-: SJC-12381, Commonwealth versus Timothy Kostka.
-: The attorney, come in when you're ready.
-: Morning, may it please the court to (indistinct)
for Timothy Kostka.
The main issue in this case involves the evidence of
lottery tickets. It was the Commonwealth's position that
Mr. Kostka was observed cashing lottery tickets that were
consistent in numerical sequence
with losing tickets that were found in the victim's house.
During discovery, the Commonwealth provided
two sets of documents.
One produced by the vendor and one produced by the lottery
based on information from the vendor.
The key piece of information on these documents
was a number called the VIRN number,
which essentially
purported to show the ticket; the book; the game.
And if the tickets were in sequence,
then that would certainly be problematic for Mr. Kostka.
The problem is that these documents actually
either didn't show or were inconclusive
as to a lot of the information.
They seem to show the game,
but they didn't show the book number and the ticket number
and the two sets of documents were actually
inconsistent with each other.
Now, what happened was, on about the fourth day of trial,
the Commonwealth produced documents
directly from the lottery.
Sometime between 2012 and 2015, the lottery gained
the ability to produce its own printouts
and documents without going to the vendor.
And these documents, the VIRN number
was a much closer match and purported to show
the game number; the book number; and the ticket number-
-: Can I ask Mr. Kern...
-: {Mr. Kern] Yes.
-: So I tried making sense of this and I couldn't.
So when I look at the documents you submit,
I can't see if there's a pattern or not.
The Commonwealth just says there's a pattern
in the earlier documents.
When we do a really close comparison of
what was produced in discovery versus what comes out later,
is there a pattern in the stuff produced in discovery,
if you look closely enough?
Or is it just a "jumble", the way you describe it?
-: I couldn't find a pattern and it's dense.
I could stand here until tomorrow and try to explain what
the numbers mean, but I really don't know.
-: But when we go closely... and I'll be honest, I tried
but I didn't have enough time.
Because I'm going to ask the Commonwealth this,
because they just say,
"Oh, there's these documents are exactly the same."
Meaning, I take it that there's a pattern in this thing,
if you look closely enough.
And you say, "No, it's just a bunch of jumble."
Is it somewhere in between,
"Actually, if you look closely, you can see the pattern
but it's sort of obfuscated?"
But tell me what...
because we are going to look closely.
At least our law clerks
are going to dig into those numbers very carefully.
-: I mean, I think my position
is that there is no discernible pattern.
And that-
-: So, but in discovery, they produce documents
that are just numbers all over the place.
And then four days into trial,
they produce documents that clearly show the pattern.
Meaning that the lottery tickets in the victim's house
are clearly in sequence with what
the defendant is cashing, is that right?
-: Right.
And the argument that the defense made throughout,
once these new materials came in, was that,
"Look, we were going to take these documents and show
either that the tickets were not in sequence,
or that you just can't tell."
And there was a voir dire on this
and the Commonwealth essentially said,
"Well, it's the same information just in different form."
And that's how it was left. The judge said,
"Well, if it's the same information,
I'm going to admit the new stuff and exclude the old stuff."
Except that, you the defense,
if you want to use it for impeachment purposes,
you can do that.
-: But when we go through the old stuff,
meaning the stuff that was produced in discovery, closely,
we're not going to be able to highlight
parts of those numbers
and show that there is a sequence that's obvious?
-: I don't think we can do that.
And the explanation came out on cross-examination
from the guy from the lottery.
Nobody from the vendor came. But the guy from the lottery,
what he said... he said this several times,
but probably the best quote is in volume eight, page 171,
quote, "I believe this number was,
from what was explained to me,
is encrypted by the computer somehow
and that's how they figure it out."
The problem is that if these earlier numbers,
and this is the first time anybody ever said anything about
encryption, but if these numbers were indeed encrypted,
nobody provided anybody,
particularly the defense, with a key.
This is how you figure it out.
It's like, "Here's the numbers."
And then the judge essentially said,
"Well, if they're saying it's the same information,
you've already gotten discovery
and everything's the same except the VIRN number.
So it's no big deal."
The problem is it is a big deal because the VIRN number
is what actually tells you how to figure this out.
And the VIRN number is different.
You know, the new and improved version that the-
-: In your view, they sent you... In world war II,
we had people deciphering the code.
So you have some thing you put in, that will allow you to
reconvert these numbers into something comprehensible.
But they didn't give you the ability to do that?
-: No, they did not.
And that's a problem because it was a surprise.
And, you know, I think that we challenged this
in the motion for new trial.
And the judge actually...
did-
-: Say we agree with you,
is this still an open-and-shut case against your client?
Your client's blood's there, his fingerprints are there...
even accepting their own witness,
that he was there once, right?
How many years ago was that, when he bought the boat?
-: I think it was 2006, he bought the boat.
In 2007, he bought some fishing equipment.
-: And then this murder takes place when?
-: This would be, I think 2012.
-: At best, your client was in the house six years ago,
but they discover his blood in the house and they discover
his fingerprints.
Where's his blood found and where are his finger-
-: I don't think his blood is found.
There is what is described as a
"bloody" or dirty fingerprint".
And it was somewhat distorted,
but it was matched to the defendant.
And the defense produced an expert that said,
"You know, I follow the same protocols
and I wouldn't have called this a match."
There were a couple of fingerprints found on other items. I-
-: So the defendant's DNA profile
contributed to the mixture found on the swabs
of the victim's fingernails.
The portion of the defense DNA profile
was one in 40 000 Caucasians.
Is the defendant Caucasian?
-: Yes, he is.
-: One in 40,000. Right, okay.
-: I was here a few weeks ago and we talked about DNA,
and we were talking about one in something quadrillion,
and yes, that is definitely a DNA match.
I would say there was room for this,
in this case, to argue that it wasn't a match.
It was consistent but it wasn't necessarily a match.
The jury in this case, was out for
over the course of three days deliberating.
The victim before she lost consciousness,
her son asked, "Who did this?"
And she didn't say it was Timmy or Tim Kostka, or
anybody she knew. She gave a description.
And the description that was called out was, a middle-aged
white male with a white shirt.
You know, so I think there was reason for the jury...
I mean, let me put it this way. It was a triable case.
I'm not saying that the evidence wasn't legally
insufficient, but I am saying that it is a triable case.
And if you take out the lottery tickets,
if the lottery tickets don't match,
this store was two blocks over and one block up
from where the crime took place.
It would have been very difficult for the defendant to get
there in the time period.
But it was also one block up from the
South Boston Yacht Club, where he kept his boat.
So again, if you see her cashing lottery tickets,
that's significant if the lottery tickets
are in sequence with losing tickets
found in the victim's house.
But it is not so much,
if he's just working on his boat
and goes up there for a Snickers bar
and a couple of lottery tickets or cashes something in.
And he was there a couple of times that morning
cashing lottery tickets.
So I think the key in this case was
definitely the lottery tickets.
That decision to admit the new evidence and
essentially exclude the stuff that was provided
in discovery was significant in a number of ways.
And one of the ways is that, when the testimony came out
about the earlier ones being encrypted.
The prosecutor got up and said something like,
"The jurors should ask yourselves whether, truly,
the numbers do not match
or whether there was some gamesmanship in the numbers
playing by the defense?"
I mean, I think that was improper.
Not only was the defense ambushed at trial,
but then that was used against the defense in a variety of
ways that were unanticipated
and that were very harmful to the defense.
Unless there were any further questions, I will leave the
remaining points of the brief.
-: [Chief Justice Budd] Okay.
-: Thank you.
-: Thank you (pages turning)
(indistinct)
-: Good morning. May it please the court.
Ian McClain on behalf of the Commonwealth and along with me
at counsel table, is trial prosecutor Ursula Knight.
I'd like to begin by recognizing
several members of the victim's family,
Barbara Coyne, that are in the audience with us here today.
Your Honor, this court should affirm the convictions here
for home invasion and the brutal murder
of Barbara Coyne that occurred during the daylight hours
of Marathon Monday in 2012.
As Justice Kafker pointed out during my brother's argument,
this is basically an open-and-shut case
against the defendant.
Justice Kafker: I asked if it was an open-and-shut case.
But before you get to the open-and-shut argument,
I read your brief first and I said,
"Oh, what you gave them and what happens at trial
must be the same, or it must be similar."
And then I started going through the documents and
I can't make sense of them.
So tell me how the defense counsel who's presented
with that gobbledygook of numbers
has the same documents that
you produce four days into trial
that makes this an open-and-shut case.
-: Sure, Your Honor. With your permission,
I'll walk you through one of the particular tickets
(indistinct) explaining.
I mean, it would be best if I could have a chalkboard
to do this but I'll try to do it verbally as best as I can.
You start with exhibit 194 from trial,
that was the 2012 lottery commission document
referred to as a transaction report.
You can find it at defense appendix 73.
That's an Excel spreadsheet.
And the reason they used Excel spreadsheets in 2012 is
because those things are filterable or sortable.
So based on what they were looking for,
they could move the cells around.
So what they produced was the material
the way they used it in an Excel spreadsheet.
So that's defense exhibit 73.
You take that page and compare it against
defense appendix page 163-
-: Let's take a ticket.
Give me a ticket.
-: I'm going to walk you through one ticket
from start to finish, Your Honor, if that's okay.
-: Go ahead.
-: So take appendix page 73.
Look at the transaction that occurred at 11:52:09.
That's game 51; book 24403; ticket 093, for $4.
And then a whole VIRN number, the Void If Removed Number.
If you compare that data against defense appendix page 163,
the same time transaction 11:52:09,
you see the same game number 51, the same book number 24403,
the same ticket number 093,
the same transaction redeemed, $4.
Compare the VIRN numbers, and they match
for the first about 10 digits, 5-1-2-3-4-9-9-3-8-4-8-8.
That's the portion that they match to.
Then there's a discrepancy, the JFI report drops two digits.
And then the JFI report continues on.
Now, the reason the discrepancy is there was explained by
Kevin Carroll during the voir dire
before these documents were admitted at trial.
And what Kevin Caroll explained was, in 2012,
the Excel spreadsheet format to sell-
-: Okay. I'm looking at some of this. So at 11:52...
those numbers. Now are those the same exact numbers that
appear in the numbers that you give later?
Or are they different numbers?
-: They're the same, Your Honor.
-: And so... okay.
So I see this number 5-1-2-3-4-9-9-3-8, right?
-: Yes.
-: And is there a same number and succession from the victim
that you can compare that to and say,
"Oh, that's that number.
And then the victim's number is just one more."
Where do I find that?
-: No, Your Honor.
The Void If Removed Number, the VIRN number,
is essentially not the important piece of data.
The important piece of data is the other components that you
see on defense appendix 73 and 163,
the game book ticket number.
So there, we're talking about ticket number 93-
-: Simplify this for me. When I'm a lawyer and
I have the victim's lottery numbers back at the house.
And I have these numbers at the lottery.
They pick these up when the defendant cashes them.
The defense counsel can say,
"Oh, I've got that number that succeeds that number"
They can do that the same way you'd do it at trial?
-: Yes, Your Honor.
So each lottery ticket has a unique number assigned to it
that's on the back of the ticket itself.
That number is comprised of the game number;
the book number; the ticket number.
So here in 2012 at defense appendix 73,
it shows game 51; book 24403; ticket 93.
Then exhibit 124 M and N at trial,
show the tickets numbers on either side of that ticket.
Ticket 92 and ticket 94. So the redeem ticket was 93.
The two tickets that were discovered at
the victim's residence,
the losing tickets
were on either side of that from the role, 92 and 94.
Justice Kafker: And they had 10 numbers
that matched up to that, or just the numbers 92 and 93
in a long series of numbers.
-: That whole series of numbers matches up.
They call it the serial number.
Your Honor, it's the number on the back of the ticket
and that number is comprised of a two-digit game number;
a six-digit book number;
and then the individual ticket within that book of tickets.
So here, this transaction, 11:52:09, for ultimately ticket
number 93 in that role is the ticket that was between
two of the losing tickets that were found
at the victim's residence that have the same game number;
book number; and then our ticket 92 and 94 on either side.
So that's how it works.
So all the data that the defendant was complaining about in
the information that was received from the state lottery
commission, pursuant to a trial subpoena and was introduced
at trial that you see at defense appendix 163,
was contained in the material that he was given in 2012,
the 2012 lottery transaction report, appendix page 73.
So I've used that ticket as an example,
just because that's the clearest ticket
where that redeemed ticket,
both tickets on either side of that ticket
were found in the victim's residence.
And I would point out that the trial judge actually went
through this process during the voir dire
with Kevin Carroll.
And that's where that testimony was elicited explaining why
they use the 2012 Excel spreadsheet,
as opposed to the JFI report that they used in 2015,
that was produced pursuant to the trial subpoena.
And that explanation was,
the Excel spreadsheet is filterable or sortable.
So it's better for them as investigators to be able to
control and move the data around.
So here, all of the information was produced
to the defendant in advance of trial.
What was received pursuant to the trial subpoena was merely
the same data in a different format
that was then introduced at trial.
The defendant had an opportunity to extensively
cross examine Kevin Carroll,
from the lottery commission on this subject.
He was actually permitted to introduce the documents that he
had received in discovery, the 2012 documents,
despite not laying a foundation for the admissibility of any
of those documents as part of his cross-examination.
-: So clear, why didn't you have to put in a new document
that you didn't produce in discovery?
-: We simply obtained it via trial subpoena,
Your Honor, as happens routinely in cases.
-: And how much time in advance
did you give them that document?
-: I'm sorry, Your Honor.
-: How much time in advance of trial
did you give them the new document?
-: As soon as we received it, Your Honor.
As you well know, a trial subpoena,
we can only subpoena the documents for the first day of
trial. So as soon as we-
-: I get it.
So, the defense counsel had it how long
before it's actually introduced?
-: I would have to check the record, Your Honor,
but it came...
9/28 is the day that it was received in the docket.
According to the docket entries,
that's the day that the material was received at the court.
-: And it goes into evidence in trial what day?
-: The eighth day of trial, Your Honor.
-: There's eight days?
-: Yes.
So here, the defendant failed to meet his burden
for establishing a discovery violation.
So if you evaluate it as a question to occurred during trial
that the trial judge evaluated,
then it'd be reviewed for an abuse of discretion.
Same, if we look at it as a
denial of the motion for new trial
to be reviewed for an abuse of discretion.
The trial judge here simply didn't abuse their discretion.
The defendant failed to establish his burden that he has to
meet for a discovery violation of showing,
one, there was a late disclosure
and, two, that there was prejudice from it.
So here he had all of the same material
produced in discovery,
and he had the ability to extensively cross examine
Kevin Carroll about the JFI report itself
and any discrepancies that he perceived
between the two reports.
He also had the opportunity during discovery or trial prep
to try to interview Mr. Carroll, if he chose to.
So he had an opportunity to prepare himself for this
situation and failed to establish any prejudice
therefrom.
I'd also then point back, Your Honor,
to the overwhelming nature of the case against the defendant
here. In fact-
-: Can you summarize... we have the fingerprint.
Describe the fingerprint evidence, the DNA evidence.
And we also have evidence that he told one of his friends
that if he got caught burglarizing,
he was going to cut someone's throat, right?
-: Yes, Your Honor.
He informed one of his friends that he was financing his
heroin addiction by committing armed home invasions in
Southie, where this crime occurred.
And when the friend prompted him,
what would he do if someone was home,
he showed him a knife and indicated that
he would slit their throat,
which is exactly what he did to Barbara Coyne here.
We know that he was there in the house because we have his
fingerprints in three separate locations.
Two fingerprints in Barbara Coyne's bedroom,
on her jewelry boxes,
just feet from where she was found bleeding to death
on the ground.
One fingerprint out in the living room,
on an envelope, in blood.
We also have his DNA, one in 44 000 as a contributor,
underneath her fingernails.
When you take those factors together,
I would also add in the fact that just an hour or so after
the murder, he then contributed $90 to
one of his regular drug associates,
to a purchase a hundred dollars worth of drugs.
-: Can I ask about the timing...
from what I understand the brother or one of the sons of the
victim goes downstairs but he doesn't see her,
is that right?
Because there's a timing issue about...
he sees the door open and then he goes in, right.
But he's moved about the house earlier,
does that rule out that this occurred earlier or not?
He doesn't see his mother alive earlier, right?
-: Yes, he did see his mother alive
earlier that morning, Your Honor.
Had a cup of coffee with her.
-: What time is that?
-: I'm sorry, Your Honor. I don't recall
off the top of my head, what time that was.
I'll submit a-
-: But the defense counsel at one point says,
he has to get to that store very quickly after...
there isn't enough time to get to the store.
I take it that assumes that the brother had seen her when he
first goes down the stairs.
I'm not sure I fully follow that timing argument.
The brother sees the door open...
Excuse me, the son sees the door open
and he goes into the house, right?
-: He's inside the house, Your Honor.
So, he sees an interior door.
The door to Barbara Coyne's residence is right before you
would take the exterior door to exit the residence.
So he's on his way out
to go down to the marina to work on his boat.
He notices the door to his mother's apartment is open
and he enters that.
-: He sees his mother alive how much earlier in the morning?
-: The last time that he saw her, Your Honor,
I believe, was about eight minutes before that.
-: So, we know the crime takes place
in that eight minute period.
-: Yes, Your Honor.
-: So, that eight minute period's from when to when?
I'm just trying to understand that.
-: Your Honor, I don't remember the exact time
of that eight minute window of time
but I'll submit the letter on that.
-: But then so then the defense counsel suggests that there's
not enough time to get to that store. Why is that wrong?
-: It's just a couple of blocks away, Your Honor.
His argument is that
the defendant was not captured on video cameras that
would have potentially captured him traveling
that route to the store.
That's what his argument boils down to, Your Honor.
But I would point you back to the fact that
his fingerprints were there,
not just in a random place where it might've been placed
there six years before,
and somehow magically not been removed.
They were on the two jewelry boxes in the bedroom
where the victim was found.
And another fingerprint of his was found in blood,
in the apartment, on an envelope.
A disposable item that
presumably wouldn't have been there for very long.
And his DNA, one in 44 000,
was found underneath her fingernails.
Then about an hour, hour and a half after the murder,
he all of a sudden has $90 in cash
to contribute to a heroin purchase
when you'd just been seen on video redeeming
a hundred dollars worth of scratch tickets.
And then the lottery records established that
some of those scratch tickets that he cashed in
were attached within the role to losing tickets
found in the victim's apartment.
Combine that with the fact that he had no justification,
even (indistinct) was favorable to him,
he had no justification to abandon that residence
in the past six years.
He was there to commit an armed home invasion
as he told his friend he was doing,
to finance his heroin addiction.
So, Your Honor,
the defendant seems to have abandoned the argument of
the JFI report, themselves, being improperly admitted
as a business record.
I'll just briefly address where
the foundational requirements could be found.
It was found in an extensive voir dire of Kevin Carroll.
The lottery commission security man who testified in volume
eight of the transcript,
and he established the predicates
for the business record foundation.
Testifying that the underlying data was recorded
in the ordinary course of business for their own internal
use for fraud investigations; security investigations;
and to deal with any customer complaints.
That satisfies the first and second
prong of the requirement.
He also testified that it's collected in real time
down to the second,
the moment that one of these tickets is
redeemed at a lottery terminal.
So that satisfies the third requirement, that the data was
recorded before the beginning of the criminal proceeding.
And he also testified it was conducted in the regular
course of their business,
so they could retain this information when they needed it
for security investigations.
So the business foundation predicate was established here.
The documents were admissible.
The defendant failed to establish a discovery violation
as we previously discussed.
So then turning to his next claims in the case,
they pertained to the closing arguments.
There were two essential claims that were made.
The first, was that the prosecutor relied on
and argued facts that she should not have,
which was an interesting claim because those facts
were in fact in evidence,
what she was referring to was exact testimony
from Kevin Carroll.
The complaint was, that it was improper for her to argue the
VIRN did not match because some of the data was encrypted.
That was a reference exactly to Kevin Caroll's testimony
and I point you to transcript volume eight,
pages 171 to 172 and page 195.
I'd also point out that testimony was elicited
on cross-examination.
There was no objection. There was no motion to strike.
So it was within evidence.
So it was proper for her to refer to it.
It was also a fair response to the defendant's closing
argument, where he challenged the VIRN records.
So she was simply pointing out a reason at the witness
testified to, why the VIRN's were not perfectly matched.
Because some of the data was excluded as it was encrypted
because the Vern is a particularly valuable piece of
information. It coordinates to the barcode on the ticket.
So if you had a VIRN,
you could type it into a lottery terminal and redeem a
winning ticket without even having that ticket in your hand.
So further, if the court was to find that that was improper,
there was no prejudice here.
The jury was fully instructed by the judge,
both in advance of closings,
and then it was reiterated prior or post closings
that the lawyers were merely suggesting
what the evidence was and what it means,
and what inferences they think should be drawn from it.
While it was their decision to
actually decide what the evidence was.
So any possible prejudice there would have been was remedied
by the instructions from the judge on that point.
The defendant's other points about the single reference,
in closing argument,
using the word "gamesmanship" to describe the
cross-examination tactic that defense counsel used on the
state lottery commissions security expert,
Kevin Carroll.
When you place that single word in context,
it becomes very clear that what the prosecutor was doing was
asking the jury to compare the questions being asked
by the defense attorney against the testimony that was given
in response to that.
That's directing the jury to the evidence of the case.
That's proper argument.
If the simple use of the word "gamesmanship" is what we're
going to evaluate,
I'd point you to the Andre case,
which was a stronger version of the same sort of argument.
I'd also point you to the Felder case.
Again, a stronger version of the same sort of argument,
where it was proper to suggest that defense counsel was
raising smoke screens.
I'd also point you to Reposa, where it
was fair to argue the defense counsel
could spin gold from straw.
So here we have much less than that.
And it is clear that it is just a comment on a tactic
the defense counsel used.
It's completely unlike Genteel,
where what the prosecutor did
was refer to the defense attorney as "despicable".
That's a personal attack on defense counsel,
and that's not acceptable. That's improper.
Here, this is nothing like referring
to the defense counsel as being despicable.
It's referring to a tactic the defense counsel employed
during the cross-examination of a particular witness.
Entirely appropriate.
If the court was to think there was error in that,
I would again say, there's no prejudice.
Because juries are presumed to be able to discount
hyperbole in closing arguments.
And also there was a specific instruction from the judge to
the jury, that they should not be swayed by emotion or
zealousness of the lawyers
and should instead focus on the evidence,
which is what the prosecutor was attempting to do here.
If there are no further questions.
Okay. Thank you.
-: Thank you.