-: SJC12984, Commonwealth versus Julian L. Troche.
Okay, Attorney Shaw.
-: Chief Justice Bud, and may it please the court.
My name is Robert Shaw.
I'm privileged to appear today on behalf of Julian Troche.
My intention this morning
is to begin with the Fifth Amendment issue,
to address the Facebook messages issue
and then to touch on gang evidence and related issues
that we assert a part of a larger pattern
of prosecutorial overreach.
With respect to the Fifth Amendment issue,
I'd like to first be very clear
about what happened that comprises error.
It is beyond any reason dispute in this case
that the prosecutor knew when Mr. Woods, the witness,
was subpoenaed to appear a week before he actually testified
that he did appear, that he consulted with legal counsel
and that he invoked his Fifth Amendment right
to remain silent.
The prosecutor knew that invocation was deemed valid
by a judicial ruling after a Martin hearing,
and after which Mr. Woods was granted immunity.
And when Mr. Woods testified a week later,
the prosecutor wanted him to testify
in a manner that implicated Mr. Troche,
namely that he, Woods was part of a scheme with Mr. Troche
to identify who had shot his son,
that he personally sent Mr. Troche a picture,
that he knew retaliation was going to take place,
and that he communicated with Mr. Troche about it
on November 12th.
And all of that is fine.
The critical error in the case occurred
when the prosecutor didn't hear the testimony
that he wanted to hear.
-: Mr. Shaw, the prosecutor,
and this is a question, not a statement.
The prosecutor would be able to explore Mr. Wood Sr's
understanding of the scope of his immunity, correct?
-: I think that it was fair game for the prosecutor to,
with respect to immunity,
to clarify and ensure that he understood
that he could be prosecuted under the immunity agreement.
-: Right, 'cause if his understanding is,
well, I'm immunized, I can say whatever I want.
-: Oh, right, sure.
-: I say, you could say, well,
there are limits to this, right?
-: Yes. -: And that's fair game.
-: I think that that's fair game with respect to immunity.
The problem here occurs because immunity was intertwined
with the Fifth Amendment invocation.
And what the prosecutor did here
is he made a choice to attack Woods in front of the jury
in a calculated manner by eliciting,
you were subpoenaed a week earlier.
You showed up, didn't you?
-: By part and parcel of saying to the witness
you were immunized is the fact that they invoked, correct?
-: Sure.
-: Because I know the old law
and I forget the name of the case.
-: Yes.
-: Is that you can't call someone to the witness stand
to make them invoke in front of the jury.
That's prohibitive.
-: Well, that's right.
And you're also not permitted to ask the jury
or conduct your examination in a way
that you're asking the jury
to draw an adverse inference against the witness
because they've invoked.
-: So if you have this examination
that we said is you agree is proper,
the bounds of the scope of immunity.
In setting that up, is it permissible?
Well, I guess you're gonna answer this,
but is it permissible for the prosecutor to say,
here are the steps.
You showed up, you were assert the fifth,
you granted immunity.
Now let's talk about the scope of immunity.
-: No, it's not.
The jury isn't aware about, and you know,
the jury isn't focused on this person,
you know, consulted an attorney
and that's what the prosecutor did.
He said, you've been subpoenaed, you showed up weak.
And then he emphasizes, you showed up with an attorney,
and then he emphasizes you refused to testify.
And then he emphasizes through his questioning,
he elicits the fact that he invoked
his Fifth Amendment privilege.
And that-
-: Is there is any case law,
and of course read the briefs,
but that deals with,
we have the end result exploring the scope of immunity.
But the foundational questions that you say are problematic,
are the cases that address those foundational questions?
-: I believe there are.
I mean, I think the state and federal cases
both hold two things very clearly.
First, seeking to have the jury draw
an adverse inference against a witness
because they relied on their constitutional rights
or invoked is improper.
And second, that it will have a strong
and illegitimate impact on jurors
because they will view it as a confession.
The problem here is that what the prosecutor did
was obviously done for purposes of conveying to the jury
that they should not believe Woods,
that Woods did these things
because he wanted to hide his participation with Mr. Troche.
And that in turn shows that Mr. Troche is guilty
and he then emphasized this again in closing argument.
-: Those two points from the federal and state authorities
they don't answer Justice Gazianos question
about cases regarding the foundational questions,
because the reason there is an immunity
is because of the Fifth Amendment privilege.
So there is necessarily a nexus,
but you're not aware of any cases that explore
how far a prosecutor can go in terms of asking questions
about the foundation of the immunity?
-: Well, I am, your Honor, because I think-
-: What are those cases then?
-: Well, there's Gagnon, these are state cases,
Commonwealth versus Gagnon,
Commonwealth versus Martin, Commonwealth v Rosario,
all cited in my brief.
Federal cases, you have Grunewald versus United States.
US Supreme Court granted a new trial.
That was simply because it was brought out on examination
that there was an indication
before the grand jury, Namette.
And then I've cited multiple cases
in the federal and other state courts
that result in reversal because that was done.
I guess what I'm disagreeing with
is the notion that these are just foundational questions.
I think the court needs to focus on
what the jury understands.
The jury can understand
that this person has been granted immunity,
but that doesn't mean that we go into the fact
that they showed up with an attorney,
they refused to testify,
they invoked their right to remain silent.
Those things, that's not necessary at all.
And in the typical case,
when we're dealing with a witness
who has been granted immunity,
there's a very basic instruction which simply says,
this witness has been granted immunity.
You can take that into account
and consider whether they were offered
any promises by the government.
-: I've heard those foundational questions
in court a number of times.
Maybe I asked them, but I've heard those.
But I know defense attorneys often do this to witnesses.
They'll say, you know, you consulted with a lawyer,
you assert the fifth,
you've been immunized by this government.
You know, where you usually here
it is from defense counsel.
-: Well, first, that's not my experience.
I think it's contrary to the case law.
And I think that in terms of,
a defendant is in somewhat of a different position.
-: I get your point that we hear immunity
and we think Fifth Amendment.
And we fill in the blank and a juror may not do that.
So there's no need for those foundational questions.
-: And you have to look at
what the prosecutor was doing here.
In this case, both of the factors
favoring reversal in the case law are present.
First, we have intentional tactic by the prosecutor,
which under the case law is itself alone sufficient
to cause reversal.
Second, an alternative basis for reversal exists
if the impression created by the prosecutor
added meaningful weight to a guilty verdict.
And that is also true here
because we have Woods who is a witness
whose relationship to Troche
is alleged to have revolved around
and been a part of the same criminal involvement
for which troche is on trial.
So there's a high likelihood that the jury
not only inferred the guilt of Woods,
but inferred the guilt of Mr. Troche.
And then in this case, we have additional factors
that exacerbated the prejudice.
There was no jury instruction
to address the prosecutor's tactic.
There was no jury instruction to ensure
that no inference could be drawn against Mr. Troche.
The prosecutor's tactic was insulated
because defense counsel was not permitted
to also address the same subject matter.
He tried, the prosecutor objected
and the judge sustained the objection.
-: And did Attorney Greenberg say anything
when the prosecutor asked about consulting with the lawyer
to say, wait, that's out of bounds.
Did he object to that question?
-: He was objecting, yes.
I believe he objected pretty clearly.
And then the judge actually intervened and said,
you can't do that.
Okay, so the judge was very explicit.
The issue was known by everybody involved.
-: Right, so the judge sustained the objection?
-: Essentially, yes.
He told the prosecutor, you can't do that, move on.
And then the prosecutor returned again to the subject matter
and emphasized again, you refused to testify.
-: And the judge sustained the objection?
-: Yes.
-: Isn't that a problem for you?
-: Well, it's not
because this is focused on the prosecutor's conduct
and the fact that this came in
and it never should have come in, I mean-
-: How does it come in if it was objected to and sustained?
-: Well, because the prosecutor kept returning to it.
And you'll see that in the progression of the question-
-: That really answered that question.
If so, we have a lot of evidence cases that say,
if an objection is sustained, the evidence is stricken.
-: The evidence was not stricken.
-: Well, objection sustained.
And the judge says, anything I sustained you can't consider.
Right, that happened?
-: He did not say anything you can't consider. Yes.
-: Whoa, whoa, wait a minute.
In the beginning of the trial,
the judge didn't say this is how it's gonna work.
If there are objections.
-: I don't recall that specifically, your Honor,
but I'm talking about
this particular progression of questioning.
I think you'll see that this was persistently focused on
by the prosecutor even after the judge
had told him not to do it.
And I think an additional reason
that prejudice was exacerbated
is that the judge further instructed the jury
in a manner that emphasized,
that was consulted with an attorney,
and then he refused to testify
when he was addressing immunity.
That is not part of the typical immunity instruction.
So with respect to the face-
-: What do we do with the fact that
there was no objection to that instruction?
-: Well, there wasn't an objection to that instruction.
That's true.
-: Well, yeah, I know that.
But the question is, how does that affect, you know,
the review that we give this at this point on appeal?
-: Well, I think that the fact that
that instruction was given exacerbated the prejudice,
and I think that was an error.
And I think that should be considered in combination
with the objections that were made by defense counsel
in this general subject matter.
Now, with respect to the Facebook messages issue,
this issue is grounded in unfair process.
When these messages came to light,
there was no way to meaningfully evaluate
the credibility and the authenticity of the messages
based on the messages alone.
And that is precisely why the judge
had this ongoing concern over a matter of days.
More information was required, and he knew that.
And the problem here is the way he went about
acquiring that information.
He relied on one side in an adversarial proceeding
to gather information outside of court
in what was a private and untransparent setting
that if pursued would undermine
the prosecutor's own witness and their case.
And legally the prosecution
had no obligation to follow through-
-: What did the defense attorney do
during those couple of days
when the commonwealth was trying to track it down?
-: Well, he didn't...
Well, I mean, the trial proceeded.
The judge at the outset would not allow any delay
and so the trial proceeded.
But he objected clearly on the record when-
-: Didn't do anything to try track it down?
-: Well, your Honor, he's in the middle of trial.
-: Well, I understand that. I get trial is tough.
-: Yeah, and so he's objecting on the record,
to not allowing, not bringing Rodriguez in for a voir dire.
-: Okay.
-: And then you have the judge who is essentially relying
on the prosecutor's own characterization
of a private conversation with the witness,
who of course had every incentive to adamantly deny
that he had been influenced by anybody
or had lied when he testified.
So that is clearly an unfair process.
And it's an unfair process
because it excluded the defendant's presence.
It deprived the defense of an opportunity
to examine the witness,
and it resulted in an arbitrary ruling
without an adequate means
to evaluate the credibility of Rodriguez
or to the authenticity of the messages.
And then in this case,
there are a number of things that happened
that make very clear that this was an erroneous
and arbitrary ruling.
The judge wouldn't allow a voir dire of Rodriguez
based on the notion that
he would have to close the courtroom,
which he acknowledged under this court's precedent
he could not do.
So that made absolutely no sense.
It obviously wasn't necessary
if it wasn't permitted under law.
Second, he concluded that placing Rodriguez under oath
would make no difference.
That is inconsistent with the principles
that underlie our judicial system.
It does make a difference when we place people under oath.
Third, he assumed that Rodriguez
would simply say the same thing
that he said to the prosecutor in a private conversation.
That is entirely speculative.
He assumed that there were unspecified dangers
that were fraught in his language in bringing Rodriguez in.
And there was no basis in the record for that.
And finally he concluded that no cross-examination
could occur without the information from Facebook,
that also was not supported by the record.
So this was-
-: So the defense attorney could have taken the screenshots
and cross examined Rodriguez, is your position?
-: Sure.
He could have asked him about, you know,
confirmed do you have a Facebook account?
Is it active?
He probably could have pulled a profile at that point,
profile picture and asked him.
He could have questioned him
about whether he had contact with others
and messaged other people through Facebook.
Probably could have asked him about his family members
and who may have actually provided the text messages
and things of that sort.
-: So let's say this was a mistake, an error,
an abuse of discretion.
-: Yes.
-: Which is a high bar for you.
But assuming it is new trial, what's the basis for that?
-: I think there should be a new trial.
-: Well, of course, but what is the basis for it?
-: Well, I would point you to the Stuckage case.
there we have a similar situation.
We have a factual conflict.
This court ruled that it was improper
to rely on the prosecutor's word alone.
Judge was unable to rely on the documentation alone.
-: But I thought Rodriguez's testimony was,
maybe not entirely duplicative,
but somewhat repetitive of the other gentleman
who was washing the car with him that day.
-: I don't think that's true, your Honor.
-: So if I look at it,
it turns out Rodriguez was more important than critical.
-: I think so. I think so.
-: Which one was the ID witness?
-: Excuse me.
-: Which one was the identification witness?
-: That was Rodriguez.
And the identification took place
six months after the incident
in a procedure that, you know, in 2016.
-: But, and correct if I'm wrong,
there were two people out there washing the vehicle.
-: Right.
-: And one does the photo ID.
-: That's correct. Six months later.
-: That was Rodriguez.
-: And that was Rodriguez, right.
And of course, that wasn't at the scene,
you know, at the scene there was one person
who said that there was a car
similar to Rodriguez's mother's,
but she couldn't say whether it was the same vehicle.
There was a second person witness, Sheila Clabuss,
who testified that the car was dark blue or black,
which was consistent with the picture
that the defense attorney had shown.
So moving on quickly to the gang evidence,
we're asking the court to consider this issue
and its impact in combination
with the larger pattern of prosecutorial overreach,
which includes not just the Fifth Amendment issue,
but inflammatory evidence
pertaining to the September 17th shooting
and the arrest of Mr. Troche.
This court has made very clear
that gang evidence has a high risk of prejudice,
and the foundation needs to be established.
Basic foundational facts, is Mr. Troche a gang member?
Is this incident part of a feud that pertains to the gangs?
Is the information that's being received
coming from reliable sources?
Is it ripe? Is it stale?
And of course, if an officer is called under 702,
those same elements are required,
sufficient facts or data,
reliable principles and methodologies
and information that'll assist the trier of fact.
Now, in this case, defense counsel
objected to the gang evidence.
He was adamant that Mr. Troche was not a gang member.
The prosecutor knew that,
but he sidestepped any foundational requirements
and blanketed the case with gang evidence
through the back door.
He never established that Mr. Troche was a gang member.
He never connected the shooting to a particular feud.
But he repeatedly referenced gangs, gang violence.
-: He did connect it to a feud.
-: Excuse me?
-: He did connect it to a feud.
-: Well, your Honor, he received,
he elicited testimony
without first doing it outside the presence of the jury,
that there had been these two groups
and conflict that had occurred.
But we're talking about a time period of,
I think 20 plus years.
-: So we have the September shooting.
-: Well, yeah, that's a single incident.
-: Well, you also have Woods-
-: It's kind of a feud, isn't it?
-: Sure.
-: And you also have what's is Wood Sr's testimony.
-: Excuse me?
-: You also have Wood Sr's testimony.
-: You do have Wood Sr's testimony.
-: Yes.
-: So again, there was evidence of a territorial feud.
-: Well, again, I mean, territorial, I think,
and what the commonwealth is claiming
is that this was personal retaliation
and a personal incident.
And that's why they're trying to distinguish it
from the gang evidence.
But the gang evidence that came in-
-: Actually, I think that might be helpful to you.
It's a personal feud, unconnected apparently
to any gang related activity.
-: Well, sure.
But again, if you wanna-
-: No, I think it's helpful to you.
-: Yeah, if you want to intermix it with gang evidence
and put them all together,
the gang evidence is still highly prejudicial
in that context.
And so, you know, this was character and propensity evidence
relative to Mr. Troche.
And then you have to add that to the 35 photographs
that were introduced
relative to the September 17th shooting.
Four of which included a body lying in the street,
one of which showed the victim lying in the street
with a bullet hole in his head
and brain matter and blood spread on the street.
You've gotta add that to, you know, this SWAT information,
really just a big production
about SWAT teams being called in.
They're there for tactical duties,
four SWAT vehicles, four different teams
specialized unit to conduct surveillance to then seize him,
to then take him to headquarters
and then a gun car after that.
So this was all highly prejudicial.
All of this operated as character and propensity evidence.
Thank you.
-: Okay. Thank you.
Attorney Sherman.
-: Good morning.
And may it please the court, Catherine Sherman,
on behalf of the Commonwealth.
I'm joined by the trial prosecutor, Mark Zunini.
We're asking this court to affirm the convictions
for the defendant's murder of Donnelley Leonard
and the shooting of Antoine Mayer.
Beginning with the testimony of Woods Senior,
as the court has asked, there don't appear to be cases
that definitively delineate what questions can be asked
when an order of immunity is happening
with a witness on the stand.
-: Do you think you can ask a witness,
you came here to court with your lawyer
and you pleaded the fifth and you got immunity.
Like those are the fair game. Is that your position?
-: Yes, certainly.
I think that's important for the jury-
-: And then you can go back to it
after you don't get the answer that you like.
And you can say again, you know,
what's your understanding of immunity
even though the judge has already told you stop.
-: And the judge had sustained that objection
on the basis of it invading attorney-client privilege,
which I also argue was incorrect.
But in terms of Wood senior's understanding
of both his fifth amendment that existed
before Hugh was granted immunity
and which ceased to exist after he granted immunity
was fair game.
And for this proposition,
I'd cite to Michel and Di Benedetto cases
that I submitted through a 16L letter.
Di Benedetto involves an immunized witness
who had given conflicting versions of events,
the final of which was the least damning to him
and led to the order of immunity
and defense counsel was allowed to explore
on cross-examination of that witness
at what point in the case,
in his recitation of these different versions of events,
he was granted the order of immunity
and what he understood it to mean.
And though it's not a perfect analogy,
most of these cases deal with cross-examination
of a Commonwealth's witness versus direct.
I think the underlying point and purpose of those questions
being proper is similar.
It's about assessing the witness's credibility,
what they believed they were free from prosecution
of when their Fifth Amendment was asserted
and what the Commonwealth was granting
essentially in that order of immunity.
-: What does avail and yourself of counsel
have to do with any of that?
-: I believe it just has to go to the process
in terms of the jury understanding
what happened before the Commonwealth made this,
sought this extraordinary grant of immunity.
And related to that question,
I think Michel and Di Benedetto
as well as the other cases cited in my brief
are informative to the fact that him consulting with counsel
isn't necessarily protected by any attorney-client privilege
or the Fifth Amendment privilege.
If he was being asked to explain to the jury
the advice he had been given, that might be different.
But even those cases say,
if it would've helped the jury understand his credibility,
the attorney-client privilege would've seeded
to that important trial goal.
So here what's being described by defense counsel
as a prosecutorial tactic, I completely disagree with.
They were proper questions.
And as the court has already noted,
no answers came into evidence.
Essentially this witness testified to evidence that was-
-: So there was an instruction at the beginning or at the end
to say, you know, if there's an objection and I sustain it,
you ignore the answer or the question.
-: Absolutely.
That it's not into evidence and questions
are not evidence the jury was instructed on that.
-: If I go back and look at the preliminary
or the post instructions, I'll find that.
-: The jury was given that instruction, yes.
If the court has no further questions about Wood Sr,
I'll move to the issue of the Facebook messages.
And I'd like to draw the court's attention to-
-: Because a lot of, there's like four reasons
the judge gives to not have a hearing.
-: Yes.
-: Three of them are just not, are not sustainable
that we'd have to close the courtroom, et cetera.
You know, as I read his explanations,
I kinda shook my head on at least most of them.
So other than it wouldn't do any good.
-: Yes.
-: Which is, I guess all is what it comes down to
in his view, the judge's view.
-: Sorry to interrupt.
What I think is important about that
when you're assessing whether or not
this was an abuse of discretion,
is that the judge had information about Rodriguez,
how Rodriguez comported himself in the courtroom
and his overall lack of cooperation with the commonwealth.
So when the judge saw these messages,
and he said on page five of the sixth day of transcript,
these appear to be an obstruction of justice.
In the context of that statement,
he wasn't saying that he believed Rodriguez
to be obstructing justice.
He believed these messages being disseminated
to defense counsel on behalf of the defendant.
-: But that's an inference.
So the judge never said, as part of my reasoning
is I was able to assess his,
he testified in front of me,
not you, the SJC, in front of me.
He never says that though, right?
-: No, he doesn't say that explicitly. You're correct.
He does speak to though the futility or not the futility,
what he believed to be-
-: Because that goes-
-: The lack of import of bringing (indistinct)
-: The fact he testified right in front of the judge
goes into why he has an abusive discretion essentially
because he made the call, right.
There's nothing magical about that.
Again, I'm just worried about an abusive discretion
where a lot of the things the judge said were just not true.
I mean, closing the courtroom
you would concede isn't an issue.
-: Right, he wouldn't.
-: He should have used it.
That's not a legitimate basis to deny.
-: Agreed, agreed.
I agree that he was listing reasons
that don't necessarily bear on whether or not
this was an abusive discretion.
But ultimately I'd say it was not
because of both the judge's information
that he had in the courtroom,
his assessment of the reliability
and the lack of evidentiary value that those messages had,
and the fact that they were contradicting
what he had viewed occur in the courtroom.
-: How can he make that assessment based upon
just what the prosecutor tells him?
-: He took the prosecutor's, so, actually, let me back up.
The judge ordered the prosecutor
to get in touch with Rodriguez
and to get this information before the court.
-: No, he ordered him to get in touch with Rodriguez
through detectives
and ask if Rodriguez would allow access
to his Facebook account.
He did not order the prosecutor to ask Rodriguez,
are these right?
You know, we've gotten these Facebook posts, is this July?
Are you part of some sort of scheme?
And have Rodriguez adamantly deny.
He had sent the prosecutor off
to conduct an ask of Rodriguez,
can we look at your Facebook account
to shortcut the need to go to Facebook to get access.
-: And I certainly defer to the record
of what the judge specifically asked the prosecutor to do.
But the prosecutor was asked to get information
and to bring it back before the court.
I note that defense counsel agreed to this course of action.
The judge was explicit at many points
asking both parties whether or not
they had any other suggestions
saying he was open to another course of conduct.
The defense counsel had no objection.
-: Well, defense counsel asked for voir dire and he said no.
-: Yes, and I meant that in reference
specifically to the prosecutor calling Rodriguez
or getting information from Rodriguez,
nor did defense counsel ask to be a part of that phone call.
But most importantly,
the judge was taking the prosecutor's report
of what happened during that phone call
as an officer of the court.
And in this context, I feel like that's especially,
well it's important in any context, of course.
But here the judge was giving that level of respect
to the report of the prosecutor
in the same way he was giving that level of respect
to the report of defense counsel,
of how he came about these messages.
So for it to be portrayed
as if there was an unfair amount of credit
being given to the prosecutor here
because of their role of the government,
I don't think is a fair as assessment-
-: But the problem is not so much believing the prosecutor
that he accurately reported.
Rodriguez told him the problem,
I think is not allowing anybody other than the prosecutor
to ask Rodriguez directly.
-: Your Honor is correct that the judge
did deny the option of having a voir dire in court,
but he did not deny the option
of anyone else speaking to Rodriguez.
Defense counsel did not pursue that information himself,
did not ask for funds for an investigator
to speak to Rodriguez or to Rodriguez family members
that seemed to be alluded in these messages.
There were certainly other avenues of investigation.
-: There are. But this is where I'm troubled.
We all know that there is a difference
between speaking to someone out of court
versus speaking to somebody in court
in a seat under oath or affirmation
with a judge sitting there with a robe
and prosecutors and defense lawyers.
It's very different.
And considering that Rodriguez was the ID witness,
I mean, in this kind of a case,
understanding that abusive discretion is a really high bar.
And we've had cases before where we've talked about
if a judge makes it an evidentiary decision
based on an erroneous understanding of the law,
that that's an abuse.
And clearly in this case,
there's a bunch of reasons that the judge gives
that were just wrong.
And so in light of all of that,
is it not an abuse of discretion
or is the commonwealth saying it's a prejudice issue,
that there's no prejudice?
-: The Commonwealth is arguing
that it was not an abuse discretion.
-: How?
-: Because the judge, his resolution to this issue,
which both involved asking by my account
eight different times for the parties
to bring more information to him
that might lend some sort of credibility to these messages.
He said that he would revisit his ruling
if that were the case.
But for the judge to decide not to conduct a voir dire
was not an abuse of discretion.
And I distinguished from the cases
that defense counsel has cited otherwise.
I mean, beginning with Stuckage,
that wasn't the judge abusing his discretion
by not conducting a voir dire,
that was a legal error
about competing first complaint witnesses
and anyone testifying to first complaint
without that being legally vetted in a voir dire process.
And Massey and Angulo,
I believe are both about
defendant's participation in a voir dire,
not about a judge deciding
whether or not to conduct a voir dire,
but whether or not,
or the ways in which a defendant's entitled to participate.
-: So let's assume that we think it's an abusive discretion.
What is the Commonwealth's response?
-: Well, preliminarily, I'd say that
this isn't outside the range of reasonable alternatives.
But if this court-
-: But no, yeah, let's just say we disagree with you,
which is the definition of yes, it's an abusive discretion.
I'm not saying that that's where we are.
I'm just wondering- -: No, I understand.
-: To give the commonwealth an opportunity
to let us know why we shouldn't flip this.
-: Well, to turn to what prejudice
that would've inflicted on the defendant,
the defendant Rodriguez-
-: To the heirs preserved.
-: Yes. Yes, it is.
And the substantial likelihood
of a miscarriage of justice here.
-: Not the standard because it's preserved.
-: I apologize, I thought that's where your Honor
was trying to-
-: Prejudicial error. -: Redirect me.
-: The error here wouldn't have been prejudicial
because Rodriguez had been on the stand,
was subject to cross-examination.
And as the judge correctly said,
even if these Facebook messages
had been in the hands of defense counsel
when Rodriguez was on the stand,
he would not have allowed him to cross-examine him
about them because the indicia of authenticity
and reliability was nil.
Additionally, I'll leave it at that, I'll leave it at that.
-: So he basically says,
these are in the same category as rumor,
and I wouldn't allow rumor to be cross examined by rumor.
-: Yes. Yes.
I think that's a fair inference of how your rules.
Additionally, I'd bring to the court's attention
that as the judge repeatedly mentioned,
this was an issue that could have been,
has not been pursued in a motion for a new trial setting.
The judge said, should this result in a conviction,
you certainly have newly discovered evidence
investigations that you can pursue that was not done,
that has not been pursued in any ways or means
according to the docket or the commonwealth's knowledge.
-: Would the judge said that at trial.
-: Yes.
-: Before the conviction, the judge says,
well, no harm no foul.
Because if you get convicted,
you can bring a motion for a new trial.
-: He doesn't say it in that way.
-: Well, I know.
But essentially he says,
listen right now you don't have time
to go get a record subpoena to Facebook.
They're gonna fight it. That's gonna take a while.
If you get convicted Dear defendant,
you can always bring a motion for a new trial
at which point you can call him in Facebook.
You think that's within his discretion to have done that?
-: I don't think he that informed his discretion
in the way that I might've described it.
What I think is that the judge
in his repeated calls to the party
to bring additional information to his attention,
should there be any also said,
this is my ruling at the time.
I welcome more information. I'm open to suggestion.
Should that not happen, there is this other avenue and-
-: Is that part of our inquiry?
-: No.
-: When we assess prejudice, we say,
well, there was no motion for the trial.
-: No. No.
-: Okay.
-: If there are no further questions
about the Facebook issue, I will-
-: Why keep saying SWAT?
Why is SWAT relevant to anything?
-: So it was the officer's assignment at the time.
And that was just factually correct
that that's what his assignment was.
-: Well, a lot of things are factually correct
that are prejudicial
like you've been convicted nine times of drunk driving.
-: Yes.
-: We don't allow factual, that's not the test.
But like why emphasize gun cars in SWAT
to show the defendant is even more dangerous
than the regular defendant.
-: And to be fair, I don't think it was emphasized.
To the extent the officer testified
that that was his assignment at the time
and that was how they proceeded to-
-: Okay, I can get one time.
-: Sorry. Okay.
-: Who are you? I'm Officer Smith.
Where are you assigned? I'm assigned to the SWAT team.
-: Yes.
-: What did you do?
Why do we have this?
-: I would-
-: Counsel, can I dovetail off of justice Gazianos,
could answer a question for me
'cause I can't get this from the record.
When all of this testimony was coming in
about the circumstances, was this all objected to?
-: No, it wasn't.
And in fact, defense counsel stipulated to the fact
that this arrest had to do,
had nothing to do with the murder
for which he was being tried.
-: But there was an objection
to the SWAT multiple inferences it references
and that cut it off, right?
-: Yes.
And also I believe,
no, I'm not positive about my memory
of whether or not there was any sort of instruction given
after that objection was esteemed-
-: That's what I was getting at.
Because Justice Gazianos question goes to relevance,
but my question goes to the basis and the cure.
So if the objection was that it was irrelevant
or the objection was that the probative value was low
and the risk of prejudice was super high,
that was there some kind of curative instruction
or some kind of contemporaneous instruction by the judge.
-: And I apologize, I don't remember at that point
how they had been instructed,
but I do believe that in the stipulation that was read,
the jury was told not to infer,
not to garner propensity evidence from this fact.
Just that that was for them to know that it was unrelated.
And I'd say that defense counsel had a strategic purpose
in stipulating to that and potentially not objecting.
And though I apologize for not remembering
the record perfectly,
this was helpful for the defense
and helpful for their strategy
in that there was seemingly an aura of excessive force
and a window was broken on this car
or there may have been overkill in the apprehension of him,
for lack of a better word,
because the defense closing thematically
centered around how the police without good reason
focused on this defendant and they had a narrow focus.
The evidence did not bear out
that he had anything to do with it.
And that the car that he was arrested in,
in that arrest that was described for the jury,
just simply was not the car that was on Aim street
when Mr. Leonard was killed.
So there was value to the defense strategy there
in terms of having this,
a full description of the event surrounding the arrest
and using it to his benefit to describe police overreach or-
-: Can I ask you to address the gang evidence?
-: Yes.
What's most important about the gang evidence is that,
or the gang evidence that did come before the jury
is that it never tied the defendant to gang membership.
-: Right, and I guess, that I think you're right
that that is the key.
Why did any of this gang evidence get in
if there's no nexus to this case?
It's entirely irrelevant and largely prejudicial.
-: It was relevant to many of the Commonwealth's witnesses-
-: That they had 20 years grown up in an area
that might have been involved in territorial gang violence?
-: Yes, and that the Commonwealth's witnesses,
the men who were present with Mr. Leonard and Mr. Mayer
when they were shot, including Mr. Mayer
had been involved in gangs themselves.
The Commonwealth, it was relevant for that evidence
to be before the jury
so that the Commonwealth could explain to them
why these lifelong friends
refused to speak to the police on scene
after they saw their friend die
when they refused to speak to the police afterwards.
And when they only participated with the commonwealth,
when compelled to for grand jury subpoenas
or for trial subpoenas.
The testimony is clear from the record that these witnesses,
I'd say especially Mr. Williams and Mr. Mayer,
were openly hostile to the Commonwealth
during their questioning.
They were answering with one words,
they were barely participating
and the Commonwealth was properly bringing
that aspect of their background to the jury's attention
to potentially explain why
they weren't being cooperative or forthright.
Also, there had been, as the court noted,
the Commonwealth's theory of this case
was the personal revenge, I say theory of the case,
but I mean it more than that,
that the defendant was seeking revenge
for the shooting of himself
and the killing of his friends Wood Jr.
As made clear in the motions (indistinct) argument
and the motions (indistinct) brought before the court,
there was a parallel theory
that the Commonwealth was pursuing more directly
related to the gang evidence
that when that evidence did not fully develop
in the course of the trial,
the Commonwealth properly and rightfully
completely abandoned.
And the fact that that evidence
was underdeveloped before the jury
doesn't mean that it improperly came in
or that any of it prejudice the defendant.
In fact, I'd note for the court
that the defense counsel never moved
to strike any of the gang related evidence
after that other theory of the case was left underdeveloped.
And he agreed with the judge
that no evidence of the defendant's gang membership
came into evidence.
Therefore, there should not be an instruction.
And the instructions that a limiting instruction
or a closing instruction from the cases that give exemplars
both would not have been appropriate for the jury.
And if anything would have potentially bolstered
the credibility of Commonwealth's witnesses,
which would've brought us before here on another issue.
So in short, I'd say there were not errors at trial,
there was not misconduct by the prosecutor.
And lastly, I'd just like to urge this court
that the defendant is not entitled to relief under 33E here.
The evidence clearly showed that he stalked
and hunted down someone to avenge
for the shooting of himself and for Woods Jr.
He shot Donley Leonard 11 times,
Mr. Mayer, three times in the course of six seconds.
And with that, the Commonwealth will rest on its brief.