WEBVTT
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SJC-11668
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Commonwealth versus Jose Fernandez.
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Okay, Attorney Rosele.
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Good morning, Chief Justice Budd.
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Members of the Supreme Judicial Court.
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My name is Jim Rosele.
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I'm appearing on behalf of Jose Fernandez
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in this particular case.
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I'd like to acknowledge that there are friends and family
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of Mr. Fernandez who may be in the courtroom here today
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or are watching it online.
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And so I wanted to acknowledge that fact.
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I would begin by suggesting that the question
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that we suggest this case poses is this,
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can law enforcement investigations of a drug dealing
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operation and a murder actually be conducted in a manner
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that is so fast and loose has to be found to be unlawful
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or unconstitutional?
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We contend that the answer to that question is yes,
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and that this case demonstrates that.
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I'm gonna focus in particular on the secret recordings
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that were, perhaps, the most compelling part
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of the Commonwealth's case.
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These are the four days of recordings that were made by
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the agent Alexis Cruz,
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excuse me, at in the House of Correction
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when he was incarcerated with the defendant, Jose Fernandez.
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I understand why you, why you are focusing on
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whether or not it's organized crime that's involved
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and it seems like, although it was hard to pin down a bit,
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some of your discovery arguments relate to
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the section 99 issue.
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But, the first issue it seems to me is that,
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I mean they don't need a warrant here.
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They don't need a section 99 warrant here.
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If there's organized crime,
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it's a one-party consent through a police officer.
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So there's not even a need for a warrant.
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And so if there's no need for a warrant,
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then if the warrant didn't include anything about
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the South Carolina dancers.
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I'm having a hard time having your argument
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separate the warrant from the organized crime argument.
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Justice Lowy. I agree with exactly what
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you're saying there.
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And in fact, this was initially suggested to be
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a blood warrant,
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but it's not a blood warrant because Commonwealth v. Blood
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doesn't apply unless it's a home setting.
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And this obviously, even though it might have been
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Mr. Fernandez's home, he's incarcerated,
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he was incarcerated at the time,
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and we concede that it,
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the blood warrant requiring wasn't there.
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And the burden to establish that the exception of 2 72 99
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applies we, the designated offense,
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there's no question about that.
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It's the murder that occurred in May of 2009,
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but in connection with organized crime is
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what is required and the burden to establish that is on
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the Commonwealth. And what did they proffer in this case?
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Nothing other than a 10 page affidavit that was submitted on
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November 17th, 2010 by Trooper Giasi.
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That's all that the Commonwealth put forth.
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And if I could talk to that and point out.
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Before you do that, how do you distinguish Mitchell,
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right, this, the exact same issue was dealt with
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in Mitchell, right?
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What's different about this case than Mitchell?
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Well, there's actually quite a bit of differences,
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but, the biggest difference, your Honor,
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that I point out is that in Mitchell,
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there was an evidentiary hearing at the trial court level
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before the case, before Mitchell came up to this court.
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And so the Commonwealth had the opportunity to make its case
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that the exception of 2 72 99 applies.
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They had the same opportunity here in Fernandez.
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They didn't avail themselves of that opportunity.
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That's perhaps the biggest difference between the two
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and a way to distinguish the two.
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We'll concede for the sake of we understand
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what this court announced in Mitchell saying that there was
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organized crime and it would, and it met
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the requirements there.
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So if you look at Trooper Giasi's affidavit
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and I'll, if I may, I'll talk about what it's missing.
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There's a gap of nearly 14 months
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as he details his investigation.
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But the, you know, as you know,
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the DA's offices and AG's office very often will seek
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a blood warrant even when they don't need one
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with a section 99.
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However, there was no affidavit needed,
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so there was no warrant needed.
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And in Mitchell, Chief Justice Gantz
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said, well, this is organized crime related to the drugs.
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And even if there was a personal nature to it,
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not his words, but
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the drug dealers needed sort of an image of credibility.
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So they couldn't let this situation
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with the supreme gang lie.
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Right.
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I'll make two points if I may, your Honor.
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First of all, Chief Justice Gantz also said in Mitchell
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that the genesis of the dispute,
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the reason for the original dispute was unknown.
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It was not known in the Mitchell case.
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In this case, it's clearly understood the genesis
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of the dispute that ultimately resulted in
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the tragic killing of Mr. Rapina.
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It was a dispute about between Mitchell and Pina having
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to do with dancing girls that stemmed down in South Carolina
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and was brought up to taunting.
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That's what this case was all about.
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It had nothing to do with organized crime.
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And the key time to look at, Your Honor, is May of 2009.
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We will concede for the sake of this presentation
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that based on Trooper Giasi's affidavit
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in November,
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November 17th.
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And I know the court is going to look at that carefully.
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You can actually track how he describes the results
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of his investigation to support his contention
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that the exception of 2 72 99 applies.
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And you can track it right on through up to
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paragraph 15 of it.
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It's everything about the murder itself,
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the subsequent investigation, and examining witnesses
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and so forth.
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Absolutely not a scintilla of evidence or any comment
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whatsoever about an underlying drug conspiracy or ongoing,
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you know, drug operation.
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And then from paragraph 15 to paragraph 16
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of that affidavit, that's at pages 95 to 105
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of the appendix at page 100,
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you see paragraph 15 on Wednesday, June 10th, 2009.
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Again, he's talking about his investigation stemming from
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the murder.
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Nothing at all about any drug connections.
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And then-
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Let me ask you this question and tell me what's wrong
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about this, the premise of my question.
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So what the affidavit says is not dispositive,
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there was no affidavit needed.
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What the issue is is whether or not there's evidence of
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organized crime and the Commonwealth is gonna say
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that the South Carolina dancers business
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augments the tie to organized crime,
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doesn't detract from it.
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There was indesia of organized crime
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from June, July to August of 2010
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based in part upon the investigation that was done by
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Trooper Baker of the drug offenses.
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Trooper Giasi, and it's quite obvious when you look at
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their compare and contrast their respective affidavits,
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what Giasi was doing here,
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and it was basically incorporating the results
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of Baker's investigation into the drug.
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And that's perfectly okay for troopers working together,
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solving a crime and so forth.
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But we contend in this case they went too far.
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And I'll speak to that.
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I'd like to under underscore the importance here.
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You look at Trooper Giasi's affidavit was all that
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the Commonwealth presented to the trial court
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to support their position that the exception
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of 2 72 99 applies.
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That's the answer to my question,
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that that's the evidence they presented
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as to that, you just answered my question.
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Because you're saying that the only thing the judge had
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to determine whether or not there was organized crime
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was the affidavit.
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Exactly. That's all the Commonwealth did.
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And the motion should have been allowed at that point,
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absent anything further from the Commonwealth had
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the opportunity to do it.
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They did do so in the Mitchell case
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and 'cause that's after the fact and hindsight
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is always 20/20, but in this case it wasn't there
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and the motion should have been allowed.
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What's the answer to Justice Kafker's question though,
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about why is this different from Mitchell?
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Can't we just take judicial notice of that case?
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Yes. I mean that's absolutely controlling law and I'm not
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suggesting that this court should revisit the arguments in
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Mitchell that what was going on here was organized crime
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or not, we'll concede that based on what we see in
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Trooper Giasi's affidavit from August 2010 on,
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there's an indication that there's an organized crime
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component going on involving drugs.
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There's nothing before then. So it's a 14 month gap
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going back to the important period, which is in May of 2009.
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That's the time we gotta look at what was going on
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in May of 2009, nothing regarding at least on the record,
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that the judge had available to him.
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Nothing suggesting that there was competing
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drug cartels or anything of that nature whatsoever.
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So we contend that
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the 2 72 99 was indeed violated,
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the exception did not apply in this case for the reasons
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we suggest. And that would be our statutory argument.
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I do want to talk about the,
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our contention that Article 12 bears some scrutiny
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in this case.
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And that has to do with the notion of inexplicably
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intertwined concept as an exception to the Sixth Amendment
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right to council,
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which, under most circumstances, is offense specific.
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That's conceded.
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But there is this exception that has been recognized
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in Massachusetts,
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it was recognized in the Rainwater case in 1997.
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It was acknowledged in the Murphy case in 2000, 2005.
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I believe that's the correct year.
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And, but we are urging the court to revisit that notion of
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inextricably intertwined to see if it does have application
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as a matter of Article 12 here in Massachusetts.
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Other states are doing it, have done it.
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And in fact, I-
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Tell you a letter that there were three states that have.
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Am I, should we assume that there's 47 that haven't
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or that they just haven't reached the issue
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or somewhere in between?
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Well, I'd answer that very quickly, by no,
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you shouldn't make that assumption.
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But I will
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again concede the point that in the wake of
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the Supreme Court's opinion in Texas v. Cobb,
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that put a, sounded the brakes if you would,
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to application of that exception,
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which was recognized before.
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In fact, the Jewell v. State,
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the Jewell v. Indiana case that I cited
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is very instructive in many respects talking about this,
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this principle of inextricably intertwined.
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And if I may just quote from the Jewell case,
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I know it's another state jurisdiction,
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but it does have bearing here because the inextricably
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intertwined concept before 2001,
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when the court decided,
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when the Supreme Court decided Texas v. Cobb
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inextricably intertwined, was recognized in several
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federal court cases, federal jurisdictions,
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and a number of state jurisdictions.
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Texas v. Cobb in 2001 comes in,
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puts the brakes on it in some respects.
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But in the wake of that, we are now seeing
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not a ground swell, not a rush and so forth,
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but gradually more and more recognition of this exception
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to the Sixth Amendment jurisprudence as a matter of
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state constitutional law.
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And if I may be permitted just a quote from the Indiana,
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the Jewell case,
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when a defendant is represented by a lawyer for a particular
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offense, this is what the Indiana Supreme Court wrote.
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When a defendant is represented by a lawyer
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for a particular offense, do the police violate his right
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to counsel if they approach him about a different offense
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under the Sixth Amendment?
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The answer is no.
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I mean this was in 2011,
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obviously that's 10 years after Texas v. Cobb that under,
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00:14:30.750 --> 00:14:33.960
they brought a protections of Article one section 13
265
00:14:33.960 --> 00:14:36.180
of the Indiana Constitution.
266
00:14:36.180 --> 00:14:39.450
The right to counsel is violated only where the different
267
00:14:39.450 --> 00:14:42.870
offense is inextricably intertwined with the charge in which
268
00:14:42.870 --> 00:14:45.540
counsel is already representing the defendant.
269
00:14:45.540 --> 00:14:48.543
The Jewell opinion, by the way, is very informative.
270
00:14:50.802 --> 00:14:52.998
It is very, very interesting because what
271
00:14:52.998 --> 00:14:57.810
the Supreme Court of Indiana did in the Jewell case is
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00:14:57.810 --> 00:14:59.580
actually track the history,
273
00:14:59.580 --> 00:15:03.190
recall the history of that inextricably intertwined
274
00:15:05.610 --> 00:15:10.470
exception to Sixth Amendment jurisprudence at the time.
275
00:15:10.470 --> 00:15:13.230
And they note for example is to be viewed
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in two different capacities.
277
00:15:15.720 --> 00:15:19.410
One is inextricably intertwined where the facts are
278
00:15:19.410 --> 00:15:21.540
similar or they're related.
279
00:15:21.540 --> 00:15:24.390
The facts of both cases are related, that's one way.
280
00:15:24.390 --> 00:15:28.980
But the other one, they say another one that is
281
00:15:28.980 --> 00:15:31.980
characterized as, is labeled the circumvention
282
00:15:31.980 --> 00:15:33.990
of the Sixth Amendment right.
283
00:15:33.990 --> 00:15:36.960
And they say that exception applies when the government
284
00:15:36.960 --> 00:15:41.910
or state breaches its affirmative obligation not to act
285
00:15:41.910 --> 00:15:46.410
in a manner that circumvents and thereby dilutes
286
00:15:46.410 --> 00:15:49.080
the protection afforded by the right of counsel.
287
00:15:49.080 --> 00:15:52.770
That we respectfully suggest is what exactly what has
288
00:15:52.770 --> 00:15:53.763
happened here,
289
00:15:57.000 --> 00:15:59.860
based on an examination of the
290
00:16:02.130 --> 00:16:06.960
efforts by Troopers Giasi and Baker to work together.
291
00:16:06.960 --> 00:16:11.960
And so if I may,
292
00:16:14.550 --> 00:16:17.760
let me just, if I may point out some of the reasons why
293
00:16:17.760 --> 00:16:20.940
we say that it does apply in this case, if I may,
294
00:16:20.940 --> 00:16:23.490
and I'd like to conclude with a few remarks about
295
00:16:23.490 --> 00:16:25.830
the prejudice aspects of it and then unless
296
00:16:25.830 --> 00:16:27.330
there's any other questions from the court,
297
00:16:27.330 --> 00:16:31.713
but speaking to why that exception does apply in this case,
298
00:16:34.380 --> 00:16:36.390
here are some of the things that we can look at.
299
00:16:36.390 --> 00:16:41.220
We've, it's established now that in both investigations
300
00:16:41.220 --> 00:16:44.280
we have the same case investigation number being used,
301
00:16:44.280 --> 00:16:45.810
whether it's the drug or the murder.
302
00:16:45.810 --> 00:16:48.120
So clearly they're working together.
303
00:16:48.120 --> 00:16:50.553
Nothing wrong with that unless it goes too far.
304
00:16:52.740 --> 00:16:56.010
I would invite the court to pay particular attention
305
00:16:56.010 --> 00:16:58.230
to the two affidavits.
306
00:16:58.230 --> 00:17:01.480
Giasi's, November 17th, 2010,
307
00:17:01.480 --> 00:17:06.030
found in pages 95 to 105 of our appendix.
308
00:17:06.030 --> 00:17:09.760
And then the Commonwealth submitted
309
00:17:10.800 --> 00:17:14.760
Baker's affidavit from I believe June of 2010.
310
00:17:14.760 --> 00:17:15.720
And that's it.
311
00:17:15.720 --> 00:17:19.290
I'm going by memory now, I believe it's pages 57 to 99
312
00:17:19.290 --> 00:17:21.030
of the Commonwealth's appendix.
313
00:17:21.030 --> 00:17:25.680
And that's very interesting to compare and contrast the two
314
00:17:25.680 --> 00:17:28.960
and you really get a sense of the extent to which
315
00:17:31.170 --> 00:17:35.010
Giasi all of a sudden starts to incorporate everything that
316
00:17:35.010 --> 00:17:36.693
Baker was doing at that point.
317
00:17:38.220 --> 00:17:43.220
The fact is that the murder investigation up to that point
318
00:17:43.260 --> 00:17:45.750
apparently had dried up.
319
00:17:45.750 --> 00:17:48.150
They had to do something to make the connection.
320
00:17:49.320 --> 00:17:50.853
Other factors, if I may.
321
00:17:55.080 --> 00:17:59.643
At pages 277 to 281 of the appendix,
322
00:18:00.930 --> 00:18:05.280
there's meeting notes of Trooper Giasi beginning of
323
00:18:05.280 --> 00:18:08.550
November 2010 when they're gonna sit down with Cruz
324
00:18:08.550 --> 00:18:11.640
and his lawyer and work out their deal.
325
00:18:11.640 --> 00:18:13.470
Who attends that meeting?
326
00:18:13.470 --> 00:18:17.370
Cruz, Cruz's lawyer, representative from
327
00:18:17.370 --> 00:18:20.310
the District Attorney's office, Trooper Giasi,
328
00:18:20.310 --> 00:18:21.543
and Trooper Baker.
329
00:18:23.940 --> 00:18:26.560
I think it's significant to note that
330
00:18:27.540 --> 00:18:28.770
where this all came from,
331
00:18:28.770 --> 00:18:33.770
it was the dispute that began between Mitchell and Pina
332
00:18:33.840 --> 00:18:37.563
in South Carolina. Two men who knew each other.
333
00:18:37.563 --> 00:18:42.563
They were friends growing up and that was in had that there,
334
00:18:42.900 --> 00:18:46.500
that reference to that is not included at all in anything
335
00:18:46.500 --> 00:18:48.843
that Giasi or Baker put forth.
336
00:18:50.190 --> 00:18:52.770
The details of exactly how this went was represented by
337
00:18:52.770 --> 00:18:55.860
the prosecuting Attorney at the time of trial.
338
00:18:55.860 --> 00:18:58.780
The prosecutor at the time of trial, he told the court
339
00:18:59.640 --> 00:19:03.990
what this case was all about and it was nothing about turf
340
00:19:03.990 --> 00:19:06.990
protection or anything of that sort,
341
00:19:06.990 --> 00:19:09.360
at least in May of 2009,
342
00:19:09.360 --> 00:19:12.120
which is the important time to consider here.
343
00:19:12.120 --> 00:19:16.260
If it, this was in August of 2010, perhaps a different case,
344
00:19:16.260 --> 00:19:17.093
but it wasn't.
345
00:19:19.890 --> 00:19:22.833
The drug charges themselves were eventually dismissed.
346
00:19:27.510 --> 00:19:28.400
I think...
347
00:19:31.410 --> 00:19:35.470
I can see my time is running short and I just say that
348
00:19:37.470 --> 00:19:38.910
the Commonwealth continues to assert
349
00:19:38.910 --> 00:19:40.200
a work product privilege.
350
00:19:40.200 --> 00:19:42.810
I think we can draw from that conclusion that there's other
351
00:19:42.810 --> 00:19:46.020
materials that we haven't seen yet that may support
352
00:19:46.020 --> 00:19:47.460
the claim we're making.
353
00:19:47.460 --> 00:19:49.890
I'd ask you to consider that as well.
354
00:19:49.890 --> 00:19:52.023
As far as prejudice, if I may,
355
00:19:55.275 --> 00:19:57.510
the testimony from Cruz
356
00:19:57.510 --> 00:19:59.130
was clearly the most compelling part
357
00:19:59.130 --> 00:20:01.830
of the Commonwealth's case and I would invite the court
358
00:20:01.830 --> 00:20:03.960
to pay attention to the, as I'm certain you will,
359
00:20:03.960 --> 00:20:08.550
to the transcript in volume 11 and then into the beginning
360
00:20:08.550 --> 00:20:12.840
of volume 12 in which the prosecutor presenting
361
00:20:12.840 --> 00:20:17.440
that evidence does so in a way that really incurred
362
00:20:18.900 --> 00:20:21.240
the real anger of the trial court judge,
363
00:20:21.240 --> 00:20:22.560
the way the prosecutor was doing.
364
00:20:22.560 --> 00:20:24.330
You can draw your own conclusions by reading it,
365
00:20:24.330 --> 00:20:26.460
but it's pretty compelling when you read the transcript.
366
00:20:26.460 --> 00:20:30.720
Was there a foundation about that they'd talked very often
367
00:20:30.720 --> 00:20:34.260
and that he understood from previous conversations
368
00:20:34.260 --> 00:20:36.843
with the defendant what the words would mean?
369
00:20:37.800 --> 00:20:40.920
Conspicuous by its absence was anything like that,
370
00:20:40.920 --> 00:20:45.750
Justice Lowy. And that was noted by the trial court.
371
00:20:45.750 --> 00:20:47.730
When you read the transcript, you'll see that
372
00:20:47.730 --> 00:20:51.210
on the second day the trial court judge was obvious,
373
00:20:51.210 --> 00:20:54.540
he was very upset by what had happened and
374
00:20:54.540 --> 00:20:56.070
he told the prosecutor,
375
00:20:56.070 --> 00:20:59.070
this is what could have been done to avoid this.
376
00:20:59.070 --> 00:21:03.570
But that's like trying to put the genie back in the bottle.
377
00:21:03.570 --> 00:21:06.180
The jury had already heard the damage the day before.
378
00:21:06.180 --> 00:21:11.180
They already heard the, in effect,
379
00:21:11.490 --> 00:21:15.390
Cruz ended up attributing to Fernandez
380
00:21:15.390 --> 00:21:17.403
a confession to this crime.
381
00:21:19.827 --> 00:21:24.300
And the trial court judge saw that and was really,
382
00:21:24.300 --> 00:21:26.640
you could tell he was really upset. So I call that to your.
383
00:21:26.640 --> 00:21:30.840
No, it's not really the cases that you cite about
384
00:21:30.840 --> 00:21:34.920
requirements of an interpreter, that's really your argument.
385
00:21:34.920 --> 00:21:39.300
Your argument is that there was no foundation for Cruz to be
386
00:21:39.300 --> 00:21:44.300
able to testify what the defendant meant
387
00:21:44.310 --> 00:21:47.790
and that that's what had Judge McDonald so upset.
388
00:21:47.790 --> 00:21:50.490
Yes. And, but I do think the case
389
00:21:50.490 --> 00:21:53.880
we cite Soto, I believe is the case on the translation.
390
00:21:53.880 --> 00:21:55.200
I think that does have some bearing.
391
00:21:55.200 --> 00:21:57.840
And the trial court judge himself when he was talking about
392
00:21:57.840 --> 00:22:02.830
this said that, if I may just finish that question, and then
393
00:22:05.370 --> 00:22:08.550
that this was like translating a foreign language
394
00:22:08.550 --> 00:22:10.770
or words to that effect that was in there.
395
00:22:10.770 --> 00:22:14.220
So otherwise, if there's any further questions,
396
00:22:14.220 --> 00:22:16.710
I'll rest of my brief and thank you very much.
397
00:22:16.710 --> 00:22:17.543
Thank you.
398
00:22:19.320 --> 00:22:20.370
Okay, Attorney Lee.
399
00:22:29.010 --> 00:22:31.350
Good morning. May I please the court.
400
00:22:31.350 --> 00:22:33.030
Mary Lee, Assistant District Attorney
401
00:22:33.030 --> 00:22:35.340
from the Bristol District for the Commonwealth.
402
00:22:35.340 --> 00:22:36.960
I'd like to begin with my error
403
00:22:36.960 --> 00:22:38.610
in post-conviction discovery.
404
00:22:38.610 --> 00:22:39.860
Sorry, I'm getting upset.
405
00:22:42.900 --> 00:22:45.360
Three years after I completed the discovery,
406
00:22:45.360 --> 00:22:48.193
the appellate administrative assistant in my office found
407
00:22:48.193 --> 00:22:51.720
a misfile file in the appeals file and then when I went
408
00:22:51.720 --> 00:22:54.790
to make sure that all those documents were
409
00:22:56.730 --> 00:22:58.890
cumulative of what I had provided in
410
00:22:58.890 --> 00:23:01.860
post-conviction discovery, I determined that
411
00:23:01.860 --> 00:23:06.030
the IT department had consolidated the digital files,
412
00:23:06.030 --> 00:23:09.240
which meant I had to cross-reference all the documents from
413
00:23:09.240 --> 00:23:11.910
that digital file with the post-conviction discovery.
414
00:23:11.910 --> 00:23:13.650
And in doing so,
415
00:23:13.650 --> 00:23:17.670
the vast volume of thousands of pages had indeed been given.
416
00:23:17.670 --> 00:23:20.580
I discovered a mistake of my own.
417
00:23:20.580 --> 00:23:22.170
I worked on it for like two weeks,
418
00:23:22.170 --> 00:23:27.170
night and day and weekends and I discovered my own discovery
419
00:23:27.390 --> 00:23:29.760
error, immediately called counsel.
420
00:23:29.760 --> 00:23:32.247
Tearfully apologize as I apologize to this court
421
00:23:32.247 --> 00:23:35.460
and to the defendant and counsel was very gracious,
422
00:23:35.460 --> 00:23:39.510
but of course his primary concern must be the rights
423
00:23:39.510 --> 00:23:43.920
of his client, the defendant as are they're also mine.
424
00:23:43.920 --> 00:23:46.200
When I make a mistake, I own it,
425
00:23:46.200 --> 00:23:49.620
tell everybody and try to fix it and try to make sure that
426
00:23:49.620 --> 00:23:50.697
there's no prejudice.
427
00:23:50.697 --> 00:23:54.240
The defendant has supplied a supplemental appendix.
428
00:23:54.240 --> 00:23:58.800
I agreed to the inclusion of the documents that he deemed
429
00:23:58.800 --> 00:24:03.720
appropriate from this October 2022 discovery.
430
00:24:03.720 --> 00:24:06.720
I have cross referenced those documents.
431
00:24:06.720 --> 00:24:09.300
He claims he didn't get grand jury transcripts.
432
00:24:09.300 --> 00:24:11.520
The grand jury transcripts he referenced were provided in
433
00:24:11.520 --> 00:24:13.290
2019 as was that list.
434
00:24:13.290 --> 00:24:16.140
It's the list that I provided in 2019 had handwritten notes
435
00:24:16.140 --> 00:24:17.700
on it.
436
00:24:17.700 --> 00:24:21.210
There's a pre-trial document saying all grand jury materials
437
00:24:21.210 --> 00:24:22.230
were provided.
438
00:24:22.230 --> 00:24:24.630
There's a pre-trial document saying all Giasi documents
439
00:24:24.630 --> 00:24:25.710
were provided.
440
00:24:25.710 --> 00:24:29.100
If you compare his discussion of McCone at supplemental
441
00:24:29.100 --> 00:24:31.770
appendix 15 to 23,
442
00:24:31.770 --> 00:24:36.770
specifically pages 20 to 21 and 22 with the defendant's own
443
00:24:37.050 --> 00:24:40.230
record appendix at pages 101 to 102 and 104,
444
00:24:40.230 --> 00:24:42.690
you'll see that they are identical.
445
00:24:42.690 --> 00:24:44.760
So the McCone stuff is not new.
446
00:24:44.760 --> 00:24:47.130
All the wire tap materials were provided.
447
00:24:47.130 --> 00:24:49.680
My post-conviction discovery letter is in my record
448
00:24:49.680 --> 00:24:53.880
appendix, the notes of the grand jury,
449
00:24:53.880 --> 00:24:55.740
the actual grand jury transcript was provided,
450
00:24:55.740 --> 00:24:57.930
you can see it in the Commonwealth's appendix
451
00:24:57.930 --> 00:25:01.650
at 388 to 452 that was made part of the record
452
00:25:01.650 --> 00:25:05.160
in the post-conviction proceedings.
453
00:25:05.160 --> 00:25:09.150
The pages at 25 to 36, you'll see in my letter at the end
454
00:25:09.150 --> 00:25:12.420
of my record appendix that one, it's CA 489.
455
00:25:12.420 --> 00:25:14.400
That one was provided in post-conviction discovery.
456
00:25:14.400 --> 00:25:17.340
I just wanted him to know what was in the misfile file.
457
00:25:17.340 --> 00:25:21.450
He has included Kathleen Sulis, Corey, it's a docket.
458
00:25:21.450 --> 00:25:24.990
If you look at transcript seven pages 56 to 60,
459
00:25:24.990 --> 00:25:29.880
she actually testifies about her criminal charges
460
00:25:29.880 --> 00:25:32.820
that that docket relates to. So that's not a surprise.
461
00:25:32.820 --> 00:25:34.470
That was pretrial discovery.
462
00:25:34.470 --> 00:25:38.160
And the last part is Crystal Fernandez, it's her.
463
00:25:38.160 --> 00:25:40.410
Crystal Fernandez was not a witness in the case.
464
00:25:40.410 --> 00:25:41.820
She's the person who held guns.
465
00:25:41.820 --> 00:25:44.520
She's Thomas Jeffrey's girlfriend. She held guns.
466
00:25:44.520 --> 00:25:46.830
Marcus Mistrel went to get a gun from her home.
467
00:25:46.830 --> 00:25:49.230
That's her relationship to this case.
468
00:25:49.230 --> 00:25:51.180
They put in her probation matters.
469
00:25:51.180 --> 00:25:55.680
Her name is throughout the pretrial discovery reports.
470
00:25:55.680 --> 00:25:58.980
You can, you'll see throughout it's mentioned at trial.
471
00:25:58.980 --> 00:26:01.620
If a person wants a probation records about a witness
472
00:26:01.620 --> 00:26:03.600
in the case or potential witness in the case,
473
00:26:03.600 --> 00:26:05.610
they get that from the probation department
474
00:26:05.610 --> 00:26:08.370
under Rule 14A 1A 4.
475
00:26:08.370 --> 00:26:11.523
And so I would suggest that those materials,
476
00:26:12.570 --> 00:26:14.340
I don't wanna undercut my error.
477
00:26:14.340 --> 00:26:18.570
I made a mistake, trying to fix it and I'm very apologetic
478
00:26:18.570 --> 00:26:20.070
about it. But these materials,
479
00:26:20.070 --> 00:26:22.470
I stand by my statement that these materials that he has
480
00:26:22.470 --> 00:26:25.440
provided in his record appendix are cumulative of what was
481
00:26:25.440 --> 00:26:28.500
provided in post-conviction discovery in 2019.
482
00:26:28.500 --> 00:26:30.660
And they don't raise any concern when compared with
483
00:26:30.660 --> 00:26:32.550
the trial record in this case.
484
00:26:32.550 --> 00:26:35.040
And therefore I suggest no remedy is required for it.
485
00:26:35.040 --> 00:26:37.020
However, if this court disagrees,
486
00:26:37.020 --> 00:26:38.430
the remedy is an evidentiary hearing,
487
00:26:38.430 --> 00:26:41.400
which is what the defendant asked for in his rule 30 motion
488
00:26:41.400 --> 00:26:42.273
and did not get.
489
00:26:43.200 --> 00:26:48.200
Now what about the affidavit of trial counsel
490
00:26:49.920 --> 00:26:53.190
as far as getting the materials,
491
00:26:53.190 --> 00:26:56.550
recognizing that he did get the materials,
492
00:26:56.550 --> 00:27:01.550
but that he ended up not auditing
493
00:27:01.860 --> 00:27:03.210
the discovery letters.
494
00:27:03.210 --> 00:27:04.830
How does that fit into everything?
495
00:27:04.830 --> 00:27:07.710
So Attorney Bradle was the trial Attorney,
496
00:27:07.710 --> 00:27:10.770
very experienced and he was actually on this case even prior
497
00:27:10.770 --> 00:27:11.603
to the indictment.
498
00:27:11.603 --> 00:27:14.850
And the record shows that some of the materials were being
499
00:27:14.850 --> 00:27:19.473
provided before indictment with the May 2nd, 2011 letter.
500
00:27:20.730 --> 00:27:24.150
So the defendant presented Attorney Bradle's first affidavit
501
00:27:24.150 --> 00:27:29.040
which said I didn't get these five discs, sorry, four discs.
502
00:27:29.040 --> 00:27:32.370
They're DVD interviews including Alexis Cruz,
503
00:27:32.370 --> 00:27:36.030
which is I'm not gonna suggest anything about Alexis Cruz
504
00:27:36.030 --> 00:27:38.790
is not crucial to the case. It's crucial to the case.
505
00:27:38.790 --> 00:27:40.920
He's right about transcript 11 and transcript 12
506
00:27:40.920 --> 00:27:43.230
with Alexis Cruz's testimony.
507
00:27:43.230 --> 00:27:45.780
So he's basically a star witness.
508
00:27:45.780 --> 00:27:47.550
He's the person who recorded the defendant
509
00:27:47.550 --> 00:27:48.650
on the blood warrants.
510
00:27:49.500 --> 00:27:52.770
So the Attorney Bradle is saying, I didn't get these.
511
00:27:52.770 --> 00:27:56.970
So we provide proof. Here are the cover letters,
512
00:27:56.970 --> 00:27:59.640
here are the reports that show you had notice
513
00:27:59.640 --> 00:28:01.200
of the DVD interviews.
514
00:28:01.200 --> 00:28:04.230
Attorney Bradle is an excellent Attorney and then he files
515
00:28:04.230 --> 00:28:06.433
a supplemental affidavit saying I had the cover letters
516
00:28:06.433 --> 00:28:09.330
in the trial file, in my trial file.
517
00:28:09.330 --> 00:28:11.760
But I don't think I got those DVDs.
518
00:28:11.760 --> 00:28:16.760
This record shows one that the trial file he gave to counsel
519
00:28:17.010 --> 00:28:18.840
on appeal is not complete.
520
00:28:18.840 --> 00:28:21.090
We don't have anything from Attorney Bradle saying
521
00:28:21.090 --> 00:28:23.880
that he searched for these materials after being noticed,
522
00:28:23.880 --> 00:28:26.430
how he kept his materials at his office,
523
00:28:26.430 --> 00:28:29.370
whether he has lost anything or potentially lost anything
524
00:28:29.370 --> 00:28:30.600
from his file.
525
00:28:30.600 --> 00:28:34.020
And another important point that shows Attorney Bradle's
526
00:28:34.020 --> 00:28:36.600
second affidavit also cannot be credited,
527
00:28:36.600 --> 00:28:39.540
not because of a lack of truth but because of
528
00:28:39.540 --> 00:28:42.570
a lack of memory which he acknowledges in his affidavit.
529
00:28:42.570 --> 00:28:46.230
But he said he was unable to cross-examine Alexis Cruz about
530
00:28:46.230 --> 00:28:48.270
his arrest by Trooper Fredette,
531
00:28:48.270 --> 00:28:51.780
particularly about marijuana and use without authority.
532
00:28:51.780 --> 00:28:54.300
And he says there was a missing report and it's in
533
00:28:54.300 --> 00:28:57.930
the defendant's record appendix at 343 to 347.
534
00:28:57.930 --> 00:29:00.090
Not only did the defendant Attorney Bradle
535
00:29:00.090 --> 00:29:03.240
cross-examine Cruz on this incident
536
00:29:03.240 --> 00:29:06.510
at transcript 12, 57 to 62,
537
00:29:06.510 --> 00:29:10.900
Attorney Bradle called the trooper at transcript 13 165
538
00:29:10.900 --> 00:29:14.730
to 177 and asked him about the marijuana usage
539
00:29:14.730 --> 00:29:17.640
and then when the Commonwealth was cross-examining him,
540
00:29:17.640 --> 00:29:19.937
this is at transcript 13 pages 187, I'm sorry,
541
00:29:19.937 --> 00:29:22.620
183 to 184.
542
00:29:22.620 --> 00:29:24.120
He actually references that report
543
00:29:24.120 --> 00:29:25.890
to refresh his recollection.
544
00:29:25.890 --> 00:29:29.400
It is impossible that Attorney Bradle didn't have court
545
00:29:29.400 --> 00:29:31.020
by Trooper Fredette.
546
00:29:31.020 --> 00:29:33.780
It is impossible that he didn't have these discs
547
00:29:33.780 --> 00:29:35.070
and didn't notice it.
548
00:29:35.070 --> 00:29:37.800
And there's a pretrial affidavit from Attorney Bradle
549
00:29:37.800 --> 00:29:40.380
saying that he had reviewed the whole record,
550
00:29:40.380 --> 00:29:44.610
his post-conviction affidavits, with respect to Mr. Bradle,
551
00:29:44.610 --> 00:29:47.490
his post-conviction affidavits show a lack of memory.
552
00:29:47.490 --> 00:29:51.210
Well yeah, I mean it's, he's saying as best as I can
553
00:29:51.210 --> 00:29:56.210
recall, he's not, he has that preparatory comment in there.
554
00:29:56.310 --> 00:30:01.310
And his, but even when his claims are disproven,
555
00:30:02.250 --> 00:30:04.530
he still says, I must not have gotten it.
556
00:30:04.530 --> 00:30:06.003
I didn't audit the record.
557
00:30:06.870 --> 00:30:10.350
He's saying I didn't audit the record nine years ago.
558
00:30:10.350 --> 00:30:13.620
But nine years ago, he was saying I looked at all
559
00:30:13.620 --> 00:30:14.670
the records.
560
00:30:14.670 --> 00:30:17.820
I would suggest that that's not a sufficient affidavit
561
00:30:17.820 --> 00:30:19.467
to warrant an evidentiary review.
562
00:30:19.467 --> 00:30:21.180
But you can't blame him for that.
563
00:30:21.180 --> 00:30:22.830
If he says he looked at all the records,
564
00:30:22.830 --> 00:30:25.500
he means he looked at all the records he had.
565
00:30:25.500 --> 00:30:28.290
Well, but he had, he definitely had notice.
566
00:30:28.290 --> 00:30:31.440
I mean, he admits his trial file has those cover letters.
567
00:30:31.440 --> 00:30:33.120
I know, but I'm just saying it's not necessarily
568
00:30:33.120 --> 00:30:35.430
inconsistent because when he says I looked at
569
00:30:35.430 --> 00:30:37.260
all the records, what he is saying is I looked at
570
00:30:37.260 --> 00:30:38.400
all the records I had.
571
00:30:38.400 --> 00:30:41.070
And what is missing is what did he do when he found
572
00:30:41.070 --> 00:30:41.903
those cover letters?
573
00:30:41.903 --> 00:30:43.440
Did he go back and look for anything else?
574
00:30:43.440 --> 00:30:45.750
And we don't have anything in his affidavit about that.
575
00:30:45.750 --> 00:30:48.120
What we have is continually making claims.
576
00:30:48.120 --> 00:30:51.180
So he says he didn't get the Gomes interviews,
577
00:30:51.180 --> 00:30:53.550
but he had those, we know he had those DVDs.
578
00:30:53.550 --> 00:30:54.663
Those are on the list.
579
00:30:56.217 --> 00:30:57.540
He wrote,
580
00:30:57.540 --> 00:31:01.110
the Commonwealth has been able to show pretrial discovery
581
00:31:01.110 --> 00:31:02.820
with one exception,
582
00:31:02.820 --> 00:31:05.100
which is the letter Alexis Cruz wrote to his Attorney
583
00:31:05.100 --> 00:31:06.663
a few weeks before trial.
584
00:31:08.280 --> 00:31:10.800
We, first of all I'd like to show,
585
00:31:10.800 --> 00:31:13.830
say that that letter that we provided in post-conviction
586
00:31:13.830 --> 00:31:16.380
discovery shows Commonwealth's good faith.
587
00:31:16.380 --> 00:31:18.660
That was not part of the Grand Jury materials,
588
00:31:18.660 --> 00:31:21.180
which was the subject of the post-conviction order.
589
00:31:21.180 --> 00:31:24.900
We were providing trial notes and as much information
590
00:31:24.900 --> 00:31:28.860
as we could to assist counsel and to be as open
591
00:31:28.860 --> 00:31:33.270
with our file as possible for the post-conviction discovery.
592
00:31:33.270 --> 00:31:37.320
That letter shows that Cruz, Alexis Cruz wanted more.
593
00:31:37.320 --> 00:31:38.610
He's that star witness.
594
00:31:38.610 --> 00:31:40.470
So he wanted more,
595
00:31:40.470 --> 00:31:42.930
even though it was coming up to the trial date.
596
00:31:42.930 --> 00:31:44.820
And he had been provided substantial information.
597
00:31:44.820 --> 00:31:47.580
And my suggestion to the court is that if you look at
598
00:31:47.580 --> 00:31:48.413
that letter,
599
00:31:48.413 --> 00:31:49.740
it doesn't say the Commonwealth's giving him anything else.
600
00:31:49.740 --> 00:31:50.790
It says that he wants more.
601
00:31:50.790 --> 00:31:53.160
And there was a grueling cross-examination
602
00:31:53.160 --> 00:31:54.870
on all the benefits he had been provided
603
00:31:54.870 --> 00:31:56.520
and how he had breached the agreement
604
00:31:56.520 --> 00:31:58.380
and still got all those benefits.
605
00:31:58.380 --> 00:32:00.300
And then even after trial, he was expecting
606
00:32:00.300 --> 00:32:02.980
that his criminal matters would still be
607
00:32:04.020 --> 00:32:06.750
disposed of as part of the agreement.
608
00:32:06.750 --> 00:32:09.660
So the jury was well aware that he still wanted more
609
00:32:09.660 --> 00:32:11.700
regardless of whether he abide by the agreement,
610
00:32:11.700 --> 00:32:13.680
regardless of whether he had finished testifying,
611
00:32:13.680 --> 00:32:14.640
he still wanted more.
612
00:32:14.640 --> 00:32:16.620
And that's really all that letter says.
613
00:32:16.620 --> 00:32:21.060
So I don't have a pretrial discovery letter for to show that
614
00:32:21.060 --> 00:32:22.350
that letter was given,
615
00:32:22.350 --> 00:32:24.990
but the content of it shows that that letter was given.
616
00:32:24.990 --> 00:32:27.960
And I would suggest the content of the trial transcript
617
00:32:27.960 --> 00:32:31.980
shows that Attorney Bradle was fully apprised of all
618
00:32:31.980 --> 00:32:32.850
of this information.
619
00:32:32.850 --> 00:32:37.600
How about the 2011 report about Cruz having been shot
620
00:32:38.610 --> 00:32:39.443
in 2011?
621
00:32:39.443 --> 00:32:41.193
So that's the mid trial disclosure.
622
00:32:42.464 --> 00:32:43.530
So, the Commonwealth's position is,
623
00:32:43.530 --> 00:32:45.510
it was never gonna offer that evidence.
624
00:32:45.510 --> 00:32:49.440
It's not exculpatory because a person cannot be impeached
625
00:32:49.440 --> 00:32:51.690
with being victim of a crime.
626
00:32:51.690 --> 00:32:54.303
We conceded that it was unrelated to this crime.
627
00:32:56.298 --> 00:32:57.810
The defendant was about to cross-examine,
628
00:32:57.810 --> 00:33:00.600
I believe Alexis Cruz when it came up either
629
00:33:00.600 --> 00:33:02.970
that he was just being called as a witness,
630
00:33:02.970 --> 00:33:06.060
the prosecutor wanted to alert Attorney Bradle to it.
631
00:33:06.060 --> 00:33:10.290
He unlike everything else at trial where Attorney Bradle
632
00:33:10.290 --> 00:33:12.990
like was fully aware of everything else at this point
633
00:33:12.990 --> 00:33:15.300
he's like, this is the first time hearing of it.
634
00:33:15.300 --> 00:33:18.420
I have my cross-examine already, cross examination already.
635
00:33:18.420 --> 00:33:19.650
And now this is, they're throwing,
636
00:33:19.650 --> 00:33:21.810
he said they're throwing a bomb into it.
637
00:33:21.810 --> 00:33:23.850
The trial judge heard his objection
638
00:33:23.850 --> 00:33:25.920
and said this is all staying out.
639
00:33:25.920 --> 00:33:28.410
It's all on the Commonwealth's burden.
640
00:33:28.410 --> 00:33:31.380
Nothing comes in. If something about that comes in,
641
00:33:31.380 --> 00:33:33.900
there's gonna be a mistrial and Attorney Bradle can ask
642
00:33:33.900 --> 00:33:35.130
whatever questions he wants.
643
00:33:35.130 --> 00:33:36.900
Attorney Bradle said thank you.
644
00:33:36.900 --> 00:33:39.630
So the defense claims well if we had known about that
645
00:33:39.630 --> 00:33:40.740
beforehand, we could have proved
646
00:33:40.740 --> 00:33:42.570
it was unrelated to this case.
647
00:33:42.570 --> 00:33:44.550
The Commonwealth conceded it was unrelated to this case
648
00:33:44.550 --> 00:33:45.630
and did not offer it.
649
00:33:45.630 --> 00:33:48.570
And two, maybe they could have connected it up to show
650
00:33:48.570 --> 00:33:50.460
some kind of exculpatory evidence.
651
00:33:50.460 --> 00:33:53.160
However, eight years passed from the time of the mid trial
652
00:33:53.160 --> 00:33:55.530
disclosure until the motion for new trial
653
00:33:55.530 --> 00:33:58.830
and nothing has been done to, on how to connect it up.
654
00:33:58.830 --> 00:34:02.700
And so I would point to the Fossa case and the Brito case,
655
00:34:02.700 --> 00:34:04.830
Defendant can't just speculate that something good
656
00:34:04.830 --> 00:34:06.450
would've come of it in a motion for a new trial.
657
00:34:06.450 --> 00:34:09.810
He's supposed to do something with that information
658
00:34:09.810 --> 00:34:13.380
and show why that was relevant to the investigation.
659
00:34:13.380 --> 00:34:16.200
And so, but the Commonwealth's position at trial
660
00:34:16.200 --> 00:34:20.290
was that was not disclosed because it was irrelevant.
661
00:34:20.290 --> 00:34:22.770
I would like to note that the defendant is now claiming that
662
00:34:22.770 --> 00:34:27.030
there's a fraud on the court citing CPCS versus AGO.
663
00:34:27.030 --> 00:34:32.030
And I would like to very strongly suggest to the court that
664
00:34:32.580 --> 00:34:35.070
that is not, has no basis,
665
00:34:35.070 --> 00:34:37.800
it's about the South Carolina dispute.
666
00:34:37.800 --> 00:34:41.490
The prosecutor actually discussed the whole South Carolina
667
00:34:41.490 --> 00:34:44.190
dispute without any claim from Attorney Bradle that this was
668
00:34:44.190 --> 00:34:48.325
new material in the pretrial hearing before the judge ever
669
00:34:48.325 --> 00:34:52.440
made the findings on the pretrial motion to suppress
670
00:34:52.440 --> 00:34:53.820
based on Nexus.
671
00:34:53.820 --> 00:34:57.510
And I would suggest to the court that that shows
672
00:34:57.510 --> 00:35:01.320
one, Bradle knew all about it and two, that the prosecutor
673
00:35:01.320 --> 00:35:04.770
was being very open about it, and three, that the issue
674
00:35:04.770 --> 00:35:07.380
of the South Carolina, the omission of
675
00:35:07.380 --> 00:35:11.013
the South Carolina dispute from the wiretap documents,
676
00:35:12.150 --> 00:35:15.330
the affidavits was all known to Bradle.
677
00:35:15.330 --> 00:35:17.040
He did not raise it and did not preserve it.
678
00:35:17.040 --> 00:35:19.563
And that was raised in the post-conviction claim.
679
00:35:20.490 --> 00:35:23.426
I think in terms of Nexus this case,
680
00:35:23.426 --> 00:35:25.410
falls squarely within Mitchell.
681
00:35:25.410 --> 00:35:27.300
It's the same exact incident.
682
00:35:27.300 --> 00:35:29.130
It's the same exact description.
683
00:35:29.130 --> 00:35:31.260
Mitchell is the co-defendant.
684
00:35:31.260 --> 00:35:35.250
Mitchell occurred after the trial in this case I think
685
00:35:35.250 --> 00:35:37.920
definitely after, yeah, after the trial in this case.
686
00:35:37.920 --> 00:35:40.800
But so the defendant didn't have the benefit of it.
687
00:35:40.800 --> 00:35:43.890
But had the defendant raised the claim about the omission of
688
00:35:43.890 --> 00:35:46.620
South Carolina and exotic dancers at so-called
689
00:35:46.620 --> 00:35:49.920
gentleman's clubs, that would've failed and should fail
690
00:35:49.920 --> 00:35:53.730
under Mitchell because Mitchell is right,
691
00:35:53.730 --> 00:35:55.620
it's right, literally right on point.
692
00:35:55.620 --> 00:36:00.573
Their argument is that the difference is that in Mitchell,
693
00:36:01.590 --> 00:36:05.490
there was an evidentiary hearing and that here
694
00:36:05.490 --> 00:36:07.080
there was no evidentiary hearing.
695
00:36:07.080 --> 00:36:11.640
And if you look at the Commonwealth theory of the case,
696
00:36:11.640 --> 00:36:14.190
it's not a theory of the case that this is
697
00:36:14.190 --> 00:36:16.530
a drug turf dispute.
698
00:36:16.530 --> 00:36:20.520
So in Mitchell, if you look at the description of
699
00:36:20.520 --> 00:36:22.170
the affidavits in the Mitchell case,
700
00:36:22.170 --> 00:36:23.700
the same as in this case,
701
00:36:23.700 --> 00:36:26.580
I think you look at the four corners of the warrant
702
00:36:26.580 --> 00:36:28.950
to determine whether there's probable cause in Nexus
703
00:36:28.950 --> 00:36:30.930
and you can see the records that were provided.
704
00:36:30.930 --> 00:36:33.830
They're in the Commonwealth's record appendix at 57 to 102
705
00:36:35.347 --> 00:36:37.410
and 115 to 117.
706
00:36:37.410 --> 00:36:40.350
Those are the documents that were provided to the pretrial
707
00:36:40.350 --> 00:36:44.610
motion Judge and those show Nexus, they have team supreme,
708
00:36:44.610 --> 00:36:49.403
they're organized, they work together, they deal drugs,
709
00:36:49.403 --> 00:36:51.960
and there's escalating violence and I would suggest
710
00:36:51.960 --> 00:36:54.480
that's sufficient for Nexus and you don't need
711
00:36:54.480 --> 00:36:56.070
an evidentiary hearing for that.
712
00:36:56.070 --> 00:36:57.420
In terms of the evidentiary hearing,
713
00:36:57.420 --> 00:36:59.160
what you'd need is the outside materials
714
00:36:59.160 --> 00:37:00.750
on South Carolina dispute.
715
00:37:00.750 --> 00:37:04.050
And here we have the trial where the South Carolina dispute
716
00:37:04.050 --> 00:37:08.283
is fully versed throughout.
717
00:37:10.080 --> 00:37:14.283
The defendant tries to note that the prosecutor said that
718
00:37:15.600 --> 00:37:17.430
this wasn't a gang case.
719
00:37:17.430 --> 00:37:20.550
He is taking the prosecutor's statements out of context.
720
00:37:20.550 --> 00:37:23.160
What the prosecutor was saying is we're not going to use
721
00:37:23.160 --> 00:37:24.090
gang evidence.
722
00:37:24.090 --> 00:37:26.850
What we wanna use is that they're team supreme.
723
00:37:26.850 --> 00:37:30.210
They have the tattoos showing death before dishonor
724
00:37:30.210 --> 00:37:35.210
and the motive evidence as well as the access to guns.
725
00:37:36.330 --> 00:37:39.753
I would like to just jump to the Rainwater issue.
726
00:37:41.730 --> 00:37:43.680
This is one party consent.
727
00:37:43.680 --> 00:37:48.030
Alexis Cruz was in jail at the same time as Fernandez,
728
00:37:48.030 --> 00:37:48.900
the defendant.
729
00:37:48.900 --> 00:37:53.900
The defendant was in custody on bail on drug charges,
730
00:37:54.450 --> 00:37:55.320
not murder charges.
731
00:37:55.320 --> 00:37:56.880
The murder was not charged yet..
732
00:37:56.880 --> 00:38:00.603
Yeah, but the inextricably intertwined point,
733
00:38:01.680 --> 00:38:06.680
the troopers, I mean they know Cruz is going to not only,
734
00:38:06.990 --> 00:38:10.650
they know he is going to start with the guns.
735
00:38:10.650 --> 00:38:15.650
I mean he wants to make sure that it comes out
736
00:38:16.590 --> 00:38:18.300
that they're not his.
737
00:38:18.300 --> 00:38:19.740
Right. He's mad because it was
738
00:38:19.740 --> 00:38:21.270
Mitchell's gun in the car.
739
00:38:21.270 --> 00:38:25.800
First I'd like to make a note, I said that he was arrested,
740
00:38:25.800 --> 00:38:28.740
Cruz was arrested in October. Cruz was arrested in July,
741
00:38:28.740 --> 00:38:30.780
which I make note of later on when I'm talking about
742
00:38:30.780 --> 00:38:32.610
Fredette's case. I'm sorry about that.
743
00:38:32.610 --> 00:38:35.970
So he's arrested in July on Mitchell's gun
744
00:38:35.970 --> 00:38:39.600
and Fernandez is arrested in August on the drug charge.
745
00:38:39.600 --> 00:38:42.930
The drug charge post dates the murder.
746
00:38:42.930 --> 00:38:47.160
That's like summer of 2010 and the murder is May 2009.
747
00:38:47.160 --> 00:38:52.160
And then in October 2022, that's when Cruz
748
00:38:52.320 --> 00:38:54.123
agrees to turn state's evidence
749
00:38:54.123 --> 00:38:56.070
with the help of his Attorney.
750
00:38:56.070 --> 00:38:59.220
And the defendant has provided the report of that meeting in
751
00:38:59.220 --> 00:39:00.690
his record appendix.
752
00:39:00.690 --> 00:39:04.639
And so I would suggest to the court that those are not,
753
00:39:04.639 --> 00:39:06.150
the murder and the drug charges are not
754
00:39:06.150 --> 00:39:07.380
inextricably intertwined.
755
00:39:07.380 --> 00:39:09.690
They're different in place and time.
756
00:39:09.690 --> 00:39:11.010
They might have.
757
00:39:11.010 --> 00:39:14.850
Which by the way might back into appellant's other
758
00:39:14.850 --> 00:39:18.360
comment, which is the 2010's the drugs,
759
00:39:18.360 --> 00:39:23.190
that May 2009 shooting is before the drugs,
760
00:39:23.190 --> 00:39:27.730
so that the drug turf war is not the organized crime
761
00:39:29.520 --> 00:39:32.670
support for the section 99.
762
00:39:32.670 --> 00:39:35.460
Right. So and again look at the,
763
00:39:35.460 --> 00:39:37.740
I would look at the affidavit.
764
00:39:37.740 --> 00:39:39.480
That's getting back to the Nexus thing.
765
00:39:39.480 --> 00:39:41.490
I rely on the affidavit provided in the Commonwealth's
766
00:39:41.490 --> 00:39:44.010
record appendix in comparison with Mitchell,
767
00:39:44.010 --> 00:39:46.800
which said that that was sufficient.
768
00:39:46.800 --> 00:39:49.950
And I would suggest that that is correct.
769
00:39:49.950 --> 00:39:52.200
In terms of the inextricably intertwined,
770
00:39:52.200 --> 00:39:54.300
I meant a little bit of confusion.
771
00:39:54.300 --> 00:39:56.520
My understanding was Rainwater uses
772
00:39:56.520 --> 00:39:59.460
the inextricably intertwined analysis,
773
00:39:59.460 --> 00:40:04.020
which is more protective than the Sixth Amendment under
774
00:40:04.020 --> 00:40:05.010
Texas v. Cobb.
775
00:40:05.010 --> 00:40:06.570
And that's the position I've taken in my brief
776
00:40:06.570 --> 00:40:08.700
and I apologize if I'm confused on that,
777
00:40:08.700 --> 00:40:10.830
but I don't think the defendant's asking you to adopt
778
00:40:10.830 --> 00:40:13.170
new law inextricably intertwined.
779
00:40:13.170 --> 00:40:16.140
I thought that was already the law here in Massachusetts
780
00:40:16.140 --> 00:40:18.390
and the cases he provided are similar.
781
00:40:18.390 --> 00:40:20.220
They have a similar analysis.
782
00:40:20.220 --> 00:40:22.470
And so I would suggest you have an uncharged murder
783
00:40:22.470 --> 00:40:26.130
that predates the charged crime of drug dealing
784
00:40:26.130 --> 00:40:31.080
and therefore the charged crime of drug dealing is not
785
00:40:31.080 --> 00:40:33.840
inextricably intertwined with the murder.
786
00:40:33.840 --> 00:40:38.640
And it also doesn't violate the Sixth Amendment under
787
00:40:38.640 --> 00:40:41.220
Texas v. Cobb because that actually requires an analysis
788
00:40:41.220 --> 00:40:43.710
of lesser included using double jeopardy analysis.
789
00:40:43.710 --> 00:40:46.740
So if they're not lesser included under federal law,
790
00:40:46.740 --> 00:40:49.020
then you can go talk to person in custody even
791
00:40:49.020 --> 00:40:52.260
if you're a Commonwealth agent, government agent.
792
00:40:52.260 --> 00:40:55.260
And so I would suggest that that was done appropriately
793
00:40:55.260 --> 00:40:59.160
and even though we might not have needed a blood warrant,
794
00:40:59.160 --> 00:40:59.993
we went and got one,
795
00:40:59.993 --> 00:41:02.400
we did it with judicial approval as well.
796
00:41:02.400 --> 00:41:04.740
And it also doesn't violate the Fourth Amendment because
797
00:41:04.740 --> 00:41:07.290
there's one party consent and because.
798
00:41:07.290 --> 00:41:10.110
So going back to Justice Kafker's initial question,
799
00:41:10.110 --> 00:41:11.940
is Mitchell just dispositive?
800
00:41:11.940 --> 00:41:14.328
I think Mitchell's dispositive.
801
00:41:14.328 --> 00:41:18.390
I can't tell them apart based on the record that we have
802
00:41:18.390 --> 00:41:20.040
and the record that's in Mitchell.
803
00:41:20.040 --> 00:41:21.090
They look exactly the same.
804
00:41:21.090 --> 00:41:23.100
And I think that's why the defendant was asking,
805
00:41:23.100 --> 00:41:26.220
well maybe you should overrule Mitchell and I would suggest
806
00:41:26.220 --> 00:41:30.060
to the court that overruling Mitchell does not mean
807
00:41:30.060 --> 00:41:34.050
that he gets the benefit of Mitchell because he did not push
808
00:41:34.050 --> 00:41:38.160
this South Carolina omission at pretrial.
809
00:41:38.160 --> 00:41:41.130
But he did preserve the nexus issue at pretrial.
810
00:41:41.130 --> 00:41:42.600
Sorry, are you done?
811
00:41:42.600 --> 00:41:45.780
I just, I'd like to go backwards just so I understand
812
00:41:45.780 --> 00:41:48.120
the discovery mix up.
813
00:41:48.120 --> 00:41:50.700
I just want you to take what,
814
00:41:50.700 --> 00:41:54.210
summarize for me a couple of things.
815
00:41:54.210 --> 00:41:58.950
One, what was missing and why it's cumulative
816
00:41:58.950 --> 00:42:02.070
and secondly how we deal with that given that
817
00:42:02.070 --> 00:42:05.313
the trial judge on his doesn't
818
00:42:05.313 --> 00:42:07.980
have the benefit of any of that, right?
819
00:42:07.980 --> 00:42:11.130
So just walk me through that 'cause that's...
820
00:42:11.130 --> 00:42:13.620
What was missing is that letter from Cruz to his Attorney
821
00:42:13.620 --> 00:42:15.270
that occurred three weeks before trial.
822
00:42:15.270 --> 00:42:16.770
And I would suggest that it's cumulative
823
00:42:16.770 --> 00:42:18.960
of the cross examination of Alexis Cruz.
824
00:42:18.960 --> 00:42:20.430
Okay. Do this slowly, okay?
825
00:42:20.430 --> 00:42:23.550
Just 'cause this is, so what's missing is what, sorry?
826
00:42:23.550 --> 00:42:24.383
The letter.
827
00:42:24.383 --> 00:42:26.850
The letter from Alexis Cruz
828
00:42:26.850 --> 00:42:30.960
to his Attorney, it's dated February 2013.
829
00:42:30.960 --> 00:42:32.970
It's a few weeks before the trial.
830
00:42:32.970 --> 00:42:36.243
It's, the whole copy of it is in the defendant's brief.
831
00:42:37.290 --> 00:42:40.110
And I would suggest if you compare that with
832
00:42:40.110 --> 00:42:44.640
the cross-examination of Alexis Cruz, then you'll,
833
00:42:44.640 --> 00:42:46.650
my position is that it's cumulative.
834
00:42:46.650 --> 00:42:49.230
The jury knew he got a lot of stuff.
835
00:42:49.230 --> 00:42:52.890
He wanted more stuff and he expected to get more stuff
836
00:42:52.890 --> 00:42:53.723
after trial.
837
00:42:53.723 --> 00:42:55.470
And the more stuff after trial that the jury heard
838
00:42:55.470 --> 00:42:57.570
was that he wanted his charges reduced,
839
00:42:57.570 --> 00:43:02.570
which is not reduced disposed of favorably, which is worth
840
00:43:02.640 --> 00:43:03.630
better than money.
841
00:43:03.630 --> 00:43:05.310
And other, anything else?
842
00:43:05.310 --> 00:43:06.150
The only other thing is
843
00:43:06.150 --> 00:43:08.790
the mid trial disclosure, which I've already gone over.
844
00:43:08.790 --> 00:43:10.920
Yeah. But I'd like you to go over that one more time.
845
00:43:10.920 --> 00:43:14.280
Sure, so the mid trial disclosure is the second shooting
846
00:43:14.280 --> 00:43:15.513
of Alexis Cruz.
847
00:43:16.770 --> 00:43:19.410
The Commonwealth's position is that that was not related to
848
00:43:19.410 --> 00:43:24.150
this case and the judge excluded every reference to it after
849
00:43:24.150 --> 00:43:25.949
the defendant's objection to which the defendant's.
850
00:43:25.949 --> 00:43:28.500
Unless the defendant wanted to use it.
851
00:43:28.500 --> 00:43:30.300
The defendant could ask whatever questions he wanted.
852
00:43:30.300 --> 00:43:32.100
Unless the defendant wanted to use it.
853
00:43:32.100 --> 00:43:35.150
Right. So that gets us to...
854
00:43:36.750 --> 00:43:38.700
how do we know that that's not prejudicial?
855
00:43:38.700 --> 00:43:39.720
And so the defendant makes-
856
00:43:39.720 --> 00:43:41.474
But that's what the defendant's saying is well yeah,
857
00:43:41.474 --> 00:43:43.650
but I didn't have time to figure out if I could use it.
858
00:43:43.650 --> 00:43:47.790
Not at trial, but after the fact he had eight years
859
00:43:47.790 --> 00:43:50.940
to connect it up as he's required to do under FOSA,
860
00:43:50.940 --> 00:43:52.140
which is an appeals court case.
861
00:43:52.140 --> 00:43:56.250
But well reasoned and it's comparable to britto,
862
00:43:56.250 --> 00:43:59.220
which is not the same exact scenario, but the showing
863
00:43:59.220 --> 00:44:01.740
the defendant must make an rule 30 motion.
864
00:44:01.740 --> 00:44:05.940
So he has eight or nine years to say why
865
00:44:05.940 --> 00:44:09.690
was the second shooting of Alexis Cruz relevant to my case?
866
00:44:09.690 --> 00:44:12.030
And we concede that it's unrelated so that,
867
00:44:12.030 --> 00:44:15.360
and it didn't come in at trial, so there's no problem there.
868
00:44:15.360 --> 00:44:17.760
So he would have to show something to connect it up
869
00:44:17.760 --> 00:44:20.370
and he's done nothing after the disclosure of it
870
00:44:20.370 --> 00:44:22.710
to show that that was prejudicial to him after he got
871
00:44:22.710 --> 00:44:24.750
the remedy that he thanked the judge for.
872
00:44:24.750 --> 00:44:27.270
So those are the only two things we need to worry about.
873
00:44:27.270 --> 00:44:30.793
Those are the only two missing things that come up 'cause-
874
00:44:30.793 --> 00:44:32.610
I don't wanna speak for my brother
875
00:44:32.610 --> 00:44:33.930
from the Commonwealth's perspective.
876
00:44:33.930 --> 00:44:36.600
Those are the only two things I've tried to explain
877
00:44:36.600 --> 00:44:38.783
why the stuff in his supplemental appendix is.
878
00:44:38.783 --> 00:44:42.510
This is his reply, his reply brief,
879
00:44:42.510 --> 00:44:44.070
and I haven't gone through this whole record.
880
00:44:44.070 --> 00:44:48.060
His reply briefs says there's, seems to describe more stuff.
881
00:44:48.060 --> 00:44:48.893
Right?
882
00:44:48.893 --> 00:44:51.090
Right. And that's what I went over in the beginning
883
00:44:51.090 --> 00:44:52.800
of my argument,
884
00:44:52.800 --> 00:44:54.630
all the things in his supplemental appendix
885
00:44:54.630 --> 00:44:55.713
to his reply brief.
886
00:44:57.210 --> 00:45:00.840
So I stand by my position that those are cumulative.
887
00:45:00.840 --> 00:45:04.470
I apologize as greatly for making the error,
888
00:45:04.470 --> 00:45:07.290
but the only things we can really call
889
00:45:07.290 --> 00:45:08.610
our own are our mistakes, I guess.
890
00:45:08.610 --> 00:45:13.470
So I really hope that this court finds,
891
00:45:13.470 --> 00:45:14.790
as I have found,
892
00:45:14.790 --> 00:45:16.800
that there is no prejudice to the unfair prejudice
893
00:45:16.800 --> 00:45:18.540
to the defendant in this case.
894
00:45:18.540 --> 00:45:21.600
And I thank you for hearing me out and I would ask you
895
00:45:21.600 --> 00:45:24.600
to affirm the convictions in this case except for the ones
896
00:45:24.600 --> 00:45:26.520
that are duplicative that we conceded.
897
00:45:26.520 --> 00:45:28.350
Thank you.
Thank you.
898
00:45:28.350 --> 00:45:29.183
Thank you.