-: CJC-12133, Commonwealth v. Eugene R. Tate.
-: Thank you, Ms. Obrien please.
You have to unmute, Ms. Obrien.
-: May it please the court.
The Commonwealth in this case, the prosecutor,
or I should say specifically the trial prosecutor,
included two arguments in his closing
that were completely unsupported by the evidence-
-: Wait, wait, wait.
Before you say, completely unsupported,
what about the, let's talk about the first argument,
which is the bullet, right?
-: Yes.
-: And if you look,
when I read Sergeant Sullivan's testimony,
it seems as though to me, I know the prosecutor got cut off
and there were objections and some of
what the prosecutor wanted to elicit did not get out.
However the Sergeant did say there was a different,
he explained that the lead bullet without a casing
or without a jacket would be very soft.
I thought maybe on page 145, 146, 147, that there perhaps
was enough there to support this this argument?
-: I don't know what you're referring to,
to tell you the truth on those particular pages, your honor.
But what the ballistician testified to is that
this particular bullet, because it had a brass casing,
was less soft, less malleable, than...
And I'd suggest also that the other thing that
for whatever reason, the ballistician never testified to
is what type of gun this bullet was tested-
-: Yeah, but that doesn't have anything to do with
that oral argument, does it?
-: It certainly does your honor.
The lack of that knowledge, what the prosecutor argued
was that this bullet, and I'd asked the court,
I'm asking the court actually for two reasons,
in it's preliminary review of this case,
to examine that bullet.
-: We will counsel, we will-
-: Yeah, and there are two reasons for that.
The first reason is that it's not accurate
to say that that bullet was undamaged.
You can see by the tip of the bullet,
and this is possibly the less important of the two reasons,
but you can see that the tip of the bullet is smashed,
it's not undamaged, it's you can see
that there was damage to the bullet.
But I say that's somewhat less important
because the jurors could just look at that bullet,
and they could see the damage there.
They could see that it was gouged at the front.
But the second reason is that in looking at the bullet,
the Commonwealth has suggested that just by looking
at this bullet, the jurors would be able to see
that it could not have caused the damage
to both of the victims in this case.
And that's simply, what you'll see
is that that's simply wrong.
This is not a matter of common sense.
The jurors could look at that projectile all day long,
and they would be no closer to understanding
whether or not that bullet could have caused the damage
to both of the victims in this case.-
-: Where are the victims positioned
in relation to each other, the person who is killed
and the other person?
Where are they in relation to each other
when the shooting happens?
-: The victim is somewhere behind,
according to the testimony, the victim is
somewhere behind Mr. Fumi, who the bullet hits first.
So the bullet goes through Mr. Fumi and hits Mr. Poablo
and kills him.
That's what happened here.
-: What I'm asking, so they're standing right behind
each other, or they...
When we read the record, my recollection of this,
but it needs to be revised here, but my understanding is
they're not next to each other or right behind each other
when this happens, but you tell me,
'cause we're going to go through that.
You might-
-: It's one of the problems here, your honor
that there's no way of, from the testimony,
there's no way of knowing exactly where they were.
As the jurors were correctly instructed by the judge,
the human memory does not work like a video recorder.
So we don't know, there's variation in the descriptions
of where the two individuals who were shot were.
It depends on which of the witnesses you're looking at.
But it seems fairly consistent that Mr. Fumi-
-: Remember the Commonwealth can argue
from descriptions that it thinks is credible.
It doesn't have to adopt your version of things.
As long as there's evidence to support the idea
that it's ridiculous to say that one bullet went
through both of these individuals,
they get to do that, don't they?
-: Well, they get to do that based on the evidence
that the jurors actually heard,
they don't get to pretend to expertise.
They don't get to give expert testimony in closing argument,
which was what was done here, when the prosecutor stated
this type of bullet, quote, "Goes into the body,
and it stays there."
There was no evidence to support that.
What he was trying to say is that this type of bullet,
this bullet could only have killed Mr. Poablo,
it could not have gone through the body of Mr. Fumi,
and then killed Mr. Poablo.
There was no evidence of any kind to support that,
that was highly improper.
And the judge recognized that,
the judge specifically stated, when there was an objection,
stated to the prosecutor, there was no evidence given
to support that, that this type of bullet
could not have created the damage
to both of these victims.
So it's highly improper-
-: Wait, wait, wait.
That's a little bit different than saying,
the same bullet, you said, the type.
Was he saying the same bullet?
There's no evidence to same bullet couldn't have done it,
or was he referring this type of bullet?
-: This type of bullet.
Judge Cipher: Okay.
-: That this type of bullet could not have done that.
And that's not a matter of common sense.
I would suggest, it's certainly proper for a prosecutor
to call upon a juror's common sense.
But what was common sense here really
is that we don't know what type of gun was used,
so we don't know what amount of power
was behind that particular projectile.
We also know, and it's not contested that the bullet went,
a bullet did go through and through Mr. Fumi's body.
And it didn't, we know that it didn't just disappear
into thin air.
This was an enclosed area, it was carefully searched
by not one but two ballistician,
not to mention the other personnel that were there.
There was never a bullet strike found,
the projectile itself was not found.
To this day, there was no evidence whatsoever
of a second bullet, none beyond the testimony
of two witnesses who were impeached, one of whom admitted
during cross examination that he had perjured himself,
when he said he saw Mr. Tate fire a bullet.
-: The defendant's closing, I'm trying to remember,
talks about one bullet killing both,
going through both people, right?
-: Yes.
-: So it's this type of bullet thing is not the argument
that was made, but rather that one bullet went
through both, this single bullet went through both.
Right? Or am I missing?
-: Well, that was certainly defense counsel's argument,
and there was absolutely nothing in the facts of this case,
that that will legitimately be before the jury
to rebut that theory.
That was a solid theory-
-: Well, that's why with the Commonwealth is doing is,
we have a lot to rebut that, which is,
we have testimony that there are two shooters.
We have direct testimony that
there are two different shooters,
and they're shooting at two different people, right?
-: There were two witnesses who testified to that,
one was Mr. Fumi who testified to that,
and then admitted during cross examination
that he had just casually perjured himself
in his direct examination because-
-: On whether or not there's any evidence,
which you started out with, there is some evidence.
You may not like it, but it's some evidence
to support what the Commonwealth had to say.
-: Well to that extent, yes I'd have to say your honor,
I've never argued insufficiency of the evidence here.
My principle argument is that the prosecutor went
far beyond what the evidence in this case would have allowed
by testifying that that projectile
could not have caused the damage to both of these victims.
This is what he testified to-
-: Ms. Obrien, what about the import
of the curative instruction?
-: The curative instruction was just a generic instruction
that's given in every case.
It's something to the effect of,
it's your view of the evidence that controls,
are some standard generic instruction like that.
-: Was that the one requested them?
-: Defense counsel did not request
an instruction beyond that.
And as I've said in my brief,
it really should not be the burden on defense counsel
to be able to come up with a cure for every overstep
by the prosecutor-
-: But they're supposed to object, aren't they,
at the curative instruction
if they don't find it satisfactory?
-: I've never read that, I have certainly read that
it's an advantage if I'm aware that it's certainly
an advantage if defense counsel can think
of a specific argument-
-: But doesn't it signal, you're a careful trial judge,
you have an objection and you'll get to the next one.
I'm sure two parts of the closing argument.
One gets the general instruction, one gets a specific,
don't consider that, instruction, and kind of signals
that the defense attorney who is also incredibly experienced
considered the second one really bad,
and then the first one, he said,
"It'll be cured by the general instruction."
-: But it's...
-: It goes to the gravity of the harm, I guess.
-: Well, your honor, I think again, as you say,
very talented defense attorney,
but I think what I would have to say, could have cured this,
if the judge had asked the jurors to specifically disregard
what the prosecutor said about the bullet not being capable
of causing a through and through wounds.
There was nothing to...
-: So it's not a matter of common sense
if you look at a bullet that's somewhat pristine?
I mean, it obviously rode through a body,
it wasn't a deformed like you would expect
if it went through this ride,
it's like a magic bullet theory, from a grassy knoll.
-: But your honor, it's a brass-jacketed bullet.
What some people refer to as,
I don't wanna be going beyond what the...
But it's a fully jacketed-
-: I'm aware of the ballistics evidence.
-: Yes.
Yeah, so for the prosecutor to say that,
I mean if he had evidence, if he had an expert to say that
that would be thing, but for him to pretend that he can say
that the bullet could not have caused a through
and through wound, that's simply incorrect.
And the positions of the parties,
I'd like to get in, there's nothing
about the positions of the parties.
If the deceased victim had only been leaning forward
just a little bit, the angle would be correct.
There's nothing in the case that would suggest
that he was standing bolt upright.
If was merely leaning forward (beep) a little bit,
the angle would have been correct.
So I'd like to point out that this was a critical issue
to both parties, that both parties were concentrating
on this during their direct examination,
during their examinations of the witnesses.
And both knew it was critical, because there
was a possibility that the jurors
could convict on second degree murder only.
And that the difference to Mr. Tate was enormous.
It's the difference between his going
before the parole board at age 34,
or dying in prison an old man. (voice drowned in crosstalk)
-: Before you run out of time,
could you address your second,
briefly the second closing argument issue and then lastly
the manslaughter instruction issue as well?
I don't want you to get stuck on just the first issue.
-: Yes, thank you, your honor.
The prosecutor in the second issue imagined
what the two robbers were thinking or saying to each other.
This was purely a matter of the prosecutor's imagination,
there was nothing to support it.
He imagined that the two were saying to each other,
"Kids from the suburbs, they don't handle the streets,
I'll pull a gun on him, he's going to freeze."
Nothing in the evidence to support that.
-: And that's the one that Judge Tuttman said,
"Don't consider that."
-: She said, "Don't consider it."
She said that she said, "Don't consider where they're from."
But I'd suggest that what's more offensive
about that argument is the assumption that's behind it.
That because these were two black men that
they would be of the streets.
You would not see that type of assumption
if these had been to white robbers.
So the suggestion you get there that these
are two black robbers who are targeting people
from the suburbs, it's highly improper, it's offensive-
-: Ms. Obrien, I understand that.
And I agree that we should be condemning
that kind of dog whistling if that's what was going on here.
But there was no back and forth on that point.
I read the trial transcript on that.
The racial component to that was not raised
in any way before the judge.
Actually the instruction that judge gave
was exactly the one the defendant wanted, wasn't it?
So I get your point generally,
but that wasn't how it was presented to the judge at all.
-: That's true, and I acknowledged that your honor,
and I'm still asking that the court consider
that aspect of the argument.
-: What about the part of the curative instruction
that says that Medford is also a suburb as is Stoneham,
equating the two places?
-: Well, your honor these we're of course, Middlesex jurors
and they would know that Medford is a city,
and Stoneham is a suburb.
Medford is a city in every sense.
And I'm not sure that really is the crucial aspect of this.
It's just the assumption that these two men
because they were black, are of the streets.
And I acknowledged that it's much easier for me to sit here
and say, not having to look at the prosecutor
and say, "Hey, you know, that sounded pretty racist."
I wouldn't have to do that-
-: What did the defense attorney say
that prompted the prosecutor to retort?
-: I didn't see anything that...
-: I thought there was some fire with fire on that.
-: Oh-
-: Didn't you describe them-
-: The defense attorney did predict,
did predict that would be said, and maybe as you said,
this is a very talented, very good defense attorney,
may be a better tactic would have been motion in limine
since he knew this was coming, but he didn't do that.
So that's in a way, I don't need to be as I say,
critical of defense counsel, he did an excellent job,
but that would have been a better strategy
than predicting what was going to be said.
(Judges' voices drowned in crosstalk)
-: Didn't he describe them as like the drug pins of Stoneham?
That Mr. Fume was the primary drug dealer in Stoneham,
and these were devious drug dealers?
Wasn't there some of that going on?
-: Well, yes, there was.
And I think there's an argument that's been made
by the Commonwealth that somehow justified the comment,
I don't follow the argument, I don't know how that
would have justified a comment like this.
-: Can you move to your manslaughter argument as well?
-: Yes, I have to say,
with regard to the manslaughter argument,
I relied and basically repeated the argument
that was made by defense counsel at trial.
I thought he did as good a job as could be done with that,
and I used his argument and repeated it.
And my argument there is that, what I'm hoping the court
will consider is he preserved Brown,
because the gist of the argument that there
should have been a manslaughter instruction,
is that there was not sufficient evidence of malice.
Because manslaughter is of course, murder absent malice.
So I'm hoping the court that would consider
that by making that argument,
he preserved the Brown issue here,
that there should have been an instruction
that a showing of malice was required.
If I could make, I think I may be overtime,
for some reason, I can't see-
-: No, you have about two minutes left,
if you wanna sum up or make the last point.
-: If I could just return very briefly
to the previous argument, I know that I stated that
that was referred to that second argument
as a collateral matter.
By that I did not mean in any respect that
it was less important.
An argument that related to, or improper testimony
that relates to a collateral matter can be highly damaging.
I'll give as an example, if somebody testified,
"Well, I happened to hear that this defendant
has committed many crimes in the past."
That would be entirely collateral
and yet obviously extraordinarily damaging.
So I did not mean to suggest by saying that
this was collateral that it was that
it was not highly damaging, I was not conceding that at all.
-: Can I ask before I lose you,
you want us to reduce the verdict-
-: Yes, if you don't-
-: And the level of his participation in this,
when we read through this transcript, he's the one
who's at each of the different dealings.
The other shooter isn't there.
So can we really consider him sort of
as a more peripheral figure here?
'Cause it looks like he's driving the drug deal, this guy.
-: Well, in regard to my argument for reduction,
I was arguing more, your honor that,
I pointed out that he was 19 years old at the time.
And also I asked the court to consider the unfairness
of the prosecutor's closing.
I think those were the two main things
that I asked the court to consider.
-: Thank you.
-: Thank you, your honors.
-: Thank you Ms. Obrien.
-: Ms. Russell please.
-: Thank you (voice drowned out).
Assistant District Attorney Lindsey Russell
from Middlesex on behalf of the Commonwealth.
I just wanna step back a bit and provide some basic facts
that were in evidence.
And just for clarity of reference, I'm going to refer
to the victim who was shot but survived,
(voice drowned out) as the injured victim,
and to the victim who was shot and killed,
Joseph Poablo, as the decedent.
So during the second encounter that day
between the defendant and his co-defendant,
Jesse Williams, when the shooting actually occurred,
it is admittedly a bit confusing where everyone
was standing in that room.
However, there are a couple of important facts
that were clear from the testimony and the medical records.
So as your honors acknowledged, all three eyewitnesses
saw the co-defendant Williams, pull out a gun
and pointed at the injured victim,
and saw this defendant pull out a gun
and pointed at the decedent.
Now the evidence also showed that the shot
to the injured victim went into his middle chest area,
and exited in his back about six inches above his waistline,
and thus exiting lower than where
it entered in a downward trajectory.
And that the gunshot wounds to the decedent,
were in his upper left arm shoulder area,
and then into his upper torso, with the bullet landing
in his lower-right chest cavity.
-: Counsel, what do we make of the fact
that the second bullet was never recovered?
-: Well, the bullet that was recovered your honor,
was from the decedent's chest cavity.
And that is the same person who the defendant
who all three eye witnesses saw the defendant standing
in front of with a gun pointing it straight at him.
With respect, there's plenty of reasons
why there might not be another bullet or shell casing.
If you look at the exhibit attached,
I believe to the defendant's record appendix,
this is a room with a lot of things in it.
And it is a small space.
However, there were plenty of people,
even right after the shooting,
who were walking in and out of the room,
obviously there was some mysterious hiding of drug evidence
that was going on, and again, there were many officers
and other civilians in and out this room,
things can be kicked around.
And I believe the ballistician did testify
about how that can happen in crime scenes,
where they don't always recover everything.
But just back to my first point however,
about where the positions, where everyone was.
With the decedent standing at 5'9",
what the prosecutor was attempting to point out there is
how implausible it would be for that same one bullet
to have gone through the injured victim
in a downward trajectory to then
somehow enter a 5'9" tall man's upper shoulder area
where there no view of the evidence that could show
that the decedent was doing anything
other than standing in that room.
And in any event, the defendant's contention that
there was no evidence of two gunshots is just incorrect.
And in addition to what I just stated,
there being two victims with gunshot wounds at the scene,
the three eye witnesses who saw each (voice drowned out)
a gun at each victim, there are also five entry
and exit wounds between these two victims.
And again, there was the physical evidence that,
I'm sorry, Justice Cypher...
-: No, I was thinking out loud quietly though,
five, counting five, sorry. (chuckles)
-: Yes, so there was through and through
on the injured victim, and then on the decedent,
there was a through and through
almost in his upper shoulder into his torso.
So one, two, three.-
-: Awh.
-: Right.
So while there was also evidence of only one gunshot,
as your honor mentioned, there was one bullet recovered
and that the third eye witnessed George Touchy.
said he heard one gunshot as he ran from the garage
and the injured victim's stepfather
who was upstairs had heard, he said a gunshot.
That does not make the considerable evidence,
or the reasonable inferences that can be drawn
from the considerable evidence
that there were two gunshots any less reasonable.
Now, with respect to the prosecutor's specific remarks
about the damage to the bullet, while it is true
that Trooper Sullivan never actually testified
to the amount of damage on that bullet.
Having the entire context of the closing that's clearly
that remark was not prejudicial.
Even defense counsel, as your honor pointed out,
predicted that the prosecutor would argue
in closing that that bullet had no damage.
So clearly he viewed the evidence as something
where he thought the prosecutor could argue based
on the reasonable inference, that there was no damage.
In fact, he stated, "The government will say,
just to predict a little bit about what Mr. O'Reilly,
the prosecutor is going to argue to you,
that the bullet isn't damaged.
The slug isn't damaged enough for all this activity.
Think about the different things that people have said
about the positioning, about where Poablo and Fumi was."
So clearly this was something that at least according
to the trial attorneys, that people that were actually
there at trial believed that this was a reasonable inference
that could be drawn such that defense counsel
even brought it up in his closing.
and most important to note with respect to this issue
and underlying really all of these issues,
and showing that the statements and not going
to the heart of the case is the fact
that the Commonwealth had never had the burden
of proving that the defendant actually fired the shot
that killed the decedent.
This was tried at the outset as a joint venture,
in which either defendant
could have been the principal shooter.
To the extent that the defendant argues his remarks go
to the heart of the case because they bear
on the credibility of witnesses, it just has no merit here.
This isn't a situation where the prosecutor
and (voice drowned out) again resulting
in a prejudicial error.
First, as explained, there was considerable evidence
of two gunshots outside of any visible damage to the bullet.
Second, with respect to the eye witness testimony,
the injured victim, as counsel pointed out,
actually admitted on cross, that he had not
actually seen the decedent get shot.
And in fact, it was the decedent who told him
that both he, the decedent
and the injured victim had been shot.
And one of the three eye witnesses Touchy
as I previously mentioned,
said that he only heard one gunshot as he ran away.
So clearly that would support the defendant's theory
and therefore these remarks not
having improperly bolstered his testimony.
And again, this is an eye witness who,
prior to running away saw the defendant
and the co-defendant each point their guns
at the two separate victims.
And not only that, but the judge did suggested,
asked defense counsel outright,
"What do you want me to say?"
And he said, "I want you to remind the jurors
that it's their memory, that controls."
And then she also gave this instruction
that arguments are not evidence,
which the defendant acquiesced to.
And I think as Justice Gaziano points out,
I believe that that kinda just goes to the gravity
of clearly in the moment.
This was not something that everyone was thinking was
in any way and nor should it be viewed now, as prejudicial.
And similar lines to go into the prejudice analysis,
really with this argument.
And I'll get to the other closing argument issue as well,
is that clearly the jury didn't get carried
away here with prejudice.
The defendant was acquitted of armed assault
with intent to murder the injured victim
as well as assault and battery
with a dangerous weapon causing serious bodily injury.
So clearly this was a situation where the jurors
were carefully scrutinizing the law,
and did not even find the defendant guilty
of all the charges that were presented.
Now with respect to the other closing argument issue,
ripping off the kids from the suburbs,(voice drowned out)
obviously that was inartful and should be avoided,
however, whatever the intent
of the prosecutor was with that characterization.
Again, there was no prejudice here,
where the judge provided immediate curative instruction,
telling the jurors that they should derive
no negative imprints from
where the defendants were frightened.
And also she basically told as Justice Baker points out,
told the jurors to equate Stoneham
and Medford as the same.
So despite any preconceived notions
that these Middlesex residents might have
about the two towns and said,
there's plenty of case law
that the jurors are presumed
to follow the judge's instructions,
and they were clearly told to treat these two places
as the same for purposes (speaks faintly).
I would also-
-: (voice drowned in crosstalk) But curative instruction
didn't go to the harm.
-: I'm sorry, (indistinct).
-: The curative instruction didn't address the danger
and the harm of the closing.
-: Well, I think it did, because specifically
the judge explicitly pointed out, "You should not draw
any negative inference," that inference being that
these kids from Medford are in some way,
because they're from Medford, they're more dangerous.
than these angelic kids from the suburbs
and that they were just basically taken
that these defendants were taking advantage,
these black defendants were taking advantage
of these white kids.
And I'll note as I believe, Justice Kafker pointed out,
race was not brought up at that point as being the issue
by defense counsel at least, or I can see how,
there can be coded or dogless the language here
which is why I definitely just suggested (voice drowned out)
but I also suggest that the curative instruction cured it.
I would also note that during voir dire, defense counsel
specifically asks certain questions, to be asked
to each of the jurors that goes to the race issues here.
And those questions where, "The defendant is a black man
and both the deceased and the victim who
was injured are white men, would this in fact interfere
with your ability to be fair and impartial juror?"
And the other question was, "Do you have any bias
or prejudice against people who are African-American?"
And each juror who has chosen said, "No."
So both of those questions that it can't were requested
by the defendant during VOD year, so in a sense,
the jurors were essentially pre-screened for racial bias,
making them less susceptible, I would say to any
sort of coded language that might've been inadvertently
put in there in the closing, by the prosecutor.
With respect to the manslaughter instruction,
there was absolutely no view the evidence here
that could have supported a manslaughter instruction.
Regardless of whatever sporting equipment
might've been in the garage,
or what made it happen earlier at night,
the judge correctly determined
that there was no basis for it.
Nor is there any merit
to council's claim regarding preserving the Brown issue,
for Brown was decided, this court has been explicit
in that Brown is proactive, I'm sorry,
prospective and only for future trials.
And in any event, the Commonwealth really
didn't show actual malice here.
This was a situation where even taking the view
in the light most favorable to the defendant
that the defendant didn't actually shoot the decedent,
this was a defendant who plans all these
as Justice Kafker pointed out, he was there both times,
he's the one who set up the drug deals,
and the planned armed robbery.
He walked into an occupied house, carrying a loaded firearm
with the intent to commit a robbery.
And that is clearly step of malice, and also,
I would just note that a second degree murder instruction
was given to the jurors could have returned a verdict
of the second degree.
But obviously I think the evidence of felony murder here
was overwhelming, so they didn't need to reach that.
And then with respect to the reduction
to (voice drowned out) 33,
for the same reasons, were at a minimum,
the defendant planned was present
for and actively participated in armed robbery,
by pointing a gun that he had brought at the victim.
This case is far from a Brown-type case where a reduction
in second degree, it's just not warranted here.
-: Any further questions for Ms. Russell?
Judge Cypher: Thank you.
-: If there are no further questions
then I would just rest on my brief.
-: Thank you counsel.
Counsel Russell: Thank you.