SJC-12155, Commonwealth v. Keron M. Pierre.
Mr. Black, you may begin.
OK. I got the phone up to my ear now.
Is that better?
Yes, a little better.
Yes. Thank you.
OK. I still have a scratch, but [inaudible] for about a month I think
because of allergies, so I'll do my best.
I'll do my best.
We do hear you.
We do hear you loud and clear, so go ahead.
OK. Thank you.
First of all, good morning everybody.
My name is Attorney Alan Black.
I'm representing Mr. Pierre in this matter.
I hope everybody is -- I hope everybody is in good health and doing well during all this time.
I just want to say this, I think I'll argued five issues including the 233 issue and --
but what I would like to do is just briefly,
very briefly go over these cases of the shooting.
It seemed likely the spontaneous shooting that occurred on March 29th, 2009 where somebody,
allegedly the defendant went up to a gunman and started firing significant amount of shots
into the -- gunned 23 people and wounding a horse.
The firearm was never found.
There's no -- I would say there's no forensic evidence tying into the scene.
The gun -- and actually this -: - I'm wrong, the gun was found
but the gun was not found on the defendant's.
It was not found in any way linking -- forensic is linking the gun to the defendant.
It was found on another individual who probably had no connection to the actual shooting.
There's no evidence that this man was there or present.
The issues that I addressed was, one, because of the lack of forensic evidence and because
of lack of a statement or lack of a confession that we did testify at trial,
and we're going to go into that in a minute, but there were evidence of two separate incidents
in where the defendant placed a black firearm on a table, on two different individuals,
Stephenson and then Ms. Clouden [assumed spelling] and essentially threatened them.
The firearm has nothing to do with the incident.
It was stipulated that they were not -- those firearms were not the murder weapon.
Yet, over -- those are over objection, taking them anyway.
There is a contemporaneous objection as to -- there's a motion in [inaudible] to bring it
in from the Commonwealth and that was objected to --
it was contemporaneously objected to estimate Clouden,
I believe and not contemporaneously objected to upon with Mrs.
and Mr. Stephenson, Ms. Stephenson when I came in.
It is a very interesting Commonwealth versus Pierre issue where evidence
for the grand jury testimony of this particular individual, Mr. Johnson,
was allowed to be read and contact the jury.
And there was impetuous subsequently.
Even though Mr. Johnson said those words to the grand jury, he got the information
that affected the grand jury from somebody else, the police came to him,
and according to Mr. Jonathan [inaudible]
that if he didn't testify, he would be subject to charges.
But he said he did not see who the shooter was and that was the objected to by defense counsel.
There was an interesting issue that I put in because I was a little --
clearly doesn't matter, I was a little offended by a bit, it was this --
there's this last case were [inaudible] testified that --
Mr. Leacock [assumed spelling] testified that he was being charged in the federal courts
for bringing $200,000 to Roegan [assumed spelling] and he was being charged for it.
And reason is there was a motion enormity by defense counsel to allow himself to impeach him
because he was a [inaudible] even though it wasn't related to the case, however,
Davis absolutely able to testify that he had maybe an expectation
that he could get something off.
The federal court if you know, you can get some kind of cre --
some kind of points off if they find some cooperation at all.
Yet all of a sudden, right before the defense counsel withdrew his [inaudible],
I'm not sure why, it was -- that was never brought out but I [inaudible].
Mr. Leacock was an important witness and that whether he was facing --
he was expecting some kind of favorable disposition
in federal court would have been biased and would have been appropriate.
And then finally, there were two issues related to the fact that when Mr. Pierre testified,
they repeatedly -- and I say repeatedly asked him, why didn't --
he was in Trinidad, and repeatedly asked him why did you come back
to the United States [inaudible] over and over and over and over again.
At some point in time, the judge interrupted and said, listen, instructed the jury, you know,
you can't -- he said the question was proper, it goes to credibility but you can't hold it
against him if he didn't come back.
I argue both constitutionally [inaudible] in state courts,
in our SEC's case law regarding pre-arrest violence,
post to pre-arrest violence to be used against them.
And that's OK.
So I can -- I'll be quiet.
No, we're not going to ask you to be quiet.
We ask you to respond to the question.
So we'll start the questions.
Justice Lenk.
Hi, Mr. Black.
Good morning.
Yes. And my first question has to do with what was theme of the defense, please.
Excuse me.
I couldn't hear that.
I asked you what the theme of the defense was.
The theory of the defense?
Yes, please.
Well, that is a very good question.
Yeah.
I mean -- and I am not trying to be facetious.
I think that -- I think the defense was that it wasn't him.
But that did it and the credibility -- I mean, what you've got is two witnesses,
one witness that was able to testify to the --
well, the grand jury testimony came in with [inaudible], and another witness who had --
and the one witness that places him, you know, with a gun shooting was the witness
that one gave two prior grand jury testimony that has nothing to do with it.
Two, testify to prior murder cases in Rhode Island.
Three, had a prior murder case in [inaudible] Rhode Island, and now he's allowed to testify
that oh, yes, my client -- oh, by the way,
the third time my client was the one who was the shooter.
So I would say that the theory of the defense was, it wasn't him and the evidence was really,
really weak in terms of who you got testifying against him.
OK. So it was one of the things that he was a mild mannered diamond
and didn't know anything about guns.
My guy?
Yeah. Was it part of that defense that he was --
your guy was a mild mannered guy who didn't know anything about guns?
I don't remember that at all.
Uh-huh.
OK. Well, that's what the prosecution says is the case.
His testimony about the guns from the Stevenson and [inaudible] was necessary
to reflect your theme that the defendant was a mild mannered person
and knew nothing about guns.
And I was wondering if you had anything to say about that.
Well, if he -- and the only thing I could say is that if he testified to that, when --
you know, when Mr. Pierre testified at trial would have been way
after these two people testified about the guns.
Yeah. But it was a theme the he was mild mannered guy, didn't know anything about guns.
Isn't that kind of -- isn't that kind of burden to whether or not they judge you by acting
within his discretion and allowing them to testify that they had seen him with a gun?
Frankly, I would say yes if that's the case.
I don't remember that being a theme at the trial.
I really don't.
OK. All right, fine.
And I really could be wrong.
OK. Well --
I don't remember that as the same.
I do remember those guns, all of a sudden show up and they're not the murder weapon.
So what?
I understand that.
Yeah. Yeah.
OK. The next question I have had to do with the grand jury testimony.
And the question was whether or not we could have prejudice, even if you're right
about the fact that it was a contrary to what they did today and the way it was done,
how could it have prejudice him as it was a cumulative of this trial testimony.
He would have asked him whose trial testimony.
The only witness they have --
Had this trial testimony, that's what the Commonwealth says.
Yes, but that's not true.
OK.
I mean, I beg to differ.
The trial testimony again, was from this guy named Johnson, who has --
you know, I know you will read it and if not, you'll read it carefully.
Again, he has a history of testifying at many trials.
He did two prior grand jury testimonies under oath which were now he says are not true.
And he was charged with murder himself in Long Island and testified in the case of Rhode Island
and got off on a case in Massachusetts for doing this, for testifying at trial.
That's the evidence.
OK.
What's the two -- what's the heavy evidence at trial?
That plus the date -- the day of the testimony.
That's what you got.
Well, you do have a guy in a white t-shirt, I mean, that's --
you also have a guy walking around in a -- what they call --
unfortunately, they want to call a wife beater shirt.
And that language is repeated throughout the crowd without objection.
What is the definition of a white t-shirt by the way?
Yeah, they said it was a shirt that, you know, like no strap,
like a white t-shirt, sleeveless.
They're sleeveless.
There's this -- well, it has, you know, like strap, it's sleeveless, yes.
And so, it's the same thing.
It's a separate undershirt and a white pure undershirt the same thing?
Yeah. Yeah, that was the same thing.
OK. All right.
Now, you didn't file [inaudible] because I'm not --
I'm looking for your five ways to -: - and you didn't file one, right?
I did not file a replacement.
Oh good, I didn't lose one then.
All right.
You did not lose it, no.
OK. And then I want to ask your last question about this,
the comments that were clearly inappropriate is the Commonwealth to concede
that they shouldn't have talked about the Boston fraternity stuff to try
to clear his name and all the rest of that.
But he says that the judge gave really good jury instructions [inaudible] trial
about the presumption of innocence and the burden of proof and there was a small part
of the otherwise proper arguments about the flight to Trinidad.
So what do you say about that?
Well, he did give an instruction and I refer to it in my opening.
It's on -- like I saw it on my brief but it's toward the end of the fact section of my brief.
OK.
And he did.
He -- what he -- but how he phrased it is it doesn't go --
its proper question as to -- it's on page 34 of my brief.
He says the questions that were asked
and the answers are given are admissible, I don't think they are.
But they were admissible in connection with the assessment of the credibility of this witness.
How? You know, that's exactly what it shouldn't be.
But it does say that the person accused of a crime is no burden
of disproving the crime in any way.
OK.
So yeah, he talks about burden shifting.
But he also say if you can consider it as to the credibility.
Well, you know, that line of questioning and again, it was repeated over and over again.
You said over and over again.
How many times it's -- how many times did he talk about, two times, three times,
four times sort of talking about?
I didn't count but it's probably more than four.
OK, fine.
Thanks.
And if I'm wrong, please forgive me.
Sure.
But it wasn't multiple.
All right, multiple.
But I don't have anything else.
Thank you, Justice Lenk.
Yeah. I have one question.
Is it overstated to save those stipulations if this is not the firearm?
As I read the transcript, it's more accurate to say
that there was no direct evidence, this is the firearm.
Judge Locke finds there's no evidence that it wasn't, there's no evidence that it was.
And the defense attorney says I suppose right.
They call us, says, well, we're not going to argue with that.
But the distinction be in a test scenario and some of the other cases
that the firearm question was absolutely excluded here.
It could have been, it could not have been.
How do you respond to that?
You know, when it first was brought up, it was clear that this was not the firearm.
As the -- I noticed and I think you're correct in stating this.
As the trial progressed, the prosecution got -- well, I don't think it is.
Well, we have no evidence that it is.
It probably isn't.
And then the judge, you know, wanted a clarification.
But I think at one point, the judge finally said well, if you're saying that it's not, it's not.
So you know, I do understand what you're saying --
I'm reading from the transcript, volumes six, page 10.
OK.
Where it's unambiguous.
He says could have been, could not have been.
And the judge makes his ruling based on that.
The defense attorney agrees to that.
We have a black firearm.
We don't have -- and it's a semi-automatic
and that's a black firearm that's used test scenario and all those other cases.
It's definitively not the firearm.
I would say to answer your question, again, if you read the entire transcript,
this went in many different ways until the end.
But what I would answer you and say this, there was no --
I mean, I understand what your distinction is.
Would it absolutely ruled out the ballistics evidence?
No, it wasn't.
But there is no evidence that this was -- that those were the firearms.
Not presented at trial.
And, you know, the Commonwealth has the burden of proof.
There was no evidence that these are the firearms.
So, how do they connect --
You told us it's a stipulation, that's not true.
It was a stipulation.
Again, one of the stipulations that's issued by the party --
Give me a page site for the stipulation.
Transcript 10.
Yup.
Page 53.
All right I'll look at that.
I have no further questions.
Justice Lowy.
Yes, Mr. Black, good morning.
Good morning, Justice Lowy.
Justice Lenk referred to a couple of issues where the defendant arguably brought
up his character and not a person who would know anything about firearms.
They were in the opening and the closing.
The opening even here evidence relating to this diabolical psychopathic crime,
and you'll get no such character evidence relates to my client.
And then in the closing which I guess really doesn't matter
because the rulings have been made already but the defendant says
that [inaudible] my clients milk toast, doesn't know anything about firearms.
So did the defendant sort of insert character evidence into the case
because the Commonwealth actually, in the first part of the brief on this issue is saying, well,
yeah, it is character evidence to me.
Typically, it isn't character evidence.
Well, the couple -- as a couple of responses to that, one of them --
I'm not sure how to say this in a nice way,
but I probably would have argued the case a lot differently because me.
I think the council made several mistakes, and that might have been one of them.
But I would also say this, that opening and closing obviously are not evidence.
And -- I mean, they're not and the judges put that instruction all the time.
I don't know, you know, exactly where he was going with this.
But they shouldn't have been allowed -- you know, they shouldn't have been allowed.
Maybe it should have been allowed, if any.
I don't know but introducing you to what was said in an opening and closing was improper
and to show what that he wasn't milk toast.
And that again -- so what you're saying is he implicitly introduced character evidence
by saying he was milk toasts, although again,
that wasn't pure evidence because there was no evidence.
And then they were allowed to rebut it by showing two firearms
which you tell me how the jury was going to react to that.
There was no way that they were going to record that in a neutral way.
And in a way that wasn't showing that this guy was a bad guy.
I mean, what you got here is this whole -- when you look at the whole case with the firearms,
with the testimony, with this guy, Johnson, that's what you got.
You got some really bad witnesses, some really weak witnesses
within -- a huge amount of motive.
So you got the firearm that were stipulated, that there's no evidence.
I'll put it this way.
There's no evidence that there were firearms in general.
Well, we'll have to look at the transcript.
I agree with Justice Gaziano, it's hardly clear.
But we are reviewing this firearm issue even though it's preserved
for an abuse of discretion.
But I don't know if you had a chance to look at Commonwealth versus Andre but the concern here
with the private firearms is they also involved a violent situation.
And whether or not the firearm was used in the crime, that's not the end of the analysis.
Here, from your perspective -- but I'm not sure you said it precisely this way,
you'll tell me if I have it wrong.
From your perspective, the undue prejudice of the firearm is --
this is an ID case, and that the jury might have made an ID based
on the prior possession of firearms.
And I did not precisely put it that way.
Thank you.
But did you agree with that analysis?
I do.
Now --
I mean, it isn't ID case.
OK. And that's what the concern with the prior firearms, isn't it?
It seems right.
Yeah.
So, on --
One concern.
-- on Commonwealth versus Daye, the whole issue of coercion comes up on cross examination
and there's no [inaudible] idea, and it's up to the judge as the primary question,
he have to decide whether we believe it was coerced or not
and the judge found Daye was satisfied.
So, what precisely are you saying was the error?
It doesn't go to wait but the error,
the admission of the prior inconsistent statement under oath here.
Well, he didn't go -- as you just described, he didn't fit --
there are four elements with Daye.
And he didn't go point by point by point by point.
He didn't -- he just [inaudible] --
They're all satisfied.
They're all sadly inconsistent under oath not coerced from the judges' perspective
and not a mere confirmation or denial, so all four out of five though.
Well, he testified he was coerced.
I asked again that.
That's why I asked you initially, isn't it.
That came across after the ruling without the whole idea of this and it's
up to the judge is a primary question as to whether
or not he believes the testimony was coerced in the grand jury.
I mean, I would agree with you that I guess the judge did make that inclusive findings,
but he didn't explicitly make that finding.
I mean, this -- the first point you mentioned was,
was he subject to a meaningful cross examination.
Well, he said that, I don't remember say any of these.
Shall we cross examine on the prior statement because he's denying saying it, and that --
He denied saying it but I think the case in Daye, I think I remember saying it
and they were able to cross examine him and [inaudible] testified to.
And in this case, he was not able to testify
so he doesn't remember anything and he said [inaudible] it.
Right. I have one more areas of inquiry, that's going to go to the [inaudible] issue.
I'll ask the Commonwealth about that.
Neither you nor the Commonwealth on the failure to impeach the witness
with the pending federal charges cite to Commonwealth versus McGee,
which is our most recent discussion of this issue in 2015.
But there has to be a foundation of, you know, at least a hope of finding what --
or getting a more lenient sentence or some sort of promise,
pressing some explanation that's persuasive, that the pending charges
to the arrest might indicate a motive to lie.
Was that foundation ever satisfied in this case?
Well, I would argue this and I did not cite McGee.
But I would argue this under -- and I cited [inaudible] this has come up either
with practicing law and in almost every case, I got a ruling.
I think every case I got a ruling that that was cross examination because --
and especially in federal court, where every little thing counts after, you know,
your point total and when they're computing, and they're computing their sentence.
Cooperation certainly counts.
And in Davis versus Alaska says, the hope, the mere expectation
and hope is you're going to get some benefit.
Period is proper cross examination because it goes to buy -- you can argue by it --
at all times, you can argue by it in front of a jury in closing argument.
This guy was facing a $400,000 and $40,000 in federal courts is a lot of money
and you get more sentences, you know,
that the more money you are involved in -- it's a lot of money.
I don't know what he was facing but he was facing several crimes, and it certainly I think
under the Sixth Amendment was absolutely appropriate.
Cross examination, I don't understand the withdrawal of motion.
And, you know, the judge started going that way.
The judge first said it's not related.
At the very end of the argument, he started saying, well, yeah, it's possible.
All right.
He was hoping for something.
Thank you very much, Mr. Black.
Thank you very much.
Justice Budd?
I don't have any questions.
Thank you.
Please excuse me.
I don't have any questions either.
Thank you.
Justice Kafker?
Thank you.
None for me.
I got only a few.
The stipulation you mentioned at 10 62, 63, the stipulation that the semi automatic pistol
that was recovered from Mr. Fenton was indeed the murder weapon.
Yeah.
But it doesn't say that the firearms he pulled out before Stevenson or Clouden were not.
And indeed I recall that didn't Stevenson say it was a semi automatic, it had a clip?
No. I thought what he said [inaudible].
That 6 -- page 114.
He described it as having a clip.
I'm sorry, I'm kind of pulled out there.
Oh trust me.
Oh no, I believe.
Although I'm not believing you, but I just read it and I thought you did something about it.
But you have to pull the trigger.
Oh god.
At page 113, yeah, it was black hand gun, it's not one with a revolver,
it's one that you would click, click OK.
When you say revolver, what kind of a gun?
The kind of gun with a barrel.
That's what a revolver is.
Yeah, it was not that kind, exactly.
It's the kind where you put the clip in the bottom.
OK. All right.
That's what you said.
So -- and this was a semi automatic, I guess.
It was a black semi automatic?
Yes.
So, we can't say that -- I mean, in some of the cases Justice Gaziano was referencing
to was, you know, was it a revolver versus semi automatic?
It clearly could not have been the gun.
But this at least was consistent with the gun, whether or not it was the gun, we don't know.
But it was at least consistent with it, correct?
Well, you know, when I read the transcript, and it was a long time ago,
but I remember that the district attorney at one point in the trial kept on saying,
we are not going forward with the theory that this was -- these were the firearms.
Right. Well, they surely can't prove it.
They couldn't prove it.
Right.
Right. I understand that they were not going to be able to prove that in --
that that was the -- you know, that, yes, it was a black semi automatic.
That'll be Stevenson so I don't think Clouden described its color but yeah,
they couldn't prove it was the firearm but that's different from saying it plainly was not
which is -- which they could have proven if indeed it had been a different type of gun.
OK, I would agree with you.
As to the testimony of Mr. Leacock,
am I correct that his grand jury testimony preceded his indictment in federal court?
Wow. I can say with certainty that I do not remember that.
OK. Because I had some memory in the briefs and we'll find to Mr. Linn because if
that were the case, then if he were to be impeached with his federal criminal charges,
then they try to rehabilitate him by saying that that's what he said
in the grand jury before he was indicted.
So, that would be a reason to not press the issue if that indeed were the case.
And I guess we'll find out, Mr. Linn, whether that was the case, correct?
Correct.
And that -- except none of that is -- yeah, I agree with you if that's the case,
but none of that was on the record.
OK. The date of the indictment is not -- was not in the record in any --
during any of the discussion about the motion.
I don't remember, no.
Not that we thought it was for everybody else who was testifying
to different indictments and different grand jury.
But I don't remember the estimates but we got again, sort of a long time ago.
OK. I have no further questions.
Anybody else have any questions?
Having concluded the questioning.
That's an order.
Well said.
Justice Gaziano, anything?
Justice Lowy?
No.
No, thank you.
OK. Hearing nothing.
Mr. Black, thank you.
And now we'll hear from Mr. Linn.
Thank you.
Thank you, Mr. Chief Justice and justices of the court and of this court.
Turning to the first issue, I'd like to start at the very beginning
which is the opening statement, in which defense counsel argues that this murder was vile
and diabolical, and you won't hear any evidence of that defend that fit that personality.
And that was a bit disingenuous because, of course,
the Commonwealth cannot introduce evidence of the defendant's character.
But both Holley and Tassinari which I said a brief do say that you can still introduce a gun
to show familiarity and knowledge of guns and the means to commit the crime even
if there's no direct evidence connecting the gun to the crime.
And that's the situation here.
Holley in fact, is very close to on point because, again,
there's a gun that's generally consistent with the murder weapon, but there's no evidence
that it is in fact the murder weapon.
In fact, it could have been any number of weapons.
That was the murder weapon because I think in my case the murder weapon was not found.
Also, the judge, I believe, on both occasions,
at least on the first occasion instructs the jury that they are absolutely not
to consider this evidence as evidence of defense.
That character or propensity to commit the crime is solely for the purpose to show his knowledge
and submit -- excuse me, I'm so sorry, Your Honor, familiarity with God.
I also pointed out I just read this last night.
There is no evidence that the defendant threatened anyone with these guns
that Denise Stephenson and Chaka Clouden saw.
Stephenson testified that the defendant was playing with the gun
and at one point he playfully pointed that to her and he said that he responded angrily
that he was pointing the gun at her.
But there was no suggestion that this was a threat.
It was just to put something playful that she could reasonable objection to.
And Ms. Clouden simply said that he displayed the gun.
So there was no evidence of any threat or violence or slapping it down on the table.
So in those -- in light of all those circumstances,
it was well within the judge's discretion to admit the evidence
that Stephenson and Clouden saw this gun.
Turning to the Daye issue, Johnson has a reasonably clear memory of the night
of the murder when he testified at trial.
He doesn't remember everything, he answers a lot of questions which I don't know,
but he does affirmatively repudiate his grand jury testimony
that he doesn't remember what he said.
But he didn't see the murder.
He was just coming around the house.
And he was -- when the shooting started, a friend [inaudible] behind the house.
He didn't see who was doing the shooting.
He tells a coherent story that's completely inconsistent with his grand jury testimony.
And Daye itself says that there could be no better cross examination
than the witness changing his story
and saying the story he told at the grand jury didn't happen.
And that's what Johnson did here.
Regarding the questions about whether the defendant came back
from [inaudible] to clear his name.
As we've all agreed, that was an improper line of questioning under Gardner.
The prosecutor shouldn't have done it.
But the judge responds by doing exactly what he's supposed to.
So he breaks in, he says, no, the defendant has no burden to clear his name.
The burden is always on the Commonwealth.
That he even harks back to the instructions he gave to that effect
in his opening remarks to the jury.
And then again, he repeats that, of course, in the closing arguments.
And for the record, it's three times.
The prosecutor asked the defendant three times whether he considered coming back
from Trinidad to clear his name.
Turning to the cross examination question.
The reason that defense counsel decided not to use this as --
excuse me, I think I have my timer on and I'm going to turn that off.
The reason he says that the reason he decided not to do this is,
as long as it's consistent with his grand jury testimony.
Because the grand jury testimony was before he got this new federal charge.
I don't have the exact dates in my brief, and I don't remember what the exact dates were.
But that was the issue that as long as Leacock testified consistent
with his grand jury testimony, there was really no word to this evidence of this charge
because it obviously didn't back a story.
And it is.
And I cannot emphasize this strongly enough.
Defense counsel decision.
The judge does, as my brother said, come around and say, well, actually, yeah,
he might have something in the back of his head,
about maybe currying favor with the Commonwealth.
So you can address that.
And that's when the defense counsel says, no, I don't think so.
As long as it's -- I think it's just, it's not going to be --
oh he says -- he doesn't really explain it.
And so, I don't want to put words into his mouth.
But he says, I think I'm going to withdraw the motion as long as his testimony
at trial is consistent with his grand jury testimony.
So this is not like Davis versus Alaska.
This is not a judicial restraint on cross examination.
This was a decision by defense counsel.
The defendant doesn't raise an ineffective assistance of counsel claim.
And I addressed in my brief why it is ineffective assistance of counsel.
And with that, I will turn the issue over to you, the justices to ask any questions you have.
OK. Justice Lenk?
Good morning, Mr. Linn.
Good morning, Justice Lenk.
Good morning.
Yes, yes. I would like to just go to the Daye issue a little bit here.
Now, it wasn't until cross examination that came
out from Johnson [inaudible] testified at the grand jury, right?
That's correct.
And the judges already ruled that [inaudible] coming in, right?
I'm sorry, I missed that.
Did the judge at that point [inaudible] rule that it could come in.
Yeah?
He had already ruled that it would come in.
There was no break in the action when Johnson gave that testimony.
Yeah. I guess my question really has to do with whether
or not the judge has some obligation after the police and the defendant --
after Johnson testified to coercion that he hadn't testified to before.
Is there any obligation to reconsider [inaudible] because that's really --
because the defense didn't ask him to do that, right?
No, the defense did not ask him to do that.
I don't know of any precedent for the judge breaking in the middle
of Daye's testimony to reevaluate the situation.
Certainly, it would be addressed under the miscarriage of justice.
Standard. And there was no miscarriage of justice here because the defendant --
or excuse me, not the defendant, Mr. Johnson,
completely refuted it in his grand jury testimony.
He said I just didn't see the shooting.
And he explains that he says, that's how he explains like, gave the testimony is
because he was coerced and because he heard it on the street.
He heard it from Leacock, he heard it from somebody else.
By the time he's done testifying at cross examination, he has made his claim
that his grand jury testimony had no integrity whatsoever.
The Commonwealth obviously disagrees with that and [inaudible] argued
that it's certainly Johnson that is certainly by the end
of his testimony says this is not what happened.
Yeah. So you guys see any possibilities of miscarriage of justice in the defense failure,
the council failure to ask for reconsideration as the credibility issue?
No, none at all.
For the reasons I just stated.
OK. I don't have anything else.
Thank you.
Justice Gaziano.
I have no questions.
Thank you.
Justice Lowy.
Mr. Linn, good morning.
Good morning.
I want to ask you about the firearm.
So it seems that it may have been the same weapon.
It may not have been, but that's not the end of the analysis.
I guess my question goes to the issue I raised with Mr. Black.
Because the defendant inappropriately raises character evidence
in the opening statement doesn't allow the Commonwealth to violate the --
ruled against character evidence.
And the concern here is that the prior possessions of the firearms would be used
for identification purposes at a trial since it's an ID case.
What's your response to that?
Well, I have several.
The first is the Commonwealth, obviously,
as I stated in my brief, you can't fight fire with fire.
I mean, in fact, the prosecutors tried to bring an evidence
that the defendant have said I'm gangster, I can take out people.
And the judge rightly said, no, that's just plain character evidence.
You can't bring that in no matter what the defense counsel's sentence opening.
But whereas defense counsel says his opening the defendant doesn't have the character
to commit this crime, where he says it is --
I mean, obviously, it comes in before the closing argument,
but this is a theme of the defense.
The theme of the defense is, my client isn't the kind of guy who would commit a triple murder.
And regardless of whether that's appropriate for defense counsel, the case was clear
that the Commonwealth has the right to correct an erroneous impression.
And that's -- the judge here balanced that very carefully.
He gave this instruction over and over again, that this couldn't be considered
as evidence the defendant committed the crime.
He couldn't -- the jury couldn't consider it as evidence of bad character.
They could only consider it to show that he was familiar with guns, that knowledge
and familiarity with guns, and the means to commit a crime which under Holley
and Tassinari is entirely proper and well within the judges' discretion.
And as I said in my opening remarks, there's no evidence
that the defendant use this gun for any violent purpose.
At worst, he was being reckless with that.
But it's never -- he never used it to commit a crime.
He never used it to threaten anybody, if not especially prejudicial evidence.
All right.
Thank you.
One last area of questioning is the failure to impeach Leacock
with the pending federal charges.
Here, the defendant -- there needs to be some, at least, strategic reason not to do so.
And I think that the chief raised the point that it's my understanding as well
that the grand jury testimony predated the grand jury testimony was before the statement
at issue.
And I guess there's a -- there's an issue
of prior consistent statements here before the issue of the federal indictment.
That's correct.
Yeah. Because the grand jury testimony was before the federal indictment,
there would have been a strategic reason not to ask the line of questioning, right?
Correct, Your Honor.
Yes.
OK. All right.
That's all I have.
Thank you very much.
Justice Budd.
I have no questions.
Thank you.
Justice Cypher.
I have no questions either.
Justice Kafker?
The same.
And I have -- I guess I have one question.
With regard to the prosecutor's statement, I assume there's guidance in your DA's office
which is telling people they shouldn't do that.
I certainly hope so.
It's one of the things we tell people not to do.
If the problem, I assume is that the federal law differs from the state law,
that doesn't excuse what the prosecutor did, but I assume that as the source of the error
when you could look at the federal law and, you know, not then jeopardize that
and not realize unless you were up with you.
We all, of course, are certainly obligated.
We have the duty to be up on the law.
But you could make that mistake.
So, I think that's what happens.
It was an unfortunate mistake.
We can see that it was taken.
Yes, we constantly, continuously, we have a training requirements,
we have closing argument trainings.
We have closing argument manuals.
We certainly take this issue with the utmost seriousness.
This trial was -- what year, was it 2000 and?
Oh, it was late, it was 2017 maybe.
My screen has gone blank.
I apologize.
That recently.
Yeah, it wasn't very -- he was -: - the crime was a long time ago,
but it took a long time to extradite him.
One more point I want to make about the argument.
It was entirely proper for the prosecutor.
I just can't feel based on the fact that he put the defendant, went to Trinidad,
three days after the murder and never came back even though he had a return ticket.
Let's see.
Where's the [inaudible].
Excuse me, I'm sorry, it's not that late.
It's 2014 is the date of the trial.
Because I mean, Mr. Lee, I believe, actually defended what he did
for the reasons you described that, you know --
You know, it was pre-arrest [inaudible], but that's clearly contrary to Gardner
which I'm almost certain -- and certainly Nickerson, I think is the case
that there was before that that sets up.
Gardner [inaudible] it's Gardner.
I'm sorry, I apologize.
Gardner actually -- in his defense, Gardner wasn't until 2018.
But there was still Nickerson in 1982.
So the only defense he would say is that you could say
that the Supreme Court overturned Nickerson but I think
that would have been a rather bold assumption.
Right. OK.
I mean, I'm not really sure, what was the inference he was trying to make?
The inference he was trying to make is that he said that he --
I should be clear with my pronoun.
The defendant said that he stayed in Trinidad because everyone thought he did it.
And he was afraid, and he was -- at one point,
he says he was hoping the police would do their job and find the real guy who did it.
So he was trying to say, you know, so you're innocent, you're being charged with murder,
the inference was to any person in that situation, you know, would try to clear the name
and that's a reasonable inference, but unfortunately, an unconstitutional one.
So that's when the judge stepped in and said, no, the burden is always on the Commonwealth.
The defendant has no burden whatsoever to clear his name at any time.
I don't even see how it's a reasonable inference.
What he's supposed to do?
He'd say, I didn't do it, but I mean, yeah -- that's what --
He could do that by telephone calls from Trinidad.
All right, fair enough.
I guess [inaudible] we could see there.
Yes.
Yeah. It should not happen.
It should not happen again and feel -- make sure that it's better than the subject
of discussion in the next training.
I appreciate it.
Any further questions?
I have a question on that last point, Chief.
If -- and Mr. Linn, isn't the relevant that which was inappropriate, as you say,
was that well, gee, you -- this witness has no credibility because if that --
it was really truly would have come back, and that that might be relevant on the issue
of credibility but it's inadmissible because it fringes on the defense' right
against self-incrimination, right, to remain silent.
Exactly, right.
And that's why it was very important.
We'd be in a very much more difficult situation if the judge has not done the right thing.
Well, yeah.
I mean, it is very good limiting instructions from a very experienced judge,
but he allowed it in on the issue of credibility
and it was not admissible on the issue of credibility.
My interpretation of the instruction as a whole is that the --
he was referring to the consciousness of guilt evidence in general.
But the fact that the defendant went to Trinidad three days after the murder and didn't come back
on his scheduled date was properly relevant to the defendant's credibility
of consciousness of guilt evidence.
Oh OK.
If there was any suggestion that it was also relevant to his credibility because it showed,
you know, that he didn't come back to clear his name, that was addressed in the rest
of instruction which says you absolutely positively cannot consider for that purpose.
All right.
Thank you.
That's helpful.
All right.
And for those who don't -- can't do voice ID as well as I can and my fellow justice,
here's the questioning by Justice Lowy.
Any further questions?
And hearing none, Mr. Linn, thank you.
That will conclude our oral argument.
We shall commence our ensemble [phonetic] in about two minutes.
Thank you.
Thank you, Your Honor.
Thank you.
Now exiting.