-: SJC-12898, Commonwealth versus William D. Shakespeare.
(paper rustling)
-: Attorney Belger, whenever you're ready.
-: Good morning Chief Justice Budd and Justices,
Amy Belger for Mr. Shakespeare.
With me at council table today
is trial counsel, James N. Greenberg.
Greenberg: Good morning.
-: I'd like to start by discussing the issue raised
in my brief about what I allege is the wrongful exclusion
of the grand jury testimony
of the deceased third party culprit witness, Mark Edwards.
My main argument is under Chambers,
where the United States Supreme Court says
that when there is evidence that bears upon
whether or not the defendant is actually the perpetrator
in the case and he wants to defend himself at trial
with that evidence,
that he has a constitutional right to do so.
-: Was this case tried before Drayton?
-: Drayton, yes.
No.
Okay.
So this case was tried
-: Now that that's clear. -: in 2016, right?
And was Drayton 2014?
-: I thought this might proceed
'cause Drayton is our Chambers case, right?
And shows you how unique Chambers-
-: Okay I gotta solve this quickly.
-: It was 2015. -: 2015.
-: Yeah, so that's why I was arguing.
I was curious as to what- -: So Drayton's 2015, right?
-: But that's why
I was curious -: Thank you.
-: As to whether or not that Drayton was raised in this case.
-: Yes, so I think that my best case is still Chambers,
even though we have Drayton because of the facts here,
the specific facts here that are different
than what this court dealt with in Drayton.
So here we have a third party culprit witness
who is giving false testimony under oath in the grand jury.
-: So that, I guess just to stop you there.
The point of admitting it at trial
would not be for the truth of the matter asserted,
but it would be for its falsity.
-: So he's a third party culprit
and the evidence that the jury heard
was that there were three people present
when the victim Marcus Hall was killed.
Marcus Hall- -: But I guess my question is
why is this hearsay if the purpose of the admission
of the grand jury testimony was to show it was false?
Right, hearsay is usually, as I understand it,
admitted for the truth of the matter asserted.
And what you're trying to show is that Edwards was lying.
-: Right, so let me break that down.
So, I would be looking, or trial counsel is actually looking
to admit this was what he testified to
in front of the grand jury so that the truth part comes in,
this was the account he gave to the grand jury.
Right?
And then to say, put that in the context of
the trial prosecutor told the jury in opening
that he was there, Mark Edwards,
when the victim was killed.
The evidence that the Commonwealth put in
was that he was there when Marcus Hall was killed.
And from their say, what he testified to falsely
in the grand jury is a fact that is true.
So it is factually true that he perjured himself
in front of the grand jury for what appears to be
giving false exculpatory evidence as to himself.
So it's not charged as a joint venture.
The Commonwealth
doesn't proceed that way. -: It's kind of a
third party culprits consciousness of guilt.
-: Exactly and trial counsel actually put that on the record
for the trial judge to consider.
Trial counsel argued, this is the third party culprits
consciousness of guilt evidence.
And there's no reason for Mark Edwards to have lied
in the grand jury other than to protect himself.
It is established through the video evidence,
the times on it, and the Commonwealth's concessions,
that he was there, he was physically present.
-: And all of that was presented to the jury?
-: It was as best it could be in the sense that-
-: This is him, this is the video.
This is exactly timeline. -: Exactly.
Yeah, exactly.
So- -: So is this cumulative?
-: Oh, no.
It's not cumulative because if he's lying, right?
About his presence, he is now suspicious.
If I'm a juror, if you're a juror.
Right?
They never heard that he lied to the grand jury
about any of this.
Right?
That changes the evidentiary presentation for me as a juror.
If I hear that he went into the grand jury
and he lied under oath about being there.
He lied under oath about how he found out about this.
-: What I'm missing, and forgive me, Attorney Belger,
is were there other statements that were introduced
that showed he was lying other than the-
-: No, oh, I see what you, yeah,
so it's not cumulative. -: I didn't ask
a clear question.
-: It's not cumulative in the sense that they heard nothing
about him lying.
They heard nothing at all about it.
And it is established, I think it's rare,
at least in my experience it's rare,
to have a record this clear.
Where you don't have to infer anything.
You can directly see this, that he lied to the grand jury.
-: In the closing argument, am I correct, that this was
the third party culprit issue was exploited by the defense?
It was advocated?
-: It was absolutely advocated.
And there was other evidence that the jury heard about,
you know, that was the defense at trial.
-: Were they advocating that it was this particular person?
Attorney Belger: Yes.
Yes. -: Because that goes to
your Salemi argument.
-: It does, it does, so,
and I can pivot to the Salemi argument if we're-
-: Before you do that can you- -: Yeah.
-: Could you apply Clemente too in this context?
Because the judge ruled as on Clemente to exclude it.
Is that right?
-: Yeah, the judge says- -: Just looking at
the Clemente language.
"So our rule in both civil and criminal cases is the prior
recorded testimony," blankety-blank,
where,
okay,
"may be admitted as an exception to the hearsay rule
where the prior testimony was given by a person
now unavailable, in a proceeding addressed
to substantially the same issues as the current proceeding."
And here's the key item, "with reasonable opportunity
and similar motivation on the prior occasion
for cross-examination of the declarant
by the party against whom the testimony is being offered."
Attorney Belger: Right.
So I think what's different here is
these are lies under oath by a third party culprit.
So the process, you know, the Commonwealth is not gonna
cross-examine Mark Edwards about this in the grand jury.
Right?
-: Do they have a similar,
is that standard then met?
-: I don't believe it is because I think
this is a fundamentally different type of evidence
because of what it is.
And you know, the Commonwealth did argue that
it is not clear and I agree with this,
that it's not clear that at the time
of the grand jury presentation
that the Commonwealth knew that Mark Edwards lied
to the grand jury.
That's not clear, you know, it's not clear.
Maybe they knew because Mark Edwards
testifies weeks. -: Well didn't they
put out a flyer?
I mean, didn't the police officers put out a flyer
saying "Wanted"
-: Yes. -: In connection.
And they listed Edwards.
Right? -: Yes.
-: So they knew that Edwards was on that video.
-: They did, they knew
he was on the video. -: Said to the grand jury,
"I wasn't there."
-: And so he comes in and he testifies, "I wasn't there."
And- -: So the Commonwealth knew
at that point that he was lying.
-: I think think you would have to infer that.
I think, I would even say it's a reasonable inference.
They knew that he was lying, but we don't know it for sure.
And the reason we don't is because there were some problems
with the video evidence, it was a little off in terms of
the time they had to adjust that that happens at some point
during the investigation.
It isn't clear that they knew at the time of the grand jury
that this witness they put into the grand jury was lying.
But they certainly knew it
by the time the trial rolled around.
-: So how does that cut?
If they didn't know he was lying at the grand jury
how does that help you get over the Clemente allowance?
-: Because by the time we get to trial
and we're dealing with what evidence is going to come in
and what the jury's gonna hear
and what a fair trial looks like for William Shakespeare,
by that time they definitely know
that he lied in the grand jury.
So what trial counsel wants to do is let the jury hear that
because that's the trial defense and he's trying to give him
a full third party culprit defense that Mark Edwards
as opposed to
William Shakespeare. -: Let me see if I understand
why you say Clemente doesn't rule.
Is it because Clemente deals with sworn testimony under oath
as a basis of admission
and you're not relying on sworn testimony under oath,
you're relying on Chambers, Drayton?
-: Yes I am, that's right, I'm saying it's out of-
-: We get out of
the Clemente world. -: We're outta context.
-: Out of 801s we're getting right into Chambers.
-: I believe in terms of fundamental constitutional rights
to a fair trial, we're way out of that.
We're in Chambers territory.
And I note that there's nothing in the Commonwealth's brief
that the justice- -: Which is difficult for you
because it's a very narrow world of Chambers and Drayton.
-: But the Chamber, it is a very narrow world,
but I also say Drayton isn't dispositive of this
because of the nature of that testimony.
You know, instead of dealing with like.
-: It's not the (stammers) the general principle is
that sometimes it's just so unfair you get the hearsay.
To enable, to allow a defendant to raise a defense.
Drayton is one example of a Chambers case, correct?
-: And this is a completely different kind of example.
So- -: And on your example.
Justice Gaziano: Right, right.
-: I don't wanna interrupt the flow of this,
but on your example I'm still stuck on why this is hearsay.
Are you saying it would be hearsay for the officer
to say this is what he said?
Or are you saying it's hearsay, what,
I forget, blanking on his name and the grand jury said
Edward, what's his name?
-: So his name is Mark Edwards.
-: Mark Edwards. -: Right.
-: So is what he said in the grand jury hearsay?
Is that what you're saying? -: Well, it's
false exculpatory lies.
So, I would say that doesn't constitute hearsay,
but in terms of the way the judge ruled,
the trial judge ruled
and the basis for the trial judge's ruling,
it was all argued and considered
and came down to these issues of hearsay.
And so, you know, but what I'm saying is
when you have a third party culprit defense
that you're putting on
and you have a constitutional right to put on a full defense
and you have lies under oath to the grand jury
that are demonstrably false
and they're exculpatory right, as to that person there,
but we know that they're not true.
The suspicion that falls upon that person, right,
to the jury is very, very powerful.
-: So are you arguing that regardless of whether
his statements are classified as hearsay,
it still should have come in?
-: Because of the nature, yeah,
'cause it's perjured testimony
and because he needs it to defend himself fully.
It's evidence that is available to him
and he needs to have it.
-: So let's just say it's not hearsay.
Because it's not being admitted
for the truth of the matter asserted.
What you're saying, I think, is that it raises
the substantial likelihood of miscarriage of justice
not to have allowed it, even though the issue was waived.
Because the credibility of Edwards was so critical
to the third party culprit defense.
-: I don't think the issue was waived, in the sense that-
-: Well, nobody argued it was not hearsay.
Did they?
Did I miss that?
-: Yeah, I would argue that it is preserved as to non-hearsay
in the sense that over and over again, if you go back
and you look at the transcripts,
the argument that's being made is that
he's lied in the grand jury, this is complete lies.
And this gets in the way of my third party culprit defense.
-: Okay, because I'm confusing that now
with what you said about the judge framing it as hearsay
and the arguments being all about hearsay
are these two different arguments?
-: I think that they were both argued,
but the only way that it was addressed by the trial judge
was with respect to whether or not it was hearsay.
But I believe that the record supports
that both arguments were made.
-: Did the judge rule on the Clemente issue?
I'm sorry. -: Yes.
-: No, no, I got it wrong.
Did the judge rule on the Chambers issue?
-: No. -: Okay.
-: And the Commonwealth didn't address Chambers
in the brief either.
-: So Chambers wasn't brought,
Chambers a 1973 case, it's not brought,
it's not the basis of the argument at trial either.
Is Chambers raised at trial?
-: The case Chambers, you know, was not,
but the proposition of Chambers was certainly there.
My client needs this evidence to defend himself,
to have a full defense, a full and complete defense
that he's entitled to. -: They made a defense without.
-: I'm sorry?
-: So, I apologize.
They made a Chambers defense but they didn't
cite any authority for it?
-: But the Chambers defense is there in terms of
a right to a full and complete defense
that this is
the third party culprit. -: I'm just trying
to figure out, the judge thinks this is a Clemente issue.
It's being argued as a Chambers issue,
but no one tells the judge, you know, read Chambers.
Right?
I know hindsight's easy, but is that right?
Is that an accurate description of what's going on?
The judge doesn't realize this is a Chamber's argument.
he's applying Clemente.
-: Well I think a trial judge with this level of experience
when trial counsel saying to her the grand jury testimony
of the third party culprit witness is complete lies
and that is very suspicious.
And my client needs that evidence to defend himself at trial
in order to exercise his right to a full defense.
I do think that superior court judges
that are presiding over murder cases
should not need Chambers versus Mississippi
to understand that that is a fundamental right
and that he has the right to a full defense at trial.
I think that that was- -: But Chambers is a rule,
a narrow exception to the exclusion of hearsay, right?
Attorney Belger: Did you say which case?
-: Chambers. -: Chambers?
-: Chambers and Drayton they are sort of narrow exceptions
to the exclusion of hearsay.
-: So Drayton is narrow and I would argue too
that Chambers is not narrow.
-: The exclusion of hearsay though.
Attorney Belger: Oh to the exclusion of hearsay.
Drayton is certainly narrow in very facts-
-: I'm not, so let's just stick with Chambers
'cause as you say that's your strongest case.
So isn't Chambers about the exclusion of hearsay?
-: And it also, factually it is about that,
but it is about the right to put on a full defense.
Okay, so we have a deceased witness, right?
So that's how it ends up and the person is not available
and we have prior recorded testimony under oath.
And we have a third party culprit defense,
not just a percipient witness, you know,
not just somebody who has a differing
account to offer the jury.
It's actually a third party culprit that my client alleges
is the perpetrator.
So if you look at Chambers,
what the actual holding of Chambers is, it's where
"constitutional rights
directly affecting ascertainment of guilt are implicated.
The hearsay rule may not be applied mechanistically
to defeat the ends of justice.
And if the evidence undermines the Commonwealth's case
in a way that is indirect yet potentially powerful,
that the defendant should be entitled to it."
So if that's what Chambers says,
I would submit that that's the controlling case
that says that this trial did not align with
what it should have aligned with in terms of his rights
to defend himself with a third party culprit defense,
who was this witness who lied in the grand jury.
-: Can I ask you about Salemi?
-: Yes.
-: So we have in the Salemi case, which is unique,
we have Halloran and we have Salemi
and who knows who did what, right?
But in this case,
and it's in the light most favorable to the Commonwealth
'cause it's really a sufficiency issue.
We have a beef between the victim and the defendant
in a scuffle, we did not have that in Salemi.
So isn't that enough to get the Commonwealth over the rail
on the Salemi issue?
-: What I think is that if all of the evidence
that should go into that calculus goes in, it doesn't.
So what the Commonwealth was able to do
because of the trial judge's ruling
on the grand jury testimony of Mark Edwards.
The Commonwealth was able to argue to the jury
that Mark Edwards was a completely forthcoming person
who was totally cooperative.
Knowing that he had lied in the grand jury.
-: Well it's an interesting issue
because we're looking at it in a light most favorable
to the Commonwealth based upon what was introduced.
You're saying there was, I mean obviously,
if there was error in that big evidentiary ruling
it's in your favor.
But assuming we don't for a sake of argument,
we don't agree with you on the Chambers issue.
Attorney Belger: Yeah.
-: We have to look at the Salemi issue
in the light most favorable based upon what was introduced.
So address it that way.
-: It's tougher that way, however, I would say.
(Justices laughing)
I would say there's three people out there, right?
And Mark Edwards shows up 90 seconds
before this guy is dead, right?
And so, you know, there's not no evidence, right?
That makes Mark Edwards not suspicious.
You know, he comes in the back door,
you have the barbers saying, one of 'em saying,
you know, he's worked there for 20 years
and that's weird for that guy to come in the back door
'cause he'd never seen him before.
-: We've got this- -: Suspicious things.
-: But we've got this confrontation and argument and scuffle.
Attorney Belger: And we got the confrontation,
we have the scuffle and we don't know what happened.
From like, when I look at Salemi and you know,
I look at Halloran and Pap and all that,
that guy that's sitting to the right
looks pretty good for the thing to me, right?
I mean I get it that, you know, oh no one really saw it.
It looks pretty close to me.
These are the three guys that are out there
and no one saw it?
Right?
And we're giving a lot of deference to the fact
that in the Salemi case there's pretty good inferences.
Right?
You know, that suggest one over the other.
But we're saying we're not quite there.
I'd say the same for this with the three back there
and no one saw it and you know,
you can't go on the positioning, 'cause you know,
Salemi tells us you can't go on the positioning like that
because you know,
they at close range. -: Salemi there was that
10 minute gap between the visual knowledge
of where everybody was positioned.
Whereas here, what's the gap or is that in the record?
-: So. -: I mean,
isn't video actually capturing it in real time?
-: Yeah, we have the video.
And it seems quick. -: Okay.
-: Because they hear the gunshots and then, you know,
there's a reaction they say they're afraid.
They wanna make sure, you know,
there's some quiet before anybody's gonna go
actually poke their head out there.
But it's quick, it's not 10 minutes.
But I'm not sure that the 10 minutes versus
let's say one minute would be that distinguishing
it would be more, you know, three people together,
one dead, nobody saw it, two potential shooters
would be more what the focus would be.
Thank you.
-: Okay, thank you.
Attorney Montgomery Lewis.
-: Good morning your Honor,
Sarah Lewis on behalf of the Commonwealth.
Before I begin, I would just like to acknowledge
members of the victim's family
who are in the courtroom with us today.
We're asking this court to affirm the defendant's conviction
for the murder of Marcus Hall.
I would like to begin, if I may,
by addressing the grand jury minutes
and the judge's decision to exclude.
And I would like to first talk about the record
and just clarify some factual points.
Mark Edwards' photograph
was put onto a Boston Police Department flyer
in the days after the murder.
He then, seeing that, or learning that his face was on it,
excuse me, turned himself in
or voluntarily showed up at the police station
and had a recorded statement to the police.
He then did testify in the grand jury.
And his testimony in the grand jury was an admission
that he was there at the barbershop.
In the minutes, or he said he was there that morning.
The video would contradict exactly when he said
he was there, the time exactly, but he said he was there.
He said he did not see the defendant or hear gunshots.
That he received a phone call and he left.
And the video shows that he left the barbershop 90 seconds
before the shooting.
That was what he testified in the grand jury.
At trial the defendant filed a motion in limine
to admit third party culprit evidence.
He did not put in that motion
anything about these grand jury minutes.
It was raised on the sixth day of trial
that these grand jury minutes
of Mark Edwards should come in.
And I think what's important is to
look at the defendant's offer of proof.
He argued that
"it was admissible as prior recorded testimony,
not hearsay," he said.
And that he argued, "he would meet his burden
and that the minutes themselves
met the burden under Clemente.
That the Commonwealth did not have a similar opportunity
and motive in the grand jury."
He then also argued that "they were admissible
because Mark Edwards lied about being at the barbershop
and not hearing the gunshots."
But he did not specifically argue anything
with respect to Chambers,
or this court's application of Chambers in Drayton.
And ultimately the judge's ruling was based on Clemente,
although she also did respond to the arguments
about whether these grand jury minutes should come in
to show that Edwards was lying.
And I think pointing out her and in her response to that was
that we don't know his motive for why
he said he didn't hear gunshots.
We don't know whether that was a lie
because of consciousness of guilt or for some other reason.
And so that was the ruling and I just think that
that factual framework is important to lay out.
-: Can you go back just a minute?
'cause I missed your point about the cross-examination.
I just couldn't hear it when you went through it.
-: About similar opportunity and motive?
Or, okay, so and now I'll get to,
the judge did not abuse her discretion in declining to admit
these grand jury minutes as prior recorded testimony
of an unavailable witness.
The Commonwealth did not have a similar opportunity
and motive or the defendant did not meet his burden
to show that the Commonwealth had a similar opportunity
and motive in cross-examining or in questioning Edwards
at grand jury as they would've added trial.
And there's two, excuse me- -: We don't have a Clemente
issue that's not being argued here,
we have the Chambers issue.
So can you help us as to whether or not
the grand jury minutes would have shown
consciousness of guilt of a third party culprit or not?
-: Yes, and Justice Gaziano, I do understand that
the defendant's not arguing Clemente,
that's what the judge relied on.
And I would say that she properly analyzed it
under that framework because these are prior recorded
statements of an unavailable witness
and a ruling for that reason was proper.
If we move on to the Chambers issue.
I do also question as you have,
this is not hearsay.
So how does these statements or the testimony come in
as consciousness of guilt
or effectively impeachment evidence
under a constitutionally based hearsay exception?
I think that's the first question.
Is this even admissible?
If the point is to prove the falsity of the statements,
as Justice Wendlandt pointed out.
-: Why doesn't the grand jury testimony just come in then?
Because it's not coming in for purposes of hearsay.
-: I-
-: That's what I'm struggling with
is why is this not just per say admissible,
because it's not hearsay?
-: Well then I think then you would turn back,
my understanding would be, to the Clemente issue.
Because prior recorded testimony of an unavailable witness
is a hearsay exception.
And so- -: Yeah, but we don't need
a hearsay exception because it's not hearsay.
-: And it's not, I mean my understanding of Clemente
is it's not considered hearsay under that analysis.
That it's, and even the judge's ruling she said
"assuming that this is non hearsay,
it doesn't come in under Clemente because the Commonwealth
did not have a similar opportunity
and motive in the grand jury."
And we did not have that and I would say for two reasons,
as my sister pointed out, I think it's unclear whether
we knew he was at the barbershop, he's on the video.
It's unclear whether the Commonwealth was aware that
he might have been out back in the back parking lot
at the time of the actual gunshots.
He left the barbershop 90 seconds before.
That's unclear and I think that goes directly to whether
we had a meaningful opportunity to attempt
to contradict his statements on that point.
Meaning his statement, "I didn't hear gunshots."
I think also there's a question of motive,
trial counsel at trial argued that our motive in putting
Edwards into the grand jury was to clear him as a suspect.
And I think our motive was to determine who the shooter was.
And we at best had, you know, for the defendant's position
perhaps that Edwards was present,
but that didn't have any bearing on culpability,
particularly vis-a-vis the evidence against the defendant
in this case.
So I think it does raise a question here of whether
this evidence is even admissible under Chambers
in kind of dealing with that hearsay question.
But even if we go to this constitutionally-based
hearsay exception, very rare this court had strong language
about the rare application of that hearsay exception.
There's two criteria that need to be met.
First, that it's critical to the defense.
And second, that it bears persuasive assurances
of trustworthiness and I don't think that-
-: You keep talking about hearsay exceptions
and it's not hearsay.
Attorney Lewis: I agree.
I agree.
And so then I think it doesn't come in, there's no way to-
-: Why wouldn't it presumptively come in if it's not hearsay?
-: I think because if it's not hearsay
then I think you fall back under the Clemente analysis
and it's not admissible under Clemente.
-: Could it come in to show Edwards' character
or truthfulness?
I mean we're just looping,
we keep looping back around into Clemente.
But I think there's other basis for admitting evidence
statements than hearsay.
Sometimes they're not hearsay.
-: And I understand that and so I think the question is
to the extent it goes to consciousness of that it's
admissible to show Edwards' consciousness of guilt.
And let's assume that it should have come in for that
and I would not concede that.
I think it's mere consciousness of guilt balanced
or at best for the defendant consciousness of guilt evidence
balanced equally against that it could have shown
a fear of reprisal.
Any other motive for why Edwards
said what he said in the grand jury.
And I don't think it has- -: Would you need a why?
Do you need a why he said what he said?
Or couldn't the defendant just have had it admitted?
-: I think there has to be a relevance and I don't-
-: Well it's assuming there's relevance
because he's contradicting what he's told the police.
Attorney Lewis: I understand.
And I understand that, you know, when you think about
what the defense was here and that this related to
his third party culprit defense, but he had ample evidence
and really consistently pursued
his third party culprit defense.
He also- -: I'm unclear.
Did his grand jury testimony
contradict his statement to the police?
-: No, it was consistent.
-: Oh.
-: I would say that and so I think that's
the other question is if it comes in as impeachment
or consciousness of guilt, it's effectively
impeaching the video, there's not a
hearsay declared- -: So it's the video that
his testimony contradicts?
-: Arguably.
The defendant's position at trial was that
Edwards was outside in the back parking lot
at the time of the shooting.
The Commonwealth shared that position.
Now that's not a concession,
that position that the commonwealth took
that Edwards was outback at the time of shooting,
is not a concession that Edwards in fact lied
in the grand jury 'cause he was guilty.
That's the position we took in an anticipation of
the defendant's third party culprit defense.
But I think there's a question of how it comes in
and its purpose and even if it should have come in,
the jury knew that Edwards was present outback
based on- -: What does the video
show in regard to Edwards out back?
-: It shows a darker red,
let me step back to answer your question.
The video shows around two minutes before the shooting,
it shows Edwards walking into the barbershop
and then getting a phone call and walking back out.
Then about two minutes later the defendant walks in
and what's important is Edwards has a dark red shirt on
or a bright red shirt and the defendant has a more muted
burgundy type color red shirt.
So you see two minutes after Edwards walks out,
you see the defendant walk in
and the victim immediately approach him
and may go out together.
And so now to answer directly your question,
it is a grainy video
with the camera pointing out to the back of the barbershop.
But you see two red t-shirts out back.
The Commonwealth's position is that
you see the defendant's red t-shirt as he scuffles
with the victim.
And then you also see a brighter color of a red t-shirt
in the doorway out back, which is arguably Edwards.
But you do not see his face. -: All right so-
-: And then the gunshots happened then?
-: Yes.
At that, well, I would say, and this goes to the sufficiency
and looking at Salemi, this is not a case where
there equal opportunity with respect to both
the defendant and Edwards.
It's a case where the Commonwealth proved
beyond a reasonable doubt that it was the defendant.
The defendant and the victim scuffle
or have a physical altercation at the back door
to the left of the door.
-: On this whole issue of the grand jury testimony,
don't we have to take the evidence
as the Commonwealth argued it?
That being that, you know, and I get the Salemi argument
about who had the beef and who didn't have the beef.
But on the grand jury issue,
don't we have to take the evidence the way it was presented
to the jury by the Commonwealth that Edwards was there
at the time of the shooting?
-: Yes. -: Which is inconsistent
with this grand jury testimony in a statement to the police.
-: Yes.
That'd be inconsistent.
(stammers) Oh, sorry.
-: Did his statement to the police,
did that come in at trial? -: Portions of it,
but not the statement itself.
There was testimony of Sergeant Detective Stratton
by both the Commonwealth -: Okay I didn't want
to interrupt too much but I just needed to get that.
So go ahead. -: Yes.
So that came in
and we do need to take the Commonwealth's position.
I will say there was, Sergeant Detective Stratton,
this initially came out,
the Commonwealth opened by suggesting, yes,
Edwards was back there.
He was one of the two sets of unidentified legs back there.
But Sergeant Detective Stratton's testimony,
which initially the defendant,
I would say opened the door to on cross.
That was Edwards back there, that's my opinion.
I can't say for sure.
But yes, that was the position the Commonwealth took.
But in terms of whether his, Edwards' police statement,
you know, what exactly came in
and other third party culprit evidence that came in,
'Cause I think that's crucial here.
The jury heard- -: The big Drayton point
that the defense counsel would be making is that
he lied that he wasn't there at the shooting.
That's the- -: Yes.
-: And the question is does that meet the Drayton standard?
Although Drayton's hearsay, this isn't hearsay.
You know. -: Right.
And look, I've considered this
and I've struggled with that question.
I mean, looking at under Drayton,
you're looking at whether it's critical to the defense
and whether it bears persuasive assurances.
-: Is there any other evidence that makes that duplicative?
Go ahead, yeah.
-: So it didn't wanna cut off your question.
But that's where I was gonna go in terms of
what other evidence was before the jury.
The jury heard that Edwards,
when he went to the police station,
he turned over his cell phone,
voluntarily agreed to turn it over, but said,
"I erased all the contents because I sell weed."
So to the extent that's consciousness,
well not to the extent,
that's consciousness of guilt evidence
that was before the jury and I would argue powerful
consciousness of g- -: Mine's a different question.
More narrow. -: Okay.
-: From what I gather from this,
although I don't fully follow it yet,
is that the missing information is Edward lied
that he wasn't there at the shooting.
Is there other evidence of him lying about that?
Is there something that's admitted that
makes that point duplicative?
-: No, not that point.
But again, at best it's consciousness of guilt evidence.
And that's not enough.
That mere, let's call it impeachment evidence,
is not enough to raise a reasonable doubt
where there was other consciousness of guilt evidence
before the jury in terms of him wiping his phone clean.
And then also there's no dispute about him being present.
That was before the jury
and the defendant pursued it consistently,
thoroughly, vigorously as the motion judge,
who's the trial judge, discussed in her opinion.
She said "experienced trial counsel mounted a consistently
aggressive challenge to the Commonwealth's theory that
Shakespeare was the shooter in this case
via both third party culprit doctrine and a Boden challenge
to the Boston Police Department's investigation."
That was all thoroughly before the judge
and I think, or the jury, I'm sorry.
And if you look at that and then take this evidence,
I don't think you can say that the fact that Edwards said
he did not hear the gunshots or did not see the defendant
in the grand jury is critical evidence
that would've bolstered those defenses
given what else the defendant put forth before the jury.
If your honors have no other questions,
I would just say that the defendant
should not be granted any relief.
-: Address the Stratton testimony about the video, briefly.
-: Yes.
There was no error in the admission of that testimony.
I think the motion judge's decision, again, the trial judge
on the ineffective assistance of counsel claim
does address this very well,
insofar as identification was not at issue.
The defendant's position was that he was at the back door
at the time of the shooting.
It was just that it was Edwards who pulled the trigger.
So this is not inadmissible identification testimony.
-: Stratton's identifying him as fighting with the victim,
right?
-: Yes.
-: Through the video?
-: Yes and that came out on redirect examination.
After, that did not come in on direct examination
in terms of Stratton's observations of that altercation,
it came out on redirect after I would say
the defendant opened the door to it on cross-examination.
He, on cross-examination, asked about
Edwards being out back, whether Sergeant Detective Stratton
saw a firearm in his hand, in Edwards' that is.
Asked about what Stratton testified in the grand jury
and so what then ended up coming out on redirect
was in response to that.
But I would say that in any event it was not error
because as Judge Roach specifically found
throughout this questioning that the Commonwealth did,
was that the testimony regarding the video
went directly to the state of the investigation,
and directly to the Boden defense
that the defendant was raising.
And she gave a clear and forceful instruction on that point
and how it was ultimately up to the jury to decide
what the video showed.
So I would say there was absolutely no error
in what Sergeant Detective Stratton testified to.
I mean, what was admitted at trial in terms of what he saw
and observed on the video.
The court has no further questions, I would just ask,
I would say that the evidence was sufficient
as to both deliberate premeditation
and extreme atrocity and cruelty
and the conviction should stand.
Thank you.