-: SJC-12982,
Commonwealth versus Lee Manuel Rios.
-: Okay, attorney Reidy. -: Good morning, your honors.
May it please the court.
My name is James Reidy,
and I represent Lee Rios.
If I could start,
I'd like to start with the ShotSpotter issue.
The ShotSpotter evidence was a key factor
in the jury's verdict.
As the Commonwealth argued, provided hard evidence,
as they said in their closing,
to corroborate the cooperating witness's testimony.
-: Can you, I want you,
that would be very helpful to me
if you could be more specific,
'cause from what I understand,
bullets are found next to the body, right?
-: So there is- -: So is there really any doubt
of where he was shot?
-: So there is one casing found,
I believe approximately seven feet from the body.
There were four shots in total, well, excuse me,
ShotSpotter said there were five shots.
There were four wounds,
or four gunshot wounds to the victim.
There's one to the back of the head, one to the neck,
one which was a through and through
from the upper arm to the lower arm,
and then one to the lower leg.
Three slugs were recovered at the autopsy, the head,
the neck, and the leg, which would've left one slug.
However, there was only one,
as far as the evidence was concerned,
bullet hole in the sweatshirt
that the victim was wearing at that time.
And the bullet hole was towards the upper right arm.
So the question becomes,
could that have been a slug that was lodged within,
or trapped within the sleeve
that was then deposited at some point
when the body was dropped there?
And I would say it wasn't produced at trial,
but it was part of the evidence at the motion for the trial
that there was no reporting of gunshots
in that area that night,
including from the resident of the building
by whom the body was found next to.
There was no report from the next door neighbor.
And the next door neighbor had told police
that the day after the shooting supposedly occurred,
which was approximately, I believe,
12 to 15 hours before the body was discovered,
she walked the yard outside of her house,
looked in that particular area where the body was found,
and didn't see a body.
So it would suggest there was at least some evidence,
although admittedly not produced at trial,
but available to defense counsel,
that might have suggested
that that body was placed there after-
-: Okay, so one other question.
-: Sure. -: On the importance of it.
Whether it's 250 feet away or here,
why does it matter in this case?
You're,
this isn't a case where we, there is a shooting,
we know that, there is a dead body.
What difference does it make if it's 250 feet away or not?
-: It was 250 yards. -: Okay, but so again, what-
James Reidy: So two and a half football field.
-: You say Hova shot him, he says your client shot him.
I'm just not sure I understand what,
me raising a very interesting, complicated issue about,
but I'm wondering if it has any meaning
in this case really.
James Reidy: So certainly there's a certain volume
of evidence present within this case.
-: A lot of evidence. -: As I said,
a certain volume of evidence presented in this case.
I do think though that if you look
at how the Commonwealth structured their argument
and what they had said to the court was, you know,
at one point during a sidebar conversation
that the Commonwealth said that I don't think
half the evidence is gonna mean anything here
if the jury doesn't believe Medina's testimony.
Medina was one of the cooperating witnesses,
one of the witnesses who've been charged relative
to the homicide as part of a conspiracy,
and was essentially the Commonwealth's
principle witness within this case.
What ShotSpotter did was provided a scientific backbone
for the Commonwealth to say
you should believe these cooperating witnesses.
You should believe,
it sort of provides the overview
by which the jury should look at this case,
because no matter- -: Can you give me
a specific example
of how the ShotSpotter corroborates Medina?
Just-
-: That the shooting occurred at about 3:23 AM on March 24th.
-: She says that? -: 2:32.
-: 2:32, I'm sorry, I said 3:23.
Thank you, your honor.
-: She says that?
'Cause she's not there. -: Well, she does say
that the body's found soon thereafter that she goes
with two other individuals and finds a body.
She says the defendant is in the area at that time.
She says the defendant has called her
immediately after the homicide to tell her
that the shooting just occurred.
So it provides corroborating evidence for what she said,
the timeline that she lays out
for how homicide occurred. -: But isn't the fact
that the body is exactly where the defendant
tells her it's going to be,
that's pretty good corroboration
as opposed to whether the ShotSpotter does-
-: The body is exactly where Medina tells the police
the defendant told her the body was going to be.
And that Medina doesn't give that statement to the police
until after the body is found in the middle of daylight
in a very public area with a crowd gathered
around the body at the time that it was discovered.
So it's not as if Medina says to the police
before they find the body,
the body is located at 1470 Dwight.
She says the body was found at 1470 Dwight
after the body was found at 1470 Dwight.
-: Do all the ballistics match up?
-: There was no evidence relative to the matching
of the ballistics other than the fact
that they were same class characteristics,
that they were all .38 caliber.
There was a stipulation, there was no ballistics testimony,
but the stipulation was they're all .38 caliber-
-: Did they look at all the expended projectiles,
they're all the same or?
-: They are all .38 caliber,
but there's nothing to correlate them
to one particular firearm.
-: They never- -: Well,
even a specific firearm,
but even in general that they share the same
class characteristics. -: But that evidence
never came up before the jury?
-: Only by way of stipulation that these,
their ammunition, it's .38,
and that the firearm that Jonathan Vera says
was provided to him by Lee Rios,
which Commonwealth alleged was the murder weapon was a .38.
But there's nothing to say that that was,
independently that that was the murder weapon at the time.
I do think understanding that this particular case,
given the volume of evidence,
may not be the proper vehicle for this court to address it.
I do suggest that the ShotSpotter system
is highly unreliable.
There has been nothing to validate it.
And this is a little different than ShotSpotter usually,
how ShotSpotter evidence usually arises.
Typically it's police respond to an area
because there's a ShotSpotter report.
Here, the ShotSpotter evidence was used,
they called their forensic validation tool
to sort of backtrack and demonstrate
that a shooting occurred at a particular time
at a particular location.
There have been two cases at least on record
that I could find that have dealt with the issue
where ShotSpotter is used not as,
I wanna say, you know-
-: So there hasn't been a Daubert-Lanigan
in Massachusetts on ShotSpotter
where they go through the whole Daubert-Lanigan
protocol- -: Not that I could find.
Most cases tend to rely on it and say,
well, in other instances,
courts have gone through Daubert-Lanigan hearing
and found that ShotSpotter is reliable.
In most of those instances, however,
the question was whether ShotSpotter
could accurately detect gunfire,
not whether ShotSpotter could conduct
a backtracking or after action report.
-: So what you're saying,
I think this is the question
Justice Kafker kind of led off with is,
were it the case that it was reactive,
the fact that there are shell casings
on the ground with ShotSpotter alerts,
it's pretty darn good evidence.
We don't need to get into this.
-: I would say that there is one shell casing on the ground.
There are no other
shell casings. -: No,
I was addressing what you said the normal case is.
The normal case is, ShotSpotter alert, please go there,
there's ballistic evidence.
James Reidy: Please go there immediately
and find immediate ballistic evidence.
-: Right. -: It's not that police,
in this case,
police don't go there and find ballistic evidence,
but that ballistic evidence is 25 hours
after the ShotSpotter report.
And where there is not any evidence to say that that,
and again, understanding the reasonable evidence-
-: And as I've seen this play out,
usually if there's a ShotSpotter challenge,
it comes through experts, and the-
-: It does. -: court requires someone
from ShotsSpotter to come in and there's a defense expert.
And- -: It does.
-: Like this case in a way we go, right?
-: And obviously we don't have a defense expert
in this case until post-trial situation.
-: Wasn't, counsel,
in addition to the bullet on the ground,
wasn't there also evidence that the victim's body
was literally frozen to the ground?
-: So there was a police officer who testified
that the victim's body was frozen to the ground.
There was nothing then beyond that to say
how long it would've taken for the victim's body
to be attached to the ground.
There was nothing to say
whether the victim was actually literally frozen
or whether it was some stage of rigor had set in.
It was the testimony of one of the officers
who responded to the scene,
wasn't a police detective,
wasn't a member of the medical examiner's office.
I do understand the court's point that that is, you know,
obviously potentially evidence
that the body was there for a period of time.
But there was nothing to indicate
how long that body was there in, you know,
any idea of how many hours it would've taken
for the body to have adhered to the ground.
Justice Kafker: And there are,
I mean, how many witnesses testify?
'Cause a bunch of them come to-
-: I stopped counting.
-: Yeah, I can't keep track,
because you guys keep changing from first name to last name,
your brief in particular,
made it that hard to follow, but-
-: My apologies. -: But four or five people
are involved in the cleanup exercise,
taking the crutches, removing his phone.
So we have a lot of people corroborating.
I understand they all may have an ax to grind here,
but we have- -: And incentive,
given the fact that they were ultimately charged
with either accessory after or conspiracy to commit murder.
-: You've done a great job of awarding us
to the ShotSpotter thing.
Let's focus on some of the issues in this case then,
other issues.
Do you wanna address the mail issue and,
isn't their response to,
once he's heard talking about bringing drugs
into the prison and the person on the other line says,
"I don't want you to directly send me a check for the,
you know, putting the marijuana paper into the prison."
Don't they have the right to look at the mail
and see who else he's communicating with on this score?
-: I would say that, I would suggest,
well, let me take the check issue.
In order for a check to be issued from the prison.
It's not as if Mr. Rios could go back to his cell,
write a check, and put an envelope.
He would have to go to prison officials,
ask for a check to be issued from his canteen money.
The official would have to ensure
that he had enough in that.
They would have to then write a check.
I believe the testimony was the bursar,
for lack of a better term,
from the prison would come to the cell,
would fill out the check in front of Mr. Rios
to ensure that it was addressed to the right person,
to ensure that it was addressed to the right amount.
And then that check would be placed in an envelope
and then mailed out. -: But again-
-: But there was no evidence to indicate it at all
that Mr. Rios had gone through that process.
-: But once he,
the prison's concerned
about this kind of marijuana paper arriving-
-: Of course. -: And he is saying,
"I wanna get involved in this business."
And the person on the other line says,
"Look, you can't pay me directly."
So then doesn't that raise the whole issue
of how this is gonna happen and how it's gonna be paid?
And- -: I'm not suggesting
that further investigation wasn't warranted.
It certainly was here.
The question is,
given the information
that the jail officials had at the time,
whether they had a specific reason to believe
that Mr. Rios was sending a check to his sister,
to Tiffany Matos.
And yes, the name Tiffany does come up
during the course of one of those phone calls,
but that call wasn't listened to by the officer.
They didn't understand that that name had come up
until after the letter was already seized.
Because that call was made on July 6th.
The letter was received on July 6th.
And the officer who listened to the calls,
because he was a Spanish-speaking officer
and Mr. Rios is a native Spanish speaker,
did not listen to that July 6th call until after,
in the days after it was made.
He didn't provide a specific date,
but he said, "I would listen to the call.
I didn't listen to the calls live,
I would listen to the recordings in the days that followed."
So he didn't specifically say
"I listened to that call on July 7th at 2:00 PM,"
but the inference certainly is
he did not know that Tiffany, not Tiffany Matos,
that the name Tiffany had even come up
during the course of a call,
course of a call unrelated to the scheme
to smuggle K2 into the prison
until after that letter had already been seized.
So at the time that they seized that letter,
they did not have any connection
between Tiffany and the specific,
anybody named Tiffany and the specific scheme,
nor did they have any evidence at the time
that Mr. Rios was somehow sending money out,
because they hadn't gone through the steps
to determine whether Mr. Rios had even sought a check
to be cut from the bursar's office off his canteen.
And that's where the issue lies.
It's certainly not saying
that the jail did not have a reason to believe
that Mr. Rios was involved in some sort of conspiracy,
but whether they had the connection
between that outgoing letter specifically to Tiffany Matos.
And I don't think the fact that he was involved
in a scheme gave them carte blanche
to examine any letter going out.
Certainly, any letter coming in, absolutely.
But any letter going out,
that suggests that they needed additional steps
in order to be able to do that.
-: Can you explain the legal basis
for the argument that you just made?
-: That's a good question.
So obviously there is a lessened degree
of privacy within the incarcereal setting.
I would suggest that there is not,
especially for a pretrial detainee,
there is not an absolute abandonment
of the right to privacy when you enter
into the prison setting,
as even lessened as it is.
And there is certainly not,
I can't point to a specific case that says,
yes, this is what happens,
because there hasn't been a case
that necessarily directly addressed this issue.
Typically it's now coming into the prison
as they're trying to determine a contraband
coming in rather than evidence going out.
Or there might be an instance
where they have an indication
that the defendant is sending out information
that's more concrete than what we have here.
So I would suggest that that given the,
even with the lessened degree of privacy,
that prison officials still need
to have some sort of connection beyond a mere conspiracy
to connect a particular piece of outgoing mail.
Especially here where there was not any indication
at the time that Mr. Rios was incarcerated that they,
that he was given warning
that they could specifically examine outgoing mail.
-: So just to get really concrete about it,
here we have a situation where I think you're conceding
that there was activity afoot where the defendant,
that the prison officials had reason to believe
that he was trying to orchestrate
bringing drugs into the facility,
specifically using the mails,
not in any other way. -: Correct.
-: And so- -: It's hard for me to concede,
it's hard for me to say otherwise on these facts.
-: Yes. So taking that as a given,
you're saying that there is some sort of standard
that at that point having that information,
they cannot just start reading all of his mail on the basis
that he is engaged in a scheme to try and bring drugs in.
And they have to apply some sort of legal standard
to which mail they're going to read.
And what is that standard?
-: So what I'm trying to draw a distinction though
is between incoming mail and outgoing mail in this sense.
Justice Dewar: Well, no, that's my question.
Okay, so you're saying he, because he, I think,
was the guy he was talking to on the phone Peter?
Was that, Peter? -: Peter, yes.
-: So are you advocating
what I'll glibly call it Peter standard
that he could only read his mail to Peter?
-: No. -: So what is the standard
that you're saying where they're gonna,
he's gonna be using the mail to commit a crime
and bring drugs into the facility.
What is the standard that prison officials
have to apply in assessing
whether they can read a particular piece of mail outgoing?
-: I would suggest they have to have a connection
between the outgoing letter itself,
whether that's with the person addressed on it,
whether that's, to Justice Kafker's point,
if there had been,
if he had cut a check to anyone at that point in time.
-: Well, they can send,
but someone in prison can send letters
to people that say pass this along to so and so.
-: So let me also say this, which just struck me,
I also think that they have to provide
some sort of notice to the defendant
that the outgoing mail can be read.
There is notice here certainly
that his incoming mail could be read.
There was notice that his phone calls
would be recorded- -: Is this part
of the prison regs?
-: I'm sorry? -: Is this part
of the prison regs,
prison regulations?
-: So the prison regs were included within the appendix.
If you look at it,
they actually never say that we can look at outgoing mail.
Those- -: They just say mail, right?
-: It says mail,
but then it says incoming mail specifically.
There was no suggestion, I shouldn't say that,
there was nothing concrete within the outgoing,
within the regulations itself
that says they can scan outgoing-
Justice Dewar: But there was a policy specifically
that was available in the law library, was there not?
-: So there was a policy that was in the law library.
Defendants weren't specifically given notice
that there was a specific policy relative to mail.
They were told, look, if there's not,
any other regulation you wanna find,
you can look at what's in the library.
The actual regulation that was produced
by the Commonwealth was a regulation
that was issued subsequent to the,
well, I shouldn't say that,
was dated subsequent to the defendant's incarceration.
And there was no connection to say that the policy
that we've introduced was the same policy
that would've been available to the defendant
at the time that he was incarcerated.
Now, that policy is dated prior to,
I believe, prior to July 6th,
but the defendant was incarcerated in April.
The manual says if you wanna know anything else,
go look at the regulations.
There's no indication that he would've been,
that that regulation was in place
at the time he was incarcerated,
nor is there any information that would say
that he was provided notice of the change in regulation.
I would say one of the important things
when it comes to recording phone calls
is that notice is provided.
And I haven't been able to find a case
with request as you have- -: But that's 'cause
they plaster it on every phone-
-: Absolutely.
And if the defendant had been told by a prison regulation
that says your outgoing mail can be scanned,
I can't raise that issue, to be frank.
The question becomes to what extent did he have noticed
that the outgoing mail could be scanned?
There would have to be a regulation provided,
so the defendant is provided-
-: But wouldn't it be common sense
that the defendant would know
that he can't provide payment for his marijuana deals,
he can't use prison mail to pay for his marijuana deals?
-: Well, it would be common sense,
but that's actually not what he did here.
He sent a letter to his sister.
And so it's not whether there would be common sense
the defendant would know
that outgoing mail could be used to pay marijuana.
-: Well- -: It's common sense
that he knew that his mail could-
-: Yeah, he's engaged in the scheme
to sell weed paper using the mails, right?
James Reidy: I'm using weed paper from now on.
-: Okay.
-: I think obviously he,
well, whether he knew or not as a different story,
I think that whether he should have known,
he should have known
that importing weed paper into the prison
was a serious violation of prison regulations.
Whether he knew that his outgoing mail
could have been seized even regardless
of the fact that he was potentially involved
in a scheme to import that into the prison,
I would suggest is a different question.
-: But it's clear
that he didn't know they were reading his mail.
He wouldn't have written the letter
if he knew they were reading his mail, right?
Justice Dewar: That's a friendly question.
-: Let me put it this way.
I would hope not, I would hope not.
-: On your analogy to the phone calls,
do you think those are affected at all by the Wiretap Act?
And the requirement in that act
that notice be provided to both parties
that the recording is happening?
-: So it's a question I didn't consider,
but I thinks general concept,
although I don't know
if it was specifically addressed in this case,
but when you get a jail call,
you're told that the call is being recorded.
And I do think courts have found that the notice within,
so long as it's posted in a clearly visible area
that the notice provided to inmates is certainly enough.
-: Right, and so that would account for the fact
that the mail might be treated slightly differently than-
-: I would suggest it doesn't necessarily indicate
that the mail would be treated entirely differently.
I do think that, you know, for instance,
simply because there's a post-it or a poster
that says your phone call is being recorded,
now with email that prisoners are able to maintain,
they're also told separately
that their email is also subject to being reviewed.
I think if they weren't told that,
there could be an expectation given the fact
that the prison officials have told you
this is being subject to monitoring,
but you're not told
that something else is subject to monitoring,
a reasonable person could conclude,
well, my phone calls are being monitored,
but no one's told me that my email's being monitored.
No one's told me that my mail is being monitored.
They'd tell me if it was.
-: Okay. -: And seeing
no further questions from the court,
thank you. -: Thank you.
Okay, attorney Lynch.
-: Good morning, may it please the court,
Travis Lynch for the Commonwealth.
To start with the jail mail issue,
this was not,
I think in the defendant's opening brief,
it's conceded this is not actually a fully preserved issue,
but, and when you read the pleadings below,
it was actually litigated
as a First Amendment claim and also an assertion
that the jail didn't follow their own policies,
less so a Fourth Amendment,
Fourth Amendment's not even cited in the original motion.
And there was no development
of an Article 14 claim to below either.
So I think we're limited to substantial likelihood.
And at the threshold,
the defendant doesn't say in the outset,
"I didn't know that my mail would be monitored."
And so I would rely heavily on the Miller case
where the court really went no further
than he didn't establish that he knew
or was unaware that they would be monitoring his mail.
To the somewhat friendly question regarding
did the defendant actually know
that they were monitoring his mail
because he said all sorts
of horribly incriminating things in there.
He was making telephone calls on a recorded line
that he knew was being recorded,
talking about importing dangerous narcotics into the jail.
So I don't think that even if he knew,
I don't think that would've stopped him
from incriminating himself in communications.
I don't think that the wiretap statute
has any applicability to a letter,
because it's not a oral, I'm not sure,
I wasn't really sure
what your honor's question was to counsel,
but, and the, obviously,
there's no question about the ability
of the jail to monitor the telephone call.
That's not an issue here.
They have, he has actual notice that the jail's monitoring
his phone calls. -: Can I ask you
to address the ShotSpotter issue?
-: Sure.
This is not a case, I don't think,
there was no Daubert-Lanigan motion
in this case at the initial trial level.
There's never been a request
for a Daubert hearing. -: What was the motion
that was made?
-: Essentially it was,
ShotSpotter won't give us enough information
to litigate a Daubert claim.
Again, when confronted by the trial judge,
trial counsel says no, this is not a Daubert motion.
I'm paraphrasing, but that's what she said.
-: So it was a preface to a Daubert
in order to get the information,
in order to make the Daubert showing?
-: That's my understanding of the point of their motion.
And then they had the voir dire
in the middle of the trial and then the judge said,
"You have enough to have made a challenge
if you had chosen to."
I would note this case was heavily litigated.
It was a 2015 indictment,
and it comes to trial in early 2018.
I've lost track of the number
of pretrial motions to suppress.
There were multiple evidentiary hearings.
The only one that's on appeal here is the pretrial,
the jail mail issue.
It's not as if they couldn't have made that argument before.
-: Did the Commonwealth make much of the ShotSpotter?
I mean, I can see they're not so focused on it.
I mean, but, I mean,
did you belabor it?
'Cause I just don't see its relevancy here,
but did you go around saying this corroborated
the witness testimony in a number of occasions?
I haven't read these transcripts yet.
-: Oh, okay. -: When I read the transcripts,
am I gonna find the prosecutor jumping up and down saying,
"And this is confirmed by the ShotSpotter
and this is confirmed by the ShotSpotter"?
-: The trial prosecutor does say that the testimony
of the trial witnesses is to a degree,
like, he does say it a few times in the transcripts.
I would agree with that.
But he's also saying things
like they're also corroborated
by things like the telephone records,
because there's a variety of,
people are making cell phone calls
all throughout the events of this case.
Those records are also in evidence.
I didn't get into it in great detail in the briefing,
but those records were in evidence.
So trial prosecutors saying
they're corroborated by the ShotSpotter,
they're also corroborated by telephone records.
So it's true that he said that we did rely on it below,
but it just wasn't,
I don't think it was nearly as important
as defense is making it out to be on appeal here.
And again-
-: And what difference would it make
if it were 250 yards away versus,
'cause they seem to have a pretty good point that the echo,
you know, removing the echo
and rejiggering the location is subjective,
and they would've been able to show that much better.
But does it matter whether it's 250 yards away or not here?
-: I don't think so,
because there's evidence that places the defendant
and the victim in this area right, you know,
invariably right before the murder happens.
There's the testimony of,
I believe her name was Melendez,
And the taxi driver that establishes
that they go to this area of Springfield.
The taxi driver drops them off on Calhoun Street.
The body is found near 1470,
I believe that's the address of Dwight Street.
Calhoun and Dwight Street intersect.
1470 is at that intersection.
So the taxi driver drops them off
right near where the body is found, essentially.
And it was a discharge,
it was the remains of a bullet.
It wasn't, I believe the evidence was,
it was the remains of a bullet that was on the ground,
not shell casings.
That's my recollection of the testimony.
And the body was found frozen to the ground.
So we don't have a Daubert hearing in this case.
There's a common law newly discovered evidence claim.
The judge said it's not really newly discovered,
given that the testimony was six months before,
the Green testimony- -: How would defense counsel
reasonably have known about Green's testimony
in California six months earlier?
-: Well, there was a newspaper article
about it that could have been found.
-: Where was that published?
-: It was in San Francisco area newspaper and was,
I mean, I'm not sure if,
I presume it was available on the internet,
because that's where I found it
and that's how I brought it
to the attention of the trial judge.
Also- -: And Green
had previously testified that ShotSpotter was reliable.
-: Green had testified, yes, in some other state,
and it was noted in a appellate decision that the-
-: So why would defense counsel
reasonably be trolling the internet
for an expert named Green who had previously sworn
that the ShotSpotter technology was reliable
for his subsequent different testimony that it wasn't?
How is that reasonable?
-: Well, the article is about ShotSpotter.
So I think you would be looking
for information about ShotSpotter.
That would be my point.
But again, even if it's not, I mean,
setting aside the question of whether it's newly discovered,
for all the reasons that I've already stated,
there's no doubt cast on the justice of the conviction.
The trial judge himself says this trial evidence
was completely overwhelming.
Maybe he didn't use the word completely.
He said overwhelming.
And on appeal, this court has to defer to that,
because he was the trial judge, that there was, granted,
a lot of this evidence is in the form
of cooperating witness testimony,
but there's other witnesses
who aren't necessarily cooperators, such as,
I believe Michael Rivera was a witness
who testified to defendant's confession
or admission to having killed the victim.
He's not a cooperator.
So you have multiple, I mean, and at a certain point,
once you have so many cooperators
who are all saying essentially the same thing,
it really undercuts the weakness
of them being cooperating witnesses.
There's just so much evidence in this case
that the ShotSpotter evidence is not,
just not particularly important,
I would submit. -: Can you address
the second issue about the change,
I can't remember which, again,
there's so many characters here.
The- -: Jehova?
-: One of them changes his testimony.
One testifies that they're going to rob and kill Lopez.
And then when he pleads guilty,
he pleads only to the robbery, right?
-: That's not accurate. -: Okay, go ahead.
-: That person is not a witness at the trial.
So he doesn't change,
that person doesn't testify
at the trial. -: Who's that person?
'Cause they can't- -: That's Jonathan Guevara.
The Guevara who testifies is Nathan Guevara, his brother.
So that might have been confusing in the briefing,
but that Jonathan Guevara is-
-: And he doesn't testify. -: No,
he's not a witness for the Commonwealth.
-: So we don't have to worry about that issue,
is that what you're telling me?
-: Right, because that person,
it's not like that person is recanting
and giving a completely different version of event.
And also there's evidence at trial
that there's talk of a conspiracy to rob.
And all really that this plea is,
that's all that he was willing to plead to.
And also it doesn't matter for an additional reason,
because while he's simultaneously pleading guilty
to conspiracy to rob, he's saying,
"I'm also accessory after the fact to murder,
and the defendant is the person that I helped."
So at the same time, in the same statement, he's saying,
"Yes, I conspired to rob Lopez on that earlier occasion,
and then I helped the defendant cover up the murder,"
which still inculcates the defendant.
So that cast no doubt
on the justice of the conviction either.
Regarding the 33E issue,
if a fact finder accepted the testimony of these witnesses,
it's obviously first-degree murder.
There's no reason to reduce the verdict.
The other point is we agree with the Guardado claim.
There are other firearms convictions
that are not affected by the Guardado issue here.
The improper sale of a firearm and the illegal
or the improper storage of a large capacity weapon
where children were present,
for which the defendant received
a consecutive 14 to 15 year sentence
on and after the murder. -: So you're just conceding
on the licensing issue?
-: Correct. -: Is that clear
in the briefing that you just made that point?
-: I did concede that,
I think I identified the counts.
-: Okay.
But Guardado only applies to some of those counts.
-: Right, 'cause lack of license is not an element
of improper storage and, well,
I don't think there's any briefing about
whether there's a licensure component to improper sale,
but that's not before the court.
We're just conceding on the Guardado issue
as to the 10A and 10H convictions.
I'd ask that you affirm otherwise.
-: Thank you. -: Thank you.