-: SJC-12721 Commonwealth versus Omar Bonner.
-: Okay, Attorney Shaw, when you're ready.
-: Chief Justice Budd, and may it please the court,
my name is Robert Shaw.
I'm privileged to appear today on behalf of Omar Bonner.
I'd like to begin with the primary sufficiency issue
by addressing what the foundational facts are
from which one either can
or cannot appropriately draw inferences,
and that is an exercise that is necessary,
because not withstanding the fact that we have a video
that we can all look at, the government has filed a brief
with what I assert are significant inaccuracies
with respect to what that video shows,
to say nothing of what happened subsequently
at the Bonner residence, and my intention is
to highlight those inaccuracies.
So what are the foundational facts?
Omar Bonner is one in a group of friends
that include Robertson, Watson and Denton.
On December 13th, 2013, they all attend a performance
at Kay's Oasis Club in Mattapan.
There's nothing in the evidence which indicates
anything unusual about Mr. Bonner's decision to attend
that performance, nor is there any indication
that he was motivated by anything other than the desire
to see the artist that was performing.
Now, there is, among this group of friends,
the fact of communication by text or calls
prior to this performance on the 12th, the 11th,
the 10th, and so on, just as there was
just about every single day in December and November
prior to the performance.
These could have been texts, they could have been calls.
They could have been group texts
that Mr. Bonner was included in,
but which he was not paying any attention to.
We have no way of knowing,
because the evidence doesn't indicate that.
But there is no indication whatsoever that there is
any pattern of communication,
that the communication deviated in any way
as the performance approached,
or that the communication had anything to do
with a shooting or the planning of a shooting.
Now, Mr. Bonner was photographed at the club.
He's dressed in bright red and white Christmas colors.
He's got a large scarf, a hat with a pom pom on it.
He's conspicuous.
He's standing on the edge of the floor.
One of the photos, he's got a big smile on his face.
Now, in some of the photos, you can see Robertson,
and Robertson is sitting far behind him.
He's against a wall sitting in a chair, as far back
as one can be, and in a couple of the photos,
you can see that Robertson is covering his face
with a scarf, but there's no indication
that Mr. Bonner was aware of that, and there's no indication
that Mr. Bonner understood why that was happening.
Now, when the show ends, the victim, who like Bonner,
attended with a larger group, leaves his car, and then
leaves to go get his car, and then he returns
to the Havelock area, and according to the evidence,
Watson, Robertson, and Denton also leave when the show ends,
and they get their respective cars.
Watson is in an MKX.
Denton is in a RAV4.
The Commonwealth presented evidence that three minutes
and 46 seconds before the shooting, the MKX
and the RAV4 are recorded going down Havelock Street,
and turning right on Bluehill Avenue.
Now when Robertson, Watson, and Denton leave the show,
they do so without Omar Bonner.
How do you know that?
You know that, because after a period of time passes,
Mr. Bonner is trying to get into contact with Denton,
and he calls him, and Denton doesn't answer.
He then tries to call Watson, Watson doesn't answer.
Now, three to four minutes after Watson
and Denton are recorded driving down Havelock
and turning right on Bluehill Avenue,
that's when the victim is recorded on the camera
parking his car on Havelock Street.
That's when we see the first shooter,
allegedly Robertson, running in, firing shots.
Then we see the MKX driving up, allegedly Watson,
picking him up, driving down Havelock,
turning right on Bluehill Avenue, and leaving.
Now, what does the video show at that point?
47 seconds after that first shot is fired by Robertson,
the second shooter, allegedly Denton,
consistent with his having driven the RAV4
down Havelock and turned right on Bluehill Avenue,
and either parked on Bluehill, or parked on Baird Street,
which is the next street over,
can be seen making his way back on foot.
You look in the upper right-hand corner of that video,
you're going to see him running
across Havelock towards Kay's Oasis.
That is at 1:53:43.
If you look in the top right hand corner
of the video at 1:53:43.
At 1:54:07, having made his way down Havelock,
you can see him cutting in between two cars.
He then crosses the street, runs toward the back
of the victim's car, where he clears his firearm
and he shoots.
Now, after Denton can be seen running across the top
of the video, in the top right-hand corner,
you can see a large figure who's walking
from Kay's Oasis, the opposite side.
He turns right on Havelock, and he starts walking down.
That's at 1:53:49.
You have to look at the timestamp at the top of the video.
There's the AM, and on the immediate side,
the right side of the M, you're going to see
this figure at 1:53:49, turning and walking down.
You almost see the dark figure sort of walk down
Havelock Street.
That is allegedly the fourth person, Bonner,
and at some point, he steps off the sidewalk,
and he starts walking toward where Denton is.
That's when Denton begins firing.
Denton, at that point, he's firing down towards the ground,
and he's firing at the victim-
-: Excuse me, Mr. Shaw.
Can I please, go back to what you're doing,
but let me ask you this critical question:
at the time the shots are fired, where is Mr. Bonner?
-: And I'm going to get to that right now, Your Honor.
So, so it, that's exactly right.
So he begins walking over.
I just wanted to point out that when he fires,
he's firing towards the ground,
and the victim is behind the car.
-: If you're getting there, continue.
-: And so he wouldn't have been,
the victim would not have been visible
to Mr. Bonner at that point.
So now getting to exactly what you're talking about.
Throughout the video, Bonner is walking.
He's several steps behind Denton, he's not running with him.
At timestamp 1:54:05,
which is when Denton is first trying to shoot,
and then he starts clearing his firearm,
Bonner is still on the far sidewalk, and he's walking.
He's actually behind some parked cars
at that point still, okay?
Justice Gaziano: So you're, he's across the street?
-: Right, now, when the first shot actually goes off,
Bonner has started walking across the street.
He's about midway across the street.
And what happened, that happens at 1:54:11,
timestamp 1:54:11, and Bonner jumps back at that point,
the shots that Denton fires last for two seconds,
very quick, so as soon as he jumps back,
those shots essentially end,
and then he continues approaching the car.
He walks around the rear of the car, he looks,
and in the words of Ian Simpson, who's looking out a window,
he just kicks a lifeless body and then runs.
Justice Gaziano: Well, there's, there's a comment too.
-: Well, there's the comment, Your Honor,
if that could, I think, according to the testimony,
it's not really clear that Bonner made that comment,
but yes, there was that.
-: All right, so give me that
in a light most favorable to the Commonwealth.
What is the comment made?
-: Well, there was that comment,
and that comment was expressing a negative
sentiment toward the victim, that's right.
But sticking with the video for just, for just a moment.
-: Okay, Could you just,
I'm actually going to come back to that, but.
-: [Atty Robert Shaw] Okay.
-: So, we've got him either across the street,
or the middle of the street
at the time the shots are fired.
-: He's not across the street.
He's middle of the street.
-: Okay, we got him at the middle of the street?
-: Yes.
-: All right,
and then the victim is disabled,
or is deceased, and we have the kick?
-: [Atty Robert Shaw] Right.
-: How much time, how much time elapses
between the shots and the kick?
-: I think, because the entire time, Bonner is approaching,
so it's a matter of, you know, I don't know,
that he started clearing his gun at 1:54:05.
He's still on the sidewalk.
When the first shot goes off, he started crossing the street
at that point, he jumps back.
Then he continues walking, and he looks behind the vehicle.
So it's not that much, but he's in the process
of approaching during that time.
-: Okay, and then, and then timeframe wise,
when is the statement made?
-: Well, the statement is made, according to Simpson,
who obviously can't see anybody's mouth,
but the statement is made at about the time
that the kick occurs.
Justice Gaziano: About the time of the kick?
-: Yes.
Justice Gaziano: Okay.
-: Now, that's what the video shows, and I just want to point
out, it does not depict as the government-
-: Can you, just finish the video,
your movie for a little further?
-: [Atty Robert Shaw] Sure.
-: Do they then get in a car together and leave?
-: [Atty Robert Shaw] Well, um-
-: And is that, is there evidence that indicates,
okay, they were separate, but then they depart together?
-: Well, Denton runs, and then Bonner runs
after him after that.
-: And do they then end up in the same car, or what happens?
-: Well, and then Denton is driving the car.
Bonner is not driving the car, but he gets in the car,
and they ended up going to the Bonner residence.
And mind you, that they went to the show together,
along with these other individuals.
-: And at the, at the Bonner residence,
and explain this to us.
Does the allegation that the defendant is involved
in the cover-up without concealment of the murder weapon?
-: There's the allegation that once they're back
on his property, he gets out of the car.
There is an undercover detective who's dressed
in plain clothes, jumps out of a Jeep,
not the typical kind of undercover car,
and points a gun at him, and he runs.
Then the-
-: I'm more concerned about the murder weapon, not-
-: Yes, and the assertion is that when he runs,
he then tosses, so the allegation of the government is
that he grabbed the weapon to get rid of it,
and he tossed it at his house.
Now, what's inaccurate about what the government is telling
you is that he did not toss that into a yard
that's directly across.
The firearm is found in 102 Lewiston Street,
which is a yard which is to the left, okay?
And Denton, when Denton ran, Denton did not run,
as the government tells you, down to Edwardson Street,
and then go on Edwardson Street.
Denton runs across the front of the Bonner house,
he turns left, he runs on the property line in between,
and you can see through the exhibit,
there's a black, his black cap is right there.
He runs in between, and then he cuts through some yards,
including 102 Lewiston, which takes you
directly to 104 Lewiston driveway, where he was arrested,
and the gun is found in the 102 Lewiston yard.
It is not right over from where Bonner ran.
Bonner-
-: Be that as it may, I mean, in a light most favorable,
we have the defendant engaged in concealment
of the crime, correct?
-: [Atty Robert Shaw] The weapon.
Justice Gaziano: Right, the weapon.
-: Similar to the Simpkins case, yes, you could say that.
-: Well, IE. the murder weapon.
-: [Atty Robert Shaw] Yes, you could say that.
Justice Gaziano: And I don't want you to,
are you done with your factual?
-: Well, I wanna, I just wanna point out to be clear,
the video does not depict, as the government says,
Bonner casually walking towards the gunman
and standing next to him.
It doesn't show him standing and looking
at the victim during the shooting.
It, the video doesn't show that he remained at the scene
when the gun jammed, and Denton cleared it,
and then Denton fired.
-: But we, we're gonna watch the,
I haven't had a chance, and of course,
we're going to watch the video.
-: [Atty Robert Shaw] Okay, so-
Justice Gaziano: Very, very carefully,
and whether or not he's standing there,
he's at the middle of the street,
we're going to be able to see that.
-: Yeah, and there are other, there are other assertions
that, you know, he got out, he was trying
to prevent cars and things of that sort, not true.
-: With respect to our case law, and we have
the mere presence cases, and we have, you know,
ability to render assistance if needed, that line of cases.
Where does your case line up, when we have,
and what are we to do with the kick in the head
and the dirty MF statement as evidence,
ill will towards the victim?
-: Right, it's expressing a negative sentiment
toward the victim.
Now, in our case law, and Gonzales is a great case,
where the court said, in a very pertinent case,
that you can infer lethal intent
from the defendant's actions, but those actions,
by their very nature, must demonstrate lethal intent.
We don't have that here.
As repulsive or disgusting as it may be to the court
that someone would kick somebody who is dead,
we don't have that here.
That's not lethal intent, okay?
You can infer, Gonzalez says this, lethal intent
from statements that are made by a defendant,
but those statements need to convey the intention
to carry out a killing.
In the statements where those inferences have been drawn,
they are statements of intention.
"I'm going to kill you," or statements of planning,
"I'm going to kill you."
We don't have that here.
As, again, repulsive as it may be to the court,
we have a statement after the fact.
Mr. Bonner was never in a position to assist
in the killing of this individual.
-: As far as drawing the line between accessory
after the fact, if we get, you know, your position might be
that hiding the murder weapon, in the light most favorable,
gets you to accessory after the fact, but not shared intent
or rendering assistance.
Where do we draw those lines between helping someone out
to carry the, to fulfill the crime, i.e., get rid
of the weapon, and shared intent that the crime occur?
-: And I think this goes, really to what the trial judge did,
when, I think the court is aware from the record
that the trial judge was very troubled
about the murder charge against Bonner,
given the evidence and his conduct in this case.
-: What are your best cases, Mr. Shaw, with regard
to someone who's convicted of murder,
but should have been convicted of accessory after the fact?
-: Yes, well, I think Simpkins is a case
that the court should definitely be looking at.
Mandile is a case that the court should be looking at,
and of course, the recent case of Commonwealth
versus Lopez is a very important case to be looking at.
These are all cases where there is a group of individuals,
and there is some sort of assistance and connection
to the crime, but insufficient evidence.
Now what the trial judge did here, is the trial judge,
despite saying she was very troubled by this charge
against Bonner, she ended up taking a leap in favor
of the government at the end of the case,
and she did that relying on Costa,
which is nothing like this case,
and she did that engaging in circular reasoning.
Her reasoning was, well, there was presence,
and the presence may have been encouraging,
and therefore we have presence and encouragement.
That's not what Costa said.
Costa said, as some other cases have said,
that where there is evidence of an agreement
to be present at a killing, the presence may be encouraging.
Now that is very different than saying, well,
there's presence, and because there's presence,
we can infer an agreement, and because we're inferring
an agreement, we can say that
the agreement may have been encouraging.
-: Counsel, let me just ask you about this because,
I still look at this and say you're parsing
all of this stuff, and looking at it in isolation,
and the jury's looking at it as the totality of all of this.
You have folks that communicate together in the days
and weeks leading up to it, and I understand,
I get your point, that we don't know what the content
of those communications were.
But you have a situation where the decedent gets
10 shots into him, the car leaves.
Now you say, Bonner leaves, but somehow you say
that he has no idea where his friends are,
but yet he comes back to right where the other gentleman,
where Denton is, right?
He leaves, and just, he knows to go down to,
or at least maybe not knows, but the fact that,
the evidence is he leaves the club, and goes
to where Denton just happens to be,
who he didn't have any contact with, right?
So then he's in the middle of the street.
There are more shots from Denton.
He's there in the middle of the street.
He says, dirty MF, and kicks the victim.
Why is it unreasonable for the jury
to infer a shared intent?
I mean, quite clearly, if somebody says dirty MF,
it doesn't seem to suggest that this is a certainly
a random person that he just happens upon,
that he doesn't recognize.
I mean, it wasn't, isn't that a reasonable inference?
-: Okay, Your Honor, thank you, and there's
a misunderstanding there, so I want to address it,
beginning first with the communication.
I just, I understand your point.
Again, is someone going to suggest that on November 15th,
when they, when there was communication,
that somehow that was planning a murder at a nightclub,
when someone happened to pull their car,
when a show ended up on Havelock Street?
That that was somehow, that's an unreasonable inference.
I don't think there's a basis to draw that inference.
Now, with respect to the location-
-: But I guess that's what I'm getting at.
Maybe as an advocate, you might say that,
but doesn't the jury have the right,
and weren't they presented with that argument,
and they rejected it?
-: No, I think that that's utter speculation,
and I don't think that there are any other cases.
There is content that is focused on when an inference
like that is drawn, and here we certainly don't have
that kind of content to say
that a month before somehow this concerned a murder.
Now, in terms of the location, Your Honor,
this is very important.
There is Havelock Street and Bluehill Avenue.
Kay's Oasis is right here on the corner, okay?
When Watson, Denton, and Robertson leave
without Bonner, okay?
They leave, Bonner's still there, he's calling them, okay?
Robertson does this, these first shots
right here on Havelock, okay?
And then they take off.
Now, Bonner is here at the club.
He's right there on the corner.
Then we have Denton running down here,
and running down Havelock.
Bonner then starts following.
Now, did Bonner come out immediately
when there were gunshots? No.
Could you infer that he saw Denton running down
and then he started following?
But why is he at that location?
This is very important.
He's at the location because he saw the performance.
He's not at some isolated location where he went
with this group of people, and therefore he is present
and has proximity.
He is present and has proximity because he was at the show.
-: I think you're misinterpreting what I'm saying.
-: [Atty Robert Shaw] Okay.
-: How does he end up being where Denton happens to be?
-: Because the door to Kay's Oasis is right on the corner.
The shooting is happening right down the street.
So he's right here, and that's what you will see
at that timestamp I told you.
-: [Justice Georges Jr.] Sure.
-: He walks from Kay's Oasis, and he turns on Havelock,
and walks down, that's why he's there.
-: Sure, but I'm saying that to the extent
that you happen to see that it's not an exciting event,
that he runs down, that his friend
or his associate might be in some peril.
He's walking, the video says he's walking.
-: [Atty Robert Shaw] Yes.
-: I'm saying why isn't it reasonable inference
for the jury, in the light most favorable
to the Commonwealth, to infer that there's
a shared intent there,
because of the entire picture that's in front of them?
-: And that's my point.
This entire picture undermines that.
The fact that he's separated,
the fact that he's coming from a location.
Why is he there at that point in time?
Because the club's right there, and he would have seen,
he could have seen Watson take off and leave,
and wondered, why are you leaving?
He could've seen Denton run down, and then started walking.
Now, there's no indication when this happens,
that Denton is under distress.
He wouldn't have thought, "Oh, Denton's under distress,"
if he sees Denton in the road, and he starts walking over.
So there wouldn't have been a reason for him
to necessarily not do that.
But the point being, Your Honor, I think,
which is very important,
is that Bonner is never in a position to contribute
to anything, and that's important.
Bonner is never in a position to contribute to the killing.
He doesn't put himself in a position to assist.
He doesn't act as a lookout.
This is all unfolding, it's in motion, and he comes
at the tail end of this,
and he does something stupid at the end.
But the question is, is that enough for first degree murder?
Is it enough to convict him, and put him in prison for life,
for first degree murder?
And I'm suggesting to the court that it's not.
Thank you.
-: Thank you.
Attorney Jordan.
-: [Atty Darcy Jordan] Good morning.
May it please the court, Darcy Jordan
on behalf of Commonwealth, and with me via zoom is
the trial prosecutor, Ian Pollenbalm.
We're asking the court to affirm
the double execution of Romeo McCubbin.
If I could first turn to the video, the actual timing on,
timestamp on the video is actually not correct.
The owner of the video system in Simpson,
he testified to such.
It was a home video camera that he was using
for his own personal surveillance,
and I'll turn to volume four, page 95 and 102,
where Mr. Simpson explains that
the timestamp is not accurate or reliable.
So the way that the Commonwealth figures out the time
of the murders is by using ShotSpotter,
and at trial, the Commonwealth was able to introduce,
with the help of John Green
from our forensics media department,
superimposed the sound over the video.
So the jury did have the ability to hear the shots,
and watch the murder happen.
So all those times that my brother just used to be
comparative to the phone records, and again,
there's nothing to dispute that
the phone records are accurate or incorrect.
So I just think if he's, and this court is really looking
to how he represented the time, I would suggest looking
at the video, and understanding that
those times are incorrect.
So if I can turn to the,
I think the court really has it right.
In the light most favorable to the Commonwealth,
the cumulative of all of this testimony during,
before, during, and after, all invokes that
this defendant played an integral role
in the murder of Mr. McCubbin.
I think by parsing out this one isolated kick,
I think is not only not fair to the light most favorable
to the Commonwealth, but also not-
-: Can I ask you about your brief and your argument?
You make a lot out of the non-action
that he didn't intercede to help the victim.
That's never been part of our case law, correct?
-: Well, of course there's no duty to act,
I think is what Your Honor is getting to.
Of course, there's no duty to act.
-: I don't see how that cuts against someone
if they don't, if they fail to intercede.
-: Well, I think the purpose of highlighting
that evidence was more that in my brother's brief,
he's describing that Denton is a hapless bystander
that happens upon this.
So I think it was more in contrast to the idea
that he doesn't know what's going on.
It's not as if someone comes upon their friend shooting
someone in the head, and doesn't either run away.
It just, it does, it's contrary to human nature,
run away, or even freeze.
He doesn't even freeze, because we know
as Denton is shooting the final shot,
Bonner is actually descending upon the victim.
I think Justice Kafker was asking what the timing is
of the kick, as if, it's Denton is firing
basically the last shot,
and contemporaneously Bonner's going to kick him,
so it's happening at the same time.
-: It doesn't help your argument to argue something
that's legally not significant.
The focus has to be on what did the defendant do, correct?
-: I think I was more, it was more a factual contrast
to the fact that you can not infer that
he didn't know what was going on, based on the fact
that he's standing there watching his friend.
So I don't disagree with you
that perhaps the legal conclusion on that slight,
I agree with you that there's no duty for Bonner to act
in that moment, but it's more to provide context
to this wasn't somebody that just happened
upon somebody getting shot in the head,
and was just standing there.
So I agree with you.
No fact, I think no legal conclusion based on, again,
that slight piece of evidence, however,
in the whole context, I think it's illustrative
of what the defendant's mental state was.
Because of course we don't have direct evidence
of his mental state, but I think that
inferences can be made, based on those facts.
I hope that answers your question.
Justice Gaziano: It does.
-: Do you have a first degree murder
conviction without the kick?
Is the kick, I mean, is the kick critical here?
-: [Atty Darcy Jordan] I think we still would
have a first degree, but obviously the kick helps,
but I think the fact that he's kicking and saying
those words is almost an exclamation point.
So if we take away the kick,
I think it's really hard to say,
'cause what he does next is the kick.
So if his just presence was there,
obviously you'd have a harder case.
-: I'm just trying to, when I read Mr. Shaw's brief,
he says it's a light kick.
You say he, well, I haven't seen the video yet.
-: Of course you'll see in the video,
and it is not a light kick.
Actually, part of the Commonwealth's case is that there,
that Bonner almost winds up to kick, because he uses
a counter balance of, I think it's his left hand as he kicks
with his right, and you see the glimmer of his ring,
which is depicted in the photos from the event,
and his mother testifies that she can no longer find
his ring, thereafter being arrested,
so it's a strong enough kick that
it requires him a counterbalance.
-: I'm just trying to get a sense of this case
without the kick, because, and he's, I,
there's no one suggesting that the kick caused the death.
I mean, yeah, I take it there's an argument
he's just happy to see the guy dead, right?
You know, take that, glad that happened to you, you know?
-: Well, I think if anything, the kick is more his part
in the murder, and I think even, I site some
of the cases, like Longo, that say
the continuation after the event.
It's almost like here, it's like
the exclamation point to the murder.
Like I'm here, I'm a part of this murder.
I want, I intend this man to be harmed.
I intend him to be dead.
Based on the words, and seeing him being shot in the head,
and Commonwealth's case is that he knows
that Robertson has already shot him, so, the way-
-: And can I ask, the big picture, again,
I haven't read this whole transcript, which is a lot,
is there going to be some explanation of some bad blood
between the victim and these four guys?
Or is that nothing, we're going to have none of that?
-: [Atty Darcy Jordan] You're going to have none of that,
Your Honor.
Justice Kafker: Okay.
-: If there are any other questions about sufficiency,
I think the Commonwealth does think that
the video in itself, it will definitely help
this court to understand the events.
The ID of the defendant as the second,
as the kicker is corroborated through other evidence,
other photos of the-
-: Where do you say the defendant is positioned
at the time of the shooting?
-: [Atty Darcy Jordan] The defendant,
where I say that, where, I'm sorry Your Honor,
where the defendant is positioned,
I know, that at the time of the shooting?
-: Yes.
-: At the time of the shooting, and I think
it's almost elongated, because there are three shots,
but it's elongated, because Denton's gun jams.
So if you watch the video, Denton comes out first
from the cars across the street,
and kind of lines up behind the McCubbin's car,
and McCubbin's on the sidewalk, so is on the other side
of the car, and he lines up and fires,
and obviously you don't hear the jam,
but you see a manipulation of the gun.
At that point, Denton is behind him, is behind Bonner,
and I would argue has a clear view
of seeing McCubbin on the ground.
He's standing there, it jams, Denton, sorry,
Bonner is still, is standing there.
-: Okay, so we're going to have to obviously watch the video.
Your position is they're standing next to each other.
And Mr. Shaw tells us one's in the middle of the street,
and one's not, but we'll watch it.
We'll watch the video and decide for ourselves.
-: Of course, you watch the video, and the video is,
there's cars parked on both sides,
and there's one lane of traffic available.
So I don't dispute that Mr., that Bon,
the defendant's in the middle of the street,
and he kind of is, and part of the Commonwealth argument is
that he's sitting in the middle of the street
so no cars can come by to disrupt Mr. Denton shooting
Mr. McCubbin, as he lie dying on the ground,
so, but I think that the meaningfulness is he's,
the gun gets jammed, and he's shooting 1, 2, 3,
but simultaneous, it's almost like the last shot
Mr., the defendant goes and kicks him.
It's at the same, it's not the same.
It's almost like the shot's not over
as Bonner comes and kicks him, and actually,
as he's doing, as Bonner's kicking him,
Denton's leaving, and then Bonner follows him behind,
and then we also have eye witness-
-: Where are they? Where do they meet up?
Where's the RAV4?
I'm confused.
-: [Atty Darcy Jordan] Sure.
-: Yeah, because-
-: We don't know exactly where, I think your question was
earlier, where was it?
It's not on the surveillance.
We can't see it, the RAV4 on their surveillance.
What we do know is that-
-: They come to the part, they come
to this nightclub in the RAV4.
Do we know that Denton and Bonner come to the,
we know that, right?
-: [Atty Darcy Jordan] Do we know if they arrived
at the Kay's Oasis?
-: I'm just trying to figure, I mean, you need to connect
Denton and Bonner as being sort of acting together.
-: [Atty Darcy Jordan] Sure.
-: And I'm just trying, and the car is, and they're leaving.
They leave together in the car.
They ended up in the same place in the car.
Do they arrive in the car?
-: We don't know that.
We do know, what we know is that they were at,
they're in photos at the event together.
We don't know if Bonner and Denton left
at the same time from the club.
We don't know.
What we do know is that the first time,
we do know is that four minutes before the murder,
that a car consistent with the RAV4,
which we argue is that if the RAV4,
and the RAV4 is the defendant sister's car.
We see that drive past McCubbin's car four minutes
before the murder, and it's actually following
a Lincoln MRX, which is the same as Watson's.
So the Commonwealth argues that in the light was favorable
that they're conducting surveillance.
They're, you know-
-: But Bonner, the defendant is not in that car then.
'Cause he's still at the club or-
-: No, we think, we don't know.
We don't know who exactly in the car, so we don't know.
I mean, we don't know who's necessarily driving it.
I think an inference in the Commonwealth says
that there could be an inference that Denton was driving
that car, because then, or actually we don't really know,
because at 1:42, which is when the Commonwealth thinks
that they're driving around, that Bonner calls Denton.
So perhaps one of them was driving the car the four minutes
before the murder, and then parked the car,
and then was, you know, communicating
where the car is parked.
We don't really know.
We can, that's conjecture at this point.
Justice Kafker: Can I ask one last question?
-: Sure.
-: How far is the nightclub from where Denton
and Bonner shoot, where Denton shoots,
and then Bonner kicks?
How far is that distance?
-: It's not far at all.
The Kay's Oasis is on, if let's see,
if I'm McCubbins car, and parked facing this way,
Kay's Oasis is on the left-hand corner,
and I don't see on the video.
I think you could see the building, actually,
in the surveillance video of Kay's Oasis.
It doesn't have the-
-: 50 yards, or 25 yards, or 200 yards?
I'm just trying to get a sense of the difference.
-: It's close.
I'm very bad at distances.
Justice Kafker: Okay, close is not helpful.
-: It's close, you can see it on the surveillance.
So you, and you see them Denton and Bonner go
on the side of that building, so it's close,
but if I could just turn back to the RAV4 again,
because we have that, we also have evidence
that Mr. Ishmael sees somebody running
from Haverhill after being, you know, this kick,
somebody wearing red and black,
which is consistent with the defendant's clothing,
running on Havelock to Bluehill,
and then where the RAV4 is kind of, if you will,
picked up again, is when the detective sees
the RAV4 fleeing from the area,
and then RAV4 ends up in the Bonner's driveway.
So it, I think you're, I think what
you're trying to get at is, it is lost, if you will.
The RAV4 is lost there for a few minutes,
but it's picked up, right again,
or basically around the block on Baird Street,
which is perpendicular to Havelock Street.
-: Can I ask what Mr. Shaw says it's just as likely
that Denton threw the gun over the,
into that yard as the defendant.
What's your response to that?
-: Well, I think in the light most favorable
to the Commonwealth,
that's not how the testimony came out.
-: Well, is the testimony undisputed that Denton runs
by this spot too?
-: I think it's not, I think it's not, because if,
there was maps, obviously, that this court will have
available to them.
It's my understanding that it was a block, you know,
like, you know, with houses on both sides,
with shared backyards, and that Denton runs out
of the Bonner yard, and does, I don't dispute
that he goes through yards, but there's two officers.
There's one officer chasing him through the yards,
and there's one officer basically parallel on the sidewalk,
and so once he gets to 102 Lewison Street,
where the gun is found,
the testimony is that he came out on the sidewalk.
So if you will, the sidewalk officer almost is picking up
the chase there, and then Denton makes like,
the sharp left into the neighboring yard of 104,
and is underneath the car in that driveway.
So the Commonwealth contends that
that evidence would dispute that the defendant,
that Denton was actually in the backyard of 102,
that he would be in the front yard of 102, passing that,
and then went directly, again, underneath the car there.
So, and the officer saw him do that.
-: I can't remember, was there a third gun found in this or?
-: There was, well, there's two guns.
The other gun that was found is a 25 that was found
near where Denton got out of the car in the Bonner driveway,
and that was not an admissible or no discussion
about that in the second trial,
and that was not tied to the murder in any way as well.
If I can just turn to the last argument,
which has to do with whether or not
the defendant was wrongly precluded from talking
about the 38 being not Bonner's.
I just want to turn, and if we look at the transcript,
and what the judge actually ordered, it was very discreet.
The judge ordered the defendant
that he couldn't affirmatively say
that the defendant didn't possess the 38,
but she didn't preclude him from arguing other inferences
based on the evidence.
So even if there was an error, if you will,
which the Commonwealth does not concede,
does think that he was properly stopped from arguing it,
that there really was no prejudice, because he still argued
my client didn't throw the gun.
My client was never seen with a gun.
There's a lying detective that's giving you
the corroborating evidence about the thugs.
So again, I think I explained why
that direct estoppel was appropriately applicable here,
but even so, there's be no prejudice,
'cause he wasn't prevented from making the same argument.
-: [Chief Justice Budd] Okay.
-: Seeing no other questions, rest on our brief.
Thank you.
-: [Chief Justice Budd] Thank you.
Court Official: Court all rise.
Hear ye, hear ye, hear ye, (indistinct).