-: I'm having technical issues, but I think I'm mostly--
-: Yeah no, we see you.
Welcome, and uh, if you're ready, we're ready.
-: Okay.
I'm sorry, I just have one thing
to get organized, I'll be right there.
I'm sorry, I apologize.
Okay, good morning, your honors.
My name is Alan Black.
Good morning, Madam Chief Justice,
and I represent Mr Welch in this matter.
Just want to say one thing before I start, please?
I'm retired and this is my last case.
And I've appeared in front of this court
for about 25 to 30 years.
And I just want to thank you because this is my favorite.
This is the one thing I'll miss,
is appearing before yours and everybody over the years
starting with Judge Justice Liacos, I think,
have treated me with total respect
and I love being in front of this court.
So, starting off with that, I'll begin.
So I spent a lot of time sorting out the facts
from the motion to the press, because the facts
are kind of complicated and convoluted.
And that's the issue that I want to start with
and probably spend a lot of time with.
Mr Welch was transported to Baystate hospital
after slitting his throat and cutting his wrists.
-: Mr Black, why don't we ask you a question about that?
-: Yes?
-: The two cases that are cited, one's out of Vermont
and one's out of New Jersey, one with
the emergency department in Vermont,
and then New Jersey case deals with
a mental health facility with a longer period of stay.
-: Yes.
-: I know your argument about the ICU room.
Could you please use those two cases to distinguish
what is a reasonable expectation of privacy
in an ICU world, given the duration
and his inability to control access to that room?
-: I'd be happy to.
You're right, he was unable to control access to the room,
and he was unconscious most of the time until later on
but even the motion judge kept on referring to both rooms
as private rooms, which I thought was fascinating.
I mean, those were in his rulings and holdings
at the end of, you know, at the end of the motion hearing
but he always referred to them as private rooms.
Now, you know, I understand most
of the cases that say you don't have
a reasonable expectation of privacy are ER cases.
And the case that was decided by
the judges against us was an ER.
And I hope nobody here has ever been in the ER
but in an ER, everybody it's all open, people are coming
in and out, visitors are coming in and out.
And I see that distinction.
That's distinction is exactly appropriate
because there's really no privacy in an emergency room.
-: How much privacy do you have in an ICU room?
-: Well--
-: Because by definition, it's the most serious cases
are in the ICU, and medical intervention is constant
in an ICU, as far as people in and out.
-: Well, you know, even in the Stodd case,
which I cited, the other case that we cited,
and I understand it was a mental health facility
and he was going to be there a little bit longer.
He had a room mate in his room
and the court ruled that even if the defendant consents
which he did in that case to medical personnel
coming in and out, that doesn't waive one's
reasonable expectation of privacy.
You know, he couldn't waive.
They kept on asking, you know, he couldn't waive anything
because he was unconscious for the first couple of days.
But in that case, in the Stodd case,
he did waive it to allow medical personnel to
come in and out and he said, well that doesn't
waive the reasonable expectation of privacy.
Now I understand the difference.
He was going to be there a little bit longer.
And they said, okay, well that's his room
even though he was sharing it.
So this was an interesting case
because it's really in the middle of everything
and it's the first impression, I believe
it's a case of first impression and the Commonwealth.
-: I think so too, Mr Black.
Let me ask you on another part of the motion.
So the motion to suppress statements.
I was a little unclear on this.
As far as the facts go, he tells the police
I don't want to talk to you, I'll talk to you
essentially when I get better the next day.
-: When I can talk.
-: I'm having trouble hearing you, Mr Black, I'm sorry.
-: Oh, I'm sorry.
He said that when I can talk, Judge Gaziano: Okay.
-: I'll be able to do this, but not until this is serious.
-: And did the police abide by his request
and wait for him afterwards?
-: No, and as a matter of fact, some of the most
damning situations, they're all in writing, first of all,
so he never could talk in that whole situation
and the police, and he told them, I can't talk to you
till tomorrow when I can talk.
And then the police came back two hours later
and urged him to talk and then urged him,
even when he said no, during this interview
they urged him to keep on going and quote,
I think finish, finish this conversation.
And--
-: The ambiguity, the lack of ambiguity is
I don't want to talk to you now,
I'll talk to you tomorrow, essentially, when I'm better.
-: I don't want to talk to you until I can talk, speak.
That's what he felt is when he could actually handle this.
But he never spoke during this,
all of this stuff was in writing.
-: No, I got that part of it, but no,
I understand your arguments, Mr Black.
-: Okay. Judge Gaziano: Just needed
clarification on the facts, thank you.
-: Yeah, and there's a lot of, I mean
I just want to summarize this because I have 15 pages
of notes trying to clarify the facts myself
and it's difficult, but I can say this with certainty
that when he was taken from his house in East Hampton,
and driven to Baystate he was accompanied
by a police officer and they hailed the ambulance.
They drove right to the hospital.
The first officer went right upstairs and sat.
I mean, I think he sat outside the operating room.
I can't imagine them letting them in
but I think my sister said something about him being
in the room, but I actually don't think that that's correct
but I don't think it also matters because he was right
at the door of the OR and he was unconscious anyway,
the defendant, the entire time of surgery, obviously.
And when he was transferred to his quote,
private ICU room, the cop went in with him initially.
And there was always a police officer within feet,
one two feet of the defendant, the whole time.
So, I mean, I know when we get
to the issue is, was he in custody?
Which is one of the things that Judge Kinder relied on.
He said that he was free to leave
and nobody told him he wasn't, the police officers
kept on repeating well you can get up anytime you want.
He was hooked up to machines.
He was hooked up to, he was intubated.
-: That's not in the police statement.
I mean, free to leave usually means
I've got handcuffs on you, not that you're intubated or,
or you're hooked up with an IV.
-: Free to leave means he's free to leave, and--
-: It also entails something that law enforcement
has done as far as free to leave, correct?
-: I would think you're right, except in this particular case
when a patient is physically unable to leave
saying that you're free to leave is empty words.
And he said it all the time.
You're not under arrest.
You can go anytime you want.
The officer said.
And he repeated that over and over and over again.
And the defendant can't even talk, can't even do anything.
So I say, you know, to me those were
just empty words, meaning nothing.
How was he free to leave?
He wasn't free to leave.
-: You need the, and just as Gaziano said,
the state action involved with that,
you can try and weave that argument
to your voluntariness point, but the hospital
his health not allowing him to leave is not
going to delineate what custodial means
for the purposes of our constitutional analysis.
-: Well, let's analyze that for a minute,
from the perspective of the police.
The police were there all the time.
Was he really free to leave?
I mean, look at it in this situation,
if he said to the police, okay,
I'm able, I'm going to get out of here.
Really, do you think the police would let him?
He was a prime suspect in a horrible murder.
-: Doesn't matter what the police would have done.
As you know, from Commonwealth first is more,
it's objective from the perspective
of the defendant, as it relates to that.
One of the non-exclusive Brian factors.
But it seems to me that if you want to argue
the where he was and where he could have gone
and all of that, you could weave it
into a voluntariness argument.
-: Which I did as you, as you know.
That was a crime argument.
And I used the testimony of the Commonwealth
on witness Dr Fife and others, Nurse Duarte I believe
also testified to the effect of him,
and he was on a fentanyl and oxycontin drip.
And both of them testified that
those particular drugs would absolutely result
in confusion, not being able to understand correctly,
not being able to process information.
And I want to distinguish the quote
delirium tests that Nurse Duarte keeps on
talking about that the defendant passed.
Dr Alison Fife, a Commonwealth witness
testified at the motion hearing that those combination
of drugs could cause confusion, foggy brain,
not being able to process information correctly.
So I believe there's a very strong case
for not being voluntary.
The whole time he's hooked up, he can't talk.
His throat was slit.
His wrists were slit.
And Dr Fife testified that in her opinion
this was a very serious suicide attempt.
And the other-- -: Mr Black.
Mr Black, let me turn you to trial issues.
-: Okay.
-: The first is the prejudicial impact
of the drunk driving conviction offense,
where it strikes me that when we're dealing with
a horrendous murder like this, the fact that he was
charged with drunk driving doesn't seem like a big deal.
Can you tell us why your client
would have been prejudiced by the fact
that the jury knows he drinks while he's driving?
-: Well, it does make him seem like,
I mean, I understand the murder case
is a lot more serious, and I know why.
But it also makes him seem like a bad person.
It does.
I mean, he got charged about a week
before this incident with drunk driving and--
-: The judge gave a limited instruction, correct?
-: Yes, he did.
Yes, he did.
Prior, like, you know, a typical
prior bad act instruction, yes.
He did.
Trial counsel objected.
I raised it on appeal.
-: My last question I had-- Black: Go ahead.
-: I'm sorry, did you finish it?
-: Yeah, I finished it, I finished it, go ahead.
-: Okay.
The last question I had Mr Black, on trial matters
had to do with the authentication of the text messages.
Black: Yes. -: Here we have some context
and in particular a vulgar nickname that's repeated.
Does that give us enough comfort
that these are truly his text messages?
-: Well you know, I cited Purdy, as you know,
and this case is a little different than Purdy.
And that would be the argument of the other side
of course, that the phrase and you know what the phrase is
that the phrase establishes enough of a
identification marker that allows that in.
But I think argued that it didn't, it wasn't enough.
The fact that he used that vulgar nickname
or she used the vulgar nickname.
I don't think, I mean, I don't think that that establishes
the authenticity that Purdy requires.
Is that all for you?
-: Those were all the questions I had for you, Mr Black.
-: Thank you, Judge Gaziano, so I,
can I go back to the motion to suppress?
Oh actually I have four minutes left, so I want to say this.
Under 33 E, trial counsel did not, in sentencing,
argue anything about the defendant's mental health history.
Nothing.
And I felt, I mean, Dr Fife testified,
so that's public information.
And that's why I actually cited and quoted for her
because she basically establishes
part of the voluntariness issue.
But if you look at, and I urge you to,
I found a rule eight motion to expand the record to look at
but he was examined probably five times.
And all the times--
-: What's that case order on that Mr Black,
given the mandatory nature of the sentence
and the relative lack of opportunity for advocacy
in these types of proceedings from the defendant.
What have we said about what we expect the defense counsel
to do in the Virta one conviction for sentencing?
-: Well, I mean, when I argue sentencing
I put in every single thing about a defendant's
mental health as possible because I know you reviewed 33 E
and under 33 E you look at the entire record.
And it was important in this case that even though
Dr Fife's testimony was helpful, it was not complete.
And all the medical records that they were given
to the court, so I had a question of whether
I needed to do this or not but they were
never introduced as evidence in any hearing.
So I filed a motion to expand the record,
to include the mental health reports.
And again, there were about four or five of them.
And you all have them, you haven't ruled on the motion,
which I know you don't until after the argument,
but I don't have them, and I don't want
to go into the details with it--
-: So your position is, defense attorney
should take the opportunity in a sentence
and proceed into complete the record for 33 E review.
-: For this court, sure. I always do.
I mean, I always ask after a verdict comes in of guilty
I always ask the trial judge to give me a day or two.
And then in that day or two, I go through everything I can
because if it's not on the record,
you can't analyze 33 E correctly.
I mean, how can you?
So these records will present a full picture
of defendant's mental health history in detail,
including his substance abuse issues
and things of that sort, which came out with Dr Fife.
But I think it's important to see
the full impact of the record.
So just briefly in one minute I say,
the judge relied heavily on that he had no
reasonable expectation of protection of privacy in his room.
And then basically didn't decide anything else
like the voluntariness issue and things of that sort
because once you don't have a reasonable
expectation of privacy, there's no search,
there's no seizure, there's nothing.
And I, you know, I argued and we already talked about it
is that I think that that was wrong
and he did have a reasonable expectation of privacy.
And I think his statements were not voluntary.
And I personally will push back again
about the statement that he was free to leave.
I mean, I just can't imagine the situation
that this defendant in this particular circumstance
and I understand it's subjective, was free to leave.
He couldn't even talk.
He didn't want to talk to the police until he could speak.
So he started writing things.
And the police kept on coming back, leaving and coming back,
leaving, after he asserted this like three times.
Judge: Okay, does anybody have any further questions?
Thank you so much, Attorney Black.
-: Thank you very much, Your Honor.
Judge: Okay, Attorney Von Flatern.
-: Good morning, Chief Justice, and members of the court.
Cynthia Von Flatern, assistant district
attorney for the Commonwealth.
Sitting with me, though not in the courtroom
is trial 88, Jeremy Bucci, our chief trial counsel.
With respect to number one, the Commonwealth would submit
that the defendant did not convey
a subjective expectation of privacy in his room
and more particularly in the notes that were,
that he used to communicate with the medical staff
and then with the police department.
I find it a little bit difficult to conceptualize.
It's not just about the privacy of the hospital room,
but what what were the fruits of what
came out of that hospital room.
And the police applied for a search warrant
for the defendant's clothes that were in that room
for a search warrant for the defendant's blood
and for his urine, they applied for a search warrant
for the items that were found in the victim's apartment.
So what we are left with where are the communications
and as Justice Kinder found, the defendant hadn't,
did not convey a subjective expectation of privacy,
he was seeking to communicate first with his medical staff,
and there were only four statements.
Justice Kinder had looked at a lot of statements,
the testimony was for other statements that were conveyed
to medical personnel and police, but what was introduced
into evidence were just four statements
written down to Nurse Wallace.
With respect to the communications, to the police.
Again, those were rather salient communications
that were entered into evidence.
The first were the defendant's
communications to trooper McMillan.
Trooper McMillan was assigned to come
to the hospital after the defendant
had been brought there and had had surgery.
And he was one of the troopers that
when the defendant was unconscious
he was in the room with the defendant.
And then the police moved to the hall.
They were not in the defendant's room.
But the defendant was, as conveyed by the
in the notes to Nurse Wallace,
he was aware that they were there.
So he asks a nurse, the defendant asked a nurse
to get trooper McMillan and then he writes a note
to trooper McMillan about his landlord
and about being behind on the rent
and saying he had money to pay.
So he actually sought out the trooper
and wanted to convey to him.
The most of the testimony--
-: You addressed the custody analysis.
that seems a little tricky, the custody.
I mean, he knows there, you know, he's been,
he knows his girlfriend has got her slit throat slit.
He knows there's police sitting
outside of his hospital room, sort of 24 seven.
I understand them telling him he's free to leave
but he obviously knows he can't go anywhere.
So I'm just curious about the custody analysis.
That seems a little more difficult
than some of these other issues.
-: Well, the defendant has, I think, conveyed
that he understands that he may be considered a suspect
and he is aware that police were there
which goes again to, he's not confused.
He knows his situation, but the police have not
conveyed to him that they consider a suspect.
And--
-: Well, when the police sit outside your hospital room
nonstop, right, he's aware that there are
police officers constantly there, right.
-: I would say that he's conveyed that he knows that.
-: And he knows what, he knows why they're there
because he's explained that he knows
his girlfriend's on the ground.
He's found her with her throat slit.
-: Yeah, well he has information because of what he did, so.
But they haven't, what they say can't--
-: We also know he's conveyed that information, that he's--
-: He has said, he has said, he said
what are the police here, why is the police officer here?
And he says--
-: He's also asked the nurse if
his girlfriend's still alive, right?
-: Yes. Yes.
So he's aware of his situation, which I think also goes
to voluntariness of his statements, but he's--
-: I'm not worried about the voluntariness
so much as the custody analysis.
-: Right.
So when the police are there, they don't engage
in any conversation with him until he has this conversation
with trooper McMillan, McMillan says I'll,
he comes back and gives him a card, he says,
I'll see what I can do, I don't know if I can do anything.
And then trooper Riley is the lead officer
And he goes to the defendant and the defendant says,
you know, he says, how are you--
-: Just follow up on Justice Catheter's question,
I mean, if I'm in a hospital room and capacitated
and there's police outside the door 24 seven,
the doors open, albeit, but I can't move
because I'm incapacitated but the police are there 24 seven,
I think I might feel that I'm not free to leave.
Why else were the police there?
-: Well, I think the question is whether he was free
to terminate the questioning with the police.
So he is confined by his own circumstances,
by his medical circumstances--
-: Well, and the presence of the police
outside the door, right.
-: And he has the ability to tell them,
and in fact, ultimately does tell them
he doesn't want to talk to them anymore,
that's how that conversation ends,
that doesn't come in at trial, but he ends the conversation.
And when trooper Riley first needs him, he says
this is trooper Darling, we're going to dinner.
If you want to talk to him, you could talk to him
or let him let him know, and that's when the defendant says,
I can't talk, one more day until I can talk.
So the Commonwealth submits, I mean,
that's telling about his medical situation,
it's conveying a fact of what his medical situation is,
not that he doesn't want to speak with him.
-: So are you saying that in context of being at a hospital,
free to leave does not mean you're intubated
and you're in the ICU, free to leave doesn't mean, okay,
I can walk out the front door of the hospital.
Free to leave in that context means I am free
to leave the circumstances that allow the police
to be able to interrogate. -: Correct.
The police did not construct the circumstances
that the defendant faced, yes they were there,
but they conveyed to him several times
that he could ask them to leave.
-: Right, because it's just the scepter alluded to
we all understand, he's not free
to call a cab and leave the hospital.
But the question is when we look at
the non-exclusive Brian factors,
whether free to leave in this context means free to leave
the circumstances that would allow interrogation.
-: Correct, and I think that's also buttressed by the fact
that the tone of the interview is cordial,
and also the hospital room itself, it's a bustling place.
you know, they didn't take him to another room,
I mean, they could have done that, I suppose
but they haven't done that, it's still a bustling place.
It's not a private place where, you know,
where you often know that interrogation would take place
with four walls closing in the police with the defendant
that was not the case in this situation.
-: Are you aware of any cases that deal with HIPAA
and how that interacts with somebody's
reasonable expectations of privacy in a hospital?
-: Well, I think under HIPAA, Your Honor,
the medical information, a patient can expect
that his medical information is between
medical personnel and the patient is private.
What he, in terms of most of the information
that he conveyed was not a medical information,
there might've been a little bit about, you know,
was he coughing or something like that,
but most of the communications that he made were
is my girlfriend okay, can I talk,
what is the police officer doing.
It was not health information.
-: By the way, is there an express
exception on HIPAA for criminal stuff?
Does it include an express exception?
-: You wrote in your brief, it's never been found
to be grounds for suppression, right,
there's no private right of action.
-: There are no grounds for suppression
in the two cases cited by Judge Kinder,
the senior case, it is a case out of the ninth circuit.
And--
-: Because there is medical information.
Because there is medical information communicated.
I mean, they tell the police the results of his--
the kind of competency questioning they're asking,
how delusional is he, right, they give the police.
So there is some communication of medical information.
Which may not be covered by HIPAA,
but there is some communication there, right.
-: I would submit in terms of the cases have been
pretty unanimous and I would say to the case
cited by Judge Kinder which is United States versus strike
which is a ninth circuit case, five 60 F 3rd,
where they found it, there's no exclusionary provision
or violation of HIPAA and also senior,
which says a breach of patient doctor confidentiality
would not result in suppression.
Here, the information, here the notes that were, again,
the notes that were taken by Nurse Wallace
and given to police were there was nothing,
it was not a serious matter, they were mostly
cumulative and they were not inculpatory
but they did set the scene for the defendant situation.
So I would not say if there were a case
and there may be sometime, where there could be an exclusion
based on HIPAA that this would not be the case at all.
The case, decided by my brother having to do with,
well, when you have a statutory violation,
you could have exclusion, those had to do with
chapter 276, section one violations
and would be not applicable on the HIPAA issue.
And I would say that the cases nationally I have not seen
where HIPAA violation would result in exclusion.
With respect to the prior bad act,
I did just want to correct.
There was the prior bad act of the OUI
and the judge gave a final instruction
on how to use prior bad acts and also did give one
contemporaneous with respect to this
altercation that had occurred at work.
There was testimony about that altercation
and there was a contemporaneous instruction then
but the judge later struck that testimony
because it didn't it didn't quite match up
and it really kind of put the defendant in a good light
as to what had happened at work, there was no testimony
that he had been an aggressor at work,
it looked more like he was trying to be the peacemaker.
So, but there wasn't instruction on the OUI
contemporaneously and in the final instruction.
With regard to text messaging the standard is
preponderance of the evidence to show that's
a standard for finding authentication
and here the Commonwealth would submit
there was extremely strong evidence of authentication
starting with the password protected nature of the phones.
And so that would make it more in the party line where
you have a computer with a hard drive password
protected, here you have a phone,
and there was testimony about how that the passwords
had to be broken with technology to
be able to even get into the phone.
And then the text messages, just so convey
the close relationship between the defendant and the victim
the everyday relationship and all of these conversations
that they have with one another, so.
I think of a fact finder and the judge escaped
gatekeeper would be left with, feeling very strong evidence
that there was an authentication of these texts.
-: Did the text messages reference the OUI
or the verbal or physical disagreement at place?
-: They did Your Honor, because a lot of,
and there was only a limited amount of text messages came in
only going back to about February 10th
and the murder happened in the early morning hours
of February 20th, but a lot of what was going on
on the 15th of February after the defendant's OUI
was her arranging to pick him up from court
because he has no car and he has no money
to get his car out of storage.
And so there were text messages about that.
And then before that, the defendant is very tense
and very aggravated with the victim because of the situation
at work where he was let go at work
due to disagreements at work and she in fact
still works there so he's extremely mad about people
at work, and then that frustration flows over to her.
And so it really--
-: As the jury learned, even though a small percentage
of text messages were put in, did they learn
about the volume of text messages between the two?
-: There was testimony that the defendant had
7,600 text messages in his phone and about 6,900 I think
were between him and the victim.
So, but again, only 10 days worth
were introduced into evidence.
Fair enough for the questions?
-: Thank you so much, counsel.