-: SJC-12806, Commonwealth vs James Page.
-: Okay, attorney Kelly. Good morning.
-: Good morning, Chief Ju-
Good morning, Chief Justice. And...
your honors.
If it please the court, my name is Brian Kelly.
I'm representing the defendant, James Page.
I did have two points of clarification for the court
before I really get into the heavy other.
One is that there was a miss, or a typo, I think
on one of the citations on a case called
Commonwealth vs. Tony.
It's in the appendix,
and in at least one of the beginning sites,
it should be 385 Mass. 575, not 585.
So as a point of clarification, I apologize for that.
The second point is that,
I have taken this case over,
attorney Leslie O'Brien drafted the brief
and has since retired.
So they got me to come in and argue this case.
I've reviewed the transcripts, the briefs, the case law.
And while I'm not conceding or waiving,
any of attorney O'Brien's arguments.
I would like to concentrate,
if the court will permit me,
on two of what I think, of the strongest arguments.
That being the argument number three,
the ineffective assistance of counsel,
regarding the consciousness of guilt instruction
and the denial of the mistrial number five,
was the argument.
As to the ineffective assistance of counsel
in this particular case,
actually, the Commonwealth requested
a consciousness of guilt instruction.
And initially, the trial judge said
that that law actually wasn't even appropriate,
because it had to do with the--
-: Mr. Kelly, is it the issue
that the consciousness of guilt instruction,
giveth and taketh away?
That's why the defense attorney doesn't want it
because, in fact we've had cases
where we set it to the effect of the system's detail,
so where... some of it is good for the defendant,
some of it is really bad for the defendant.
-: I would agree.
I think in this particular case, not taking-
my point in the ineffective,
is in this particular case, by counsel not rec--
well, basically it was offered to him,
declining and objecting, and declining it.
And then of course, in the motion for new trial,
saying that I was a tactical,
which is normally the kiss of death on these cases.
Of course, we're arguing, manifest the unreasonable.
And I do think it does not manifest the unreasonable,
your honor. Because if you-
Following both the Tony case,
which basically sets out the instruction
for consciousness of guilt.
But more so, the Morris case, Commonwealth vs Morris,
which kind of goes into an explanation.
And I think makes the point for the defense
in this particular case.
The Morris case basically said,
"There's two benefits to a defendant
"in hearing a consciousness of guilt.
"One is to reinforce the theory
"that defendant would probably wanna put off.
"And that there's other reasons--"
Justice Gaziano: But why you come off-
Why would you (indistinct).
-: That's okay. I'm a little hard at hearing. I apologize.
If I do this, I'm not trying to be funny.
-: But why would the Commonwealth, want the instruction then?
-: I ask myself that question too, your honor.
I think... well, it's one of these.
It is as Morris says, "A balancing test."
So it's clearly that they've got-
the vernacular, "They've got the guy dead to right."
I mean, he can't, he says he didn't have sex with her.
Yes, he did, DNA.
So I think they would be,
the Commonwealth would be arguing,
"Why else would you deny this?"
So I can certainly see the Commonwealth's point.
But in--
Justice Gaziano: Counsel Kelly, hold on.
-: Oh, I'm sorry, your honor.
Justice Gaziano: You're under revoke if you keep this on.
-: But in this, in this particular case,
the Commonwealth actually in their brief on...
Page 34 of their brief, actually cites the language
that's used by the trial counsel in his closing.
Basically what he says, your honor,
"People do that. That's what people do. They say things."
Which is the exact same thing that Morris says.
And again, as we've all been in front of juries and judges,
I think the case where you have,
an attorney's gonna get up, and there are people that,
they will say, "Oh sure,
"the attorney's gotta say anything."
And to come in and say,
"You know, there's all sorts of reasons
"why you wouldn't wanna rely that."
But to then have the judge
give the imprimatur of credibility, that way saying,
"You know what?
"There are other reasons why people do that."
I think (indistinct), I can't cut a better word,
reinforces that argument for the jury.
So I think to not, to walk away from that
would be manifesting the unreasonable,
Especially given that, one, as I said, he...
They've got them dead to right.
There's no way you can say, "Oh, he made a mistake."
But two, defense counsel brought that up exactly.
He went ahead, and not like he said nothing on it.
And the judge brought some new information.
That's exactly what he did.
I would say this hits right on point.
Justice Gaziano: Can I ask you,
and I know you do wanna focus on this.
But on issue number one, sufficiency of the evidence.
Mr. Kelly?
-: Yes, your honor.
-: There's a case that wasn't cited,
and recognizing that you didn't write the brief.
I hope the brief of this case was cited by,
either the author or the Commonwealth.
It's Commonwealth vs Scesny,
S-C-E-S-N-Y, I'm saying that correct, 472 Mass. 185
that deals with whether or not there's a result inference
or evidence of the sexual assault,
based upon the way a victim is found,
with clothes off and the like.
Which I think might help you out.
Attorney Kelly: Well, I--
-: But I reckon that if you're not conceived
in issue number one,
but can you briefly go over why
the presence of the seminal fluid passed away
(indistinct) unfold,
would lead to an inference of note of consent,
consensual sex.
Attorney Kelly: Explain why
it would not show the aggravated rape?
-: Correct.
-: Well, the cases that were there,
that Sherman case and the Mas--
Justice Gaziano: Can I again,
give you an opportunity to address that Scesny case in the--
-: Thank you, your honor.
I was gonna ask you if I could do that.
I appreciate that, your honor.
Thank you to the court for that.
But in the cases that were cited in the brief
at Sherman case, where there were background issues
of the victim threatening the, I'm sorry,
the defendant threatening the victim's two boyfriends.
The abused prevention order.
A potential reconciliation was rebuffed.
There was hostility there.
The Marziagio, and I apologize if I mispronounced that,
talked about abrasions to the victims genitals,
and that she had apparently,
wanted money before she had sex.
None of that is an issue in the Page case.
Now they're-
What hurts the Page case, of course, is the denial.
And the fact that the only witnesses that came forward,
said that neither defendant or victim knew each other fair.
I get why other things weren't brought out,
I can't address that, your honor.
But the Commonwealth brings up issues,
and I think it's that they use the term,
"The security of reasoning."
One usually does not kill someone after sex,
but since she was killed, that it must've been rape.
I don't necessarily respectfully follow that logic
to it's Nth degree.
-: That's what Scesny, I think,
progressing and you'll give us an opportunity
to get your reasoning on that.
And I cut you off on an issue
you don't wanna talk about something,
you go to the next issue--
-: Oh, thank you, your honor.
Appreciate that.
The second issue that I wanted to...
touch on is, yeah-
Well, actually, I did wanna just,
one last little point on issue, number three.
The Commonwealth in their brief on page 30,
claims that the prosecutor did not argue
that the inconsistent statements made by the defendant
was consciousness of guilt.
I would respectfully disagree,
I think it's a matter of semantics.
Justice Gaziano: But they can't just
use those words.
-: Transcript 765 volume seven, page 65.
"The district attorney calls the defendant statements a lie
and said, I'd like you to compare the defendant's reaction
versus the other witnesses,
or other people that we interviewed's reaction.
And I would respectfully say, it's, it's-
I leave it of course, to the court's discretion.
But I think it was something that should be looked at.
I would respectfully disagree that that wasn't argued in,
at least, in some sense.
But even if it wasn't the case that,
that we didn't have to bring in
the issue of the balancing test.
I think the key to the,
to the consciousness of guilt
has to do with a reinforcement.
-: But that cuts the other way as well.
So I think the perfect analysis
of the consciousness of guilt instruction is,
Justice Gaziano said it, "Giveth and then taketh away."
So it's quintessential strategic decision.
Now, if the judge gives
the consciousness of guilt instruction,
it's not gonna mean anything, unless the judge identifies
the nature of the consciousness of guilt.
And here, the judge would be basically saying,
"That you can consider that he said,
"that he didn't have sex with her,
"and you can consider these inconsistent statements."
Now, maybe unbalanced, some lawyer's gonna think
that's the best strategic choice.
But it seems to be right in a bail house of judgment
by a lawyer, as to what to do with that instruction.
-: Well, I agree with you, as far as the point where I said,
"In this particular case, there is no way around the fact
"that Mr. Page lied."
-: I know. But you just said,
you want the judge to reinforce, you know,
that there might be innocent reasons.
But maybe trial counsel didn't want to have the judge
reinforcing the key to the Commonwealth case.
-: Well, I would answer that your honor, this way in that,
that would be fine if trial counsel never brought up that,
but it's the exact argument that trial counsel brings up.
In fact, he says, there's lots of reasons why he would not.
It's a 27 year-old murder case.
He doesn't want to be involved,
"Because that's what people do," is what he said.
And I think having that, your honor,
if I didn't have that language,
I think you would be exactly correct.
But I would argue, your honor, that, because it was,
it seemed to be almost on point, that why would you not?
It just seemed if you've got it, use it.
And as I said,
I think lawyers tend not to be trusted at times,
and juries might be skeptical.
But when you get a judge that says, "What he said is right."
I think that goes a long way.
If I make onto the mistrial,
this of course was the unredacted video that was shown.
And after several seconds into it,
Mr. Page says something about more cases--
-: If it's a long curative. As Judge Muse's wants to do.
(judges laughing)
Didn't that take care of it?
-: Well, I wouldn't-
Ordinarily, I would say, yes.
However, what I would say is, the problem with the...
I have to say. I wouldn't have normally found,
like I don't find anything wrong with the curative,
but what I do find something wrong with, is the delay.
In all of the cases, I believe that it was cited by both-
in the defendants brief and by the Commonwealth.
All call for a prompt curative instruction.
This took a day and a half.
And again, but-
And I say this because,
even though trial counsels, defense counsels
did not ask the judge. Or actually he said,
"I don't think a curative instruction will help."
The judge doesn't have to listen to them. The judge, judges-
I'll be the first one to say,
"You get to say so." Judges can do that.
And I think a better course would have been
for the judge to at least, give a preliminary curative
that obviously, would not have precluded the judge
from either allowing or denying a mistrial the next day.
It would not have precluded the judge from giving
the extensive instruction that he did the next day,
which was a marvelous instruction.
I'll totally admit that.
But it's the fact that the delay was there.
And I think that made it difficult.
There's a psychological example that I've heard many times,
I don't know if the court has, but if you tell someone,
I don't want you to lose, I-
"Whatever you do, do not think of the word elephant today."
You can't not.
In fact, probably the next time I come in here,
you'll still tell, 'Here's the elephant guy."
But the point is when you give,
when you've met somebody silence
and let them ruminate about it, they think more about that
than they would, if you had just come out with something.
And I believe that was the, that's what made it.
I think initially,
it probably wasn't warranting a mistrial,
but the fact that the jury was just sent out
and then of course, the next day they-
I mean, everybody did, in my humble opinion,
did a great job as far as arguing it back and forth,
and all that.
But again, the jury's still sitting there--
-: And there was no question, Mr. Kelly.
It was inadvertent, correct?
-: I would, I would...
If that's what everybody says,
that's what I would go to.
I have my own little prejudice about that.
Or even if it was an inadvertent,
you'd still prejudice the--
-: Well, no. I get it.
Inadvertent isn't, isn't--
Attorney Kelly: It's kinda like
murder versus voluntary manslaughter,
the person's still dead.
-: Your point is well taken.
-: And in this particular case, and again,
recognizing the elephant in the room.
There's the elephant again, sorry.
That he lied about having sex with her.
Other than that, there was no fingerprints.
There was no hostility.
There was nothing else that put the two together.
So I would say the Commonwealth's case
is not their strongest.
Justice Lowy: Well, can we go back to the mistrial--
-: Yes, your honor.
-: So you make a good point about the benefits and drawbacks
of the curative instruction.
Our law is that we expect that jurors follow instructions,
but nonetheless,
it's a reasonable point to have that concern.
Now, Judge Muse has,
"The defense attorney whose initial position
"is that the defendant doesn't want it."
Isn't he just being careful
in having everybody have time to think through this issue?
And I know it's not dispositive
to be respectful of defense counsel's strategy,
but some deference to a defense counsel's position
is probably a good place to start.
Attorney Kelly: Are we talking the mistrial?
-: Exactly. Yeah, because the defense counsel
doesn't want it, right?
Initially. The curative instruction.
-: Okay. No, well, the defense coun-
Right. The defense counsel did--
Justice Lowy: Okay.
-: Well, the reason, and I think I would argue that
that it's, you-
There's no fault on the defense counsel
to say that he doesn't wanna curate an instruction.
It's almost that,
like when they want an all or nothing verdict.
I don't want a second degree.
It's either gonna be murder one, or "I'm not guilty."
Similar in, and by analogy,
"The same way in mistrial or nothing," is what he says.
And I think if he were to have asked
for a curative instruction
that would have diluted his point up.
You can't cure this one. You just saw what you saw.
You heard what you heard, and you can't do it.
So I would say, that was a rationale behind it.
But again, as I said,
the judge doesn't have to do what he says--
-: Well, you're absolutely right.
You're absolutely right.
It's just, a prudent place to start
would be to give some serious consideration
to defense counsel's strategic concern.
-: Well, that's why I said, your honor,
I just think a preliminary, anything
as opposed to just silence would have been warranted there
and then could have gone back and done what they did.
To reflect on it properly.
But at least the jury wouldn't be sitting there wondering,
and I see my time is up.
If there are no more other questions,
I will rest on the brief.
Judges: Thank you.
Attorney Kelly: Thank you, your honors.
-: Okay, attorney Campbell.
-: Good morning. May it please the court.
Julianne Campbell, on behalf of the Commonwealth.
Seated with me today is ADA Craig Iannini,
who was lead trial counsel for the Commonwealth below.
We're asking that this court affirm
the defendant's conviction for the 1987 murder
of Ms. Dora Brimage.
I'd like to first turn to the sufficiency issue
that my brother raised in his brief.
And I'd suggest that in the light,
most favorable to the Commonwealth,
the evidence demonstrated, and particularly in exhibit two.
"That the victim was found sexually posed
"with her pants and underwear around one ankle,
"exposing her genitals in a pool of her own blood
"on top of wallboard in a construction site with pieces--"
-: In Commonwealth versus Scesny,
the victim was found on the side of the road.
Her pants and underwear were pulled out
and she was strangled to death.
The defendant's DNA was on the hip.
This court found sufficient evidence
for premeditation of atrocity, to cruelty
but found insufficient evidence
of aggravated rape to support felony murder.
How has this case-
And we may disagree with Scesny, given the evidence,
but we have to grapple with the hold in the Scesny.
How is this case different?
-: Certainly. And I apologize to the court,
for not including the case in my brief.
As your honor pointed out, neither,
it was not raised in the defendants either.
I would ask for an opportunity to distinguish that
for the court in writing. But I would say that here,
what is compelling is two pieces of what do amount
to consciousness of guilt evidence.
It's not simply that the defendant,
affirmatively denied ever having sex with the victim,
which I think is significant.
But it's that the way his story changed
was that in the original investigation in the '80s,
he informed law enforcement
that he had dropped her off near Dudley Station.
And 30 years later, he informs law enforcement
that he dropped her off at Georgia Street.
And Georgia street here is significant, because the entrance
to where this victim's dead body was found
was accessed via Georgia Street,
and both the maps introduced in evidence. And--
-: And I have to ask a somewhat indelicate question,
and I apologize.
There's no evidence here,
that the victim was a prostitute, correct?
-: [Attorney Campbell] No, but what was in evidence
was the defendant's--
-: And that's--
-: [Attorney Campbell] Yes.
-: I say that with all due respect to the victim
and the victim's family.
Because that was a factor in Scesny.
And now, whether or not that's a legitimate factor,
maybe it's for another day, or still this court.
Whether or not that survives, we'll see,
but that's not an issue in this case, correct?
-: Correct, your honor.
And in fact,
I will say the Commonwealth put that evidence in,
as evidence of how the defendant viewed the victim.
He also turned the detectives' attention in 2014 to,
he happened to recall,
although, despite not remembering the victim off the bat,
happened to know her boyfriend,
and suggested that her boyfriend used to beat women.
So there were multiple things in the defendant's interview
that I would suggest, amount to strong--
-: We're gonna get,
you'll have an opportunity to distinguish Scesny, but--
-: [Attorney Campbell] Thank you.
-: But what you're saying is the, that this case is stronger
because of the consciousness of guilt evidence, primarily?
-: [Attorney Campbell] Yes. Yes.
Justice Lowy: And how about their condition?
Justice Kafker: Before the Scesny, could I ask.
Are you still on Scesny or are you gone?
Justice Lowy: Yeah, but you go first, please?
-: So Scesny... One thing again, another indelicate question,
but one that may be necessary to address is,
there's no "drainage" in Scesny.
They don't discuss the fact that the sperm is, is...
I guess, there's no drainage in this case,
there's drainage.
That's not addressed in Scesny.
Is that potentially significant?
-: It is from the Commonwealth's perspective.
Because from the Commonwealth's perspective,
it indicates that the defendant deposited his semen
inside of the victim, at the place she was murdered.
And I think that is a reasonable inference,
and this sort of delves into another issue
raised in the brief.
-: But how does it deal with aggravated rape versus consent?
Would it have any significance there, that she never got up?
-: Your honor, given the way the victim's body was found,
and I think the photographs established that,
and there's testimony that pieces of the murder weapon
are in her hair.
It's the Commonwealth's contention that, through use of-
she was found, cause of death was either strangulation
or bludgeoning, essentially.
It's the Commonwealth perspective that use of force
via the murder weapon, which was a shovel
that had broken off into both her hair
and pieces were by her body.
It's the Commonwealth's position
that given how her body was sexually posed,
the lack of semen in her underwear
and the murder weapons that were used,
which the Commonwealth contend,
was what compelled by force the sexual intercourse.
-: And what about the condition of her head?
Her face.
-: Yes, your honor. I do believe that-
I would urge this court to look at the photographs
in this case. Her face was unrecognizable.
Essentially, she did not really even have a face,
given how bludgeoned it had been with--
-: Is that allowed for a reasonable inference
of lack of consent?
-: The Commonwealth content's, yes. Strongly.
If there are no--
-: Could you explain that, just the logic.
'Cause we understand, it's obvious proof of, you know,
first degree murder,
but I'm trying to understand how it's proof of rape.
Meaning that he's covering up?
-: [Attorney Campbell] Yes. -: Okay.
-: That's part of it.
That's part of it.
But again, it's, the evidence that was recovered here is-
The simplest way that I can put it,
compels a strong inference
coupled with the defendant's consciousness of guilt
and other evidence.
They were seen leaving together, et cetera.
That evidence is what demonstrates
that the sex and the murder,
was part and parcel of the scene of evidence--
Justice Gaziano: Again, you see
that's the problem with Scesny.
-: Certainly.
-: A heinous killing of a female
and the sexualized nature of how the victim is found,
in Scesny, at least, did not lead to aggravated rape.
-: Certainly, your honor. But here, as I say,
the fact that there is no semen in this victim's underwear
and that this--
-: In Scesny, there was DNA on the victim's hip as well.
But we'll let you move on, and...
-: Well, I think, and I'm happy to,
but because it's addressed in another area
of my defendant's brief, I think it's critical.
The fact that her underwear is around her ankle
and does not have semen in it.
I suggest, begs that we assume--
-: But that's the issue on the closing argument
about whether or not.
Because Judge Muse did not allow the chemist
to testify to this.
And basically, the discussion was...
"We'll take this up later," and it was never taken up later.
And then there was a closing argument of that,
she never had a chance to put the underwear back on,
and never got off the floor.
And that was the whole drainage issue.
-: If I may just explicitly say to the record, your honor.
On page 162, it's of the transcript,
I believe it's volume three,
but it's the March 9th date of trial.
At page 162, the expert witness, Kevin (indistinct)
testifies that he will check underwear for drainage.
And he explains drainage is when semen would flow
into the underwear.
-: Right. But then doesn't Judge Muse say,
"No, no, no. You need a gynecologist.
"You're not gonna be able to do this."
-: But what I think is important
is that at page 49 of that same volume
where they're discussing this, the Commonwealth says,
well, maybe I can't-
You may not permit my expert to explain that
beyond what he already did.
However, I would suggest it was a reasonable inference,
that she didn't stand up after sex.
And the court, Judge Muse explicitly stated at page 49,
"I think you're right.
:"But we'll address that at another point in time."
And I would suggest that it is a reasonable inference
that she did not stand up
after the defendant deposited his semen inside of her.
And I'd suggest it's reasonable, based on the fact that
heterosexual couples engage in intercourse.
It's a practice that I would suggest,
most adults are familiar with.
And even beyond that,
I'd suggest that the fact of touching cloth to a liquid,
that it would leave a stain,
that is as common sense and as commonplace as anything.
And so I would suggest,
it absolutely was a reasonable inference for the prosecutor
to so argue, in closing.
Lady Justice: May I ask you. Suppose she did stand up,
what difference would that make to the case?
-: I think the Commonwealth would be,
if there was any indication of semen in the underwear
or that she had stood up or moved,
I would suggest that it would...
The Commonwealth would be in a much tougher position
to try and argue sufficiency of the evidence.
Because it would be more difficult
for the Commonwealth to prove that that sex
was part and parcel of the murder there.
Justice Gaziano: Because of the 12-hour issue?
-: Yes.
Unless there are further questions on that issue.
I'm happy to turn to the consciousness of guilt instruction.
I'm aware of no case that says that, well, two things.
A judge is simply not required
to give a consciousness of guilt instruction.
I would suggest he certainly wasn't required to hear
where the defendant explicitly objected
to such an instruction.
And I would add that, I'm aware of no case
that has found it was manifestly unreasonable
for trial counsel to make such a strategic decision.
I think it's entirely possible
that the trial counsel recognized
that this was a fact that he would have to deal with,
and he did. And he indicated,
"That's what people do if someone's asking
"about an old murder and they're coming to you."
And it's entirely possible that because that's not,
I would suggest, a very compelling argument,
that he did not want the judge to further instruct
on what the permissible consciousness of guilt inferences
may have been.
Which the Commonwealth did argue, in closing.
-: Isn't that why,
unlike missing witness instruction
and more analogous to Boden.
That having this be a mandatory instruction
takes the opportunity for the judge
to consider the particular case,
and the particular request of counsel?
-: It does.
And I actually believe that at one point
in the Commonwealth of Massachusetts, it was required,
I believe, given certain circumstances.
But this court had decided that's not the case
for that very reason, Justice Lowy.
It takes away the power of trial counsel
to make those strategic decisions.
That certainly, hindsight is 2020, and you know,
the defendant may have obtained a better result.
But in any event, I'd suggest,
there really is no prejudice because I think that
that instruction is, as Justice Gaziano said,
"Essentially, a fairly neutral instruction.
"Although it may emphasize, again,
"the evidence that defense counsel
"would not want emphasized."
Given that the court would have to explicitly delineate
what that evidence amounted to.
Unless there are further questions,
I will turn to the mistrial issue next.
So quite simply, I suggest that Judge Muse
did not abuse his discretion
in declining to order a mistrial here.
And I'll turn to the issue of promptness first,
because my brother does raise that.
Here, I wanna point two things out to the court.
Again, on that March, I believe it's March 9th,
it's Trial Transcript three.
At page 208, the defendant requested
that the judge not comment
on the improperly admitted evidence
before discharging the jury.
And the reason the jury had been discharged,
were to give counsel the time to make arguments.
And to further research the issue
so that Judge Muse, in his discretion
could make a well-informed decision.
So while the term, promptness, is used in the case law,
it was the first thing the jury was instructed on
once they came back.
And I'd suggest, where the defendant specifically asked
the judge to not comment on it, before discharging
and before further arguments from the parties,
that this was a prompt curative instruction.
-: Well, that's an interesting point,
whether it is, or it isn't, because...
Thank you for pointing that out.
So after you have the issue come up,
I think if I'm remembering, I looked at the transcript,
that they're dismissed and then the next morning
they go through this for quite a while.
And the judge finally brings him back,
apologizes for the delay, explains it,
and then gives an excellent curative instruction.
So there's a question of whether that's even not prompt,
I don't know the answer, but there's a question.
-: And I would suggest that this court must conclude
that that is prompt, because otherwise,
the trial judge is in a position
where he's not getting the benefit of reasoned argument
and support from trial counsel.
-: And also,
to have a chance to do a little research, maybe?
-: Both. Correct, your honor.
-: Hmm.
-: If there are no further questions
on the mistrial evidence,
I'd simply ask that this court not reduce the verdict
under 33E, given the serious and heinous nature
of the murder of Ms. Dora Brimage.
Lady Justice: Okay, thank you.
-: And I'll rest on my brief. Thank you.
Prosecutor: All rise.