-: SJC-12457, Commonwealth v. David T. Chalue.
Mr. Crouch, please.
-: Good morning, Your Honor.
May it please the court, Andrew Crouch,
on behalf of David Chalue,
who appeals from convictions
out of the Berkshire County Superior Court.
I'd like to begin today by addressing
the first issue in the brief,
namely that of the Tuey-Rodriguez errors
in the trial court.
Here, we raise three particular errors.
The first is that, as this court is well aware,
Tuey-Rodriguez instruction should only be given
when there is clear evidence of a deadlock.
And that did not occur here, by all accounts.
The trial judge said the jury was not deadlocked.
The Commonwealth acknowledges the jury was not deadlocked.
So we would suggest that that is one basis for error.
-: Mr. Crouch, can I just ask you before you go forward?
Are you talking about the instructions
that the judge gave to the individual juror,
or are you talking about the instruction
that was given to the full jury?
-: I'm talking about both in that circumstance,
because I think it is an error to give
both the individual instruction,
which is we would argue is the second error,
and then the full instructions, the third error,
but just any connection of those two.
None of them should have been given in this circumstance,
because there was no evidence of a deadlock.
-: Can we say that, I'm trying to figure out what made,
what the judge said to the individual juror,
a Tuey-Rodriguez instruction.
-: So moving to this, (audio garbled)-
-: I'm sorry, counsel, did we lose Justice Cypher?
Judge Budd: We sure did.
-: Yeah, I think she probably thought
it was the other case in which she's recused.
-: Let me- -: That's fine.
That's fine, I don't think she's recused from this one.
-: She's not.
She was on it a second.
Let's just pause for a second, and so we could text her.
-: I'll text her. -: Thank you.
She might've been disconnected.
Judge Budd: Possibly, possibly.
-: Okay, she can't get back, so she's trying, okay.
Okay, she's trying a different computer now.
She's trying to call in now.
-: Sorry about that. -: Thank you.
-: I couldn't connect anything.
-: All right, Justice Budd.
-: Could the timer be reset?
I don't remember what it was on, but-
-: Yeah, we put it back to 15, so I think we had stopped it.
-: But is it supposed to be 20?
-: I think just,
Mr. Kenneally stopped it when we interrupted.
-: No, no, I just mean,
is it supposed to be 20 instead of 15?
Mr. Kenneally: It started at 20.
-: I'm sorry. -: That's okay.
-: Time has just flown, okay.
Can I just go back to,
you said there were three times
when there was a mistake in Tuey-Rodriguez charge?
-: Sure, so to back up,
the overarching issue was that the Tuey-Rodriguez charges,
of which there were two Tuey-Rodriguez style charges
that we alleged were raised.
We don't think either of them should have been brought
in any circumstance because there was no deadlock.
That's the full tilt of that argument.
We then move to your question, Your Honor,
with respect to the Tuey-Rodriguez style charge
given to the loan juror.
And to address your honor's question,
here, what we have is,
and we will agree the Commonwealth, you know,
suggests that this is not a Tuey-Rodriguez charge,
and we would agree in the sense that it does not contain
the full language of either Rodriguez A or Rodriguez B.
And this court has said on many occasions
that court should not freestyle the language, but here,
what we have is we have the contours and the language
of some of Rodriguez without any of the protections,
without the guard rails.
So here, when the judge talks to the individual juror,
he does that in a way that he brings up,
he uses the phrasing twice,
"Keep an open mind and try to see
if you can come to a unanimous decision."
We would suggest that that language is very similar
to the language, while not exactly a Tuey-Rodriguez,
it's very close to it.
And really gets to some of the problem parts.
And what we cite a variety of cases from around the country
in both federal and certain state districts,
that talk about the serious dangers,
the serious dangerous terrain that happens
when a judge instructs an individual juror
in circumstances where the judge knows
that that juror is in a dissenting position,
is in a minority position here.
-: Was there an objection here?
-: There was an objection, there's a preserved.
-: And what should the, Mr. Crouch,
what should the judge have done?
-: So here, what we suggest,
and the objections could not have been more clear,
raise the phrasing Tuey-Rodriguez, raise the issues,
what the judge should have done here
is more along the lines of, as I said,
when courts know that there is a dissenting juror,
they have to tread incredibly carefully,
and they should not be talking about Tuey-Rodriguez
in the federal circuit Allen in any way.
Here, when the juror refused to go
or was balking at going back into the jury room,
which as the judge notes
is not a particularly unusual circumstance,
we cited all these federal and state cases.
It's not unusual, not unheard of, not unprecedented.
What the judge should have done in that circumstance
is more along the lines of what happened in Torres,
which is just simply inquiring as to whether or not
that juror could continue fairly deliberating in the case,
without any mention of keeping an open mind,
without any mention of trying
to come to a unanimous decision.
And that is the language what happened in Torres.
It did not happen here.
And it may have been the best intentions of the judge,
but that's why these cases from around the country
have made clear that when you know,
when the judge knows who that dissenting juror is,
you can't say things like this,
because the potential for coercion is just so substantial.
And that is essentially what happened here.
The judge- -: It's a weird circumstance.
I'm sorry, Justice Lowy, go ahead.
Justice Lowy: After you, please,
Justice Lenk. -: Thank you very much.
I was just gonna say, it's really weird circumstances here.
I don't know, if I were at trial court,
just taking your verdict.
And in the polling of the jury at the end of the trial,
one of the jurors just says,
"Well, no, I don't really think so."
What do you do with that?
I mean, that's unusual circumstance.
-: It's unusual, but again, not unprecedented.
I cite- -: But the cases that you cite,
those, I haven't read your cases, but I mean,
the cases that you cite are all in those circumstances.
-: In those circumstances,
but we, at least in this Commonwealth
have had at least one, which is Torres,
which is basically the same exact kind of circumstance
where the juror says, "No, I disagree, I'm not unanimous."
And so in that circumstance-
-: Well, you understand why unanimity is on the judge's mind?
Do you understand why that's on his mind?
-: I certainly do.
In that circumstance, what might be,
another better approach might be to put the jury out,
put the jury out, then bring them,
talk to the attorneys, bring them back in,
and just tell them all, hey, you're,
you know, can you fairly deliberate?
Get back, try it again, just treat it
like you normally would in the absence of a deadline.
We have plenty of case law,
plenty of language and instructions
for this type of circumstance,
though unusual as it is, not unprecedented, not unheard of.
And the judge himself seems to say,
yeah, this can happen.
And it doesn't seem phased by.
The problem is is that he treads over that line-
-: That's the question.
Is what was said perfect or close to perfect?
No.
But it doesn't have the most coercive aspect
of Tuey-Rodriguez,
which is, "Don't hesitate to re-examine your opinion
and change your mind if convinced it is erroneous.
Be ready to change your mind,
if you feel the evidence requires it."
It doesn't include that.
And then what it does say a couple of times is,
"Don't give up your beliefs if doing so,"
and I can't remember the exact language,
but "don't give up your beliefs
unless you're convinced otherwise."
But Justice Lenk's point is well taken.
This is a disaster of nobody's design.
And she doesn't just say not guilty when polled,
she says she won't go back into the jury room.
You've got to get her back in the jury room.
And what he does is he tells him to keep an open mind twice
and doesn't use the most coercive aspects
of Tuey-Rodriguez.
Look, this was not the right thing to do.
It wasn't perfect, but it's not a judge like in Zabinski,
reading Tuey-Rodriguez to the juror
before patting their back into the jury room.
-: But instead, what we have here
is the judge says these things,
but also doesn't include any of the protective language
that you hear in Tuey-Rodriguez and Allen, which tells them,
tells her not only that she has to listen to her jurors
with an open, fellow jurors with an open mind,
but they need to listen to her.
Instead, we're missing that protective guard rail.
And so this doesn't, if this was just once,
perhaps I might be more inclined to that perspective,
but this happens then twice when the judge
then pulls the full jury and then again,
tells them with the open mind.
And when we look at the case law,
the case law suggests that we need,
that this court needs to look at this
through the lens of that minority juror
whose identity is now known.
The judge knows it, the juror knows that the judge knows it,
the other fellow jurors know it.
And so in that circumstance,
I would suggest that the first instance of the instruction
is sufficient error for a reversal, but if nothing else,
the second time when when the juror is then told,
part of a group who knows that this person
is the minority juror, that they are upset with
because they've thrown down
their pads and paper and their pens,
they have mumbled and grumbled,
there are people crying, they're upset.
What happens then is she cannot help
but feel picked out on essentially that, you know,
selected out as the person who's being told,
"Keep an open mind for your fellow jurors,"
while they're not being told as the majority
that they need to consider a minority opinion.
-: Weren't they told that the second time?
-: They were told the second time about the open mind.
They were not told that the majority
should consider the,
if you're going to give the Tuey charge,
the reason that we don't allow judges to freestyle
is because there are dangers here,
and the protective language of Tuey and Allen
was not employed here, and that's a problem.
So we would suggest that these two points,
when we look at the case law from around the country,
we know that this is dangerous territory.
The judge tread into it in circumstances
that were certainly understandable, but was told right away,
it was a Tuey error, then repeated it the next day,
we would suggest that that is a basis for reversible error.
-: What did the counsel tell him?
What did the defense counsel tell him
about it being a Tuey error?
-: He literally said it was,
he just gave a Tuey-Rodriguez charge.
It was very, very clear.
-: That's not very helpful,
'cause it wasn't a Tuey-Rodriguez charge.
-: Well, he basically said
it was a two Rodriguez style charge,
which our argument is that it was.
It contained the language that basically told
an individual juror outside of the realm of the other jurors
that that juror had to consider
their fellow jurors' opinions with an open mind
in an attempt to come to a unanimous verdict,
where the other jurors were not told that.
-: You're sort of skipping, "Keep an open mind, listen again.
It's important that you
not surrender your feelings if convinced."
And then earlier on, he says,
"No one is suggesting that you surrender those feelings
or your honestly held feelings
about the facts of this case."
Again, it's not how anyone would choreograph it
with time to think it through.
-: I agree with that.
And I certainly understand that there was
some additional language couched onto it,
but I cite cases such as,
I think it's State versus Ginter out of Utah,
that says in these circumstances,
the inherent potential for coercion is so great
that even mild protective language like that
is insufficient to take this out of the realm of error.
-: Does he give the same instruction
to the individual as he gives to the group?
And does that mitigate concerns
that he's pressuring the individual juror?
-: The language changes a little bit
when he's talking to the full jury, and he's,
essentially, what he's talking about there
is he's again talking about,
more about removing emotions
and trying to reach a unanimous verdict.
And then it says, "Please try to be patient
and respectful of the views of your fellow jurors
as you move towards that end."
But you know, the cases that we cite tend to say,
first of all, what makes this case unusual
is this is given not once, but it's given twice.
So even if it is not full Tuey charge,
the minority juror has been told twice
to respect the views of the fellow jurors.
And it is not made explicit, like in the Tuey charge
that the majority must consider the views of the minority.
And so that's where we think there is an error.
I would like to, with the court's agreement,
move to one other issue in the case,
specifically the error that occurred
with the allowance of substantial, irrelevant,
and prejudicial evidence.
Specifically, I'd like to start with what this court
will probably address as the Veiovis evidence.
And that is both the anatomical drawings
and the evidence with regards to the photos of weapons.
This court has twice addressed this issue
in both the co-defendant's appeals
and upheld the judge's decision to admit this evidence here.
I would note that while these cases
derive from the same set of facts,
they were indeed tried separately.
And the facts of this case as brought out
by the Commonwealth at trial
are meaningfully and substantially different from that,
that was elicited in the co-defendants cases.
With regards to, and I can be fairly brief on this point,
with regards to the photos of the weapons,
this court found error in both
the Veiovis and Hall decisions
with the court's admission of the evidence
of the studded baseball bat.
That evidence was admitted here,
but unlike in the cases of Veiovis and Hall,
the forensic testimony here was not the same.
Instead, what they said here
was there was no testimony as to the sickle.
The testimony that the hatchets and the various knives
could not have been used as implements
either in the offense or in the dismemberment.
So we would suggest that it's not just the bat,
it goes beyond that.
So I would urge the court to take a specific look
at that testimony and how it compares
to those other two cases.
So I would suggest that the emissions
of those items was error.
But I think the more troubling situation
is clearly with the admission of the anatomical drawings.
And we reproduced these in our record appendix,
and they are disturbing.
We have illustrator-
-: Again, Mr. Crouch, I don't, you're too subtle right now.
I don't get how this is any different
than the two other cases where this issue
has been decided against the co-defendant.
So explain- -: Let me be as-
-: More precisely why you say it's different-
-: Let me be as explicit as I can.
The evidence was different in this trial,
meaningfully different than it was in the other two cases.
In both the Hall and Veiovis decisions
with regards to the anatomical drawings,
this court sets specifically the critical piece of evidence,
was that Hall said,
one of the guys really enjoyed torturing
and cutting the victims up.
That evidence does not appear in our transcripts.
That evidence did not appear in this case.
So this is meaningfully different.
-: But there is evidence in this case
that the victims were cut up
and disposed of in bits and pieces, right?
-: It certainly was,
but we don't just allow evidence
that somebody had a passing interest in dismemberment,
just because part of the case is related to that.
Instead, it has to be much more specific.
Otherwise this is propensity evidence,
it's character evidence.
And so the problem here is this court was very clear
that this critical piece of language
that Hall said to another witness
was the key linchpin reason,
specifically, it's a key linchpin reason
that that evidence was admitted at the,
was found to be admissible by this court.
It does not exist here.
So one of the three legs
on which that evidence was admitted has fallen,
and I would suggest the table falls
with that lack of critical piece.
-: If I could ask you, so Chief Justice Gants
talks about that, I think, in context of state of mind, but-
-: I don't think it was state, it was not state of mind.
It was- -: Subject to identity.
-: It was, it had to do with identity, exactly right.
-: I understand that,
but that's how we get to identity is through state of mind.
-: Yes, through that.
Well, he got to, I think that they were,
in my reading of it, there were three
independent basis for admission of that evidence.
The first one was identity.
And that was where there was some disagreement
between the dissent and the majority with regards to that,
but specifically, that was the critical piece of evidence,
and it doesn't exist in this case.
I see my time's about to expire.
With the court's permission, I'd like to continue.
-: Please. -: Okay.
That critical piece, that critical leg is missing.
Then we moved to the issue of state of mind of Veiovis.
This court in previous arguments
has discussed some of these particular issues,
but there is no, Veiovis's state of mind here,
there isn't any connection to Chalue.
There is no suggestion that Chalue had any idea,
unlike Paul, that Veiovis had this interest.
You know, one of the reasons that this court talks,
affirmed it in the Hall case
was because Hall was the one who made that statement,
as Justice Lowy is noting.
He said that one of the guys really enjoyed
torturing and cutting the victims up,
and that person was Veiovis.
Here, Chalue is not present during any of those statements.
That evidence doesn't come out at trial court.
There's no suggestion whatsoever that Chalue
has any knowledge that Veiovis has this interest.
It's on the second floor of Veiovis's house,
a place where Chalue has only been to the house once.
By all accounts, he doesn't go upstairs.
The people who do go upstairs there
say they didn't even see this evidence up on the wall.
So there is no suggestion that he has
any kind of shared of mind,
shared state of mind or understanding
that Veiovis has an interest in this.
And the third, so that leaves,
I would suggest only one remaining leg
on which to admit this evidence.
And as the court said that the critical piece of evidence
that admitted, that allowed this evidence
to be admitted was the Hall statement.
I don't think it can stand in the absence of that.
But with that respect to the last one,
it is the motive for the killings to silence Glasser
and the inexplicable nature of crime.
You know, I think from the reading of the case law
and both Hall and Veiovis's decisions,
that is not a sufficient independent basis,
in the absence of the other two bases,
to allow this to continue to stand.
As Justice Lowy said in his dissent,
there were additional reasons to,
what come off this, frequently says,
motive is not something they need to prove,
and that's true.
Here, there were sufficient other bases in the record
to demonstrate why this case, you know,
why the actions here were not inexplicably.
Gruesome as they certainly were, you know,
whether it's for transportation purposes,
to hide evidence, or out of rage,
'cause at this trial, nearly two weeks of the evidence
goes by without Chalue's name even being said,
because it is just a recitation
of all the grievances Hall has with Glasser
and all of the myriad ways that he attempts
to get back at him or stop him from testifying.
Chalue is not involved in any of that.
Instead, what happens here is the admission of this,
sure, just purely on the basis of trying to explain
to the jury why the dismemberment happened.
I don't think it's a sufficient reason to justify
what is clearly prejudicial evidence.
As I said, we reproduce all that in the record appendix.
It is very gruesome.
It is disturbing stuff.
And it has no connection to the defendant here.
And accordingly, we would ask this court
to reverse the defendant's convictions
and ask that the court grant a new trial.
-: Thank you, Mr. Crouch.
Mr. Capeless.
-: Good morning, Your Honors.
May it please the court.
Berkshire special assistant district attorney
David Capeless appearing on behalf of the Commonwealth.
I was lead trial counsel in this case.
In addressing the matter of the colloquy,
as I would describe it with the sole juror,
the circumstances here are very important.
First, as defense counsel has pointed out,
there has been no indication,
not only of any deadlock up to this point,
but more importantly, no indication of any difficulty
among the jurors or any particular juror.
After the jury has been sent back out when one juror,
and it's important for the court to note
that when the individual polling was done,
this was the first juror who was asked.
The judge properly stopped polling the jury at that point,
so there wouldn't be any waiting into discovering
how the rest of the jury felt about it.
So it's a presumption at this point
to talk of this juror as a sole dissenting juror.
-: Can I just point there, Mr. Capeless.
I thought that there was pretty much a general impression
that all the other jurors just sort of throwing
their things about and discuss with this juror.
-: At this point, no. -: No?
When did that happen? -: There was,
you had some jurors that were rolling their eyes
kind of thing, frustrating.
They're being sent back out,
they'd already deliberated three full days.
So that was somewhat normal, so they went out.
But the judges then informed that Ager,
'cause that's what the record reflects,
Ager is refusing to go back into the courtroom.
It does turn out that it is that juror number one,
but he's informed of this.
He has to do something about this.
The jury cannot resume and continue their deliberations
until that juror is in the jury room.
The judge wisely chose not to bring the juror back in
and inquire what's the problem.
Again, doesn't wanna get into what's going on
with the deliberative process
or finding out where the jury stand.
And so he speaks to the juror, as was pointed out.
He doesn't simply say, listen to others.
He makes the important statements to the jurors,
and I'll quote, "If you have any honestly held feelings
about the facts of this case,
no one is suggesting that you surrender those feelings,"
and repeats it again at the end.
And again, it's important that you not surrender
your feelings if convinced.
Both the beginning and the end
of what the judge says to that juror is reassuring.
-: I'm sorry, Mr. Capeless.
Justice Lenk?
-: I think we've lost another.
-: I think she just got bounced out.
-: Was it something I said?
-: It's one of those days with the wind
and the internet connections, I think.
-: I'll wait.
-: Let me try it again.
Let's hold on for a sec.
She's attempted to do so
and she's gonna call in if it fails.
Hold on.
-: Here I am. -: Outstanding.
-: Different (indistinct), but I had to use my iPad.
I don't know what happened with the other one.
I don't know.
Its core technology's really very,
very surprising to me always.
-: We have everybody? -: I'll show you my picture.
-: Okay, Mr. Capeless, please.
-: To repeat, what's important here
is that the trial judge in addressing juror number one,
at the beginning and at the end,
talks to her about her honestly held feelings
and holding onto them.
All of the cases that deal with this Tuey-Rodriguez
situation and talk about this difficulties
constantly brings up the concept of coercion.
And I would suggest to this court
that nothing of what Judge Kinder
spoke to this juror about was in any way coercive.
It didn't in any way say that a verdict was necessary.
Didn't single her out and talk to her
in terms of her being a hold out or even a minority juror.
None of that was here.
On the contrary, I would suggest that what the judge said
was reassuring to her because-
-: Mr. Capeless, if I could interrupt you for a moment.
As I said, it was a tough situation
and a difficult situation to say the perfect thing,
but you can't single out one juror at the sidebar and say,
"It's important that you listen
to your fellow jurors with an open mind
and see if you can come to a unanimous decision."
That's just not the type of thing we want
A judge telling a jury individually,
nevermind a clearly hold out juror.
-: Well, as I pointed out earlier,
the context here is important.
Judge Kinder did not decide,
well, I'm gonna bring this juror in, I'm gonna talk to her.
He was informed that she would not go into the jury room,
so he had to deal with this situation.
It wasn't situation for him to speak to the entire jury.
He wanted to see if there was a situation
that he could resolve.
And I think he did it in the most prudent way
while avoiding pitfalls here.
And as I would say-
-: It wasn't the most prudent way.
He shouldn't have said to her,
"Listen to your fellow jurors with an open mind,
see if you can come to a unanimous decision,"
when it's the one hold out juror.
Again, I understand.
It's a very difficult situation.
She won't go in the jury room.
He has to talk to her.
He asked to find out if she's able to continue deliberating.
He just can't take that aspect,
and it's only one part of it,
that aspect of Tuey-Rodriguez,
and be telling the hold out juror,
"See if you can reach a unanimous verdict,
listen to your fellow jurors."
Because the only way to hear that is, come on,
you know, you've got to see if you can change your mind.
-: Well, again, as I emphasized, though,
he opens and closes by telling her,
"Do not give up your consciously held opinions."
And I wanna emphasize that to you.
That's what he says to her.
And then- -: But he surrounds
the comment, he surrounds that comment with,
"It's important that you not surrender
your feelings if convinced."
I understand that.
And I understand that that mitigates,
but he shouldn't have said that part of Tuey-Rodriguez.
We have to look, we have to, at some point, get to,
that that was error to say that,
to the individual hold out juror.
It's what to do with it that's the issue.
-: Well, I think it can't be singled out that way
'cause it's the whole context.
And he didn't simply dismiss her after speaking to her.
He asked her, "Can you do that?"
And she simply said, "Yes."
And then the juror goes out.
The jury continues to deliberate for more than three hours.
And at six o'clock,
the judge asked them, "What do you wanna do?
Do you wanna continue deliberating
or come back in the morning?"
And they say they wanna come back in the morning.
And that's what they do.
Now, what happens is when they come back into the courtroom,
and the judge read instructions about, you know,
don't read anything about it and so forth,
and sends them out, when they leave,
a number of jurors express their frustration.
Facial expressions and the like,
and at least one of them throws down
a juror notebook on the chair.
And so after they're gone,
defense counsel requested the judge
deal with that situation.
So in the morning, Judge Kinder does address them.
He addressed them solely about the matter of emotions,
not having anything to do
with their deliberations and their verdict.
This is in no way a Tuey-Rodriguez charge.
And in fact, it's important that he says,
when he talks about, I urge that you follow,
what he refers to as I've already instructed you,
going back to his general instructions,
that instruction and remove emotion from your deliberations
in an effort to reach a unanimous verdict,
if you can do so in good conscience.
One of the problems that's been found
with some of the Tuey-Rodriguez type of language
is telling a juror you have to come to a verdict,
that it's necessary.
And here, he was just saying how you can possibly
come to a verdict if in good conscience, you do it.
And he was solely talking about emotion.
I think this characterization of this
as being a a Tuey-Rodriguez charges is way out of line.
-: Mr. Capeless.
Mr. Capeless? -: Yes.
-: Mr. Crouch says there was an alternative
the first time around,
which was just to bring her in and say,
"Can you deliberate," and send her back.
What is your response to that?
Less would have been more here.
-: It may have been a better way to do it.
That's if she had said yes.
What I'm pointing out is, having said to her twice,
"Don't give up your convictions
if they're firmly held and you believe in them."
That he has reassured her,
that is why she was able to say, "Yes, I can go back in."
-: Yeah. I'm just wondering if Judge Kinder,
he doesn't want her to talk,
which we don't want her to reveal any of the deliberations.
So he, in order to sort of short circuit any conversation,
he doesn't sort of do that open-ended, you know,
can you deliberate questions?
Is that your sense?
Is that why he didn't do the less approach?
'Cause she would have to sort of respond?
-: Yes, I think so, and I think part of it
was he wanted to reassure her
that there was nothing wrong with her situation.
She was acting as a juror should.
This was her feeling and she expressed it,
and that she should go forward, and he did, to say,
would it have been better just to say,
"Can you go back in?" and she said "Yes."
but we don't know if that would have happened.
She having only asked that, she might've said, "No, I can't.
I'm not gonna go back and face those people."
She might not have felt the reassurance.
Talking, again, now, moving to the question
about the apartment of the co-defendant of Veiovis.
Again, it has been pointed out twice,
this court has rejected that argument.
Admittedly, David Casey did not.
He omitted to add to Adam Hall's statements to him
about one of them really enjoyed getting into it.
At the same time, we also have statements by this defendant,
Chalue, to fellow inmates,
describing the gruesomeness that he participated in,
particularly the idea of cutting them up
and letting them sit for a while
so that it wouldn't be so messy
when they dealt with them later to bag them up,
so that you do have this connection
to this obsession with the dismemberment.
And I think that, again, it was just one prong,
and it goes to Veiovis's attraction,
which is a peculiar attraction.
It's not simply somebody who has a gun or likes guns
in a case in which there was a shooting.
This was quite peculiar
as this court has pointed out before.
I think also that defense counsel mis-characterizes
the expert testimony about the dismemberments,
where the Commonwealth's expert
said that not all the dismemberments
were exactly like as in those diagrams,
but said the (indistinct) were very similar to them.
And so it was not a rejection of them.
Instead, as to some of them, yes,
they could not have been caused by hatchets.
But overall, those were the type of implements
that were utilized in this case.
-: Mr. Capeless, Chief Justice Gants
really stresses that one of the guys
really enjoyed chopping the victim up
was key identity evidence because of state of mind.
And are we missing one of the stools of the chair
in his analysis when we don't have Paul's statement,
one of the guys really enjoy chopping the victims up?
-: Well, as I said, that that statement
was not part of David Casey's testimony in this case.
-: That's my point.
But that was an important aspect
of the majority holding in Veiovis.
-: Right, but what I'm pointing out
is that what was in this case
that was not in the other two cases
were statements by this defendant himself
about the dismemberment and the gruesome aspect of it,
and pointing out how the three of them
had participated in it.
And so that I think that, again, you don't have one aspect,
you don't have what's in the other,
but you do have something in a very similar vein
that is present here that wasn't present
in the other two cases.
As to the- -: Can you talk
of the Aryan Brotherhood? -: Yes.
Just about to address that, Your Honor.
First, the Commonwealth would state
that the references to the Aryan Brotherhood
was credibility evidence, not character evidence.
First, there were only three witnesses at the Commonwealth
who mentioned the Aryan Brotherhood,
despite the fact that any number
of the Commonwealth witnesses could have,
because the defendant David Chalue
made it very clear to anyone he came in contact with
that he was a member of the Aryan Brotherhood.
As for David Casey, he testified-
-: I'm sorry, Mr. Capeless, I think we have
Justice Lenk gone again. -: Okay.
-: Stop the timer.
Here we go.
-: Justice Lenk is back. -: She is.
Justice Lenk: I am.
I'm so sorry, Mr. Capeless.
I'm very sorry.
-: No need to apologize.
As I said, this was credibility evidence.
A major part of the defense in this case
was the credibility of David Casey,
Jethro Kempton, and Jeffrey Cashman.
Casey had talked about Hall's statements to him,
admitting to the killing and included Davey,
who was identified as Chalue.
And the other two were inmates
who testified about statements,
describing how the kidnappings and murders
had taken place to them.
The defense was that these three were not credible
in absent of their evidence,
the Commonwealth had a weak circumstantial case.
Much was made of their credibility
on opening and in closing.
I would point out that in fact,
in defense counsel's closing,
he mentioned the Aryan Brotherhood six times.
But in my closing, I mentioned it just once for Casey.
It was important, because Hall had introduced the defendant
Chalue as being a member of the Aryan Brotherhood.
And when asked about why it was
that he was not so forthcoming about talking
about not only what everything Hall had told him,
but particularly his own participation
in the burial of the remains of the victims,
that he said that he was afraid of retaliation
by both the Hell's Angels and the Aryan Brotherhood.
So this was important testimony
as far as context for his reluctance.
As far as the other two inmates,
their credibility was called into question
saying they just made this up.
They got some idea about what he was charged with,
and they told him.
So the context of the Aryan Brotherhood,
these other two being either Kempton, a member,
and Cashman being a wannabe,
of how it was they came to talk with the defendant.
Secondly, the fact that as members or potential members,
they would be people that he would trust enough
to tell them about this.
Why would he- -: Mr. Capeless,
if I can interrupt you again for a moment.
So putting aside, this is not impeachment,
this is evidence that's bolstering.
And you're supposed to, with limited exceptions,
bolster after impeach.
But put that aside because it's referenced
in the opening statement and that's perhaps understandable.
But Cashman testifies,
to become a member of the Aryan Brotherhood,
he directed to do a hit
either to hurt somebody or kill somebody.
That's not responding to a credibility issue.
Woman: Call from Concord, MA.
-: Go on, I'm sorry.
-: Still going? -: Yes.
-: Please. -: That relates
to part of their circumstances later,
where Chalue finds out that Cashman
has offered to cooperate with the Commonwealth.
And he not only tells Kempton, but he writes out the note
in which he says that he's now in the hat.
And this was part of Cashman's explaining
of what in the hat meant
so that it was going into part of the whole thing.
And this was consciousness of guilt
on the part of Chalue saying this guy's a rat.
He's now turned and telling what he knows
about what I did and what I told him.
So that is why that came in.
It was in fact relevant to other testimony
that occurred there.
The judge took every precaution here
to limit what had happened.
-: Well, he didn't take every precaution
in the United States versus Able,
which is a United States Supreme Court case.
The Aryan Brotherhood language,
which is critical to impeach defense witnesses.
The way it's referred to in the trial court
is a secret prison organization.
And then they talk about their goals
and their horrible goals.
So he didn't take every precaution.
-: All right.
I think he took sufficient precautions to limit it.
The potential jury pool was asked individually
whether involvement with the Hell's Angels
or the Aryan Brotherhood could any way affect them
from reaching a proper verdict.
And all of the jurors who were seated
said that that would not.
The judge had a pretrial hearing
about what kind of testimony was being offered
by the Commonwealth and limited it strictly
to these three witnesses,
and that was related strictly to what was relevant
to the testimony and how they came to give it.
Each time that the Aryan Brotherhood
was brought up during the testimony,
the judge gave a limiting instruction
and then finally gave a limiting,
a further limiting instruction
in the full general instructions at the end of the case.
So I think that this was dealt properly.
The question is, was this unduly prejudicial?
And the Commonwealth's position is it was not.
It was relevant to the case and it was dealt with in,
I would say, sufficiently limiting fashion
that it did not cause undue prejudice to this defendant.
-: All right, can we go back to the illustrations,
because it seems like for this defendant,
it's fairly attenuated.
I get that for Veiovis, they were in his apartment.
I get that for Hall,
he's the one who made reference to Veiovis wanting to,
or being interested in cutting people up.
But what's the connection
between the illustrations and this defendant?
-: Well, again, there's no direct connection
to Adam Hall as there is with Chalue himself.
The major part of this-
-: But I'm just, I'm sorry, I'm looking at the, that,
I thought that one of the points was that Hall said
that one of the guys really enjoyed
torturing and cutting the victims up.
-: Yes, and- -: I think we lost
Justice Lenk.
I don't know if you wanna just finish this question,
Justice Budd, unless you want further inquiry?
Justice Budd, I'm sorry,
do you want further inquiry of Mr. Capeless?
-: Yeah, I do.
I wanna hear the answer.
-: So let's pause and wait until Justice Lenk return?
-: Sure.
-: She's trying to get back on.
-: Is there any possibility we could just shift her
to a cell phone and have one of us call her,
and plug her in that way?
Justice Gaziano?
-: Yeah, let me try to call her in.
-: Because I have a feeling she's gonna keep
going in and out if she's having this problem.
Here she is again.
-: I'm so sorry.
I am here.
I don't know what keeps happening.
It just stops.
I don't know what happened.
So I'm sorry, I'm very sorry to everybody.
-: I think Justice Budd was asking
Mr Caseless- -: It's about the,
just, what's the, I get the connection
between Veiovis and the anatomical drawings.
I'm trying to understand the connection
between those drawings and this defendant.
-: The drawings themselves don't have
to have connection to this defendant,
but they do have to have a connection
to the commission of the crimes
by the three of them together.
And it's the same thing with Hall.
As I pointed out to Justice Lowy before
when he asked the question, yes,
that statement by Hall got omitted by Casey when he did it.
But we have statements by Chalue
that weren't in the other two cases
that I would suggest replacing
when he talked about the fact that they waited
until the bodies had cooled and the blood had drained
so that they could deal with him.
Obviously, Mr. Chalue was not a pathologist,
much less a doctor.
And so on the involvement that somebody who knew something
about dismemberment was obviously a key issue here.
Justice Budd: Thank you.
-: Any further questions to Mr. Capeless?
-: No, thank you.
-: All right, thank you, counsel.
-: Thank you, Your Honors.