Clerk: SJC-11930, Commonwealth V. Mateo Trato.
-: Okay. Mr. Shaw.
-: Chief Justice Budd, and may it please the Court,
my name is Robert Shaw.
I'm privileged to appear today on behalf of Mateo Trato.
My intention this morning is to begin
with the felony murder sufficiency issues,
and then to reach as many additional issues as I can
starting with those that are most closely related
to sufficiency.
As a basic backdrop,
the Commonwealth concedes that the first degree
felony murder judgment in this case cannot stand.
And so the question before the Court is whether there is
legally sufficient evidence of second degree
felony murder with non-aggravated kidnapping
as the predicate.
If the evidence is deemed sufficient by the Court,
the issue becomes whether Mr. Trato receives a new trial,
or as the Commonwealth desires,
a reduction to second degree felony murder.
Now, with respect to the issue of sufficiency,
there are multiple reasons why the evidence in this case
does not sustain a felony murder judgment
and this morning I will focus on two.
First, there is simply no evidence in this case
that establishes a kidnapping.
There's no mystery about how Kevin Harkins left
Suney's Pub on February 15th, 1994.
It was observed by four witnesses.
Three of those witnesses-
-: Could you address the Carlo statement please
and how that relates to sufficiency?
-: Yes. Well, Carlo ...
First off, we think there are a number of problems
as indicated in the brief.
-: Right, well, assume just for the sake of my question,
you can maybe get to it if you want later on,
that Carlo's, the judge's ruling on feigning memory loss
was invalid, you know,
assume that was a proper ruling for now, for these purposes.
So say we disagree with you on that
and Carlo's statement properly was admitted
for its substantive purposes.
How does that relate to your sufficiency argument
on non-aggravated kidnapping, please?
-: Well, Carlo's statement does not establish
that there was a kidnapping.
Even if we accept Carlo's statement,
what it says is that Harkins was picked up from Suney's
and that's all it says.
And the issue here-
-: They held a gun on him in a car.
-: Well, Carlo's statement, doesn't actually say that.
What Carlo's statement says is
that they picked him up from Suney.
So it doesn't establish a kidnapping at Suney's.
And that is the only conduct in this case
that could have comprised a kidnapping is
what happened at Suney's.
And then it says that there was an accidental discharge
that shot Harkins.
That's all his statement says? -: But it was a beef.
He was picked up at Suney's.
They started beating him off, beating him up.
They had a gun out and it went off and-
-: No, no, Your Honor.
No, Your Honor.
And that's a very important distinction.
You're confusing this case and the evidence in this case
with the evidence in the Sammia and Fredette cases.
-: I'm looking at the Grand Jury.
He stated that the defendant told him he had a beef
with Harkins for setting up Fredette,
picked him up at Suney's,
started to beat him up but the gun went off accidentally
and he shot Mr. Harkins before he wanted to.
Was that the evidence?
-: I do not recall Carlo saying anything
about beating him up.
And I don't believe that came in at the trial.
I think this-
-: I'll look at it more carefully.
Robert: Okay, but-
-: We got to look at it anyway, but please continue.
-: Yeah, but so in any event,
the point being is that this...
what this concerns is whether there is a kidnapping.
And the fact is that the evidence
doesn't establish a kidnapping.
The only judgment here is a felony murder judgment.
-: What about all the evidence about, you know,
leaving the lucky Celtics jacket behind
and the cigarettes and the like?
-: Your Honor, the fact is is that when they left Suney's,
if we assume that it was Mr. Trato who motioned him,
no one observed force, no one observed threats,
no one observed a weapon of any kind.
There was no confinement, no imprisonment,
no restraint, no lack of consent.
None of this was observed by any of these witnesses.
-: Can you forcibly confine someone, if you pick them up
and then take them for a ride and it gets violent
and they're still in a vehicle?
Is that a kidnapping?
-: Your Honor, again, I'm somewhat confused
by the line of questioning
because in this case, they're leaving Suney's
but there is no evidence of what happens in a car
after they leave Suney's apart from Carlo's statement
that there was an accidental discharge of a firearm.
If we accept those as that evidence is coming in.
There is no evidence in this case
about what happened after they left Suney's.
And I think it's important to note
that the government's case here,
their focus during trial and their theory is
that there is a kidnapping that occurs at Suney's.
That is where the kidnapping occurs.
Any notion that he was detained later,
we don't know what happened in the car later.
And it's important not to confuse that
with the Sammia and Fredette cases.
-: Could you answer my question?
Can you have a kidnapping if I asked you,
"Hey, let's go for a ride. Let's go around Boston,"
and then I pull out a gun and things get ugly after that
and you're confined in the car.
That could be a kidnapping, correct?
-: Oh, sure. I think that that could be a kidnapping.
I think that that's why there was perhaps sufficient
evidence of a kidnapping in the Sammia and Fredette cases
because they brought in different evidence
about what happened in that car.
In this case, we don't have evidence
of what happened in that car.
-: Okay. I'll ask Ms. Lazar the same questions
and I take you at your word as far as the evidence goes.
Please continue.
-: So the other thing is that if we assume
for purposes of discussion,
that the elements for a kidnapping were met in this case,
there was insufficient evidence that it was committed
with conscious disregard for the risk to human life.
And again, the only evidence presented in this case
that could have comprised a kidnapping
was what happened at Suney's.
And there's nothing that happened at Suney's
that would've met the element of conscious disregard
for the risk to human life.
And I think it's important-
-: Maybe, so you keep on saying that the kidnapping had
to happen at Suney's,
so if the kidnapping happens at Suney's
but then someone produces a gun in the vehicle,
isn't that a conscious disregard of human life
to have a gun waved at somebody?
-: Well, I think the problem in this...
Well, gun waved at somebody.
I don't recall any evidence of waving a gun at anybody.
-: The Carlo statement.
You know, the gun just goes off and then he's dead.
So isn't that having a loaded gun in a vehicle
and taking the gun out, wouldn't you say
that's conscious disregard of human life.
-: Well, in my view, Your Honor, of the evidence,
I don't think there is sufficient information
about what happened in that car.
We don't know what happened in that car
or what evidence led to a gun's accidental discharge
in the words of Anthony Carlo.
-: Is there any import to the jury's decision
that there was an aggravated kidnapping?
-: Well, I think the important aspect of that is
that the aggravated kidnapping was grounded in the assertion
that when Trato walked out in what appeared
to be a voluntary way, according to all observers,
out of Suney's, he had a gun.
And that's an unfounded assumption
that simply can't be sustained on this evidence.
And so, I think that's what the jury focused on
and that's why they found it.
And I think that can't be sustained.
-: You're right. Where did they get that evidence, Mr. Shaw?
-: Well, I think they probably got it from...
It was what the prosecutor asserted.
That when they left Suney's, Harkins left Suney's
because there was a gun.
-: Okay.
Was it an objection that trial by very competent lawyer,
that that misstated the evidence?
-: Well, I think that he was arguing
that there wasn't sufficient evidence
that there was a kidnapping and that there wasn't force.
And I think that what the government did is they wanted
to say there is force.
He probably had a gun when he walked out
and that's why Harkins went out,
not withstanding the fact that it didn't look like
there was any explicit force by Trato.
-: So you're saying that's pure speculation.
-: Well, what's the basis that he used a gun
to get Harkins out of Suney's?
I just don't think that it's there in the evidence.
And whatever happened later in the car,
we don't know when that happened.
I mean, how many hours was it later?
I mean, they were stopped four hours later.
I mean, there's just a real gap in the evidence
in terms of what actually happened and when it happened.
The evidence just doesn't really address that.
And on the issue of conscious disregard,
I think contrary to the Commonwealth assertions,
I don't think it's appropriate for the Court
to presume the government's theorized end result
about how this happened.
And then look back at what happened at Suney's
and say that therefore there was conscious disregard.
And I think that's what the Commonwealth
is asking the Court to do.
Now, in terms of reducing the verdict
or granting a new trial,
even if we assume for purposes of discussion,
that there was sufficient evidence
of non-aggravated kidnapping and conscious disregard,
a reduction to second degree murder
as the Commonwealth desires
would not be appropriate in this case.
And that's because again,
we have no assurance that the jury reached
the essential elements of non-aggravated kidnapping.
And again, as we've discussed
where the jury found aggravated kidnapping
based upon this assertion that there was a gun involved
when they left Suney's, they would not have had to reach
and would not have reached the elements
of non-aggravated kidnapping. -: Counsel, as you phrase it.
Excuse me, as you phrase it, non-aggravated kidnapping,
is that really just kidnapping?
-: Yes, Your Honor. I think that this is kidnapping.
-: Okay. And so is kidnapping a lesser included
of aggravated kidnapping?
-: Well, aggravated requires a gun
and yes, I think it would be a lesser included.
And again, it would be a lesser included,
but if they found aggravated kidnapping
based upon the notion that there was a gun involved,
they would not have reached the elements
of non-aggravated kidnapping.
And Your Honor, one point I should probably correct myself.
I think that it is not necessarily a lesser included
because- -: Oh yeah.
I guess you're gonna explain that,
because that makes absolute sense
to me if it's a lesser included.
-: Right, because we have the element of conscious disregard
for the risk to human life.
-: That takes into account, obviously, the felony murder.
-: Right. And that's right.
So it is a lesser included, but in this case,
because we're dealing with a felony murder judgment
and nothing else, then it's not lesser included.
And that's why they would not have reached that element.
-: Well, it's a different element they have
to satisfy for felony murder.
-: That's correct. That's correct.
And so I think we can also look at this
and say that even if they did reach those elements,
the judge's incorrect instruction, obviated any evaluation
of conscious disregard for the risk to human life
because the judge told the jury that they could find
that a non-aggravated kidnapping was inherently dangerous.
And then he actually in the same instruction said
that it was inherently dangerous through his instruction.
So again, that's another reason that the jury
would not have reached non-aggravated kidnapping
as the predicate.
-: Did he instruct it was inherently dangerous or did he say,
you have to find it was inherently dangerous
because he inappropriately...
When it's inherently dangerous as you argue
and as you all know, the judges just says,
I'll tell you armed robbery, that's the classic,
is inherently dangerous and you take that away
from the jury.
Here, the inherently dangerous doesn't come in
but the judge improperly instructs
you can either find conscious disregard
or inherent dangerousness, correct?
So he didn't tell them they had to do that.
He gave it to them as an option.
-: Well, Your Honor, he did two things.
First, as you indicate, he gave an instruction
which gave them the alternative.
You can find it inherently dangerous.
Then later on, he says that all the elements
are the same as for first degree felony murder,
which in essence, as I indicate in my brief,
if those elements were the same,
then it was inherently dangerous.
So by his referring to his instruction on first degree
felony murder, he's actually telling the jury
that this is an inherently dangerous felony.
And so in fact, he was doing both.
-: Okay. All right, I understand.
-: He was doing both and it was contradictory.
In addition to that, the judge omitted the instruction
requiring the element of intent to secretly confine
or imprison when leaving Suney's.
And that was obviously of great import because in this case,
we have the Commonwealth who was relegated
to asserting essentially that this was forced
because there was subjective fear within Harkins.
Now closely related to the issues of sufficiency
is the delayed return of death issue.
And I say closely related
because death is an essential element
and it was disputed in this case throughout the trial.
And as the Court knows, in this case,
we do not have the evidence of a body.
We don't have direct evidence of an event causing death
and we don't have any forensics.
And there are two problems that arise.
The first is that we have what appears to be a calculated,
unfair surprise in the middle of trial
and in front of the jury.
The prosecution having completely failed
to disclose the delayed return of death
to the defense at all.
And then the second problem is the government
is presenting a piece of paper certifying
that Harkins is dead without presenting a witness
in violation of Mr. Trato's confrontation rights.
And this piece of paper represented the outcome
of another legal proceeding that Mr. Trato had no notice of
and had no participation in.
And I think it's noteworthy that contrary
to the Commonwealth assertions.
this was not a certificate of death
that was created in compliance with chapter 46, section 19,
based upon the personal knowledge of somebody
who was directly involved, such as a medical examiner.
And it wasn't something that was recorded
by an authorized individual under chapter 46, section 9.
And I think the unfair prejudice here is quite obvious.
By admitting this, it's telling the jury
that another court of law determined that yes,
Mr. Harkins is dead and the Commonwealth has met its burden.
The same issue, the disputed issue concerning death
also arises relative
to the fusion center database testimony.
-: Wait, was that in response to Bowden challenges, Mr. Shaw?
-: The fusion center testimony?
-: Right, that's what did you do
and this is what we did type evidence.
-: Your honor, I do believe that that's the reason
that the judge allowed it in,
but I don't believe that there was a valid basis
to let it in under Bowden.
I do not believe,
and I don't believe that the record establishes,
that this was admitted because the Commonwealth wanted
to address how investigators made certain decisions
about the case.
I think that that doesn't even make any sense at all.
And in fact, if you look Commonwealth v.-
-: Was that... I'm sorry, I forget from the record,
was that subject to an objection, Mr. Shaw?
And if so, did the judge make a ruling
that it was properly admitted to rebut a Bowden argument?
-: Yes, the judge did and I believe it was objected to,
and that was the basis that the judge allowed it in.
My recollection of the record is that it,
this really was sort of coming from the judge
even more than the Commonwealth,
but I don't think there was a proper basis to let it in
for that reason.
And I don't think it was limited.
And Ms. Nystrom, she's an employee of the state police.
She is assisting with the criminal investigation
on behalf of the prosecution.
She testified about database searches
that she didn't conduct and results that she didn't acquire.
She said somebody else in her agency did.
And none of this was the product of documentation that was
provided to the defense.
So we don't have any meaningful information
about these undisclosed databases
or the third parties that ran and maintain them.
And then we actually have Ms. Nystrom who was testifying
about internet searches that were conducted.
And so I think the issue here is that really is a violation
of the right of confrontation.
The materials that she relied on for her testimony
really insulated her testimony and made it untouchable.
There was no way to probe it. There was no way to get at it.
If there's no questions on that,
moving on to the hearsay statements of Mr. Harkins.
These obviously played a significant role
in the case relative to the issues of force.
And I think the first problem we have
with all of these statements that came in
is that the judge did not always provide
a contemporaneous instruction.
And when he did, he told the jury
that they could use the statements,
not only for Harkins' state of mind,
but on the issue of force.
-: This is under that whole very tricky McGraw exception,
correct? -: That's correct.
-: Where you have to prove the defendant
would have known about it.
Did the judge take that into account
and make those findings?
-: I don't believe he did, Your Honor.
I don't believe he took it into account at all.
That's my recollection of the record.
And I think the other problem that we have
in addition to not offering contemporaneous
limiting instructions is that the judge never told the jury
that they could not consider the truth of the matter
contained in the statements.
So in effect, what this instruction was saying
is that you can use the fact that of these statements
and their content, but you just need to limit it
to these two issues,
which are state of mind and the issue of force.
And so that was extremely prejudicial
because of the statements that came in.
And that leads to the third point,
which is that the unfair prejudice clearly outweighed
probative value here.
Even if we assume that Harkin's state of mind
was relevant and admissible,
at most, that should have resulted in general observations
that he was afraid and that perhaps he said so,
but in that general form,
it should have been strictly limited to his state of mind
and nothing more.
But what happened is that the judge allowed in
an excessive number of statements
that included Harkin's belief that Trato
was going to kill him.
Trato was gonna come after him.
Trato was-
-: Were any of these known by the defendant?
-: No, I don't believe that any of these were known
by the defendant at all.
You know, he was even saying that Trato is...
there were even statements about Trato being crazy
and he'll kill people.
So when you look at the McGraw case
and you look at the Sire case,
I think that both of those cases were homicide cases
where the Court reversed the judgments.
And I think that the statements in this case are far worse.
I also think it's noteworthy that there were statements
about Harkin's going to testify falsely
in the Fredette matter
and to say that he was the informant and he lied.
And I think that that entire scheme was grounded entirely
in these statements.
-: Attorney Shaw, I'm going to ask you to wrap it up.
I know there's a lot of issues in this case,
but if you want to just take a minute or two to wrap up.
-: Sure.
I think I'll just wrap up by addressing the Carlo statement
because that's something that Justice Gaziano
was interested in.
And what I would ask the Court to do is look closely
at the issue involving the prosecutor
eliciting Detective Sergeant...
from Detective Sergeant these alleged testimonial statements
from Carlo.
-: From your brief, you want us to look at the Grand Jury
transcript to see if they were just
one word affirmations, correct?
That's the- -: Right.
Right, Your Honor.
So I think that they're issues about the Grand Jury,
the Grand Jury testimony, leading questions
and coercion and so forth.
-: Because the judge made findings.
I think they were well supported
about feigning lack of memory.
You have a tough road to haul on those on those grounds,
but a good argument, I think on whether or not
the Grand Jury was as fulsome as it need be.
-: Right, and I think that if the Court would look...
Those are the first sets of issues,
but then there's this second issue,
which I would ask the Court to really focus on,
which I think is most significant
and that is the prosecutor eliciting from Detective Sergeant
alleged testimonial statements from Carlo
to other detectives.
And then eliciting the fact that all of the questions asked
of Sergeant when interviewing Trato were based
on those statements.
And I think that that was clearly error.
And the reason it was so significant in this case is
that the prosecutor did it in order
to rehabilitate Carlo's testimony.
Because I think Carlo's testimony before the Grand Jury
and his testimony at trial needed to be...
It was challenged competently.
I don't think it was very persuasive.
And so eliciting these additional testimonial statements
was highly prejudicial to Mr. Trato
and I think clearly improper.
-: Thank you. -: Thank you.
-: Attorney Lazar.
-: Thank you. Good morning.
Ellyn Lazar for the Commonwealth.
As the defendant noted, the Commonwealth concedes
that the first degree murder conviction cannot stand
because the predicate felony of aggravated kidnapping
did not exist at the time of the crime.
And so the Commonwealth asks the Court
to reduce the conviction to second degree murder.
It's the Commonwealth position that the record supports
a second degree felony murder conviction.
Given the verdict at the defendant's trial,
the jury necessarily determined
that the defendant kidnapped the victim
and that the victim's death occurred during the commission-
-: I have a few issues to discuss, Ms. Lazar.
First is the McGraw issues.
-: Yes.
-: Were the necessary findings made,
'cause that's a very complicated area of our law
that allows prejudicial information to come in.
And it's cabinet, of course, as you know, in McGraw.
Were all those necessary findings made by the judge
that the defendant knew about the statements
or likely knew about the statements?
-: Well, Your Honor, I actually disagree
that that's necessary under the McGraw line of cases.
-: I was going to ask if I've got that right as well.
-: Yes, I don't believe so.
I think there are sort of two lines of cases
about when statements expressing fear are allowed
to be admitted.
Under one of those lines of cases
there's a requirement that the defendant knew about
how the victim felt or what the victim might have said,
and that- -: Classic, I'm gonna leave him
and then the husband knows about it.
-: Right, such that the defendant would have acted
on those words. -: Right.
-: And under the McGraw line of cases,
there's actually not a requirement that the defendant knew
about the statements and would have acted on them.
Instead, under McGraw it's that the defendant sort of opens
the door to statements made by the victim.
If the defendant claims that the victim would have
voluntarily been alone with the defendant
or other circumstances, if the defendant,
let's say claims that the victim committed suicide,
but obviously that doesn't apply here.
So here, the statements were admitted
because the defendant claimed
that the victim voluntarily went
with the three co-defendants to the car.
And so the statements were admitted
with an explicit limitation that they were only relevant
to the victim's state of mind as it pertained
to the issues of force and whether-
-: So to rebut that they were all good friends.
You were able to put in victims statements,
prior statements, that he was afraid of defendant.
-: Right, to rebut that he voluntarily entered the car.
And the judge very explicitly limited the statements
both at the time that they were admitted.
I think he gave at least four contemporaneous limiting
instructions, and then he also gave them (indistinct)
in the final jury charge saying you have heard statements
that Kevin Harkins expressed fear.
You know, obviously that's a summation of what he said,
but that those statements are strictly limited
to your consideration as to what the victim's
state of mind was as it pertains to the issue
of whether he voluntarily entered the car
and that you may not use those statements
for any other purpose.
-: Can you clarify for me what exactly the testimony was
of Mr. Carlo, admitted substantively
as far as a gun, no gun, in the car?
-: Yes.
I think it's transcripts six, I believe pages 80 to 85
is the testimony that was admitted substantively
after the voir dire and after judge (indistinct).
And I don't believe that within that testimony
there was anything about a beating occurring.
I believe that he said -
-: That was in the other cases, hey?
I'm confusing that?
-: Well, that was definitely in the other case.
And then I was trying to recall
but I can't recall right now,
whether it may have come out earlier in this trial
during the initial questioning of Mr. Carlo,
when he was essentially a hostile witness
and the judge was allowing the prosecutor to lead him.
But the part that came in substantively
after the judge made his findings
was that the defendant said that they had a beef
with Harkins because he had set up John Fredette,
that they picked him up at Suney's
along with Fredette and Sammia, and that the defendant said
that the gun went off and he shot Harkins
before he wanted to.
And that it went off accidentally while he was holding it.
And that when it went off, blood went everywhere.
-: Okay, so that leads to what Mr. Shaw argues,
it was insufficient evidence of a kidnap.
And where do we get evidence of either kidnapping
or conscious disregard?
-: I think that the evidence was sufficient
to support kidnapping
and that the victim was forcibly confined or imprisoned
by the defendants against his will.
Frank: When?
-: The jury heard from multiple witnesses
that the victim was-
-: No, when did that happen?
-: When did they hear this?
-: No, I'm sorry. When was he forcibly confined?
-: Oh, I believe when he was actually led out of the bar,
across the street with the defendant walking,
what was described as six inches behind him.
And then the victim went to get in the backseat of the car
and was essentially ushered into the front seat of the car
by the defendant who then the victim gets in the car
and the defendant gets in right beside him.
So now the victim is sitting between two
of the co-defendants in the front seat of the car.
And then in addition, there was this evidence
that the defendant had a gun at some point
during all of these events,
which went off before he intended it to.
-: Where do you get that evidence? From Carlo?
-: Yes. Yes.
That's from the statement that he made to Carlo.
And there was also evidence that Sammia's girlfriend
testified that he always carried a gun except
when he was at family events.
And in addition to that, several hours later,
when Sammia and Fredette are stopped in Sammia's car,
there's blood in the car, on the seat, on the floor,
on the door jam, and then on the back of Fredette's coat
and the front of his shirt.
So all of this evidence taken together,
it's the Commonwealth's position supports a finding
of kidnapping and also supports a finding
that the crime was committed with conscious disregard
for the risk of human life.
That these three co-defendants kidnapped the victim
with a gun in this small confined space,
having this motive or this anger towards him,
as he described it a beef,
and I would point the Court's attention
to Commonwealth versus Ortiz,
which is a case where the Court found that a kidnapping,
or a crime was committed with conscious disregard
for human life where the defendants drove around in a car
with a loaded gun, looking for a person
that they had a long standing feud with.
So in this case where the jury found that they,
defendants kidnapped the victim,
three of them in a car with a gun
and again, blood in the car found later,
and the jury did also find
that they committed serious bodily injury upon the victim,
that all of this supports a finding of conscious disregard
to human life.
As to-
-: I'm sorry. That might be all questions I have for now.
-: Okay.
As to the delayed return of death certificate,
the trial judge correctly exercised his discretion
to admit the certificate under chapter 46, section 19,
which provides that the record of the town clerk relative
to a birth, marriage, or death
shall be primal facia evidence and shall be admissible.
This was a record of a town clerk relative to a death.
It fit the precise terms of the statute.
The judge offered to redact out any of the information
on the certificate if the defendant wanted them to,
offered to give an instruction.
The defendant-
-: We used to, as you well know, have a statute
that allow for the admission of drug certificates,
and then the Supreme Court told us in Melendez-Diaz
that it was unconstitutional.
What do you say about that?
-: I wouldn't say that those certificates were testimonial
because they were explicitly created
for the purpose of the litigation.
Whereas this certificate was not created
for the purpose of this trial.
This is more akin to a death certificate.
It showed that someone died.
It's true that it was issued seven years later
after a probate court proceeding,
but it was not created for the purpose of this trial.
And as a more traditional public record,
it's the Commonwealth's position
that it was not testimonial.
I would also argue that if the Court were to find
that there was any error in admitting that certificate,
it was harmless because the evidence that the victim died
on the night that he was last seen with the defendants
was really overwhelming.
At least nine witnesses who were close to the victim,
friends and family and his employer never saw him again
after the moment that he walked out the door
with the defendant.
He left all of his belongings on the bar.
You know, half a beer, his pack of cigarettes,
his favorite coat, his keys to his apartment,
suggesting that he believed he would be coming back.
The defendant, again, admitted to having shot the victim
and dumped his body
and Sammia and Fredette were stopped a few hours later
with blood on them and in their car.
That car was destroyed later on the very same day,
even though Sammia had only bought it
a couple of months before.
And in addition, in the defendant's statement to the police,
he claimed essentially not to have even known the victim
and said, "Oh, what was his name, Hawkins?"
And he also said that he really didn't frequent Suney's Pub.
And there was evidence from multiple witnesses that he used
to see the victim approximately twice a week
so the victim could buy drugs from him
and that he was in Suney's, you know, all the time.
So the jury could have considered that too
as consciousness of guilt.
-: But on the feigned memory issue, on Mr. Carlo-
-: Yes.
-: There's a lot of one-word answers
in the Grand Jury, correct?
Isn't that a problem for you?
-: I don't believe that they're actually were
one-word answers, Your Honor.
First, Judge Tucker clearly was aware
of the requirement that the answer's not simply be agreement
with a leading question by the prosecutor.
And he did admit the testimony with that caveat.
And the judge noted that there may be situations
where a leading question was asked
where the witness said yes or no,
but then there was sort of a followup
where the witness then more fleshed out the answer.
And so if you look at the questions and answers
that were admitted, which were chosen carefully,
the prosecutor didn't just go through all of the testimony.
He went from line this to line that.
There were places where he may have said to Mr. Carlo,
"Isn't it true you said this,"
and Mr. Carlo might've said,
"Well, something along those lines."
And so the prosecutor says,
"Well, okay, so what do you mean by that
if you didn't say exactly that?"
And Carlo says, "Well, what I said was..."
So if you look at all of it in combination,
it is in Carlo's own words, even if the initial question
is sort of a predicate,
that Carlo later fleshes it out in his own words.
If the Court has no further questions,
I would just rest on my brief.
-: Thank you very much, Counsel.
Ellyn: Thank you.