-: SJC 12023, Commonwealth versus Elias Samia.
(faintly whispering)
Justice Lowy: Unless it comes up in your case.
-: I would think, I would think that wouldn't.
Justice Lowy: Yeah.
Justice Georges: It's interesting
that she cited Fredette.
(faintly whispering)
Justice Lowy: While keeping the two cases separate.
Justice Georges: Yep.
Justice: Okay, Attorney Shea, whenever you're ready.
-: (clears throat) Good morning, Your Honors,
Richard Shea for the defendant, Elias Samia.
I, as the court's aware, there have been three defendants
in this case, each tried separately,
and two of them have had their cases
subject to appellant review.
One of the issues that was common to all of them
is the first issue in my brief,
which is that the admission, over objection,
of testimony by five witnesses
that Kevin Harkins, the victim,
made statements in which he expressed mortal fear
of the co-defendants Fredette and Trotto.
This court and Trotto rejected the challenge to that,
saying it was a close question,
but it was not an abuse of discretion
for the court to admit similar testimony,
it wasn't the same testimony,
it was the gist of the testimony by different witnesses.
The argument I make is based on a number of factors.
One is a major factor, a fact difference
is that there was a witness in the Fredette and Trotto cases
who, he was a roommate of the deceased,
and he testified that there was a car
parked outside Suney's pub,
and observed Trotto escorting Mr Harkins into the car,
and in this case, there was no such testimony,
because the witness was gravely ill in the hospital
and not available to testify,
so what's known is that the bartender, Fourier,
in a fairly brief testimony in this case,
described how at about 10.30 at night,
Harkins was in the bar, drinking, smoking cigarettes,
playing pinball, I believe,
and they were watching the basketball game.
Then Trotto appeared at the front door,
looked in through the glass window of the door,
and stepped inside and made a gesture,
a crooked finger, "come outside",
and Harkins left all his belongings at the bar
and went outside, and he was not seen again.
The testimony by the bartender
did not include anything potentially malevolent
about the way Trotto was acting,
or fearful of the way that Harkins reacted.
He simply went outside.
The judge- -: Mr Shea,
the state of mind evidence is still relevant.
I get your take on this,
that it's a different factual predicate-
Mr Shea: Yes. -: But the state of mind
is still the same in this case, as well as Trotto,
as far as whether he willingly,
or was coerced outside, correct?
-: Well, yes, well, he, whether he willingly left the bar
and whether he was constructively or actually confined
in the putative vehicle that was outside,
this case is distinguishable on,
I would raise a number of legal issues
that I don't think were considered in Trotto.
One is the DelValle case which I cited,
which has most recently been cited by this courtroom
a few years ago in Amaral,
and this court stated in DelValle that,
"We hold that testimony of the threats to a victim
may not come in through a third party witness,"
because the third party witness
cannot be cross-examined about the-
I mean, rather, the victim cannot be cross-examined.
It's an absolute-
-: That involved a statement, though,
and this doesn't involve a statement, does it?
Mr Shea: Of Harkins?
-: Well, no, I'm saying in the other cases,
it's an issue of a statement of the defendant
that the victim's talking about, is that right?
-: Yeah. -: I could be wrong,
but I thought in those, in that case,
that it's a statement, it's not just statements of the fear
that the adequate declarant's expressing,
but the adequate declaring, declarant is expressing
that the defendant said words that put him in fear.
Maybe that- Mr Shea: Yeah.
-: Is that right, that distinction?
-: I believe so, but in this case
it was the words of Trotto and Fredette
which put Harkins in fear,
and Harkins related this to five different witnesses,
that he either heard these things said,
or in one case, Davidson, he told him,
"Oh, don't mess with Trotto, he's a killer.
He'll kill you."
So he was, he was certainly expressing
things that he had heard from the defendants
or things that he had observed,
so there's no question of them,
that it was hearsay and could not be cross-examined.
That, my argument is, that case is an absolute bar
if it can't be distinguished.
The next line of cases which I've cited
are Qualls, Magraw, and the appeals court case, Bond,
which say that it is impossible for a limiting instruction
to purge from the jurors' consideration
the substance of threats of this nature.
-: Are those cases, though,
where the adequate statement's admitted for its truth,
as opposed to the state of mind of the recipient,
the state of mind of the alleged victim here,
because (audio distortion drowns out speaker)
the mind of the alleged victim
as to whether or not he would have left the bar.
-: The, sorry,
could you repeat the question? -: I'm sorry?
Sure, sure, sure.
So in those cases, Qualls and those other cases.
Mr Shea: Yeah.
-: The statements of the victim, as it relates to fear,
are offered for their truth, right?
-: They, no. Justice Lowy: No?
-: I don't believe so. -: Okay.
-: I think the case log made clear
that any statements of this nature
are inherently prejudicial,
and can't be purged by jury instruction.
The last case that I would rely upon
would be Andre, which says
before the judge allows this kind of statement,
hearsay to come in,
must make a clear exploration and finding
that it's something that a jury instruction
would not prevent prejudice.
-: Counsel, I'm getting a little bit confused
by your argument.
If it's being offered for the state of mind
of the decedent-
Mr Shea: Yes?
-: And not for its truth-
You keep saying it's hearsay.
If it's not being offered for its truth,
it's not definitional hearsay.
So please help me understand what,
you keep referring to statements
that go to the state of mind,
which are not dependent on the truth of the matter asserted,
so how do you keep, you keep saying it's hearsay.
-: Well, all right, the truth that's being offered
is the witness testifying that he heard this.
The hearsay that I'm referring to
is the colloquial sense of the decedent
making a statement to another person
who has testified too in court,
and yes, that would be hearsay
if it was offered for its truth,
and if there's an exception, it is not hearsay.
In this case, my position is it's not relevant
whether it's offered for its truth or not,
it's the fact that the substance
of the fears stated by Harkins
are so prejudicial that Qualls and the other cases
say that this is not something that can be purged
by a jury instruction. -: How would the Commonwealth,
how would the Commonwealth have ever satisfied the fear
and the fact that he would not have willingly
gone with Trotto and Fredette in any other way?
How would they establish that without those statements?
I mean, if you're saying that, you're almost,
it seems that you're suggesting
that those cases support the contention
that these kind of statements of fear
are never going to be allowed,
because they're so inherently prejudicial
and so outweigh any probative value.
How would the Commonwealth ever establish
the underlying fear of the victim,
such that he would not have gone willingly?
How would they do that, without those statements?
-: Well, they would have to do it without the statements,
because it's their burden,
and they have to establish elements
by way of admissible evidence,
and if the evidence is not admissible,
then it's unfortunate for the Commonwealth
they can't prove that.
Secondly, in this case,
there is testimony by Denaris
that Samia and Fredette agreed
that Fredette and Samia
were beating Harkins up in the vehicle.
That would be actual...
-: He's already in the vehicle at that point.
-: He's being confined.
-: Right, but he's already in the vehicle at that point.
-: So the entrance into the vehicle
is simply an alternative way of proving kidnapping,
and if, for the probative value, also,
of the state of mind is, I would submit,
minimal or nonexistent,
that if he left the safety of a bar,
with the bartender and other patrons,
and walked outside, then that doesn't...
His fear of Trotto obviously did not deter him
from walking outside.
-: Isn't that, it's- -: We don't know what happened.
-: That's true, but that's counterfactual.
We have to deal with what we have,
and that's not the facts of this case.
The facts of this case is, he comes in,
gestures with his finger, and he walks outside.
And he comes outside, and there's also other evidence
that he would never have left under the circumstances
that he left in this case.
Half a beer, his coat, his Celtics jacket, his cigarettes,
all of the things that, there was testimony upon testimony
that he would not have left these things behind this way.
-: It's equally possible that he thought
he was just stepping out onto the sidewalk
to have a discussion,
and that he would come back and pick his things up.
Justice Georges: Mm-hm.
-: Leaving the items behind doesn't tend to show
that he was so afraid that he had to rush out the door
without looking after his belongings.
Justice Georges: Thank you.
-: The additional prejudicial admission
of what I colloquially call hearsay is the,
Dudley, who participated in dismantling Samia's car,
was cross-examined on how he could remember,
whether he could remember the month or the day,
day of the week, the date and so forth.
But he had already given a significant amount of details
about why it was so unusual
that there was all these people in the junkyard,
disassembly plant, at such early hours,
including the owner, who never came in then.
So he remembered on that basis,
and other corroborating evidence.
The Commonwealth got up and was allowed to ask him,
"Didn't you, don't you remember this particular car
out of a hundred more that you disassembled,
because Walter Fitzsimmons, the owner of the junkyard,
told you somebody had been shot in it?"
And my position is that that is such, so prejudicial
that it's an abuse of discretion for the judge
to have allowed it in, that it was not,
it was not necessary for the Commonwealth
to corroborate in that manner.
But there was this other corroborating evidence,
and this was, merely became so,
this was so prejudicial that similarly,
it's something the jury could not put out of their mind.
In the, generally, in the time remaining,
I would point to my 33E argument
and urge that there was such piling on of evidence,
including possession of a gun,
which was constantly brought up by the Commonwealth,
even though Samia had a license to carry a gun,
it was well known in the evidence
that he carried it all the time.
There was even allowed to be, three weeks after his,
three weeks after Harkins' disappearance,
Samia was arrested for distributing cocaine
and so the gun came into evidence, and the cocaine,
and it was all on grounds that,
"Well, this shows that he had a gun,
and it's part of the joint venture,"
and so that was also argued
that the joint venture is so broad-ranging,
that it goes back to the fact that these men were all close,
very close, calling each other brothers, indeed.
They hung out together,
there were all sorts of non-criminal activities
that were testified to.
There's also this testimony of a drug operation,
but the drug operation is so wide-ranging that it's,
a lot of bad evidence that came in,
not really proving the specific joint venture in this case,
which was the murder through, during kidnapping,
of Kevin Harkins.
And lastly, I'd like to request
the including in the 33E petition
that the premeditated murder be reduced
to second-degree murder,
if the court does not agree to grant him a motion
for a new trial.
Mainly on grounds that Denaris's testimony
was inherently untrustworthy by reason of the promises
and special treatment he had been given to get out of jail,
which was a great concern to him,
and so that being the only evidence of Samia shooting,
put together with the repeated references
to his possession of a gun, his drug dealing,
it painted him as, cumulatively, as such a bad man,
that it unfairly bolstered Denaris's testimony.
And lastly, I made the argument in one section of the brief
that the prosecutor's closing argument
contained, I think it's four instances
of preposterous claims of corroboration
in other witnesses' testimony,
of the details of Denaris's story,
and the jury was misled thereby into crediting Denaris
where they otherwise might not have been.
So, I'm over my time, so no more questions.
Thank you.
-: Okay, thank you.
Attorney Lazar.
-: Good morning, Ellyn Lazar for the Commonwealth.
The Commonwealth asks this court
to affirm the defendant's conviction,
first, because the judge correctly exercised
his discretion to admit evidence
that was relevant to the victim's state of mind
on the issue of force.
The victim's state of mind was highly relevant in this case,
because to prove kidnapping,
the Commonwealth was required to prove force
and the absence of consent.
The defendant claimed that the victim
had not been physically forced
to leave the bar with Mr Trotto,
raising the issue of constructive force,
and in that context,
the judge correctly exercised his discretion
to admit statements that the victim had made
showing his fear of the defendant,
with a very strong and repeated limiting instruction
that the jury could only consider the evidence
as to the victim's state of mind.
-: Counsel, on that particular issue,
Mr Shea says that this is a little bit different
than Trotto and Fredette,
where at least in this case,
we didn't have the testimony of the roommate.
Does this at all implicate
the doctrine of the law of the case,
where a lot of, even assuming this difference,
this one factual dissimilarity,
where we've already decided these issues?
Does that have any applicability to this pending appeal?
-: I think it does, in the sense that,
at least as to the effectiveness
of the limiting instruction,
the court stated explicitly in Trotto
that a limiting instruction is effective
in these types of circumstances,
so I think that holding certainly has bearing on,
when you're looking at essentially the same evidence,
and essentially the same limiting instruction.
I also think that the distinction
in the evidence that was presented in the two cases
as to the roommate actually seeing
the victim getting into a car,
doesn't change the analysis, because first of all,
the issue is his leaving the bar with Trotto,
not only his getting in the car or staying in the car,
and secondly, of course,
the inference is that he leaves the bar with Trotto
and at some point thereafter ends up in the car,
where the beating and then the killing happened.
So I don't think the absence of that one piece of testimony,
where the victim's roommate is looking out the window
and actually sees him stepping into the car,
is really a distinction that matters in terms of this issue.
Justice Georges: Thank you.
-: I would also say,
as to the cases that the defendant cites
with regard to his claim that a limiting instruction
is not effective in these circumstances,
that line of cases, Qualls and that line of cases,
address a different issue, where a victim states
his or her fear or disdain of a defendant,
and it's not really relevant to any issue in the case
unless the government shows
that the victim's feelings about the defendant
were communicated to the defendant,
and then the defendant was likely to act on them.
Then, the court has said that's not really relevant
if it's just that the victim has stated fear
that the defendant might kill him or her,
and then lo and behold, the victim is killed,
and therefore the jury might assume
that the defendant did it.
So the effectiveness of a limiting instruction
in that circumstance is very different
from this line of cases, where it is a relevant issue
to show a victim's state of mind
when it's relevant to consent or voluntariness,
or whether the victim would have willingly gone somewhere
or have been alone with the defendants.
As to the other issues, unless the court has any questions,
I would rest on the Commonwealth's brief.