-: SJC-12454, Commonwealth versus Franklin Capella.
-: Great, okay, Attorney Crouch.
-: Good morning, and may it please the court,
Andrew Crouch on behalf of Franklin Capella,
who appeals from convictions,
a single conviction of first degree murder
out of the Plymouth County Superior Court.
In his opening statement to the jury,
the Commonwealth told them that it would prove its case
through two points, GPS data and the defendant's own words,
and indeed that was the basis of the Commonwealth's case,
but in an effort, an unfortunate effort to bolster its case
on these two points, the Commonwealth chose
in both its opening and its closing to go
a little bit further, and what it did in its opening,
where I'd like to begin is three particular errors,
and the first had to do with an appeal to emotion
and sympathy, and then moving on eventually
into misstating what I would consider to be key,
not collateral record evidence in this case.
The facts in this case are fairly voluminous,
as are the multiple, you know,
the opening and closings here, but specifically,
I think we can categorize them in three sets
in both the opening, and three sets in the closing,
and for the first set in the opening,
we're looking at an appeal to emotion,
and specifically I'm referring to familial characteristics
where the Commonwealth is going into the age of the victim,
you know, that he's 32 years old and dying,
32 years years old and he's gone.
This is something we've seen somewhat frequently in cases
where the decedent is someone who is perceived
as being on the younger side.
-: More importantly than that is the discussion
about the content in the consciousness
of the family members.
-: Yes, and that would be what I would call
the second category.
The first one, I think pretty straightforward.
Second one, I think as we sort of move along here,
gets more and more problematic.
And I think as Justice have always pointed out,
the second point, which I think is key here.
And with respect to this appeal to sympathy and emotion,
this is where the Commonwealth I think really starts
to go off the rails on its opening,
and it starts repeating multiple times,
and this isn't just a one off kind of statement.
It's multiple times where they're talking about,
you know, these horrendous and horrific final memories,
not of victim, it's nothing, this isn't,
this is a case related to extreme atrocity and cruelty.
You know, some of this is gonna be fair game to comment on,
you know, the circumstances surrounding
the individual's death and what they might have been feeling
at that time, or some of the specifics.
That's not what we have here.
Instead, the prosecutors routinely, and this is the theme,
this is the theme of the opening, continually referring
to the horrendous and horrific final memories
of anyone ranging from the defendant,
the decedent's girlfriend, to his children who are present,
to the cousin, to neighbors,
and eventually even sort of a reference
to the medical examiner having to do their job.
-: Counsel, one of the differences between this case
and the cases upon which you rely
to say that this an improper appeal
to sympathy is that in those other cases, it seems that the,
it wasn't at all part of setting the scene, you know,
it was just, it was definitely characterizing the victim,
but here, the family was present at the scene.
The girlfriend did watch the shooting,
as did the cousin and perhaps the oldest child.
So how do we fit this fact scenario in connection
with the jurisprudence upon which you rely,
which where the victim's family is not around?
-: Well, I think one of the things we're looking at here is
this is more akin maybe to the Nemec case,
and I was specifically talking about Nemec one,
where it's a little bit better in terms
of both the standard of review,
because this was an unpreserved error,
but also on the facts.
As I said, some scene setting is allowed.
You know, that's what happened in the case of Alamani
and others, but here, this is not what's happening.
The prosecutor's focusing on almost the mental anguish,
actually specifically the mental anguish
that has been reigned upon people who are not the victim
in this case, and it's not just certain,
just not their perception of what happened.
It's not that they're saying that they're watching
this person come in through the door,
and they're bloodied, and shutting the door behind them.
It goes beyond that.
You know, in the way that it is phrased,
I think six or seven times in the opening statement,
they're talking about, you know, the horrendous
and horrific final memories of their loved one.
And this is, I think,
different than the other cases we see.
You know, they are present.
They could, you know, one of them at least testifies,
and there may be some fair game there, but then beyond that,
we're talking about, you know, the impact on them,
which I think is what we're looking at
in cases like Nemec, where we're talking
about this is where we get out of bounds.
-: Well, if we could be more specific, Mr. Crouch,
for instance, where you have the opening referring
to the victim crawling through the back door,
reaching toward the girlfriend, and trying to shout.
That's all relevant on extreme cruelty.
At the time of the trial,
the victim's consciousness and pain
and suffering was relevant,
but there's a preparatory comment before that,
which is the victim's girlfriend final memory was.
That's the difference you're focusing on
for the purposes of Justice Wendlandt's question.
Is that right?
Atty. Crouch: Yes, I would agree.
-: And for some reason, the Commonwealth position is that,
well, this is part of the evidence.
Atty. Crouch: Yes.
-: Just 'cause it's part of the evidence doesn't mean
you can use it for any purpose you want to.
-: I would agree, and not to belabor it, but this, you know,
when you start looking at the passages that we refer to
in the brief, and largely, we're talking about transcript
for 103 to about 105, 106, 107.
When you read it, it's not just, as Your Honor said,
if it had been just a pure description of somebody walking
through, you know, coming back through the door injured,
all of that in extreme atrocity
and cruelty is perfectly fair game, and as we make clear
in both the primary and the reply briefs,
this is not that.
This is, you know, getting in here,
and when we start talking about, you know,
what they did and you know,
because of what the defendant did to Mr. Dillard
in this attack and taking his life in terms of Mr. Myers,
one of Mr Myers' final memories will be of the defendant,
you know, push back, screaming, things like that.
Some of that might be acceptable, but when we get into the,
I think it's seven or eight different things that we cite
in the brief where they use this theme, this phrase,
final, horrific, and horrendous memories.
They're not talking about the victim.
They're not talking about the decedent.
They're talking about the family.
-: But aren't the witnesses victims also?
I mean, they may not be the subject of a charge,
but they were there.
They were witnessing it.
They're not the murdered victim,
but they're certainly victims.
-: Oh, they're certainly, unquestionably,
they're impacted by it, but this is the whole purpose
of trying not to elicit, you know, the personal impact
that this has on them.
That has no place in this case.
-: If it were a tort case for intentional infliction
of emotional distress.
-: Yes, this is, this is a pure appeal to sympathy.
You know, when we have this case where they have
these two, you know, they basically have these two pieces
of evidence, they're attempting to bolster that,
I would suggest, improperly through, you know,
through this emotional appeal.
-: How does this give rise, given that it's
an unpreserved error to substantial risk?
-: I think we, because as I noted,
I think there are about six sets of errors
between the opening and the closing,
this just being one of those sets of,
or two of the sets of errors.
This is as, as I said, unpreserved,
but I think Nemec is the case we look at for this.
This is the case where Nemec was unpreserved.
It talks very specific, you know, the terms that are used,
the improper terms there are similar to the ones
that are used here.
I think that that case can provide guidance
as to how this should be resolved
in terms of the standard of review.
The final argument or the final statement that was made
in opening that we would suggest is problematic
beyond the series of two sets of series
that we're talking about, has to do with the GPS evidence.
And as I said earlier, the Commonwealth noted
in its opening, the GPS evidence was one
of the two main pieces of the case, and frankly,
it was the strongest, more objective piece of evidence.
The other piece, the defendant's statement, came
with its own, I think, you know,
the witness himself described himself as not
particularly reliable, but here the language
that the Commonwealth, the prosecutor uses in the opening is
just, is not a good faith, you know, proclamation
of what is to come, and instead here,
what the Commonwealth says is that, you know,
this GPS location point was near to the sidewalk
in the general vicinity of Lawrence Street.
Okay, but then it says, it goes so far and say,
not only that, you know,
the problematic turn is not only that.
It's gonna show you it's so specific and so accurate,
it's gonna show you that this defendant was facing in,
looking in the hallway from outside Lawrence Avenue.
We're gonna put the defendant right there.
The Commonwealth is the entity that put
on Stephanie Kardashi the probation officer in charge
of the electronic monitoring.
It knows the efficacy of its GPS system.
It knows that it's only good up to 36 feet
in terms of radius, and it knows that Ms. Kardashi,
or no other witness is gonna testify that the person is
in the hallway, looking in the hallway,
the direction they're facing, the proximity.
Instead, the Commonwealth forecasts, misforecasts,
and frankly, it almost has to be intentional here.
It can't be good faith,
'cause they know the evidence isn't gonna support that.
And the exhibits that you have show
that it doesn't support that,
but the Commonwealth makes this argument.
And as I said, when we start looking at, you know,
Nemec, Nemec talks about kind of this cascading number
of different errors, and some of them are-
-: So I'm not dismissing that, but to sort of get right to it
on that issue, and the other issue, and also execution
as opposed to killed for the defendant's statement,
let's go back to Justice Wendlandt's question,
and dig in a little more, if you could,
because this case is the defendant saying he did it,
and the GPS having him not at the doorway, but right there,
which makes you wonder what's the purpose
of all the overreaching, but putting that aside,
I did it, and GPS I'm right there.
How are you gonna show that substantial likelihood?
-: Certainly, so in this case, and I will talk,
certainly talk about the closing arguments after this,
and how they fit in, but here, you know, as I said,
this is not a collateral.
This isn't a collateral statement.
The execution isn't collateral.
They go to the evidence, as you're talking about.
Commonwealth had two pieces of evidence.
Let's take them piece by piece.
So the GPS evidence, you know, that they had
in this case showed that he was at or near the scene
at or around the time of the murder.
Again, we don't know the specific time of the murder.
There are three different sets of time timings here
between the GPS, the cell phone, and testimony
of Helena Ellis, and the nine one one call
that eventually led to the dispatch to the scene.
We don't know how those timeframes work out,
but we're looking at roughly six to 6:05, 6:02 to 6:05,
6:07, somewhere in that neighborhood.
So we know he's at around the scene about 6:02, 6:03.
Then he departs the scene.
Places him there, that's unquestionable.
That's the extent of that evidence.
It doesn't place him directly in the house.
It doesn't place him in a particular, you know,
anything more than that.
It's just mere presence,
so then we have to move on to the next part,
and that next part has to do, we said with a 36 foot radius.
The next part has to do
with the defendant's single statement
to McNicholas saying, "I killed him."
Now, I'm not gonna blame the record,
but Mr. McNicholas himself describes himself
as having substantial memory issues.
We go through that-
-: That's a weight issue.
-: What's that?
-: That's a weight issue.
-: It certainly is, but when we go, in terms of,
I'm not arguing in this particular section
that that should have been somehow disallowed,
but when we talk about the impact
of the Commonwealth's overreach here,
it is relevant that this is not a clear cut case
where there are multiple individuals who-
-: You're arguing substantial risk though,
and then now you get into weight.
That's a problem.
-: Except what we're arguing,
except the point that we're arguing here is that
when the Commonwealth overbears on this case,
and we would suggest that, you know,
the evidence here is not overwhelming,
'cause there is no other forensic evidence.
There's no blood, there's no fingerprints.
There's this single statement to a witness who, you know,
as we said, has reliability issues.
And we're not asking this court to judge those,
but to keep them in mind in terms of what the strength
of the overall Commonwealth's case is,
which is part of the analysis we do for, you know,
substantial risk of likelihood,
their substantial likelihood test.
This is where the Commonwealth overreach comes in,
because it has two points that it's pointing at.
It says GPS, and it says the defendant's statement,
and with the G-
Justice Lowy: The statement said,
"I'm on going on a mission."
-: Yes, I guess there is the going
on the mission part as well.
It's a little less direct perhaps than,
but certainly part of the calculus part of the overall,
you know, nature of the Commonwealth's case.
But this is when I think we then,
we have the Commonwealth's, you know,
this first part where we have this appeal to sympathy
and emotion, and how that impacts it.
Then we have a direct shot at the GPS misstating
the GPS evidence, which is gonna be key in the case.
Then we transition into the closing argument,
and in the closing argument,
we have another three sets of issues.
One of those, and perhaps the key issue has to do
with materially misattributing a statement
that the defendant did not make,
and the Commonwealth again-
-: [Justice Wendlandt] The execution?
-: This is the execution line, yes.
-: But council, trial counsel did say it was an execution,
and how else would you describe it?
-: Well, this wasn't, this was,
and I think the key different difference here is
it's not that the prosecutor said
that this was an execution.
I think under our case law, that might have been,
and as we say in the brief,
that might have been fair characterization.
The prosecutor puts these words in the defendant's mouth,
says that the defendant said, "I executed,"
or says he executed him, like in the defendant's own words,
he executed him.
Those weren't the defendant's words.
-: [Justice Wendlandt] I killed him?
-: I killed him and I executed him are two different things.
I mean, as we understand, I was-
-: How?
How?
Atty. Crouch: How?
-: Yeah, what's the difference? Atty. Crouch: In terms of-
Well, under, I mean, under the law,
in terms of, you know, without getting too detailed
into some of this, you know, one can kill, you know,
without it being, you know, extreme atrocity and cruelty.
And I would suggest that when you misrepresent
what the defendant said in a meaningful way, and again,
this is one of the two key pieces of evidence in this case,
when you say, "I executed him,"
that gets the Commonwealth closer to its burden of proof
on extreme atrocity and cruelty.
-: I would think it gets him further away,
because don't people think of an execution
as something quick and fast in the back of somebody's head?
I mean, I don't follow the logic that
that makes the rest of it more meaningful.
-: Yeah, I mean, I think that may be one view of it.
I would suggest that when you're,
I think this is a key issue when you start talking
about what the defendant actually said, and, you know,
we don't have a ton of case law on this.
I think the best case we have, I think,
was the Paval case where they changed the words
from get to kill that's slightly different than-
-: If the prosecutor had said, defendant's lawyer,
it would've been fine.
Atty. Crouch: Yeah, I think that would've been fine.
It would've suggested-
Justice Lowy: He executed him would've been fine?
-: I think it, yes, if he had character,
if the prosecutor themselves had characterized it
that way.
-: You can't just sort of slide
over Justice Cypher's question though.
I mean, yeah, he said executed instead of killed.
That was not accurate, but how does that correlate
to one of the factors?
-: I think it goes into those, and as I said,
where the Commonwealth has two pieces of evidence
that it's looking at, the GPS and the statement,
I think it's important when you misrepresent it.
I think when he says I killed,
my only point here is I think it just goes further.
I think the ex-
-: You gotta explain it.
I mean, you can't just slide over Justice Cypher's question.
It's an important point.
Okay, it was wrong.
He didn't say executed, he said killed,
and the prosecutor said, he said executed.
Atty. Crouch: Right.
-: And I'm not dismissing the importance of that at all
as far as having done it.
What factor does that provide a concern
of a substantial likelihood of miscarriage of justice?
-: Sure, I think it goes to, you know,
I think there is more weight that can be put
on the word execute than on the word kill.
And I think that it goes to factors in terms of the,
you know, the sort of the callousness in terms
of the callousness of the defendant's actions, you know,
his desire, you know, for suffering.
You know, there's multiple factors, I think.
-: I think that's the opposite.
I mean, it would bear on premeditation, certainly.
I'm not so sure about atrocity or cruelty.
I think the issue we've got is talk about overstatement.
I mean, you've got very good arguments on the GPS
and on the impact on the family.
The rest of it, I get the cumulative effect
that you're trying to give us in line with Nemec.
Atty. Crouch: Yes.
-: And then that's your point, right?
These all aggregate.
-: The cumulative nature of all of the six sets of errors,
yes, all work together.
This isn't the situation, as I said, where this is a-
-: Would you agree with me the strongest are
the misstatement about GPS and the impact on the family?
-: I think so.
I think in the opening, it is serious, and then, you know,
what we have not discussed,
and I won't belabor with the time left,
is the characterizations in an attempt
to sort of reinvigorate the testimony of McNicholas.
And I think these are not all in the vouching
that we suggest in the brief.
This isn't, as I said, these aren't ancillary issues.
They're not collateral, they're key.
They're the ones that the Commonwealth told the jury
to focus on in the opening and indeed,
the Commonwealth's case focused on throughout.
But instead, you know, the Commonwealth, we would suggest,
went far afield in terms of what it did.
With the brief time I have left,
I just would like to address 33-E.
I know this court has in front of it upcoming,
both Robinson and Mattis case, and we obviously don't know
where those two cases will lie,
but the individual here was under the age of 20 years old
at the time of this offense.
We would ask this court to, you know, give consideration
to that in its 33-E.
-: Well, he certainly would.
You know, depends on what we're gonna do
with those two cases, but as on the facts of this,
I'm not seeing it as far as a regular 33-E claim.
Atty. Crouch: And for the reason-
-: And you're not asking it on that basis.
-: Well, we would, you know,
I think the better argument here is going to be,
is gonna be a benefit just from the resentencing in terms
of what would happen for Mr. Capella.
But if there aren't any other questions,
I will rest on my brief.
-: Okay, thank you.
Okay, Attorney Nuen.
-: May it please the court,
Mary Nuen on behalf of the Commonwealth.
First with respect to opening statements,
I do wanna emphasize that the jury instructions
at the very beginning of trial,
in addition to the instructions
that opening statements are not evidence,
immediately before the prosecutor's opening,
the judge did explicitly instruct the jury
that they were not to base their decision on sympathy.
-: I still agree that the level of layering
and the emotional appeal as to the impact
on the family members went really way beyond setting
the scene.
-: So I do comment on this on my brief,
and it's the Commonwealth contention,
I think Justice Lowy picked up
on the Commonwealth's argument it was the evidence.
It was fact-based.
Justice Gaziano: It sounds like
a victim impact statement.
-: So the Commonwealth's position is that, you know,
although egregious and certainly dramatic,
I think in a case under the theory of extreme atrocity
or cruelty warranted, especially in this fact pattern,
which I won't belabor the point, but it does involve
a situation where a man is unarmed in his home,
and he's crawling away from the shooter,
but still being shot at while crawling away.
-: But wouldn't the atrocity accrual
through the callousness be accounted for
if you said the defendant did this,
without saying think about the impact on the family?
That's the second level of that.
I get the whole atrocity cruelty and the callous nature.
If someone shoots someone in front of the family,
certainly there's a callous part of that
that can be taken into account to aggravate the murder,
but then directing the jury to essentially think
about the impact that's gonna have
on the family members is a different,
how does that figure into atrocity or cruelty?
-: So if I may try to attempt to answer that question,
it's the Commonwealth's position that aside
from what I've just spoken about the facts sort of being,
and the remarks being sort of inherent in the odious nature
of the crime committed, it's the Commonwealth position
that it was relevant to establish
the victim's own emotional suffering.
I didn't cite this case in my brief,
but a recent case is the Moores case
that was recently decided that was the case involving
the so-called Mattapan massacre.
In that case, the reference to one of the victims being
a mother, and another victim's age were proper,
given the extreme atrocity or cruelty theory.
So although I do see that there were-
-: The other victim in that case was the son of the mother.
-: Yes, and so on that point-
-: Those cases deal with harm to the victim.
-: Yes.
-: Not to the family members.
-: So there was, I did cite this case in my brief,
and I think it does help the Commonwealth on this point,
and that's, I believe it was the Johnson case.
-: I think the lesson learned to the Commonwealth should be
that this kind of statement is improper,
and maybe you could move on to why it doesn't create
a substantial likelihood of a miscarriage of justice.
-: Yes, and to the extent that this court finds
that it was overly emphasized,
I think Your Honor is correct that the real issue is
the substantial likelihood-
-: But on that last point, overemphasized,
there's gonna be other closings after today,
and it's not overemphasized.
It's that how the victim was feeling,
maybe the victim dying in front of his family,
how the victim was feeling.
In a particular case when we had
the conscientiousness and degree of suffering
of the deceased, there might be circumstances,
but just because something happened
in the evidence doesn't mean you can marshal that fact
for an inadmissible purpose.
That it's episodic doesn't mean it's admissible
for any purpose.
So I think the lesson is more than overemphasized here.
-: So I wanna comment, Justice Lowy, if I can,
on the sort of it being unpreserved, but before I do that,
one thing that I wanted to just add though,
is that to the extent that the family members were
percipient witnesses to the events, you know,
there is an argument that could be made with regard
to the relevancy as applied to the credibility
of those witnesses, and certainly Ms. Ellis's credibility,
and her memory of the shooting that she witnessed,
and the so-called trauma that may have affected
her ability to observe the facts.
-: I agree that we should move on, sure,
but because something happened, and it could be admissible
for that purpose doesn't mean you get to tell the jury
about the last thoughts
that they'll ever have of the victim.
It's two different things.
Just because it happened doesn't mean you can use it
for anything in the evidence.
But I agree with Justice Wendlandt.
Why don't you get to substantial likelihood?
-: Can I just finish?
Okay, can I ask you to put with,
put the defendant's arguments about the opening
and closing in the context of the defendant's theory
of the case.
How did those two things work together, if at all?
-: So it's the Commonwealth's position,
and I indicated in my brief that it didn't go to the heart
of the defense, which was mistaken identity,
and both attorneys, the prosecutor
during the closing argument, and trial counsel
for the defendant focused primarily on identification
during their closing argument.
So when we're talking about a substantial likelihood
of a miscarriage of justice,
one point that the Commonwealth does make is that
it did not go to the heart of the defense,
and I've already discussed sort of the relevancy
to extreme atrocity or cruelty, and I did touch upon,
and will not go into more detail unless Your Honors want,
but the Commonwealth's position that it was fact-based,
and that the evidence of the brutal nature
of the murder was overwhelming,
and I did comment on the judge's instruction.
I do also wanna point out that
there was no objection here by counsel,
and also the verdict itself suggests
that the jury's emotions, in fact, were not inflamed,
where they did not find the defendant
guilty on the theory of deliberate premeditation.
And also on the point of, without going
into sort of rehashing, you know, the issue
of the relevancy to extreme atrocity or cruelty,
I did want to point out sort of on the issue of prejudice
in that regard,
and I think I did comment on the language,
but like in the Henley case,
although the evidence may have been upsetting,
it was inherent in the odious nature of the crime committed.
And then also the Alamani case,
which is cited in the Commonwealth's brief,
the quote is, "It is unlikely that
the prosecutor's remarks had an inflammatory effect
on the jury beyond that which naturally would result
from the evidence presented."
Certainly here there was an overwhelming evidence
of the brutal nature of the murder so that the Commonwealth,
the prosecutor's remarks could not have added much
to the traumatic facts that were offered in evidence.
-: It seems that one issue on substantial likelihood is
that in Alamani and some of the other cases,
the prosecutor begins with, this was a, you know,
25 year old person who won't live to see 26,
so whatever the turn of phrase is, and then they go on.
In this case,
it returns to these themes repeatedly, correct?
-: It returns, so with respect to the age that there were-
Justice Gaziano: 'Cause it's not fleeting like some
of the other cases.
-: I'm sorry, what was that last part?
-: These remarks aren't fleeting
like some of the other cases we saw.
-: There were more references with regard,
I could be mistaken, but there were eight references,
I believe, to the horrific final memories or images
by the family members, and then I believe three or four
to Mr. Dillard's age.
Justice Gaziano: Which goes
to the substantial likelihood issue.
-: It does, and I distinguish it from a case Santiago
that I know my brother cites where number one,
that case was not charging extreme atrocity or cruelty,
but more importantly,
the prosecutor there referred to the age of 17
and her condition being pregnant five times
in the opening statements, and another seven times
in the closing for a total of 12,
so in it is a different scenario.
I do distinguish that case in my brief,
and then I just wanted to also bring up the Moore case,
which were eight references to the mother,
so there were seven in the opening,
and then four in the closing.
In this case, it was not repeated in the closing.
And also in addition to the instruction regarding sympathy,
right immediately prior to the prosecutor's opening,
the judge, six days later in his final charge reminded
the jury again, and specifically instructed
that they were not to be swayed by sympathy.
-: Okay, before you wrap up, or I don't,
I can't read the clock from here.
Can you address the GPS statements?
-: Yes.
So the Commonwealth's contention is that,
like in the Texera case that I cite in my brief,
the defendant has not shown that this was not something
the prosecutor expected to be able to prove.
Certainly, as I point out in my brief,
the evidence did materialize.
It may not have materialized in the way that the prosecutor
who was not the prosecutor who elicited the evidence
from the GPS representative.
It did, nevertheless, materialize, and certainly,
there was testimony statements
that came in substantively with respect to the cousin
who actually observed the shooter in the hallway.
So the evidence that, you know,
the comment was going to put, you know,
the defendant right there,
I would suggest, did in fact materialize.
Justice Budd: But not the way it was promised
to the jury, right?
-: So, you know, at worst, it was a mistaken belief
by the prosecutor.
-: Why was it even a belief?
Why was it a belief?
That was your witness.
It was the Commonwealth's witness.
They should know what the person
from the GPS company would say, so that seemed,
I mean, that's, I mean, it was a big,
I mean, it was a mistake.
It wasn't a belief.
I mean, why, why did that happen?
-: So I can't answer as to why it happened, but I can,
if I may, sort of emphasize sort of the prejudice,
what prejudice was there, if I may,
and I suggest that there was no prejudice,
certainly no substantial likelihood of a miscarriage
of justice where, you know, number one, as I pointed out,
the evidence did materialize in another way.
But secondly, it was isolated in a brief reference,
and not repeated in the closing.
-: But in the opening,
I think the prosecutor specifically said,
"We're not gonna have forensics.
We're not gonna have a specific ID.
We're gonna rely on two things,"
and as your opposing counsel has mentioned,
one key was the GPS that will show
the defendant right at this specific doorstep
on the stairs facing this way.
Very, very detailed in a way that I can't really understand
why anyone would believe GPS would be able to give
that kind of detail.
This just doesn't seem to be any good faith basis
for that level of detail from a GPS instrument.
-: So what I can say is that at least with respect
to the jury being able to sort out any excessive claims,
number one, the GPS representative was on the stand
for quite some time, and both defense counsel
and the prosecutor in closing accurately stated,
this is the prosecutor, for example,
during closing on page 24 of volume eight,
"The defendant was outside for 419 Montello Street
at the corner of Montello and Lawrence,
and he's right outside the door."
She again says at page 25, "At 6:02,
the defendant is right here at the corner
of Lawrence and Montello, right at the murder scene."
So she never repeats what the prosecutor said
in opening regarding that challenge statement.
-: That's good, but I guess the issue underneath this is that
that's such a specific statement for the prosecutor to make
about something highly technical,
that it sounds as if he had a basis for believing that.
That's what a person would think
if you didn't know much about it.
What is the evidence the prosecutor was basing
that statement on?
And that's what's kind of hard to understand,
because there certainly wouldn't have been that evidence.
It's just not what GPS does.
So at least you've gotta say it's excessive,
if not intentionally misleading.
-: So it's hard to kind of go into the mind of the prosecutor
in that instance, and sort of standing
from where I'm standing, what I can say is speak
to the issue of prejudice, and fortunately,
the jury in this case were repeatedly instructed
that opening statements are not evidence,
and also that their memory controls with respect
to the evidence and the testimony.
So certainly, you know,
the jury's presumed to follow those instructions.
So I do think that the judge is precise
and clear in instructions in this case.
-: Can you address a cumulative effect of,
for me, the problematic ones,
the GPS and the impact on the family?
-: Sure, so this was a case that I believe the record shows
that it was the evidence and not sympathy
that was the foundation of the jury's decision.
Justice Gaziano: How do we know that?
-: I think that one of the things that I've mentioned
when we're looking at the prejudice issue is the verdict.
That has certainly suggested that
the jury's emotions, in fact, were not inflamed.
Justice Budd: How did we get there?
-: He's sitting here on a first degree,
so how are we getting that on the verdict?
Atty. Nuen: I'm sorry, judge?
-: He was convicted of first degree murder.
Atty. Nuen: They didn't just sit there and believe
everything that the prosecutor said, for example.
-: But how do we know?
I mean, how do we know that the,
how does the verdict establish that there was no prejudice
when he was convicted of first degree murder?
-: Well, I mean, as I had indicated,
the jury are presumed to have followed
the judge's instructions, and here he was clear,
and he explicitly stated twice that their verdicts,
they were not to be swayed by prejudice.
-: Yeah, how long went by between the closings
and the jury returning the verdict,
or the instructions and the jury returning a verdict?
-: I'm sorry, I actually off the top of my head,
do not know the answer to that.
-: It's a very short trial, as far as murders go.
-: Yes, as far as murders go, it was.
-: Like a five day trial or something?
-: So I know that the sixth day, there were six days.
As far as the closing argument, I do have noted here
that the closing argument occurred on the sixth day.
-: And I'm just curious, 'cause it's in the same transcript,
the verdict and sentencing,
so I'm just trying to figure out if that's,
they didn't break it up into two transcripts
or two different days, right?
-: As far as like, the closing and the jury charge,
the final charge?
-: And the verdict and sentencing.
They're all in one transcript.
-: I don't that about the verdict, but I do know
that the closing and the final charge were one transcript.
-: It'll be in the record, but off the top of your head,
do you know how long the jury was out for?
-: I should know this, and I apologize.
-: We'll find it, it's easy to find.
-: The jury went out to begin deliberations at 10:35 a.m.
It's on page 62.
They came back at 4:00.
-: I see that I'm running out of time.
Are there any other questions?
Thank you, the Commonwealth would rest on its brief.