-: Okay. -: SJC-12489,
Commonwealth v. Steven D. West.
-: Okay, good morning. Attorney Crouch?
-: Yes. Good morning, Your Honors.
And may it please the court,
Andrew Crouch on behalf of Steven West,
who appeals from a single conviction of first-degree murder
out of the Worcester County Superior Court.
In the words of the two experts in the case, you know,
this was a very unusual case.
It was one with a means and method of murder
that was extraordinarily unusual.
And it was in that circumstance
in the case of compression asphyxia,
which finds very few parallels
in any other cases that I have located.
I'd like to begin by addressing the first issue in the case,
namely, the Commonwealth's failure to meet its burden
to prove by sufficient evidence
that the defendant committed the murder
by extreme atrocity and cruelty.
When we look, we raised several challenges
to this particular issue,
the first, relates to the issue of malice
and the familiar standard of malice includes
that in circumstances known to the defendant
a reasonable person would have created,
would have known the circumstances,
created a plain and strong likelihood
that death would follow.
And contrary to what the Commonwealth says
in its responsive brief, we're not arguing
that cases of compression asphyxia
can never meet the standard of extreme atrocity and cruelty
or never meet the standard of first-degree murder.
Indeed, there are plenty of cases
where somebody puts a knee on the back of an individual,
compressing their chest,
or puts a boot on somebody's neck.
Those are circumstances that would certainly
lead to a conviction of this sort.
This case, though, as both experts noted
was one that is just an exceedingly rare and unusual case.
And the evidence that we saw here
involved no evidence that anybody could point to
of a struggle, no defensive wounds,
nothing along those lines.
So there's nothing in those particular parts
of the circumstance to suggest that the defendant knew
in these circumstances that this particular sexual act
was going to lead to the result that occurred.
We also didn't have any particular evidence here-
-: Counsel, I'm not understanding that argument,
that the fact that there are no defensive wounds
on the victim, or on the defendant,
mean that he wouldn't know.
I don't follow
the logic in that. -: Sure.
Sure, so what I'm saying is there were no wounds, period,
on either of the two individuals save for one cut
on the victim's neck that suggests one way or another
that this was anything other than consensual.
And indeed the experts themselves said
this very well could have been consensual.
It's very well that this individual who was at least 400,
the defendant was at least 425 pounds
when he was weighed at the police station,
that was the ceiling to which that particular scale went to.
He could have been in excess of that,
that he would have had any idea
of what was happening to the individual,
the victim in this case,
who was 125 pounds and four-foot-nine.
-: But doesn't the bad act evidence, which you'll get to,
belie that, that there was a consent.
I mean, I understand if you line it up perfectly,
there could be evidence that it was consensual,
but it was an accident, which, and you got that instruction,
but you also take a look at the evidence
in a light most favorable to the Commonwealth,
and there could be an inference that this is an act of rape,
which certainly isn't consensual.
And if you look at the medical evidence,
there was evidence of, there could be evidence
that someone in this position, common sense,
would say would struggle.
So how do you get around the fact
that this could be based on the evidence in the light
most favorable to the Commonwealth for a sexual event?
-: Sure.
So to take the second part first,
the issue with regards to the struggle,
the evidence that an individual in this circumstance
would have struggled was actually fairly limited.
It was limited to, I think one or two statements
made by the defense expert on, I believe, cross-examination.
And what they talk about, you know, at that point
is that she would have essentially tried
to get this individual off of her,
but the person, the expert who gave that opinion
stated that in these circumstances,
they couldn't say for sure that Mr. West
would have even noticed it or that he might've taken it
as part of the role play
or the playing during the sexual activity.
So this wasn't a case where-
-: How's this different
from someone holding someone's head under water
where common sense would say -: Sure.
-: there'd be a struggle, but you know, maybe not?
-: I think they are light in day kind of cases.
And I think that is an excellent example
as our cases of manual strangulation
that we talk about in the brief.
And so to get into that particular issue,
those are cases where someone intentionally knows
that what they are doing at that moment,
they are grabbing somebody, say by the head
or the neck and pushing their head under water
unequivocally that is gonna meet the standards
of extreme atrocity and cruelty.
Another circumstance where somebody
puts their hands around someone's neck
or an item around their neck,
this court's cases have said unequivocally,
we don't have a big problem saying
that those cases meet the standard, and I agree with that.
Here, that's not what we have,
even in the best case scenario
with these particular experts,
with this bizarre and unusual set of circumstances,
they said he might not have known.
He might've thought that this was part of it.
And it occurred-
-: But if it's a rape, it's not part of it.
So I mean, the inference being that
if there's a sexual assault
and then the victim's airway is being compressed
isn't gonna just, is going to struggle
in some respects to get air, doesn't that,
in a light most favorable to the Commonwealth,
get them to third prong malice?
-: I think if we had circumstances that appear
in a lot of other cases where we have greater evidence
that indeed this was rape,
and the Commonwealth is basically relying, as you noted,
largely on that prior bad act evidence.
And let's go through the prior bad act evidence.
There are three sets-
-: I didn't mean to cut you off, Mr. Crouch,
on your other arguments and get into that unless we want to.
-: Sure.
So just to continue on just along these particular lines,
and this feeds also into the prior bad act evidence,
we just have through the expert testimony here
and through the forensic evidence, we have a large absence.
We just don't really know what happened
in that room in that time.
So what we're having to do
is sort of backfill the Commonwealth's case
with either prior bad act evidence
or some subsequent consciousness of guilt.
But when we look at what the experts themselves say
in this particular circumstance, we don't see it.
This is a complete contrast
to the manual strangulation cases where it's plain and clear
what the intent is.
It's plain and clear what that ultimate result is,
and that any reasonable person knows
that if you put somebody's head under water,
that's gonna lead to a plain and clear chance of death.
If you put your hands around someone's neck,
same sort of thing.
Here where the evidence is that these two individuals
may not have had a lot of experience
with this particular position,
that these circumstances are such that
the struggle could have occurred, according to the expert,
in a 30-second period of time, and then not thereafter,
or even at the outset, two minutes or so,
these are circumstances-
-: Along those lines, can you help me out?
What were the limits of the,
what were the time estimates,
the shortest amount, and the longest amount, please?
-: The shortest amount was 30 seconds.
And then the longest amount could have been,
and I believe that that was the Commonwealth's witness,
then the longest amount
was two to three-minute period of time,
though they both said that
depending on the level of compression
that that could have happened quicker.
So it's, again, based on these circumstances-
-: Best case view is 30 seconds, right?
-: Best case would be 30 seconds, otherwise,
but the Commonwealth's witness testifies,
offers no testimony whatsoever as to struggle
as to what the victim would have experienced
during that time.
It's only this very short a couple of sentences
in, I believe the-
-: So if we go to a light most favorable to the Commonwealth
and we say that someone's airway was being compressed
for three minutes,
you don't think that would equal some sort of a struggle?
-: Well, that, I mean, it very well could have,
but what I'm saying is here with this particular evidence
that we have from the experts, they don't say it.
The Commonwealth doesn't actually provide
that extra link in the process.
And all we have to go on is what the experts say,
which is that it could have at the outset.
Compression asphyxia, it can generally take
as long as two to three minutes,
but in a case with heavy compression,
such is as they put here,
the weight of 1 1/2 refrigerators on a person
and a person of this size, could have happened much quicker.
So it's not as if they're saying that three minutes,
three minutes is basically what happened.
They said that is what can happen in compression cases,
but in a case like this, we don't know.
It could have been sooner.
It could have been as little as 30 seconds.
-: Is your argument, basically,
that it relies on too much speculation?
-: There is a great deal of speculation in this case.
And I think that is a straightforward review
and point of view as to this particular evidence.
And so what happens is, in the absence of that,
in the absence of any other physical evidence
to give us an understanding of what happened,
'cause both of these experts testify,
they can't rule out that this was consensual.
And they're not saying in a theoretical sense.
They just don't, they literally don't know
in this particular case.
So my point is to get is this a case
where this might've been second-degree murder?
Is this a case of involuntary manslaughter?
Certainly under 33 is for the court to consider here.
But as I said, this is an incredibly unusual case,
and to contend that under reasonable circumstances,
a person, where we have no other no other cases
that I've located across the country
that involve facts, even remotely related to this.
It's not like a case of manual strangulation.
It's not like a case of putting somebody's head under water,
putting a knee on somebody's neck.
These are bizarre circumstances.
-: Your malice argument dovetails
into the atrocity of cruelty sufficiency,
correct, Mr. Crouch?
-: It does Your Honor. It does.
And so in getting into-
-: It's all the same argument.
And I don't mean to belittle it,
but it's all the same argument regarding speculation
in that would have effect a third prong malice
that goes into whether or not there'd be suffering, correct?
-: I think that's a- -: Which I guess is
the one Cunneen factor that would be at play here?
-: I think that is a very fair assessment, Your Honor.
And as you said, we, in terms of Cunneen factors,
we're not looking at the additional ones.
We're essentially looking at, you know, at this point,
the defendant's indifference to the suffering of the victim,
which, as we noted, may have taken
somewhere between 30 seconds and two to three minutes.
The experts say they can't say
that he would have even noticed it
or known it or thought it was anything
other than part of the sexual act.
This is not a case...
This case, as I said, is an outlier.
It's a very, and you know, sometimes we come here,
and say, this is an unusual case.
This is an unusual case.
I don't know that we're going to find another case
like this anywhere, at least I in my searches have not.
I don't know that one's been before,
and I've not found one for this court.
-: Counsel, you've said that this
is an unusual case several times,
but you don't finish that thought.
How does that relate to the inability
to find malice or the Cunneen factors?
-: So with respect to the unusualness of the case,
we look at the circumstances known to the defendant,
a reasonable person would have known
that this created a plain and likely, you know,
strong likelihood of death would follow.
Other cases, we can look at that and say, yeah,
of course, a reasonable person would have thought that
because first of all,
we have all these other cases that tell us that.
Here we don't.
This is just not something that I think was forced-
-: You don't think that a reasonable person would understand
that placing more than 400 pounds on a woman who weighs 125
might cause compression asphyxia?
-: In this circumstance, as the experts themselves said,
he may not have known that.
He may have thought that what was happening was-
-: No, but we're talking
about the reasonable person I thought?
-: Yes, I'm talking about reasonable person.
And as we try to judge what that is,
if he, you know, at his size does not or, sure,
does one understand that if you compress somebody down
in that position, that that could cause this?
Certainly.
During this circumstance in the circumstances known to him,
does he have any awareness that this is happening?
Have we ever seen another case where this has happened?
Not to my knowledge
-: Well, but Counsel, can you explain how this relates
to a jury finding this?
Because the jury heard all that, right?
-: The jury did.
-: And they concluded otherwise.
So what's wrong with the way with what they concluded?
Where's the error?
-: Sure.
So when we were looking at, you know,
there are the two components,
obviously there's the malice component,
which I don't think that the standard is
is that the jury found this,
so therefore it is we don't look at the sufficiency.
I think that we can look at this-
-: Well, we look at the sufficiency,
but where is this insufficient?
-: I think it's insufficient- -: How?
-: Sure.
I think it's insufficient
when the experts themselves are testifying
and when in the absence of any other physical evidence
that we are looking at this, and they're saying,
he may not have known that this was happening.
He didn't- -: So you'd be suggesting
we adopt a rule that if an expert is uncontradicted,
the jury has to accept their conclusion.
-: No, that is not, certainly not the standard
that I'm looking for.
I'm just saying in, and I don't mean to repeat myself,
but in the unusual circumstances of this case,
to sustain the high level of burden
with regards to a first-degree murder conviction
by extreme atrocity and cruelty,
finding the malice component here in these circumstances
I think goes against the weight of justice
and against what should be the standard here.
I'm not asking for a different type of standard.
I'm just saying under these circumstances,
I think that the Commonwealth did not meet that burden.
And in looking- -: Well, well, wait.
When you just talk
about going against the weight of justice,
that's a a different kind of argument than sufficient.
-: Yes.
Yes. So these two arguments,
I don't mean to dovetail them or fit them together,
but there is obviously a 33E component here,
but I think that with regards to trying to figure out
the malice component and what he
or what a reasonable person would have known,
we have to take into account
all of the different circumstances.
And there isn't evidence that this person,
unlike the manual strangulation cases
or putting somebody's head underwater
where somebody is thrashing,
where somebody is fighting back in that respect-
-: Attorney Crouch, I just wanna move you along
to some of your other arguments
'cause we understand the argument that you're making.
-: Sure.
-: Yes, so what else do you wanna tell us?
-: Certainly.
And so to talk about the prior bad act evidence here,
which I think is one of the other major, major issues,
there were three sets.
There was the vandalism, there was the debit card,
and there were the Google searches here.
And so what happens is
the judge allows in these particular parts of evidence,
and it's important to sort of contextualize
when these things occur.
The vandalism here moves into 10 months prior
to what the eventual victim's death.
And during that time, the victim herself doesn't believe
that this vandalism is the result
of the defendant's actions.
Indeed, tells the police that.
They believe that it's an ex-boyfriend,
and then they say,
basically she still continues to live there.
She socializes with her sister and her brother-in-law.
The defendant eventually moves out to move in with parents,
moves in with another friend, and then moves back in.
There isn't, and this kind of comes back
into the original argument,
there isn't a level of antipathy.
There isn't that we sometimes see in these other cases
where there's a history of bad actions
between these individuals.
Instead, what we're calling prior bad act evidence here
and what the Commonwealth is largely relying on
to sort of move this across the finish line
is this vandalism must have,
this vandalism was what showed that underlying malice,
that underlying antipathy that was there,
but the victim herself said she didn't fear this individual.
There wasn't what we have in some of these other cases.
The debit card, again, we make arguments in our brief
as to what the relevance or what the connection is
between some of these particular items
and what happened in the ultimate act.
This isn't where there's evidence that the defendant
was at some point violent towards the victim
at some point in the past, which is a prior bad act
that might make some sense for admission.
Instead, there's an errant use of a debit card
she has repaid and then, perhaps more relevant ,
we get to the Google searches, which again,
to come back to Justice Gaziano's point,
when we're trying to look at what provides evidence
that this was rape versus a consensual sexual episode,
we're looking at Google searches,
but these Google searches don't suggest, again,
the Commonwealth suggests that this sort of moves him along.
This shows the escalation in this.
And so at some point in three months
up to three months before the defendant, before this act,
before the victim's death,
there are these Google searches, but again,
these Google searches certainly show a sexual component,
but not, again, the level of violence
that we see in other cases,
the level of threat we see in other cases.
So we would suggest at the outset
that it was an abuse of discretion to admit these,
but more importantly, perhaps just the level of detail
and the level of evidence that was put on
by the Commonwealth in this case
with regards to the prior bad act evidence is problematic.
We have full days of testimony where multiple witnesses,
their sole purpose in the case is to testify at length
about these three limited prior bad acts.
We have 24 exhibits that come in,
and that's because we have an absence of evidence
as to what actually happened at the location.
And the experts testify that we don't know what happened
that it could have been consensual,
that the defendant could not have known.
-: Mr. Crouch, I appreciate that argument.
and not to, I don't wanna dismiss it, of course,
because you raised it well.
I just wanted to move you to the jury question
in your remaining time with-
-: Sure.
-: Of the issue.
What about this allowing?
The judge answered the jury
with respect to the causation component,
I think appropriately.
The problematic part is this allowing language,
which kind of implicates a failure to act.
Can you explain that to me please?
-: Certainly.
So we have some concerns.
-: How should she have answered the question?
-: So I think that, as the defense points out,
there are concerns about,
'cause the the jury clearly comes back and has a concern
and has that issue and saying,
what about causing versus allowing in terms of the killing?
And as he notes, jurors often confuse these elements.
These elements are inherently confusing,
and we deal with them every day and they're confusing.
For them, they seem to be fixated
on the central issue in the case,
which is, could he be found guilty
of first-degree murder by having had consensual sex
with this individual and then not done anything about it,
essentially not acted as the good Samaritan,
not acted in a role?
And we see other cases where an individual
more obviously and with intentionality causes somebody harm,
a stabbing or whatever, and that person is aspirating,
and then they don't do anything about it
and that person dies.
This is not-
-: Would that be captured
by the accident instruction approach?
-: Accidents can cover some of it.
But here, I think what the defense attorney was looking for
was a more direct answer, and instead what he got was,
"Just refer back to the instructions."
And I think that especially where the jury comes back
only an hour later with the verdict in this case,
I think there is a substantial level of confusion
and prejudice that comes from not addressing that issue
that no, simply allowing somebody to die
is not sufficient to, certainly not sufficient
to meet the level of first-degree murder.
And then just simply kind of ignoring the question
or pushing it off on prior instructions wasn't sufficient,
and so I think for the reasons
that the defense attorney stated at the time,
and for the reasons that we put in our brief,
I think that there the judge should have gone further
and in more directly answering that question.
-: Okay. Any further questions?
Thank you.
Andrew: Thank you.
-: Good morning, may it please the court,
Michelle King assistant district attorney
for the Commonwealth.
This court should affirm
the first-degree murder conviction of Steven West.
With regard to the malice issue,
defense counsel wants to make this-
-: Ms. King, could you start with the allowing instruction?
I think Mr. Crouch raises a good point
in that the judge answered part of the question
regarding causation,
but didn't answer the second part of the question,
or the first part of the question on a failure to act.
Was that error?
-: I'd be happy to address that first, Your Honor.
The jury question, as you know, came back as,
is causing and/or allowing someone's death to take place
synonymous with killing?
The judges response to the jury question
was actually very pointed.
She said, "Please refer to my instructions on first-degree
and second-degree murder."
But her second sentence said this,
"In order to prove any of these crimes,
the Commonwealth must prove beyond a reasonable doubt
that Steven West caused," underlined,
"the death of Alyssa Hayden."
So I would suggest to you
that by pointing the jurors in the direction of caused,
that excludes the question of allowing.
But more than that, if when she referred the jurors
back to her prior instructions,
those instructions were riddled with act language,
not omission language, but act language.
And this case was never about omission, Your Honor.
The Commonwealth's theory was that Steven West raped
and then asphyxiated the victim in this case.
The defendant wants to make this out as a case
of failure to act or omission,
but that jury instruction was never requested
by either party in the initial jury instructions.
No one involved in this case thought that this case
was a failure to act or omission case.
And the fact that the jury had that question,
I can't speculate as to why, but I would suggest to you
that the judge answered the question pointedly
when she addressed the causation issue,
and again, referring them back to the prior instructions
was more than sufficient to let them know
that it was an act that the defendant had to take place.
And if you looked at- -: Okay, thanks.
Thank you, Ms. King, for that answer.
Let me ask you, and I'll start where you want.
I'll next ask you where you wanted to start.
Is that
was this a third prong malice case
or a second prong malice case?
And then the next question will be,
what Cunneen factor was at play here?
So if you can answer those questions, please.
-: Yes, Your Honor.
This was a third prong malice case,
that the circumstances known to the defendant
or a reasonable person would have known, created a plain,
a strong likelihood that death would follow.
The evidence of that is actually quite plentiful.
Defense counsel wants to make this out to be
some sort of consensual act that occurred
between these two parties and agreed that neither expert
was able to rule that out as a possibility.
But when you look at evidence or expert witness testimony,
you don't look at that in a vacuum.
You look at all of the evidence as it came in.
And the evidence in this case
that this was not a consensual act
was actually quite plentiful.
You had the testimony of Alyssa Hayden, who,
I'm sorry, of Caitlin Hayden, who talked about,
initially when she met the defendant online,
her sister also, the victim also met the defendant.
And at that time her sister said, the victim said,
she had no physical attraction to the defendant whatsoever.
Fast forward to the time period
when Caitlin Hayden was married to the defendant
and the victim said to her
that he was fat and smelly and disgusting.
She, the victim, also told her best friend Phillip Harris
lots of things about the defendant.
She called him lardo.
She said that he was fat and disgusting.
She never exhibited any desire
to have sexual relations with him,
much less sexual relations
where she was tied up in this manner.
Also have testimony from Caitlin Hayden,
the wife of the defendant, who testified that
when she and the defendant had sexual relations,
she was mostly on top.
And the question came from the prosecutor,
"During the time that you had sexual relations with him,
did he ever put his weight on you?"
And she said, "No."
And I would suggest to you that that is very good evidence
that the defendant knew having sexual relations
in that way was a very bad idea
with someone who had the stature that his wife
and her twin sister had, both of them being petite.
He weighed in excess of 425 pounds.
The expert witness said
that was approximately a size of 1 1/2 refrigerators.
And I would suggest to you that he knew,
or most especially a reasonable person would know,
that putting that amount of weight
completely on a person of the size of the victim
would create a plain and strong likelihood
that death would follow.
You also have testimony from Nathaniel Steele,
who was the victim's boyfriend,
that during the course of that night,
they had been sexting back and forth.
And at some point in that texting conversation,
she said that she was afraid.
And so when you look at all of those things,
not in the vacuum of just the expert witnesses
who say they can't prove by the evidence
that it wasn't nonconsensual,
but you have to look at the entire picture.
And when you look at that entire picture,
it, along with, even if you don't, I mean,
even if you don't consider the issue of the vandalism
involved, and I would suggest to you
that the Google searches and the vandalism
add yet another layer of indication here
that this defendant had hostility towards the victim.
Regardless of whether she knew it was there or not,
we're looking at his intent, not her knowledge,
but his intent.
His intent was clear.
He wanted to do acts to his sister-in-law.
He looked up Google searches along those lines.
And a number of months earlier, eight months earlier,
he had vandalized her items and wrote some pretty horrific
and disgusting things.
And I would urge you to look at those exhibits
in the record appendix of 38 to 53.
They're quite graphic.
And it's a great indication of his intent.
-: And what's the Cunneen factor that you rely on?
-: Yes, Your Honor, there are two Cunneen factors.
The first one is degree of conscious suffering.
The expert witnesses here testified
that minimally it could have been 30 seconds.
It could have been up to three minutes
if there was complete compression,
but if there was not complete compression
of her mouth, nose, and chest, it could have been longer.
And if you look at the case of Commonwealth v. Mejia,
that's a case where the defendant stuffed some tights
in a young girl's throat.
It took three minutes,
according to the expert witness in that case,
for the asphyxiation.
And the court said, in that case,
that that three minutes of conscious suffering
was enough to meet the standard under Cunneen.
If you also look at Commonwealth v. Linton,
in that case, there was 30 seconds of constant
or near constant pressure on the victim's airway
until she lost consciousness,
and the court said that was sufficient
for conscious suffering.
In addition, there's a second Cunneen factor,
and that's indifference to the victim's suffering.
Again, if you look at Commonwealth v. Linton,
that case talked about, yes, there was 30 seconds,
rather 90 seconds of conscious suffering
on the part of the victim,
but there was also up to a six-minute period
where if CPR had have been initiated,
the victim could potentially have survived.
And in this case, we have both experts saying
there was a time period of up to 10 minutes.
If the defendant would have done something,
then the outcome could have been different
and not viewed in the lens
of whether or not it was a failure to act,
but viewed within the lens of whether or not the defendant
was just entirely indifferent to the fact that
Alyssa Kayden,
Hayden rather, was
lying there limp
is I would suggest to you goes to his indifference
to her suffering.
-: But would that apply in every homicide case,
the failure to render aid,
so it'd make that factor meaningless?
-: Yeah, not- -: So if someone
stabbed someone in the street, correct?
And then they don't call 911,
would that standard apply?
-: Well, not in all cases, Your Honor,
because I would suggest to you, in some cases,
it's obvious that a person is dead instantaneously.
And so the question of whether or not you render aid
would be meaningless if you knew that somebody was-
-: But that's what I'm getting at.
So, I mean, those are all,
where a fatal blow is struck and the person hasn't died yet,
I worry that if we extend that standard,
we would say that in every case
where the person doesn't die immediately,
a defendant could be charged with atrocity of cruelty
if they don't call the police or EMTs.
-: Well, two things, Your Honor, first,
it wouldn't be an extension
because this court has already said that that's a factor.
So this court wouldn't be extending it.
It would actually just be following prior precedent.
But secondly, there's also the Castillo case
that recently came down
that somewhat changed the Cunneen factors.
And so I would suggest to you,
that while that doesn't apply in this case,
it will apply going forward.
And that's something that this court would consider
when applying the factors.
-: Council, in this case,
did the defendant also take her phone?
Did he rely on that in terms of the indifference?
-: Yes, Your Honor.
That, in the case, more went to his consciousness of guilt
I think is how it was argued, but he did take her phone.
Again, although I don't think
that it was necessarily framed in that way
that you're suggesting in the trial court,
it was more framed as consciousness of guilt,
but I could see how it could be framed
in terms of indifferent to her suffering
because it took away all possibility,
if she were to recover,
that she could reach out for help herself.
With regard to the prior bad act evidence, Your Honor,
I first wanna start with the issue of ATM card being stolen
because
in the end- -: Actually,
before you get to that in your remaining time,
did the trial prosecutor commit an error
in saying that the victim never had sex that way
based upon the episodes of the boyfriend?
-: Your Honor, I would suggest to you
that while the word never may have been a little confusing
in that moment, if you look at the entire portion
of what the prosecutor is arguing in that context,
he's talking about the victim's sexual relationship
with Nathaniel Steele.
He's marshaling the evidence that Nathaniel Steele said
they never had sexual relations in that position.
They never had sexual relations
of that type in that home.
They certainly never had sexual relations of that type
when her one-year-old nephew was down the hallway.
And so he takes those three
pieces of testimony from Nathaniel Steele,
and he marshals them.
And he talks to the jurors about
that testimony and knowing that that's what
Alyssa Hayden's,
her sexual relationship looked like.
And so
I would suggest to you that he's not suggesting
that ever in her life
she never had sexual relations of that type.
Because again, if you look at how he raises it
in terms of marshaling that evidence,
I would suggest to you that it was proper,
but if not proper, it was one word
in a number of pages of closing argument.
The trial judge informed the jurors twice
that closing arguments are not evidence.
And I would suggest to you that that's sufficient
to overcome any small, if at all, misstatement
on the part of the prosecutor.
With regard to the prior bad evidence,
the prior bad acts testimony, Your Honor,
Your Honors, whether or not to allow
such testimonies in the sound discretion of the trial judge
and won't be overturned absent clear error,
the Commonwealth is entitled, Your Honors,
to present a full picture of the events
surrounding any incidents.
And here the evidence
of the vandalism
and the evidence of the defendant's Google searches
was highly probative, and there was very little risk
of unfair prejudice to the defendant.
With regard to the vandalism, Your Honors,
the vandalism shows defendant's hostility towards
the victim.
And if you look at,
if you look at
how the Commonwealth is allowed to show intent,
both experts testified that if you look at the evidence,
they were unable to determine
whether or not the defendant's actions were intentional.
And of course, that's largely true
in a lot of cases where you have to show intent,
but with regard to the vandalism
and with regard to the Google searches,
they were highly relevant to show
or to refute the defendant's assertions, rather,
that this was a consensual relationship
between he and Alyssa.
And it was highly relevant to show his state of mind
and hostility.
And so specifically-
-: What about the ATM stolen card?
Can you focus on that for a second?
-: Yes, Your Honor.
The ATM card was part and parcel of the vandalism,
but more importantly,
when the testimony of the ATM card
incident came out,
it actually didn't come out as prior bad act.
The testimony of Officer Griffin
and the testimony of Caitlin Hayden
actually demonstrated that it wasn't, in fact,
a bad act whatsoever.
It was actually a mistake on the part of the defendant.
So the jurors could not have viewed that as a prior bad act.
It was viewed as nothing more than a mistake.
And so even, if initially that was testimony
that should have been left out,
the way that it came in
had no negative connotation on the defendant whatsoever.
And so the jurors certainly could not have used that
as some negative implication towards the defendant.
-: So your position is that
it was actually irrelevant evidence,
but it didn't harm the defendant in any way.
-: Correct, Your Honor.
I also wanna point out
that when the evidence of the Google searches came in,
it was exhibit number 114,
that was allowed in without objection,
although that there was initially a motion in limine
with regard to the Google searches
and the vandalism,
that printout of the Google searches
came in without objection.
So I just wanted to point that out.
If there are no further questions, Your Honor,
I'll rely on my, Your Honors, I'll rely on my brief.
Budd: Okay. Thank you.
Bailiff: All rise.
Court is now adjourned.
God save the Commonwealth of Massachusetts.