-: SJC-12649
Commonwealth versus Dax Gibson.
Judge: Okay, Attorney O'Brien.
-: Good morning, Your Honors.
Jennifer O'Brien for the defendant on appeal, Dax Gibson.
If you think of this trial as a card game,
here the defendant's attorney was holding an ace
the whole time, and he didn't play it,
not because he didn't think he needed it,
not because he had better hands to play,
but because he didn't know that he was holding it.
And this ace-in-the-hole that I'm talking about,
this card, is the 12/16 phone call
from Dax Gibson's apartment to D, the
other person, the co-defendant in this case.
Now, this case was very much tried as
if the
shooting occurred anywhere between 12 and 12:45.
The Commonwealth concedes this in their closing argument.
Says that "the reasonable inference was that
"this time the shooting occurred between 12:30 and 12:45,"
they say, and they acknowledge Amanda Compton,
who testifies that
"the crime occurred at 12 noon."
Justice Lowy: If I could ask you on the timeline
just putting aside for the moment,
because I get your point that it's a landline,
but put aside for the moment there might be all sorts
of strategic reasons.
We are really close to the time of the murder.
You don't wanna put in evidence set
that alleged joint ventures are in communication.
But let's just put that aside for the moment.
The timeline
is, I guess, this would be an understatement
fluid here at trial.
You've got the neighbor,
Laaksonen saying, "12:46."
He sees the vehicle across the street.
You've got
Phillinger saying that the defendant and Brown arrived
at her apartment 1:00 to 1:30.
You've got
the victim's girlfriend, Mejia,
talking about
not knowing where the victim was at
1:20,
and so,
you've got the deceased, the alleged victim, found at 2:12.
I certainly understand the other times
that you just explained, -: Yes.
-: and I have them
in the timeline, so
the question is, putting aside that whether it's strategic
not to put this evidence in.
-: Yes. -: Isn't the timeline
so amorphous and mushy that it's hard to say that
this is gonna create
a substantial likelihood? -: I don't believe it is,
Your honor, I mean, there are two timelines,
I think, essentially.
There's Cendy Mejia, and there's Amanda Compton,
the neighbor, and they both said that this occurred at noon.
Amanda actually looks at, Amanda Compton,
actually looks at a clock.
She's the only individual who looks at a clock.
And, to clarify, she didn't hear gunshots.
She heard loud bangs
that were loud enough to make her toddler,
I think it was three-years-old, begin to cry.
And she heard wrestling, and she heard
people running down the stairs that sounded
like a herd of elephants.
So that is exactly at 12.
And then, you have Cendy, who was
awake at the time, actually.
Someone had come to the door at 10, 10:30,
presumably to buy drugs off of the victim.
And she testified that "it occurred around noon."
She had somewhere to be, actually, at 12:00.
They were gonna go to her mother's or something.
So that's one timeline, so to speak.
The second is that this could have happened
between 12:30 and 12:45 which Gary, the neighbor,
says it ended around 12:46.
He sees them take off.
And Tiffany states that "it was between 1:00 and 1:30
that they showed up.
And if it was 1:00,
that fits
the timeline that we are arguing here.
It fits Gary's timeline because they didn't,
they immediately went to
Mechanic Street, which was Tiffany's residence,
but they did some cleanup.
-: That helps, I understand, but she didn't say 1:00.
She said 1:00 to 1:30. -: She said 1:00 to 1:30,
yes. -: 1:00 to 1:30,
so that's sort of my point is that
it's hard to nail down a timeline
in this case. -: Well, even if it was 1:15
that they showed up, there was no testimony as to
how long it took to clean everything up.
I mean, they
got rid of the gun.
There was blood on the backseat.
They used napkins to wipe it up and a T-shirt.
They threw the napkins and the T-shirt away.
There was a conversation in the stairway
where Mr. Gibson was saying, "Michele's a witness,"
and they discussed her not talking to anyone,
and all this happened before they show up at Tiffany's
apartment, so I think it's important,
the people who actually saw part of this crime
or heard part of this crime are Amanda Compton,
Cendy Mejia, and Gary, the neighbor.
Those three individuals, if one is to believe
any one of those individuals, make it impossible
for Mr. Gibson to have committed the crime.
Justice Lowy: All right, can I ask you just
to make sure I understand
the factual predicate here? -: Yes.
-: When the perpetrator comes to the door,
is there just one assault?
Is there just
one victim and one assault? -: Yes.
Justice Lowy: Okay, and the predicate felonies
for felony murder, is my memory right,
that it's armed assault in the dwelling and home invasion?
-: Yes. -: So if there's only
one assault for the predicate felonies,
why isn't there a merger problem for the Commonwealth?
-: [Attorney O'Brien] Well, there is, and I did argue that,
and I think the Commonwealth conceded that.
Justice Lowy: No, that's a merger problem.
That's not a merger problem.
That's just that the one of the felonies goes away
because it's the-- -: Oh,
it's a (indistinct) felony. -: It's a sentencing issue.
-: Oh, okay.
I think,
well,
there should be, Your Honor, there, and I know,
I think it's the Donahue case,
there should be
a problem with,
I think you're right on the money. (laughs)
I don't know that I argued that, but
I argued, instead, that it was duplicative on
the third argument that he made.
But yes there should be an argument with that.
You know, I think, -: So what happens?
Those are the only two factual predicates
for the felony murder, right? -: Yes.
-: Okay. -: Yes.
-: All right. -: So I think it's important
to note that, you know, Michele says, Michele Kelly says
that "this occurred in the middle of the day" and
that "the whole thing happened between 12:00 and 2:00."
I think it's important to her testimony is not that
the shooting occurred between 12:00 and 2:00,
that the whole thing, by the time they go to pick him up,
is between 12:00 and 2:00.
So,
it really,
it was argued by defense counsel
in his closing argument.
He asked the jury to consider the timeline in the case.
It's undisputed that the crime occurred
between at 12 noon.
You heard that from Cendy.
If you freeze time, where is Dax Gibson?
He's at 365 Elm Street in Gardner.
Alicia testified that "it's a 20 to 35-minute ride
"from Gardner to Fitchburg."
And Michele testified that "it's a 20-minute ride."
Even if it's only a 20-minute ride,
it gives him approximately
nine minutes to commit the crime.
That's if he was in the car at the same time
that he hung up the phone.
Justice Gaziano: Rather than asking you to recollect
a complicated legal doctrine,
like merger
in Commonwealth versus Gunter, (Attorney O'Brien laughs)
on the fly,
would you like an opportunity to file
a supplemental memorandum?
-: With respect to that, yes? -: A supplemental briefing
with respect to merger? -: Thank you.
Thank you. (laughs)
I appreciate that. -: You're welcome.
-: So,
and again
the first argument is, he was armed
with this 12:16 call.
He didn't know about it.
I don't know why the Commonwealth is stating in the brief
that it's their brief, that it's a tactical decision,
it was reasonable.
It wasn't tactical at all.
I think he's clear that, you know, he states that
"if there was a phone, you know, phone records
"that supported the defendant's case,
"he it was an oversight."
It wasn't a tactical decision not to use them.
With respect to the
phone calls from Michele Kelly,
I concede that certainly, if that was the only issue here,
that she testified repeatedly that she wasn't allowed
to use her phone,
and there was evidence that she did use her phone,
that that isn't sufficient to give the defendant
a new trial, but when you take that
in combination with the other arguments
with the phone records, I think that there is.
With respect to
the third issue with the phone records,
the time that it's silent, D's phone, he uses his phone.
There's 18 pages of phone records for a 24-hour period.
He's literally on the phone every minute of the day.
The biggest gap that he wasn't on the phone was
this 21 minutes between 12:22
and 12:43.
And I know the Commonwealth argues that
"he was
"not using his phone because he was waiting for Mr. Gibson
"to commit that crime."
If the crime occurred between 12:22 and 12:43,
that's perfect for the defendant
because he couldn't have been there
because he was making a call 20 to 35 minutes away at 12:16.
So if-- -: How do we know that that was
the defendant making that call?
-: [Attorney O'Brien] Well, there was testimony from
Alicia and Ashley that
"Mr.
"Gibson was on the phone before
"they left or before he left."
Alicia testified that "she didn't even know D.
"There was no one else in the house, which is why
"they had to take the child with them
when they went to Fitchburg
because Dax wasn't available to watch the child."
So there was nobody else in the house.
There was no testimony or evidence that
anybody at that household, other than Dax Gibson, knew D.
So, by process of elimination,
he was the only one who could have made the call.
There was no testimony that anyone else was
in the residence.
And one of the witnesses, Ashley, testified that
"they actually left before Dax Gibson,
"and that Dax Gibson was on the phone
"when she left, giving somebody directions."
So, you know, there was testimony.
If the Commonwealth argues that this is cumulative,
there certainly was testimony by Ashley and Alicia that
"the defendant was at home at around noon
"or approximately thereafter."
But there was no evidence that he was there at 12:16.
And, obviously, you can see
the defense counsel's predicament where he's arguing that
you should believe Ashley and Alicia,
who testified that "Dax was at the house around 12,"
but don't believe them
when they say that "Dax confessed the crime to them."
So, obviously, having
evidence that isn't subjected to some accredibility problem
would be key for the defendant.
Justice Lowy: Isn't there some evidence that Ashley
didn't leave with the defendant?
-: [Attorney O'Brien] Alicia testified that
"the defendant left before them."
She said "she got there at 12.
"The defendant was on the phone,"
and I think she said "he left about 10 minutes later."
Ashley testified, and I put this in my reply brief,
the exact transcript portion of it,
that "she went downstairs, and she was leaving,
"and Dax was still on the phone."
So she actually left before Dax,
leaving him in the apartment alone.
With respect to
the 22-minute time, I'm sorry, the 21-minute timeframe
where the D's phone is silent,
I think the Commonwealth in their brief has also said that
"one can reasonably infer that the defendant
"and D
"weren't communicating" or "he wasn't on the phone
"because him and the defendant were talking
"about this crime."
There is testimony.
This contradicts Michele's testimony,
and Michele testifies, and this is
volume 3-55, that "while
"the defendant Dax Gibson was in the car,
"and he and D were discussing this robbery,
"D was still using his phone"
and that "he was
"agitated," and I'm paraphrasing a little bit,
but "he was all amped up and mad
"about what the victim had done to him."
So he was still using his phone
while D was in the car, so that eliminates
any argument that he wasn't using the phone
because the defendant was in the car with him.
And here, I think
there's one other additional, actually, point
that I wanted to make, which isn't in my brief.
I was reading the transcripts again,
and with the timeline,
Michele testifies that "after they pick up the defendant,
"she believes that they probably,"
and this is volume three page 189, 190,
"they probably stopped for gas."
There was testimony that "D would pay her in $5 increments
"to get gas for driving him around,
"and that after this round trip, you know,
"40-minute ride, that she needed gas again."
So they probably stopped for gas.
So if that is true, and if the jurors believe that,
that sets the timeline even more in favor of the defendant,
if he left after the 12:16 phone call,
and this crime was committed by 12:46 PM.
I think,
like I said, the Commonwealth has conceded to
one of the arguments, and I think
them conceding to that makes
the second to the last argument moot.
With respect to
my second argument with the joint venture instruction,
I know that I have the uphill battle here,
obviously, with Zanetti,
and hopefully you got my point in the argument.
It's not so much that there wasn't proof of a joint venture.
Certainly, that's the way the Commonwealth tried this case.
It was just that, if they believed one witness, Cendy Mejia,
and that the defendant wasn't there at all,
that
it allowed the jury to find the defendant guilty
of something that wasn't supported by the evidence.
And I don't think the law has changed
with respect to that. -: I think that's what
Zanetti also said.
We just look at sufficiency on these theories,
correct? -: Yes, yes.
And in here, the phone calls certainly made a difference.
The evidence here was far from overwhelming.
There was no, even though they said Michele testified that
"the defendant had bled all over the backseat of the car,"
there was none of his DNA.
There was certainly evidence of a third party culprit here.
It could, you know, "there was a Wiz" that
people testified that "the defendant was introduced
"as Wiz matched the description of,"
that Gary said "the person that was coming out
"of the house after the shooting had a hat on
"with dreadlocks or braids," and that's, Wiz has that.
The defendant here was bald.
The witnesses were inconsistent.
They were all over the place, certainly.
And even the Commonwealth acknowledged that
in their closing argument that,
you know, you have to just believe some of what they said
because they conflicted with one another.
They conflicted with themselves, prior things.
They said "they were addicted to drugs."
They had reason to blame the defendant and shield
D from this because he was their drug supplier.
And I know, again, the Commonwealth actually used
the timeline in their closing argument
to argue the extreme atrocity and cruelty
saying, "the best we can take from this evidence
"from Gary, 12:30, 12:45, when the incident occurs
"and people are running away,
"but medical doesn't get there till 12:14."
And again, there was testimony that
"the victim was long deceased by 12:14."
-: They-- -: 2:14.
-: I'm sorry, 2:14, thank you.
The argument was that "because the victim was laying there
"for almost two hours,
"that the golden hour
"to save him was lost," and that was something
that was argued by the Commonwealth.
So again, the Commonwealth and the defense attorney here
argued this timeline.
They were a little bit off.
The defendant obviously was arguing that "this occurred
"at 12 noon," but the Commonwealth was arguing
"it probably happened between 12:30 and 12:45."
And that's the way that this case was tried.
So to have these phone calls,
the phone records into evidence was extremely important
to the defendant's case.
Unless there's any other questions, I'll rest in my brief.
Thank you. -: Thank you.
Okay, Attorney Herron.
-: Good morning, may I please the court, Donna Marie Herron
on behalf of the Commonwealth.
I just wanna quickly, although I'm not prepared for this,
I want to direct to the merger issue this court
to Commonwealth v. Fredette.
which I believe this court did discuss the merger issue,
and I'm not (laughs), sorry,
haven't read it in a while, but I did recently argue it
in Commonwealth v. Connors in the appeals court.
And it's the holding, I believe, in the, again,
I haven't read it in a while, so if I
misconstrue it, I apologize.
I believe, if there's sufficient evidence
for the underlying felony, and here's,
it would be home invasion and armed assault
in a dwelling that there is no merger issue.
Justice Gaziano: It depends on the felony.
So some felonies,
robberies, rape,
we say there's no merger issue.
-: Okay, I haven't read -: Not so much,
-: it in a while, so I'll -: Yeah, yeah.
That's why you shouldn't do -: have to--
-: this off the top of
-: Yes. (laughs) -: your head. (laughs)
-: I just wanted to direct the court to that opinion.
-: It depends on the nature of the felony.
Attorney Herron: Yes, I will reread that
when I get back to my office, but thank you very much.
The motion judge here properly denied the defendant's motion
for a new trial, where the defendant failed to establish
that trial counsel rendered ineffective assistance.
And, I apologize.
I have the wrong standard in my brief
or that the error created a substantial likelihood
of a miscarriage of justice.
I had the old
standard under there, and I apologize in my brief.
Here, trial counsel said in his affidavit that
"he was had concerns about establishing the phone records
"and who made the phone calls," and I think that is
one valid concern he had.
Ashley testified indirect that she, "the defendant left
"before her and Ms.
"Francis, Alicia, left."
Ms. Moore, Francis testifies that "the defendant left
"before them."
On cross-examination, Alicia is, I mean, I'm sorry,
Ashley is cross-examined with her statement with the police,
and then she acknowledges, "she told the police
"that she left before the defendant left."
So there is conflicting testimony there
as to who left first.
I would suggest that he recognized that there would be
an issue authenticating who made the telephone call
and that what numbers belonged to who,
granted that Ashley could testify that
what her home phone number was but there'd be no one
to testify as to
Mr. Brown's phone number. -: I appreciate
that this testimony that Francis said
"that Ashley left first. -: Yes.
-: And that's helpful to you, I understand.
But as you put in your brief, basically, of a comment
in your brief about the problem here is not the law.
The problem here is the facts
and that it's a very strong case for the Commonwealth.
So
it might not be great evidence,
but this is huge alibi evidence
when there's not much to work with.
So doesn't that augment the importance
of the defendant putting this in?
Attorney Herron: I don't believe so, Your Honor,
because the probative value I don't think
was very overwhelming or underwhelming giving the nature
of the timeline established at trial is
has been pointed out earlier, there was no
this definitely occurred at this time,
so, therefore, that phone call will be pivotive
if he can even establish that the defendant
is the one making that phone call.
Justice Lowy: And that's obviously a good point.
I read that in your brief and mentioned it.
It's a good point.
But I think, on the other hand though,
you get a neighbor who basically,
if I'm remembering correctly, not only looks at the clock
but is comparing what she heard
to a herd of elephants. -: Yes.
-: And that
time is around noon. -: Around noon.
Justice Lowy: So the, again, putting this in context,
it might not be much, but it's really
the most probative evidence the defendant has
consistent with his theory of the case.
-: I would disagree, Your Honor, particularly
where Ms. Compton specifically asked,
"Did you hit gunshots?"
And she says, "No, I did not hear gunshots.
"What I heard was a herd of elephants
"coming down the stairs."
We have Ms. Mejia who says "around noon," around,
no one says specifically "it occurred
"specifically at this time."
And then we have the neighbor who I think is
the more pivotal one 'cause he seemed very confident
on his time, which is 12:46 PM,
that he sees, and it's very telling what he sees.
He sees a blue car outside his, he calls it
"his neighbor's house," he sees a woman there,
and he sees a male there who he describes,
who I would suggest is similar to Mr. Brown,
although he does not identify Mr. Brown.
He then says "he sees his neighbor running out of the house,
"and then he sees a second gentleman dressed
"in a black mask running into the car
"and the car taking off."
The phone call does not undermine that
because we hear testimony that "it takes about 20 minutes
"to get to the house, and that is well within
"the time period to commit this murder."
So the Commonwealth, which suggests, given that there was
a fluid time period and there's no precise timing
of the murder or this phone call,
the probative value, as the motion judge found,
was not significant.
And most importantly, a strong defense was put on
for the defendant and defense counsel strenuously argue
based on even
Ms. Francis's and,
sorry, Ashley's testimony
that "he couldn't have committed this
"because he leaned in that it was Ms. Mejia said
"it occurred at noon,
"and he was still at the house in Gardner."
So the strong alibi was argued to the jury,
and they rejected it, but giving the overwhelming evidence
of the defendant's guilt, which there was,
there was five witnesses who testified
with the, either saw the defendant commit this crime
or was in the car or he confessed to.
So there was overwhelming evidence of the defendant's guilt.
So I would suggest even if this court were to find
that defense counsel should have put it in,
it did not create a substantial likelihood
of a miscarriage of justice.
I would suggest the claim that impeaching Ms. Kelly
with her cell phone records lacks merit
because she was thoroughly impeached at trial.
Defense counsel even called witnesses to try to impeach her.
And, as this court knows, failure to impeach
does not constitute an effective assistance per se.
I also would suggest Mr. Brown's cell phone records,
there was an obvious reason not to introduce it,
which is would be it was a double-edged sword as I think
is what the motion judge found, and I think she was correct
because the Commonwealth would've argued
he's with Mr. Gibson.
That is why he's not using his cell phone.
He's calling him, telling him, "Come outside, let's go."
And then, there's no phone calls,
which would support the Commonwealth's theory
that they're together at this point, so I think there was
a obvious reason as to why
defense counsel would not wanna use that.
Moving on to the second issue,
this judge followed your directive
in Commonwealth v. Zanetti to a T.
He gave the model and jury instructions
as this court has dictated,
and he gave the general verdict,
which this court in Zanetti said should be given,
and there's no chance that the jury convicted
the defendant on a theory where there was no evidence.
If the jury believed the defendant's theory,
which was, "I was not there, it was not me,
"I had nothing to do with this," the jury would've come back
with a not guilty verdict.
The only verdict that the joint venture went to was
that they were both there,
and as the Commonwealth strenuously argued,
the defendant was the shooter.
So there is no risk that the jury came back with a verdict
that wasn't supported by the evidence.
As you noted, Justice Gaziano, this court will look
to substantiate the evidence to determine
whether there was sufficient evidence,
which I would suggest there was overwhelming evidence
of the defendant's guilt here.
And as this court in Zanetti outlined,
the reason why it's no longer required
for the Commonwealth to establish who's the shooter
and principle or who's the accessory
is because you're equally liable under the law.
And so that's why this court found that,
and I think it was Justice Gants who wrote the decision
that the general verdict slip should be given
in the jury instruction which was given,
that the Commonwealth had to prove beyond a reasonable doubt
that the defendant knowingly participated in the commission
of the crime alone or with others with the intent
to commit that offense.
That was the instruction given at jury.
There was no error,
and there is no reason to overturn Zanetti.
If there's no further questions,
the Commonwealth would rest on its brief.