-: SJC-12166, Commonwealth versus Amadi Sosa.
-: Okay, Attorney Thompson.
-: Good morning, Chief Justice Budd,
Justice Gaziano, Justice Kafker,
Justice Cypher and Justice Georges.
My name is John Thompson.
My partner here with me is Linda Thompson.
We represent Amadi Sosa, the defendant, appellant here,
and we have a case in which a reversible error
occurred right at the outset
or actually right at the end of the trial
when the judge, the trial judge allowed
a co-defendant of Mr. Sosa's to testify falsely
under protocol 3.3(e) and denied Mr. Sosa's--
-: Attorney Thompson, how do we measure that?
We obviously have the Leiva case, right?
But I'm puzzled.
In a normal co-defendant case,
if one defendant exercises the constitutional right
to testify,
how do we assess, and say they don't do all that great
on the witness stand, how do we assess that prejudice
like we have here?
Because the jury's not told that the person
is being allowed to narratively testify
because he could be perjured.
So how do we assess that error or that prejudice
to your client, the non testifying co-defendant?
-: Well, I think that upfront the rules
should be that this cannot,
this protocol cannot be implemented in a joint trial.
That is there are two defendants,
the problem it that creates,
that the protocol under 3.3(e) does not contemplate
is that it violates the due process rule
that the government, whether it's the court
or the prosecution-
-: So we've had a motion of sever
that's been denied, right?
-: That's right.
-: And then one person wants to exercise their right
to testify and the lawyer,
the judge appropriately goes to the lawyer,
I guess now the Leiva protocol.
-: Yes.
-: Your position is the judge to revisit the motion
of sever and allow one,
the not testifying defendant a separate trial.
-: Yes, and in our case, Justice Gaziano,
there was actually a motion for relief
from prejudicial joinder
right after the judge ruled that Mr. Leiva
was going to be able to testify perjuriously.
And at the end of the testimony, that motion was renewed.
It was denied both times.
I think that--
-: Is it an issue where your client, oh, no, sorry,
Mr. LAH-VEE-UH does not implicate your client
in his testimony.
-: Oh, I think he clearly did implicate him, but not--
-: How is that?
-: Well, for one thing, just to back away from that
for just a minute, we agree,
the parties agree that he testified falsely.
As a matter of fact,
almost all of his testimony was false,
the Commonwealth concedes.
So even if it didn't directly incriminate at us,
even if he didn't point his finger at Mr. Sosa and say,
Yes, he was involved, he was with me and he was involved,
he didn't say that.
He said, I wasn't involved and I didn't see Mr. Sosa,
but since he wasn't there,
his testimony didn't benefit Mr. Sosa in that sense.
-: I was just trying to distinguish that between
a non-Leiva situation where a defendant, a co-defendant,
exercises the right to testify and doesn't do all that great
on the witness stand and it's not good for the co-defendant.
-: Well, I think at the point that the judge
decides to implement the protocol,
the 3.3(e) protocol, that it's necessary to sever,
okay, the defendant's--
-: And let me ask you if they did that,
and so as in this case,
it comes after the Commonwealth has rested, right?
-: Yes.
-: Would there be any double jeopardy implications
for your client?
-: No, I don't think there would be--
-: Why not?
-: Because, well, for one thing that he would be moving
for the severance,
which carries with it a request for, I mean,
automatically in order to sever,
there would be a mistrial actually.
If the judge wanted to be careful
about the double jeopardy problem,
the ruling might be that the,
that the testifying co-defendant would be severed
and a mistrial declared in that case,
and then they could go forward with that one,
and the person in Mr. Sosa's,
the defendant in Mr. Sosa's position
could continue with the trial.
So, but it seemed, I think that it's clear that at that,
at the point in time where the protocol is implemented,
there has to be a severance.
It's just not possible for the non testifying co-defendant
to get a fair trial when someone other than he
is interjecting false testimony into the trial.
So it was an abuse of discretion for the judge to deny
the motion for relief from prejudicial joinder.
-: It's not automatic if it's not a structural error,
and we conclude we have to assess this from sort
of a prejudice perspective.
How is the testimony prejudicial to your client?
I take it the argument is that he was so obviously lying
that he jeopardized the entire, you know,
both defendant's cases.
Is that right?
-: There is that element that is,
there's an instant credibility problem that's created
once you resort to the narrative form of testimony.
That is a fairly strong visual signal.
It's a silent signal.
It's not obvious.
-: It is to lawyers, but maybe not to jurors,
but tell me again, if we don't adopt your position,
could you answer justice Gaziano's question?
How does the testimony itself hurt your client?
-: Yes, I can.
In this case, one of the things that the prosecutor did
was at the end of Leiva's testimony, he said to him,
"So now you're in the middle of a trial and you decide
"that you wanted to help your friend Amadi out."
So he tied--
-: That was objected to, right?
-: That was objected to and it was sustained,
but it wasn't a question, it was an accusation.
It was a statement to the jury.
-: We got a lot of cases that say it's, you know,
objection sustained, and that the jury
follows the instructions.
-: Well, the instruction though,
Justice Kafker, is not the kind of instruction that's called
for with this kind of a blatant misconduct
by the prosecutor.
-: It was just the general instruction.
It was later at the end,
during all the general instructions,
an unanswered question is not evidence.
-: Well, it's not misconduct by the prosecutor.
It's basically a concession by the defense counsel
that his own client's lying.
That's different, right?
-: That is different.
That's not in front of the jury here,
but this, in this case, I believe it was misconduct
for the prosecutor to say, in effect,
you and Mr. Sosa are in cahoots about your testimony.
They're being, and it turns the joinder fact
into an incriminating situation.
You guys are charged with the same crime and you're
in cahoots on this testimony,
and it makes the false testimony,
it attributes the false testimony to Mr. Sosa.
So that was part of it.
In addition, then--
-: Remind me, the defense, your client's defense.
-: The defense was misidentification.
-: He's not there.
It's not him.
-: He wasn't there, and in this situation, there were only,
really only four people involved.
The witness was a sole,
the sole eyewitness was Caitlin Roncalli,
who claimed to know Mr. Sosa and Mr. Leiva
and Mr. Santana and Mr. Sosa's brother.
So she was the pivotal witness in the case.
She was the only eyewitness.
And he, this testimony,
Leiva's testimony was used to corroborate her testimony.
One of the things the prosecutor did that was improper under
the triplet case was to say to Mr. Leiva,
Well, you heard Ms. Roncalli say this, and you don't,
you agree with that, don't you?
Or, Do you challenge that?
And he went through, they had two witnesses,
they had Ms. Roncalli who had already
misidentified one person.
It was clear that she had misidentified Mr. Sosa's brother
as being present.
So she was the only eyewitness.
And she was, her testimony was the only testimony
that incriminated Mr. Sosa and it was already impeached.
She was a self impeaching witness.
She still insisted during the trial
that Mr. Sosa's brother was the second accomplice.
So this testimony was used to corroborate her testimony.
It was used to corroborate Ms. KOON-YEH's testimony
who was testifying under a deal with the prosecution.
And he went through that with Mr. Leiva
on those points too, you heard Ms. KOON-YEH testify
and you agree with her.
And then he used Mr. Leiva to introduce non-evidence.
These, what he called the Amadi Sosa connection,
this 14 and a half minute arrangement of video clips
that were taken from the surveillance video
at a different location where there was supposedly
a rendezvous just before,
just half an hour before the shooting occurred.
There wasn't any evidence other than her,
than Roncalli testimony that Mr. Sosa was there,
and there wasn't any evidence about how the gun got there,
how Mr. Sosa got there.
So the prosecutor formulated a theory that there was a car
at Mr. Sosa's residence, at the building where he resided,
there was a car there, a black Nissan Maxima
that had paperwork in it that had Mr. Sosa's name on it.
The video that they were using that showed a car
coming to the back of Mr. Leiva's residence--
-: Remind me of the connection of your client to the gun,
the evidence that connects your client to the gun.
-: There are two things that connected my client to the gun.
One is that Ms. Roncalli said that she had seen that gun,
or a gun like it at the same building
that Mr. Leiva lived at,
although she didn't say when it was or who she saw it with.
She just said she had seen that gun at 364 Orange Street,
and that's where Mr. Leiva's apartment was.
That was one connection.
The other connection was the ammunition that was found
in the basement of that building--
-: That's Sosa's building, 364 or are they both, I'm sorry.
-: 364 Orange Street is where is the building
where Mr. Sosa's father lives--
-: Father.
-: Lives and his and his apartment was there.
The ammunition was in that basement.
-: Where does Leiva live?
-: Leiva lives at 70 Granada Terrace.
-: I think you misspoke when you said it.
-: I'm sorry.
-: Yeah, then that's quite, and actually,
I was gonna ask you about the basement search,
which you also raised.
-: The basement, the basement search.--
-: And I don't know if you finished asking,
answering Justice Kafker's question.
-: No, the connection, just to make it clear--
It's the second one, right?
You were about to do the second connection
to the gun, right?
-: The second connection was the ammunition.
-: In the basement.
-: So that leads us to the search of the basement.
And if you could address that, please.
-: Well, the search of the basement was faulty
because of the warrant,
the flaw in the warrant that, in the warrant application
in which the affiant said the basement
is a common basement.
-: And so that the second the search,
the affidavit as far as the second floor goes,
that was conceded by the Commonwealth.
There was no probable cause for the second floor.
-: It was conceded that none of that evidence, that's right.
Well, it was found by also by the motion for,
the rule 30 motion judge that there was probable cause
to search the second floor apartment where Mr. Sosa lived
was not established.
The question was whether there was probable cause anyway
to search the basement,
and it was on his finding that the basement
was a common area,
but the only basis for that was, in the warrant,
was the affiant's statement that it was a common basement.
-: Because what the motion judge is looking at is to,
is ineffective assistance of counsel
and whether or not a motion to suppress
would've been fruitful.
-: Yes.
-: So he has to go based upon what he has and it's the--
-: It's the four corners of the affidavit,
and all it said to substantiate that this
was a common basement was that bare bones assertion,
This is a common basement.
Obviously the basement could be an apartment,
but there was no factual basis in the affidavit for,
to allow the magistrate to make an independent judgment
that this was a common area that could be searched.
-: And your view is that a reasonably effective lawyer
would have filed a motion suppress to challenge
that bare bones assertion.
-: Yes, that wasn't the only thing to be challenged,
that is we challenged several elements or several aspects
of the search warrant affidavit that were also,
that the motion judge agreed with.
But he took issue with us on this element that, again,
there were several places in the warrant application
or in the affidavit where they were
just bare bones assertions without factual support.
-: If we find that assertion stands on its own,
is there enough to get into the basement if it
is common area in a multi-family?
-: I think the law is,
is pretty clear that if it's a common area that is actually
used commonly by the other residents, that is not simply,
that is structurally it's possible to get there,
(overlapping discussion)
but it's actually used that way,
which has not been established.
-: You agree it's it's more the factual support
for the common basement as opposed to a common basement
as a common basement.
-: That's right.
So that's the problem with the ammunition connection.
But the connection between the,
the rendezvous at 70 Granada Terrace
and the killing at 105 Granada Terrace
is more problematic because that is established
with non-evidence.
That is, it's established by assertions that the prosecutor
made in examining Mr. Leiva, and by this,
the use of this 14 and a half minute video clip
that he called the Amadi Sosa connection,
which he used to support his hypothesis
that Amadi Sosa left his apartment,
his place at 364 Orange Street,
drove in this car to 70 Granada Terrace,
which is just two blocks, a block or two from
where the killing occurred,
got there half an hour before the killing
with the gun in the car, and took the,
took Leiva to the place where the killing occurred.
And that's how they all got there.
That just wasn't supported.
It wasn't even supported by the video, excuse me,
but it wasn't supported.
That video wasn't evidence, it wasn't supported by evidence.
And when he questioned Leiva about that,
Leiva denied the elements of that thesis
that were presented to him.
So he, Leiva denied that the car was the a Maxima.
-: And that was repeated in a closing argument, correct?
-: That's right.
He went ahead because this was,
it's important I think to remember that the,
that Leiva's testimony came on everyone as a surprise.
No one expected that Leiva was gonna testify
except him and his attorney.
The prosecutor had prepared this video clip to use
as a chock in his closing argument.
So he hadn't, he didn't lay any foundation
for it as evidence.
He evidently decided at the last minute to use it
as evidence when he discovered he was gonna have a chance
to cross-examine Leiva and maybe establish
some factual basis, a better factual basis for his argument.
Because at the close of the Commonwealth's case,
he did not have the evidence to make
the Amadi Sosa connection,
and all he had was Roncalli's identification,
which was flawed by the fact
that she'd misidentified Sosa's brother.
-: Forgive me, I should know this,
but was that video clip marked for identification?
-: No.
-: It wasn't?
-: It was not, it wasn't,
we haven't even referred to because the prosecutor
kind of sneaked it in.
-: It was played, right.
-: It was played to the jury during,
during Leiva's testimony.
-: Was there an objection.
-: There was an objection near the end of Leiva's testimony.
Sosa's attorney recognized that this was not the same,
this was not the video that was in evidence,
that is Exhibit 16 was a large video,
about 75 hours of video that came in as a single exhibit.
And during the trial,
the parties had been playing excerpts
from that Exhibit 16 at various points to illustrate--
(overlapping discussion)
-: Clip is a subset of an exhibit.
-: It is a subset of an exhibit, but it's rearranged,
it's been edited to show a particular sequence
that supports the prosecutor's argument.
-: Do we have this video clip in the record?
-: We do, it was in, it was Exhibit 10 in the Motion
for new trial hearing.
So it is in the record.
It's a very poor quality video.
It like the video in the Davis case.
As a matter of fact, at one point in the video
it shows Leiva returning from 105 Granada Terrace,
from that direction to 70 Granada Terrace
where he lived and running up the back steps.
-: What would be relevant would be whether or not
the vehicle resembles a Nissan Maxima.
-: Yeah, the question is was this, could this be depicted,
did this depict a Nissan Maxima?
He asked Leiva that.
The prosecutor asked Leiva that, and Leiva said,
No, that's a Honda Civic.
So that's what the evidence was it was a Honda Civic.
But the prosecutor argued his theory that it was the Maxima.
So he used that clip to substantiate his theory
that wasn't substantiated by evidence.
So that's also prejudiced from Leiva's testimony
that should not have come in because there
should have been a severance.
And so there is about, there are grounds for reversing
this conviction without finding a structural error in the,
in the ruling on severance, in the failure in,
in allowing Leiva to testify in Sosa's case.
But the point about structural error is this was such
a pervasive, this created such a pervasive problem
after the, it came after the prosecution's case was closed,
it made Leiva a prosecution witness
and a very damaging witness to Sosa.
But you can't identify,
even though the parties agree that this was,
that Leiva's testimony was pervasively false,
parties agree on that, but none of the false testimony
can be specifically identified.
And so it's impossible to go through
a harmless error analysis or a materiality analysis
if you look at it that way.
The introduction of false evidence in a defendant's case
by the government is--
-: It's not, again, it's not by the government.
That's the problem.
It's by the co-defendant.
-: Well, it's actually by the court, Justice Kafker,
the court implement the implemented the--
-: It's more complicated than that.
Because the defendant has the right to testify
and it's not the government, it's the defendant.
I understand the court allows the defendant,
co-defendant to do this,
but it's not a classic case where the prosecutor
introduces false testimony.
-: No, it isn't.
It's a classic case though in two ways.
-: It's a novel problem.
-: It's a novel instance of this, but it is,
because of the severance motion being denied,
the judge actually made a ruling that this false testimony
could be presented in Mr. Sosa's case.
And so like in Francis where the judge
and the prosecutor connived to bring in,
to assign a lawyer to the defendant without his knowing.
-: I think you're mischaracterizing Francis
'cause in Francis the defense counsel
and the judge Collaborate.
-: I'm sorry, not the, I said the prosecutor didn't I.
I meant the defense counsel.
I apologize.
-: So are you saying that every, no matter what,
if the defendant is going to testify falsely,
it's a per se structural or issue.
-: If the defendant is allowed to testify falsely
in another defendant's trial,
And obviously under the Leiva doctrine,
the defendant can testify falsely in his own trial--
-: Understood.
-: He's giving up whatever constitutional protections
are taken from him.
-: I'm just trying to figure out
why it would be a per se structural error for the,
for your defendant, I mean, for your client,
because you don't know what they're gonna say ahead of time.
-: You don't know what they're going to say ahead of time,
but you know that they're being given the license
to testify falsely.
And again, if it's his own trial, it's his own,
any injury is self-inflicted.
(overlapping discussion)
-: Go ahead.
-: If he's testifying in somebody else's trial,
Sosa has an absolute right to not have any false testimony,
any false evidence presented knowingly in his case.
-: You think this should, this should be a rule,
whenever this is 3.3 procedure.
-: I think that it would be--
-: A severance rule--
-: It should be part of the rule 3.3 protocol.
It should just be an elaboration.
This can only be in a single,
this can only be implemented in a single defendant trial.
-: What about if you were to have it
so that the judge could decide
after the testimony was given,
whether this was something that would be prejudicial?
-: I don't know how the judge would make that decision
because the judge wouldn't be able to identify
what was false.
It would be very difficult to identify who,
how badly any of the testimony damaged
the other defendant.
-: It might be good for both, for the co-D.
-: It might be, but one of the reasons for having
a structural error is the, when there's a situation where,
you know an error has occurred and there's no way
to measure what damage was done by it,
that's a situation where structural error is appropriate.
-: I understand.
All I'm saying is it might be better for a co-defendant
to decide after they hear the false testimony
about whether it was helpful, you know,
whether it was good for him or not good for him.
-: I think the defendant, probably could waive an objection,
but in this case, for example, Mr. Sosa's lawyer
objected and asked for relief from prejudicial joinder
before the testimony and afterward.
-: I have one last question.
Has this come up in any other state?
Has there ever been anything like this before
where we have some guidance about whether
it's been treated as structural error by another state
or a federal court?
-: I couldn't find anything, Justice Kafker.
(overlapping discussion)
-: So this is the first time that we've had this.
-: I looked at, (indistinct) doesn't,
in his criminal procedure treatise,
doesn't mention this problem.
So I haven't seen anything on that.
We don't even know if other states permit
this kind of procedure to go on.
-: I don't know that either, Justice Cypher,
although I had the impression from Leiva--
-: I thought this was a bar rule that came from the ABA.
-: Yeah. I think it's derived from the ABA rules,
and I thought that there was some--
-: There's no guidance in those rules about co-defendants.
-: No, there's nothing in Rule 3.3(e) itself,
and I know you are the author of the--
-: That's Justice LOH-WEE, not me.
-: Weren't you the author of the Leiva opinion?
I'm sorry.
-: They get confused all the time.
(laughing)
-: Can I just ask you one question about the intent to kill?
What's the evidence or what's your argument that the,
your client didn't know that Leiva had a gun?
-: Oh, he knew that, I think that it would
be circumstantially established that he knew
that Leiva had a gun.
-: Okay.
-: Because he was carrying,
Leiva was carrying it according to Roncalli's account,
Leiva was carrying it openly.
But he didn't know whether it was loaded.
There was no evidence that he knew that it was loaded.
There was no evidence that he knew that Leiva
intended to shoot anyone.
It looked like either a strong armed robbery
or maybe even just a case of intimidation
in a lover's triangle.
But what happened was he was pointing the gun at,
at Leiva was pointing the gun at Serrano and said,
"Run his pockets".
And there was some movement like that, as if to rob him.
And Serrano said, Come on guys, chill.
Leave me alone, in other words,
and then he was, suddenly he's shot.
-: He was convicted of both theories,
premeditation and felony murder?
-: Yes, yes.
And I think what's clear from the record that
the evidence of premeditation was not there.
As a matter of fact, the judge with the agreement
of the Commonwealth directed a verdict on armed assault
with intent to murder.
So I think it that the deliberately premeditated murder
is not substantiated.
And also I think the felony murder, as I've argued,
because there was no proof that this was a life,
that attempted armed robbery was a life felony
is also not substantiated.
So I think that Mr. Sosa is entitled to a new trial,
but the homicide charges should go out,
and armed assault with intent to rob is what's left.
I would just mention one other thing,
the Guardado case applies,
I think applies to the ammunition charge in this case,
and it has to go.
Thank you very much.
-: Thank you very much.
-: Attorney Shepherd Brick.
-: Thank you, and may it please the court,
David Shepherd Brick on behalf of the Commonwealth.
Just on that last point,
the Commonwealth agrees that the evidence
was insufficient on the ammo charge under Guardado.
In terms of the, I think the narrative testimony
is actually disfavored now under the ABA rules.
I think the, this general, there's been a general move
away from using that as a method.
So I don't know that there's any guidance on that
because I think a lot of other jurisdictions
have moved away.
-: So is there any guidance at all about this problem?
Any other states have dealt with this issue where you've got
the co-defendant basically perjuring himself,
or at least his defense counsel
thinks he's perjuring himself?
-: I didn't come across any cases.
I mean, I think as a practical matter,
there are plenty of cases where you have two co-defendants
and one of them testifies falsely.
It happens all the time.
It's just in this instance, we know, well, I mean,
I think in most instances we know, but in this instance,
his attorney has determined that he's going
to commit perjury.
But I think if you look at the regular co-defendant cases
where they get on the stand and say, I didn't do it,
and the jury convicts them,
I think obviously they found that testimony to be false.
-: They are guided by their counsel in how they testify
and steering away from obvious disasters.
We don't have that here.
-: Right.
I mean, but I think, I mean, the obvious, you know,
disaster is him testifying at all, which I think is true.
A lot of times the defendant exercises his right,
whether or not his or her, right,
you know, whether or not their lawyer knows
that they're going to perjure themselves or not.
And the real issue, I mean, so the problem,
there isn't a problem per se with there
being false testimony at a trial.
False testimony at a trial happens all the time.
The issue is if the Commonwealth uses that testimony
to prove their case.
The only use the Commonwealth made of Leiva's testimony
was to show that he was blatantly lying.
And it didn't, and in fact, Sosa's attorney asked Leiva,
have you seen, you know, had you seen Sosa lately?
And he said, no.
So the only one who used the false testimony,
I would argue that part was certainly the jury
found that part to be false.
The defendant is the only one who used it.
The Commonwealth used the false portions of his testimony
to show that he was lying.
But what about the video clips?
-: I mean, he did, so he did authenticate
some of those video clips,
but in the motion for new trial hearing,
the detective who recovered the video, he had,
he reviewed the video clips and he said, yeah,
those are all on the main, all on the, on the exhibit.
-: So there was a one exhibit that was like six hours.
-: It was like 75 hours.
It was a Blu-ray disc of,
I think it was five--
-: Which we know a jury's not gonna go through.
So it was put in prophylactically and then pieces of are,
are, are taken from it.
-: So yeah, I think it was put in, it was put in,
the entire thing was put in, I think per part of the trial,
they were using the exhibit.
And then at a certain point he switched to be using this
compilation,
which I think was actually prepared in advance
of the grand jury presentation.
It was not something that he just cooked up for trial,
but it was just, I mean,
it's in relative chronological order.
It's just, I mean, it does show different angles,
but it essentially shows the important parts of the video
rather than having to, in your closing,
sift through the whole exhibit.
It should have been marked for ID, I don't think it,
I mean there are certainly cases that say it shouldn't be
an exhibit because it's a compilation, but the,
the jury wasn't exposed to anything that wasn't in evidence.
-: How is there probable cause to get into the basement where
there's not probable cause to get into the apartment?
-: So what the,
what the motion for new trial judge found was there
was probable cause that they lived at that house.
-: Sosa.
-: That Sosa lived at that house.
What he found is that there wasn't evidence--
-: Why would there be fruits of the crime
in the house he lived in.
-: So there would be evidence of the fruits
of the crime at that apartment for a couple of reasons.
One, it is where the Sosa's lived,
and at the time of the search warrant,
both brothers were implicated.
-: So the ruling on the motion to suppress
was that it's a three family and we have no information.
He's in number two.
-: Correct.
The ruling was, there was,
there was probable cause that they lived at that address,
but not specific to that apartment.
-: Okay, so, and I interrupted you, please continue,
why there's probable cause.
-: So again, that they both lived there,
that after Leiva left the crime scene,
he asked within a short period of time,
the witness from Framingham,
he asked her to come pick her up at that address.
So there's evidence that he went to that address.
I think also the evidence that, well, as I already said,
the evidence that the brothers were involved.
So between those two things,
I think there's evidence that they all,
I think there's probable cause.
-: If he lives, if he goes back to that address,
he wants to get picked up there,
is the inference that he's going to stash something there?
-: I mean the inference is that he
might stash something there,
that the brothers might stash something there,
it is their home.
And so certainly,
I mean there was a lot of focus on the firearm
and the ammunition,
but the warrant asked for clothes that they were wearing.
So for possible DNA testing.
I mean the testimony was they were very close when the gun
went off.
So the, you know,
that certainly you would expect to find clothes at someone's
house.
So I think that was,
I mean there's certainly probable cause for that.
-: And there's the single statement that
it's a common basement.
-: Yes, that was.
And that was put in there basically
when the magistrate limited the search essentially.
-: I don't, so the magistrate only limited the search.
He had asked for the common basement,
the magistrate added that it was limited
to those areas,
any area in the basement that was clearly apartments
one or three was excluded.
It turned out you couldn't tell.
But I think you can't really say more than this is the
common basement because the defendant's argument
is the police can't go there.
So, which the commonwealth's position is,
he doesn't have a reasonable expectation of privacy
in the common basement.
But even if he does the police then, if the--
-: So could the police have gone into the common basement
without a warrant?
-: I mean it, I think,
I think there's certainly an argument that they could,
that he didn't have a reasonable expectation of privacy
in a common basement that was used by the other,
that was easily accessible and used by the other residents.
And certainly--
-: So any house there's no expectation privacy.
The police can break a door down into a basement
and just go in.
-: Well, you don't have to break the door down to get
into the basement.
It was unlocked.
(speaking faintly)
-: Open the, oh, open the bulkhead of any basement,
just walk in.
-: Well--
-: Multi-family.
-: Again, it's not, it's not an argument I love,
but I think that this court has held many times that common
areas are common areas and you don't have a reasonable
expectation of privacy.
Do we want to encourage police to do that?
No, but they did it.
They had a warrant.
So I think you get,
you don't really have to deal with that issue
'cause they had a warrant.
And if that's a constitutionally protected space,
how are the police gonna tell the magistrate that it's
a common basement without going in there and looking at it?
So I don't know how you get probable cause to search that.
I mean this court has said it many times, like, look,
you don't have to tell you what closet it's in or what
bedroom it's gonna be in because without going into the
apartment, you can't know until you, until you're there.
So if that common basement is constitutionally protected,
then that's all that you can give the magistrate without
violating that space.
-: So this is the rule solely for multi-family dwellings?
-: I mean, I would, yeah, I would say so.
I mean, if it's a single family dwelling, then you need an,
once you have a warrant for the building,
you have a warrant for the building and you can't,
you don't need to say we're gonna find it in the third floor
floor bedroom, we're gonna find it in the,
in the first floor floor dining room.
But in the multi-family building, you know,
to protect certainly the re the expectation of privacy that
the other residents had, which again,
in the common basement,
I would say is limited if they have one at all.
But yeah, I mean I, I think it is a rule specific for,
I mean there are many rules specific
for multi-unit dwellings,
but I think there's probable cause to search based
on what was in the warrant affidavit.
And once you have probable cause to search that building,
you certainly are able to search the common areas,
expectation of privacy or not.
Because if everybody has access then and they live somewhere
in that building, then you have,
you have license to go in there.
-: I'm sorry,
did you say that he put in it's a common basement before he
knew whether it was a common basement?
-: I I mean he knew it was a common basement,
I believe at the most trial he testified he had been to that
apartment building before.
But what I'm saying is he didn't go rummaging around
in the, you know, because he didn't know it was
a common basement in, I mean,
I guess he didn't know because of the back stairwell there.
Look, there's,
there's a back stairwell that he described
that all lead down to this basement area
and there's access and there's also access from the street.
So he had,
he knew that there was sort of this access to this common
basement.
He hadn't been in the basement obviously until after the
search warrant was served.
-: Where is the evidence of deliberate premeditation?
-: So I would say that the evidence of,
of deliberate premeditation is the coordinated nature
of the attack coupled with--
-: Well, the attack is a robbery, right?
Run your pockets.
-: I mean I think the robbery is a show.
I think this was always an execution and I think--
-: What's the basis for that?
-: So you have Leiva, he shows up at the house,
he's texting, he's on his phone, he leaves,
he goes back to that apartment,
he meets up with a bunch of people,
he comes back to the house, he's talking,
he has a brief conversation with the residents. He's still,
I think the testimony was he's still on his phone.
They go out to the,
the victim and the witness go out to the porch.
He almost immediately gets up, goes out,
walks around the corner,
she hears some rustling and he immediately shows up flanked
by two individuals armed with a gun that the witness had
seen at the Sosa's house.
She said, I recognized that gun, I've seen it before.
It was at, you know, the Sosa's house.
So all that together showed,
I mean he's unarmed when he shows up.
Leiva is unarmed when he shows up to the house
that second time,
and he is texting and he immediately goes out and comes back
armed. And I think from that,
the jury couldn't easily infer that this is a coordinated
attack.
-: Do you have any cases that support this premise?
-: Yeah, and I, and I think,
well I mean I actually think the Tavares case where you have
a similar situation.
I mean I know in that pa in that case people actually saw
the defendant with the gun.
But there are a number of cases where, I mean even,
even even going back--
-: 'Cause we've had a lot of,
we've had a lot of cases that say a robbery, you know,
clearly there's evidence of a robbery,
it's a different story to say
and something happens during the robbery that's supports
felony murder as opposed to premeditation.
-: Right.
But I also think that, you know, in contrast to,
you know, the cases where, you know, there,
there was evidence, you know,
there was evidence that they were planning to rob someone.
The robbery you can see is sort of half-hearted.
I mean, she says they,
they reached into his pockets.
They couldn't really, she thinks he took,
they took a cell phone of his,
but he did have a cell phone on him.
She said he had two, I think there were,
I think there was some drugs in his pocket.
There were a couple other things in his pocket.
So there's not, I mean,
and the jury didn't find that there was a robbery.
They found there was an attempted robbery.
But they all, when Leiva starts firing
and there's seven shots out of a semi-automatic pistol
or semi-automatic rifle, I guess,
they all stand there.
I mean both of them are standing by keeping,
keeping Serrano locked into that place.
There's no testimony that they backed away that they were
somehow surprised or shocked.
They're just standing there doing what,
and I think what the jury could reasonably infer
that was the plan all along, which was to kill him.
-: Counsel, I have a question on the other issue
with regard to the testifying defendant.
Alright, Mr. Leiva, and that is the in,
in Commonwealth versus Mitchell,
there's a recommendation,
I know it doesn't apply because it was,
but I'm thinking of the future.
There's a footnote,
footnote 29 that recommends that the judge
when this happens,
that the judge engage in a colloquy with defense counsel.
I'm concerned that's an inadequate colloquy and that
that perhaps there should also be a colloquy of a defendant
by the judge, and I'm curious what you think of that.
-: So I mean there's a, there was
a very limited colloquy with the defendant.
Your lawyer told you rule is, yeah.
Do you understand it?
I think the problem with a more extensive colloquy,
and I think you can see the tension in the transcript is
Leiva's attorney keeps going.
I, I'm, I can't, I mean I'm trying to do,
I'm trying to follow my obligation
of candor to the tribunal,
but I also can't tell you anything because you know,
it's client confidentiality.
So I don't know.
And I mean in in this case it's--
-: It's a difficult area because we don't wanna get into
attorney-client discussions.
-: Right.
And I think that's, in the previous decision
in this case and in Mitchell the court says basically like,
this is gonna be cryptic.
I mean it's going to be this sort of weird, like this is,
I'm telling you this and I've done what I'm supposed to do
and now tell me what to do.
And I don't know that you can get into that more 'cause then
you're potentially interfering with the--
-: And what about the jury instruction or should there be,
the judge, there was some recommendation in Mitchell
about a jury instruction that the defendant,
that the jury should not consider the form of a testimony or
something like that.
Do you think that, I mean, should there be more
to the jury instructions?
-: I mean, I think if I'm remembering correctly,
I mean certainly Leiva's attorney said,
I don't want you to talk about it.
And I think that makes sense because I think calling it out
draws attention to it.
I mean certainly if the defendant wants an instruction
that says, Hey,
you saw he testified differently from other witnesses,
don't think about it.
Fine.
But I don't know how many people are gonna want that.
But if they ask for it, I'm sure they're entitled to it.
But I don't know that it would necessarily be helpful.
-: You began by saying that the ABA is moving away from this
narrative approach.
What approach are they recommending.
-: That I, I know they have,
I I know a lot of jurisdictions have gotten rid of it and I
think that they, they sort of, the ones that I'm remembering
simply, I mean, you don't have a right to perjure yourself.
So I think that they're--
-: You're not letting them testify.
-: Well doesn't that go back to our old rules on a defendant
testifying even, you know,
that a defendant was only permitted to testify
in a narrative format, originally.
So I suspect that this evolves out of that.
-: Right, I suspect it evolves out of that.
And also because the defendant
has a right to testify in his own defense
under the Declaration of Rights that I don't know
is as strenuous as perhaps it is in other jurisdictions.
Which is why they can just sort of.
-: So, sorry, I just wanna go back to you.
You're, you're, you point out, okay,
the Commonwealth doesn't misuse this evidence,
but the Commonwealth basically points out it's just blatant
lying,
which undermines the credibility of the whole defense.
I think that's what your opposing counsel is saying is why
we need to, you know, sever the trial here.
How do we deal with this if the thing is so obviously
a lie and he's taking him down with him?
-: Well, I mean, but there are all of those, I mean, there,
there are certainly cases and they're, they're cited.
I think one of them is Moran, where it's basically like,
look, if you're gonna get up and you're
gonna point fingers at the other defendant, then you get,
then severance has to happen.
But if you get up and you just, you don't do very well,
as long as you're not creating an inconsistent defense
that's not, that doesn't require severance.
Because then a defendant could just blow up a trial,
mid trial by deciding to testify.
-: But isn't there a difference between getting up
on the stand and perhaps testifying falsely
and not admitting that you're
testifying falsely that situation and this one where the,
that Cody said, I'm going to testify falsely.
And so now everybody knows that whatever he is gonna say,
there's gonna be some false things in there.
Isn't there a difference for the code, for the.
-: You know, I mean I don't, I mean,
I don't know that there is a huge difference just because
the only difference here is we have his attorney saying he's
gonna lie.
But I think in this instance,
whether or not his attorney said that,
I think everybody knew he was gonna get up there and lie.
Even if his attorney hadn't made that determination based,
I don't know,
maybe beforehand they didn't know he was gonna lie.
But certainly based on the commonwealth evidence,
the prosecutor knew he was gonna lie.
-: And the judge knew he was gonna lie.
-: But I think the, I mean I think the judge,
even without defense counsels, you know,
telling the judge that he's gonna testify falsely,
I think based on what the evidence had the Commonwealth's
case had been,
I I think there's a strong argument that the judge would've
strongly suspected he was gonna lie.
-: But as Attorney Thompson pointed out, that's fine for the,
the person who's on the stand in lying.
But what about the co-defendant
who has no control over that?
-: Well, right.
-: It's an issue.
-: It is an issue,
but he also has the opportunity to cross-examine him just
like, you know, the prosecutor did and--
-: What does he accomplish?
So he, if he points out he is lying,
he exacerbates the problem.
If he tries to rehabilitate him,
he's complicit in the lying, it's tricky.
-: Well it is tricky but I mean he did extract
an alibi of sorts from Leiva.
-: That nobody believed him.
-: Well, no, I understand that nobody believed it,
but that doesn't, I mean,
I don't think that changes the prejudice to him.
-: Can you, one last thing and I know you're over,
The key witness against Sosa gets
the brother's testimony wrong.
Why do we have confidence that she gets
the Sosa testimony right if she gets the other ID wrong.
Does she know Sosa better than the brother?
Is there something we can draw comfort from?
-: So yes.
So Sosa is the closest to her.
There's Leiva in the middle.
There is Amadi Sosa to his left.
-: Mine's a different question.
Does she know Sosa elsewhere?
-: Yes.
-: And she doesn't know the brother that she misidentified?
Well I'm just trying to get a sense of how,
how she messes up one identification,
but we're confident that she's got the other one correct.
-: So the other individual who the Commonwealth alleged was
Alex Santana had a hoodie up in a bandana and he was
standing furthest away from her in the dark.
So I think that's,
and I think what she did is she saw Amadi
and she just assumed that it was his brother.
I gotcha.
And I see the amount of time,
I'd just like to point out in my brief,
I made it seem as though the defendant didn't receive
a second degree felony murder instruction.
He did receive a second degree felony murder instruction.
So that was my error.
I don't think it changes anything because he got an
instruction he wasn't entitled to.
If there are no further questions, I'll rest on my brief.
-: Okay.
-: Thank you.
-: Chief Justice.
I'd like to have permission to submit a letter within
the next week or so to respond to some points that came up
during counsel's argument that we didn't address.
-: You can submit that letter, sure.
-: Thank you.
And Attorney Shepherd Brick, if you wanna respond to it,
you'll have a chance to do that.
Thank you.