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<v ->SJC-12100, Commonwealth versus Julie Corey.</v>

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<v ->Good morning, Your Honor.</v>

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May it please the court, I'm Janet Pumphrey for Julie Corey.

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I'd like to begin, if I may, with the 33E argument

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I gave you in my brief

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and also especially in the reply brief.

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Basically 33E cases that been given 33E consideration

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in three different batches,

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one is where the case may have legally sufficient,

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but far from overwhelming evidence, that's this case.

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Cases where the court considered a mental health issue,

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that's this case.

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And cases where the court considered

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the defendant's character, and that's this case.

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So psychiatric illness, she was mentally impaired

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for her entire life with depression.

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And then after her miscarriage,

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she had postpartum depression that affected her ability

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to make decisions in a normal manner

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to appreciate the consequences

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of her actions and her choices.

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She just didn't understand that keeping the baby

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and calling the baby her own was not the thing to do.

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She had a mood disorder,

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she had postpartum psychosis,

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and it just really caused a delusional belief

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that she could keep the baby

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and that was appropriate and ethical.

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More of a mental illness like voluntary intoxication

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has beared upon the specific intent required

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for murder in the first degree.

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The unusual circumstances of this case

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make it really appropriate for 33E consideration,

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but more importantly is my second batch of cases,

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no overwhelming evidence of guilt.

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Tito Rodriguez's motives and Julie Corey motives

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for this murder are like night and day.

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At the time of Haynes's murder,

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Rodriguez had a new girlfriend whom he planned to marry.

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And in fact, on the very morning

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when they discovered Darlene Haynes's body,

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he was at the City Hall getting a marriage license

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to marry someone else.

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He carefully planned this murder.

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He found somebody who wanted the baby.

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And according to the Commonwealth's only closing argument,

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Julie Corey's only motive

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for murdering her friends was wanting a baby.

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Rodriguez's powerful motive

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was wanting to marry his new girlfriend

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and eliminate his payments to Haynes

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and keep his baby alive.

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The brutality of this murder,

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Haynes died of multiple blunt forced trauma to the head,

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which broke her skull.

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Then she was strangled with an electric cord,

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wrapped twice around her neck,

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and the killer cut into her abdomen

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and removed her uterus, ovaries, and tubes.

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The prosecutor described this as a crime of passion,

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and it certainly was.

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Corey had no anger against her friend.

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The victim was her friend.

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She only wanted the baby

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that Rodriguez was going to give her.

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Rodriguez had even attempted

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to kill his previous girlfriend in exactly the same way.

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He grabbed her, he put a rope around her neck,

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choked her, and saying he was gonna hang her

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and that it would only hurt for a minute

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and then she would be dead.

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Rodriguez was an angry, hostile man

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who had a pattern of violence against women.

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Corey had no violent history at all,

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but most importantly, the night of the murder,

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there were multiple men.

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There was a lot of testimony.

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There were multiple men going in

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and out of the victim's apartment.

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From two o'clock to 2:30,

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there was banging and water running.

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At 4:30, there was banging and furniture.

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Tito Rodriguez was definitely there

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because his DNA was mixed

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with the baby's DNA on the first aid kit.

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So he probably handled the baby

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after he took the baby out of the womb

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and gave the baby to Julie Corey.

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The next day, he was seen walking away

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from the cemetery with dirty hands.

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And the implication is that he buried the extra body parts

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in the cemetery.

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Timothy Tripp climbed into the apartment window

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at 10:30 or 11.

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He pulled down the blinds so nobody could see him.

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When somebody came...

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When a witness came and said

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they were to take a table outta the apartment,

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he wouldn't let 'em in,

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and he blocked the door.

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On Sunday, Tripp and Davio were in the apartment,

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and they dumped water outta a fish fishbowl,

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and they appeared to be all sweaty and nervous

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and tried to hide their faces.

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Davio, again, was on the back porch the night of the murder.

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He was seen going into a window,

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and the men were nervous and not making eye contact.

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Not a single eyewitness testified

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that they heard a baby that night.

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If Julie Corey had been there

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and had committed this murder, caring for a newborn baby,

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and simultaneously extensively cleaning up

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over the course of hours,

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somebody would've heard the baby cry.

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There was no hearing of the baby cry,

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but they heard a lot of other things going on.

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In short, five men coming in and outta the apartment

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of the night of the murder

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plus over the next day, a few days.

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And the only evidence that Corey was there

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was an elderly woman's hearsay statement

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that was not admitted for the truth.

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I won't go through the various aspects

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of the inadequate police investigation.

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I've made that argument in my brief,

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and it's just episode after episode,

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things that they should have done

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because the guilt really was going

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towards other people and not towards Julie Corey.

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<v ->Counsel, may I ask you,</v>
<v ->Mhm?</v>

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<v ->To whom does the benefit</v>

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of the light most favor belong to?

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<v ->Oh, it belongs...</v>

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The light most favorable, it belongs to the commonwealth.

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<v ->So, when you're listing all of these things,</v>

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it sounds like you're asking us to look

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to this in the light most favorable to you.

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<v ->Mhm, well, I'm asking you to look</v>

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at the facts and basically the third party culprit.

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<v ->I am looking at the facts</v>

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because there's a whole lot of facts

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that implicate your client that you're not talking about,

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which is why I'm asking that.

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You're going through this litany of all of these things

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<v ->Exactly.</v>
<v ->To look in favor</v>

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of your client, but your client showed up with the baby.

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<v ->That's the most...</v>

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That's-
<v ->Right?</v>

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<v ->Go ahead.</v>

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<v ->Your client had the baby.</v>
<v ->That's right.</v>

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<v ->But the third party culprit</v>

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that you're saying had all of this motivation

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to do this incredibly terrible crime didn't have the baby.

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<v ->That's exactly right.</v>
<v ->They didn't present the baby</v>

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as their own and having delivered that baby

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and fake birth certificates

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and all of the rest of this stuff.

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So I'm finding it a little bit interesting

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that you're raising all of this,

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but I'm trying to figure out,

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how does that inform our standard of review here?

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<v ->Well, there's absolutely no doubt</v>

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that Julie Corey had the baby,

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and I think that was sort of the overwhelming issue

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before the jury was, how did she get the baby

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if she was not the murderer?

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And I think that she had the baby.

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<v ->Well, isn't the verdict telling you how,</v>

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where they landed

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because she was murdered.
<v ->Exactly, exactly.</v>

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<v ->Right.</v>
<v ->Well, I'm saying</v>

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that this is appropriate for 33E

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for, you know, either a second degree

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or voluntary or a manslaughter

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or even a insufficient evidence of guilt

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if you take...

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I mean, I was listening to my brother's argument

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and thinking, insufficient evidence of guilt?

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There's really not much guilt against Julie Corey.

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She was definitely there.

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She definitely had the baby.

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Her affidavit says, yes, she showed up.

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He called, or Rodriguez called her and said,

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"Come get the baby."

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And so she went.

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Her cell phone shows that she was there.

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There was a witness that said she was there,

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and he gave her the baby.

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It's explainable.

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Rodriguez acted like a guilty man.

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When he was called at trial to testify,

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he asserted his Fifth Amendment privilege.

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At no time in his police interview

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did Rodriguez ask, what happened to the baby?

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Is my baby okay?

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He never asked that because he knew the baby was okay

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because he gave the baby to Julie Corey.

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He knew that Haynes was dead because he killed her.

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Julie Corey was not involved in this extensive coverup.

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The coverup lasted for two more solid days

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with men coming in and outta the apartment.

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They were, you know, acting furtively,

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conspiratorially, and she was not there

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because she was showing the baby

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to other people during this time.

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There was evidence of that.

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And then she went to New Hampshire.

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There was evidence of that.

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So she wasn't even around for the days after the murder.

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Her cell phone evidence, cell phone records show

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that she was there in the early evening,

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but not in the later part of the night.

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<v ->Yeah, which is the problem of the issue you raised</v>

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about ineffective assistance

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that Judge Kenton-Walker

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I thought dealt with in the motion

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for a new trial.
<v ->Exactly, exactly.</v>

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Can I just finish this part, and then I'll move on?

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Yeah, thank you.

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Rodriguez was a personal care assistant or paramedic.

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So he had these skills to cut into her

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and take the baby out alive

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and then take out the other organs.

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Corey did not have those skills.

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And finally, Corey and the victim were friends.

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I gave you the Seit case and the Jones case.

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There's no evidence of animosity between them.

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She had really no...

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All she wanted was the baby.

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So in conclusion with the 33E argument,

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I gave you cases of legally sufficient,

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but far from overwhelming evidence of guilt,

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cases where the court considered

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a defendant's mental health,

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and cases where the court considered

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a defendant's character.

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In all of those cases, the court reduced the verdict

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to a second degree or a manslaughter

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or perhaps a not guilty for insufficient evidence.

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The cell phone, and I can move on, Justice Gaziano.

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The Commonwealth's expert really expertly described

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how when her cell phone was not recording anything,

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in her affidavit, she was asleep

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and she was not on the cell phone,

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but she could have been driving someplace else

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and just it was not picking up.

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<v ->This is deference to Judge Kenton-Walker, right,</v>

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because she's trial judge,
<v ->That's right.</v>

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<v ->And she had the error,</v>

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and your expert and commonwealth's expert.

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<v ->Exactly, she was both the trial</v>

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and the motion for (indistinct).

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And she relied on that trial court's reasoning

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for not calling the cell phone expert.

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He said that the trial counsel said

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that he decided because he believed

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that the third party defense,

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the third party culprit defense, was really strong,

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and his Bowden defense was strong, and they were strong,

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but the cell phone expert would've added to that,

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and he could certainly add to that.

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<v ->I don't get that because if the defense is</v>

263
00:10:27.840 --> 00:10:30.332
that she was there, she ends up with the baby,

264
00:10:30.332 --> 00:10:33.720
and we have these lapses where nobody knows

265
00:10:33.720 --> 00:10:35.130
from the cell phone 'cause it...

266
00:10:35.130 --> 00:10:38.320
I think the way the motion for trial is phrased

267
00:10:39.300 --> 00:10:40.440
promises a little bit too much.

268
00:10:40.440 --> 00:10:43.083
It says this is going to exculpate her,

269
00:10:43.950 --> 00:10:46.680
or it would be impossible for her to commit this crime.

270
00:10:46.680 --> 00:10:48.660
<v ->Well, I think...</v>
<v ->I don't get the impossible.</v>

271
00:10:48.660 --> 00:10:51.810
But I think the stronger defense, of course,

272
00:10:51.810 --> 00:10:53.997
was she was there, she ends up with the baby,

273
00:10:53.997 --> 00:10:57.630
but this is an act that takes a lot of people

274
00:10:57.630 --> 00:10:59.132
<v ->A lot of time.</v>
<v ->And a lot of time.</v>

275
00:10:59.132 --> 00:11:00.630
<v ->That's right.</v>
<v ->And guess who did it?</v>

276
00:11:00.630 --> 00:11:01.500
The guys did it.

277
00:11:01.500 --> 00:11:03.741
<v ->Exactly.</v>
<v ->To be misogynistic, I guess.</v>

278
00:11:03.741 --> 00:11:04.952
<v ->And that's basically what I'm arguing</v>

279
00:11:04.952 --> 00:11:06.690
is that she was definitely there.

280
00:11:06.690 --> 00:11:09.270
Her cell phone records say that she was there,

281
00:11:09.270 --> 00:11:12.401
and the gaps when her cell phone was not active,

282
00:11:12.401 --> 00:11:15.090
those are gaps throughout the night

283
00:11:15.090 --> 00:11:16.830
in between like two o'clock to four o'clock

284
00:11:16.830 --> 00:11:17.970
and four o'clock to six o'clock.

285
00:11:17.970 --> 00:11:20.850
And if she had in that time driven back

286
00:11:20.850 --> 00:11:24.120
across Worcester and gone back to 94th Southgate

287
00:11:24.120 --> 00:11:26.760
and then gone back to the other side of Worcester,

288
00:11:26.760 --> 00:11:28.260
that really wouldn't make a whole lot of sense

289
00:11:28.260 --> 00:11:30.600
because the cleanup was just huge.

290
00:11:30.600 --> 00:11:33.510
And as I said, the days after the murder,

291
00:11:33.510 --> 00:11:35.460
she was not even...

292
00:11:35.460 --> 00:11:38.070
She certainly wasn't at 94th Southgate,

293
00:11:38.070 --> 00:11:38.903
she was showing off the baby

294
00:11:38.903 --> 00:11:42.783
and making people believe the baby was her own.

295
00:11:47.070 --> 00:11:48.919
And with the extensive cleanup that

296
00:11:48.919 --> 00:11:53.919
that took place over the next two days and that night,

297
00:11:53.970 --> 00:11:57.086
again, she had the baby during this time, and-

298
00:11:57.086 --> 00:11:59.190
<v ->Why would she have had to be there</v>

299
00:11:59.190 --> 00:12:01.260
for the cleanup in order for-

300
00:12:01.260 --> 00:12:02.730
<v ->Well, somebody had to do the cleanup.</v>

301
00:12:02.730 --> 00:12:06.750
<v ->Well, but she was a part of...</v>

302
00:12:06.750 --> 00:12:09.300
She could have been a part of the whole plan to-

303
00:12:09.300 --> 00:12:10.410
<v ->Well, had she been there,</v>

304
00:12:10.410 --> 00:12:11.610
if she had she really been there

305
00:12:11.610 --> 00:12:15.720
and had all these men with her, she still had the baby.

306
00:12:15.720 --> 00:12:17.520
And then nobody heard the baby.

307
00:12:17.520 --> 00:12:19.440
I mean, Julie Corey had the baby.

308
00:12:19.440 --> 00:12:22.590
And so I would argue that she wasn't there.

309
00:12:22.590 --> 00:12:24.630
She picked up the baby and then she left

310
00:12:24.630 --> 00:12:25.680
and didn't come back.

311
00:12:29.452 --> 00:12:32.940
I mean, the third party defense culprit,

312
00:12:32.940 --> 00:12:35.880
party culprit defense was just as expertly established

313
00:12:35.880 --> 00:12:37.350
by the trial and counsel,

314
00:12:37.350 --> 00:12:39.690
but I think if he had added the cell phone expert

315
00:12:39.690 --> 00:12:41.760
to testify, he could've made it...

316
00:12:41.760 --> 00:12:44.820
He could've argued to the jury it was really impossible

317
00:12:44.820 --> 00:12:47.100
for her to be the murderer because she may have been there,

318
00:12:47.100 --> 00:12:49.263
but she wasn't there for that entire time,

319
00:12:50.910 --> 00:12:52.460
the entire time of the cleanup.

320
00:12:54.390 --> 00:12:55.710
<v ->If you could help me understand</v>

321
00:12:55.710 --> 00:13:00.480
that I still don't understand how if this expert

322
00:13:00.480 --> 00:13:03.120
had testified the way you just described

323
00:13:03.120 --> 00:13:06.450
how that would've been helpful to the defense

324
00:13:06.450 --> 00:13:07.890
with all of the other evidence

325
00:13:07.890 --> 00:13:12.000
that you're discounting quite dramatically,

326
00:13:12.000 --> 00:13:14.010
but how that would've helped you.

327
00:13:14.010 --> 00:13:15.870
<v ->Discounting that she had the baby</v>

328
00:13:15.870 --> 00:13:17.520
<v ->No, discounting all of the evidence</v>

329
00:13:17.520 --> 00:13:19.920
that inculpates your client.

330
00:13:19.920 --> 00:13:22.170
<v ->Oh, that inculpates my client.</v>

331
00:13:22.170 --> 00:13:23.250
Besides having the baby,

332
00:13:23.250 --> 00:13:24.630
what other evidence really is there?

333
00:13:24.630 --> 00:13:25.463
She was there.

334
00:13:25.463 --> 00:13:29.160
<v ->Again, I go back, and I'm not gonna do a slow walk</v>

335
00:13:29.160 --> 00:13:31.980
through the evidence, but there's powerful evidence

336
00:13:31.980 --> 00:13:35.250
of motive of your client who was deathly afraid

337
00:13:35.250 --> 00:13:37.890
that she was gonna lose the love of her paramour

338
00:13:37.890 --> 00:13:39.540
if she didn't have his baby.

339
00:13:39.540 --> 00:13:41.483
That evidence was before the jury.

340
00:13:41.483 --> 00:13:42.630
<v ->It was.</v>
<v ->So I know</v>

341
00:13:42.630 --> 00:13:43.790
you've made mention of the fact

342
00:13:43.790 --> 00:13:48.360
that the victim's boyfriend was getting married

343
00:13:48.360 --> 00:13:50.460
and going off to live this other life,

344
00:13:50.460 --> 00:13:54.300
but the jury had evidence that your client needed

345
00:13:54.300 --> 00:13:57.240
or in her mind thought she needed to have the baby,

346
00:13:57.240 --> 00:14:00.270
a baby, to save her relationship.

347
00:14:00.270 --> 00:14:01.686
So again, so now when you're telling me

348
00:14:01.686 --> 00:14:05.261
that the fact that putting her there

349
00:14:05.261 --> 00:14:07.680
and using the cell phone,

350
00:14:07.680 --> 00:14:10.320
that that was manifestly unreasonable

351
00:14:10.320 --> 00:14:13.080
by the trial counsel to not pursue this.

352
00:14:13.080 --> 00:14:16.020
I'm just wondering how that would really help you

353
00:14:16.020 --> 00:14:17.940
for us to find that.

354
00:14:17.940 --> 00:14:19.710
<v ->Well, I think I guess it really would've helped</v>

355
00:14:19.710 --> 00:14:22.260
the third party culprit defense is what it would've helped

356
00:14:22.260 --> 00:14:23.790
because Julie Corey was there.

357
00:14:23.790 --> 00:14:26.040
There's no doubt that she was there,

358
00:14:26.040 --> 00:14:28.320
but I think if you had the cell phone evidence,

359
00:14:28.320 --> 00:14:31.710
again, she would have to transverse Worcester

360
00:14:31.710 --> 00:14:34.992
a number of times, and it doesn't compute

361
00:14:34.992 --> 00:14:38.790
with the evidence, the evidence of constant cleaning up

362
00:14:38.790 --> 00:14:40.050
and going in and outta the apartment.

363
00:14:40.050 --> 00:14:43.110
It's just somebody was doing that and it was five men.

364
00:14:43.110 --> 00:14:45.490
<v ->I'm trying to understand why you're saying</v>

365
00:14:45.490 --> 00:14:49.710
that she had to have been part of the whole thing

366
00:14:49.710 --> 00:14:54.710
including the cleanup, and I mean that why is that...

367
00:14:55.290 --> 00:14:57.570
Why would that show that she wasn't part

368
00:14:57.570 --> 00:15:00.631
of the killing of the victim?
<v ->Well, my argument</v>

369
00:15:00.631 --> 00:15:02.490
is that she wasn't part of the killing.

370
00:15:02.490 --> 00:15:03.920
<v ->Oh, I understand that.</v>
<v ->My argument was that</v>

371
00:15:03.920 --> 00:15:05.667
she perhaps knew about the killing,

372
00:15:05.667 --> 00:15:08.340
and I don't know whether that's true or not,

373
00:15:08.340 --> 00:15:10.110
but she was told to come and pick up a baby,

374
00:15:10.110 --> 00:15:12.423
and she did that, and that's all she did.

375
00:15:13.410 --> 00:15:15.060
<v ->She was told to come and pick up the baby</v>

376
00:15:15.060 --> 00:15:16.830
in an apartment where people are cleaning up

377
00:15:16.830 --> 00:15:18.660
after a gruesome murder
<v ->Exactly, exactly.</v>

378
00:15:18.660 --> 00:15:21.210
<v ->Of who you described was her friend.</v>

379
00:15:21.210 --> 00:15:24.868
<v ->Yeah.</v>
<v ->And the logical extension</v>

380
00:15:24.868 --> 00:15:27.360
of that is go off to New Hampshire

381
00:15:27.360 --> 00:15:29.430
and show off this baby as your own.

382
00:15:29.430 --> 00:15:30.720
<v ->Exactly.</v>
<v ->Okay.</v>

383
00:15:30.720 --> 00:15:32.580
<v ->And that's exactly what happened.</v>

384
00:15:32.580 --> 00:15:37.080
<v ->What about the DNA evidence on the bottles and the like?</v>

385
00:15:37.080 --> 00:15:37.920
<v ->There was DNA...</v>

386
00:15:37.920 --> 00:15:40.170
Oh, on the bottle, there was, there was,

387
00:15:40.170 --> 00:15:41.583
but again, she was there.

388
00:15:42.780 --> 00:15:45.270
It was on some kind of a-
<v ->The wine.</v>

389
00:15:45.270 --> 00:15:47.970
<v ->Yeah, some kind of a wine cooler or something.</v>

390
00:15:47.970 --> 00:15:49.863
So moving on to the cross appeal,

391
00:15:52.440 --> 00:15:54.420
the aggravated kidnapping statute provides

392
00:15:54.420 --> 00:15:56.190
that whoever commits kidnapping-

393
00:15:56.190 --> 00:15:58.140
<v ->That has to be the kidnapping of the baby, of course.</v>

394
00:15:58.140 --> 00:15:59.640
<v ->Of the baby, yes, yes, for sure.</v>

395
00:15:59.640 --> 00:16:00.603
That's, yeah.

396
00:16:01.980 --> 00:16:03.660
There has to be serious bodily injury.

397
00:16:03.660 --> 00:16:06.058
And that's permanent disfigurement, protracted loss-

398
00:16:06.058 --> 00:16:07.476
<v ->And it's not the potential</v>

399
00:16:07.476 --> 00:16:09.060
for serious bodily injury.

400
00:16:09.060 --> 00:16:10.140
It's serious bodily injury.

401
00:16:10.140 --> 00:16:12.870
<v ->It's just serious bodily injury, exactly.</v>

402
00:16:12.870 --> 00:16:13.703
But none of the-

403
00:16:13.703 --> 00:16:15.510
<v ->And didn't we have that here?</v>

404
00:16:15.510 --> 00:16:17.456
<v ->No.</v>
<v ->You have the testimony</v>

405
00:16:17.456 --> 00:16:22.456
of the doctor and you have the testimony of folks

406
00:16:22.470 --> 00:16:27.470
who saw the baby who did need expert testimony

407
00:16:27.600 --> 00:16:29.610
to put two and two together,

408
00:16:29.610 --> 00:16:32.160
saying that if you look at the baby

409
00:16:32.160 --> 00:16:33.720
and you look at the way the baby looked

410
00:16:33.720 --> 00:16:36.960
after the baby was, I'm not gonna say delivered

411
00:16:36.960 --> 00:16:40.813
'cause that seems to connote something medical,

412
00:16:40.813 --> 00:16:45.690
not a murder, but in the testimony of the doctor saying

413
00:16:45.690 --> 00:16:50.690
if you deprive the baby of the oxygen

414
00:16:51.390 --> 00:16:53.062
being tethered to his mother,

415
00:16:53.062 --> 00:16:56.040
that these are the kinds of things that end up happening.

416
00:16:56.040 --> 00:16:59.370
So, why don't we have that here?

417
00:16:59.370 --> 00:17:02.340
<v ->Well, I think what the motion for new trial judge</v>

418
00:17:02.340 --> 00:17:04.890
said was that that argument was speculative

419
00:17:04.890 --> 00:17:07.347
because they really needed an expert

420
00:17:07.347 --> 00:17:09.870
to prove that there was actually harm to the baby.

421
00:17:09.870 --> 00:17:11.700
I mean, if the baby was delivered

422
00:17:11.700 --> 00:17:14.040
and if there was a lack of oxygen to the baby,

423
00:17:14.040 --> 00:17:15.900
but that wasn't proven.

424
00:17:15.900 --> 00:17:18.630
The baby was cold, and the baby was small,

425
00:17:18.630 --> 00:17:20.850
and those were the only negative,

426
00:17:20.850 --> 00:17:23.340
you know, physical characteristics of the baby.

427
00:17:23.340 --> 00:17:24.265
There was nothing else.

428
00:17:24.265 --> 00:17:26.880
You know, there was no-

429
00:17:26.880 --> 00:17:29.040
<v ->So you have to inflict serious bodily injury,</v>

430
00:17:29.040 --> 00:17:31.050
thereby upon another person.

431
00:17:31.050 --> 00:17:34.294
<v ->That's right, and there just wasn't that here.</v>

432
00:17:34.294 --> 00:17:37.260
<v ->And then serious bodily injuries,</v>

433
00:17:37.260 --> 00:17:39.630
permanent disfigurement, impairments.

434
00:17:39.630 --> 00:17:40.852
<v ->That's right, or substantial risk of death.</v>

435
00:17:40.852 --> 00:17:42.810
<v ->Substantial risk of death.</v>
<v ->Yeah, yeah, (indistinct).</v>

436
00:17:42.810 --> 00:17:45.780
<v ->How can you say there was no substantial risk of death</v>

437
00:17:45.780 --> 00:17:49.503
where somebody who's not a doctor,

438
00:17:50.850 --> 00:17:52.653
who doesn't perform surgery,

439
00:17:54.240 --> 00:17:59.240
cut open the person who he's just killed

440
00:17:59.850 --> 00:18:01.780
or she's just killed

441
00:18:02.700 --> 00:18:06.750
and not have a substantial risk of injury

442
00:18:06.750 --> 00:18:08.340
or death to the fetus.

443
00:18:08.340 --> 00:18:11.470
<v ->But I think that Judge Kenton-Smith.</v>

444
00:18:11.470 --> 00:18:13.740
<v ->Walker.</v>
<v ->Kenton-Walker said that</v>

445
00:18:13.740 --> 00:18:15.180
that was speculative,

446
00:18:15.180 --> 00:18:16.740
that there's just no proof.

447
00:18:16.740 --> 00:18:19.650
<v ->I understand that that's what the judge said,</v>

448
00:18:19.650 --> 00:18:24.150
but isn't it fair to say that anyone...

449
00:18:24.150 --> 00:18:27.753
It's not something that needs expert testimony.

450
00:18:28.980 --> 00:18:31.500
<v ->Well, she seemed to think it needed expert testimony.</v>

451
00:18:31.500 --> 00:18:34.590
<v ->Well, perhaps, but the question is</v>

452
00:18:34.590 --> 00:18:36.180
whether that was an error.

453
00:18:36.180 --> 00:18:39.060
And so, when you still go back

454
00:18:39.060 --> 00:18:43.020
to the testimony at trial, you have the coroner

455
00:18:43.020 --> 00:18:45.870
or the medical examiner who testifies,

456
00:18:45.870 --> 00:18:48.163
says, "I can't even call this a cesarean section."

457
00:18:48.163 --> 00:18:49.311
<v Janet>That's exactly right.</v>

458
00:18:49.311 --> 00:18:50.400
<v ->That's exactly right.</v>
<v ->You have the doctor</v>

459
00:18:50.400 --> 00:18:52.200
who testifies and says

460
00:18:52.200 --> 00:18:57.000
that having a cesarean section is a medical procedure

461
00:18:57.000 --> 00:19:01.290
that's serious where we're not talking about

462
00:19:01.290 --> 00:19:04.410
just kind of run of the mill day surgery.

463
00:19:04.410 --> 00:19:06.000
And so why does the jury...

464
00:19:06.000 --> 00:19:09.957
So at its threshold, experts are only supposed

465
00:19:09.957 --> 00:19:13.511
to be listened to if they're helpful,

466
00:19:13.511 --> 00:19:16.140
and if it's not helpful to the jury

467
00:19:16.140 --> 00:19:18.780
to say, here's what the instruction is,

468
00:19:18.780 --> 00:19:22.020
and how can I not find likelihood of serious injury

469
00:19:22.020 --> 00:19:25.110
or death when the baby was extracted

470
00:19:25.110 --> 00:19:26.910
from this woman in this way,

471
00:19:26.910 --> 00:19:30.000
why do I need an expert to draw that conclusion?

472
00:19:30.000 --> 00:19:33.384
<v ->Well, I think that I believe</v>

473
00:19:33.384 --> 00:19:34.977
that there should have been an expert there

474
00:19:34.977 --> 00:19:37.071
or at least someone to...

475
00:19:37.071 --> 00:19:39.360
There should have been serious bodily injury

476
00:19:39.360 --> 00:19:41.973
and it just wasn't and substantial risk of death.

477
00:19:42.810 --> 00:19:46.950
He was trained in some way, is somehow trained,

478
00:19:46.950 --> 00:19:48.570
and the baby did live,

479
00:19:48.570 --> 00:19:50.520
and the baby was only cold and small,

480
00:19:50.520 --> 00:19:53.463
not even in any way physically impaired.

481
00:19:55.470 --> 00:19:57.810
Without any other questions, I will rest on my brief.

482
00:19:57.810 --> 00:19:59.830
Thank you.
<v ->Okay, thank you.</v>

483
00:20:02.790 --> 00:20:04.083
Okay, attorney Lazar.

484
00:20:06.300 --> 00:20:09.330
<v ->Good morning, Ellyn Lazar for the Commonwealth.</v>

485
00:20:09.330 --> 00:20:11.070
The Commonwealth asks this court

486
00:20:11.070 --> 00:20:13.410
to affirm the defendant's conviction

487
00:20:13.410 --> 00:20:15.450
and the denial of her new trial motion

488
00:20:15.450 --> 00:20:16.590
and to reverse the order,

489
00:20:16.590 --> 00:20:18.780
partially allowing the defendant's motion

490
00:20:18.780 --> 00:20:20.790
for a required finding of not guilty.

491
00:20:20.790 --> 00:20:23.850
<v ->Counsel, will you begin with that last issue</v>

492
00:20:23.850 --> 00:20:26.245
that we just finished discussing?

493
00:20:26.245 --> 00:20:29.520
<v Ellyn>Yes, Your Honor.</v>

494
00:20:29.520 --> 00:20:32.460
<v ->Do we need expert testimony</v>

495
00:20:32.460 --> 00:20:34.102
as the trial motion judge found here

496
00:20:34.102 --> 00:20:37.290
where you have these other pieces

497
00:20:37.290 --> 00:20:39.930
that the jury could connect on their own

498
00:20:39.930 --> 00:20:43.650
to see whether it meets the instruction

499
00:20:43.650 --> 00:20:45.840
for the return of the verdict here?

500
00:20:45.840 --> 00:20:47.100
Do we need it?
<v ->Yes.</v>

501
00:20:47.100 --> 00:20:48.510
<v ->I know what you said in your brief,</v>

502
00:20:48.510 --> 00:20:50.610
but counsel comes up and says,

503
00:20:50.610 --> 00:20:52.236
hey, this is all stuff

504
00:20:52.236 --> 00:20:56.310
that we've never really kind of crystallized in this way.

505
00:20:56.310 --> 00:20:57.143
<v ->Right, Your Honor.</v>

506
00:20:57.143 --> 00:21:01.350
First I would say, no, you would not need expert testimony

507
00:21:01.350 --> 00:21:04.470
because I believe that it is a matter of common knowledge

508
00:21:04.470 --> 00:21:05.760
that any person would know

509
00:21:05.760 --> 00:21:08.070
that if you kill a pregnant woman,

510
00:21:08.070 --> 00:21:11.940
there's a substantial risk of death to the unborn fetus.

511
00:21:11.940 --> 00:21:15.543
But I would also say that here there was medical testimony.

512
00:21:17.545 --> 00:21:19.334
Dr. Paul Dunn testified

513
00:21:19.334 --> 00:21:22.290
that when a mother's heart stops beating,

514
00:21:22.290 --> 00:21:23.640
there is no blood pressure,

515
00:21:23.640 --> 00:21:27.570
so no blood or oxygen flowing to the baby.

516
00:21:27.570 --> 00:21:30.420
And he explained the very short timeframe

517
00:21:30.420 --> 00:21:33.390
during which a fetus can then be saved

518
00:21:33.390 --> 00:21:34.860
in those circumstances.

519
00:21:34.860 --> 00:21:36.840
And he also described the process

520
00:21:36.840 --> 00:21:38.910
of performing a cesarean section,

521
00:21:38.910 --> 00:21:41.238
which as you noted is not a simple procedure.

522
00:21:41.238 --> 00:21:43.923
<v ->Is the keyword the statute risk?</v>

523
00:21:44.970 --> 00:21:46.455
<v ->Substantial risk of death.</v>
<v ->Right, no,</v>

524
00:21:46.455 --> 00:21:48.930
but should we be focusing on the risk?

525
00:21:48.930 --> 00:21:50.820
<v ->Yes, that there did not need</v>

526
00:21:50.820 --> 00:21:55.800
to be shown an actual physical injury to this fetus.

527
00:21:55.800 --> 00:21:59.310
And I also cited two cases, Ronchi and Chapman,

528
00:21:59.310 --> 00:22:04.310
which talk about substantial risk of death to a fetus

529
00:22:04.680 --> 00:22:09.000
even if there is no visible external injury to the baby.

530
00:22:09.000 --> 00:22:13.350
And interestingly enough, here at trial,

531
00:22:13.350 --> 00:22:15.300
the defense asked Judge Kenton-Walker

532
00:22:15.300 --> 00:22:19.590
not to instruct on felony murder with aggravated kidnapping,

533
00:22:19.590 --> 00:22:23.010
arguing that there had been no expert testimony

534
00:22:23.010 --> 00:22:26.550
to show substantial risk of death to the fetus.

535
00:22:26.550 --> 00:22:29.610
And Judge Kenton-Walker rejected that request,

536
00:22:29.610 --> 00:22:32.400
and she specifically rejected Commonwealth versus Scott,

537
00:22:32.400 --> 00:22:35.220
the very case that she relied on in allowing

538
00:22:35.220 --> 00:22:38.500
or partially allowing the required finding

539
00:22:39.480 --> 00:22:41.280
because she said at trial,

540
00:22:41.280 --> 00:22:44.010
I think that if you put all of these things together,

541
00:22:44.010 --> 00:22:46.200
not only that, there was, of course, evidence

542
00:22:46.200 --> 00:22:48.330
regarding the injuries to the victim,

543
00:22:48.330 --> 00:22:51.120
which included not only this nine inch incision

544
00:22:51.120 --> 00:22:55.050
in her abdomen, her reproductive organs were missing,

545
00:22:55.050 --> 00:22:58.260
her bowel was hanging out of that incision,

546
00:22:58.260 --> 00:23:01.740
but she had also sustained blunt force trauma to the head,

547
00:23:01.740 --> 00:23:04.320
had multiple lacerations and skull fractures,

548
00:23:04.320 --> 00:23:06.270
was strangled with a ligature.

549
00:23:06.270 --> 00:23:09.630
So I think that, again, just based on common sense,

550
00:23:09.630 --> 00:23:12.990
but in addition, the medical evidence that was presented

551
00:23:12.990 --> 00:23:14.730
that there was ample evidence

552
00:23:14.730 --> 00:23:16.530
from which the jury could have found

553
00:23:16.530 --> 00:23:19.710
that there was a substantial risk of death to the baby,

554
00:23:19.710 --> 00:23:22.050
which showed serious bodily injury

555
00:23:22.050 --> 00:23:24.123
for purposes of aggravated kidnapping.

556
00:23:27.030 --> 00:23:31.200
With regard to the defendant's motion for a new trial,

557
00:23:31.200 --> 00:23:33.750
the judge correctly found that the defendant failed

558
00:23:33.750 --> 00:23:36.180
to sustain her ineffectiveness claim.

559
00:23:36.180 --> 00:23:38.520
As reflected in trial counsel's affidavit

560
00:23:38.520 --> 00:23:40.140
and also in the judge's finding,

561
00:23:40.140 --> 00:23:41.880
counsel made a strategic choice

562
00:23:41.880 --> 00:23:43.890
not to present an expert witness

563
00:23:43.890 --> 00:23:46.470
on cell site location information.

564
00:23:46.470 --> 00:23:48.540
The defense raised at trial

565
00:23:48.540 --> 00:23:51.480
was that somebody else killed the victim

566
00:23:51.480 --> 00:23:53.580
and then took the baby from her body

567
00:23:53.580 --> 00:23:55.470
and gave it to the defendant.

568
00:23:55.470 --> 00:23:57.840
This defense accounted for the fact

569
00:23:57.840 --> 00:24:01.590
that the defendant had been found in possession of the baby,

570
00:24:01.590 --> 00:24:03.780
and also in the victim's apartment,

571
00:24:03.780 --> 00:24:07.361
the defendant's DNA and fingerprint were found on-

572
00:24:07.361 --> 00:24:10.800
<v ->She was friendly with the victim though, right?</v>

573
00:24:10.800 --> 00:24:12.990
<v ->There was one person who testified</v>

574
00:24:12.990 --> 00:24:15.000
that they were acquaintances or friends.

575
00:24:15.000 --> 00:24:16.470
I think that was the landlord.

576
00:24:16.470 --> 00:24:17.760
Several other people,

577
00:24:17.760 --> 00:24:19.680
including the defendant's live-in boyfriend,

578
00:24:19.680 --> 00:24:21.630
said that they were not friends.

579
00:24:21.630 --> 00:24:24.810
And in fact, when the victim's,

580
00:24:24.810 --> 00:24:27.570
I mean when the defendant's boyfriend testified

581
00:24:27.570 --> 00:24:30.840
and said that he got a call from the defendant saying

582
00:24:30.840 --> 00:24:33.690
that she was giving the victim a ride somewhere,

583
00:24:33.690 --> 00:24:36.870
that seemed strange because they were not friends.

584
00:24:36.870 --> 00:24:39.120
But even putting that aside,

585
00:24:39.120 --> 00:24:41.730
even if they were friends or acquaintances,

586
00:24:41.730 --> 00:24:45.870
there was evidence that after 8:00 p.m. on July 23rd,

587
00:24:45.870 --> 00:24:48.300
and the crime was alleged to have happened overnight

588
00:24:48.300 --> 00:24:50.730
from the 23rd into the 24th,

589
00:24:50.730 --> 00:24:54.450
after 8:00 p.m., that the victim and the defendant

590
00:24:54.450 --> 00:24:56.910
were together at this package store,

591
00:24:56.910 --> 00:24:59.550
that the victim was buying wine coolers.

592
00:24:59.550 --> 00:25:02.790
And then in the victim's apartment are two wine coolers.

593
00:25:02.790 --> 00:25:06.480
One has the defendant's DNA on the mouth of the bottle.

594
00:25:06.480 --> 00:25:10.380
The other one has the defendant's fingerprint on the bottle.

595
00:25:10.380 --> 00:25:14.970
And again, the defendant has the victim's baby.

596
00:25:14.970 --> 00:25:17.700
So all of this needs to be accounted for.

597
00:25:17.700 --> 00:25:22.140
<v ->What do we make on 33E of the roles of the other people</v>

598
00:25:22.140 --> 00:25:24.660
and her role in this?

599
00:25:24.660 --> 00:25:26.190
<v ->I think what we make of that</v>

600
00:25:26.190 --> 00:25:30.480
is that all of these alleged weaknesses in the evidence

601
00:25:30.480 --> 00:25:35.310
and all of the evidence of an alleged third party culprit,

602
00:25:35.310 --> 00:25:38.250
all of those arguments were made to the jury.

603
00:25:38.250 --> 00:25:40.560
This was the defense that was raised at trial.

604
00:25:40.560 --> 00:25:42.780
The defendant herself says in the brief

605
00:25:42.780 --> 00:25:47.520
that this defense was masterfully presented.

606
00:25:47.520 --> 00:25:49.260
The defendant, I mean, excuse me,

607
00:25:49.260 --> 00:25:51.810
the jury rejected that defense.

608
00:25:51.810 --> 00:25:54.270
I would just like to as to two things

609
00:25:54.270 --> 00:25:57.090
that the defendant states,

610
00:25:57.090 --> 00:25:59.790
one, to the extent that the defendant is relying

611
00:25:59.790 --> 00:26:02.130
upon her own affidavit that she submitted

612
00:26:02.130 --> 00:26:05.940
to the motion judge, the judge explicitly found

613
00:26:05.940 --> 00:26:08.130
that that affidavit was not credible.

614
00:26:08.130 --> 00:26:11.130
Secondly, the defendant repeatedly says today

615
00:26:11.130 --> 00:26:14.610
and in her brief that the blood

616
00:26:14.610 --> 00:26:17.174
or DNA of Mr. Rodriguez was found mixed

617
00:26:17.174 --> 00:26:21.210
with the baby's blood or DNA on one of the tape dispensers,

618
00:26:21.210 --> 00:26:23.970
and that is actually not a correct characterization

619
00:26:23.970 --> 00:26:25.260
of that forensic evidence.

620
00:26:25.260 --> 00:26:29.580
The evidence was that there was a red brown stain

621
00:26:29.580 --> 00:26:32.490
in the tape dispenser that was found to be blood.

622
00:26:32.490 --> 00:26:36.450
The major DNA profile matched the baby,

623
00:26:36.450 --> 00:26:39.030
and there was a minor DNA profile

624
00:26:39.030 --> 00:26:42.720
from which Mr. Rodriguez could not be excluded

625
00:26:42.720 --> 00:26:45.240
as a potential contributor.

626
00:26:45.240 --> 00:26:48.090
So it's an overstatement of that evidence to say

627
00:26:48.090 --> 00:26:50.370
that Mr. Rodriguez's blood and the baby's blood

628
00:26:50.370 --> 00:26:52.443
were found mixed on this dispenser.

629
00:26:53.790 --> 00:26:56.040
And I think-

630
00:26:56.040 --> 00:26:57.157
<v ->I'm sorry, did the jury have to believe</v>

631
00:26:57.157 --> 00:27:00.660
that Rodriguez was not involved

632
00:27:00.660 --> 00:27:02.190
in order to-
<v ->Absolutely not.</v>

633
00:27:02.190 --> 00:27:03.060
Absolutely not.

634
00:27:03.060 --> 00:27:05.760
Certainly, Your Honor, the defendant

635
00:27:05.760 --> 00:27:08.730
could have committed this crime with other people,

636
00:27:08.730 --> 00:27:11.790
and there absolutely did not have to be a showing

637
00:27:11.790 --> 00:27:12.780
that none of-
<v ->Was the jury instructed</v>

638
00:27:12.780 --> 00:27:16.680
that way as far as she's either a principle

639
00:27:16.680 --> 00:27:18.360
or an aider and abetter?

640
00:27:18.360 --> 00:27:19.350
<v ->I don't believe so.</v>

641
00:27:19.350 --> 00:27:21.150
I think it was just presented.

642
00:27:21.150 --> 00:27:23.640
It was not presented on a joint venture theory.

643
00:27:23.640 --> 00:27:26.133
They were not instructed on joint venture.

644
00:27:27.330 --> 00:27:30.810
But still, there's no reason that the jury

645
00:27:30.810 --> 00:27:32.880
would have to find that none of these four

646
00:27:32.880 --> 00:27:35.640
or five men had anything to do with a cleanup

647
00:27:35.640 --> 00:27:36.750
or anything else in order for them

648
00:27:36.750 --> 00:27:38.763
to find the defendant guilty.

649
00:27:39.780 --> 00:27:44.380
With regard to the defendant's other 33E arguments

650
00:27:45.930 --> 00:27:48.930
with regard to her mental health,

651
00:27:48.930 --> 00:27:53.190
Judge Kenton-Walker found after hearing testimony

652
00:27:53.190 --> 00:27:55.800
from trial counsel on a hearing on the motion

653
00:27:55.800 --> 00:28:00.524
for a new trial that the defendant explicitly rejected

654
00:28:00.524 --> 00:28:02.040
a mental health defense

655
00:28:02.040 --> 00:28:04.800
after full consultation with her attorney.

656
00:28:04.800 --> 00:28:07.290
So the defendant is now supporting her request

657
00:28:07.290 --> 00:28:08.790
for a reduction in the verdict

658
00:28:08.790 --> 00:28:11.310
on affidavit supplied by a mental health expert,

659
00:28:11.310 --> 00:28:14.280
Dr. Nancy Byatt after trial.

660
00:28:14.280 --> 00:28:18.600
But Dr. Byatt's opinion is seriously weakened by the fact

661
00:28:18.600 --> 00:28:21.780
that it relies upon the exact version of events

662
00:28:21.780 --> 00:28:23.910
that was rejected by the jury.

663
00:28:23.910 --> 00:28:25.680
Dr. Byatt gives an opinion

664
00:28:25.680 --> 00:28:30.630
that the defendant may have accepted the baby

665
00:28:30.630 --> 00:28:33.150
from someone else who killed the victim

666
00:28:33.150 --> 00:28:36.030
because the defendant may have been suffering

667
00:28:36.030 --> 00:28:37.980
from postpartum depression.

668
00:28:37.980 --> 00:28:39.990
This was the exact argument

669
00:28:39.990 --> 00:28:41.610
that the defendant made at trial,

670
00:28:41.610 --> 00:28:43.890
that someone else killed the victim

671
00:28:43.890 --> 00:28:46.050
and took the baby and gave it to the defendant,

672
00:28:46.050 --> 00:28:48.574
and this is what was rejected by the jury.

673
00:28:48.574 --> 00:28:52.170
In addition, to put forth the defense at trial

674
00:28:52.170 --> 00:28:54.690
that she was suffering from postpartum depression,

675
00:28:54.690 --> 00:28:57.510
the defendant would have had to present some evidence

676
00:28:57.510 --> 00:29:00.750
about when she lost her own baby,

677
00:29:00.750 --> 00:29:03.060
and that would've actually strengthened the case

678
00:29:03.060 --> 00:29:04.860
because it would've shown that for weeks

679
00:29:04.860 --> 00:29:08.580
or months the defendant pretended to be pregnant,

680
00:29:08.580 --> 00:29:11.760
and this would've seriously undermined any claim

681
00:29:11.760 --> 00:29:14.139
that unexpectedly on the night of the murder,

682
00:29:14.139 --> 00:29:16.890
somebody called her to come get this baby

683
00:29:16.890 --> 00:29:19.025
if she was walking around for three months pretending

684
00:29:19.025 --> 00:29:22.803
that she was still pregnant after having lost her own baby.

685
00:29:24.090 --> 00:29:26.220
The cases that the defendant cites

686
00:29:26.220 --> 00:29:29.880
in support of her 33E argument are all cases

687
00:29:29.880 --> 00:29:34.880
where there is an impulsive, spontaneous act

688
00:29:35.010 --> 00:29:36.870
with no apparent motive.

689
00:29:36.870 --> 00:29:41.220
This case is not like any of those cases.

690
00:29:41.220 --> 00:29:45.510
There was ample evidence that this was premeditated

691
00:29:45.510 --> 00:29:48.420
for days, weeks, or months,

692
00:29:48.420 --> 00:29:50.820
and there were multiple motives presented.

693
00:29:50.820 --> 00:29:53.040
This is not a case like those

694
00:29:53.040 --> 00:29:55.110
upon which the defendant relies.

695
00:29:55.110 --> 00:29:56.790
So the Commonwealth would ask this court

696
00:29:56.790 --> 00:29:59.433
to affirm the conviction of first degree murder.