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SJC 12420,
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Commonwealth v. Robert Honsch.
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[Chief Justice Budd] Okay, attorney Fishman.
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Good morning.
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May it please the court,
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Neil Fishman here for Robert Honsch.
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I'm gonna go through the arguments I made
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in the appellate brief with the exceptions of the argument
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pertaining to the fingerprint evidence
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in the third-party culprit,
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which I don't think I can improve upon in the brief.
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I'd be happy to entertain questions.
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Excuse me, before you get started,
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this is Justice Cypher.
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Can I ask you a question?
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Can you, before, so I can understand your argument
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in the context of the theory of defense at trial,
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can you articulate what the theory of defense was?
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The theory of the defense was that the defendant
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had had a psychological, he...
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the defendant maintained his innocence
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and the defense was that the defendant had a,
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some sort of psychological break
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that explained some of his conduct after the homicides.
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Okay, thank you.
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So if this court does nothing else,
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and I hope it does more,
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I think it has to either reduce the verdict or
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reverse the
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first-degree deliberately premeditated murder conviction.
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There's-
Well, let me ask you
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about deliberate premeditation and the use of a firearm.
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We have evidence of two to three shots with a firearm,
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correct?
That's correct, your honor.
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I thought our law was fairly clear
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that when you shoot someone at least multiple times,
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it's premeditation.
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Well, the-
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Are you aware of any cases we have
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where we say no premeditation with a gunshot wound?
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Well, let me put it this way, your honor,
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those three shots, not all the three,
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by the way, it could have been two to three, so that's-
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I said two to three.
Yeah.
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And we're looking at it like most favorable, right?
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That's correct, your honor.
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All right, so tell me a gunshot case
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where we say no premeditation.
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Well, I don't know of any such case, your honor,
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but however, I would suggest that there,
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I don't see how there's any evidence of cool reflection.
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The-
How about the towel?
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Pardon me?
How about the towel?
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Well, I mean, to me, your honor,
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that strikes me as speculative,
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that the towel was used to muffle the gun.
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Of course, that's-
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But weren't there holes in the towel with gunshot,
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or gunpowder on there?
There was, your honor.
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But again, I think that's, it's speculative
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that that was used to muffle the gunshot.
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There was shots in the head too, right?
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There was a gun, there was,
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it was unclear whether there was one bullet to the head
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or more than one because there's injury to the victim's-
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But I mean, frankly, when you have a use of a firearm
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in what appears to be an execution,
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I don't get how it's not premeditation.
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Well, your honor, just again,
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there were no eye witnesses to the crime,
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there was no evidence of motive, there was no evidence,
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again, of any sort of reflection, any period of reflection,
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certainly not cool reflection.
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It can happen in seconds.
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That's true, your honor.
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That's true.
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I think your, I think the strongest argument
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about premeditation, because premeditation
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is really probably not your best argument
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with the time that you have,
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but probably the strongest argument is,
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lo and behold, look, the wife's dead,
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and my goodness, the daughter's dead too,
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also in a desolate area or in a different state,
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shot in the head, and my goodness,
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he doesn't even remember they existed
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after saying that they were going to Australia with him,
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and then he goes to Africa for a few years
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and comes back and has a new name.
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So it seems that the deficiency issue is really,
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in many ways, dependent on Elizabeth.
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And if you took Elizabeth out,
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you'd have a sufficiency problem.
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And the evidence, as it relates to Elizabeth,
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is hardly overwhelming.
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And so, my concern that I'd like you to talk about,
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that might be a better argument than premeditation is,
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is it getting a little circular here that,
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oh, we know that he killed the wife
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'cause he killed the daughter.
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Well, we know he killed the daughter
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because he killed the wife.
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Your honor, I could not have said it better.
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With regard to the daughter,
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the entire case is built upon the daughter
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because there's insufficient proof
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tying him to the wife's murder.
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Here's what they have insofar as they have, arguably,
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and this is a reach, he's present.
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Now, how is he present?
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Well, he had sex with his wife, we know,
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but I don't know if that puts him at the,
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anywhere near the campground.
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How else might he have been present?
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Well, there's a cigarette.
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Well, this is the nineties and he smoked,
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and lots of people smoked.
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That's it.
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Well, you got the consciousness of guilt.
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Very, very, yes.
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As I put it in the brief,
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not in substantial consciousness of guilt evidence,
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but as your honor knows,
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that's insufficient as a matter of law.
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But you basically have, in your view,
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a very thin direct case, but lots of misconduct evidence
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coupled with consciousness of guilt evidence.
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Well-
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The misconduct being the death of the daughter.
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Yeah, well, yes.
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So lots of consciousness of guilt evidence.
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There is, as your honor went through it,
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there's the, we're moving to Australia bit and the moving-
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This is an overwhelming case of consciousness of guilt,
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but that's not enough, as we've said.
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Exactly, your honor.
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And just, there's, crucially,
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there's nothing tying these murders together
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other than the fact that these,
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that the wife and daughter are related.
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So that's what ties it together.
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The issue for me is what is the strength,
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the lack of strength, of Elizabeth?
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This is the brides in the bathtub.
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This is the doctrine of chances.
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Oh my goodness, lo and behold, about the same day,
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the mother and daughter died, both, wow, in desolate parks,
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parks that he's been to and denies going to,
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another park that he's been to.
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But the Commonwealth's case is nothing
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without the foundation of Elizabeth.
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So, which is good for you, but you gotta tell me something
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about attacking the strength of the case against Elizabeth.
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Well, your honor, I'd be delighted to.
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And first of all, I do wanna take a moment to say
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exactly what your honor is saying, that when the,
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when there was a motion for the required finding,
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the ADA said, well, implicitly conceding
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that there's not enough evidence to convict him
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of murdering Marcia without the evidence of Elizabeth.
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So the entire case depends on the evidence that he,
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that irrational-
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You're preaching to the choir.
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Okay.
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Tell me the problem with Elizabeth.
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The problems with Elizabeth are manyfold,
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most importantly, that the fact that it was admitted
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as identity evidence is a miscarriage of justice.
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This is a classic example of,
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in one of the cases they say
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that the problem with identity evidence
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is it is propensity evidence.
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It's counting a much lighter load.
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That's why it's not
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prior bad acts to show conformity therewith.
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That's why it's a category of a non-propensity purpose
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'cause the propensity is carrying a lighter load
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and the lighter load is, lo and behold, doctrine of chances.
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Well your honor, this court's,
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the case law from this court on, when you have,
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and this, one, I would be remiss if I didn't say,
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we don't even know, is this a subsequent bad act,
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is it prior bad act?
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So I call it throughout the brief other bad act.
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It's uncharged misconduct.
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It doesn't have to be prior, it could be post.
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I understand, your honor.
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We don't have a temporal-
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But it does go to its probative-ness.
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And as far as proof of identity is concerned,
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the case law out of this court says,
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what we're really looking for is a modus operandi,
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a signature crime.
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It's gotta be unique and distinctive.
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And the cases, there are cases where this court has reversed
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because-
Is it unique and distinctive
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when it's the mother and daughter
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who disappear at the same time?
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That's not a signature element, your honor.
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That is, that may be probative, that may give you something
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with regard to common scheme and plan.
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I get what you mean by
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it's the person who robs banks wearing a clown outfit.
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That's the sig-
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That's a good example, your honor.
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And I think Brusgulis, which I cite liberally in my brief,
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but I didn't delve into the facts
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and I think I was remiss in doing that,
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I think that really helps you here
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because there you had a sexual assault conviction
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where the previous sexual assaults had no signature aspects.
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They were the part and parcel of sexual assaults.
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And I would suggest to this court that a gunshot wound
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from a medium to large caliber weapon is, very sadly,
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it's, that's not a signature element in a homicide.
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Certainly not.
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But if you put it all together, right,
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a mother, a daughter, both shot in the head, right?
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That's correct, you honor.
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And-
Remote areas?
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Yeah, remote areas, same time.
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I mean, so if you put it together,
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you do sort of begin to see that there's-
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Well, the best you got, I think,
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would be some sort of evidence of common scheme and plan.
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And, but I still, I would still-
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The claimant, that's not the,
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they can't call it a common scheme or plan.
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It's not a common scheme or plan case.
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It's an identity case, your honor.
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It's using the doctrine of chances
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as it relates to identity with the similarities being
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everything that Chief Justice Budd just pointed out.
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And is it enough?
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And I guess I'm getting back
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to the same question I've asked a couple times,
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which is, is instead of telling me
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that it's not non-propensity, because if it's propensity,
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then you win and it shouldn't have been admitted.
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And you don't have to answer this next question.
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If it's non-propensity identity through doctrine of chances
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and similarity, do we have to be concerned
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that about any frailties in the case against Elizabeth?
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And let me help you out with that.
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Okay?
Yes, your honor.
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You've got somebody else's semen on the vaginal swab,
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you've got a fingerprint that came in,
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even looking at Commonwealth versus Fulgham
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with more certainty than it should have.
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Correct, your honor.
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And I understand the evidence that it was the defendant,
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but the evidence is not overwhelming
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that it was the defendant.
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I agree, your honor.
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I think I would go further.
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I think the evidence that it was,
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'cause it wouldn't be enough
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to satisfy a rational trier of fact.
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I don't think that he killed Elizabeth.
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We have a hair,
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it's mitochondrial DNA, it's not nuclear DNA.
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Nevertheless, it's DNA evidence.
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But it's a hair that even the experts said
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00:13:13.950 --> 00:13:15.990
could have gotten there for any a number of reasons,
265
00:13:15.990 --> 00:13:17.740
and of course, they lived together.
266
00:13:19.140 --> 00:13:24.140
And the fingerprint evidence, which I, when I came out here,
267
00:13:24.480 --> 00:13:26.520
I said I'd prefer to rest on my brief for that
268
00:13:26.520 --> 00:13:30.240
'cause it's somewhat involved, but the fingerprint examiners
269
00:13:30.240 --> 00:13:33.600
were cognitively and contextually biased.
270
00:13:33.600 --> 00:13:35.250
They knew quite a bit about the case.
271
00:13:35.250 --> 00:13:37.563
It's a very emotional case.
272
00:13:38.490 --> 00:13:41.820
And they're using a method that this court
273
00:13:41.820 --> 00:13:44.694
is now seriously in disfavor with this court
274
00:13:44.694 --> 00:13:46.394
and with the scientific community.
275
00:13:47.340 --> 00:13:48.410
And they're...
276
00:13:51.420 --> 00:13:52.987
The fingerprint's not disfavored at all.
277
00:13:52.987 --> 00:13:57.720
It's that it has to, it can't be any in terms of certainty,
278
00:13:57.720 --> 00:14:01.170
and that even if the defendant doesn't object,
279
00:14:01.170 --> 00:14:02.700
you just can't have certainty.
280
00:14:02.700 --> 00:14:07.005
It's not disfavored, it's just not a hard science.
281
00:14:07.005 --> 00:14:09.150
Well, I would just say, your honor,
282
00:14:09.150 --> 00:14:12.413
thank you for mentioning the, again,
283
00:14:12.413 --> 00:14:16.590
I think both witnesses said it, it was to a certainty,
284
00:14:16.590 --> 00:14:21.590
and, the ACE-V method is now disfavored under Gambora.
285
00:14:22.410 --> 00:14:25.023
I would submit that that's the law of this court.
286
00:14:29.730 --> 00:14:34.730
But so, again, I think the evidence that he killed Elizabeth
287
00:14:34.950 --> 00:14:37.890
is, it's insufficient to satisfy a juror
288
00:14:37.890 --> 00:14:40.473
beyond a reasonable doubt that he killed her.
289
00:14:41.700 --> 00:14:45.150
And again, just tying into your honor's theme,
290
00:14:45.150 --> 00:14:47.010
the whole, the circularity of this-
291
00:14:47.010 --> 00:14:49.530
The question, so you got the sleeping bag-
292
00:14:49.530 --> 00:14:50.363
Yes, your honor.
293
00:14:50.363 --> 00:14:52.710
Issue, and you got the consciousness of guilt issues
294
00:14:52.710 --> 00:14:57.710
that he hasn't been to the place where the bodies are
295
00:14:58.260 --> 00:15:03.260
when he had other times and off to Africa for a few years,
296
00:15:04.710 --> 00:15:07.650
new name, all that stuff.
297
00:15:07.650 --> 00:15:12.650
But when you, this is the circular problem
298
00:15:12.690 --> 00:15:14.760
that the DA's gonna have to talk about,
299
00:15:14.760 --> 00:15:17.460
but you don't look at Elizabeth in a vacuum
300
00:15:17.460 --> 00:15:20.850
because the wife, Marilyn, is her name Marilyn?
301
00:15:20.850 --> 00:15:21.695
Marcia.
Marcia.
302
00:15:21.695 --> 00:15:22.890
Yeah.
Thank you, I'm sorry.
303
00:15:22.890 --> 00:15:27.890
Because Marcia's killed within a number of days
304
00:15:28.590 --> 00:15:31.650
in a similar circumstances
305
00:15:31.650 --> 00:15:33.503
in a state where she doesn't live.
306
00:15:33.503 --> 00:15:38.503
So for Elizabeth to be sufficient, you gotta look at Marcia,
307
00:15:39.780 --> 00:15:42.240
and the DA's gonna have to help me understand
308
00:15:42.240 --> 00:15:44.130
why this isn't a big circle,
309
00:15:44.130 --> 00:15:47.010
but you don't look at Elizabeth in a vacuum,
310
00:15:47.010 --> 00:15:49.080
you have to take into account Marcia.
311
00:15:49.080 --> 00:15:51.903
Well, I would say to that,
312
00:15:53.553 --> 00:15:55.500
just I would note for your honor,
313
00:15:55.500 --> 00:15:57.900
that your honor has spoken about the similarities
314
00:15:57.900 --> 00:15:58.830
between the crime.
315
00:15:58.830 --> 00:16:00.270
I think they're somewhat thin.
316
00:16:00.270 --> 00:16:03.360
You have a gunshot wound to the head
317
00:16:03.360 --> 00:16:06.000
from a medium to a large caliber weapon,
318
00:16:06.000 --> 00:16:09.480
which is hardly unusual.
319
00:16:09.480 --> 00:16:12.900
And, but Elizabeth is assassinated,
320
00:16:12.900 --> 00:16:15.453
Marcia is shot from a distance.
321
00:16:16.440 --> 00:16:18.330
Is it unusual?
322
00:16:18.330 --> 00:16:22.110
I mean, the fact that these two, a mother and daughter,
323
00:16:22.110 --> 00:16:24.330
go missing at the same time?
324
00:16:24.330 --> 00:16:27.968
Isn't that a tough thing to get over?
325
00:16:27.968 --> 00:16:30.813
Your honor, it may be probative of,
326
00:16:31.728 --> 00:16:34.890
there may be an argument that it's probative
327
00:16:34.890 --> 00:16:38.400
of that the same person killed them.
328
00:16:38.400 --> 00:16:40.200
I will, I'm gonna skip,
329
00:16:40.200 --> 00:16:42.630
I'm gonna wait on the prejudice element there,
330
00:16:42.630 --> 00:16:45.180
but it's not probative of identity
331
00:16:45.180 --> 00:16:46.800
because of the law of this court,
332
00:16:46.800 --> 00:16:49.500
because it's not a signature crime.
333
00:16:49.500 --> 00:16:51.210
It's very far from it.
334
00:16:51.210 --> 00:16:56.210
It's somewhat, very sadly, it's somewhat routine.
335
00:16:56.520 --> 00:17:01.323
And, but getting to the prejudice element here,
336
00:17:02.700 --> 00:17:06.120
this is, as this court is well aware, when we get,
337
00:17:06.120 --> 00:17:08.910
when we're discussing other bad act evidence,
338
00:17:08.910 --> 00:17:12.300
if it's overwhelmed, if, excuse me,
339
00:17:12.300 --> 00:17:15.180
if the probative value's outweighed even slightly,
340
00:17:15.180 --> 00:17:17.610
not substantially, but just outweighed
341
00:17:17.610 --> 00:17:20.160
by the potential for unfair prejudice,
342
00:17:20.160 --> 00:17:21.600
then it should be excluded.
343
00:17:21.600 --> 00:17:25.437
Well, if any case is that case, this is the case.
344
00:17:25.437 --> 00:17:27.840
But what do we do with the argument raised
345
00:17:27.840 --> 00:17:30.870
by the prosecution or the Commonwealth here
346
00:17:30.870 --> 00:17:34.230
that, but for the fact that Elizabeth was found
347
00:17:34.230 --> 00:17:37.110
this side of the border and Marcia on the other side,
348
00:17:37.110 --> 00:17:39.060
this would be tried together?
349
00:17:39.060 --> 00:17:41.278
I don't know, your honor.
350
00:17:41.278 --> 00:17:45.060
Having dealt with some joinder issues in previous cases,
351
00:17:45.060 --> 00:17:48.090
I've found the analysis to be pretty much the same.
352
00:17:48.090 --> 00:17:51.720
So you might have a good argument for severance
353
00:17:51.720 --> 00:17:55.770
or lack of joinder, I forget what the terminology would be.
354
00:17:55.770 --> 00:18:00.660
But I do wanna return to the prejudice.
355
00:18:00.660 --> 00:18:02.373
I wanna talk about the photos.
356
00:18:03.771 --> 00:18:06.330
The Commonwealth did me a favor
357
00:18:06.330 --> 00:18:10.170
and pointed to which photos I was referring to.
358
00:18:10.170 --> 00:18:12.810
And I think the ones that I really would ask your court
359
00:18:12.810 --> 00:18:16.560
to consider are exhibits 51,
360
00:18:16.560 --> 00:18:19.713
that's the face of the young girl at the crime scene,
361
00:18:20.850 --> 00:18:24.690
70, that's her clothed on the autopsy table,
362
00:18:24.690 --> 00:18:29.280
and 82 through 85, that's her face at the autopsy table.
363
00:18:29.280 --> 00:18:33.870
Now, this is highly,
364
00:18:33.870 --> 00:18:38.550
this would arouse the emotions of any juror.
365
00:18:38.550 --> 00:18:42.270
But what's unique here is she's not, excuse me,
366
00:18:42.270 --> 00:18:45.450
the defendant's not on trial for Elizabeth's murder,
367
00:18:45.450 --> 00:18:49.200
but he's defending himself left, right, and center
368
00:18:49.200 --> 00:18:54.200
that the entire focus of his defense is to prove that,
369
00:18:54.450 --> 00:18:56.747
or to raise reasonable doubt, that he killed Elizabeth
370
00:18:56.747 --> 00:19:00.780
'cause if he does that, then he gets acquitted of Marcia.
371
00:19:00.780 --> 00:19:04.740
And that is the problem that Justice Lowy
372
00:19:04.740 --> 00:19:05.573
is talking about.
373
00:19:05.573 --> 00:19:09.600
It's this, it's a quite a Kafka-esque situation.
374
00:19:09.600 --> 00:19:11.040
It's additionally Kafka-esque
375
00:19:11.040 --> 00:19:13.020
because he's not allowed to bring in
376
00:19:13.020 --> 00:19:17.367
any third-party culprit argument with regard to Elizabeth.
377
00:19:19.620 --> 00:19:22.680
He's confronted with these photos of her,
378
00:19:22.680 --> 00:19:27.630
he's confronted with the mitochondrial DNA evidence,
379
00:19:27.630 --> 00:19:30.870
the fingerprints on the bags.
380
00:19:30.870 --> 00:19:34.770
So his really, the entire defense is really about Elizabeth
381
00:19:34.770 --> 00:19:37.353
and it's nominally about Marcia.
382
00:19:38.760 --> 00:19:43.740
And I think that's why a reversal is necessary here,
383
00:19:43.740 --> 00:19:44.573
your honor.
384
00:19:47.070 --> 00:19:49.080
If the court doesn't have any other questions,
385
00:19:49.080 --> 00:19:52.920
I'll rest on the brief.
Okay, thank you.
386
00:19:52.920 --> 00:19:53.753
Thank you.
387
00:20:00.450 --> 00:20:01.863
Okay, Attorney Lynch.
388
00:20:05.910 --> 00:20:07.073
Good morning.
389
00:20:07.073 --> 00:20:07.906
May it please the court, Travis Lynch,
390
00:20:07.906 --> 00:20:10.410
Assistant District Attorney on behalf of the Commonwealth.
391
00:20:10.410 --> 00:20:12.360
I think to answer Justice Lowy's question,
392
00:20:12.360 --> 00:20:13.860
why isn't this just circular?
393
00:20:13.860 --> 00:20:15.780
The key point here is that the defendant
394
00:20:15.780 --> 00:20:20.160
told the victim's relatives that the victims,
395
00:20:20.160 --> 00:20:23.640
that Marcia and Elizabeth, were going to Australia
396
00:20:23.640 --> 00:20:27.210
at a time inferably when Marcia and Elizabeth
397
00:20:27.210 --> 00:20:28.043
were already dead.
398
00:20:28.043 --> 00:20:30.333
That's why this isn't just completely circular.
399
00:20:32.370 --> 00:20:34.410
And I think that's really what,
400
00:20:34.410 --> 00:20:36.720
that statement by the defendant
401
00:20:36.720 --> 00:20:39.180
is what really ties the two murders and these,
402
00:20:39.180 --> 00:20:40.740
the two incidents together.
403
00:20:40.740 --> 00:20:45.030
Is there any concern that what ties together,
404
00:20:45.030 --> 00:20:46.803
I'm not sure that's all that ties together,
405
00:20:46.803 --> 00:20:49.863
but that ties together consciousness of guilt?
406
00:20:51.990 --> 00:20:55.440
Consciousness of guilt can only take you so far,
407
00:20:55.440 --> 00:20:59.280
as you know from our consciousness of guilt instruction.
408
00:20:59.280 --> 00:21:00.113
That's correct.
409
00:21:00.113 --> 00:21:01.760
Commonwealth versus Tony.
Right.
410
00:21:02.790 --> 00:21:04.470
So is there a concern, I mean,
411
00:21:04.470 --> 00:21:06.930
I think the rule simply is you can't be convicted
412
00:21:06.930 --> 00:21:09.990
solely based upon consciousness of guilt evidence.
413
00:21:09.990 --> 00:21:11.196
Yes.
414
00:21:11.196 --> 00:21:12.029
My question in response
415
00:21:12.029 --> 00:21:14.640
to the first thing you said out of the box is
416
00:21:14.640 --> 00:21:19.544
if what makes it not circular is consciousness of guilt,
417
00:21:19.544 --> 00:21:22.473
could that cause us any concern?
418
00:21:25.453 --> 00:21:27.963
I don't believe so, because,
419
00:21:30.720 --> 00:21:34.380
again, the rule, the sufficiency rule,
420
00:21:34.380 --> 00:21:35.910
is just that you can't be convicted
421
00:21:35.910 --> 00:21:38.400
solely based upon consciousness of guilt evidence.
422
00:21:38.400 --> 00:21:40.470
I mean, also, I would respectfully submit that
423
00:21:40.470 --> 00:21:42.990
it's not just for consciousness of guilt.
424
00:21:42.990 --> 00:21:45.270
The judge also, I believe, found that it was admissible
425
00:21:45.270 --> 00:21:47.400
for common scheme and plan.
426
00:21:47.400 --> 00:21:48.960
So if it's common scheme and plan,
427
00:21:48.960 --> 00:21:50.400
then we're out of the question
428
00:21:50.400 --> 00:21:53.220
of whether we're convicting him
429
00:21:53.220 --> 00:21:55.620
solely based upon consciousness of guilt evidence.
430
00:21:55.620 --> 00:21:57.300
Also, we're not convicting him based
431
00:21:57.300 --> 00:21:58.830
solely on consciousness of guilt evidence
432
00:21:58.830 --> 00:22:01.380
because the palm-print evidence
433
00:22:01.380 --> 00:22:03.780
is not consciousness of guilt, it's other bad acts evidence.
434
00:22:03.780 --> 00:22:06.990
Again, I believe you also can't be convicted based
435
00:22:06.990 --> 00:22:08.880
solely upon other bad acts evidence,
436
00:22:08.880 --> 00:22:12.270
but you've got consciousness of guilt, other bad acts,
437
00:22:12.270 --> 00:22:14.340
and then you have some circumstantial evidence
438
00:22:14.340 --> 00:22:16.083
showing opportunity.
439
00:22:18.780 --> 00:22:21.840
Again, the question is not whether the jury was compelled
440
00:22:21.840 --> 00:22:24.030
to find him guilty, it's whether a rational finder of fact
441
00:22:24.030 --> 00:22:25.563
could have found him guilty.
442
00:22:28.440 --> 00:22:31.500
So on the question, again,
443
00:22:31.500 --> 00:22:33.210
I think we've already gone over this,
444
00:22:33.210 --> 00:22:36.180
why there's sufficient evidence to establish
445
00:22:36.180 --> 00:22:39.150
that the defendant was the person who committed this murder,
446
00:22:39.150 --> 00:22:41.040
and the court has already gone over in great detail
447
00:22:41.040 --> 00:22:43.470
why there's deliberate premeditation.
448
00:22:43.470 --> 00:22:46.650
The fact that there's inferably two gunshot wounds
449
00:22:46.650 --> 00:22:49.170
through the head is by itself enough
450
00:22:49.170 --> 00:22:52.350
to get us to deliver premeditation, plus there's the towel.
451
00:22:52.350 --> 00:22:54.420
What about the balancing,
452
00:22:54.420 --> 00:22:59.420
because this is uncharged misconduct on steroids,
453
00:22:59.760 --> 00:23:03.090
obviously the death of the daughter as well.
454
00:23:03.090 --> 00:23:05.823
Mm-hmm.
And if you do a balancing,
455
00:23:06.870 --> 00:23:07.920
you have to be very careful
456
00:23:07.920 --> 00:23:09.540
because of the amount of prejudice.
457
00:23:09.540 --> 00:23:12.360
And so, can you speak to the balancing done
458
00:23:12.360 --> 00:23:13.290
by Judge Sweeney?
459
00:23:13.290 --> 00:23:14.250
So the, yes.
460
00:23:14.250 --> 00:23:16.800
So essentially, what the judge found was
461
00:23:16.800 --> 00:23:18.123
this is a double homicide.
462
00:23:21.630 --> 00:23:23.700
The balancing of the prejudice,
463
00:23:23.700 --> 00:23:25.350
I think you have to take into account the fact
464
00:23:25.350 --> 00:23:27.240
that the judge was constantly reminding the jury
465
00:23:27.240 --> 00:23:29.970
over and over again, you can't use this evidence,
466
00:23:29.970 --> 00:23:32.700
you can't use the evidence relating to Elizabeth by itself
467
00:23:32.700 --> 00:23:33.660
to convict the defendant.
468
00:23:33.660 --> 00:23:37.770
So the judge articulated the defendant's concern below
469
00:23:37.770 --> 00:23:41.130
as the jury is just going to impede the defendant here
470
00:23:41.130 --> 00:23:42.510
because of this overwhelming
471
00:23:42.510 --> 00:23:43.590
consciousness of guilt evidence.
472
00:23:43.590 --> 00:23:45.720
But they're told repeatedly, you can't do that.
473
00:23:45.720 --> 00:23:49.050
And the instructions, the instructions are very plain.
474
00:23:49.050 --> 00:23:51.600
They were repeated over and over again.
475
00:23:51.600 --> 00:23:53.730
It's stated in the voir dire of the jurors,
476
00:23:53.730 --> 00:23:55.439
which I believe took four days.
477
00:23:55.439 --> 00:23:58.140
Most of the days of the trial, the instruction was given-
478
00:23:58.140 --> 00:24:00.447
Was the voir dire on both consciousness of guilt
479
00:24:00.447 --> 00:24:03.331
and uncharged misconduct or just on uncharged misconduct?
480
00:24:03.331 --> 00:24:07.770
I put in the uncharged conduct instruction
481
00:24:07.770 --> 00:24:08.603
in the voir dire.
482
00:24:08.603 --> 00:24:11.160
I believe that they mentioned-
483
00:24:11.160 --> 00:24:13.260
We'll look for it.
Yeah, I believe it,
484
00:24:13.260 --> 00:24:14.850
I thought that, I believe in the voir dire,
485
00:24:14.850 --> 00:24:16.980
they talked about consciousness of guilt as well.
486
00:24:16.980 --> 00:24:20.160
So the jury's being screened here to avoid the problem
487
00:24:20.160 --> 00:24:21.860
that the defendant has identified.
488
00:24:22.830 --> 00:24:24.540
And again, we have to presume that the jury
489
00:24:24.540 --> 00:24:25.940
followed their instructions.
490
00:24:27.360 --> 00:24:28.193
And it's dated-
491
00:24:28.193 --> 00:24:32.463
Was this during the attorney voir dire era or no?
492
00:24:34.080 --> 00:24:36.153
I think the attorneys asked questions.
493
00:24:39.600 --> 00:24:41.100
So-
494
00:24:41.100 --> 00:24:43.710
How about this concern?
495
00:24:43.710 --> 00:24:47.597
So let's assume there's a non-propensity purpose
496
00:24:47.597 --> 00:24:52.320
for the Elizabeth murder as it relates to prosecution
497
00:24:52.320 --> 00:24:55.350
where Marcia is the victim.
498
00:24:55.350 --> 00:24:59.880
And let's assume, although we've gotta wrestle
499
00:24:59.880 --> 00:25:01.950
with what Justice Gaziano raised
500
00:25:01.950 --> 00:25:05.460
about when the prior bad acts sort of dominate,
501
00:25:05.460 --> 00:25:07.653
like they did in Commonwealth versus Dwyer,
502
00:25:08.640 --> 00:25:11.013
but let's even put that aside for a moment.
503
00:25:12.150 --> 00:25:17.150
Is there any concern that what's driving this here
504
00:25:19.080 --> 00:25:22.603
as it relates to sufficiency,
505
00:25:24.720 --> 00:25:28.170
and ultimately if you pass sufficiency to any other errors
506
00:25:28.170 --> 00:25:33.170
that might exist, that it all comes down
507
00:25:33.660 --> 00:25:38.660
to relying on a homicide, that this might not be enough to,
508
00:25:41.978 --> 00:25:45.153
as it relates at least to a burden of persuasion,
509
00:25:46.170 --> 00:25:48.020
as it relates to Elizabeth...
510
00:25:50.250 --> 00:25:52.253
Let me say it simpler.
Thank you.
511
00:25:52.253 --> 00:25:57.253
That there'd be no case relative to Marcia
512
00:25:57.420 --> 00:26:01.320
if it weren't for Elizabeth, and the case against Elizabeth,
513
00:26:01.320 --> 00:26:04.950
even if it would satisfy a burden of production,
514
00:26:04.950 --> 00:26:08.760
might have some problems with the burden of persuasion
515
00:26:08.760 --> 00:26:10.360
proof beyond a reasonable doubt.
516
00:26:13.200 --> 00:26:15.750
So I take your question to be,
517
00:26:15.750 --> 00:26:17.940
we're assuming that the evidence as to Marcia
518
00:26:17.940 --> 00:26:19.770
without the Elizabeth evidence is insufficient?
519
00:26:19.770 --> 00:26:20.880
Is that-
That's my view.
520
00:26:20.880 --> 00:26:22.650
Okay, well-
Is it yours?
521
00:26:22.650 --> 00:26:23.970
No, it's not our view.
522
00:26:23.970 --> 00:26:25.150
Well, tell me about that then maybe.
523
00:26:25.150 --> 00:26:28.233
Well, again, we,
524
00:26:29.310 --> 00:26:31.140
I mean, when you take the Elizabeth,
525
00:26:31.140 --> 00:26:34.770
essentially, when you take the Elizabeth evidence out of it,
526
00:26:34.770 --> 00:26:38.794
it takes away a stronger link forensically to the defendant.
527
00:26:38.794 --> 00:26:42.092
Okay, just tell me why it's sufficient without Elizabeth.
528
00:26:42.092 --> 00:26:44.760
Because the defendant still has opportunity
529
00:26:44.760 --> 00:26:48.300
to kill Marcia, and he still tells the relative,
530
00:26:48.300 --> 00:26:49.950
even if you take Elizabeth out of it,
531
00:26:49.950 --> 00:26:53.310
he still tells the relatives Marcia's going to Australia,
532
00:26:53.310 --> 00:26:55.620
and then the defendant still leaves.
533
00:26:55.620 --> 00:27:00.493
We still get those statements, Marcia's going to Australia,
534
00:27:00.493 --> 00:27:03.420
even without Elizabeth's evidence coming in.
535
00:27:03.420 --> 00:27:04.980
The defendant still goes to Africa,
536
00:27:04.980 --> 00:27:07.350
regardless of whether any of the evidence
537
00:27:07.350 --> 00:27:09.330
relating to Elizabeth comes in.
538
00:27:09.330 --> 00:27:10.458
The evidence is still-
539
00:27:10.458 --> 00:27:11.790
Can I interrupt for a moment, please?
540
00:27:11.790 --> 00:27:14.400
Just to follow up with Justice Lowy's question,
541
00:27:14.400 --> 00:27:18.000
can you identify the evidence against the defendant
542
00:27:18.000 --> 00:27:20.580
that's not consciousness of guilt evidence
543
00:27:20.580 --> 00:27:25.533
and not prior act evidence as related to Elizabeth?
544
00:27:26.760 --> 00:27:29.220
He's familiar with the area,
545
00:27:29.220 --> 00:27:31.953
he's familiar with the Tolland State Forest area,
546
00:27:34.050 --> 00:27:37.170
he, well, there's the semen evidence,
547
00:27:37.170 --> 00:27:41.424
which suggests that he had access to Marcia before,
548
00:27:41.424 --> 00:27:44.133
not long before she was killed.
549
00:27:47.940 --> 00:27:49.165
Hmm.
550
00:27:49.165 --> 00:27:50.793
It's a little bit, give me this,
551
00:27:50.793 --> 00:27:52.680
it's at least a little bit questionable
552
00:27:52.680 --> 00:27:55.317
whether you satisfy sufficiency without Elizabeth.
553
00:27:55.317 --> 00:27:57.450
I'm not sure you do.
554
00:27:57.450 --> 00:27:59.370
But if you don't,
555
00:27:59.370 --> 00:28:03.482
should I be concerned about this circular issue
556
00:28:03.482 --> 00:28:06.810
that ultimately it might be Elizabeth
557
00:28:06.810 --> 00:28:08.310
that satisfies sufficiency
558
00:28:08.310 --> 00:28:12.300
when there might not be a particularly overwhelming case
559
00:28:12.300 --> 00:28:15.363
as it relates to Elizabeth without Marcia?
560
00:28:17.760 --> 00:28:19.860
I'm not aware that there's a case
561
00:28:19.860 --> 00:28:21.750
that says that we parse it out like that.
562
00:28:21.750 --> 00:28:23.643
Again, we're looking at all, I mean,
563
00:28:24.690 --> 00:28:26.940
it's an interesting academic question
564
00:28:26.940 --> 00:28:28.740
whether this case is sufficient
565
00:28:28.740 --> 00:28:30.210
without the Elizabeth evidence,
566
00:28:30.210 --> 00:28:32.753
but quite frankly, we don't have to prove it that way.
567
00:28:34.230 --> 00:28:39.090
And so, that would be my answer to your question.
568
00:28:39.090 --> 00:28:41.850
I mean, it would be much more difficult, obviously,
569
00:28:41.850 --> 00:28:43.740
if we didn't have the Elizabeth evidence.
570
00:28:43.740 --> 00:28:45.870
I would agree that that is much more difficult
571
00:28:45.870 --> 00:28:46.703
without her.
572
00:28:50.430 --> 00:28:51.470
So...
573
00:28:54.270 --> 00:28:56.340
But that's not the case that was presented to the jury.
574
00:28:56.340 --> 00:28:57.450
That's your point.
Right.
575
00:28:57.450 --> 00:28:59.010
I mean, we have to take all the evidence
576
00:28:59.010 --> 00:29:00.300
in light most favorable to the Commonwealth.
577
00:29:00.300 --> 00:29:02.940
I mean, we don't just parse out, we don't-
578
00:29:02.940 --> 00:29:06.690
If we determine that the Elizabeth evidence was admissible
579
00:29:06.690 --> 00:29:10.020
as uncharged misconduct, right,
580
00:29:10.020 --> 00:29:14.820
and it wasn't overly prejudicial, or if we do the balancing,
581
00:29:14.820 --> 00:29:16.800
then we look at what was presented to the jury.
582
00:29:16.800 --> 00:29:17.790
Right, exactly.
583
00:29:17.790 --> 00:29:19.680
I mean, and the point's well taken
584
00:29:19.680 --> 00:29:22.590
that we can't convict based solely upon other bad acts.
585
00:29:22.590 --> 00:29:23.423
It's well taken,
586
00:29:23.423 --> 00:29:26.010
we can't convict based on consciousness of guilt.
587
00:29:26.010 --> 00:29:28.380
We've got other bad acts, we've got consciousness of guilt.
588
00:29:28.380 --> 00:29:29.369
It's all totality.
589
00:29:29.369 --> 00:29:30.360
But we can't convict based upon the totality.
590
00:29:30.360 --> 00:29:32.160
It's a totality, exactly.
591
00:29:32.160 --> 00:29:34.200
So even if there weren't hypothetically
592
00:29:34.200 --> 00:29:37.200
enough sufficient evidence to show
593
00:29:37.200 --> 00:29:39.630
that the defendant killed Elizabeth
594
00:29:39.630 --> 00:29:44.630
and there was not sufficient evidence that he killed Marcia,
595
00:29:44.670 --> 00:29:47.790
you're saying together, plus the consciousness of guilt,
596
00:29:47.790 --> 00:29:51.090
somehow ratchets it up to beyond a reasonable doubt
597
00:29:51.090 --> 00:29:52.443
as to Marcia?
Yes.
598
00:29:54.270 --> 00:29:57.030
As an aside, I would note, the defendant was also convicted
599
00:29:57.030 --> 00:29:58.620
in Connecticut of the Elizabeth murder.
600
00:29:58.620 --> 00:29:59.453
That's not on the record.
601
00:29:59.453 --> 00:30:01.830
I think it's noted in a few motions to enlarge,
602
00:30:01.830 --> 00:30:03.873
but he's been convicted there too of killing Elizabeth.
603
00:30:03.873 --> 00:30:05.340
Well if he wasn't, you wouldn't,
604
00:30:05.340 --> 00:30:07.830
it wouldn't be admissible in Massachusetts under our law.
605
00:30:07.830 --> 00:30:10.537
No, actually he was convicted after this trial.
606
00:30:10.537 --> 00:30:13.073
Oh, it was after, okay.
He was convicted last year.
607
00:30:14.610 --> 00:30:16.110
Not that, that's neither here nor there,
608
00:30:16.110 --> 00:30:17.160
that's just an aside.
609
00:30:19.770 --> 00:30:21.420
Unless the panel has, or unless the quorum
610
00:30:21.420 --> 00:30:23.940
has any additional questions with really,
611
00:30:23.940 --> 00:30:26.240
with respect to anything raised on the appeal.