-: SJC-12109.
-: Okay, Attorney Shedd.
-: Good morning, Your Honor
My name is Dennis Shedd, and I'm representing Edward Edwahi.
Mr. Edwahi, who killed a woman with whom he'd been having
an affair, presented an insanity defense.
The evidence of infidelity and rountinal jury instruction
the judge gave, despite Edwahi's request to modify this,
raised serious concerns as to whether
at least two of the jurors were able to fairly evaluate
the evidence and apply the law.
Now, the judge gave the Venn model instruction
that if Edwahi were found not guilty by reason of insanity,
or NGI, the court may order him to be hospitalized
for 40 days of observation.
During that period, the D.A. may file
a petition for a commitment.
If the court then found him mentally ill and dangerous,
he may be committed for a six month period period,
any commitment would then be periodically review.
Now, during the charge conference,
and during the jury instructions, after the instructions,
Edwahi objected that the reference to the time periods,
and the suggestion the entire process was discretionary
falsely suggested that a defendant found NGI might be held
for only a short period or not at all,
and the judge acknowledged the validity of that concern.
He stated, "I grant you those time periods might suggest
to someone that one is only briefly detained,
but very few people are so briefly detained,
but I'm very worried about not instructing the jurors
accurately about the law."
And that's in volume 16, page 148.
Now, the judges committed prejudicial error by not modifying
the instruction to address Edwahi's concerns.
Long before a trial, this court had stated at the purpose
of the routine instruction is to allay concerns
that a defendant found NGI might go free,
and the court had also stated that
instruction did not need to mention the time periods.
Shortly after trial, Chappelle established
a new provisional instruction, 2018, the court established
new model instruction to specifically address
the concerns that Edwahi raised.
They referenced the observation period has been eliminated,
the jury is told that the D.A. generally does file
a commitment petition,
and if those conditions are satisfied,
commitment is mandatory, not discretionary.
-: Mr. Shedd, how have we handled
this post Matina post Chappelle issue?
I know we had the Dunn case,
where the objection wasn't raised, as is pointed out,
but have we had other post Chappelle cases before us?
-: Well, I hope, if I'm hearing right,
you asked about the cases after this,
where the court has said that this instruction is accurate,
and it's use was an error after.
Justice Gaziano: Right, after Chapelle.
-: Okay, I've got just two points
I'd like to make about that.
First is that first instruction is not accurate.
The instruction informed the jury that commitment
of a person deemed mentally ill
and dangerous was discretionary.
Such a person not might not be held,
but the statute chapter 123 section 16 says that
that's mandatory.
So that error in the instruction right away
completely undermines the purpose of giving
the routinal instruction,
because a defendant may go free if found NGI.
Secondly, putting aside that issue,
there are two distinctions between this case and Dunn
and other cases, which the court has said the use
of that instruction was proper.
First, in all but one of those cases,
there was no objection to the instruction, and second,
as far as I can tell, in none of those cases was
there evidence that a seated juror had expressed concern
about how long a defendant found NGI might be held,
and that did happen in this case.
During the voir dire, juror five asked the judge
if there's a chance that the defendant found NGI
might be released within three years.
Judge said, "Probably not, and I'll give an instruction
on consequences at the end."
The judge then asked the juror if he'd be able to follow
the instructions regarding the Commonwealth's burden
of proving criminal responsibility, the juror said, yes.
Questioned by defense counsel, the juror said he felt
that somebody found NGI of murder should not be able
to reenter society for a long time, if ever.
So what happened here is what the judge told the juror
during voir dire implied that the instruction
he was going to give would allay the jurors concerns
about how long and why you might be held if found NGI,
and that would have been the case if he'd modified
the instruction as Edwahi requested.
But the instruction the judge gave suggested
that exactly what that juror was concerned
about might come to pass.
-: Along those lines, the juror says to the judge
to just say it in a different way,
that he could be indifferent.
And then on the followup voir dire from defense counsel,
he gives his own personal view.
Attorney Shedd: That's right.
-: His own personal view, the attorney
for the defendant could have considered that
on a peremptory, but his own personal view doesn't matter.
Everyone has views of the world.
The issue is whether or not he could be indifferent,
and he told the judge he could.
-: Well, I think what happened here is that
after the judge says, "I'm going to give a con-
you know, a defendant found NGI probably won't be released
within three years.
I'm going to give you instructions
on the consequences at the end."
I think the implication there was that
my instruction is going to allay your concerns.
And with that as the setting, he then told, he asked,
he tells defense counsel, you know,
that I think somebody should be held, shouldn't be,
be able to reenter society for a long time, if at all.
But that, his response to the judge saying,
"Yes, I'll be able to follow the law" is in the context
of this implication that the instruction is going to allay
these concerns, and in fact, the instruction did
just the opposite.
It just played into those concerns by saying
this person might be released in a short time.
So because the jurors were misinformed
about the consequences of an NGI verdict,
one can't be sure that this juror-
-: Mr. Shedd, haven't we had cases in the past where we take
what happens during attorney's voir dire
on issues raised, and then use that
for the prejudicial error analysis thereafter?
-: Yeah, I believe that has happened in other cases,
but you know, I mean,
the attorney-conducted voir dire certainly raised concerns
here after the judge, you know, the jury first says,
"I've got a problem with, you know, what is this going
to be, might he'd be released in a short time?"
The judge says, "I'm going to give this instruction."
And the attorney comes back, and it really raised,
heightens this concern that this juror is worried
about how long Mr. Edwahi might be held if he's found NGI,
and the instruction did nothing to allay that concern,
and that was the entire purpose of establishing,
requiring an instruction on consequences in the first place.
-: I guess at least to your first premise
in that the routinal instruction is legally wrong, correct?
Attorney Shedd: Right.
-: Have we said that, or have we said the opposite?
I know in Chappelle said we don't like it.
and we need to change it, but have we ever said that
the routinal instruction as provided
in this case is illegally wrong?
-: No, the court has never said that.
No, the court has said the instruction was accurate
in other cases, that's certainly the case.
That's what the court has said, but my argument here is
that by saying that a defendant found mentally ill
and dangerous may be committed, when the statute makes it
mandatory, shows that in fact the instruction is wrong,
it's inaccurate, it doesn't comply with the statute.
Okay, unless there are any other questions about that issue.
-: I have one related question, one related question,
just to the insanity defense in a nutshell,
as short as you can make it, what is the best case
for your client on the insanity defense?
-: On the insanity defense?
So you're talking about, besides this consequences issue?
Yeah, the insanity defense is-
-: I want to know what was the evidence you see in the case
that would have pointed to the, to a possible NGI?
-: There was evidence that he suffered from depression
beginning, there was a period he was in Nigeria.
He was, suffered from depression
for a period of time there.
His family reported incidents of rather odd behavior,
him talking to himself, going off the handle at odd times
for no reason before this happened.
He was treated throughout the period he was jailed
before trial by a psychologist, psychiatrist.
He reported consistently primarily audio hallucinations,
and also visual hallucinations reported.
He has been having them for, you know, years, and years,
and years, hallucinations, sometimes telling him
to go out and kill people, and then two
of the psychiatrists who treated him testified about their,
they thought he, yes, he was, he was in fact mentally ill.
He was being treated with anti-psychotic drugs
and another drug for depression.
-: Did they testify that he met the standard,
the legal, psychological standard for an NGI?
-: No, they did not.
So the test, the evidence of trial is basically on history
of mental illness, his reports of hallucinations,
and what can only be described
as the rather bizarre nature of the crime.
Justice Cipher: Okay.
-: There was no testimony at trial by a psychiatrist
or a psychologist saying yes,
he meets the definition of insanity.
Okay, so moving to the next issue, during the voir dire,
juror, number two, the foreperson stated that evidence
of infidelity could prevent him from being impartial,
because he believed that people who do that are beyond
the law, that they can get away with things
more than others.
Now that was his last word on the topic.
There was no challenge, but the seeding
of a biased juror violated Mr. Edwahi's rights
to an impartial jury, and created a substantial likelihood
of a miscarriage of justice in this case.
Studies of long shown that many, perhaps most people are
skeptical of the insanity defense,
thinking that it's something, an excuse,
the defendants use to try to get away with crime.
Justice Lowy: Did the defendant have
any peremptories left?
-: Yes, he did.
Justice Lowy: And he didn't challenge?
-: He did not, he did not challenge.
-: So what do we do with that?
-: Well, that's why I migrate to the substantial likelihood
of miscarriage of justice standard, Your Honor.
So that's-
-: Have we ever done that, though?
Have we ever said that when there's an opportunity
for a peremptory challenge and there's no challenge
to the juror, that in a non murder,
it's a substantial risk or in a murder,
substantial likelihood?
-: There was an appeals court case I cited
where that happened, if I got the note right here on that.
I do not, but there was an appeals court where they had
a similar situation.
They handed down a substantial risk candidate,
and that's cited in my brief, and so in this case,
it's a murder case in migrate substantial likelihood.
Justice Budd: Didn't he, didn't the juror ultimately say
that he could be impartial?
-: I'm sorry I couldn't hear that.
-: I'm sorry, didn't the juror ultimately say
during the voir dire that he could be impartial?
-: He did, yeah, in response to the judge, he did say,
the judge asked him, basically putting that aside,
are you going to be able to follow the law regarding
the Commonwealth's burden of proving criminal responsibility
to which the jury responded yes.
Justice Lowy: That might be why
the defense attorney didn't challenge, correct?
-: Well, what happened after that, he said that
at that point, and then the defense counsel questioned
after that, and he went back to this concern
the juror had raised, he said, "You are referring
to character traits, what are you referring to?"
And that's when the juror said, "I think people who do that
feel that they're beyond the law,
that they can get away with things more than others."
And the defense attorney then asked,
"Could that present prevent you from being impartial?"
And the juror said, "Yes, it could prevent
me from being impartial."
-: Was there anything past that?
Did the judge, clean it up or anything?
-: It didn't get taken up after that, and there was
no challenge for cause, so that's why I'm here arguing
substantial likelihood, Your Honor.
So again, so this juror did say in response to the judge,
yes, I can follow the law, but what he's told
defense counsel kind of backtracks on that,
but there was no challenge.
So this is a juror who believed that Mr. Edwahi was a person
who felt he was beyond the law, he could get away
with things more than others.
A person with that belief would be bound to be skeptical
of any defense Mr. Edwahi raised,
and that's particularly true of defense
that many people are skeptical of in any event.
And it also makes him particularly, so it's likely that
he would have suspected that Mr. Edwahi may well be using
this defense as a loophole,
as an excuse to get away with murder.
It also made him somewhat predisposed to accept
the testimony of the Commonwealth's expert,
who stated that he believed that Mr. Edwahi reports
of hallucinations were false.
So in this case, it's my position that the seeding
of juror two violated Mr. Edwahi's rights
to impartial jury, and created a substantial likelihood-
-: And how should we view the defense attorney's failure
to strike this juror through a peremptory?
-: All I can say is, I mean, I spoke to him about that,
and at the time he had no memory of why that happened.
I did note that-
-: What do you think our legal analysis of that should be?
Like, how does that, does that factor
in to our legal analysis?
-: Well, it certainly, I mean, I think primarily it changed
the standard of review.
Obviously with an objective review,
you'd be here on a different standard of review.
And also if you'd used a peremptory,
you'd be different standard of review.
That's why it's substantial likelihood here.
I think that's how it plays into the analysis.
Okay, now, turning to the redacted interview issue,
the Commonwealth concedes that because of the way
this interview was redacted, the jury heard Mr. Edwahi say
that he wanted to Ms. Sanders to stab herself,
to kill herself, when in fact what he said was that
he wanted to end their affair.
Now, that misleading impression would not have been
established if either Mr. Edwahi's answer,
"that's what I wanted" had also been redacted,
or if the questions that proceeded those answers
had been included pursuant to the rule
of verbal completeness.
Now, the Commonwealth argument is that there's no harm done
here, because during most of the interview,
Mr. Edwahi said that Ms. Sanders had stabbed herself,
and only at the end, did he admit that he had stabbed her.
Justice Cipher: Right.
-: And so it claims that the misleading evidence
they heard is simply cumulative
of his earlier false statements, but what the jury-
-: I forget, can you just refresh my memory,
how many times was she stabbed?
-: I'm sorry, I didn't.
-: How many times was she stabbed?
-: She was stabbed numerous times.
I think it might be more than 40.
It was numerous, she was stabbed numerous times.
-: I'm not sure how this factors in,
if ultimately he admitted to having killed the victim.
Justice Shedd: I'm sorry, I can't-
-: I'm so sorry.
Yeah, help me understand how the interview piece,
where it sounded like he might've said
"I wanted her to kill herself," how does that factor in
if he ultimately admitted to having killed her,
and he was going for an NGI?
-: Okay, yeah, so what, the point,
so let me just backtrack a second here.
So to put it in context, so what the jury heard him say
here isn't just one more time that she killed,
that she stabbed herself.
What they hear her say, him say is,
"That's what I wanted to happen."
In other words, they heard him say that he wanted her
to die, which is compelling, and he never said that
at any point during the interview, in fact.
So that's, first it's compelling evidence
he had the malice necessary for murder, and second,
because he said, after he admitted he stabbed her,
he said several times, "I didn't intend to kill her."
So that's also strong evidence suggesting that he understood
the wrongfulness of his conduct if you put that in context,
and that's how it plays into the insanity defense.
So this misleading redaction created
a substantial likelihood of a miscarriage of justice
by one, raising, creating strong evidence of the malice
for murder, and also undermining, on the other hand,
undermining the insanity defense.
Now I've got, unless there are other questions on that,
I've got a minute left, and Mr. Edwahi wanted me
to point out, at page 11 of the Commonwealth's brief,
it implies that there were no completed phone calls
between the two of them that morning.
Says that, shows between 10:33 AM and 12:34,
the defendant attempted to call the victim eight times,
but she missed the calls.
In fact, exhibits 107 to 109 showed that he answered calls
from her at 11:04 and 11:22, and she responded
to the call from him at 12:34.
So there were three completed calls that morning.
So in this case, because the jury was misinformed
that a defendant found NGI, deemed mentally ill
and dangerous might nevertheless not be committed,
because the foreperson of the jury believed
that the evidence of infidelity to prevent him from being
impartial, and because the jury heard false evidence
that Mr. Edwahi wanted Ms. Sanders to die,
he should be granted a new trial.
Justice Budd: Thank you.
Okay, Mr. McGee.
-: Good morning, Chief Justice Budd, members
of the Supreme Judicial Court, may it please the court,
my name is Michael McGee.
I'm here on behalf of the Commonwealth.
I ask the court to affirm the conviction of Mr. Edwahi
for the brutal murder of 28 year old Kanika Sanders.
The defendant raises three issues on appeal.
The first one was waived, the second one was
about a piece of evidence that was put in by agreement,
and the third is about an issue that has been decided
five times since this trial,
and found to not have been error.
This was a case where the defendant here stabbed
the victim 49 times.
He was found in his underpants at the foot of a stairwell
by the police, with the victim behind him,
dismembered in a bucket.
He attempted to mislead the police for two and a half hours
of an interview to suggest that she stabbed herself,
that she somehow wanted to be cremated
if she had committed suicide, and then finally at the end
of the interview admitted that he killed her,
yet he did it in self defense.
This is a case where the issue
of criminal responsibility was fully before the court,
before the jury.
The defendant here participated in the day
as he normally would, driving is his son to work,
going to work himself, Mr. Edwahi.
He even later that day picked his sons up
at the train station, helped them build a lawnmower,
all while he had the deceased victim deceased,
and then goes to Walmart and picks up a meat cleaver,
and all of this was before the jury.
All of this was discussed by the Commonwealth's expert,
in rebuttal to their criminal responsibility to defense,
and the conviction of first degree murder here was
right, and appropriate,
and I ask Your Honors to affirm that conviction.
Starting with the issue that the defendant raised
at the start of this on the routine instruction,
I would suggest to the court that
the Otburn case is a good one to look at.
It was the fifth of those five cases that have since come
out since this case was decided by the jury.
In that case, defense counsel raised it at trial,
asked for an instruction regarding the continuity
of someone that's found not guilty of commitment,
for someone that's found not guilty by reason
of insanity, and over their objection was given
the then model instruction a routinal instruction.
Additionally, in reviewing the appellate brief in that,
the attorneys for Otburn also raised the issue
that during voir dire, many of the jurors had raised
the idea that someone can be set free for having
committed a crime of that nature by reason of insanity.
So that issue was fully before the court,
and this court in 2019 found the issue that
the defendant raises today to be meritless.
I'd ask Your Honors to find the same today.
Also on the point of that defense counsel raises
about the issue of permissiveness of a judicial finding
in a commitment hearing, it is accurate.
And what I would suggest to the court that
that contemplates is that it is quite a process
annually for a person to be committed involuntarily
in a mental health court, whereby there a report
submitted by a treatment team and the hospital,
or the district attorney's office has to prove
beyond a reasonable doubt that a mental illness exists,
that there is a nexus between that
and the substantial likelihood of a risk of harm
to himself or herself or others,
and that there's no less restrictive alternative.
And after all of that, when that burden is met,
a judge must make that finding, and I would suggest
that that is an accurate statement of law,
and that this court has again stated that five times.
Going to the first, unless there are any questions,
and I apologize, Your Honors.
Are there any questions on this?
Justice Budd: No.
-: On the first issue that defense counsel raises,
I would share suggest that it is waived.
This is a situation where it was the,
I believe the fifth prospective juror,
and there were peremptory challenges available,
and for cause.
-: And so what's the effect of waiver in this case?
What's the, what do we do with, we say, "Oh, it's waived."
What's our next step?
-: Well, I would suggest that there is no,
as counsel raises, no risk of, well, there's no error here,
and I would suggest this is somebody that,
a juror that brought his feelings, his attitudes,
his opinions to the concern of the court, as he should have.
-: So suppose we say, okay, there's no error,
but maybe we say there is error.
If there is error, what effect does the waiver have
on our analysis?
-: The effect is that because it wasn't waived,
there cannot be a risk of a miscarriage of justice here,
because there was no motion for new trial.
There was no ineffective issue raised here.
We have, we don't know why, or we weren't there.
We don't know the demeanor of this juror,
his candor towards the, to the court,
and we don't understand
if there was any strategy involved here.
I can also tell you that there was a juror later
in the panel that also raised the issue of,
it was juror number 42, said that she was divorced,
because her ex-husband was unfaithful.
She was struck, not because of that,
but because she had a pending OUI.
So taken into that consideration, as well as
the overwhelming evidence here, this is, was a brutal,
brutal horror scene of a crime
where the defendant was caught red-handed.
And as to consciousness of guilt,
certainly overwhelming here.
He's caught with the receipt for Walmart for the cleaver.
He tries to mislead the police for two and a half hours,
only to admit, and then minimize his conduct.
While he's in jail, he asked the one of the clinicians
how someone's supposed to be mentally ill here.
All of that was before the jury here, and taking that
as a totality, I would suggest that there was no risk
for a miscarriage of justice.
And just on the final point about the agreed upon transcript
that was submitted to the jury by identification here,
as has been said in my brief, this was two
and a half hours had gone through an interview here,
and because of a redaction, I would suggest
it was an unresponsive statement to a question
resulting from this redaction.
And really what the trooper was getting at there is
how incredible the story was
that she had somehow committed suicide.
And the trooper was pressing the defendant about that.
Do you ask, is it, you expect me to believe that
she somehow killed herself?
And then there's this response that is difficult to hear
that is, "That's what I wanted."
Taken in the totality of that interview it was,
there just, it didn't factor into this at all.
And what did factor into it, this trial was that
for two and a half hours he stood by that story,
that he tried to mislead police, and held up
their investigation, and then finally at the end,
admitted that he killed her,
and that he certainly didn't dismember her
because it was her wishes.
Again, I'd ask the court to affirm the conviction
of the defendant for this brutal homicide of Kanika Sanders,
and I, unless there are any questions, I'd rest on my brief.
Justice Budd: Thank you very much.
Attorney McGee: Thank you very much.