-: SJC 12047
Commonwealth B. Ashanee Duke.
-: Good morning. Your honor. Attorney Lehman for
Mr. Ashanee Duke.
This case really demonstrates the problems with
felony murder.
And I know Mr. Duke is not entitled to the protections
that came with Commonwealth vs Brown,
because he was tried in 2015.
However, that case is instructive as a sort of framework,
a backdrop to what exactly happened in this case.
It also demonstrates the serious problems with the
Commonwealth relying upon one singular witness for its
entire case,
especially when that witness is an accomplice
and co-defendant.
What I would like to address this morning
is the accomplice issue under 33E,
as well as my motion for new trial,
which was denied because that has related corroboration and
accomplice issues in it.
And then I would like to address
an issue, which was not raised directly in my brief,
but which as I was going through the cases,
the jury instructions, and the facts I realized it should
have been raised in my brief. And I sent a letter last week,
notifying my brother and the court that
I want to
specifically talk about a footnote in Commonwealth vs Tejada
footnote 12,
where this court noted that the 2013 jury instructions
were not sufficient to protect
the defendant
or to instruct the jury on what they needed to find
with such circumstances.
So
I think
it was Justice Loewy who said during the Arthur Davis
arguments last year,
that if juries love anything it's corroboration
because it gives them comfort.
And there was none of that in this case,
or there was very little.
As I raised in my brief,
the police didn't really try to corroborate anything that
Julian Holly told them.
They didn't search the house where he said he was living at
26 Dearborn.
They searched another house where he wasn't currently
staying.
They didn't try to find the gun that he said he had just
prior to this robbery.
He conveniently left his .357
someplace else,
presumably at 26 Dearborn.
But they never tried to find any of that information.
I listed a number of things that they didn't do.
And so when you have a case like this, where the
entire thing rests upon Julian Holly's shoulders and
Mr. Duke is put in a circumstance of trying to
cross examine a man who, there's not really any way to truly
cross examine him because police have not done this proper
investigation.
It puts him in a very bad circumstance.
-: Council, let me interrupt you there because
looking at the record,
I don't know how you can say that there's no corroboration
here.
Because the fellow that was shot
testified to going to the sister's
house and getting this call
and then meeting up with these two folks,
which is the backside of what Holly testified to.
That they were all together and that your client made a
call.
They went to the restaurant, the Popeye's,
and then went to the place where
they met up with the fellow who got shot in the leg.
So there was corroboration of what Mr. Holly
said, by virtue of the fellow that was shot and testified.
-: Well,
you have to look at the timeline of when he gave that
information because he gave three different statements to
police.
-: Sure. That's true. And,
he was subject to cross examination about that.
So you still have him testifying the irrespective of the
fact that, I think he came a year or two later when he gave
all of that detail.
It's still the tails to the same coin of the fellow that got
shot in the leg, saying that this is how it went when I
stopped by my sister's house to check on it on my way to
watch this football game. So how is that not corroboration?
-: Because he had access to all of the discovery,
which would have included all of
Dancey, the robbery victims,
all of his statements to police about what happened.
And so it would be incredibly easy for Holly to,
at the point that he got his cooperation agreement to then
say,
-: What about the [unintelligible] cellphone records?
-: He is the only one.
It's Holly who says this number belongs to Duke.
All police needed to do at that point was pick up the phone
and call and see who answered, but they didn't even do that.
Instead, they just relied upon Holly and then made
assumptions from there that it had to be his number.
And I'm just in a case like this, it isn't enough.
-: So I get your concern about accomplices
and it's warranted.
But what's your corroboration rule?
Because when we have immunized witnesses, we just, you know,
we don't require much.
And I know you wanted us to go further than that,
but what's your rule?
-: Well, there are a number of other states that do have
corroboration rules, where you have to have some evidence
that some other independent evidence,
beyond Holly's word for it,
or the fact that Holly could have gotten information from
all the discovery that he got, to back up what he's saying.
In which case, this would have been the police searching his
house and finding the gun that he said.
Why wouldn't you want to know, from your key witness,
that the gun you had in your possession,
which could have fired the bullets because it was a .357.
-: So Justice Georges gave you evidence of corroboration.
But what you want is our rule to be,
there has to be evidence that it's unknown to anybody
else but an insider.
-: I think it's a little too convenient to say that
corroboration,
that he had corroboration because he had,
he matched up his story to what Dancy said when he had
Dancy's statements in his possession.
-: I'm asking you the question.
Does the corroboration have to be unknowing to anybody
but an insider. Is that your rule?
-: I wouldn't say that it's unknowing to anyone but an
insider,
but that it's some outside
investigation by police to back up what he saying,
rather than just having an accomplice
who had every motive to lie. I mean, he even,
he said it in phone calls that he would say anything to get
out. He's facing murder.
And in the end, the murder charge goes away
because of the testimony that he gives and how,
what greater motivation is there for someone to say
whatever's convenient.
And he has the evidence right there, with the discovery of
everything that Dancey said happened.
-: But the cross examination and an impeachment isn't enough
here?
-: I do not think it is because you don't,
that's all they have is, is Holly.
And you can't truly impeach a witness like that when there's
no other, when the police don't have an incentive
to go out and do further investigation. I mean,
they admitted what they didn't do.
And the fact that Collin's EBT card was found underneath the
couch, in the Dancey apartment.
And they did nothing with that
and didn't even reveal it until two months before trial.
You have the witness, Cynthia Paren, who says
two weeks prior to this,
there were young black men breaking into that apartment and
things went missing.
And that's why Dancy was there, checking on his sister's
apartment that had just been broken into.
And she said the young man that she saw fighting,
Dancy, when she looked out her window, looked like
the same young man who had been there two weeks prior.
-: She testified for the defense though.
So again, the jury has all of this, right?
They have all of this.
They make their credibility determination.
And they chose to convict. All of this was there.
All of the stuff that he did. All of the crimes that he did.
All of the things that he said about what he would have said
because, you know, Collins was his best friend.
They had all of this.
The trial council could of exploited all of this. So again,
I go back to Justice Gaziano's rule,
a question to you, what would you have us do?
-: Put a higher burden on the Commonwealth
and law enforcement
to do something more when you have this kind of case.
I don't know how often you have a kind of case where
literally the entire case rests upon the shoulders of one
person who has every incentive to lie.
That when you get this circumstance, and my client has gone
away for life, that the duty is higher.
That there is a bigger standard there or should be, because
juries can't be relied upon to discern this.
And that is what the law review I cited in my brief,
and there's a bunch of other studies and law reviews that
come up in that one
and why other states have incorporated this rule, is because
juries can't be relied upon to discern the truth with such a
witness.
-: Weren't there some statements of the defendant
that were consciousness of guilt statements
that were presented by the Commonwealth?
-: I believe it was,
that he was in the convenience store at the time.
-: Right. They checked that video tape, I think.
-: Yeah, I think there,
I know there was some extra time and there was an issue of
how late the store owner stayed open and whether or not they
were able to get that.
-: Would that count as corroborated evidence?
'Cause you've got a rule that's that sort of
combined, if there's a Bowden situation with questioning the
investigation, and if the
you've got a cooperating witness,
immunized witness, for instance,
that you need some additional corroboration.
I'm wondering if that type of consciousness of guilt
evidence would constitute the corroboration or not.
-: I don't think the store video by itself,
just the fact that he said, this is where I was,
and then the video didn't corroborate,
that can be enough in a case like this.
-: How about, "Get me the cell phone number that was
deactivated?"
-: I mean, I don't know what was the mindset
at the time you give a cell phone. I mean,
that was the number that he had.
You know, was using his mother's phone.
I just, I don't think with this kind of case
that those two things by themselves are enough
to put a person in prison for life,
when you have this kind of witness testifying against him.
And I'm speaking specifically about this particular case,
with this kind of witness, where the Commonwealth admitted,
that the entire case rested upon his shoulders.
And you don't do anything more.
And it's-
I think under-
When the court looks at this whole case and everything that
happened, it's just, there's some-
this was not a fair case for Mr. Duke.
And you have him charged with felony murder.
I mean the other thing I wanted to raise with regard to the
corroboration
is what I've raised in my motion for new trial,
with the cigarette butts.
So the Commonwealth in its closing stated, the whole
circumstance of the retrieval of the cigarette butt.
And then the prosecutor stated, that's corroboration folks.
That's what he said in his closing.
And in fact, that wasn't true because that cigarette,
which was used as corroboration, did not belong,
was not Julian Holly's. It was somebody else's.
And because the Commonwealth didn't test it, chose not to,
which they could have and I argue they should have,
the jury for that is a piece of corroboration.
I'm sorry, your honor.
-: Couldn't the defense have tested it?
-: I think that is, for evidence that's in the custody and
control of the Commonwealth taken in the case pretrial, to
put that burden on defense council is,
would not be fair.
Because, you're saying that the attorney
needs to move for funds in order to do the testing and the
results, regardless of what they were,
would then go to the Commonwealth as well,
because it's evidence in their custody and control.
And that's, to say an attorney needs to do that and run the
risks of whatever that evidence is going to show, when you
have no idea, is not fair.
That should not be put on the defendant.
The Commonwealth should have done it.
And because they didn't do it, it deprived Mr. Duke
of a potential eye witness,
because the fact that that cigarette was freshly smoked
right there in that location meant that that individual was
at that location at the time of the shooting.
And so he was either a third-party culprit,
or he was a witness
because he was there at that time.
And now he was unavailable because he had counsel and I
couldn't talk to him.
So if that had been done previously,
it would have been a whole different circumstance.
So have that piece that was specifically used as
corroboration, which goes away.
You have the cell phone number that Holly provided,
but then was never corroborated by police by actually
calling the number.
So there's no actual affirmative evidence tying it.
I mean, yes, that number is shown to have called Dancy.
Dancy says, I received one phone call from someone
I thought was a friend, and that was it.
So he doesn't corroborate what Holly said.
And it's not enough in this case
to not require more
when you have this kind of witness.
Now, the one final thing I wanted to address,
if there's no other questions,
was this issue under Tejada with regard to the jury
instructions. So this, this court said
in footnote 12, that the current model jury instructions
regarding felony murder do not provide adequate guidance
to a jury and the circumstances presented in this case.
So you have Dancy's testimony that.
-: How has Tejada, Campbell, and Bolero implicated when
the Commonwealth's evidence is that your client was the
shooter?
-: Well first I think it's an open question,
whether this court has not said that
if the co-felon is
killed, whether or not that shouldn't be included under-
-: But look what happened in Tejada and Campbell and Bolero
there, you know, innocent people are killed, you know,
by the cops, essentially, right?
-: I believe in, I thought in Tejada, it was a,
one of the other co-defendants who was killed.
-: Yeah, but anyway.
-: Campbell [unintelligible] to kill by the police.
Boleros to police officer.
Tejada is an accomplice.
But in this case,
in the Commonwealth's evidence, is your guy just starts
blasting and shoots one guy in the leg and
kills his accomplice.
Isn't that what felony murder is all about?
Let me finish my question.
-: Okay.
-: We want to say that people that do dangerous things like
armed robberies, there's constructive malice.
And I know it's changed since Brown, but you know.
Here we have a robbery and he starts firing at people.
How has that not consistent with the theory of felony
murder?
-: Well, first of all,
I don't think the facts in this case are as clear as that,
because what Dancey says happened and what ballistics say.
I mean, ballistics doesn't rule out there being-
the possibility of a third gun.
It's unclear the types of projectiles,
whether could have been from the .380 that Collins had,
whether Collins could have shot himself.
-: We know the .380 did not fire the fatal round. Right?
-: Well, when I re-read the ballistics testimony
that still wasn't clear to me.
But I know the Commonwealth argued that.
Lieutenant Murphy, I think it was who that
testified as the ballistics expert,
said that there could have been other, I think
casings- .380 casings could have been trampled in the mud
or moved and he didn't find any, but that didn't mean
they were concluded that the gun couldn't
have fired more.
There was one projectile,
I think it wasn't clear whether it could have come
from a .38 or from a 9mm.
-: I thought the testimony was that he was shot in the head.
It wasn't the .380. Could have been a 9mm.
-: But it also could have been a .357 Magnum, I mean,
which is the gun that Holly owned.
They didn't do a search in the area to find, to see if there
was another gun.
Like, I believe they searched behind the buildings where
people were seen running.
At least not that I could find.
-: If I could ask you one quick question though.
All of this, you know, if's or could's or should's,
isn't that taking the facts in the
light most favorable to the defendant?
-: Well, I'm asking this court to look at the
whole case under 33E.
So I have to include the,
ifs or the should's, because of the things
that did and did not happen in this case.
I believe my client is unfairly serving a life sentence for.
-: You're asking us to say that this case is illegally
insufficient because of Bolero, Campbell, and Tejada based
upon the evidence that you put in the light most favorable
to your clients. Correct?
-: I'm saying that the jury could have,
especially because of how the verdict slips came down,
which was they disregarded-
They did not find him guilty of premeditated murder with
transferred intent.
Meaning they didn't find that he shot Collins while meaning
to shoot Dancey.
They picked the felony murder. And because of that,
and because the 2013 instructions were insufficient.
If there was any type of evidence-
-: They're insufficient, assuming it's a Tejada issue.
-: Which I'm saying that it based on the evidence, it was.
Because it wasn't as clear as how the
the Commonwealth says it was in terms of the ballistics and
Dancy's testimony himself.
And also taking into account that Holly's testimony was very
self-interested in what he claims that he saw.
So Dancy's story about the shooting and what happened
is a bit different than I think what Holly said
he saw from a distance.
Which I arguably, if Ronnie Diaz who was right there at
102 Robert Dower Way,
could not even see Collin's body until he
turned on the porch light.
I don't think that Holly could actually see what he said
he saw from the distance of 73 to 102.
So yes, I think the evidence is such that the jury
could have, since they found him guilty of felony murder,
they could have done it on improper theory.
And it's unclear which theory they did that is somehow
Collin's ended up shooting himself or Dancy shot him by
accident, or that Mr. Duke shot him.
So in that circumstance, I think
the court should reverse because it's
using the 2013 jury instructions on this.
And they're first told they don't have to find that he shot
him. But under felony murder under Tejada,
they do have to find that he deliberately shot them.
And I think with these facts,
they should have been instructed, "You need to find that Mr.
Duke actually shot Mr. Collins."
-: Thank you.
-: Thank you
-: Attorney Sheppard-Brick.
-: Thank you. May it please the court,
David Shepherd-Brick on behalf of the Commonwealth.
I would suggest first, the jury didn't reject the theory of
transferred intent. They were never asked about that theory.
They rejected the idea that the murder was premeditated,
which I think based on these facts is reasonable. Because it
seems like, you know,
there was testimony that the defendant was saying,
"Let's get out of here," but he ultimately fired.
I think the evidence suggests two bullets.
One which struck Dancey on leg, and the other
which killed Mr. Collins.
So I think this is a classic case of post Brown felony
murder. It's a second degree.
So it's at least a third prong malice.
He fired two bullets from point blank range during the
commission or in this case attempted commission of a life
felony of our robbery.
-: Well, let me ask you about the accomplice situation.
You know, it's always struck me as odd.
If you have an immunized witness,
the witness has transactional immunity,
you can't prosecute them.
You have an accomplice agreement,
I know that can be prosecuted for perjury,
but how rare is that, right?
So we give an instruction or the statute requires it for an
immunized witness,
there'd be some corroboration.
Given what council has pointed out about the wrongful
conviction issue and accomplices,
why don't we have the same rule for accomplices?
-: Well, I mean,
the corroboration requirement for immunize witnesses is
statutory.
I understand that.
-: I just said that. Right?
-: Right, right.
I guess I can see,
you know,
the suggestion they will, you know,
these witnesses may be unreliable.
So we want some limited corroboration.
I don't necessarily think that you need to answer that
question in this case, because I would suggest they were
significant.
-: All right, good. I'm asking you the why.
Why don't we have the same rule?
Why don't we impose this rule, given the horrors
of accomplice liability
or accomplice testimony that has
been pointed out in the law review articles in the
literature and in wrongful convictions.
How does it make any sense not to have a corroboration
requirement when we do it for immunize witnesses?
-: I mean,
I think I would say the champion instruction goes a long way
to point out the problems to the jury saying,
"look, give this person a really hard look,
because they're getting something big out of this.
They're getting," he was promised consideration.
He ultimately did plead guilty to certain charges.
Murder wasn't one of them.
-: So we have the same instruction for immunized witnesses,
right?
-: Yeah.
-: Scrutinize it.
Why do we not?
Why shouldn't we judicially impose a corroboration rule?
What makes sense about distinguishing between the two?
-: Well, I don't know that necessarily without the
legislature's requirement of corroboration in the
statute, I don't know that it would be necessary.
I think it becomes necessary because the legislature has
made.
And this court has said when discussing this in the past
that look, the legislature has made this a requirement.
We don't, from a common law perspective,
we don't think it's a- we don't need it.
But because they have made a special exception for these
witnesses, there is this extra requirement.
And if the legislature wants to add that requirement,
they can, I don't know that it's necessary.
In terms of, I just, I wanna go back to Justice
George's question about the corroboration
and particularly-
So in the second statement
Mr. Holly made to police,
he actually mentioned the trip to Popeye's
and the,
you know, they went there,
they made the call and then went to, he got up,
made a call, and then went to Robinson Gardens.
So there was a lot of corroboration that Holly gave
to the police before he read the police reports,
including that particular stop, which lined up with what Mr.
Dancy ultimately said, and ultimately testified to.
Also the cell phone,
the most significant piece of cell phone corroboration, came
through the defendant's expert.
Who said that the name in the phone
in the call log is the name that
was associated with that number,
at the time of the call.
And there were calls from the 5654 number to Mr.
Holly's cell phone that came through on November 25th,
the week before this, as listed under the contact Ashanee.
I was thinking of spelled with an I instead of to e's.
But, that was a week before the murder.
So, you know, in terms of Holly being the only one to link
the defendant to that cell phone, that's incorrect.
He would have, unless he had been planning to set him up
for the robbery and murder a week before it had happened.
So I think there is significant corroboration there.
And then the ballistics.
The victim was killed by a 9mm.
The ballistician said, "well,
it is consistent with a 9mm."
It is inconsistent with a .380.
There were no other guns found.
The suggestion that there could have been other guns, yet
the ballistician said, "I can't, because the bullet is so
damaged, I can't rule out that there was a third gun.
But other than that, there's no evidence of a third gun."
And Mr. Diaz who came out and found Mr. Collins' gun,
which was right next to him, you know.
And then officer Davis, who arrived on scene,
recovered the gun, and then also found one of
the shell casings and the projectile,
didn't find any other guns on scene.
So I think it's pretty clear that there were no other guns
and only the 9mm fired any bullets.
Given that the .380 didn't reload and was found loaded.
So.
In terms of-
I wanted to address the cigarette button very quickly.
You know.
It's not newly discovered evidence because the defendant
could have had asked, asked for it to be tested,
that sort of thing happens all the time.
But I would suggest that it didn't really, I mean,
it corroborated Holly on a very sort of tangential piece
of his testimony.
And defense council even brought out, at trial,
that it probably wasn't his
because where he said he was parked, he would've-
If he was in the driver's seat-
He didn't say which window he, you know, sent it out.
But if he had sent it out the driver's side window,
which would have been the most likely direction,
it would actually have gone in a complete
other direction from where it was found.
So, you know.
-: The cigarette- after the shooting and the police find the
cigarette that's actually tested.
Do we know if that's the same one that was actually observed
with?
-: We don't.
The testimony was that
the witness came out out and saw,
you know, sort of the scene.
She'd seen that she had a flat tire,
but she also saw people were laying on the ground.
So she went and sort of tried to help out with that
situation. Then she came back to her car,
she found a cigarette that was,
did not appear to be wet and did not appear to be like
smushed or stepped on.
So she thought, and it had just started raining,
so there was some suggestion that it appeared fresh.
I mean, based on what came out after, you know,
during the motion for new trial,
I know the owner of that cigarette,
ultimately didn't cooperate
with defense council.
He did speak with our investigators and that was provided to
the motion judge
Which he basically said, you know,
"I was in there around that time,
but I certainly wasn't there for any,
I wasn't there when there was any murder or any shooting.
And that's my brand of cigarettes. That's what I smoke."
And I think,
I think the motion judge properly found that that was,
you know, that evidence did not outweigh the prejudice to
the Commonwealth, which in this case,
granting a new trial prejudice to the Commonwealth would be
significant as Mr. Holly is deceased.