WEBVTT 1 00:00:00.030 --> 00:00:05.030 SJC12984, Commonwealth versus Julian L. Troche. 2 00:00:06.180 --> 00:00:07.293 Okay, Attorney Shaw. 3 00:00:11.910 --> 00:00:13.890 Chief Justice Bud, and may it please the court. 4 00:00:13.890 --> 00:00:14.970 My name is Robert Shaw. 5 00:00:14.970 --> 00:00:18.316 I'm privileged to appear today on behalf of Julian Troche. 6 00:00:18.316 --> 00:00:19.950 My intention this morning 7 00:00:19.950 --> 00:00:21.803 is to begin with the Fifth Amendment issue, 8 00:00:21.803 --> 00:00:24.450 to address the Facebook messages issue 9 00:00:24.450 --> 00:00:27.641 and then to touch on gang evidence and related issues 10 00:00:27.641 --> 00:00:30.870 that we assert a part of a larger pattern 11 00:00:30.870 --> 00:00:33.720 of prosecutorial overreach. 12 00:00:33.720 --> 00:00:35.400 With respect to the Fifth Amendment issue, 13 00:00:35.400 --> 00:00:36.870 I'd like to first be very clear 14 00:00:36.870 --> 00:00:39.932 about what happened that comprises error. 15 00:00:39.932 --> 00:00:42.891 It is beyond any reason dispute in this case 16 00:00:42.891 --> 00:00:46.560 that the prosecutor knew when Mr. Woods, the witness, 17 00:00:46.560 --> 00:00:50.190 was subpoenaed to appear a week before he actually testified 18 00:00:50.190 --> 00:00:53.295 that he did appear, that he consulted with legal counsel 19 00:00:53.295 --> 00:00:56.040 and that he invoked his Fifth Amendment right 20 00:00:56.040 --> 00:00:58.470 to remain silent. 21 00:00:58.470 --> 00:01:02.528 The prosecutor knew that invocation was deemed valid 22 00:01:02.528 --> 00:01:05.819 by a judicial ruling after a Martin hearing, 23 00:01:05.819 --> 00:01:10.560 and after which Mr. Woods was granted immunity. 24 00:01:10.560 --> 00:01:14.520 And when Mr. Woods testified a week later, 25 00:01:14.520 --> 00:01:17.100 the prosecutor wanted him to testify 26 00:01:17.100 --> 00:01:19.920 in a manner that implicated Mr. Troche, 27 00:01:19.920 --> 00:01:24.920 namely that he, Woods was part of a scheme with Mr. Troche 28 00:01:25.350 --> 00:01:27.595 to identify who had shot his son, 29 00:01:27.595 --> 00:01:32.126 that he personally sent Mr. Troche a picture, 30 00:01:32.126 --> 00:01:35.250 that he knew retaliation was going to take place, 31 00:01:35.250 --> 00:01:38.430 and that he communicated with Mr. Troche about it 32 00:01:38.430 --> 00:01:40.260 on November 12th. 33 00:01:40.260 --> 00:01:41.686 And all of that is fine. 34 00:01:41.686 --> 00:01:44.910 The critical error in the case occurred 35 00:01:44.910 --> 00:01:47.730 when the prosecutor didn't hear the testimony 36 00:01:47.730 --> 00:01:49.320 that he wanted to hear. 37 00:01:49.320 --> 00:01:51.000 Mr. Shaw, the prosecutor, 38 00:01:51.000 --> 00:01:55.231 and this is a question, not a statement. 39 00:01:55.231 --> 00:02:00.231 The prosecutor would be able to explore Mr. Wood Sr's 40 00:02:00.240 --> 00:02:03.570 understanding of the scope of his immunity, correct? 41 00:02:03.570 --> 00:02:07.770 I think that it was fair game for the prosecutor to, 42 00:02:07.770 --> 00:02:09.720 with respect to immunity, 43 00:02:09.720 --> 00:02:14.720 to clarify and ensure that he understood 44 00:02:14.730 --> 00:02:18.322 that he could be prosecuted under the immunity agreement. 45 00:02:18.322 --> 00:02:20.160 Right, 'cause if his understanding is, 46 00:02:20.160 --> 00:02:22.020 well, I'm immunized, I can say whatever I want. 47 00:02:22.020 --> 00:02:23.202 Oh, right, sure. 48 00:02:23.202 --> 00:02:24.035 I say, you could say, well, 49 00:02:24.035 --> 00:02:25.749 there are limits to this, right? 50 00:02:25.749 --> 00:02:26.670 Yes. And that's fair game. 51 00:02:26.670 --> 00:02:29.100 I think that that's fair game with respect to immunity. 52 00:02:29.100 --> 00:02:32.779 The problem here occurs because immunity was intertwined 53 00:02:32.779 --> 00:02:34.988 with the Fifth Amendment invocation. 54 00:02:34.988 --> 00:02:37.500 And what the prosecutor did here 55 00:02:37.500 --> 00:02:41.370 is he made a choice to attack Woods in front of the jury 56 00:02:41.370 --> 00:02:44.010 in a calculated manner by eliciting, 57 00:02:44.010 --> 00:02:46.170 you were subpoenaed a week earlier. 58 00:02:46.170 --> 00:02:47.550 You showed up, didn't you? 59 00:02:47.550 --> 00:02:50.370 By part and parcel of saying to the witness 60 00:02:50.370 --> 00:02:54.180 you were immunized is the fact that they invoked, correct? 61 00:02:54.180 --> 00:02:55.494 Sure. 62 00:02:55.494 --> 00:02:56.327 Because I know the old law 63 00:02:56.327 --> 00:02:57.510 and I forget the name of the case. 64 00:02:57.510 --> 00:02:58.343 Yes. 65 00:02:58.343 --> 00:03:00.180 Is that you can't call someone to the witness stand 66 00:03:00.180 --> 00:03:02.640 to make them invoke in front of the jury. 67 00:03:02.640 --> 00:03:03.930 That's prohibitive. 68 00:03:03.930 --> 00:03:05.493 Well, that's right. 69 00:03:05.493 --> 00:03:08.010 And you're also not permitted to ask the jury 70 00:03:08.010 --> 00:03:09.810 or conduct your examination in a way 71 00:03:09.810 --> 00:03:10.830 that you're asking the jury 72 00:03:10.830 --> 00:03:13.470 to draw an adverse inference against the witness 73 00:03:13.470 --> 00:03:14.970 because they've invoked. 74 00:03:14.970 --> 00:03:18.990 So if you have this examination 75 00:03:18.990 --> 00:03:21.600 that we said is you agree is proper, 76 00:03:21.600 --> 00:03:23.985 the bounds of the scope of immunity. 77 00:03:23.985 --> 00:03:26.730 In setting that up, is it permissible? 78 00:03:26.730 --> 00:03:28.170 Well, I guess you're gonna answer this, 79 00:03:28.170 --> 00:03:31.620 but is it permissible for the prosecutor to say, 80 00:03:31.620 --> 00:03:32.820 here are the steps. 81 00:03:32.820 --> 00:03:34.680 You showed up, you were assert the fifth, 82 00:03:34.680 --> 00:03:35.760 you granted immunity. 83 00:03:35.760 --> 00:03:37.230 Now let's talk about the scope of immunity. 84 00:03:37.230 --> 00:03:38.280 No, it's not. 85 00:03:38.280 --> 00:03:40.230 The jury isn't aware about, and you know, 86 00:03:40.230 --> 00:03:42.372 the jury isn't focused on this person, 87 00:03:42.372 --> 00:03:44.880 you know, consulted an attorney 88 00:03:44.880 --> 00:03:47.190 and that's what the prosecutor did. 89 00:03:47.190 --> 00:03:50.040 He said, you've been subpoenaed, you showed up weak. 90 00:03:50.040 --> 00:03:52.934 And then he emphasizes, you showed up with an attorney, 91 00:03:52.934 --> 00:03:57.060 and then he emphasizes you refused to testify. 92 00:03:57.060 --> 00:03:59.760 And then he emphasizes through his questioning, 93 00:03:59.760 --> 00:04:02.820 he elicits the fact that he invoked 94 00:04:02.820 --> 00:04:04.552 his Fifth Amendment privilege. 95 00:04:04.552 --> 00:04:05.385 And that- 96 00:04:05.385 --> 00:04:06.290 Is there is any case law, 97 00:04:06.290 --> 00:04:07.320 and of course read the briefs, 98 00:04:07.320 --> 00:04:09.810 but that deals with, 99 00:04:09.810 --> 00:04:13.170 we have the end result exploring the scope of immunity. 100 00:04:13.170 --> 00:04:16.170 But the foundational questions that you say are problematic, 101 00:04:16.170 --> 00:04:18.981 are the cases that address those foundational questions? 102 00:04:18.981 --> 00:04:20.869 I believe there are. 103 00:04:20.869 --> 00:04:23.700 I mean, I think the state and federal cases 104 00:04:23.700 --> 00:04:25.830 both hold two things very clearly. 105 00:04:25.830 --> 00:04:28.170 First, seeking to have the jury draw 106 00:04:28.170 --> 00:04:30.060 an adverse inference against a witness 107 00:04:30.060 --> 00:04:32.490 because they relied on their constitutional rights 108 00:04:32.490 --> 00:04:34.440 or invoked is improper. 109 00:04:34.440 --> 00:04:36.720 And second, that it will have a strong 110 00:04:36.720 --> 00:04:39.660 and illegitimate impact on jurors 111 00:04:39.660 --> 00:04:42.720 because they will view it as a confession. 112 00:04:42.720 --> 00:04:45.600 The problem here is that what the prosecutor did 113 00:04:45.600 --> 00:04:48.810 was obviously done for purposes of conveying to the jury 114 00:04:48.810 --> 00:04:50.692 that they should not believe Woods, 115 00:04:50.692 --> 00:04:52.890 that Woods did these things 116 00:04:52.890 --> 00:04:57.060 because he wanted to hide his participation with Mr. Troche. 117 00:04:57.060 --> 00:05:00.750 And that in turn shows that Mr. Troche is guilty 118 00:05:00.750 --> 00:05:05.635 and he then emphasized this again in closing argument. 119 00:05:05.635 --> 00:05:10.200 Those two points from the federal and state authorities 120 00:05:10.200 --> 00:05:12.960 they don't answer Justice Gazianos question 121 00:05:12.960 --> 00:05:16.830 about cases regarding the foundational questions, 122 00:05:16.830 --> 00:05:18.570 because the reason there is an immunity 123 00:05:18.570 --> 00:05:20.730 is because of the Fifth Amendment privilege. 124 00:05:20.730 --> 00:05:22.740 So there is necessarily a nexus, 125 00:05:22.740 --> 00:05:25.304 but you're not aware of any cases that explore 126 00:05:25.304 --> 00:05:29.670 how far a prosecutor can go in terms of asking questions 127 00:05:29.670 --> 00:05:31.860 about the foundation of the immunity? 128 00:05:31.860 --> 00:05:34.080 Well, I am, your Honor, because I think- 129 00:05:34.080 --> 00:05:35.460 What are those cases then? 130 00:05:35.460 --> 00:05:39.090 Well, there's Gagnon, these are state cases, 131 00:05:39.090 --> 00:05:40.380 Commonwealth versus Gagnon, 132 00:05:40.380 --> 00:05:43.470 Commonwealth versus Martin, Commonwealth v Rosario, 133 00:05:43.470 --> 00:05:45.000 all cited in my brief. 134 00:05:45.000 --> 00:05:48.930 Federal cases, you have Grunewald versus United States. 135 00:05:48.930 --> 00:05:51.360 US Supreme Court granted a new trial. 136 00:05:51.360 --> 00:05:54.390 That was simply because it was brought out on examination 137 00:05:54.390 --> 00:05:55.530 that there was an indication 138 00:05:55.530 --> 00:05:58.590 before the grand jury, Namette. 139 00:05:58.590 --> 00:06:00.840 And then I've cited multiple cases 140 00:06:00.840 --> 00:06:02.982 in the federal and other state courts 141 00:06:02.982 --> 00:06:06.900 that result in reversal because that was done. 142 00:06:06.900 --> 00:06:08.520 I guess what I'm disagreeing with 143 00:06:08.520 --> 00:06:12.158 is the notion that these are just foundational questions. 144 00:06:12.158 --> 00:06:14.520 I think the court needs to focus on 145 00:06:14.520 --> 00:06:16.110 what the jury understands. 146 00:06:16.110 --> 00:06:17.377 The jury can understand 147 00:06:17.377 --> 00:06:20.137 that this person has been granted immunity, 148 00:06:20.137 --> 00:06:23.280 but that doesn't mean that we go into the fact 149 00:06:23.280 --> 00:06:25.050 that they showed up with an attorney, 150 00:06:25.050 --> 00:06:27.000 they refused to testify, 151 00:06:27.000 --> 00:06:29.367 they invoked their right to remain silent. 152 00:06:29.367 --> 00:06:33.090 Those things, that's not necessary at all. 153 00:06:33.090 --> 00:06:34.560 And in the typical case, 154 00:06:34.560 --> 00:06:36.270 when we're dealing with a witness 155 00:06:36.270 --> 00:06:38.310 who has been granted immunity, 156 00:06:38.310 --> 00:06:41.280 there's a very basic instruction which simply says, 157 00:06:41.280 --> 00:06:43.410 this witness has been granted immunity. 158 00:06:43.410 --> 00:06:45.453 You can take that into account 159 00:06:45.453 --> 00:06:48.150 and consider whether they were offered 160 00:06:48.150 --> 00:06:50.590 any promises by the government. 161 00:06:50.590 --> 00:06:54.600 I've heard those foundational questions 162 00:06:54.600 --> 00:06:56.772 in court a number of times. 163 00:06:56.772 --> 00:06:59.430 Maybe I asked them, but I've heard those. 164 00:06:59.430 --> 00:07:02.760 But I know defense attorneys often do this to witnesses. 165 00:07:02.760 --> 00:07:05.370 They'll say, you know, you consulted with a lawyer, 166 00:07:05.370 --> 00:07:06.270 you assert the fifth, 167 00:07:06.270 --> 00:07:08.100 you've been immunized by this government. 168 00:07:08.100 --> 00:07:11.280 You know, where you usually here 169 00:07:11.280 --> 00:07:12.810 it is from defense counsel. 170 00:07:12.810 --> 00:07:16.980 Well, first, that's not my experience. 171 00:07:16.980 --> 00:07:19.230 I think it's contrary to the case law. 172 00:07:19.230 --> 00:07:22.620 And I think that in terms of, 173 00:07:22.620 --> 00:07:25.543 a defendant is in somewhat of a different position. 174 00:07:25.543 --> 00:07:28.560 I get your point that we hear immunity 175 00:07:28.560 --> 00:07:30.360 and we think Fifth Amendment. 176 00:07:30.360 --> 00:07:33.030 And we fill in the blank and a juror may not do that. 177 00:07:33.030 --> 00:07:35.669 So there's no need for those foundational questions. 178 00:07:35.669 --> 00:07:36.810 And you have to look at 179 00:07:36.810 --> 00:07:38.703 what the prosecutor was doing here. 180 00:07:38.703 --> 00:07:41.430 In this case, both of the factors 181 00:07:41.430 --> 00:07:44.490 favoring reversal in the case law are present. 182 00:07:44.490 --> 00:07:47.610 First, we have intentional tactic by the prosecutor, 183 00:07:47.610 --> 00:07:50.694 which under the case law is itself alone sufficient 184 00:07:50.694 --> 00:07:53.490 to cause reversal. 185 00:07:53.490 --> 00:07:57.210 Second, an alternative basis for reversal exists 186 00:07:57.210 --> 00:08:00.977 if the impression created by the prosecutor 187 00:08:03.699 --> 00:08:07.050 added meaningful weight to a guilty verdict. 188 00:08:07.050 --> 00:08:09.090 And that is also true here 189 00:08:09.090 --> 00:08:11.580 because we have Woods who is a witness 190 00:08:11.580 --> 00:08:13.290 whose relationship to Troche 191 00:08:13.290 --> 00:08:15.120 is alleged to have revolved around 192 00:08:15.120 --> 00:08:18.900 and been a part of the same criminal involvement 193 00:08:18.900 --> 00:08:20.460 for which troche is on trial. 194 00:08:20.460 --> 00:08:23.430 So there's a high likelihood that the jury 195 00:08:23.430 --> 00:08:25.590 not only inferred the guilt of Woods, 196 00:08:25.590 --> 00:08:27.930 but inferred the guilt of Mr. Troche. 197 00:08:27.930 --> 00:08:31.680 And then in this case, we have additional factors 198 00:08:31.680 --> 00:08:34.091 that exacerbated the prejudice. 199 00:08:34.091 --> 00:08:36.630 There was no jury instruction 200 00:08:36.630 --> 00:08:39.120 to address the prosecutor's tactic. 201 00:08:39.120 --> 00:08:41.640 There was no jury instruction to ensure 202 00:08:41.640 --> 00:08:45.368 that no inference could be drawn against Mr. Troche. 203 00:08:45.368 --> 00:08:48.530 The prosecutor's tactic was insulated 204 00:08:48.530 --> 00:08:51.330 because defense counsel was not permitted 205 00:08:51.330 --> 00:08:53.460 to also address the same subject matter. 206 00:08:53.460 --> 00:08:55.680 He tried, the prosecutor objected 207 00:08:55.680 --> 00:08:57.570 and the judge sustained the objection. 208 00:08:57.570 --> 00:09:01.740 And did Attorney Greenberg say anything 209 00:09:01.740 --> 00:09:04.830 when the prosecutor asked about consulting with the lawyer 210 00:09:04.830 --> 00:09:06.937 to say, wait, that's out of bounds. 211 00:09:06.937 --> 00:09:07.890 Did he object to that question? 212 00:09:07.890 --> 00:09:09.570 He was objecting, yes. 213 00:09:09.570 --> 00:09:11.400 I believe he objected pretty clearly. 214 00:09:11.400 --> 00:09:14.070 And then the judge actually intervened and said, 215 00:09:14.070 --> 00:09:15.570 you can't do that. 216 00:09:15.570 --> 00:09:17.400 Okay, so the judge was very explicit. 217 00:09:17.400 --> 00:09:19.980 The issue was known by everybody involved. 218 00:09:19.980 --> 00:09:22.312 Right, so the judge sustained the objection? 219 00:09:22.312 --> 00:09:24.510 Essentially, yes. 220 00:09:24.510 --> 00:09:26.700 He told the prosecutor, you can't do that, move on. 221 00:09:26.700 --> 00:09:30.300 And then the prosecutor returned again to the subject matter 222 00:09:30.300 --> 00:09:32.517 and emphasized again, you refused to testify. 223 00:09:32.517 --> 00:09:34.470 And the judge sustained the objection? 224 00:09:34.470 --> 00:09:35.303 Yes. 225 00:09:35.303 --> 00:09:36.540 Isn't that a problem for you? 226 00:09:36.540 --> 00:09:38.550 Well, it's not 227 00:09:38.550 --> 00:09:43.550 because this is focused on the prosecutor's conduct 228 00:09:43.680 --> 00:09:45.540 and the fact that this came in 229 00:09:45.540 --> 00:09:47.010 and it never should have come in, I mean- 230 00:09:47.010 --> 00:09:49.770 How does it come in if it was objected to and sustained? 231 00:09:49.770 --> 00:09:53.160 Well, because the prosecutor kept returning to it. 232 00:09:53.160 --> 00:09:55.593 And you'll see that in the progression of the question- 233 00:09:55.593 --> 00:09:56.903 That really answered that question. 234 00:09:56.903 --> 00:10:00.150 If so, we have a lot of evidence cases that say, 235 00:10:00.150 --> 00:10:03.420 if an objection is sustained, the evidence is stricken. 236 00:10:03.420 --> 00:10:04.710 The evidence was not stricken. 237 00:10:04.710 --> 00:10:06.600 Well, objection sustained. 238 00:10:06.600 --> 00:10:09.600 And the judge says, anything I sustained you can't consider. 239 00:10:09.600 --> 00:10:11.220 Right, that happened? 240 00:10:11.220 --> 00:10:15.330 He did not say anything you can't consider. Yes. 241 00:10:15.330 --> 00:10:17.460 Whoa, whoa, wait a minute. 242 00:10:17.460 --> 00:10:18.420 In the beginning of the trial, 243 00:10:18.420 --> 00:10:20.624 the judge didn't say this is how it's gonna work. 244 00:10:20.624 --> 00:10:22.235 If there are objections. 245 00:10:22.235 --> 00:10:24.810 I don't recall that specifically, your Honor, 246 00:10:24.810 --> 00:10:25.643 but I'm talking about 247 00:10:25.643 --> 00:10:27.360 this particular progression of questioning. 248 00:10:27.360 --> 00:10:31.290 I think you'll see that this was persistently focused on 249 00:10:31.290 --> 00:10:34.200 by the prosecutor even after the judge 250 00:10:34.200 --> 00:10:35.972 had told him not to do it. 251 00:10:35.972 --> 00:10:38.850 And I think an additional reason 252 00:10:38.850 --> 00:10:41.280 that prejudice was exacerbated 253 00:10:41.280 --> 00:10:45.729 is that the judge further instructed the jury 254 00:10:45.729 --> 00:10:47.746 in a manner that emphasized, 255 00:10:47.746 --> 00:10:51.030 that was consulted with an attorney, 256 00:10:51.030 --> 00:10:52.530 and then he refused to testify 257 00:10:52.530 --> 00:10:54.150 when he was addressing immunity. 258 00:10:54.150 --> 00:10:59.050 That is not part of the typical immunity instruction. 259 00:10:59.050 --> 00:11:01.590 So with respect to the face- 260 00:11:01.590 --> 00:11:02.430 What do we do with the fact that 261 00:11:02.430 --> 00:11:04.580 there was no objection to that instruction? 262 00:11:08.730 --> 00:11:10.950 Well, there wasn't an objection to that instruction. 263 00:11:10.950 --> 00:11:11.783 That's true. 264 00:11:12.638 --> 00:11:14.040 Well, yeah, I know that. 265 00:11:14.040 --> 00:11:17.940 But the question is, how does that affect, you know, 266 00:11:17.940 --> 00:11:21.510 the review that we give this at this point on appeal? 267 00:11:21.510 --> 00:11:23.280 Well, I think that the fact that 268 00:11:23.280 --> 00:11:26.430 that instruction was given exacerbated the prejudice, 269 00:11:26.430 --> 00:11:27.510 and I think that was an error. 270 00:11:27.510 --> 00:11:30.060 And I think that should be considered in combination 271 00:11:30.060 --> 00:11:32.450 with the objections that were made by defense counsel 272 00:11:32.450 --> 00:11:34.143 in this general subject matter. 273 00:11:35.640 --> 00:11:38.280 Now, with respect to the Facebook messages issue, 274 00:11:38.280 --> 00:11:42.662 this issue is grounded in unfair process. 275 00:11:42.662 --> 00:11:45.960 When these messages came to light, 276 00:11:45.960 --> 00:11:48.060 there was no way to meaningfully evaluate 277 00:11:48.060 --> 00:11:51.570 the credibility and the authenticity of the messages 278 00:11:51.570 --> 00:11:53.280 based on the messages alone. 279 00:11:53.280 --> 00:11:55.830 And that is precisely why the judge 280 00:11:55.830 --> 00:11:58.880 had this ongoing concern over a matter of days. 281 00:11:58.880 --> 00:12:01.560 More information was required, and he knew that. 282 00:12:01.560 --> 00:12:05.040 And the problem here is the way he went about 283 00:12:05.040 --> 00:12:06.870 acquiring that information. 284 00:12:06.870 --> 00:12:10.740 He relied on one side in an adversarial proceeding 285 00:12:10.740 --> 00:12:13.350 to gather information outside of court 286 00:12:13.350 --> 00:12:18.240 in what was a private and untransparent setting 287 00:12:18.240 --> 00:12:20.580 that if pursued would undermine 288 00:12:20.580 --> 00:12:22.740 the prosecutor's own witness and their case. 289 00:12:22.740 --> 00:12:24.750 And legally the prosecution 290 00:12:24.750 --> 00:12:26.820 had no obligation to follow through- 291 00:12:26.820 --> 00:12:28.290 What did the defense attorney do 292 00:12:28.290 --> 00:12:29.610 during those couple of days 293 00:12:29.610 --> 00:12:31.860 when the commonwealth was trying to track it down? 294 00:12:31.860 --> 00:12:33.381 Well, he didn't... 295 00:12:33.381 --> 00:12:35.640 Well, I mean, the trial proceeded. 296 00:12:35.640 --> 00:12:39.090 The judge at the outset would not allow any delay 297 00:12:39.090 --> 00:12:40.666 and so the trial proceeded. 298 00:12:40.666 --> 00:12:43.380 But he objected clearly on the record when- 299 00:12:43.380 --> 00:12:46.241 Didn't do anything to try track it down? 300 00:12:46.241 --> 00:12:47.250 Well, your Honor, he's in the middle of trial. 301 00:12:47.250 --> 00:12:50.280 Well, I understand that. I get trial is tough. 302 00:12:50.280 --> 00:12:53.010 Yeah, and so he's objecting on the record, 303 00:12:53.010 --> 00:12:57.248 to not allowing, not bringing Rodriguez in for a voir dire. 304 00:12:57.248 --> 00:12:58.801 Okay. 305 00:12:58.801 --> 00:13:02.263 And then you have the judge who is essentially relying 306 00:13:02.263 --> 00:13:05.070 on the prosecutor's own characterization 307 00:13:05.070 --> 00:13:08.572 of a private conversation with the witness, 308 00:13:08.572 --> 00:13:13.572 who of course had every incentive to adamantly deny 309 00:13:14.070 --> 00:13:17.250 that he had been influenced by anybody 310 00:13:17.250 --> 00:13:19.170 or had lied when he testified. 311 00:13:19.170 --> 00:13:21.570 So that is clearly an unfair process. 312 00:13:21.570 --> 00:13:22.920 And it's an unfair process 313 00:13:22.920 --> 00:13:26.797 because it excluded the defendant's presence. 314 00:13:26.797 --> 00:13:30.660 It deprived the defense of an opportunity 315 00:13:30.660 --> 00:13:32.190 to examine the witness, 316 00:13:32.190 --> 00:13:35.280 and it resulted in an arbitrary ruling 317 00:13:35.280 --> 00:13:37.260 without an adequate means 318 00:13:37.260 --> 00:13:41.310 to evaluate the credibility of Rodriguez 319 00:13:41.310 --> 00:13:45.510 or to the authenticity of the messages. 320 00:13:45.510 --> 00:13:47.130 And then in this case, 321 00:13:47.130 --> 00:13:49.230 there are a number of things that happened 322 00:13:49.230 --> 00:13:53.460 that make very clear that this was an erroneous 323 00:13:53.460 --> 00:13:54.810 and arbitrary ruling. 324 00:13:54.810 --> 00:13:59.186 The judge wouldn't allow a voir dire of Rodriguez 325 00:13:59.186 --> 00:14:00.990 based on the notion that 326 00:14:00.990 --> 00:14:03.300 he would have to close the courtroom, 327 00:14:03.300 --> 00:14:05.850 which he acknowledged under this court's precedent 328 00:14:05.850 --> 00:14:07.230 he could not do. 329 00:14:07.230 --> 00:14:08.940 So that made absolutely no sense. 330 00:14:08.940 --> 00:14:10.380 It obviously wasn't necessary 331 00:14:10.380 --> 00:14:12.900 if it wasn't permitted under law. 332 00:14:12.900 --> 00:14:16.926 Second, he concluded that placing Rodriguez under oath 333 00:14:16.926 --> 00:14:19.110 would make no difference. 334 00:14:19.110 --> 00:14:20.880 That is inconsistent with the principles 335 00:14:20.880 --> 00:14:22.901 that underlie our judicial system. 336 00:14:22.901 --> 00:14:27.194 It does make a difference when we place people under oath. 337 00:14:27.194 --> 00:14:29.550 Third, he assumed that Rodriguez 338 00:14:29.550 --> 00:14:31.394 would simply say the same thing 339 00:14:31.394 --> 00:14:34.803 that he said to the prosecutor in a private conversation. 340 00:14:34.803 --> 00:14:37.938 That is entirely speculative. 341 00:14:37.938 --> 00:14:41.850 He assumed that there were unspecified dangers 342 00:14:41.850 --> 00:14:44.790 that were fraught in his language in bringing Rodriguez in. 343 00:14:44.790 --> 00:14:47.190 And there was no basis in the record for that. 344 00:14:47.190 --> 00:14:50.400 And finally he concluded that no cross-examination 345 00:14:50.400 --> 00:14:54.333 could occur without the information from Facebook, 346 00:14:54.333 --> 00:14:59.250 that also was not supported by the record. 347 00:14:59.250 --> 00:15:01.235 So this was- 348 00:15:01.235 --> 00:15:05.460 So the defense attorney could have taken the screenshots 349 00:15:05.460 --> 00:15:07.440 and cross examined Rodriguez, is your position? 350 00:15:07.440 --> 00:15:08.760 Sure. 351 00:15:08.760 --> 00:15:11.160 He could have asked him about, you know, 352 00:15:11.160 --> 00:15:13.020 confirmed do you have a Facebook account? 353 00:15:13.020 --> 00:15:13.853 Is it active? 354 00:15:13.853 --> 00:15:16.410 He probably could have pulled a profile at that point, 355 00:15:16.410 --> 00:15:17.940 profile picture and asked him. 356 00:15:17.940 --> 00:15:19.380 He could have questioned him 357 00:15:19.380 --> 00:15:22.140 about whether he had contact with others 358 00:15:22.140 --> 00:15:24.960 and messaged other people through Facebook. 359 00:15:24.960 --> 00:15:28.710 Probably could have asked him about his family members 360 00:15:28.710 --> 00:15:33.710 and who may have actually provided the text messages 361 00:15:33.960 --> 00:15:35.340 and things of that sort. 362 00:15:35.340 --> 00:15:38.790 So let's say this was a mistake, an error, 363 00:15:38.790 --> 00:15:39.960 an abuse of discretion. 364 00:15:39.960 --> 00:15:41.193 Yes. 365 00:15:41.193 --> 00:15:42.026 Which is a high bar for you. 366 00:15:42.026 --> 00:15:46.079 But assuming it is new trial, what's the basis for that? 367 00:15:46.079 --> 00:15:46.912 I think there should be a new trial. 368 00:15:46.912 --> 00:15:49.230 Well, of course, but what is the basis for it? 369 00:15:49.230 --> 00:15:51.540 Well, I would point you to the Stuckage case. 370 00:15:51.540 --> 00:15:53.250 there we have a similar situation. 371 00:15:53.250 --> 00:15:54.901 We have a factual conflict. 372 00:15:54.901 --> 00:15:58.710 This court ruled that it was improper 373 00:15:58.710 --> 00:16:03.492 to rely on the prosecutor's word alone. 374 00:16:03.492 --> 00:16:08.190 Judge was unable to rely on the documentation alone. 375 00:16:08.190 --> 00:16:10.653 But I thought Rodriguez's testimony was, 376 00:16:12.090 --> 00:16:13.860 maybe not entirely duplicative, 377 00:16:13.860 --> 00:16:16.800 but somewhat repetitive of the other gentleman 378 00:16:16.800 --> 00:16:18.720 who was washing the car with him that day. 379 00:16:18.720 --> 00:16:20.610 I don't think that's true, your Honor. 380 00:16:20.610 --> 00:16:21.630 So if I look at it, 381 00:16:21.630 --> 00:16:24.945 it turns out Rodriguez was more important than critical. 382 00:16:24.945 --> 00:16:26.910 I think so. I think so. 383 00:16:26.910 --> 00:16:28.560 Which one was the ID witness? 384 00:16:28.560 --> 00:16:29.393 Excuse me. 385 00:16:29.393 --> 00:16:30.930 Which one was the identification witness? 386 00:16:30.930 --> 00:16:32.084 That was Rodriguez. 387 00:16:32.084 --> 00:16:34.200 And the identification took place 388 00:16:34.200 --> 00:16:36.570 six months after the incident 389 00:16:36.570 --> 00:16:40.803 in a procedure that, you know, in 2016. 390 00:16:40.803 --> 00:16:42.360 But, and correct if I'm wrong, 391 00:16:42.360 --> 00:16:45.819 there were two people out there washing the vehicle. 392 00:16:45.819 --> 00:16:46.980 Right. 393 00:16:46.980 --> 00:16:50.070 And one does the photo ID. 394 00:16:50.070 --> 00:16:51.630 That's correct. Six months later. 395 00:16:51.630 --> 00:16:52.463 That was Rodriguez. 396 00:16:52.463 --> 00:16:54.000 And that was Rodriguez, right. 397 00:16:54.000 --> 00:16:56.247 And of course, that wasn't at the scene, 398 00:16:56.247 --> 00:16:58.830 you know, at the scene there was one person 399 00:16:58.830 --> 00:17:00.900 who said that there was a car 400 00:17:00.900 --> 00:17:03.750 similar to Rodriguez's mother's, 401 00:17:03.750 --> 00:17:06.720 but she couldn't say whether it was the same vehicle. 402 00:17:06.720 --> 00:17:10.350 There was a second person witness, Sheila Clabuss, 403 00:17:10.350 --> 00:17:15.350 who testified that the car was dark blue or black, 404 00:17:15.900 --> 00:17:17.550 which was consistent with the picture 405 00:17:17.550 --> 00:17:19.923 that the defense attorney had shown. 406 00:17:20.820 --> 00:17:23.220 So moving on quickly to the gang evidence, 407 00:17:23.220 --> 00:17:25.320 we're asking the court to consider this issue 408 00:17:25.320 --> 00:17:27.360 and its impact in combination 409 00:17:27.360 --> 00:17:29.790 with the larger pattern of prosecutorial overreach, 410 00:17:29.790 --> 00:17:32.760 which includes not just the Fifth Amendment issue, 411 00:17:32.760 --> 00:17:34.200 but inflammatory evidence 412 00:17:34.200 --> 00:17:36.780 pertaining to the September 17th shooting 413 00:17:36.780 --> 00:17:38.777 and the arrest of Mr. Troche. 414 00:17:38.777 --> 00:17:40.955 This court has made very clear 415 00:17:40.955 --> 00:17:44.730 that gang evidence has a high risk of prejudice, 416 00:17:44.730 --> 00:17:46.807 and the foundation needs to be established. 417 00:17:46.807 --> 00:17:51.210 Basic foundational facts, is Mr. Troche a gang member? 418 00:17:51.210 --> 00:17:55.260 Is this incident part of a feud that pertains to the gangs? 419 00:17:55.260 --> 00:17:57.250 Is the information that's being received 420 00:17:57.250 --> 00:18:00.120 coming from reliable sources? 421 00:18:00.120 --> 00:18:01.707 Is it ripe? Is it stale? 422 00:18:01.707 --> 00:18:05.100 And of course, if an officer is called under 702, 423 00:18:05.100 --> 00:18:07.650 those same elements are required, 424 00:18:07.650 --> 00:18:09.383 sufficient facts or data, 425 00:18:09.383 --> 00:18:11.700 reliable principles and methodologies 426 00:18:11.700 --> 00:18:14.880 and information that'll assist the trier of fact. 427 00:18:14.880 --> 00:18:16.740 Now, in this case, defense counsel 428 00:18:16.740 --> 00:18:18.735 objected to the gang evidence. 429 00:18:18.735 --> 00:18:21.617 He was adamant that Mr. Troche was not a gang member. 430 00:18:21.617 --> 00:18:23.490 The prosecutor knew that, 431 00:18:23.490 --> 00:18:26.970 but he sidestepped any foundational requirements 432 00:18:26.970 --> 00:18:29.970 and blanketed the case with gang evidence 433 00:18:29.970 --> 00:18:30.990 through the back door. 434 00:18:30.990 --> 00:18:34.440 He never established that Mr. Troche was a gang member. 435 00:18:34.440 --> 00:18:38.160 He never connected the shooting to a particular feud. 436 00:18:38.160 --> 00:18:41.520 But he repeatedly referenced gangs, gang violence. 437 00:18:41.520 --> 00:18:43.500 He did connect it to a feud. 438 00:18:43.500 --> 00:18:44.333 Excuse me? 439 00:18:44.333 --> 00:18:45.450 He did connect it to a feud. 440 00:18:45.450 --> 00:18:47.640 Well, your Honor, he received, 441 00:18:47.640 --> 00:18:49.680 he elicited testimony 442 00:18:49.680 --> 00:18:52.800 without first doing it outside the presence of the jury, 443 00:18:52.800 --> 00:18:55.262 that there had been these two groups 444 00:18:55.262 --> 00:18:57.330 and conflict that had occurred. 445 00:18:57.330 --> 00:18:59.490 But we're talking about a time period of, 446 00:18:59.490 --> 00:19:01.110 I think 20 plus years. 447 00:19:01.110 --> 00:19:05.100 So we have the September shooting. 448 00:19:05.100 --> 00:19:07.379 Well, yeah, that's a single incident. 449 00:19:07.379 --> 00:19:09.021 Well, you also have Woods- 450 00:19:09.021 --> 00:19:10.622 It's kind of a feud, isn't it? 451 00:19:10.622 --> 00:19:11.455 Sure. 452 00:19:11.455 --> 00:19:15.240 And you also have what's is Wood Sr's testimony. 453 00:19:15.240 --> 00:19:16.073 Excuse me? 454 00:19:16.073 --> 00:19:18.630 You also have Wood Sr's testimony. 455 00:19:18.630 --> 00:19:20.520 You do have Wood Sr's testimony. 456 00:19:20.520 --> 00:19:21.540 Yes. 457 00:19:21.540 --> 00:19:26.540 So again, there was evidence of a territorial feud. 458 00:19:26.970 --> 00:19:30.090 Well, again, I mean, territorial, I think, 459 00:19:30.090 --> 00:19:31.500 and what the commonwealth is claiming 460 00:19:31.500 --> 00:19:33.480 is that this was personal retaliation 461 00:19:33.480 --> 00:19:35.280 and a personal incident. 462 00:19:35.280 --> 00:19:37.020 And that's why they're trying to distinguish it 463 00:19:37.020 --> 00:19:38.400 from the gang evidence. 464 00:19:38.400 --> 00:19:40.632 But the gang evidence that came in- 465 00:19:40.632 --> 00:19:43.170 Actually, I think that might be helpful to you. 466 00:19:43.170 --> 00:19:46.470 It's a personal feud, unconnected apparently 467 00:19:46.470 --> 00:19:49.110 to any gang related activity. 468 00:19:49.110 --> 00:19:50.490 Well, sure. 469 00:19:50.490 --> 00:19:52.320 But again, if you wanna- 470 00:19:52.320 --> 00:19:54.030 No, I think it's helpful to you. 471 00:19:54.030 --> 00:19:57.240 Yeah, if you want to intermix it with gang evidence 472 00:19:57.240 --> 00:19:58.700 and put them all together, 473 00:19:58.700 --> 00:20:01.500 the gang evidence is still highly prejudicial 474 00:20:01.500 --> 00:20:03.244 in that context. 475 00:20:03.244 --> 00:20:06.840 And so, you know, this was character and propensity evidence 476 00:20:06.840 --> 00:20:08.340 relative to Mr. Troche. 477 00:20:08.340 --> 00:20:11.340 And then you have to add that to the 35 photographs 478 00:20:11.340 --> 00:20:12.580 that were introduced 479 00:20:12.580 --> 00:20:15.690 relative to the September 17th shooting. 480 00:20:15.690 --> 00:20:19.170 Four of which included a body lying in the street, 481 00:20:19.170 --> 00:20:21.450 one of which showed the victim lying in the street 482 00:20:21.450 --> 00:20:23.190 with a bullet hole in his head 483 00:20:23.190 --> 00:20:26.580 and brain matter and blood spread on the street. 484 00:20:26.580 --> 00:20:31.580 You've gotta add that to, you know, this SWAT information, 485 00:20:33.030 --> 00:20:34.590 really just a big production 486 00:20:34.590 --> 00:20:37.650 about SWAT teams being called in. 487 00:20:37.650 --> 00:20:39.549 They're there for tactical duties, 488 00:20:39.549 --> 00:20:42.780 four SWAT vehicles, four different teams 489 00:20:42.780 --> 00:20:45.960 specialized unit to conduct surveillance to then seize him, 490 00:20:45.960 --> 00:20:49.050 to then take him to headquarters 491 00:20:49.050 --> 00:20:51.030 and then a gun car after that. 492 00:20:51.030 --> 00:20:53.820 So this was all highly prejudicial. 493 00:20:53.820 --> 00:20:57.423 All of this operated as character and propensity evidence. 494 00:20:58.571 --> 00:20:59.733 Thank you. 495 00:21:00.917 --> 00:21:01.750 Okay. Thank you. 496 00:21:02.890 --> 00:21:04.533 Attorney Sherman. 497 00:21:12.424 --> 00:21:13.500 Good morning. 498 00:21:13.500 --> 00:21:15.360 And may it please the court, Catherine Sherman, 499 00:21:15.360 --> 00:21:16.770 on behalf of the Commonwealth. 500 00:21:16.770 --> 00:21:19.770 I'm joined by the trial prosecutor, Mark Zunini. 501 00:21:19.770 --> 00:21:22.151 We're asking this court to affirm the convictions 502 00:21:22.151 --> 00:21:25.410 for the defendant's murder of Donnelley Leonard 503 00:21:25.410 --> 00:21:27.658 and the shooting of Antoine Mayer. 504 00:21:27.658 --> 00:21:30.698 Beginning with the testimony of Woods Senior, 505 00:21:30.698 --> 00:21:35.640 as the court has asked, there don't appear to be cases 506 00:21:35.640 --> 00:21:40.020 that definitively delineate what questions can be asked 507 00:21:40.020 --> 00:21:42.630 when an order of immunity is happening 508 00:21:42.630 --> 00:21:44.160 with a witness on the stand. 509 00:21:44.160 --> 00:21:45.822 Do you think you can ask a witness, 510 00:21:45.822 --> 00:21:50.822 you came here to court with your lawyer 511 00:21:51.210 --> 00:21:53.880 and you pleaded the fifth and you got immunity. 512 00:21:53.880 --> 00:21:56.133 Like those are the fair game. Is that your position? 513 00:21:56.133 --> 00:21:57.360 Yes, certainly. 514 00:21:57.360 --> 00:21:58.940 I think that's important for the jury- 515 00:21:58.940 --> 00:22:00.060 And then you can go back to it 516 00:22:00.060 --> 00:22:01.980 after you don't get the answer that you like. 517 00:22:01.980 --> 00:22:04.713 And you can say again, you know, 518 00:22:04.713 --> 00:22:07.266 what's your understanding of immunity 519 00:22:07.266 --> 00:22:10.463 even though the judge has already told you stop. 520 00:22:10.463 --> 00:22:13.890 And the judge had sustained that objection 521 00:22:13.890 --> 00:22:16.530 on the basis of it invading attorney-client privilege, 522 00:22:16.530 --> 00:22:18.624 which I also argue was incorrect. 523 00:22:18.624 --> 00:22:22.620 But in terms of Wood senior's understanding 524 00:22:22.620 --> 00:22:27.210 of both his fifth amendment that existed 525 00:22:27.210 --> 00:22:29.837 before Hugh was granted immunity 526 00:22:29.837 --> 00:22:33.129 and which ceased to exist after he granted immunity 527 00:22:33.129 --> 00:22:34.737 was fair game. 528 00:22:34.737 --> 00:22:37.620 And for this proposition, 529 00:22:37.620 --> 00:22:41.850 I'd cite to Michel and Di Benedetto cases 530 00:22:41.850 --> 00:22:44.280 that I submitted through a 16L letter. 531 00:22:44.280 --> 00:22:47.720 Di Benedetto involves an immunized witness 532 00:22:50.490 --> 00:22:53.280 who had given conflicting versions of events, 533 00:22:53.280 --> 00:22:56.717 the final of which was the least damning to him 534 00:22:56.717 --> 00:22:59.460 and led to the order of immunity 535 00:22:59.460 --> 00:23:01.531 and defense counsel was allowed to explore 536 00:23:01.531 --> 00:23:04.200 on cross-examination of that witness 537 00:23:04.200 --> 00:23:05.813 at what point in the case, 538 00:23:05.813 --> 00:23:09.780 in his recitation of these different versions of events, 539 00:23:09.780 --> 00:23:11.850 he was granted the order of immunity 540 00:23:11.850 --> 00:23:13.886 and what he understood it to mean. 541 00:23:13.886 --> 00:23:16.534 And though it's not a perfect analogy, 542 00:23:16.534 --> 00:23:19.530 most of these cases deal with cross-examination 543 00:23:19.530 --> 00:23:21.656 of a Commonwealth's witness versus direct. 544 00:23:21.656 --> 00:23:26.656 I think the underlying point and purpose of those questions 545 00:23:27.120 --> 00:23:28.860 being proper is similar. 546 00:23:28.860 --> 00:23:31.571 It's about assessing the witness's credibility, 547 00:23:31.571 --> 00:23:35.548 what they believed they were free from prosecution 548 00:23:35.548 --> 00:23:39.570 of when their Fifth Amendment was asserted 549 00:23:39.570 --> 00:23:41.760 and what the Commonwealth was granting 550 00:23:41.760 --> 00:23:43.530 essentially in that order of immunity. 551 00:23:43.530 --> 00:23:46.830 What does avail and yourself of counsel 552 00:23:46.830 --> 00:23:48.293 have to do with any of that? 553 00:23:48.293 --> 00:23:51.060 I believe it just has to go to the process 554 00:23:51.060 --> 00:23:53.010 in terms of the jury understanding 555 00:23:53.010 --> 00:23:57.149 what happened before the Commonwealth made this, 556 00:23:57.149 --> 00:24:01.835 sought this extraordinary grant of immunity. 557 00:24:01.835 --> 00:24:04.560 And related to that question, 558 00:24:04.560 --> 00:24:07.534 I think Michel and Di Benedetto 559 00:24:07.534 --> 00:24:10.470 as well as the other cases cited in my brief 560 00:24:10.470 --> 00:24:15.060 are informative to the fact that him consulting with counsel 561 00:24:15.060 --> 00:24:19.290 isn't necessarily protected by any attorney-client privilege 562 00:24:19.290 --> 00:24:20.850 or the Fifth Amendment privilege. 563 00:24:20.850 --> 00:24:24.810 If he was being asked to explain to the jury 564 00:24:24.810 --> 00:24:27.090 the advice he had been given, that might be different. 565 00:24:27.090 --> 00:24:28.410 But even those cases say, 566 00:24:28.410 --> 00:24:30.807 if it would've helped the jury understand his credibility, 567 00:24:30.807 --> 00:24:33.720 the attorney-client privilege would've seeded 568 00:24:33.720 --> 00:24:38.720 to that important trial goal. 569 00:24:38.790 --> 00:24:42.480 So here what's being described by defense counsel 570 00:24:42.480 --> 00:24:46.260 as a prosecutorial tactic, I completely disagree with. 571 00:24:46.260 --> 00:24:47.796 They were proper questions. 572 00:24:47.796 --> 00:24:50.250 And as the court has already noted, 573 00:24:50.250 --> 00:24:51.941 no answers came into evidence. 574 00:24:51.941 --> 00:24:56.941 Essentially this witness testified to evidence that was- 575 00:25:00.668 --> 00:25:04.470 So there was an instruction at the beginning or at the end 576 00:25:04.470 --> 00:25:07.050 to say, you know, if there's an objection and I sustain it, 577 00:25:07.050 --> 00:25:09.660 you ignore the answer or the question. 578 00:25:09.660 --> 00:25:10.493 Absolutely. 579 00:25:10.493 --> 00:25:11.760 That it's not into evidence and questions 580 00:25:11.760 --> 00:25:13.950 are not evidence the jury was instructed on that. 581 00:25:13.950 --> 00:25:16.170 If I go back and look at the preliminary 582 00:25:16.170 --> 00:25:18.210 or the post instructions, I'll find that. 583 00:25:18.210 --> 00:25:20.583 The jury was given that instruction, yes. 584 00:25:22.980 --> 00:25:25.980 If the court has no further questions about Wood Sr, 585 00:25:25.980 --> 00:25:28.697 I'll move to the issue of the Facebook messages. 586 00:25:28.697 --> 00:25:31.680 And I'd like to draw the court's attention to- 587 00:25:31.680 --> 00:25:34.710 Because a lot of, there's like four reasons 588 00:25:34.710 --> 00:25:37.710 the judge gives to not have a hearing. 589 00:25:37.710 --> 00:25:38.543 Yes. 590 00:25:38.543 --> 00:25:43.383 Three of them are just not, are not sustainable 591 00:25:43.383 --> 00:25:47.190 that we'd have to close the courtroom, et cetera. 592 00:25:47.190 --> 00:25:49.290 You know, as I read his explanations, 593 00:25:49.290 --> 00:25:52.890 I kinda shook my head on at least most of them. 594 00:25:52.890 --> 00:25:55.518 So other than it wouldn't do any good. 595 00:25:55.518 --> 00:25:57.559 Yes. 596 00:25:57.559 --> 00:26:00.420 Which is, I guess all is what it comes down to 597 00:26:00.420 --> 00:26:01.913 in his view, the judge's view. 598 00:26:02.885 --> 00:26:03.960 Sorry to interrupt. 599 00:26:03.960 --> 00:26:05.280 What I think is important about that 600 00:26:05.280 --> 00:26:06.660 when you're assessing whether or not 601 00:26:06.660 --> 00:26:08.520 this was an abuse of discretion, 602 00:26:08.520 --> 00:26:12.000 is that the judge had information about Rodriguez, 603 00:26:12.000 --> 00:26:14.280 how Rodriguez comported himself in the courtroom 604 00:26:14.280 --> 00:26:17.813 and his overall lack of cooperation with the commonwealth. 605 00:26:17.813 --> 00:26:20.580 So when the judge saw these messages, 606 00:26:20.580 --> 00:26:23.365 and he said on page five of the sixth day of transcript, 607 00:26:23.365 --> 00:26:25.920 these appear to be an obstruction of justice. 608 00:26:25.920 --> 00:26:27.390 In the context of that statement, 609 00:26:27.390 --> 00:26:29.910 he wasn't saying that he believed Rodriguez 610 00:26:29.910 --> 00:26:31.140 to be obstructing justice. 611 00:26:31.140 --> 00:26:34.290 He believed these messages being disseminated 612 00:26:34.290 --> 00:26:37.260 to defense counsel on behalf of the defendant. 613 00:26:37.260 --> 00:26:38.940 But that's an inference. 614 00:26:38.940 --> 00:26:41.659 So the judge never said, as part of my reasoning 615 00:26:41.659 --> 00:26:43.861 is I was able to assess his, 616 00:26:43.861 --> 00:26:45.952 he testified in front of me, 617 00:26:45.952 --> 00:26:48.704 not you, the SJC, in front of me. 618 00:26:48.704 --> 00:26:50.798 He never says that though, right? 619 00:26:50.798 --> 00:26:53.760 No, he doesn't say that explicitly. You're correct. 620 00:26:53.760 --> 00:26:58.760 He does speak to though the futility or not the futility, 621 00:26:59.640 --> 00:27:01.353 what he believed to be- 622 00:27:03.060 --> 00:27:04.300 Because that goes- 623 00:27:04.300 --> 00:27:05.780 The lack of import of bringing (indistinct) 624 00:27:05.780 --> 00:27:07.248 The fact he testified right in front of the judge 625 00:27:07.248 --> 00:27:11.100 goes into why he has an abusive discretion essentially 626 00:27:11.100 --> 00:27:13.287 because he made the call, right. 627 00:27:13.287 --> 00:27:15.688 There's nothing magical about that. 628 00:27:15.688 --> 00:27:20.688 Again, I'm just worried about an abusive discretion 629 00:27:21.030 --> 00:27:25.170 where a lot of the things the judge said were just not true. 630 00:27:25.170 --> 00:27:26.250 I mean, closing the courtroom 631 00:27:26.250 --> 00:27:28.316 you would concede isn't an issue. 632 00:27:28.316 --> 00:27:29.330 Right, he wouldn't. 633 00:27:29.330 --> 00:27:30.600 He should have used it. 634 00:27:30.600 --> 00:27:32.531 That's not a legitimate basis to deny. 635 00:27:32.531 --> 00:27:34.062 Agreed, agreed. 636 00:27:34.062 --> 00:27:38.220 I agree that he was listing reasons 637 00:27:38.220 --> 00:27:42.630 that don't necessarily bear on whether or not 638 00:27:42.630 --> 00:27:43.920 this was an abusive discretion. 639 00:27:43.920 --> 00:27:46.320 But ultimately I'd say it was not 640 00:27:46.320 --> 00:27:49.410 because of both the judge's information 641 00:27:49.410 --> 00:27:50.370 that he had in the courtroom, 642 00:27:50.370 --> 00:27:52.440 his assessment of the reliability 643 00:27:52.440 --> 00:27:56.520 and the lack of evidentiary value that those messages had, 644 00:27:56.520 --> 00:27:58.500 and the fact that they were contradicting 645 00:27:58.500 --> 00:28:00.770 what he had viewed occur in the courtroom. 646 00:28:00.770 --> 00:28:02.737 How can he make that assessment based upon 647 00:28:02.737 --> 00:28:05.165 just what the prosecutor tells him? 648 00:28:05.165 --> 00:28:09.930 He took the prosecutor's, so, actually, let me back up. 649 00:28:09.930 --> 00:28:11.910 The judge ordered the prosecutor 650 00:28:11.910 --> 00:28:13.410 to get in touch with Rodriguez 651 00:28:13.410 --> 00:28:15.150 and to get this information before the court. 652 00:28:15.150 --> 00:28:18.300 No, he ordered him to get in touch with Rodriguez 653 00:28:18.300 --> 00:28:19.200 through detectives 654 00:28:19.200 --> 00:28:21.948 and ask if Rodriguez would allow access 655 00:28:21.948 --> 00:28:24.395 to his Facebook account. 656 00:28:24.395 --> 00:28:29.395 He did not order the prosecutor to ask Rodriguez, 657 00:28:29.490 --> 00:28:30.420 are these right? 658 00:28:30.420 --> 00:28:35.420 You know, we've gotten these Facebook posts, is this July? 659 00:28:36.810 --> 00:28:38.400 Are you part of some sort of scheme? 660 00:28:38.400 --> 00:28:40.320 And have Rodriguez adamantly deny. 661 00:28:40.320 --> 00:28:43.890 He had sent the prosecutor off 662 00:28:43.890 --> 00:28:47.190 to conduct an ask of Rodriguez, 663 00:28:47.190 --> 00:28:48.780 can we look at your Facebook account 664 00:28:48.780 --> 00:28:52.530 to shortcut the need to go to Facebook to get access. 665 00:28:52.530 --> 00:28:55.620 And I certainly defer to the record 666 00:28:55.620 --> 00:28:59.730 of what the judge specifically asked the prosecutor to do. 667 00:28:59.730 --> 00:29:02.070 But the prosecutor was asked to get information 668 00:29:02.070 --> 00:29:03.627 and to bring it back before the court. 669 00:29:03.627 --> 00:29:08.160 I note that defense counsel agreed to this course of action. 670 00:29:08.160 --> 00:29:10.285 The judge was explicit at many points 671 00:29:10.285 --> 00:29:12.450 asking both parties whether or not 672 00:29:12.450 --> 00:29:13.860 they had any other suggestions 673 00:29:13.860 --> 00:29:16.207 saying he was open to another course of conduct. 674 00:29:16.207 --> 00:29:18.790 The defense counsel had no objection. 675 00:29:18.790 --> 00:29:21.031 Well, defense counsel asked for voir dire and he said no. 676 00:29:21.031 --> 00:29:25.080 Yes, and I meant that in reference 677 00:29:25.080 --> 00:29:27.570 specifically to the prosecutor calling Rodriguez 678 00:29:27.570 --> 00:29:29.296 or getting information from Rodriguez, 679 00:29:29.296 --> 00:29:32.403 nor did defense counsel ask to be a part of that phone call. 680 00:29:32.403 --> 00:29:34.140 But most importantly, 681 00:29:34.140 --> 00:29:36.420 the judge was taking the prosecutor's report 682 00:29:36.420 --> 00:29:38.370 of what happened during that phone call 683 00:29:38.370 --> 00:29:39.930 as an officer of the court. 684 00:29:39.930 --> 00:29:42.900 And in this context, I feel like that's especially, 685 00:29:42.900 --> 00:29:45.120 well it's important in any context, of course. 686 00:29:45.120 --> 00:29:50.120 But here the judge was giving that level of respect 687 00:29:51.540 --> 00:29:53.220 to the report of the prosecutor 688 00:29:53.220 --> 00:29:55.830 in the same way he was giving that level of respect 689 00:29:55.830 --> 00:29:57.150 to the report of defense counsel, 690 00:29:57.150 --> 00:29:59.213 of how he came about these messages. 691 00:29:59.213 --> 00:30:01.620 So for it to be portrayed 692 00:30:01.620 --> 00:30:05.790 as if there was an unfair amount of credit 693 00:30:05.790 --> 00:30:07.950 being given to the prosecutor here 694 00:30:07.950 --> 00:30:09.240 because of their role of the government, 695 00:30:09.240 --> 00:30:11.512 I don't think is a fair as assessment- 696 00:30:11.512 --> 00:30:13.738 But the problem is not so much believing the prosecutor 697 00:30:13.738 --> 00:30:15.935 that he accurately reported. 698 00:30:15.935 --> 00:30:18.840 Rodriguez told him the problem, 699 00:30:18.840 --> 00:30:22.110 I think is not allowing anybody other than the prosecutor 700 00:30:22.110 --> 00:30:24.650 to ask Rodriguez directly. 701 00:30:24.650 --> 00:30:27.818 Your Honor is correct that the judge 702 00:30:27.818 --> 00:30:31.380 did deny the option of having a voir dire in court, 703 00:30:31.380 --> 00:30:32.970 but he did not deny the option 704 00:30:32.970 --> 00:30:35.310 of anyone else speaking to Rodriguez. 705 00:30:35.310 --> 00:30:38.730 Defense counsel did not pursue that information himself, 706 00:30:38.730 --> 00:30:40.839 did not ask for funds for an investigator 707 00:30:40.839 --> 00:30:44.550 to speak to Rodriguez or to Rodriguez family members 708 00:30:44.550 --> 00:30:46.530 that seemed to be alluded in these messages. 709 00:30:46.530 --> 00:30:49.015 There were certainly other avenues of investigation. 710 00:30:49.015 --> 00:30:52.910 There are. But this is where I'm troubled. 711 00:30:52.910 --> 00:30:56.280 We all know that there is a difference 712 00:30:56.280 --> 00:30:58.559 between speaking to someone out of court 713 00:30:58.559 --> 00:31:01.350 versus speaking to somebody in court 714 00:31:01.350 --> 00:31:03.422 in a seat under oath or affirmation 715 00:31:03.422 --> 00:31:05.670 with a judge sitting there with a robe 716 00:31:05.670 --> 00:31:07.680 and prosecutors and defense lawyers. 717 00:31:07.680 --> 00:31:09.030 It's very different. 718 00:31:09.030 --> 00:31:14.030 And considering that Rodriguez was the ID witness, 719 00:31:14.732 --> 00:31:17.966 I mean, in this kind of a case, 720 00:31:17.966 --> 00:31:22.116 understanding that abusive discretion is a really high bar. 721 00:31:22.116 --> 00:31:26.100 And we've had cases before where we've talked about 722 00:31:26.100 --> 00:31:28.216 if a judge makes it an evidentiary decision 723 00:31:28.216 --> 00:31:31.440 based on an erroneous understanding of the law, 724 00:31:31.440 --> 00:31:32.430 that that's an abuse. 725 00:31:32.430 --> 00:31:33.900 And clearly in this case, 726 00:31:33.900 --> 00:31:36.120 there's a bunch of reasons that the judge gives 727 00:31:36.120 --> 00:31:37.409 that were just wrong. 728 00:31:37.409 --> 00:31:40.721 And so in light of all of that, 729 00:31:40.721 --> 00:31:44.250 is it not an abuse of discretion 730 00:31:44.250 --> 00:31:47.400 or is the commonwealth saying it's a prejudice issue, 731 00:31:47.400 --> 00:31:48.510 that there's no prejudice? 732 00:31:48.510 --> 00:31:49.980 The Commonwealth is arguing 733 00:31:49.980 --> 00:31:51.930 that it was not an abuse discretion. 734 00:31:51.930 --> 00:31:52.920 How? 735 00:31:52.920 --> 00:31:57.780 Because the judge, his resolution to this issue, 736 00:31:57.780 --> 00:32:00.990 which both involved asking by my account 737 00:32:00.990 --> 00:32:02.430 eight different times for the parties 738 00:32:02.430 --> 00:32:04.530 to bring more information to him 739 00:32:04.530 --> 00:32:08.638 that might lend some sort of credibility to these messages. 740 00:32:08.638 --> 00:32:11.550 He said that he would revisit his ruling 741 00:32:11.550 --> 00:32:12.750 if that were the case. 742 00:32:12.750 --> 00:32:15.780 But for the judge to decide not to conduct a voir dire 743 00:32:15.780 --> 00:32:18.330 was not an abuse of discretion. 744 00:32:18.330 --> 00:32:20.910 And I distinguished from the cases 745 00:32:20.910 --> 00:32:23.163 that defense counsel has cited otherwise. 746 00:32:23.163 --> 00:32:25.020 I mean, beginning with Stuckage, 747 00:32:25.020 --> 00:32:27.780 that wasn't the judge abusing his discretion 748 00:32:27.780 --> 00:32:28.980 by not conducting a voir dire, 749 00:32:28.980 --> 00:32:30.300 that was a legal error 750 00:32:30.300 --> 00:32:33.390 about competing first complaint witnesses 751 00:32:33.390 --> 00:32:35.430 and anyone testifying to first complaint 752 00:32:35.430 --> 00:32:39.270 without that being legally vetted in a voir dire process. 753 00:32:39.270 --> 00:32:43.050 And Massey and Angulo, 754 00:32:43.050 --> 00:32:44.732 I believe are both about 755 00:32:44.732 --> 00:32:49.230 defendant's participation in a voir dire, 756 00:32:49.230 --> 00:32:50.820 not about a judge deciding 757 00:32:50.820 --> 00:32:52.620 whether or not to conduct a voir dire, 758 00:32:52.620 --> 00:32:53.673 but whether or not, 759 00:32:53.673 --> 00:32:57.990 or the ways in which a defendant's entitled to participate. 760 00:32:57.990 --> 00:33:00.690 So let's assume that we think it's an abusive discretion. 761 00:33:00.690 --> 00:33:02.490 What is the Commonwealth's response? 762 00:33:05.550 --> 00:33:07.410 Well, preliminarily, I'd say that 763 00:33:07.410 --> 00:33:10.560 this isn't outside the range of reasonable alternatives. 764 00:33:10.560 --> 00:33:11.460 But if this court- 765 00:33:11.460 --> 00:33:13.350 But no, yeah, let's just say we disagree with you, 766 00:33:13.350 --> 00:33:16.470 which is the definition of yes, it's an abusive discretion. 767 00:33:16.470 --> 00:33:17.850 I'm not saying that that's where we are. 768 00:33:17.850 --> 00:33:19.110 I'm just wondering- No, I understand. 769 00:33:19.110 --> 00:33:20.750 To give the commonwealth an opportunity 770 00:33:20.750 --> 00:33:23.793 to let us know why we shouldn't flip this. 771 00:33:24.731 --> 00:33:27.690 Well, to turn to what prejudice 772 00:33:27.690 --> 00:33:29.850 that would've inflicted on the defendant, 773 00:33:29.850 --> 00:33:33.453 the defendant Rodriguez- 774 00:33:34.432 --> 00:33:36.240 To the heirs preserved. 775 00:33:36.240 --> 00:33:39.690 Yes. Yes, it is. 776 00:33:39.690 --> 00:33:41.672 And the substantial likelihood 777 00:33:41.672 --> 00:33:43.740 of a miscarriage of justice here. 778 00:33:43.740 --> 00:33:45.540 Not the standard because it's preserved. 779 00:33:45.540 --> 00:33:47.820 I apologize, I thought that's where your Honor 780 00:33:47.820 --> 00:33:48.690 was trying to- 781 00:33:48.690 --> 00:33:50.615 Prejudicial error. Redirect me. 782 00:33:50.615 --> 00:33:54.960 The error here wouldn't have been prejudicial 783 00:33:54.960 --> 00:33:56.730 because Rodriguez had been on the stand, 784 00:33:56.730 --> 00:33:58.320 was subject to cross-examination. 785 00:33:58.320 --> 00:34:00.210 And as the judge correctly said, 786 00:34:00.210 --> 00:34:01.710 even if these Facebook messages 787 00:34:01.710 --> 00:34:03.360 had been in the hands of defense counsel 788 00:34:03.360 --> 00:34:05.040 when Rodriguez was on the stand, 789 00:34:05.040 --> 00:34:07.650 he would not have allowed him to cross-examine him 790 00:34:07.650 --> 00:34:10.050 about them because the indicia of authenticity 791 00:34:10.050 --> 00:34:11.973 and reliability was nil. 792 00:34:14.700 --> 00:34:19.700 Additionally, I'll leave it at that, I'll leave it at that. 793 00:34:20.670 --> 00:34:21.960 So he basically says, 794 00:34:21.960 --> 00:34:24.240 these are in the same category as rumor, 795 00:34:24.240 --> 00:34:28.740 and I wouldn't allow rumor to be cross examined by rumor. 796 00:34:28.740 --> 00:34:30.270 Yes. Yes. 797 00:34:30.270 --> 00:34:33.685 I think that's a fair inference of how your rules. 798 00:34:33.685 --> 00:34:36.930 Additionally, I'd bring to the court's attention 799 00:34:36.930 --> 00:34:38.928 that as the judge repeatedly mentioned, 800 00:34:38.928 --> 00:34:43.140 this was an issue that could have been, 801 00:34:43.140 --> 00:34:47.040 has not been pursued in a motion for a new trial setting. 802 00:34:47.040 --> 00:34:49.200 The judge said, should this result in a conviction, 803 00:34:49.200 --> 00:34:51.488 you certainly have newly discovered evidence 804 00:34:51.488 --> 00:34:54.540 investigations that you can pursue that was not done, 805 00:34:54.540 --> 00:34:57.115 that has not been pursued in any ways or means 806 00:34:57.115 --> 00:35:01.185 according to the docket or the commonwealth's knowledge. 807 00:35:01.185 --> 00:35:04.649 Would the judge said that at trial. 808 00:35:04.649 --> 00:35:06.270 Yes. 809 00:35:06.270 --> 00:35:07.950 Before the conviction, the judge says, 810 00:35:07.950 --> 00:35:09.990 well, no harm no foul. 811 00:35:09.990 --> 00:35:11.370 Because if you get convicted, 812 00:35:11.370 --> 00:35:13.200 you can bring a motion for a new trial. 813 00:35:13.200 --> 00:35:14.400 He doesn't say it in that way. 814 00:35:14.400 --> 00:35:15.522 Well, I know. 815 00:35:15.522 --> 00:35:17.204 But essentially he says, 816 00:35:17.204 --> 00:35:19.470 listen right now you don't have time 817 00:35:19.470 --> 00:35:24.300 to go get a record subpoena to Facebook. 818 00:35:24.300 --> 00:35:26.401 They're gonna fight it. That's gonna take a while. 819 00:35:26.401 --> 00:35:28.890 If you get convicted Dear defendant, 820 00:35:28.890 --> 00:35:30.570 you can always bring a motion for a new trial 821 00:35:30.570 --> 00:35:33.363 at which point you can call him in Facebook. 822 00:35:34.328 --> 00:35:39.328 You think that's within his discretion to have done that? 823 00:35:39.743 --> 00:35:42.360 I don't think he that informed his discretion 824 00:35:42.360 --> 00:35:44.760 in the way that I might've described it. 825 00:35:44.760 --> 00:35:47.100 What I think is that the judge 826 00:35:47.100 --> 00:35:50.040 in his repeated calls to the party 827 00:35:50.040 --> 00:35:52.080 to bring additional information to his attention, 828 00:35:52.080 --> 00:35:54.572 should there be any also said, 829 00:35:54.572 --> 00:35:57.690 this is my ruling at the time. 830 00:35:57.690 --> 00:35:59.922 I welcome more information. I'm open to suggestion. 831 00:35:59.922 --> 00:36:04.922 Should that not happen, there is this other avenue and- 832 00:36:05.850 --> 00:36:07.770 Is that part of our inquiry? 833 00:36:07.770 --> 00:36:08.603 No. 834 00:36:08.603 --> 00:36:09.600 When we assess prejudice, we say, 835 00:36:09.600 --> 00:36:13.320 well, there was no motion for the trial. 836 00:36:13.320 --> 00:36:15.030 No. No. 837 00:36:15.030 --> 00:36:15.863 Okay. 838 00:36:18.808 --> 00:36:20.460 If there are no further questions 839 00:36:20.460 --> 00:36:22.938 about the Facebook issue, I will- 840 00:36:22.938 --> 00:36:25.410 Why keep saying SWAT? 841 00:36:25.410 --> 00:36:28.020 Why is SWAT relevant to anything? 842 00:36:28.020 --> 00:36:30.930 So it was the officer's assignment at the time. 843 00:36:30.930 --> 00:36:33.570 And that was just factually correct 844 00:36:33.570 --> 00:36:35.723 that that's what his assignment was. 845 00:36:35.723 --> 00:36:36.930 Well, a lot of things are factually correct 846 00:36:36.930 --> 00:36:37.830 that are prejudicial 847 00:36:37.830 --> 00:36:40.785 like you've been convicted nine times of drunk driving. 848 00:36:40.785 --> 00:36:41.940 Yes. 849 00:36:41.940 --> 00:36:44.730 We don't allow factual, that's not the test. 850 00:36:44.730 --> 00:36:48.270 But like why emphasize gun cars in SWAT 851 00:36:48.270 --> 00:36:52.350 to show the defendant is even more dangerous 852 00:36:52.350 --> 00:36:54.017 than the regular defendant. 853 00:36:54.017 --> 00:36:56.640 And to be fair, I don't think it was emphasized. 854 00:36:56.640 --> 00:36:58.170 To the extent the officer testified 855 00:36:58.170 --> 00:36:59.700 that that was his assignment at the time 856 00:36:59.700 --> 00:37:00.770 and that was how they proceeded to- 857 00:37:00.770 --> 00:37:02.490 Okay, I can get one time. 858 00:37:02.490 --> 00:37:03.935 Sorry. Okay. 859 00:37:03.935 --> 00:37:06.450 Who are you? I'm Officer Smith. 860 00:37:06.450 --> 00:37:08.458 Where are you assigned? I'm assigned to the SWAT team. 861 00:37:08.458 --> 00:37:09.390 Yes. 862 00:37:09.390 --> 00:37:10.502 What did you do? 863 00:37:10.502 --> 00:37:14.793 Why do we have this? 864 00:37:17.310 --> 00:37:18.333 I would- 865 00:37:20.118 --> 00:37:22.390 Counsel, can I dovetail off of justice Gazianos, 866 00:37:22.390 --> 00:37:24.672 could answer a question for me 867 00:37:24.672 --> 00:37:26.224 'cause I can't get this from the record. 868 00:37:26.224 --> 00:37:28.680 When all of this testimony was coming in 869 00:37:28.680 --> 00:37:33.270 about the circumstances, was this all objected to? 870 00:37:33.270 --> 00:37:34.260 No, it wasn't. 871 00:37:34.260 --> 00:37:39.030 And in fact, defense counsel stipulated to the fact 872 00:37:39.030 --> 00:37:40.593 that this arrest had to do, 873 00:37:42.183 --> 00:37:43.710 had nothing to do with the murder 874 00:37:43.710 --> 00:37:45.270 for which he was being tried. 875 00:37:45.270 --> 00:37:46.830 But there was an objection 876 00:37:46.830 --> 00:37:50.602 to the SWAT multiple inferences it references 877 00:37:50.602 --> 00:37:52.750 and that cut it off, right? 878 00:37:52.750 --> 00:37:53.910 Yes. 879 00:37:53.910 --> 00:37:55.467 And also I believe, 880 00:37:55.467 --> 00:37:59.820 no, I'm not positive about my memory 881 00:37:59.820 --> 00:38:01.890 of whether or not there was any sort of instruction given 882 00:38:01.890 --> 00:38:02.880 after that objection was esteemed- 883 00:38:02.880 --> 00:38:04.920 That's what I was getting at. 884 00:38:04.920 --> 00:38:08.640 Because Justice Gazianos question goes to relevance, 885 00:38:08.640 --> 00:38:13.640 but my question goes to the basis and the cure. 886 00:38:13.686 --> 00:38:17.490 So if the objection was that it was irrelevant 887 00:38:17.490 --> 00:38:21.630 or the objection was that the probative value was low 888 00:38:21.630 --> 00:38:23.974 and the risk of prejudice was super high, 889 00:38:23.974 --> 00:38:27.420 that was there some kind of curative instruction 890 00:38:27.420 --> 00:38:31.615 or some kind of contemporaneous instruction by the judge. 891 00:38:31.615 --> 00:38:36.210 And I apologize, I don't remember at that point 892 00:38:36.210 --> 00:38:37.710 how they had been instructed, 893 00:38:37.710 --> 00:38:41.699 but I do believe that in the stipulation that was read, 894 00:38:41.699 --> 00:38:44.763 the jury was told not to infer, 895 00:38:46.680 --> 00:38:49.590 not to garner propensity evidence from this fact. 896 00:38:49.590 --> 00:38:52.890 Just that that was for them to know that it was unrelated. 897 00:38:52.890 --> 00:38:57.660 And I'd say that defense counsel had a strategic purpose 898 00:38:57.660 --> 00:39:01.140 in stipulating to that and potentially not objecting. 899 00:39:01.140 --> 00:39:03.450 And though I apologize for not remembering 900 00:39:03.450 --> 00:39:04.798 the record perfectly, 901 00:39:04.798 --> 00:39:09.150 this was helpful for the defense 902 00:39:09.150 --> 00:39:10.561 and helpful for their strategy 903 00:39:10.561 --> 00:39:15.360 in that there was seemingly an aura of excessive force 904 00:39:15.360 --> 00:39:17.820 and a window was broken on this car 905 00:39:17.820 --> 00:39:20.452 or there may have been overkill in the apprehension of him, 906 00:39:20.452 --> 00:39:22.063 for lack of a better word, 907 00:39:22.063 --> 00:39:26.627 because the defense closing thematically 908 00:39:26.627 --> 00:39:31.350 centered around how the police without good reason 909 00:39:31.350 --> 00:39:34.530 focused on this defendant and they had a narrow focus. 910 00:39:34.530 --> 00:39:36.360 The evidence did not bear out 911 00:39:36.360 --> 00:39:37.860 that he had anything to do with it. 912 00:39:37.860 --> 00:39:40.194 And that the car that he was arrested in, 913 00:39:40.194 --> 00:39:44.910 in that arrest that was described for the jury, 914 00:39:44.910 --> 00:39:47.670 just simply was not the car that was on Aim street 915 00:39:47.670 --> 00:39:49.890 when Mr. Leonard was killed. 916 00:39:49.890 --> 00:39:53.130 So there was value to the defense strategy there 917 00:39:53.130 --> 00:39:54.709 in terms of having this, 918 00:39:54.709 --> 00:39:58.530 a full description of the event surrounding the arrest 919 00:39:58.530 --> 00:40:02.670 and using it to his benefit to describe police overreach or- 920 00:40:02.670 --> 00:40:05.280 Can I ask you to address the gang evidence? 921 00:40:05.280 --> 00:40:06.450 Yes. 922 00:40:06.450 --> 00:40:08.591 What's most important about the gang evidence is that, 923 00:40:08.591 --> 00:40:11.910 or the gang evidence that did come before the jury 924 00:40:11.910 --> 00:40:16.910 is that it never tied the defendant to gang membership. 925 00:40:17.880 --> 00:40:20.820 Right, and I guess, that I think you're right 926 00:40:20.820 --> 00:40:22.020 that that is the key. 927 00:40:22.020 --> 00:40:24.150 Why did any of this gang evidence get in 928 00:40:24.150 --> 00:40:26.760 if there's no nexus to this case? 929 00:40:26.760 --> 00:40:31.260 It's entirely irrelevant and largely prejudicial. 930 00:40:31.260 --> 00:40:35.133 It was relevant to many of the Commonwealth's witnesses- 931 00:40:35.133 --> 00:40:37.860 That they had 20 years grown up in an area 932 00:40:37.860 --> 00:40:41.150 that might have been involved in territorial gang violence? 933 00:40:41.150 --> 00:40:43.710 Yes, and that the Commonwealth's witnesses, 934 00:40:43.710 --> 00:40:46.110 the men who were present with Mr. Leonard and Mr. Mayer 935 00:40:46.110 --> 00:40:47.820 when they were shot, including Mr. Mayer 936 00:40:47.820 --> 00:40:50.613 had been involved in gangs themselves. 937 00:40:50.613 --> 00:40:53.640 The Commonwealth, it was relevant for that evidence 938 00:40:53.640 --> 00:40:54.720 to be before the jury 939 00:40:54.720 --> 00:40:56.827 so that the Commonwealth could explain to them 940 00:40:56.827 --> 00:40:59.682 why these lifelong friends 941 00:40:59.682 --> 00:41:01.950 refused to speak to the police on scene 942 00:41:01.950 --> 00:41:03.660 after they saw their friend die 943 00:41:03.660 --> 00:41:06.030 when they refused to speak to the police afterwards. 944 00:41:06.030 --> 00:41:09.150 And when they only participated with the commonwealth, 945 00:41:09.150 --> 00:41:11.940 when compelled to for grand jury subpoenas 946 00:41:11.940 --> 00:41:13.560 or for trial subpoenas. 947 00:41:13.560 --> 00:41:16.999 The testimony is clear from the record that these witnesses, 948 00:41:16.999 --> 00:41:20.760 I'd say especially Mr. Williams and Mr. Mayer, 949 00:41:20.760 --> 00:41:23.761 were openly hostile to the Commonwealth 950 00:41:23.761 --> 00:41:25.620 during their questioning. 951 00:41:25.620 --> 00:41:27.270 They were answering with one words, 952 00:41:27.270 --> 00:41:28.710 they were barely participating 953 00:41:28.710 --> 00:41:32.950 and the Commonwealth was properly bringing 954 00:41:34.920 --> 00:41:38.520 that aspect of their background to the jury's attention 955 00:41:38.520 --> 00:41:40.140 to potentially explain why 956 00:41:40.140 --> 00:41:42.018 they weren't being cooperative or forthright. 957 00:41:42.018 --> 00:41:45.420 Also, there had been, as the court noted, 958 00:41:45.420 --> 00:41:47.370 the Commonwealth's theory of this case 959 00:41:47.370 --> 00:41:51.120 was the personal revenge, I say theory of the case, 960 00:41:51.120 --> 00:41:53.321 but I mean it more than that, 961 00:41:53.321 --> 00:41:57.510 that the defendant was seeking revenge 962 00:41:57.510 --> 00:41:58.680 for the shooting of himself 963 00:41:58.680 --> 00:42:00.930 and the killing of his friends Wood Jr. 964 00:42:00.930 --> 00:42:04.230 As made clear in the motions (indistinct) argument 965 00:42:04.230 --> 00:42:06.690 and the motions (indistinct) brought before the court, 966 00:42:06.690 --> 00:42:10.080 there was a parallel theory 967 00:42:10.080 --> 00:42:12.720 that the Commonwealth was pursuing more directly 968 00:42:12.720 --> 00:42:14.070 related to the gang evidence 969 00:42:14.070 --> 00:42:18.870 that when that evidence did not fully develop 970 00:42:18.870 --> 00:42:20.010 in the course of the trial, 971 00:42:20.010 --> 00:42:21.990 the Commonwealth properly and rightfully 972 00:42:21.990 --> 00:42:23.220 completely abandoned. 973 00:42:23.220 --> 00:42:25.470 And the fact that that evidence 974 00:42:25.470 --> 00:42:27.600 was underdeveloped before the jury 975 00:42:27.600 --> 00:42:29.610 doesn't mean that it improperly came in 976 00:42:29.610 --> 00:42:32.130 or that any of it prejudice the defendant. 977 00:42:32.130 --> 00:42:35.100 In fact, I'd note for the court 978 00:42:35.100 --> 00:42:37.170 that the defense counsel never moved 979 00:42:37.170 --> 00:42:41.010 to strike any of the gang related evidence 980 00:42:41.010 --> 00:42:45.159 after that other theory of the case was left underdeveloped. 981 00:42:45.159 --> 00:42:47.340 And he agreed with the judge 982 00:42:47.340 --> 00:42:51.210 that no evidence of the defendant's gang membership 983 00:42:51.210 --> 00:42:52.043 came into evidence. 984 00:42:52.043 --> 00:42:53.965 Therefore, there should not be an instruction. 985 00:42:53.965 --> 00:42:57.420 And the instructions that a limiting instruction 986 00:42:57.420 --> 00:43:02.420 or a closing instruction from the cases that give exemplars 987 00:43:03.693 --> 00:43:06.782 both would not have been appropriate for the jury. 988 00:43:06.782 --> 00:43:10.050 And if anything would have potentially bolstered 989 00:43:10.050 --> 00:43:12.000 the credibility of Commonwealth's witnesses, 990 00:43:12.000 --> 00:43:17.000 which would've brought us before here on another issue. 991 00:43:17.033 --> 00:43:22.033 So in short, I'd say there were not errors at trial, 992 00:43:23.130 --> 00:43:25.770 there was not misconduct by the prosecutor. 993 00:43:25.770 --> 00:43:28.600 And lastly, I'd just like to urge this court 994 00:43:31.348 --> 00:43:36.348 that the defendant is not entitled to relief under 33E here. 995 00:43:38.670 --> 00:43:42.180 The evidence clearly showed that he stalked 996 00:43:42.180 --> 00:43:44.190 and hunted down someone to avenge 997 00:43:44.190 --> 00:43:46.738 for the shooting of himself and for Woods Jr. 998 00:43:46.738 --> 00:43:49.350 He shot Donley Leonard 11 times, 999 00:43:49.350 --> 00:43:53.190 Mr. Mayer, three times in the course of six seconds. 1000 00:43:53.190 --> 00:43:56.043 And with that, the Commonwealth will rest on its brief.