."
At that point, someone jumps out of the house
and gets into the trunk and they attempt to depart.