-: SJC 12420,
Commonwealth v. Robert Honsch.
-: [Chief Justice Budd] Okay, attorney Fishman.
Good morning.
-: May it please the court,
Neil Fishman here for Robert Honsch.
I'm gonna go through the arguments I made
in the appellate brief with the exceptions of the argument
pertaining to the fingerprint evidence
in the third-party culprit,
which I don't think I can improve upon in the brief.
I'd be happy to entertain questions.
Justice Cypher: Excuse me, before you get started,
this is Justice Cypher.
Can I ask you a question?
Can you, before, so I can understand your argument
in the context of the theory of defense at trial,
can you articulate what the theory of defense was?
-: The theory of the defense was that the defendant
had had a psychological, he...
the defendant maintained his innocence
and the defense was that the defendant had a,
some sort of psychological break
that explained some of his conduct after the homicides.
Justice Cipher: Okay, thank you.
-: So if this court does nothing else,
and I hope it does more,
I think it has to either reduce the verdict or
reverse the
first-degree deliberately premeditated murder conviction.
There's- -: Well, let me ask you
about deliberate premeditation and the use of a firearm.
We have evidence of two to three shots with a firearm,
correct? -: That's correct, your honor.
-: I thought our law was fairly clear
that when you shoot someone at least multiple times,
it's premeditation.
-: Well, the-
-: Are you aware of any cases we have
where we say no premeditation with a gunshot wound?
-: Well, let me put it this way, your honor,
those three shots, not all the three,
by the way, it could have been two to three, so that's-
-: I said two to three. -: Yeah.
-: And we're looking at it like most favorable, right?
Neil: That's correct, your honor.
-: All right, so tell me a gunshot case
where we say no premeditation.
-: Well, I don't know of any such case, your honor,
but however, I would suggest that there,
I don't see how there's any evidence of cool reflection.
The- -: How about the towel?
-: Pardon me? -: How about the towel?
-: Well, I mean, to me, your honor,
that strikes me as speculative,
that the towel was used to muffle the gun.
Of course, that's-
-: But weren't there holes in the towel with gunshot,
or gunpowder on there? -: There was, your honor.
But again, I think that's, it's speculative
that that was used to muffle the gunshot.
-: There was shots in the head too, right?
-: There was a gun, there was,
it was unclear whether there was one bullet to the head
or more than one because there's injury to the victim's-
-: But I mean, frankly, when you have a use of a firearm
in what appears to be an execution,
I don't get how it's not premeditation.
-: Well, your honor, just again,
there were no eye witnesses to the crime,
there was no evidence of motive, there was no evidence,
again, of any sort of reflection, any period of reflection,
certainly not cool reflection.
-: It can happen in seconds.
-: That's true, your honor.
That's true.
-: I think your, I think the strongest argument
about premeditation, because premeditation
is really probably not your best argument
with the time that you have,
but probably the strongest argument is,
lo and behold, look, the wife's dead,
and my goodness, the daughter's dead too,
also in a desolate area or in a different state,
shot in the head, and my goodness,
he doesn't even remember they existed
after saying that they were going to Australia with him,
and then he goes to Africa for a few years
and comes back and has a new name.
So it seems that the deficiency issue is really,
in many ways, dependent on Elizabeth.
And if you took Elizabeth out,
you'd have a sufficiency problem.
And the evidence, as it relates to Elizabeth,
is hardly overwhelming.
And so, my concern that I'd like you to talk about,
that might be a better argument than premeditation is,
is it getting a little circular here that,
oh, we know that he killed the wife
'cause he killed the daughter.
Well, we know he killed the daughter
because he killed the wife.
-: Your honor, I could not have said it better.
With regard to the daughter,
the entire case is built upon the daughter
because there's insufficient proof
tying him to the wife's murder.
Here's what they have insofar as they have, arguably,
and this is a reach, he's present.
Now, how is he present?
Well, he had sex with his wife, we know,
but I don't know if that puts him at the,
anywhere near the campground.
How else might he have been present?
Well, there's a cigarette.
Well, this is the nineties and he smoked,
and lots of people smoked.
That's it.
-: Well, you got the consciousness of guilt.
-: Very, very, yes.
As I put it in the brief,
not in substantial consciousness of guilt evidence,
but as your honor knows,
that's insufficient as a matter of law.
-: But you basically have, in your view,
a very thin direct case, but lots of misconduct evidence
coupled with consciousness of guilt evidence.
-: Well-
-: The misconduct being the death of the daughter.
-: Yeah, well, yes.
So lots of consciousness of guilt evidence.
There is, as your honor went through it,
there's the, we're moving to Australia bit and the moving-
-: This is an overwhelming case of consciousness of guilt,
but that's not enough, as we've said.
-: Exactly, your honor.
And just, there's, crucially,
there's nothing tying these murders together
other than the fact that these,
that the wife and daughter are related.
-: So that's what ties it together.
The issue for me is what is the strength,
the lack of strength, of Elizabeth?
This is the brides in the bathtub.
This is the doctrine of chances.
Oh my goodness, lo and behold, about the same day,
the mother and daughter died, both, wow, in desolate parks,
parks that he's been to and denies going to,
another park that he's been to.
But the Commonwealth's case is nothing
without the foundation of Elizabeth.
So, which is good for you, but you gotta tell me something
about attacking the strength of the case against Elizabeth.
-: Well, your honor, I'd be delighted to.
And first of all, I do wanna take a moment to say
exactly what your honor is saying, that when the,
when there was a motion for the required finding,
the ADA said, well, implicitly conceding
that there's not enough evidence to convict him
of murdering Marcia without the evidence of Elizabeth.
So the entire case depends on the evidence that he,
that irrational-
Justice Lowy: You're preaching to the choir.
-: Okay.
-: Tell me the problem with Elizabeth.
-: The problems with Elizabeth are manyfold,
most importantly, that the fact that it was admitted
as identity evidence is a miscarriage of justice.
This is a classic example of,
in one of the cases they say
that the problem with identity evidence
is it is propensity evidence.
-: It's counting a much lighter load.
That's why it's not
prior bad acts to show conformity therewith.
That's why it's a category of a non-propensity purpose
'cause the propensity is carrying a lighter load
and the lighter load is, lo and behold, doctrine of chances.
-: Well your honor, this court's,
the case law from this court on, when you have,
and this, one, I would be remiss if I didn't say,
we don't even know, is this a subsequent bad act,
is it prior bad act?
So I call it throughout the brief other bad act.
-: It's uncharged misconduct.
It doesn't have to be prior, it could be post.
-: I understand, your honor.
-: We don't have a temporal-
-: But it does go to its probative-ness.
And as far as proof of identity is concerned,
the case law out of this court says,
what we're really looking for is a modus operandi,
a signature crime.
It's gotta be unique and distinctive.
And the cases, there are cases where this court has reversed
because- -: Is it unique and distinctive
when it's the mother and daughter
who disappear at the same time?
-: That's not a signature element, your honor.
That is, that may be probative, that may give you something
with regard to common scheme and plan.
-: I get what you mean by
it's the person who robs banks wearing a clown outfit.
That's the sig-
-: That's a good example, your honor.
And I think Brusgulis, which I cite liberally in my brief,
but I didn't delve into the facts
and I think I was remiss in doing that,
I think that really helps you here
because there you had a sexual assault conviction
where the previous sexual assaults had no signature aspects.
They were the part and parcel of sexual assaults.
And I would suggest to this court that a gunshot wound
from a medium to large caliber weapon is, very sadly,
it's, that's not a signature element in a homicide.
Certainly not.
-: But if you put it all together, right,
a mother, a daughter, both shot in the head, right?
Neil: That's correct, you honor.
-: And- -: Remote areas?
-: Yeah, remote areas, same time.
I mean, so if you put it together,
you do sort of begin to see that there's-
-: Well, the best you got, I think,
would be some sort of evidence of common scheme and plan.
And, but I still, I would still-
-: The claimant, that's not the,
they can't call it a common scheme or plan.
It's not a common scheme or plan case.
-: It's an identity case, your honor.
-: It's using the doctrine of chances
as it relates to identity with the similarities being
everything that Chief Justice Budd just pointed out.
And is it enough?
And I guess I'm getting back
to the same question I've asked a couple times,
which is, is instead of telling me
that it's not non-propensity, because if it's propensity,
then you win and it shouldn't have been admitted.
And you don't have to answer this next question.
If it's non-propensity identity through doctrine of chances
and similarity, do we have to be concerned
that about any frailties in the case against Elizabeth?
And let me help you out with that.
Okay? -: Yes, your honor.
-: You've got somebody else's semen on the vaginal swab,
you've got a fingerprint that came in,
even looking at Commonwealth versus Fulgham
with more certainty than it should have.
Neil: Correct, your honor.
-: And I understand the evidence that it was the defendant,
but the evidence is not overwhelming
that it was the defendant.
-: I agree, your honor.
I think I would go further.
I think the evidence that it was,
'cause it wouldn't be enough
to satisfy a rational trier of fact.
I don't think that he killed Elizabeth.
We have a hair,
it's mitochondrial DNA, it's not nuclear DNA.
Nevertheless, it's DNA evidence.
But it's a hair that even the experts said
could have gotten there for any a number of reasons,
and of course, they lived together.
And the fingerprint evidence, which I, when I came out here,
I said I'd prefer to rest on my brief for that
'cause it's somewhat involved, but the fingerprint examiners
were cognitively and contextually biased.
They knew quite a bit about the case.
It's a very emotional case.
And they're using a method that this court
is now seriously in disfavor with this court
and with the scientific community.
And they're...
-: The fingerprint's not disfavored at all.
It's that it has to, it can't be any in terms of certainty,
and that even if the defendant doesn't object,
you just can't have certainty.
It's not disfavored, it's just not a hard science.
-: Well, I would just say, your honor,
thank you for mentioning the, again,
I think both witnesses said it, it was to a certainty,
and, the ACE-V method is now disfavored under Gambora.
I would submit that that's the law of this court.
But so, again, I think the evidence that he killed Elizabeth
is, it's insufficient to satisfy a juror
beyond a reasonable doubt that he killed her.
And again, just tying into your honor's theme,
the whole, the circularity of this-
-: The question, so you got the sleeping bag-
Neil: Yes, your honor.
-: Issue, and you got the consciousness of guilt issues
that he hasn't been to the place where the bodies are
when he had other times and off to Africa for a few years,
new name, all that stuff.
But when you, this is the circular problem
that the DA's gonna have to talk about,
but you don't look at Elizabeth in a vacuum
because the wife, Marilyn, is her name Marilyn?
-: Marcia. -: Marcia.
-: Yeah. -: Thank you, I'm sorry.
-: Because Marcia's killed within a number of days
in a similar circumstances
in a state where she doesn't live.
So for Elizabeth to be sufficient, you gotta look at Marcia,
and the DA's gonna have to help me understand
why this isn't a big circle,
but you don't look at Elizabeth in a vacuum,
you have to take into account Marcia.
-: Well, I would say to that,
just I would note for your honor,
that your honor has spoken about the similarities
between the crime.
I think they're somewhat thin.
You have a gunshot wound to the head
from a medium to a large caliber weapon,
which is hardly unusual.
And, but Elizabeth is assassinated,
Marcia is shot from a distance.
-: Is it unusual?
I mean, the fact that these two, a mother and daughter,
go missing at the same time?
Isn't that a tough thing to get over?
-: Your honor, it may be probative of,
there may be an argument that it's probative
of that the same person killed them.
I will, I'm gonna skip,
I'm gonna wait on the prejudice element there,
but it's not probative of identity
because of the law of this court,
because it's not a signature crime.
It's very far from it.
It's somewhat, very sadly, it's somewhat routine.
And, but getting to the prejudice element here,
this is, as this court is well aware, when we get,
when we're discussing other bad act evidence,
if it's overwhelmed, if, excuse me,
if the probative value's outweighed even slightly,
not substantially, but just outweighed
by the potential for unfair prejudice,
then it should be excluded.
Well, if any case is that case, this is the case.
-: But what do we do with the argument raised
by the prosecution or the Commonwealth here
that, but for the fact that Elizabeth was found
this side of the border and Marcia on the other side,
this would be tried together?
-: I don't know, your honor.
Having dealt with some joinder issues in previous cases,
I've found the analysis to be pretty much the same.
So you might have a good argument for severance
or lack of joinder, I forget what the terminology would be.
But I do wanna return to the prejudice.
I wanna talk about the photos.
The Commonwealth did me a favor
and pointed to which photos I was referring to.
And I think the ones that I really would ask your court
to consider are exhibits 51,
that's the face of the young girl at the crime scene,
70, that's her clothed on the autopsy table,
and 82 through 85, that's her face at the autopsy table.
Now, this is highly,
this would arouse the emotions of any juror.
But what's unique here is she's not, excuse me,
the defendant's not on trial for Elizabeth's murder,
but he's defending himself left, right, and center
that the entire focus of his defense is to prove that,
or to raise reasonable doubt, that he killed Elizabeth
'cause if he does that, then he gets acquitted of Marcia.
And that is the problem that Justice Lowy
is talking about.
It's this, it's a quite a Kafka-esque situation.
It's additionally Kafka-esque
because he's not allowed to bring in
any third-party culprit argument with regard to Elizabeth.
He's confronted with these photos of her,
he's confronted with the mitochondrial DNA evidence,
the fingerprints on the bags.
So his really, the entire defense is really about Elizabeth
and it's nominally about Marcia.
And I think that's why a reversal is necessary here,
your honor.
If the court doesn't have any other questions,
I'll rest on the brief. -: Okay, thank you.
-: Thank you.
-: Okay, Attorney Lynch.
-: Good morning.
May it please the court, Travis Lynch,
Assistant District Attorney on behalf of the Commonwealth.
I think to answer Justice Lowy's question,
why isn't this just circular?
The key point here is that the defendant
told the victim's relatives that the victims,
that Marcia and Elizabeth, were going to Australia
at a time inferably when Marcia and Elizabeth
were already dead.
That's why this isn't just completely circular.
And I think that's really what,
that statement by the defendant
is what really ties the two murders and these,
the two incidents together.
-: Is there any concern that what ties together,
I'm not sure that's all that ties together,
but that ties together consciousness of guilt?
Consciousness of guilt can only take you so far,
as you know from our consciousness of guilt instruction.
Travis: That's correct.
-: Commonwealth versus Tony. -: Right.
So is there a concern, I mean,
I think the rule simply is you can't be convicted
solely based upon consciousness of guilt evidence.
-: Yes.
My question in response
to the first thing you said out of the box is
if what makes it not circular is consciousness of guilt,
could that cause us any concern?
-: I don't believe so, because,
again, the rule, the sufficiency rule,
is just that you can't be convicted
solely based upon consciousness of guilt evidence.
I mean, also, I would respectfully submit that
it's not just for consciousness of guilt.
The judge also, I believe, found that it was admissible
for common scheme and plan.
So if it's common scheme and plan,
then we're out of the question
of whether we're convicting him
solely based upon consciousness of guilt evidence.
Also, we're not convicting him based
solely on consciousness of guilt evidence
because the palm-print evidence
is not consciousness of guilt, it's other bad acts evidence.
Again, I believe you also can't be convicted based
solely upon other bad acts evidence,
but you've got consciousness of guilt, other bad acts,
and then you have some circumstantial evidence
showing opportunity.
Again, the question is not whether the jury was compelled
to find him guilty, it's whether a rational finder of fact
could have found him guilty.
So on the question, again,
I think we've already gone over this,
why there's sufficient evidence to establish
that the defendant was the person who committed this murder,
and the court has already gone over in great detail
why there's deliberate premeditation.
The fact that there's inferably two gunshot wounds
through the head is by itself enough
to get us to deliver premeditation, plus there's the towel.
-: What about the balancing,
because this is uncharged misconduct on steroids,
obviously the death of the daughter as well.
-: Mm-hmm. -: And if you do a balancing,
you have to be very careful
because of the amount of prejudice.
And so, can you speak to the balancing done
by Judge Sweeney?
-: So the, yes.
So essentially, what the judge found was
this is a double homicide.
The balancing of the prejudice,
I think you have to take into account the fact
that the judge was constantly reminding the jury
over and over again, you can't use this evidence,
you can't use the evidence relating to Elizabeth by itself
to convict the defendant.
So the judge articulated the defendant's concern below
as the jury is just going to impede the defendant here
because of this overwhelming
consciousness of guilt evidence.
But they're told repeatedly, you can't do that.
And the instructions, the instructions are very plain.
They were repeated over and over again.
It's stated in the voir dire of the jurors,
which I believe took four days.
Most of the days of the trial, the instruction was given-
-: Was the voir dire on both consciousness of guilt
and uncharged misconduct or just on uncharged misconduct?
-: I put in the uncharged conduct instruction
in the voir dire.
I believe that they mentioned-
-: We'll look for it. -: Yeah, I believe it,
I thought that, I believe in the voir dire,
they talked about consciousness of guilt as well.
So the jury's being screened here to avoid the problem
that the defendant has identified.
And again, we have to presume that the jury
followed their instructions.
And it's dated-
-: Was this during the attorney voir dire era or no?
-: I think the attorneys asked questions.
So-
-: How about this concern?
So let's assume there's a non-propensity purpose
for the Elizabeth murder as it relates to prosecution
where Marcia is the victim.
And let's assume, although we've gotta wrestle
with what Justice Gaziano raised
about when the prior bad acts sort of dominate,
like they did in Commonwealth versus Dwyer,
but let's even put that aside for a moment.
Is there any concern that what's driving this here
as it relates to sufficiency,
and ultimately if you pass sufficiency to any other errors
that might exist, that it all comes down
to relying on a homicide, that this might not be enough to,
as it relates at least to a burden of persuasion,
as it relates to Elizabeth...
Let me say it simpler. -: Thank you.
-: That there'd be no case relative to Marcia
if it weren't for Elizabeth, and the case against Elizabeth,
even if it would satisfy a burden of production,
might have some problems with the burden of persuasion
proof beyond a reasonable doubt.
-: So I take your question to be,
we're assuming that the evidence as to Marcia
without the Elizabeth evidence is insufficient?
Is that- -: That's my view.
-: Okay, well- -: Is it yours?
Travis: No, it's not our view.
-: Well, tell me about that then maybe.
-: Well, again, we,
I mean, when you take the Elizabeth,
essentially, when you take the Elizabeth evidence out of it,
it takes away a stronger link forensically to the defendant.
-: Okay, just tell me why it's sufficient without Elizabeth.
-: Because the defendant still has opportunity
to kill Marcia, and he still tells the relative,
even if you take Elizabeth out of it,
he still tells the relatives Marcia's going to Australia,
and then the defendant still leaves.
We still get those statements, Marcia's going to Australia,
even without Elizabeth's evidence coming in.
The defendant still goes to Africa,
regardless of whether any of the evidence
relating to Elizabeth comes in.
The evidence is still-
Justice Cipher: Can I interrupt for a moment, please?
Just to follow up with Justice Lowy's question,
can you identify the evidence against the defendant
that's not consciousness of guilt evidence
and not prior act evidence as related to Elizabeth?
-: He's familiar with the area,
he's familiar with the Tolland State Forest area,
he, well, there's the semen evidence,
which suggests that he had access to Marcia before,
not long before she was killed.
-: Hmm.
It's a little bit, give me this,
it's at least a little bit questionable
whether you satisfy sufficiency without Elizabeth.
I'm not sure you do.
But if you don't,
should I be concerned about this circular issue
that ultimately it might be Elizabeth
that satisfies sufficiency
when there might not be a particularly overwhelming case
as it relates to Elizabeth without Marcia?
-: I'm not aware that there's a case
that says that we parse it out like that.
Again, we're looking at all, I mean,
it's an interesting academic question
whether this case is sufficient
without the Elizabeth evidence,
but quite frankly, we don't have to prove it that way.
And so, that would be my answer to your question.
I mean, it would be much more difficult, obviously,
if we didn't have the Elizabeth evidence.
I would agree that that is much more difficult
without her.
So...
-: But that's not the case that was presented to the jury.
That's your point. -: Right.
I mean, we have to take all the evidence
in light most favorable to the Commonwealth.
I mean, we don't just parse out, we don't-
-: If we determine that the Elizabeth evidence was admissible
as uncharged misconduct, right,
and it wasn't overly prejudicial, or if we do the balancing,
then we look at what was presented to the jury.
-: Right, exactly.
I mean, and the point's well taken
that we can't convict based solely upon other bad acts.
It's well taken,
we can't convict based on consciousness of guilt.
We've got other bad acts, we've got consciousness of guilt.
It's all totality.
-: But we can't convict based upon the totality.
-: It's a totality, exactly.
-: So even if there weren't hypothetically
enough sufficient evidence to show
that the defendant killed Elizabeth
and there was not sufficient evidence that he killed Marcia,
you're saying together, plus the consciousness of guilt,
somehow ratchets it up to beyond a reasonable doubt
as to Marcia? -: Yes.
As an aside, I would note, the defendant was also convicted
in Connecticut of the Elizabeth murder.
That's not on the record.
I think it's noted in a few motions to enlarge,
but he's been convicted there too of killing Elizabeth.
-: Well if he wasn't, you wouldn't,
it wouldn't be admissible in Massachusetts under our law.
-: No, actually he was convicted after this trial.
-: Oh, it was after, okay. -: He was convicted last year.
Not that, that's neither here nor there,
that's just an aside.
Unless the panel has, or unless the quorum
has any additional questions with really,
with respect to anything raised on the appeal.