-: SJC-13007 Commonwealth versus Bampumim Teixeira
-: Okay, Attorney Riordan
-: Good morning your Honors.
Theodore Riordan on behalf of the defendant
Bampumim Teixeira.
The first issue on appeal
is the prosecutor's improper closing argument.
As your honors know
this case concerns the deaths of an engaged couple.
The defense at trial was that
the defendant was having an affair
with the female Lina Bolanos, when the fiance,
Mr. Fields walked in.
In closing argument, the prosecutor said
to the jury that this couple is quote,
"Now engaged for eternity.
Lina will forever be Richard's fiance, but never his bride."
This was an improper argument
that was trying to appeal to the jury's sympathy.
There was no legitimate reason to make this argument.
The Commonwealth says that this argument was made
to rebut the defendant's contention,
that there was an affair.
Now, if the Commonwealth wanted to illuminate the jury
with the facts of the Fields-Bolanos relationship,
showing how strong that was and that the claim
of an affair was not true, that would've been fine.
-: Well, counsel, a degree of hyperbole is permitted.
A degree of rhetorical flourish is permitted,
and comparing this to the evidence in the case.
Can you situate that comment in the context
of the entire case?
And tell me, how, is it objected to?
-: This was not objected to.
-: So tell me how it creates a substantial likelihood
of a miscarriage of justice in light of all the evidence.
-: Well, one thing I'd like to draw attention to
was a case cited by the Commonwealth
called the Al'ammani case,
where the court found that it was improper
for the prosecutor to say that the decedent will never walk
down the aisle with her dad.
And this is along that idea that being a bride
is such a special moment.
-: I understand, but it's still just a comment
and we have to put it in the context,
since it's not objected to, of the evidence.
I understand it's a big deal being married, you know,
for some people, but just put it in the evidence.
What's the evidence again, in this case that
tells us that mattered?
-: Well it has to do with whether or not you
would believe the defendant's contention that
he was having an affair and that
if you believe the defendant's argument.
-: Testify?
-: He did not testify.
-: What evidence was put on of the affair?
-: The defendant was, you know, interrogated by the police
and that interrogation was played for the jury.
And so if the jury were to believe the defendant's version
of events, that he was having an affair and
that the fiance walked in.
Well, that would be a not guilty verdict for the defendant.
So it's-
-: So you think that closing argument
comment shifted the whole trial?
-: Oh, absolutely. It was extremely potent.
Yes.
-: In light of the time span and the 911 calls,
and all of that.
-: Well-
-: The way he got in the building.
-: There was your honor, undoubtedly,
there was a substantial amount of evidence
against the defendant.
But, the whole defense to the case was that
there was an affair.
And this went right to that, that essential issue.
And if the defendant's contentions
about what this was all about,
that this was an affair, is believed by the jury.
He would get a not guilty.
If, if-
-: And you think that comment kept them from doing that?
-: I do, yes. Yes.
-: Okay.
-: Can I-
Wasn't there something written on the wall of the penthouse?
-: Yes.
-: Something, a reference to, "he killed my wife".
-: Yes.
-: I'm wondering why, given that evidence, it was unfair
in your estimation to make this statement
about the, you know, forever his fiance.
'Cause there was sort of a contrast between what was written
on the wall, my wife, versus their engagement.
-: So the defendant's contention was that,
the order was that Fields murdered Bolanos.
And then the defendant was defending himself from Fields
and was defending himself when he killed Fields.
The contention at trial was that
when the wording "he killed my wife",
it was the defendant referring to Fields killing Bolanos.
And the counsel's argument at trial was that,
whether this was real or not,
this was the defendant's perception.
That he was married, or had a relationship, with Bolanos.
If there's no further questions on that,
I'll move on to the second argument.
The second argument, your honor, addresses the jury charge
on the extreme atrocity or cruelty theory.
And in particular, the extreme atrocity element.
There's a few different sub arguments to that,
but the first one I want to address is
the defendant's request that the jury be charged,
that the Commonwealth needed to prove at least one
of the Cunneen factors.
And that that burden was beyond a reasonable doubt.
Instead, the jury was given the standard charge.
You cannot make a finding of extreme atrocity
or cruelty, unless it is based on one or more
of the factors I just listed.
The Commonwealth's response to this is,
well, how many times does the jury need to be told
about the Commonwealth's burden?
But the fact is that the instruction that's given
is an instruction that the Commonwealth has a burden
to prove the elements of the crime.
The Cunneen factors are not elements, they're factors.
And by not instructing the jury that the Commonwealth has,
not only a burden to prove the elements,
but one of these factors then,
it is not properly stating the
Commonwealth burden on this case.
And that they should be instructed in particular
that it's to prove it beyond a reasonable doubt.
So the instruction as given right now
does not articulate that this non-element, a factor,
needs to be proven by the Commonwealth.
The second issue is on the third sentence
of the extreme atrocity or cruelty element.
It currently talks about the defendant's actions and about
whether or not the defendant's actions,
you can look at defendant's actions to see whether
or not there was extreme atrocity or cruelty.
I cited the Barry and Riley cases where there
were concurrences, which suggested that the court
should not just focus on the defendant's actions,
but also talk about the defendant's intent.
-: We haven't adopted Barry and Riley
and we've had the opportunity to do so, correct?
-: The court did talk about Castillo, they talked about this,
but not directly on addressing these two cases,
but yes, they did talk about that
and I'm urging the court-
-: You're asking us, it was preserved,
but you're asking us to change the law
on these instructions.
-: Yes Yes. And so,
if there're no further questions on this matter, your honor.
-: Thank you.
-: Attorney Shorey.
-: Good morning your honors.
May please the court Benjamin Shorey on behalf
of the Commonwealth, addressing this first argument
related to the Commonwealth's closing argument.
As I explained in my brief, the point from the prosecutor
was proper for three independent reasons.
I won't go into those details again, but I think it was
decidedly proper on any one of those grounds.
The defendant has addressed Al'ammani as a comparable case,
so I will briefly address that.
I think it's distinguishable on a couple of points.
First, there was no evidence there. The victim in that case
was not engaged. She wasn't to be married.
And there's no evidence in the case about that.
It was simply a closing argument.
There was simply a reference to this abstract,
positive life experience that this victim would never get
to experience.
Unlike that, the engagement of the couple here
who were killed together in their own apartment,
where the victim hid her engagement ring from the
the defendant was central.
As the defendant has just said in his oral argument
where the claim of an affair was central
to the defendant's defense,
the engagement also was central.
It is also distinguishable in the sense that,
or the defendant can't benefit from Al'ammani,
because in that case, this court found that there was no,
no substantial likelihood of a miscarriage of justice.
If the court has no other questions on that point,
I think I would rest to my brief for the arguments
laid out there.
As to the other two claims I'll address them together
if I might, briefly, because I think I've detailed
the Commonwealth's response there in some depth as well.
The defendant's claim essentially is that the
judge abused his discretion in giving,
in following, this court, that can't be correct.
The judge was not at liberty to just ignore this court's
model instruction. As this court has repeatedly said,
advised, that the trial judge followed that.
-: We've reversed judges who unfortunately
follow the model instructions.
-: There have been-
-: I know Judge Fishman was the victim of that in a case.
And some other people have been, so that's not,
that doesn't seal it for you.
Just the fact that it's the model instructions
doesn't mean that a defense attorney raises an issue,
and we, frankly, change our mind.
-: As long as we're talking about names Judge Whitehead
never got reversed on a jury instruction to murder case
and didn't follow them.
-: I think yes the abuse of discretion is an instruction
being legally incorrect.
-: Right?
-: So it is possible-
-: So we have to look, I mean, it's.
-: Yeah.
-: I mean, it's probably a good idea to follow our
instructions. Not a, not a good idea, its.
But you know, the fact that the model instructions
are there and a judge follows 'em, that doesn't
insulate the judge from reversal,
unfortunately for the trial judge.
-: In the rare, very rare circumstances where
this court has found that it, it advised something
that was legally incorrect, of course,
the defendant isn't just, you know, doesn't have no remedy
for that, but that's not the case here.
Right? Castillo has followed up the model instruction
that was applied here and explained it,
and applied that prospectively only.
Of course, there's room for this court to improve
instructions that can be improved upon,
without finding that they were legally incorrect before.
But more importantly on both of these issues,
addressing the extreme atrocity instructions,
as the court found in Fernandez where the defendant was
convicted on a first degree murder on multiple theories,
there's really no reason for the court to reach it,
reach it at all.
The defendant's conviction stands as to first degree murder
regardless.
If the court has no questions-
-: Is that because of the premeditation?
-: And felony murder.
-: Both were basis for the conviction here.
-: And you have sufficient evidence as you say under Castillo
anyway, on atrocity or cruelty.
-: Oh I think this is an overwhelming case
under any standard this court has ever articulated
for extreme atrocity or cruelty.
Where the victims were kept together in their apartment
for hours being tormented by the defendant.
The atrocious nature of this crime is abundantly clear.
For that reason. I think there's absolutely no basis
for the defendant's 33 claim here.
I'm not go into the details of the atrocity of this crime
again, I would just point,
to the many hours the defendant took to plan and carry out
this plan of packing a backpack full of instruments of
torture, taking the time to travel to the scene,
getting inside, waiting outside for several hours
before going inside, picking his time carefully,
ultimately going inside and again, taking hours to carry
out the brutal, heinous crime here.
-: I guess I do have one question.
Do you think if you take a look at whether the jury
instructions as a whole on extreme atrocity or cruelty,
that it's clear on those instructions that the
Cunneen factor has to exist beyond a reasonable doubt?
-: Yes, I think that's, the instruction as given,
and the instruction under Castillo, both tell the jurors
you must find one of these factors and the Commonwealth's
burden is clearly stated in both of those instructions
as well.
So I think that's clear.
But, in terms of how the individual jurors parse
which factor is at play, that does not have to
be unanimous and, and shouldn't be.
-: Mm. Why would it have to be, if 12 jurors think
that the murder was committed with extreme atrocity
or cruelty, why would the verdict be not guilty
because they disagree on which factor.
-: Correct, and it makes no sense.
And I would point out to Justice Lowy, even
that there's room for this court to clarify
that even individual juror doesn't have to find which
you know, for instance, tampering with
with the victim's body, or their clothing,
pouring items all over these bodies,
could be, I mean, undoubtedly goes to
extreme atrocity or cruelty.
But even if a juror had a reasonable doubt as to whether
that happened before death or afterward, it would go to
the extreme atrocity or cruelty, but it might be a
different factor in each case.
So I think it would make no sense for jurors to have to
unanimously agree on the specific factor at issue.
If there are no further questions, I would rest in my brief.