-: SJC-12100, Commonwealth versus Julie Corey.
-: Good morning, Your Honor.
May it please the court, I'm Janet Pumphrey for Julie Corey.
I'd like to begin, if I may, with the 33E argument
I gave you in my brief
and also especially in the reply brief.
Basically 33E cases that been given 33E consideration
in three different batches,
one is where the case may have legally sufficient,
but far from overwhelming evidence, that's this case.
Cases where the court considered a mental health issue,
that's this case.
And cases where the court considered
the defendant's character, and that's this case.
So psychiatric illness, she was mentally impaired
for her entire life with depression.
And then after her miscarriage,
she had postpartum depression that affected her ability
to make decisions in a normal manner
to appreciate the consequences
of her actions and her choices.
She just didn't understand that keeping the baby
and calling the baby her own was not the thing to do.
She had a mood disorder,
she had postpartum psychosis,
and it just really caused a delusional belief
that she could keep the baby
and that was appropriate and ethical.
More of a mental illness like voluntary intoxication
has beared upon the specific intent required
for murder in the first degree.
The unusual circumstances of this case
make it really appropriate for 33E consideration,
but more importantly is my second batch of cases,
no overwhelming evidence of guilt.
Tito Rodriguez's motives and Julie Corey motives
for this murder are like night and day.
At the time of Haynes's murder,
Rodriguez had a new girlfriend whom he planned to marry.
And in fact, on the very morning
when they discovered Darlene Haynes's body,
he was at the City Hall getting a marriage license
to marry someone else.
He carefully planned this murder.
He found somebody who wanted the baby.
And according to the Commonwealth's only closing argument,
Julie Corey's only motive
for murdering her friends was wanting a baby.
Rodriguez's powerful motive
was wanting to marry his new girlfriend
and eliminate his payments to Haynes
and keep his baby alive.
The brutality of this murder,
Haynes died of multiple blunt forced trauma to the head,
which broke her skull.
Then she was strangled with an electric cord,
wrapped twice around her neck,
and the killer cut into her abdomen
and removed her uterus, ovaries, and tubes.
The prosecutor described this as a crime of passion,
and it certainly was.
Corey had no anger against her friend.
The victim was her friend.
She only wanted the baby
that Rodriguez was going to give her.
Rodriguez had even attempted
to kill his previous girlfriend in exactly the same way.
He grabbed her, he put a rope around her neck,
choked her, and saying he was gonna hang her
and that it would only hurt for a minute
and then she would be dead.
Rodriguez was an angry, hostile man
who had a pattern of violence against women.
Corey had no violent history at all,
but most importantly, the night of the murder,
there were multiple men.
There was a lot of testimony.
There were multiple men going in
and out of the victim's apartment.
From two o'clock to 2:30,
there was banging and water running.
At 4:30, there was banging and furniture.
Tito Rodriguez was definitely there
because his DNA was mixed
with the baby's DNA on the first aid kit.
So he probably handled the baby
after he took the baby out of the womb
and gave the baby to Julie Corey.
The next day, he was seen walking away
from the cemetery with dirty hands.
And the implication is that he buried the extra body parts
in the cemetery.
Timothy Tripp climbed into the apartment window
at 10:30 or 11.
He pulled down the blinds so nobody could see him.
When somebody came...
When a witness came and said
they were to take a table outta the apartment,
he wouldn't let 'em in,
and he blocked the door.
On Sunday, Tripp and Davio were in the apartment,
and they dumped water outta a fish fishbowl,
and they appeared to be all sweaty and nervous
and tried to hide their faces.
Davio, again, was on the back porch the night of the murder.
He was seen going into a window,
and the men were nervous and not making eye contact.
Not a single eyewitness testified
that they heard a baby that night.
If Julie Corey had been there
and had committed this murder, caring for a newborn baby,
and simultaneously extensively cleaning up
over the course of hours,
somebody would've heard the baby cry.
There was no hearing of the baby cry,
but they heard a lot of other things going on.
In short, five men coming in and outta the apartment
of the night of the murder
plus over the next day, a few days.
And the only evidence that Corey was there
was an elderly woman's hearsay statement
that was not admitted for the truth.
I won't go through the various aspects
of the inadequate police investigation.
I've made that argument in my brief,
and it's just episode after episode,
things that they should have done
because the guilt really was going
towards other people and not towards Julie Corey.
-: Counsel, may I ask you, -: Mhm?
-: To whom does the benefit
of the light most favor belong to?
-: Oh, it belongs...
The light most favorable, it belongs to the commonwealth.
-: So, when you're listing all of these things,
it sounds like you're asking us to look
to this in the light most favorable to you.
-: Mhm, well, I'm asking you to look
at the facts and basically the third party culprit.
-: I am looking at the facts
because there's a whole lot of facts
that implicate your client that you're not talking about,
which is why I'm asking that.
You're going through this litany of all of these things
-: Exactly. -: To look in favor
of your client, but your client showed up with the baby.
-: That's the most...
That's- -: Right?
-: Go ahead.
-: Your client had the baby. -: That's right.
-: But the third party culprit
that you're saying had all of this motivation
to do this incredibly terrible crime didn't have the baby.
-: That's exactly right. -: They didn't present the baby
as their own and having delivered that baby
and fake birth certificates
and all of the rest of this stuff.
So I'm finding it a little bit interesting
that you're raising all of this,
but I'm trying to figure out,
how does that inform our standard of review here?
-: Well, there's absolutely no doubt
that Julie Corey had the baby,
and I think that was sort of the overwhelming issue
before the jury was, how did she get the baby
if she was not the murderer?
And I think that she had the baby.
-: Well, isn't the verdict telling you how,
where they landed
because she was murdered. -: Exactly, exactly.
-: Right. -: Well, I'm saying
that this is appropriate for 33E
for, you know, either a second degree
or voluntary or a manslaughter
or even a insufficient evidence of guilt
if you take...
I mean, I was listening to my brother's argument
and thinking, insufficient evidence of guilt?
There's really not much guilt against Julie Corey.
She was definitely there.
She definitely had the baby.
Her affidavit says, yes, she showed up.
He called, or Rodriguez called her and said,
"Come get the baby."
And so she went.
Her cell phone shows that she was there.
There was a witness that said she was there,
and he gave her the baby.
It's explainable.
Rodriguez acted like a guilty man.
When he was called at trial to testify,
he asserted his Fifth Amendment privilege.
At no time in his police interview
did Rodriguez ask, what happened to the baby?
Is my baby okay?
He never asked that because he knew the baby was okay
because he gave the baby to Julie Corey.
He knew that Haynes was dead because he killed her.
Julie Corey was not involved in this extensive coverup.
The coverup lasted for two more solid days
with men coming in and outta the apartment.
They were, you know, acting furtively,
conspiratorially, and she was not there
because she was showing the baby
to other people during this time.
There was evidence of that.
And then she went to New Hampshire.
There was evidence of that.
So she wasn't even around for the days after the murder.
Her cell phone evidence, cell phone records show
that she was there in the early evening,
but not in the later part of the night.
-: Yeah, which is the problem of the issue you raised
about ineffective assistance
that Judge Kenton-Walker
I thought dealt with in the motion
for a new trial. -: Exactly, exactly.
Can I just finish this part, and then I'll move on?
Yeah, thank you.
Rodriguez was a personal care assistant or paramedic.
So he had these skills to cut into her
and take the baby out alive
and then take out the other organs.
Corey did not have those skills.
And finally, Corey and the victim were friends.
I gave you the Seit case and the Jones case.
There's no evidence of animosity between them.
She had really no...
All she wanted was the baby.
So in conclusion with the 33E argument,
I gave you cases of legally sufficient,
but far from overwhelming evidence of guilt,
cases where the court considered
a defendant's mental health,
and cases where the court considered
a defendant's character.
In all of those cases, the court reduced the verdict
to a second degree or a manslaughter
or perhaps a not guilty for insufficient evidence.
The cell phone, and I can move on, Justice Gaziano.
The Commonwealth's expert really expertly described
how when her cell phone was not recording anything,
in her affidavit, she was asleep
and she was not on the cell phone,
but she could have been driving someplace else
and just it was not picking up.
-: This is deference to Judge Kenton-Walker, right,
because she's trial judge, -: That's right.
-: And she had the error,
and your expert and commonwealth's expert.
-: Exactly, she was both the trial
and the motion for (indistinct).
And she relied on that trial court's reasoning
for not calling the cell phone expert.
He said that the trial counsel said
that he decided because he believed
that the third party defense,
the third party culprit defense, was really strong,
and his Bowden defense was strong, and they were strong,
but the cell phone expert would've added to that,
and he could certainly add to that.
-: I don't get that because if the defense is
that she was there, she ends up with the baby,
and we have these lapses where nobody knows
from the cell phone 'cause it...
I think the way the motion for trial is phrased
promises a little bit too much.
It says this is going to exculpate her,
or it would be impossible for her to commit this crime.
-: Well, I think... -: I don't get the impossible.
But I think the stronger defense, of course,
was she was there, she ends up with the baby,
but this is an act that takes a lot of people
-: A lot of time. -: And a lot of time.
-: That's right. -: And guess who did it?
The guys did it.
-: Exactly. -: To be misogynistic, I guess.
-: And that's basically what I'm arguing
is that she was definitely there.
Her cell phone records say that she was there,
and the gaps when her cell phone was not active,
those are gaps throughout the night
in between like two o'clock to four o'clock
and four o'clock to six o'clock.
And if she had in that time driven back
across Worcester and gone back to 94th Southgate
and then gone back to the other side of Worcester,
that really wouldn't make a whole lot of sense
because the cleanup was just huge.
And as I said, the days after the murder,
she was not even...
She certainly wasn't at 94th Southgate,
she was showing off the baby
and making people believe the baby was her own.
And with the extensive cleanup that
that took place over the next two days and that night,
again, she had the baby during this time, and-
-: Why would she have had to be there
for the cleanup in order for-
-: Well, somebody had to do the cleanup.
-: Well, but she was a part of...
She could have been a part of the whole plan to-
-: Well, had she been there,
if she had she really been there
and had all these men with her, she still had the baby.
And then nobody heard the baby.
I mean, Julie Corey had the baby.
And so I would argue that she wasn't there.
She picked up the baby and then she left
and didn't come back.
I mean, the third party defense culprit,
party culprit defense was just as expertly established
by the trial and counsel,
but I think if he had added the cell phone expert
to testify, he could've made it...
He could've argued to the jury it was really impossible
for her to be the murderer because she may have been there,
but she wasn't there for that entire time,
the entire time of the cleanup.
-: If you could help me understand
that I still don't understand how if this expert
had testified the way you just described
how that would've been helpful to the defense
with all of the other evidence
that you're discounting quite dramatically,
but how that would've helped you.
-: Discounting that she had the baby
-: No, discounting all of the evidence
that inculpates your client.
-: Oh, that inculpates my client.
Besides having the baby,
what other evidence really is there?
She was there.
-: Again, I go back, and I'm not gonna do a slow walk
through the evidence, but there's powerful evidence
of motive of your client who was deathly afraid
that she was gonna lose the love of her paramour
if she didn't have his baby.
That evidence was before the jury.
-: It was. -: So I know
you've made mention of the fact
that the victim's boyfriend was getting married
and going off to live this other life,
but the jury had evidence that your client needed
or in her mind thought she needed to have the baby,
a baby, to save her relationship.
So again, so now when you're telling me
that the fact that putting her there
and using the cell phone,
that that was manifestly unreasonable
by the trial counsel to not pursue this.
I'm just wondering how that would really help you
for us to find that.
-: Well, I think I guess it really would've helped
the third party culprit defense is what it would've helped
because Julie Corey was there.
There's no doubt that she was there,
but I think if you had the cell phone evidence,
again, she would have to transverse Worcester
a number of times, and it doesn't compute
with the evidence, the evidence of constant cleaning up
and going in and outta the apartment.
It's just somebody was doing that and it was five men.
-: I'm trying to understand why you're saying
that she had to have been part of the whole thing
including the cleanup, and I mean that why is that...
Why would that show that she wasn't part
of the killing of the victim? -: Well, my argument
is that she wasn't part of the killing.
-: Oh, I understand that. -: My argument was that
she perhaps knew about the killing,
and I don't know whether that's true or not,
but she was told to come and pick up a baby,
and she did that, and that's all she did.
-: She was told to come and pick up the baby
in an apartment where people are cleaning up
after a gruesome murder -: Exactly, exactly.
-: Of who you described was her friend.
-: Yeah. -: And the logical extension
of that is go off to New Hampshire
and show off this baby as your own.
-: Exactly. -: Okay.
-: And that's exactly what happened.
-: What about the DNA evidence on the bottles and the like?
-: There was DNA...
Oh, on the bottle, there was, there was,
but again, she was there.
It was on some kind of a- -: The wine.
-: Yeah, some kind of a wine cooler or something.
So moving on to the cross appeal,
the aggravated kidnapping statute provides
that whoever commits kidnapping-
-: That has to be the kidnapping of the baby, of course.
-: Of the baby, yes, yes, for sure.
That's, yeah.
There has to be serious bodily injury.
And that's permanent disfigurement, protracted loss-
-: And it's not the potential
for serious bodily injury.
It's serious bodily injury.
-: It's just serious bodily injury, exactly.
But none of the-
-: And didn't we have that here?
-: No. -: You have the testimony
of the doctor and you have the testimony of folks
who saw the baby who did need expert testimony
to put two and two together,
saying that if you look at the baby
and you look at the way the baby looked
after the baby was, I'm not gonna say delivered
'cause that seems to connote something medical,
not a murder, but in the testimony of the doctor saying
if you deprive the baby of the oxygen
being tethered to his mother,
that these are the kinds of things that end up happening.
So, why don't we have that here?
-: Well, I think what the motion for new trial judge
said was that that argument was speculative
because they really needed an expert
to prove that there was actually harm to the baby.
I mean, if the baby was delivered
and if there was a lack of oxygen to the baby,
but that wasn't proven.
The baby was cold, and the baby was small,
and those were the only negative,
you know, physical characteristics of the baby.
There was nothing else.
You know, there was no-
-: So you have to inflict serious bodily injury,
thereby upon another person.
-: That's right, and there just wasn't that here.
-: And then serious bodily injuries,
permanent disfigurement, impairments.
-: That's right, or substantial risk of death.
-: Substantial risk of death. -: Yeah, yeah, (indistinct).
-: How can you say there was no substantial risk of death
where somebody who's not a doctor,
who doesn't perform surgery,
cut open the person who he's just killed
or she's just killed
and not have a substantial risk of injury
or death to the fetus.
-: But I think that Judge Kenton-Smith.
-: Walker. -: Kenton-Walker said that
that was speculative,
that there's just no proof.
-: I understand that that's what the judge said,
but isn't it fair to say that anyone...
It's not something that needs expert testimony.
-: Well, she seemed to think it needed expert testimony.
-: Well, perhaps, but the question is
whether that was an error.
And so, when you still go back
to the testimony at trial, you have the coroner
or the medical examiner who testifies,
says, "I can't even call this a cesarean section."
Janet: That's exactly right.
-: That's exactly right. -: You have the doctor
who testifies and says
that having a cesarean section is a medical procedure
that's serious where we're not talking about
just kind of run of the mill day surgery.
And so why does the jury...
So at its threshold, experts are only supposed
to be listened to if they're helpful,
and if it's not helpful to the jury
to say, here's what the instruction is,
and how can I not find likelihood of serious injury
or death when the baby was extracted
from this woman in this way,
why do I need an expert to draw that conclusion?
-: Well, I think that I believe
that there should have been an expert there
or at least someone to...
There should have been serious bodily injury
and it just wasn't and substantial risk of death.
He was trained in some way, is somehow trained,
and the baby did live,
and the baby was only cold and small,
not even in any way physically impaired.
Without any other questions, I will rest on my brief.
Thank you. -: Okay, thank you.
Okay, attorney Lazar.
-: Good morning, Ellyn Lazar for the Commonwealth.
The Commonwealth asks this court
to affirm the defendant's conviction
and the denial of her new trial motion
and to reverse the order,
partially allowing the defendant's motion
for a required finding of not guilty.
-: Counsel, will you begin with that last issue
that we just finished discussing?
Ellyn: Yes, Your Honor.
-: Do we need expert testimony
as the trial motion judge found here
where you have these other pieces
that the jury could connect on their own
to see whether it meets the instruction
for the return of the verdict here?
Do we need it? -: Yes.
-: I know what you said in your brief,
but counsel comes up and says,
hey, this is all stuff
that we've never really kind of crystallized in this way.
-: Right, Your Honor.
First I would say, no, you would not need expert testimony
because I believe that it is a matter of common knowledge
that any person would know
that if you kill a pregnant woman,
there's a substantial risk of death to the unborn fetus.
But I would also say that here there was medical testimony.
Dr. Paul Dunn testified
that when a mother's heart stops beating,
there is no blood pressure,
so no blood or oxygen flowing to the baby.
And he explained the very short timeframe
during which a fetus can then be saved
in those circumstances.
And he also described the process
of performing a cesarean section,
which as you noted is not a simple procedure.
-: Is the keyword the statute risk?
-: Substantial risk of death. -: Right, no,
but should we be focusing on the risk?
-: Yes, that there did not need
to be shown an actual physical injury to this fetus.
And I also cited two cases, Ronchi and Chapman,
which talk about substantial risk of death to a fetus
even if there is no visible external injury to the baby.
And interestingly enough, here at trial,
the defense asked Judge Kenton-Walker
not to instruct on felony murder with aggravated kidnapping,
arguing that there had been no expert testimony
to show substantial risk of death to the fetus.
And Judge Kenton-Walker rejected that request,
and she specifically rejected Commonwealth versus Scott,
the very case that she relied on in allowing
or partially allowing the required finding
because she said at trial,
I think that if you put all of these things together,
not only that, there was, of course, evidence
regarding the injuries to the victim,
which included not only this nine inch incision
in her abdomen, her reproductive organs were missing,
her bowel was hanging out of that incision,
but she had also sustained blunt force trauma to the head,
had multiple lacerations and skull fractures,
was strangled with a ligature.
So I think that, again, just based on common sense,
but in addition, the medical evidence that was presented
that there was ample evidence
from which the jury could have found
that there was a substantial risk of death to the baby,
which showed serious bodily injury
for purposes of aggravated kidnapping.
With regard to the defendant's motion for a new trial,
the judge correctly found that the defendant failed
to sustain her ineffectiveness claim.
As reflected in trial counsel's affidavit
and also in the judge's finding,
counsel made a strategic choice
not to present an expert witness
on cell site location information.
The defense raised at trial
was that somebody else killed the victim
and then took the baby from her body
and gave it to the defendant.
This defense accounted for the fact
that the defendant had been found in possession of the baby,
and also in the victim's apartment,
the defendant's DNA and fingerprint were found on-
-: She was friendly with the victim though, right?
-: There was one person who testified
that they were acquaintances or friends.
I think that was the landlord.
Several other people,
including the defendant's live-in boyfriend,
said that they were not friends.
And in fact, when the victim's,
I mean when the defendant's boyfriend testified
and said that he got a call from the defendant saying
that she was giving the victim a ride somewhere,
that seemed strange because they were not friends.
But even putting that aside,
even if they were friends or acquaintances,
there was evidence that after 8:00 p.m. on July 23rd,
and the crime was alleged to have happened overnight
from the 23rd into the 24th,
after 8:00 p.m., that the victim and the defendant
were together at this package store,
that the victim was buying wine coolers.
And then in the victim's apartment are two wine coolers.
One has the defendant's DNA on the mouth of the bottle.
The other one has the defendant's fingerprint on the bottle.
And again, the defendant has the victim's baby.
So all of this needs to be accounted for.
-: What do we make on 33E of the roles of the other people
and her role in this?
-: I think what we make of that
is that all of these alleged weaknesses in the evidence
and all of the evidence of an alleged third party culprit,
all of those arguments were made to the jury.
This was the defense that was raised at trial.
The defendant herself says in the brief
that this defense was masterfully presented.
The defendant, I mean, excuse me,
the jury rejected that defense.
I would just like to as to two things
that the defendant states,
one, to the extent that the defendant is relying
upon her own affidavit that she submitted
to the motion judge, the judge explicitly found
that that affidavit was not credible.
Secondly, the defendant repeatedly says today
and in her brief that the blood
or DNA of Mr. Rodriguez was found mixed
with the baby's blood or DNA on one of the tape dispensers,
and that is actually not a correct characterization
of that forensic evidence.
The evidence was that there was a red brown stain
in the tape dispenser that was found to be blood.
The major DNA profile matched the baby,
and there was a minor DNA profile
from which Mr. Rodriguez could not be excluded
as a potential contributor.
So it's an overstatement of that evidence to say
that Mr. Rodriguez's blood and the baby's blood
were found mixed on this dispenser.
And I think-
-: I'm sorry, did the jury have to believe
that Rodriguez was not involved
in order to- -: Absolutely not.
Absolutely not.
Certainly, Your Honor, the defendant
could have committed this crime with other people,
and there absolutely did not have to be a showing
that none of- -: Was the jury instructed
that way as far as she's either a principle
or an aider and abetter?
-: I don't believe so.
I think it was just presented.
It was not presented on a joint venture theory.
They were not instructed on joint venture.
But still, there's no reason that the jury
would have to find that none of these four
or five men had anything to do with a cleanup
or anything else in order for them
to find the defendant guilty.
With regard to the defendant's other 33E arguments
with regard to her mental health,
Judge Kenton-Walker found after hearing testimony
from trial counsel on a hearing on the motion
for a new trial that the defendant explicitly rejected
a mental health defense
after full consultation with her attorney.
So the defendant is now supporting her request
for a reduction in the verdict
on affidavit supplied by a mental health expert,
Dr. Nancy Byatt after trial.
But Dr. Byatt's opinion is seriously weakened by the fact
that it relies upon the exact version of events
that was rejected by the jury.
Dr. Byatt gives an opinion
that the defendant may have accepted the baby
from someone else who killed the victim
because the defendant may have been suffering
from postpartum depression.
This was the exact argument
that the defendant made at trial,
that someone else killed the victim
and took the baby and gave it to the defendant,
and this is what was rejected by the jury.
In addition, to put forth the defense at trial
that she was suffering from postpartum depression,
the defendant would have had to present some evidence
about when she lost her own baby,
and that would've actually strengthened the case
because it would've shown that for weeks
or months the defendant pretended to be pregnant,
and this would've seriously undermined any claim
that unexpectedly on the night of the murder,
somebody called her to come get this baby
if she was walking around for three months pretending
that she was still pregnant after having lost her own baby.
The cases that the defendant cites
in support of her 33E argument are all cases
where there is an impulsive, spontaneous act
with no apparent motive.
This case is not like any of those cases.
There was ample evidence that this was premeditated
for days, weeks, or months,
and there were multiple motives presented.
This is not a case like those
upon which the defendant relies.
So the Commonwealth would ask this court
to affirm the conviction of first degree murder.