-: SJC 12889 Commonwealth versus Felix Melendez.
-: Attorney Forero.
-: Good morning, may I please the court.
My name is Brett Vottero and I represent Felix Melendez.
I wanna begin by confessing that since I first read
the affidavit that I've challenged in my brief,
I've been nervous.
It's been several years and I've been nervous.
I've been nervous because I was trying to understand,
"Had I missed something?
How had this warrant issued by a judge escape review?
How had this warrant gone through three trials
with an experienced defense council escape review?"
I was nervous until I got the Commonwealths brief.
And until last Friday,
when this court issued his decision in Perry,
I thought I had missed something,
but reviewing the Commonwealths brief
and their response to the argument, their argument is that,
"We can infer from probable 'cause alone
that a cell phone will have evidence and can be searched."
-: Right. And now that argument,
the case that said you can't do that,
came out after this, correct?
After that motion?
-: Well, I think the case that I cited
where it specifically said it's not enough to say
it may contain evidence. -: Right.
-: Came out after the decision.
-: That was White or Onyx? I forget which case it was.
-: I thought it was Brom, but Brom...
-: That's it, you're right, it's Brom.
-: But I think the trend was clear.
I don't think it was a surprise.
I think the court's decisions in Moran, in Brom,
and just this last Friday, in Perry,
lead me to the point where what I'd like to say is,
I'd like to focus on what I think
is the difficult issue before this court.
-: Let me just clarify.
I mean, I know White and Broman recently, Perry and Deliris,
but they're just nexus cases.
There's nothing magical.
This is...
You know, if we search something,
are we gonna find evidence of a crime?
-: Yes. -: That's always been the law.
Correct? -: Exactly.
Yeah, exactly.
That's why I said...
You know, I kept wondering, "Have I missed something?"
But it's a good example actually, for law students,
that what we're trying to do is spot an issue
and then research it.
And this warrant simply fails
and it fails from existing law, I think.
-: Why don't you go into the details?
So they've got all kinds of...
I mean, one, we have a murder, two, we have...
Your client has all the jewelry from the murder.
Had they already made the connection
to the pawn shop as well?
And that he had gone to the pawn shop on the 5th of July,
and part of the affidavit suggest,
"Look, you're gonna be making phone calls
to find out if a store is open on July 4th weekend."
I mean, it's not like there's nothing in this affidavit.
-: Well, I'd like to advise the court that,
that's not in the affidavit,
that's in the Commonwealth's brief,
that we can infer that you'd be making phone calls.
The affidavit...
-: What does the affidavit say
about the pawn shops and the...
I thought there's something in there,
maybe I'm misremembering.
-: No, there is.
And it's because the affidavit was not sought
for several months after the homicide,
because the phone itself was seized,
pursuant to an initial search warrant
for the defendant's premises.
And the cell phone they were looking for was the victims.
It took them a while to realize that the cell phone
which they'd seized in that search,
which was supported by probable 'cause, was the defendants,
then came the second warrant.
And we haven't challenged that the second warrant
established probable 'cause,
that the defendant had committed the murder,
but it went from that and a recitation
of those pawn shops to simply say,
"Therefore, evidence may be on his phone,
including evidence of co-conspirators,"
whether there's no evidence, even in the affidavit of that.
I truly believe that the challenging question for this court
is whether it order a fourth trial
for this defendant or should order these...
-: But before we get lucky... -: You got a long way to go.
-: We have a lot to get... -: That was my third issue.
I was hoping to get there soon.
-: But we're not done with the first issue.
-: You've got a whole lot of evidence
against the client before you get there.
-: Excellent. -: Yeah.
Kafker: Go back.
-: Well, so I guess I'll start with this.
Why is it that in this situation,
where jewelry is found in your client's apartment,
that belongs to the victim one floor below?
Why isn't it a nexus to say,
"Well, he would've tried to pawn this jewelry
and would wanna know where the location was,
maybe there's something as it relates to GPS."
Why isn't that an nexus?
Is it simply because they never say that in the affidavit?
-: Yes.
I mean, that's the direct answer to the question.
That's was my realization when I kept reading the affidavit,
"When are we getting to the end?"
And here's the reason
why there will be evidence on this phone,
and it's only the last paragraph.
And it's the conclusory language that,
based on my experience, there may be evidence on this phone.
It's just not in the affidavit.
And I'm not saying it couldn't have been,
perhaps they could have written an affidavit
and made a better showing. -: Okay.
-: But they didn't.
-: Your point is, it's just a ubiquitous argument
that Davis doesn't allow. -: Yes.
-: So if you're right,
is it act with the Commonwealth to found Crespo
without the search warrant?
Because that goes to the whole issue of the...
I know you're gonna get to drugs and propensity
and all of that, but before you even get there
and if you're trying...
If you're right and we're looking
at what the exclusionary rule is going to do,
does that impact Crespo at all?
-: I think the honest answer to your question is,
it's not clear from the record,
whether their source for locating Crespo
was the information taken from a search of his phone
or from information taken from administrative toll records.
That's not clear to me from the record.
So I don't know.
I don't know.
And Crespo is my second issue.
And he is the second issue for a reason.
I'll get to the third issue
on whether a retrial should be ordered,
but we have to first address the evidence in this case
that was allowed to be introduced
by the Commonwealth regarding drug use.
I just wanna note this,
5% of US adults report that they've been addicted
to opiates or prescription medication at some time,
self-reporting, 5%.
That would mean several people in this room, presumably.
Are we saying that as a class...
-: Yeah. But why don't... -: People with drugs...
-: Let's stick to the case for a second.
You've got, not only is your client,
the diamond ring is under his pillow, right as well.
It's clear that the doors are locked.
This is an inside job, right?
Her front door is locked.
The possibilities are really three people.
The son of your client's girlfriend and your client, right?
-: I disagreed with that. -: Yeah, go ahead.
Well, so how are all her doors gonna be locked?
And someone's gonna...
Go ahead.
-: You'll recall that there was evidence
that keys were missing.
So concluding that it had to be somebody from inside,
it requires that you assume that the perpetrator, right?
Didn't come in voluntarily,
that the door wasn't open when he came in.
And so, the question is...
-: So the perpetrator comes in and leaves all the jewelry
and everything's that your client discovers the next day?
-: But it's a robbery and he's got the proceeds
from the robbery.
-: Well, he has some of the proceeds.
He has two items out of many that were taken.
There's no question about that.
-: Well, and he's gone to the pawn shop
the day after the robbery. -: That's correct.
-: And he's hidden his name at first until
he has to give a real name. -: That's correct.
-: That doesn't go to his motive as...
You know, I get that the nature of the objection
and how much it could tain someone, but is it motive always?
Can't the Commonwealth prove the motive.
-: It absolutely goes to motive
and it shows a motive might be theft.
What's being challenged is the argument
that addicts are more likely to steal than other people.
Where do we get the basis for that conclusion?
-: Well, hold on, but...
Go ahead.
-: An addict, he's addicted to heroin, it's not...
Which is a hard thing to be addicted to.
I know it's an Opio...
It's an opiate, not an opioid, right?
So we're not talking about...
There's really no other way.
And he's broke.
He's also broke at that point.
-: I respectfully disagree that,
that's what the evidence shows.
-: I thought he's about to be evicted for not paying $971.
And he got that notice.
Is that also the day of the murder too?
Or the day before the murder?
-: No. And that was a prior apartment.
He and his partner left that prior apartment, okay?
His partner worked full time.
So I just want the court to take a moment
and think about what we are concluding.
You know, I think it's a 20% of people
live in one parent households.
So he doesn't work.
His wife has a full-time job.
He's so desperate for money, for how much?
$20 is what the evidence may suggest,
that he commits this crime.
I'm simply asking the court to take a closer look
at this drug evidence than we have done in the past.
It is the classic forbidden inference.
Somebody who stole in the past may steal again.
Well, that might be true,
but we forbid that kind of evidence.
-: And we look at this under our balance and test, correct?
-: Yes. Well, any trial court is supposed
to look on uncharged misconduct evidence.
If it is otherwise relevant,
there is supposed to be a final test.
Does its probative value?
Does it outweigh the prejudicial...
-: And I should know this, forgive me,
but there was no limited instruction, correct?
-: No. Despite the fact that it was one
of the Commonwealth's arguments,
as you could give a limiting instruction,
it wasn't given. -: Okay.
-: But again... -: Was one requested?
-: Yes, and we certainly discussed
in the context of the pretrial efforts,
to keep out this evidence.
The defendant fought vigorously council,
to keep this evidence out.
-: What do you mean it was this the...
He specifically said,
"I want you to give eliminating instruction
if you're going to admit it?"
-: My memory of the evidence is the judge said,
and the prosecutor said, "This will be...
We can deal with this by eliminating instruction."
But then when it came time for the instructions,
it wasn't given.
And I don't believe the defense
reminded the court that it had said it would do that.
-: Was there a request for a voir dire on this to the jury?
-: Of Mr. Crespo? -: No. of the jury pool.
Was there a question of voir dire?
-: I don't know the answer to that question.
I don't know.
-: So what about,
what do you make of the first floor apartment tenant,
testifying to hearing the scream, the running, the bang,
and then no one coming downstairs?
-: Well, you know, I certainly understand that,
that is evidence that the jury could could say,
"Well, it must have been somebody upstairs,"
but no one came downstairs.
That man then went out in the car
and played Candy Crush for a while.
He never called anybody.
So I don't know how he says,
"Nobody ever came down the stairs."
Nobody came down the stairs right away,
that's certainly true.
Maybe there was time spent looking through the apartment
by the perpetrator to find things to steal.
So I just think we read a lot into the,
"I heard nobody coming down the stairs."
-: So on your...
I promise, this is my last question,
before you get to the issue that you really wanna get to,
but on your substance use disorder, propensity...
-: Yes. -: Argument.
This is not some general propensity argument
that somebody who has an addiction
to even heroine is more likely to steal,
that's not the propensity argument that's being made here.
I mean, obviously, underneath all this,
there is a propensity inference at some point,
but it's carrying a lighter load.
This is saying that he has a motivation to feed a habit.
And therefore,
that's why the crime might have been committed.
That's not general propensity
about people with substance use disorder,
because those generalities, as you point out,
are dangerous and often wrong.
-: You know, your question illustrates
the point that I wish to make.
I think you've stated correctly
how we have approached these cases,
but I want to suggest to you that,
to say that somebody with an addiction has a propensity...
First, to do what?
It's actually do more, to take more substances,
that's the propensity, and it is illegal.
Heroin is illegal.
So it's uncharged misconduct evidence,
proving that because he did something improper in the past,
he will do it again.
And that's what the author of that article
that I cited is pointing out is,
we're not logically addressing this in our case law,
with respect to uncharged misconduct evidence.
And again, I think it is highly questionable
for us to continue to believe that somebody who needs $20
to get something they're addicted to,
is more likely to commit a crime, a robbery, a murder.
I think that comes from tropes that just fall below
what we can expect for reliable evidence.
And it's certainly, its probative value is far outweighed
by the prejudicial value and...
-: I think the point justice Lowy made is that,
it has to be particularized, not general,
as to someone who has a substance use disorder, correct?
-: Yes. And I think I do cite a case
where the proximity of the drug seeking behavior
is just closely related within moments,
either an hour or something.
And in this case, I wanna urge the court,
when we talk about...
-: It's a little hard to do this.
I mean, he's certainly willing
to receive stolen property, right?
-: Yes. -: So he wants the money enough
that he's going to steal property
or receive stolen property, right?
So it's not like this is some kind of...
You know, person, we can't judge motive at all about.
I'm confused by what you're saying here.
This is not a...
We're looking at someone with a drug problem,
and whether they've committed a crime in general,
it's a very specific crime in a very specific place.
And we're trying to figure out the reasons for it.
Brett: That's true.
But the issue in this case
was the perpetrator of the homicide.
-: Right.
Brett: And there is a disconnect being seen,
somebody who is trying to get money
and somebody who commits a heinous crime.
-: But we know what the DA's gonna say,
the DA's gonna say, "The specificity here is,
they go straight from the pawn shop to the drug use."
-: Well, that comes... -: It's the specificity.
-: That comes only if you accept Oly Crespo's testimony
and I have produced its entirety
in the transcript, in your appendix,
because there is no connection in evidence
as to when that happens.
The Commonwealth certainly believed it.
They certainly wanted it to get into evidence,
but it didn't come in.
That's why when I write my brief,
Oly Crespo's testimony is unmoored in time.
It's simply, "We were in drug rehab together,
we use heroin together."
-: This is an important point,
as it relates to the probative value and do prejudice
and is to the whole argument you're making.
You're saying that,
because the judge isn't dealing with credibility here.
So you are saying that on this record,
what their suggestion that,
they go from the pawn shop to taking drugs that,
that's not true in this record.
Brett: That's exactly what I'm saying.
-: That he's actively seeking drugs...
-: Yes. -: Is your point.
Brett: That is my point.
-: For the absence of that evidence.
-: And you won't find it in Oly Crespo's testimony,
you'll find the Commonwealth hoping to get it.
And I certainly understand why, but you won't find it.
Didn't come into evidence.
-: You've got that issue you wanna get to?
-: I do, but in my view,
it is important that the court will have to address
this drug use issue I'm talking about,
because of course, my argument is that,
he should not be subtracted to a fourth trial.
And I think the...
I've offered the court plenty of ways to get there.
I recognize that the double jeopardy argument
is the least likely route for the court to take.
But I want to address what I think is the likely route.
And that is following your decisions
that are mentioned in HERO Act,
the Funches and the Silver Decisions.
It says, "When we, as a reviewing court,
can look at the evidence offered by the Commonwealth
without what should not have been admitted.
And we determined that had the correct rulings been made,
there would've been insufficient evidence.
And therefore, double jeopardy requires
that we dismiss this indictment."
That's the most direct route.
And I certainly have acknowledged that the court
has also said in (indistinct), we don't do that.
-: So it's really skipping a point
where usually that happens in front of...
There's a motion that's brought,
if you lose, you go up from a single justice
and we review it.
So you want us to skip that remain possibility
and just decide that issue?
-: Well, this was the discussion
that my client had had several years ago.
We probably could have been successful
in a motion for new trial at the trial court,
and he would've had a fourth trial.
-: And can you tell me what, if any difference,
there was in the evidence in the different trials?
-: The only difference which I've been able to determine
is that in the third trial,
the Commonwealth choose not to play the videotape
of the defendant's interview with the police,
where he is saying,
"I found these items in a trash bag, outside the house."
That's the only difference which I can tell...
-: Can you go back to what you just said
about the motion for new trial
that you decide not to win that?
Brett: Yeah. Not to win it, not to file it in the...
We were quite a file in this court,
as you know. -: Right.
-: And ordinarily they're remanded.
We ask that that not be done, that it be consolidated,
because there is such a strong case,
that his double jeopardy rights have been violated.
We wanted to have it heard at one time.
-: But... -: In either way,
it's the sufficiency of an affidavit.
So you're not gonna get anything by a motion hearing.
-: No, I think we would've then had to file here,
to have the double jeopardy issue reviewed.
It just made sense to put them together.
Again, hoping I had spotted the issue, right?
I believe I have.
And as I said, for me, this is the challenging part is do...
Is there enough left over, if the defendant is correct
about the impact of the phone evidence
and the impact of the improperly admitted drug evidence,
is there enough left over to warrant conviction?
There's no question it's suspicious.
And I guess that gives me a chance
to end by doing something...
Most of my career, I was as a prosecutor,
so I never got the chance to read this,
but I'll leave you with this.
This is what John Adams said before this court,
in his closing argument, in the Boston Massacre case.
He first said something we're all familiar with,
"We are to look upon it as more beneficial,
that many guilty person should escape unpunished,
and one innocent person should suffer."
But he added a note of explanation.
"The reason is,
because it's of more importance to our community,
that innocence should be protected
than it is that guilt should be punished."
I recognize the suspicion
that the facts pose on the defendant,
but in this case, after three attempts,
the Commonwealth has not produced sufficient evidence
to satisfy the standard of proof beyond a reasonable doubt.
-: Thank you Mr. Vottero.
Attorney Doherty.
-: Good morning.
It's Andrew Doherty for the Commonwealth.
May I please the court,
I'm asking that the court affirm the defendant's conviction
for the murder of 88 year old, Hilda Devincenzo.
I will start with the cell phone search warrant.
And the last trial in this case took place
prior to Onyx White,
that handicapped the probable 'cause analysis
for a search warrant by saying,
"You can't rely on the ubiquity
of cell phones to do that."
That case is not issued by...
-: What difference does that make?
-: Well, there is some.
I think there's some reliance on the idea
that this defendant went looking to dispose
of the property that he had stolen during the murder
had used his cell phone...
-: No, but as far as the legal standing goes,
what difference does that make?
-: Because the question at...
When the search warrant hasn't been filed,
and that's the error that's being claimed
is whether a motion of suppress would've been successful.
Gaziano: No, that's the issue
we had in Commonwealth versus Moran.
And we found that it was improper.
It should have been filed.
-: That it should have been filed.
-: Right, right. -: Right, but here...
Gaziano: 'Cause it's purely a nexus issue
which should have been spotted.
-: Right. And I think with Onyx White
where the court invents a new way to consider
the special nature of cell phones that no one,
prior to the issuance of Onyx White,
would've considered that argument.
Gaziano: I don't know if I agree with inventing,
because every time we say,
"You get to search something for something," right?
You get to search the house to see if there's drugs there,
we require the government to say why there are drugs there.
So now we have a cell phone and we say in White,
"Other than it just being a cell phone,
tell us why there's evidence of a crime in this cell phone."
-: I'm not sure that's all that Onyx White said,
because Onyx White agreed that cell phones were ubiquitous
and that everybody uses them and then said,
"That's not something that a detective can rely on..."
-: Well, in my memory of Onyx White was that,
it was a joint crime, right?
And then the detective said,
"Well, I know when a bunch of people get together,
there's gonna be evidence."
And we said, "Well, just because everybody has a cell phone,
doesn't mean there's gonna be incriminating calls
in cell phone, right?"
-: I disagree.
I think it was a bit more revolutionary than that where...
-: It's retroactive...
I mean, it's a common law decision.
It's not perspective,
it's whether we were too inventive or not,
is besides the point.
It's the law we apply because it's not it's...
As a common law ruling, it's retroactive, right?
-: To some extent.
But when...
If a motion to suppress would've been allowed
by relying on a case that hadn't...
On a newly invented law,
in order for of the motion to be a...
-: A newly invented statute, yes.
But this is not, this is a common law decision,
and this is a first degree murder case, right?
So we're...
I'm not sure how that helps, right?
Because we skipped this step, the first step.
-: So, well, the first step is,
would a motion to suppress would've been allowed?
And if the denial of that motion or...
Sorry, the allowance of that motion to suppress
was relying on the use of the...
-: That's your ineffective assistance, right?
We look at it in a first degree murder
under 33-E as well, correct? -: You do, you do.
-: If evidence wouldn't have been admissible today,
is it really fair to say that, you know,
good enough five years ago?
-: I mean, in some extent...
And I don't wanna spend too much time on this because...
-: Well, maybe we do.
-: Well, but when say we may be putting...
This may be a case where you put the cart before the horse
and you look at whether there would've been a...
-: Wait, let's get to Brass Tax though.
I'm looking at paragraph four
on your record appendix of page 45.
That seems to me to be the key paragraph
as to whether or not there was probable 'cause.
Is that true?
Doherty: I'm looking at paragraph four.
-: "The phone may reveal Melendez's location,
before, during, and after the murder,
it may reveal planning, correspondence
between Melendez and accomplices.
May also show who he contacted after the murder."
That's... -: Right.
Gaziano: That's the long and short of it, right?
-: It is.
And first, I mean, Doe Lawson
says you can't use the word may,
you have to use words when...
-: Right. But look at Perry that just came out,
the difference between search warrant one
and search warrant two. -: Right.
-: Search warrant one is this general language
and search warrant two was specific.
-: So here, you also look to the nature and type of crime
for which there's probable
'cause established in the affidavit.
And here it...
Where the evidence established, one, the probable 'causes,
the defendant murdered Hilda Devincenzo,
number two, that he stole in the course of that murder,
numerous items from her,
including multiple pieces of jewelry,
strong boxes, et cetera.
And number three, that by January 9th,
he had pawned one piece.
-: That would've been great if that was in the warrant.
Doherty: That was in the warrant that...
-: That it also said, "And by the way,
we know that he's gonna use a cell phone
to contact pawn dealerships."
-: Right.
But I think you're allowed to look at reasonable inferences
that are born from the facts that are made in the statement.
And it's not fatal to a search warrant application
that the officer doesn't bring up what is common sense.
Post Onyx White,
there would've been more information that was added,
but we didn't have the benefit in 2013
of any of the guidance from these cases,
but that would've been...
Especially, given that he had his...
-: You're basically arguing for good faith exception.
-: Yes.
To the extent that, I would also argue
that it is unnecessary in this case where you look...
Like, in Cowan, where you look to the nature
and types of the crime and the overall circumstances
that are established to show that, yes, a person in 2013,
would've used a cell phone over a holiday weekend to...
-: Yeah. Can you tell me how paragraph four
and this request to search the cell phone for so many items?
I mean, it wasn't just, I want to look at...
I mean, they wanted to look at a lot of things.
How is it different from a general search?
-: So first of, the two key components are the communication
and the location information, those were what was...
And you can summarize most of the stuff
that they're looking for based on communications,
who he's speaking to and how he's speaking to this person.
Photographs...
You know, I think this court has found photographs
to be used as parts... -: But he also...
They wanted...
If you look at paragraph six,
they wanted his stored, electronic mail, text message,
video messages, address book, GPS information,
contact list, personal calendar, to-do list,
history of calls sent, received, and missed,
and any fruits of instrumentalities.
So it just seems like that's just like,
"Let me just look through your phone."
-: And again, this warrant was issued prior to Doe Lawson.
It talks about the more particularity
being necessary to do that...
-: But this wasn't a new concept.
-: I think it was in 2013, right?
It was...
You can, prior to cases like Doe, Lawson and Broman,
that talk about more particularly being necessary.
But what happens, the secondary question is,
if this was a general search warrant,
what does one do, but exclude those things
for which there was a probable 'cause.
And instead focus on the things for which there was, right?
And so we still would have communications,
we would still have location information.
I would argue you still have had search warrants.
And those were...
Sorry, web searches.
And those were all the kinds of things...
-: I thought you get the GPS data,
because we distinguish this probably is even...
This meets the GPS standard,
but I'm not sure you get the other things.
But doesn't it matter here?
I hate to ask 'cause...
I mean, there's so much other evidence.
What do you get from the phone
that you don't have elsewhere?
-: Agreed. And I make that point.
And that's why I really do think it's okay here,
to put the cart before the horse and talk about whether,
there was a substantial likelihood of justice.
-: Justice. -: Yeah, right.
-: We hope there's a substantial evidence of justice.
-: But you know, one last thing, because I'm confused,
as have been my colleagues here about,
well, what was the law then?
And you mentioned it again with the ubiquitous
and the particular issues,
and you keep on going back to what the law was at the time,
the motion to suppress would've been filed,
but prong one is not measurably below reasonable lawyer.
And prong two is substantial likelihood
of miscarriage justice of the entire record
at the time we were reviewing it.
So I'm having a hard time as my colleagues have had,
of understanding why you want us back.
And when was this? 2013?
-: 2013 was when the warrant issued,
2016 after Doe, Lawson and Brom, prior to Onyx White.
-: And so, why is it that,
that's when we want to do our analysis?
When we're in a first degree murder,
so prong one's different and prong two's different
and we're applying substantial likelihood now.
And so I'm having the same problem
on what doctrine we're applying.
-: I reference a case in my brief,
I believe it was a first degree murder where I mentioned,
it's the precedent at the time of the trial that dictates.
And it was a recent case,
I believe it was your decision justice Kafker.
And if I'm misquoting it, I sincerely apologize,
but I understood it to mean...
Kafker: Which case are you on?
-: This was a Commonwealth Lewis,
where a determination trial was not in fact in effective
in moving to suppress pretrial identification excluded,
the trial was tied to precedent existing
at the time of trial where the question was, I believe,
"Would a motion of suppress
would've been successful at the time of the trial?"
-: I guess the issue is though, we have the 33-E overlay.
Doherty: You do?
-: So I mean, that gets you subpoena,
but we go beyond a subpoena.
-: Sure. And if that is the case,
and the question then becomes,
was there a substantial likelihood
of a miscarriage of justice?
And did this influence the jury?
I would point to court to its decision in Moran,
when it talks about how central the text messages
that shouldn't have been a part of the trial record
were to the Commonwealth's case.
This is not that case.
In fact...
Gaziano: What's derivative of the cell phone?
-: You have of cumulative evidence
of the defendant's heroin addiction,
which was established through Oly Crespo's testimony,
as well as the calls that were made to...
Shown in the toll records to the rehab centers
shortly after the murder and a couple days after that.
-: Do you have Crespo without the phone?
Crespo's one of the contacts in the phone.
Do you get to him without the phone?
-: Well, we have his call records
and we pursued to a separate process.
And we have the fact that it is Oly Crespo, according...
Based off of other process,
which looks like it was another administrative subpoena
for subscribe records associated with that phone number.
So that would've been found without.
And there were no text messages or anything to Oly Crespo.
-: We have Crespo speaking to him
within the relevant timeframe.
Doherty: Right, he...
-: Under subscriber information.
-: Right. We see him talking a phone call on July 5th,
and that coupled with the calls
to the various rehab clinics shows
that he was struggling with heroin at the time.
I don't wanna understate how compelling
the other circumstantial evidence here was,
that the opportunity perhaps was the strongest,
and motive was much more secondary
to the strength of a circumstantial case,
where there are three people in a locked building,
one of whom, here's the murder and the other is the victim.
-: I'm sorry, I can't resist saying this though,
this really strong circumstantial case is a mistrial twice,
a two-way Rodriguez charge in the third case
and days of deliberation
after the two-way Rodriguez's charge.
-: Sure. And I'll say this,
it's hard enough to convince 12 people
about a direct evidence case.
It is harder to prove beyond reasonable doubt to 12 people,
not just what the facts are,
but what inferences can be be drawn from those facts.
-: Does that reasonable point help you or hurt you?
-: I think it helps us.
This was an entirely circumstantial case,
and it's gonna be a challenge for any jury to do that.
And I wouldn't read too much into the fact
that there was two hung juries before, but prior.
-: But we're doing an analysis of what the prejudice was.
-: I'm sorry, I missed that part.
-: We're analyzing whether it's substantial
likelihood or prejudice,
we're analyzing how important this evidence was.
-: Sure. And I guess, if the question is evidence
that was derived from the cell phone or evidence...
-: Well, you're making the point
that this is a very strong case anyway,
putting aside the cell issue,
so that it should be affirmed anyway,
even if it was error not to file the motion,
or even if there wasn't probable 'cause for the cell phone.
And I'm just making the point that,
when you say how hard the case would be to prove,
I'm asking you, if that helps you or hurts you.
-: I would say, the strength of the Commonwealth's case
and the strength of the circumstantial evidence
remains unaffected by what came in through the cell phone,
which was all about opportunity, right?
Nothing on the cell phone speaks
to the defendant's opportunity to do this.
Nothing about the defendant's heroin usage,
speaks to the defendant's opportunity to do this.
And the... -: Going back...
I'm sorry. -: Yeah.
-: I'm just still stuck on this general warrant issue.
And if they had done their sir search warrant,
and instead of saying, "We wanna search the phone,"
we said, "We wanna search the defendant's apartment.
We wanna look at all his mail.
We wanna look at his calendar,
we wanna check all the to-do lists,
whatever's hanging on the fridge that I have to do."
And all of those, like...
We would just like to look through his mail
and his personal effects to see what we can find.
Well, why wouldn't that...
That would be wrong, right?
-: I think, I'm not...
I think if instead they said,
"We wanna look for his communications,
that would be correct," right?
Cypher: Stored electronic mail, that's communication?
-: That's communication.
-: So if I wanna look through all his mail at home,
any personal mail that came in, that'd be okay too?
-: I think if they had the looked at things that were outside
the realm of what probable 'cause is established,
you would exclude those portions of those things
and if the remedy isn't to exclude everything,
but rather to look at and determine what was obtained
as the result of a general warrant and what wasn't,
then here, there's communications, those come in,
location comes in, efforts to sell
or dispose of this property, all...
That speaks to the communications that were obtained.
Really, everything about the web searches.
And even then, you know,
it would be reasonable to conclude
that somebody would Google pawn shops
that are open on 4th of July weekend
in order to sell these things.
Cypher: Okay.
Doherty: I'm not sure if that fully
answered that the question, but...
-: No, yeah, it does.
-: I'm not sure I raised my policy arguments
with respect to the question,
whether the court can dismiss these,
in the interest of justice, when there's two...
-: Do you wanna talk about the prior bad acts
and the issue of the propensity?
-: Sure.
So the evidence of the defendant's heroin usage was timely,
the evidence showed that he was calling pawn shops
an hour or so after the murder had occurred,
and that he was looking to sell these goods.
Oly Crespo testifies that he went to one pawn shop
with this person in the entire of the time, knowing him,
it was on Route 16, either in Everett Avenue,
that's where the pawn shop was located,
and that they went back to the house and did heroin.
So the question of whether...
Well, further of all, it is strong motive evidence
that somebody who is addicted to a substance
has a greater motivation to do things than...
Or that there was a driving force for why he was doing this.
It is the difference between not having food, I think,
and starving, right?
And so that's the essence of addiction
and addictive substances is that it creates
a need that isn't otherwise there.
It doesn't speak to his propensity to murder
or his propensity to steal.
And in fact, that was discussed at length
during jury voir dire.
There were two questions posed to every juror by the judge,
with respect to any biases or prejudices that would come,
or conclusions that be drawn by the fact
that there may be evidence of heroin use,
but also, defense counsel during individual voir dire,
asked nearly every juror the same series of questions,
really testing, whether they would find
propensity evidence in somebody's heroin usage.
-: So if you have a view of the record,
because appellant fear of the record is different.
That motive like many other prior bad acts
and non-propensity purposes
has a narrow propensity inside of it.
And one of the things here that seems important is that,
they went from the pawn shop to getting the drugs,
to using them, from Crespo's testimony.
But the defendant's position is,
the record doesn't bear that out.
-: So I will concede that Oly Crespo's testimony
is confusing at times,
but it does support,
and you'll see him conceding and agreeing
and saying, "Probably we did this, maybe we did that.
I wasn't there the whole time,
but yeah, we went back to my house and we did drugs.
And it was after the defendant drove me
to the store to do that."
It is not certainly not the strongest evidence that he was,
but it was reasonable for...
Certainly, for the Commonwealth to offer it as evidence.
The fact that it didn't come in as well
as we would've liked is really secondary.
There was certainly no accusation
that it was gonna be any worse than that.
-: Can I ask one factual question, the pawn shop,
is that dependent on the phone
or did they have the pawn shop information
separately from the phone?
-: Sure. They had it separate.
They had been sort of canvassing every place
that could have sold these devices,
and we're lucky enough to find...
-: I gotcha. -: That store.
Thank you for the questions.
I rest my brief, thank you.