-: SJC-11668
Commonwealth versus Jose Fernandez.
Okay, Attorney Rosele.
-: Good morning, Chief Justice Budd.
Members of the Supreme Judicial Court.
My name is Jim Rosele.
I'm appearing on behalf of Jose Fernandez
in this particular case.
I'd like to acknowledge that there are friends and family
of Mr. Fernandez who may be in the courtroom here today
or are watching it online.
And so I wanted to acknowledge that fact.
I would begin by suggesting that the question
that we suggest this case poses is this,
can law enforcement investigations of a drug dealing
operation and a murder actually be conducted in a manner
that is so fast and loose has to be found to be unlawful
or unconstitutional?
We contend that the answer to that question is yes,
and that this case demonstrates that.
I'm gonna focus in particular on the secret recordings
that were, perhaps, the most compelling part
of the Commonwealth's case.
These are the four days of recordings that were made by
the agent Alexis Cruz,
excuse me, at in the House of Correction
when he was incarcerated with the defendant, Jose Fernandez.
-: I understand why you, why you are focusing on
whether or not it's organized crime that's involved
and it seems like, although it was hard to pin down a bit,
some of your discovery arguments relate to
the section 99 issue.
But, the first issue it seems to me is that,
I mean they don't need a warrant here.
They don't need a section 99 warrant here.
If there's organized crime,
it's a one-party consent through a police officer.
So there's not even a need for a warrant.
And so if there's no need for a warrant,
then if the warrant didn't include anything about
the South Carolina dancers.
I'm having a hard time having your argument
separate the warrant from the organized crime argument.
-: Justice Lowy. I agree with exactly what
you're saying there.
And in fact, this was initially suggested to be
a blood warrant,
but it's not a blood warrant because Commonwealth v. Blood
doesn't apply unless it's a home setting.
And this obviously, even though it might have been
Mr. Fernandez's home, he's incarcerated,
he was incarcerated at the time,
and we concede that it,
the blood warrant requiring wasn't there.
And the burden to establish that the exception of 2 72 99
applies we, the designated offense,
there's no question about that.
It's the murder that occurred in May of 2009,
but in connection with organized crime is
what is required and the burden to establish that is on
the Commonwealth. And what did they proffer in this case?
Nothing other than a 10 page affidavit that was submitted on
November 17th, 2010 by Trooper Giasi.
That's all that the Commonwealth put forth.
And if I could talk to that and point out.
-: Before you do that, how do you distinguish Mitchell,
right, this, the exact same issue was dealt with
in Mitchell, right?
What's different about this case than Mitchell?
-: Well, there's actually quite a bit of differences,
but, the biggest difference, your Honor,
that I point out is that in Mitchell,
there was an evidentiary hearing at the trial court level
before the case, before Mitchell came up to this court.
And so the Commonwealth had the opportunity to make its case
that the exception of 2 72 99 applies.
They had the same opportunity here in Fernandez.
They didn't avail themselves of that opportunity.
That's perhaps the biggest difference between the two
and a way to distinguish the two.
We'll concede for the sake of we understand
what this court announced in Mitchell saying that there was
organized crime and it would, and it met
the requirements there.
So if you look at Trooper Giasi's affidavit
and I'll, if I may, I'll talk about what it's missing.
There's a gap of nearly 14 months
as he details his investigation.
Justice Lowy: But the, you know, as you know,
the DA's offices and AG's office very often will seek
a blood warrant even when they don't need one
with a section 99.
However, there was no affidavit needed,
so there was no warrant needed.
And in Mitchell, Chief Justice Gantz
said, well, this is organized crime related to the drugs.
And even if there was a personal nature to it,
not his words, but
the drug dealers needed sort of an image of credibility.
So they couldn't let this situation
with the supreme gang lie.
Attorney Rosele: Right.
I'll make two points if I may, your Honor.
First of all, Chief Justice Gantz also said in Mitchell
that the genesis of the dispute,
the reason for the original dispute was unknown.
It was not known in the Mitchell case.
In this case, it's clearly understood the genesis
of the dispute that ultimately resulted in
the tragic killing of Mr. Rapina.
It was a dispute about between Mitchell and Pina having
to do with dancing girls that stemmed down in South Carolina
and was brought up to taunting.
That's what this case was all about.
It had nothing to do with organized crime.
And the key time to look at, Your Honor, is May of 2009.
We will concede for the sake of this presentation
that based on Trooper Giasi's affidavit
in November,
November 17th.
And I know the court is going to look at that carefully.
You can actually track how he describes the results
of his investigation to support his contention
that the exception of 2 72 99 applies.
And you can track it right on through up to
paragraph 15 of it.
It's everything about the murder itself,
the subsequent investigation, and examining witnesses
and so forth.
Absolutely not a scintilla of evidence or any comment
whatsoever about an underlying drug conspiracy or ongoing,
you know, drug operation.
And then from paragraph 15 to paragraph 16
of that affidavit, that's at pages 95 to 105
of the appendix at page 100,
you see paragraph 15 on Wednesday, June 10th, 2009.
Again, he's talking about his investigation stemming from
the murder.
Nothing at all about any drug connections.
And then-
-: Let me ask you this question and tell me what's wrong
about this, the premise of my question.
So what the affidavit says is not dispositive,
there was no affidavit needed.
What the issue is is whether or not there's evidence of
organized crime and the Commonwealth is gonna say
that the South Carolina dancers business
augments the tie to organized crime,
doesn't detract from it.
-: There was indesia of organized crime
from June, July to August of 2010
based in part upon the investigation that was done by
Trooper Baker of the drug offenses.
Trooper Giasi, and it's quite obvious when you look at
their compare and contrast their respective affidavits,
what Giasi was doing here,
and it was basically incorporating the results
of Baker's investigation into the drug.
And that's perfectly okay for troopers working together,
solving a crime and so forth.
But we contend in this case they went too far.
And I'll speak to that.
I'd like to under underscore the importance here.
You look at Trooper Giasi's affidavit was all that
the Commonwealth presented to the trial court
to support their position that the exception
of 2 72 99 applies.
Justice Lowy: That's the answer to my question,
that that's the evidence they presented
as to that, you just answered my question.
Because you're saying that the only thing the judge had
to determine whether or not there was organized crime
was the affidavit.
-: Exactly. That's all the Commonwealth did.
And the motion should have been allowed at that point,
absent anything further from the Commonwealth had
the opportunity to do it.
They did do so in the Mitchell case
and 'cause that's after the fact and hindsight
is always 20/20, but in this case it wasn't there
and the motion should have been allowed.
-: What's the answer to Justice Kafker's question though,
about why is this different from Mitchell?
Can't we just take judicial notice of that case?
-: Yes. I mean that's absolutely controlling law and I'm not
suggesting that this court should revisit the arguments in
Mitchell that what was going on here was organized crime
or not, we'll concede that based on what we see in
Trooper Giasi's affidavit from August 2010 on,
there's an indication that there's an organized crime
component going on involving drugs.
There's nothing before then. So it's a 14 month gap
going back to the important period, which is in May of 2009.
That's the time we gotta look at what was going on
in May of 2009, nothing regarding at least on the record,
that the judge had available to him.
Nothing suggesting that there was competing
drug cartels or anything of that nature whatsoever.
So we contend that
the 2 72 99 was indeed violated,
the exception did not apply in this case for the reasons
we suggest. And that would be our statutory argument.
I do want to talk about the,
our contention that Article 12 bears some scrutiny
in this case.
And that has to do with the notion of inexplicably
intertwined concept as an exception to the Sixth Amendment
right to council,
which, under most circumstances, is offense specific.
That's conceded.
But there is this exception that has been recognized
in Massachusetts,
it was recognized in the Rainwater case in 1997.
It was acknowledged in the Murphy case in 2000, 2005.
I believe that's the correct year.
And, but we are urging the court to revisit that notion of
inextricably intertwined to see if it does have application
as a matter of Article 12 here in Massachusetts.
Other states are doing it, have done it.
And in fact, I-
-: Tell you a letter that there were three states that have.
Am I, should we assume that there's 47 that haven't
or that they just haven't reached the issue
or somewhere in between?
-: Well, I'd answer that very quickly, by no,
you shouldn't make that assumption.
But I will
again concede the point that in the wake of
the Supreme Court's opinion in Texas v. Cobb,
that put a, sounded the brakes if you would,
to application of that exception,
which was recognized before.
In fact, the Jewell v. State,
the Jewell v. Indiana case that I cited
is very instructive in many respects talking about this,
this principle of inextricably intertwined.
And if I may just quote from the Jewell case,
I know it's another state jurisdiction,
but it does have bearing here because the inextricably
intertwined concept before 2001,
when the court decided,
when the Supreme Court decided Texas v. Cobb
inextricably intertwined, was recognized in several
federal court cases, federal jurisdictions,
and a number of state jurisdictions.
Texas v. Cobb in 2001 comes in,
puts the brakes on it in some respects.
But in the wake of that, we are now seeing
not a ground swell, not a rush and so forth,
but gradually more and more recognition of this exception
to the Sixth Amendment jurisprudence as a matter of
state constitutional law.
And if I may be permitted just a quote from the Indiana,
the Jewell case,
when a defendant is represented by a lawyer for a particular
offense, this is what the Indiana Supreme Court wrote.
When a defendant is represented by a lawyer
for a particular offense, do the police violate his right
to counsel if they approach him about a different offense
under the Sixth Amendment?
The answer is no.
I mean this was in 2011,
obviously that's 10 years after Texas v. Cobb that under,
they brought a protections of Article one section 13
of the Indiana Constitution.
The right to counsel is violated only where the different
offense is inextricably intertwined with the charge in which
counsel is already representing the defendant.
The Jewell opinion, by the way, is very informative.
It is very, very interesting because what
the Supreme Court of Indiana did in the Jewell case is
actually track the history,
recall the history of that inextricably intertwined
exception to Sixth Amendment jurisprudence at the time.
And they note for example is to be viewed
in two different capacities.
One is inextricably intertwined where the facts are
similar or they're related.
The facts of both cases are related, that's one way.
But the other one, they say another one that is
characterized as, is labeled the circumvention
of the Sixth Amendment right.
And they say that exception applies when the government
or state breaches its affirmative obligation not to act
in a manner that circumvents and thereby dilutes
the protection afforded by the right of counsel.
That we respectfully suggest is what exactly what has
happened here,
based on an examination of the
efforts by Troopers Giasi and Baker to work together.
And so if I may,
let me just, if I may point out some of the reasons why
we say that it does apply in this case, if I may,
and I'd like to conclude with a few remarks about
the prejudice aspects of it and then unless
there's any other questions from the court,
but speaking to why that exception does apply in this case,
here are some of the things that we can look at.
We've, it's established now that in both investigations
we have the same case investigation number being used,
whether it's the drug or the murder.
So clearly they're working together.
Nothing wrong with that unless it goes too far.
I would invite the court to pay particular attention
to the two affidavits.
Giasi's, November 17th, 2010,
found in pages 95 to 105 of our appendix.
And then the Commonwealth submitted
Baker's affidavit from I believe June of 2010.
And that's it.
I'm going by memory now, I believe it's pages 57 to 99
of the Commonwealth's appendix.
And that's very interesting to compare and contrast the two
and you really get a sense of the extent to which
Giasi all of a sudden starts to incorporate everything that
Baker was doing at that point.
The fact is that the murder investigation up to that point
apparently had dried up.
They had to do something to make the connection.
Other factors, if I may.
At pages 277 to 281 of the appendix,
there's meeting notes of Trooper Giasi beginning of
November 2010 when they're gonna sit down with Cruz
and his lawyer and work out their deal.
Who attends that meeting?
Cruz, Cruz's lawyer, representative from
the District Attorney's office, Trooper Giasi,
and Trooper Baker.
I think it's significant to note that
where this all came from,
it was the dispute that began between Mitchell and Pina
in South Carolina. Two men who knew each other.
They were friends growing up and that was in had that there,
that reference to that is not included at all in anything
that Giasi or Baker put forth.
The details of exactly how this went was represented by
the prosecuting Attorney at the time of trial.
The prosecutor at the time of trial, he told the court
what this case was all about and it was nothing about turf
protection or anything of that sort,
at least in May of 2009,
which is the important time to consider here.
If it, this was in August of 2010, perhaps a different case,
but it wasn't.
The drug charges themselves were eventually dismissed.
I think...
I can see my time is running short and I just say that
the Commonwealth continues to assert
a work product privilege.
I think we can draw from that conclusion that there's other
materials that we haven't seen yet that may support
the claim we're making.
I'd ask you to consider that as well.
As far as prejudice, if I may,
the testimony from Cruz
was clearly the most compelling part
of the Commonwealth's case and I would invite the court
to pay attention to the, as I'm certain you will,
to the transcript in volume 11 and then into the beginning
of volume 12 in which the prosecutor presenting
that evidence does so in a way that really incurred
the real anger of the trial court judge,
the way the prosecutor was doing.
You can draw your own conclusions by reading it,
but it's pretty compelling when you read the transcript.
-: Was there a foundation about that they'd talked very often
and that he understood from previous conversations
with the defendant what the words would mean?
-: Conspicuous by its absence was anything like that,
Justice Lowy. And that was noted by the trial court.
When you read the transcript, you'll see that
on the second day the trial court judge was obvious,
he was very upset by what had happened and
he told the prosecutor,
this is what could have been done to avoid this.
But that's like trying to put the genie back in the bottle.
The jury had already heard the damage the day before.
They already heard the, in effect,
Cruz ended up attributing to Fernandez
a confession to this crime.
And the trial court judge saw that and was really,
you could tell he was really upset. So I call that to your.
-: No, it's not really the cases that you cite about
requirements of an interpreter, that's really your argument.
Your argument is that there was no foundation for Cruz to be
able to testify what the defendant meant
and that that's what had Judge McDonald so upset.
Attorney Rosele: Yes. And, but I do think the case
we cite Soto, I believe is the case on the translation.
I think that does have some bearing.
And the trial court judge himself when he was talking about
this said that, if I may just finish that question, and then
that this was like translating a foreign language
or words to that effect that was in there.
So otherwise, if there's any further questions,
I'll rest of my brief and thank you very much.
-: Thank you.
-: Okay, Attorney Lee.
-: Good morning. May I please the court.
Mary Lee, Assistant District Attorney
from the Bristol District for the Commonwealth.
I'd like to begin with my error
in post-conviction discovery.
Sorry, I'm getting upset.
Three years after I completed the discovery,
the appellate administrative assistant in my office found
a misfile file in the appeals file and then when I went
to make sure that all those documents were
cumulative of what I had provided in
post-conviction discovery, I determined that
the IT department had consolidated the digital files,
which meant I had to cross-reference all the documents from
that digital file with the post-conviction discovery.
And in doing so,
the vast volume of thousands of pages had indeed been given.
I discovered a mistake of my own.
I worked on it for like two weeks,
night and day and weekends and I discovered my own discovery
error, immediately called counsel.
Tearfully apologize as I apologize to this court
and to the defendant and counsel was very gracious,
but of course his primary concern must be the rights
of his client, the defendant as are they're also mine.
When I make a mistake, I own it,
tell everybody and try to fix it and try to make sure that
there's no prejudice.
The defendant has supplied a supplemental appendix.
I agreed to the inclusion of the documents that he deemed
appropriate from this October 2022 discovery.
I have cross referenced those documents.
He claims he didn't get grand jury transcripts.
The grand jury transcripts he referenced were provided in
2019 as was that list.
It's the list that I provided in 2019 had handwritten notes
on it.
There's a pre-trial document saying all grand jury materials
were provided.
There's a pre-trial document saying all Giasi documents
were provided.
If you compare his discussion of McCone at supplemental
appendix 15 to 23,
specifically pages 20 to 21 and 22 with the defendant's own
record appendix at pages 101 to 102 and 104,
you'll see that they are identical.
So the McCone stuff is not new.
All the wire tap materials were provided.
My post-conviction discovery letter is in my record
appendix, the notes of the grand jury,
the actual grand jury transcript was provided,
you can see it in the Commonwealth's appendix
at 388 to 452 that was made part of the record
in the post-conviction proceedings.
The pages at 25 to 36, you'll see in my letter at the end
of my record appendix that one, it's CA 489.
That one was provided in post-conviction discovery.
I just wanted him to know what was in the misfile file.
He has included Kathleen Sulis, Corey, it's a docket.
If you look at transcript seven pages 56 to 60,
she actually testifies about her criminal charges
that that docket relates to. So that's not a surprise.
That was pretrial discovery.
And the last part is Crystal Fernandez, it's her.
Crystal Fernandez was not a witness in the case.
She's the person who held guns.
She's Thomas Jeffrey's girlfriend. She held guns.
Marcus Mistrel went to get a gun from her home.
That's her relationship to this case.
They put in her probation matters.
Her name is throughout the pretrial discovery reports.
You can, you'll see throughout it's mentioned at trial.
If a person wants a probation records about a witness
in the case or potential witness in the case,
they get that from the probation department
under Rule 14A 1A 4.
And so I would suggest that those materials,
I don't wanna undercut my error.
I made a mistake, trying to fix it and I'm very apologetic
about it. But these materials,
I stand by my statement that these materials that he has
provided in his record appendix are cumulative of what was
provided in post-conviction discovery in 2019.
And they don't raise any concern when compared with
the trial record in this case.
And therefore I suggest no remedy is required for it.
However, if this court disagrees,
the remedy is an evidentiary hearing,
which is what the defendant asked for in his rule 30 motion
and did not get.
-: Now what about the affidavit of trial counsel
as far as getting the materials,
recognizing that he did get the materials,
but that he ended up not auditing
the discovery letters.
How does that fit into everything?
-: So Attorney Bradle was the trial Attorney,
very experienced and he was actually on this case even prior
to the indictment.
And the record shows that some of the materials were being
provided before indictment with the May 2nd, 2011 letter.
So the defendant presented Attorney Bradle's first affidavit
which said I didn't get these five discs, sorry, four discs.
They're DVD interviews including Alexis Cruz,
which is I'm not gonna suggest anything about Alexis Cruz
is not crucial to the case. It's crucial to the case.
He's right about transcript 11 and transcript 12
with Alexis Cruz's testimony.
So he's basically a star witness.
He's the person who recorded the defendant
on the blood warrants.
So the Attorney Bradle is saying, I didn't get these.
So we provide proof. Here are the cover letters,
here are the reports that show you had notice
of the DVD interviews.
Attorney Bradle is an excellent Attorney and then he files
a supplemental affidavit saying I had the cover letters
in the trial file, in my trial file.
But I don't think I got those DVDs.
This record shows one that the trial file he gave to counsel
on appeal is not complete.
We don't have anything from Attorney Bradle saying
that he searched for these materials after being noticed,
how he kept his materials at his office,
whether he has lost anything or potentially lost anything
from his file.
And another important point that shows Attorney Bradle's
second affidavit also cannot be credited,
not because of a lack of truth but because of
a lack of memory which he acknowledges in his affidavit.
But he said he was unable to cross-examine Alexis Cruz about
his arrest by Trooper Fredette,
particularly about marijuana and use without authority.
And he says there was a missing report and it's in
the defendant's record appendix at 343 to 347.
Not only did the defendant Attorney Bradle
cross-examine Cruz on this incident
at transcript 12, 57 to 62,
Attorney Bradle called the trooper at transcript 13 165
to 177 and asked him about the marijuana usage
and then when the Commonwealth was cross-examining him,
this is at transcript 13 pages 187, I'm sorry,
183 to 184.
He actually references that report
to refresh his recollection.
It is impossible that Attorney Bradle didn't have court
by Trooper Fredette.
It is impossible that he didn't have these discs
and didn't notice it.
And there's a pretrial affidavit from Attorney Bradle
saying that he had reviewed the whole record,
his post-conviction affidavits, with respect to Mr. Bradle,
his post-conviction affidavits show a lack of memory.
-: Well yeah, I mean it's, he's saying as best as I can
recall, he's not, he has that preparatory comment in there.
-: And his, but even when his claims are disproven,
he still says, I must not have gotten it.
I didn't audit the record.
He's saying I didn't audit the record nine years ago.
But nine years ago, he was saying I looked at all
the records.
I would suggest that that's not a sufficient affidavit
to warrant an evidentiary review.
-: But you can't blame him for that.
If he says he looked at all the records,
he means he looked at all the records he had.
-: Well, but he had, he definitely had notice.
I mean, he admits his trial file has those cover letters.
-: I know, but I'm just saying it's not necessarily
inconsistent because when he says I looked at
all the records, what he is saying is I looked at
all the records I had.
-: And what is missing is what did he do when he found
those cover letters?
Did he go back and look for anything else?
And we don't have anything in his affidavit about that.
What we have is continually making claims.
So he says he didn't get the Gomes interviews,
but he had those, we know he had those DVDs.
Those are on the list.
He wrote,
the Commonwealth has been able to show pretrial discovery
with one exception,
which is the letter Alexis Cruz wrote to his Attorney
a few weeks before trial.
We, first of all I'd like to show,
say that that letter that we provided in post-conviction
discovery shows Commonwealth's good faith.
That was not part of the Grand Jury materials,
which was the subject of the post-conviction order.
We were providing trial notes and as much information
as we could to assist counsel and to be as open
with our file as possible for the post-conviction discovery.
That letter shows that Cruz, Alexis Cruz wanted more.
He's that star witness.
So he wanted more,
even though it was coming up to the trial date.
And he had been provided substantial information.
And my suggestion to the court is that if you look at
that letter,
it doesn't say the Commonwealth's giving him anything else.
It says that he wants more.
And there was a grueling cross-examination
on all the benefits he had been provided
and how he had breached the agreement
and still got all those benefits.
And then even after trial, he was expecting
that his criminal matters would still be
disposed of as part of the agreement.
So the jury was well aware that he still wanted more
regardless of whether he abide by the agreement,
regardless of whether he had finished testifying,
he still wanted more.
And that's really all that letter says.
So I don't have a pretrial discovery letter for to show that
that letter was given,
but the content of it shows that that letter was given.
And I would suggest the content of the trial transcript
shows that Attorney Bradle was fully apprised of all
of this information.
-: How about the 2011 report about Cruz having been shot
in 2011?
-: So that's the mid trial disclosure.
So, the Commonwealth's position is,
it was never gonna offer that evidence.
It's not exculpatory because a person cannot be impeached
with being victim of a crime.
We conceded that it was unrelated to this crime.
The defendant was about to cross-examine,
I believe Alexis Cruz when it came up either
that he was just being called as a witness,
the prosecutor wanted to alert Attorney Bradle to it.
He unlike everything else at trial where Attorney Bradle
like was fully aware of everything else at this point
he's like, this is the first time hearing of it.
I have my cross-examine already, cross examination already.
And now this is, they're throwing,
he said they're throwing a bomb into it.
The trial judge heard his objection
and said this is all staying out.
It's all on the Commonwealth's burden.
Nothing comes in. If something about that comes in,
there's gonna be a mistrial and Attorney Bradle can ask
whatever questions he wants.
Attorney Bradle said thank you.
So the defense claims well if we had known about that
beforehand, we could have proved
it was unrelated to this case.
The Commonwealth conceded it was unrelated to this case
and did not offer it.
And two, maybe they could have connected it up to show
some kind of exculpatory evidence.
However, eight years passed from the time of the mid trial
disclosure until the motion for new trial
and nothing has been done to, on how to connect it up.
And so I would point to the Fossa case and the Brito case,
Defendant can't just speculate that something good
would've come of it in a motion for a new trial.
He's supposed to do something with that information
and show why that was relevant to the investigation.
And so, but the Commonwealth's position at trial
was that was not disclosed because it was irrelevant.
I would like to note that the defendant is now claiming that
there's a fraud on the court citing CPCS versus AGO.
And I would like to very strongly suggest to the court that
that is not, has no basis,
it's about the South Carolina dispute.
The prosecutor actually discussed the whole South Carolina
dispute without any claim from Attorney Bradle that this was
new material in the pretrial hearing before the judge ever
made the findings on the pretrial motion to suppress
based on Nexus.
And I would suggest to the court that that shows
one, Bradle knew all about it and two, that the prosecutor
was being very open about it, and three, that the issue
of the South Carolina, the omission of
the South Carolina dispute from the wiretap documents,
the affidavits was all known to Bradle.
He did not raise it and did not preserve it.
And that was raised in the post-conviction claim.
I think in terms of Nexus this case,
falls squarely within Mitchell.
It's the same exact incident.
It's the same exact description.
Mitchell is the co-defendant.
Mitchell occurred after the trial in this case I think
definitely after, yeah, after the trial in this case.
But so the defendant didn't have the benefit of it.
But had the defendant raised the claim about the omission of
South Carolina and exotic dancers at so-called
gentleman's clubs, that would've failed and should fail
under Mitchell because Mitchell is right,
it's right, literally right on point.
-: Their argument is that the difference is that in Mitchell,
there was an evidentiary hearing and that here
there was no evidentiary hearing.
And if you look at the Commonwealth theory of the case,
it's not a theory of the case that this is
a drug turf dispute.
-: So in Mitchell, if you look at the description of
the affidavits in the Mitchell case,
the same as in this case,
I think you look at the four corners of the warrant
to determine whether there's probable cause in Nexus
and you can see the records that were provided.
They're in the Commonwealth's record appendix at 57 to 102
and 115 to 117.
Those are the documents that were provided to the pretrial
motion Judge and those show Nexus, they have team supreme,
they're organized, they work together, they deal drugs,
and there's escalating violence and I would suggest
that's sufficient for Nexus and you don't need
an evidentiary hearing for that.
In terms of the evidentiary hearing,
what you'd need is the outside materials
on South Carolina dispute.
And here we have the trial where the South Carolina dispute
is fully versed throughout.
The defendant tries to note that the prosecutor said that
this wasn't a gang case.
He is taking the prosecutor's statements out of context.
What the prosecutor was saying is we're not going to use
gang evidence.
What we wanna use is that they're team supreme.
They have the tattoos showing death before dishonor
and the motive evidence as well as the access to guns.
I would like to just jump to the Rainwater issue.
This is one party consent.
Alexis Cruz was in jail at the same time as Fernandez,
the defendant.
The defendant was in custody on bail on drug charges,
not murder charges.
The murder was not charged yet..
-: Yeah, but the inextricably intertwined point,
the troopers, I mean they know Cruz is going to not only,
they know he is going to start with the guns.
I mean he wants to make sure that it comes out
that they're not his.
Attorney Lee: Right. He's mad because it was
Mitchell's gun in the car.
First I'd like to make a note, I said that he was arrested,
Cruz was arrested in October. Cruz was arrested in July,
which I make note of later on when I'm talking about
Fredette's case. I'm sorry about that.
So he's arrested in July on Mitchell's gun
and Fernandez is arrested in August on the drug charge.
The drug charge post dates the murder.
That's like summer of 2010 and the murder is May 2009.
And then in October 2022, that's when Cruz
agrees to turn state's evidence
with the help of his Attorney.
And the defendant has provided the report of that meeting in
his record appendix.
And so I would suggest to the court that those are not,
the murder and the drug charges are not
inextricably intertwined.
They're different in place and time.
They might have.
-: Which by the way might back into appellant's other
comment, which is the 2010's the drugs,
that May 2009 shooting is before the drugs,
so that the drug turf war is not the organized crime
support for the section 99.
-: Right. So and again look at the,
I would look at the affidavit.
That's getting back to the Nexus thing.
I rely on the affidavit provided in the Commonwealth's
record appendix in comparison with Mitchell,
which said that that was sufficient.
And I would suggest that that is correct.
In terms of the inextricably intertwined,
I meant a little bit of confusion.
My understanding was Rainwater uses
the inextricably intertwined analysis,
which is more protective than the Sixth Amendment under
Texas v. Cobb.
And that's the position I've taken in my brief
and I apologize if I'm confused on that,
but I don't think the defendant's asking you to adopt
new law inextricably intertwined.
I thought that was already the law here in Massachusetts
and the cases he provided are similar.
They have a similar analysis.
And so I would suggest you have an uncharged murder
that predates the charged crime of drug dealing
and therefore the charged crime of drug dealing is not
inextricably intertwined with the murder.
And it also doesn't violate the Sixth Amendment under
Texas v. Cobb because that actually requires an analysis
of lesser included using double jeopardy analysis.
So if they're not lesser included under federal law,
then you can go talk to person in custody even
if you're a Commonwealth agent, government agent.
And so I would suggest that that was done appropriately
and even though we might not have needed a blood warrant,
we went and got one,
we did it with judicial approval as well.
And it also doesn't violate the Fourth Amendment because
there's one party consent and because.
-: So going back to Justice Kafker's initial question,
is Mitchell just dispositive?
Attorney Lee: I think Mitchell's dispositive.
I can't tell them apart based on the record that we have
and the record that's in Mitchell.
They look exactly the same.
And I think that's why the defendant was asking,
well maybe you should overrule Mitchell and I would suggest
to the court that overruling Mitchell does not mean
that he gets the benefit of Mitchell because he did not push
this South Carolina omission at pretrial.
But he did preserve the nexus issue at pretrial.
-: Sorry, are you done?
I just, I'd like to go backwards just so I understand
the discovery mix up.
I just want you to take what,
summarize for me a couple of things.
One, what was missing and why it's cumulative
and secondly how we deal with that given that
the trial judge on his doesn't
have the benefit of any of that, right?
So just walk me through that 'cause that's...
-: What was missing is that letter from Cruz to his Attorney
that occurred three weeks before trial.
And I would suggest that it's cumulative
of the cross examination of Alexis Cruz.
-: Okay. Do this slowly, okay?
Just 'cause this is, so what's missing is what, sorry?
The letter.
Attorney Lee: The letter from Alexis Cruz
to his Attorney, it's dated February 2013.
It's a few weeks before the trial.
It's, the whole copy of it is in the defendant's brief.
And I would suggest if you compare that with
the cross-examination of Alexis Cruz, then you'll,
my position is that it's cumulative.
The jury knew he got a lot of stuff.
He wanted more stuff and he expected to get more stuff
after trial.
And the more stuff after trial that the jury heard
was that he wanted his charges reduced,
which is not reduced disposed of favorably, which is worth
better than money.
-: And other, anything else?
Attorney Lee: The only other thing is
the mid trial disclosure, which I've already gone over.
-: Yeah. But I'd like you to go over that one more time.
-: Sure, so the mid trial disclosure is the second shooting
of Alexis Cruz.
The Commonwealth's position is that that was not related to
this case and the judge excluded every reference to it after
the defendant's objection to which the defendant's.
Justice Lowy: Unless the defendant wanted to use it.
-: The defendant could ask whatever questions he wanted.
-: Unless the defendant wanted to use it.
-: Right. So that gets us to...
how do we know that that's not prejudicial?
And so the defendant makes-
-: But that's what the defendant's saying is well yeah,
but I didn't have time to figure out if I could use it.
-: Not at trial, but after the fact he had eight years
to connect it up as he's required to do under FOSA,
which is an appeals court case.
But well reasoned and it's comparable to britto,
which is not the same exact scenario, but the showing
the defendant must make an rule 30 motion.
So he has eight or nine years to say why
was the second shooting of Alexis Cruz relevant to my case?
And we concede that it's unrelated so that,
and it didn't come in at trial, so there's no problem there.
So he would have to show something to connect it up
and he's done nothing after the disclosure of it
to show that that was prejudicial to him after he got
the remedy that he thanked the judge for.
-: So those are the only two things we need to worry about.
Those are the only two missing things that come up 'cause-
-: I don't wanna speak for my brother
from the Commonwealth's perspective.
Those are the only two things I've tried to explain
why the stuff in his supplemental appendix is.
-: This is his reply, his reply brief,
and I haven't gone through this whole record.
His reply briefs says there's, seems to describe more stuff.
Right?
-: Right. And that's what I went over in the beginning
of my argument,
all the things in his supplemental appendix
to his reply brief.
So I stand by my position that those are cumulative.
I apologize as greatly for making the error,
but the only things we can really call
our own are our mistakes, I guess.
So I really hope that this court finds,
as I have found,
that there is no prejudice to the unfair prejudice
to the defendant in this case.
And I thank you for hearing me out and I would ask you
to affirm the convictions in this case except for the ones
that are duplicative that we conceded.
-: Thank you. -: Thank you.