-: SJC-13022, Commonwealth versus Andrew MacCormack.
-: Okay. Attorney Maidman, whenever you're ready.
-: Good morning and may I please the court?
Stephen Maidman for Andrew MacCormack,
the defendant in this case.
What I'd like to do is start by addressing
the constitutional issue,
whether there was sufficient evidence
to convict the defendant of the crime,
and then turn to whether the admission of the backpage.com
evidence was an abuse of discretion by the judge
and overwhelmingly prejudicial.
The defendant argues that the evidence was insufficient
to convict him of the crime.
Whether it viewed individually,
individual elements of the evidence, or collectively.
What the Commonwealth proved
was they largely attacked the defendant's character
and the evidence was not pretty in this case.
They proved beyond a reasonable doubt
that the defendant was a drug addict.
-: Let's get to the sort of harder parts, okay?
The, so there's an enormous cleanup after this, right?
Yes.
By the way, is there testimony the door is locked?
-: I think..
Kafker: When the defendant comes back to the house,
is there a testimony that he unlocks the doors.
-: That would've been in his statement to the police.
And I think that equivocal.
It was equivocal.
Kafker: Is that, , -: Not clear.
I haven't read the whole transcript, but they do,
it's really well argued.
I mean, the closings are both,
I mean, the judge compliments the closing,
but the commonwealth's closing.
You've got a locked, it looks like a locked house.
You've got somebody who's cleaned up
for an enormous amount of time on a Saturday morning.
It just doesn't seem like anyone else could possibly
do all of these things.
You wanna address those?
I understand you don't like all the character evidence
It's bad, but,
but it provides motive and other things.
I just wanna deal with the sort of,
who could have done this but him evidence.
Maidman: Well.
-: The doors seem to be locked.
You have to clean up for four hours
knowing you're not gonna get interrupted.
You need to really know the house really well
to do all of this.
There's not a, nothing is left behind,
the bleach, just deal with that part
rather than the character, 'cause I think
I'd like to understand how anyone else could do this.
-: Sure. That was the commonwealth's argument.
And look at those, just taking what you just said,
those elements individually.
If you'd, through the prism of the presumption of innocence,
that does not prove he did it.
I know the commonwealth argue though,
who else could have done it.
Matter of fact, they claim that the absence of evidence
proved he did, that he did it.
But taking a look at that,
that does not amount to sufficient evidence of guilt.
I mean, sure, we don't know
whether third parties were involved.
-: But, if the doors are locked,
if the the doors are locked when you come home,
if there's this enormous cleanup that takes hours and hours,
just, I just, there's there's a huge amount
of circumstantial evidence here that indicates
he's the only one who could have done this, isn't there?
-: Well, that's the argument.
There's no question to ask the argument.
But on the other hand, Judge, I would also point out
the jury was out for five days on this, okay?
Five full days, parts of two other days.
And so it was not,
there's some kind of a disconnect
when the defendant's arguing.
And same argument at trial.
The arguments on appeal on on trial are pretty similar.
There's some kind of a disconnect
when my sister will argue, well the evidence is overwhelming
and I'm arguing that it was insufficient
and apparently the jury thought at least, the jury,
whether they got it right or wrong is a different issue.
But nonetheless.
-: It's a first degree murder conviction.
Maybe they were struggling with first degree
versus second degree, right?
-: Could have been, obviously,
I don't know the answer to that question.
And no one will ever,
no one will ever know since there was no,
obviously no inquiry of the jury.
And that would've been beyond the scope
of an inquiry of a jury.
But that was the commonwealth argument.
And his argument is
that look into all those pieces individually,
Commonwealth has the obligation to make it add up.
And, if you look at, again,
I emphasize this, there's only one Supreme Court case
I could find explaining the presumption of innocence.
It's in every jury instruction
that's given in this Commonwealth.
But there's only one case.
And what it basically says is
that it's gotta be based on the evidence adduced at trial,
not based on the suspicions that result,
that result from him being charged with the crime.
-: Mr. Maidman, these opportunity,
inculpatory statement type cases that we've seen,
purely circumstantial cases.
What's the best case, closest case to this,
that helps you or should guide us?
-: I don't know the answer to that.
I don't think there's any particular cases.
This case is so fact specific. The Commonwealth decided.
-: They're all, all facts specific.
There's a typical who else could have done it?
This is the opportunity, this is the time factor.
And these were the statements that don't jive
with the evidence.
I was just wondering, and I read the briefs, but I'm just,
is there a particular case
that is purely circumstantial
that goes one way or the other way?
No, Judge Gaziano,
there is one case I saw on the Commonwealth's brief
where they talk about motive opportunity all that.
But I think it's Cooms, I'm not sure,
it's in their brief.
But nonetheless, these are unique circumstances.
If you look at all the other evidence that,
the cell phones, okay.
The DNA evidence, none of that pointed to him.
There is no forensic evidence against him
in this entire case, okay?
The blood, Commonwealth's had some blood evidence,
turned out it was his blood in the car.
It wasn't hers.
The same thing with the..
-: I get your argument 'cause it's basically who else
but the husband in any of these types of cases.
Maidman: Yeah. it's.
-: But maybe that's true. I don't know.
It's again, even the cell phone evidence,
Commonwealth had this theory
that he took her phone and so they did a massive
evidentiary presentation on cell phones.
Well, that helped the defendant.
If anything, that may have proved
that he didn't take the phone.
I mean, there's many examples.
Cipher: Didn't work. Didn't work on the jury though.
-: Well, it may have, it may have worked on the jury.
We don't know that.
He got convicted obviously, but..
-: The one thing I missed, and I should have,
did he smell of bleach?
-: No, no, every witness said he didn't smell of bleach.
And this defendant,
there's evidence in the record he was kind of scatterbrained
that he had erratic behavior, that he,
it would've required, and this was argued at trial,
it would've required this guy to be a genius
to have pulled this off with no forensic evidence available
to the Commonwealth.
Cipher: Well, well, he lives in the house, right?
-: Yes, even the DNA evidence, I mean,
of course the DNA evidence had been all over the house.
Gaziano: So. he lives there.
-: He lived there. That's exactly right.
-: But I mean, the damaging part obviously
is he gives this long statement about what he did,
which is not corroborated
and actually turns out to be misleading.
-: Yes. That's right.
But even that, you have to, even all that statement,
and I guess I wanna make sure I save some time to talk about
the Backpage evidence even that.
He never admitted he committed the crime.
This guy, if anything, had every reason to stay married.
No history of no history of domestic violence, No, nothing.
In fact, one thing the..
Georges: Counsel, may I go back on that?
-: Yes. Georges: You're right.
But when you look at the evidence that
she clearly didn't wanna stay married,
so wouldn't that ate in favor of the motivation for this?
-: I'm not sure That's the evidence, Judge.
Cipher: Well, I think But don't you think counsel?
Georges: Well, there were text messages weren't there?
-: But they, yes she did threaten to divorce him
and stuff like that, but they go both ways.
-: Can I ask you one question about the bleach though?
Wasn't there evidence that he had some kind of a rash?
Maidman: Yes.
Wasn't that somehow tied to.
Maidman: They tried. -: Okay.
They tried then his mother took pictures the night before.
Apparently he had some kind of an itch, okay?
And he couldn't see on his back
so his mother takes a picture,
time stamped pictures, done with an iPhone.
Night before. Oh, and the rash.
-: That's kind of interesting. The rash though, right.
Okay, so there's tremendous,
there is evidence that the house stunk from bleach, right?
Maidman: Yes.
-: Stunk from it. Maidman: Yes.
The cops notice it.
Your client doesn't mention it or notice it, but then the,
and we're gonna ask the commonwealth about the bleach
and the rash testimony,
but the mother doesn't bring up
the phone/rash stuff at grand jury, right?
She's, her, she somehow remembers it.
And it's a very odd thing.
You'd think this would've come up earlier
at grand jury, right?
That she, that she's taken pictures with his phone.
And by the way, do we have the rash?
It's like picture day today, but is the rash picture,
'cause I understand it's indistinct, is it in our record?
-: Yes. I don't have a, I don't have a,
that wouldn't reproduce.
And there's a big debate about
what the picture showed as well.
But yes, the pictures are introduced with their time,
the timestamps and all that.
But, the whole rash argument,
I'm not sure what the jury did with that.
And as far as the grand jury, I mean I know exactly
what you're referring to in terms,
because that came, I mean the Commonwealth made a big deal
about that. Saying, Well, she didn't testify
at the grand jury about this.
And how come you didn't testify?
I mean, I've never testified in front of the grand jury,
but if they don't ask me about it, I'm not telling them.
And more than that, I may not remember it.
-: Oh, but it's exonerating your son,
you wouldn't remember that?
-: Assuming that was an, assuming that was an issue.
But they gotta remember this was very early on in the case.
Who knew whether that was even an issue?
I can't address that other than what the record says.
Justice Georges, did you have another question for me?
Georges: No, I didn't. Thank you.
-: On the back page information.
We have to look at that for abuse of discretion.
And he says we had a great marriage.
That opens the door to,
we didn't have a great marriage, right?
-: Well, that was, it was actually,
the judge's explanation was a little more than that, okay?
Gaziano: I hope so.
It was, it was.
She, this, first of all,
the jury was never vetted on Backpage.com evidence
because that would've been ineffective assistance
of counsel because it was not clear that evidence
was coming in until almost the end of the trial.
-: I'm sorry, I didn't get you, The jury wasn't vetted.
-: There were no jury questions when they did the veneer.
There were no questions about backpage.com.
And that was a, probably the right decision at the time,
at least from a,
from ineffective assistance of counsel standpoint.
He did not know it was coming in and
for a good part of the case, it wasn't coming in.
-: Well, he knew was there was discovery, I assume he knew.
Maidman: I'm sorry, I didn't hear.
-: He knew it was out there.
-: Oh, sure he did. Sure he did.
But if it wasn't coming in and for the jury
to be questioned about it, that would've been..
And was it a motion in limine?
-: Oh, there, yes. There were plenty of motions,
this was the most litigated issue in the case.
Gaziano: Okay. -: Okay.
-: And what did the judge rule.
-: The judge, at first you said it's not coming in
and there were some other,
there were some other nasty pictures there too
that didn't come in, one in particular.
Kafker: It excludes the genital pictures that he sent.
-: Yes. That did not come in. That did not come in.
She, she wasn't letting.
-: Counsel, while we're on the subject of the pictures.
Can you gimme a record reference for the rash photo
in the evidence?
Because I can't find it in the appendix.
-: I think it's in my brief.
Cipher: Okay.
I think, it should be there.
But it's, there's no question it's in the record.
Cipher: Okay.
If not in the transcript for those pages.
Her explanation was kind of interesting.
Her explanation was repeated
and she used word remonstrations,
repeated demonstration about how happy his marriage was.
This, if you go take a look at the tape recording
from the state police.
I'm sorry, the videotape of it,
he says it once.
And counsel, the defense counsel,
was very careful not to open that door.
So if you look at it, he,
defense counsel, always asked, any history of violence.
It was not how great the marriage was. Okay.
This was pretty strategic.
And that's why, and then all of a sudden
she made the decision that based on the totality,
that again, but focusing on this,
his claims of no infidelities
and happy marriage.
By the way, real question about what infidelity,
what is an infidelity?
And that came.
Gaziano: I don't want get into.
-: Okay, that was an issue.
-: I did wanna get into it a few presidents ago.
That it is an infidelity, but go on.
-: Doesn't it also show sort of his state of mind?
He's behaving, he's a little out control, right?
Maidman: He was a drug addict.
-: His his drugs are kicking in.
He's contacting a prostitute
the night before the murder, repeatedly. Right?
He's engaged in this endless search through Backpage.
-: He was, he was.
-: For like four hours or something. I can't remember.
There's some, it's a lengthy back and forth.
-: Three hours, three or four hours.
Gaziano: There was a meeting beforehand then the.
-: Well that's, that there was never a meeting.
That never happened.
They never were able to prove that.
More than that there's no evidence that it did happen.
-: There was..
-: The evidence is did he, did he make a date?
And I was careful how I worded it
and the commonwealth was very careful how they worded it.
They never said he made a date.
-: Plans to. Maidman: Yeah, whatever.
-: We get the text messages, right.
-: Right, right. But,
-: They never produced evidence that it was consummated.
-: Let me address Justice Kafker on that.
One of the questions is they claimed this showed,
he checked out of the marriage.
That his, that it was,
the marriage was over for him.
That's inconsistent with other aspects..
-: I'm not, I don't buy into that.
I buy into the fact that he's outta control.
His drugs are kicking in.
He's behaving in an irresponsible way in his marriage.
He's doing a lot of things.
It just seems this is relevant to.
if it's the night before and it's also late into the night.
Right. It's like till five in the morning.
-: Yeah. Could I just follow up on Justice Kafker's point?
Could you just crystallize for me,
how is that an abuse of discretion to let that evidence in
to that relevant point?
I just, instead of just kind of saying the words, right,
because that's what we do.
We just repeat what the standard is.
Animate it for me. Tell me.
-: This was overwhelmingly prejudicial.
This was a, it was a, and this word's not in the record,
but there are law review articles on it.
This was a sex trafficking website.
This was, if nothing else,
this is what limiting,
this is what this body of law is designed to keep out.
The jury, if the jury heard this stuff.
-: Well, but can't they keep in,
can't we admit, they admit evidence regarding the nature
of the relationship or the state of the relationship?
And wouldn't all of this go to the relationship
between the victim and the defendant?
-: And could you remind us,
was there a limiting instruction given by the judge
once this evidence came in?
-: Yes, There was the typical limiting instruction
that you're familiar with saying this went to,
and there was some debate about it,
but went to motive and intent.
-: And was that repeated at the close of the evidence,
the limiting instruction?
-: I don't remember, but I'm sure it was.
This was the big issue.
Georges: Okay. -: Okay.
And certainly she gave it twice
before the evidence came in.
And this was highly discussed.
But this, think about it,
this was exactly the type of evidence
that this body of law is designed to keep out.
This made him sound like a sleazy husband
who was just the type of guy who would've murdered his wife.
Gaziano: It's gotta be prejudicial.
That's why they wanted it.
-: Absolutely, the government..
-: Question is whether it's outweighed.
-: This was over the top. -: Unfairly.
-: Quite frankly, I was shocked when I read this,
like, as if the first time.
(Cipher laughs)
But this was absolutely, I cannot understand.
I think there the LL case which talked about
no rational judge.
I don't remember where they cited that.
But bottom line is that.
Georges: we've moved beyond that.
-: I can't believe a judge would let this in.
Kafker: We've moved beyond that test. Right?
Gaziano: No, that's the new test.
The LL is the newer one.
Kafker: LL is right case.
-: But then wouldn't that be,
wouldn't the prejudice then be on the commonwealth?
Because if you have the opportunity to,
I know you said it's not as numerous as
maybe the trial judge made it seem,
but we do have this statement, or this evidence,
that he claims that we have this great marriage.
So without allowing the commonwealth to rebut that,
isn't that unfair to the commonwealth
that the jury would be left with this false picture
of domestic bliss that perhaps wasn't there.
-: Commonwealth introduced over,
an inordinate amount of evidence
of just how bad this marriage was.
There was no doubt the jurors could not have been confused
that this was not too lovebirds.
It's very clear, just reading the text messages
there were problems.
And what's interesting,
another, let just make one other point.
Kafker: He's selling the wedding rings, you know.
-: Well, but no, he didn't sell the wedding rings
that they want you to infer he sold.
Kafker: That's probably not a good sign.
The wedding rings disappeared for however they disappeared.
Commonwealth, obviously, and they're very careful
never to say he sold the wedding rings
'cause Commonwealth had access
to all sorts of evidence about pawn shops.
-: I thought he pawned his own ring.
I thought he pawned his own ring.
Maidman: He did. -: Okay.
Maidman: And some other stuff.
-: Yeah. Okay. So you're pawning your own wedding ring.
That's also not a good sign.
-: Well, it depends if you don't have
the money for your drugs.
-: So counsel, could I go back to the question
I asked you a few minutes ago?
Is the abuse of discretion in that
the Backpage evidence was cumulative of other evidence?
-: It certainly was cumulative
that the marriage was not blissful,
overwhelming evidence of that,
going back at least nine months.
Or for whatever number of months.
-: Did they commonwealth even mention it in closing?
I can't, I read the closing, but I can't remember,
did they bring up the Backpage in closing?
-: Oh yeah. They were careful how they did it.
I think they realized that there was enough gasoline
on the fire.
-: I just should say that Judge Walley would be disappointed
if someone didn't mention Commonwealth versus Creighton
as a proper legal standard.
Commonwealth versus Creighton.
-: Oh, okay. Okay.
But the other thing, if you let me make one point,
what the Commonwealth did
is they went back at least nine months.
If we talk, go back to forged checks.
And they use everything he did or that he didn't do
as evidence that was sinister.
And what the Commonwealth effectively did
was again, undermine the presumption of innocence.
They went back so far coming back,
he missed, he went and ran off
when he was supposed to get a birthday cake.
I that's another example, another example.
-: That may have been something that shouldn't have been in,
but the night before the murder,
the fact that he's really
Maidman: Looking at a sleazy website.
-: Well, more than that,
he's arranging for a meeting with the escort.
He doesn't get to do it.
He's broke and in trouble and spending $100,
his last a hundred bucks, it just, it just.
-: I believe I cited some research.
That just because you go to a prostitute
doesn't mean you murder your wife.
-: I totally understand that research,
but we're trying to get a picture of this individual
the night before the murder.
-: Right.
And it just seems like, as Justice Stewart says,
it's, can we really say it's an abuse of discretion?
As Justice Gaziano said, it's clearly prejudicial,
but it's also relevant in understanding the state of mind
of someone who may have killed her.
-: Well, that's the Commonwealth's argument.
But again, I would argue that it was so overwhelming,
overwhelmingly prejudicial that denied him a fair trial.
And unless the court has any further questions,
I rely on my brief.
-: Thank you. Thank you.
Okay, Attorney Lewis.
-: Good morning, your Honor, Sarah Lewis
on behalf of the Commonwealth.
With me today is the trial prosecutor in this case,
Assistant District Attorney Ian Polumbaum.
I would also like to acknowledge the victim's parents
who are in the courtroom with us today
and family and friends of the victim
who are watching over the court's livestream.
We are asking this court to affirm
the defendant's conviction
for the murder of his wife, Vanessa Masucci.
-: So, Ms. Lewis, same question.
What's what's your best case
as far as circumstantial evidence goes
in this type of motive and opportunity?
-: I would cite Lodge, it's cited in the Commonwealth's,
excuse me, in the Commonwealth brief
and also Robertson for the same proposition
that motive together with means and opportunity
and circumstantial evidence, excuse me,
consciousness of guilt in the aftermath
can all add up to provide circumstantial evidence
that a defendant is culpable for the crime.
That's exactly what we have in this case.
But in addition, I would cite four categories of evidence,
the motive here, the means, and the opportunity.
I would also add that the manner
in which the victim was killed
shows an intimate familiarity
between the perpetrator and the victim.
And I think that's really important in this case.
An the fourth category being the consciousness of guilt.
But Justice Gaziano.
-: On the manner, can you explain that to me?
-: Yes, the blood spatter evidence in this case
showed that the murder occurred
behind the closed bedroom door of this couple's home.
That in and of itself shows this familiarity.
Who else would be able to get into the bedroom
in that manner, close the bedroom door.
No evidence of a struggle that ensued.
In fact, this physically fit woman
did not harm the defendant.
There was no evidence that he had scratches
or any kind of injuries on him, therefore,
leading to a reasonable inference
that she was surprised by this attack.
In fact, the evidence suggests that he used,
perhaps, the bedrail from the bed to hit her
in the back of the head.
She was found face down blood spatter throughout the bedroom
and it looked like a surprise attack, again,
without a struggle and behind this closed bedroom door.
So that is, I think, important evidence in this case.
And then you add that to the means and the opportunity,
the fact that the CSLI evidence in this case
together with surveillance shows that he and the victim
are alone at their home for a four hour period.
Not only that, his own statements, he says,
I'm home starting at,
he says that she was woken up in the basement at 9:00 AM.
Now the video surveillance shows that he had left at 8:30 AM
and then returned.
His mother testifies that she leaves at 8:30 AM.
So again, this testimony places these two people
along with their young daughter at the home alone
for a four hour period, after which he leaves
and then goes on this ride throughout the city,
that the video surveillance then tracks.
And which his statements,
he does not disclose all of that evidence in his statements
to the police.
Exactly his whereabouts,
which adds to the consciousness of guilt here.
So I would say, Your Honors,
is there is ample evidence of guilt in this case.
-: Can we, is the door are the,
is the testimony that the door is locked
when he comes to the house.
-: He tells the police that the basement door is locked
and that he used keys to get inside of it
as he's on the phone with his mother-in-law,
with his mother-in-law.
-: We don't know if the front door is locked.
-: We don't know about the front door.
There's also testimony that the victim's blood is found
on a storm door in one area of the house,
a small amount of blood.
But there's not testimony as to
whether or not the front door is locked.
But there is testimony that there was absolutely no evidence
of a break in, of any sort.
The doors and the locks were intact.
And there is evidence of that based on the search warrant
and the search that was done of the home.
-: Now the bleach and the photograph,
so there, the house stinks from bleach,
but there is this photograph that appears on his phone
and there's no contesting
that the date stamp is accurate, right?
That the night the, either the day,
I guess, the day before,
there's a picture taken of his back and chest.
Lewis: Correct.
-: Which does lend some support that he's downstairs
because of a rash, right?
I mean, I'm not saying it's great support,
but it's some support, right?
-: It could and conflicting inferences,
as this court knows, are for the jury to resolve.
The mother testifies for the defendant
that she, for the defense, excuse me.
that she took these photographs.
But there's also, and of course it didn't come in,
there's evidence that he was taking photographs of himself
that the judge excluded of his genitals
that she did say was overly prejudicial.
But there's evidence he's taking pictures down there.
So there's a conflicting inference,
but I think it's also important to point out
what the officers observed the next.
-: What is, I haven't looked at this picture yet.
What is this picture gonna show us?
-: I cannot speak to that. I have looked at them.
I have not compared those pictures to what the,
or I have not in recent days compared those photographs
to the photographs of what the officers took.
Excuse me, Officer McDougal took the next day
or the day of, excuse me,
when he's photographed at the police station.
But I know that the photographs that officer,
or Sergeant McDougal takes are exhibit three.
And then exhibit three is broken into various numbers.
And I can certainly file a letter with this court
pointing to the exact numbers of the photographs
taken by the officers and then compare those
to the photographs, or give you the exact cite
for the photographs taken by the mother.
-: Because essentially, the Commonwealth's case
is that he's used a tremendous amount of bleach.
He's covered all his tracks with the bleach, right?
Lewis: Correct.
He's, all the DNA evidence is wiped out.
The house is spic and span
besides where the killing takes place,
so, but he doesn't smell from bleach?
How do we?
-: Excuse me, I didn't mean to interrupt you.
I think, I think one problem with, and respectfully,
with the defendant's argument
is isolating out little pieces of evidence
and saying they do not prove beyond a reasonable doubt
that the defendant murdered his wife.
I think it's similar to the bleach evidence.
The defendant walks into the house,
on the phone with his mother-in-law
and despite every single person
who goes into that house afterwards
says that the house smells overwhelmingly of bleach.
He never mentions that.
So you have that fact.
-: He's not asked it either, is he?
-: No, he is not. Well, he's not.
-: Is he asked, Wow, why is this house smell from bleach?
Is he asked that question by the cops?
-: So I was just talking about when he walks into the house,
but during his interview they actually never strategically
ask about the bleach,
seeing if he'll bring it up and he never does.
Now there was a question at the scene,
I believe by officer Impemba about the bleach
and he actually gives information.
He says if we had bleach in the house,
it would be in the basement.
None is found down there.
He has, this also goes to the means,
and I know I'm weaving together evidence here,
but this also goes to the means and opportunity.
He has access to that bleach, it's not found.
He has access to the largest knife in the knife block
that is no longer there.
He says it was last there that morning.
And you add these pieces of evidence up
and as this court knows, look at a whole and in the light,
taken in as a whole and in the light most favor
of the commonwealth was ample evidence of his guilt.
-: You didn't finish the point about the call
with the mother-in-law.
I didn't read the closing argument,
but did attorney Polumbaum direct the jury
to his attention to, he's on the phone,
everybody says the place reeks of bleach,
but yet when he's on the phone with his mother-in-law,
when he walks in, he doesn't say anything about it.
-: He did, he did urge the jury
to draw an inference based on that.
Also said he never says her name.
-: The big thing he relies on, right.
is that when he's driving with somebody,
Karen or whoever the sister is,
he says they're asking about, or maybe it's just under,
I can't remember.
-: You're correct. He says, they asked me about bleach.
They didn't ask him about bleach.
Now again, an officer at the scene did, but.
-: That's the most, he's bringing it up
with this person he's driving with
even though he's been, he wasn't asked about bleach.
-: Exactly, and he says something to the effect of,
how am I supposed to know my wife's cleaning schedule.
Yet at the scene he said something
that he had cleaned up in the days before.
So there was some inconsistencies,
which again, that goes to the category
of consciousness of guilt.
-: Can you go through the process by which the judge
admits the Backpage evidence?
Did she, it was litigated,
did she defer on it and wanted to see what the evidence was?
How how'd that come to be?
-: Yes, so there was cross motions in limine on the issue
that were heavily argued and litigated in the days before,
prior to impanelment.
The judge says she's not convinced,
she wants to hear how the evidence comes in.
I will say that once impanelment begins,
there is mention of whether defense counsel
actually raises the issue of whether the prospective jurors
should be questioned about the Backpage evidence.
The judge says, Well, I haven't made my ruling yet.
This is actually on volume one, pages five to six.
The judge says, I'm still considering the issue.
And counsel says that she did not,
they did not want the question asked of the jurors
or did not want the impanelment delayed
to resolve the issue.
So that was discussed.
And in fact, the issue is brought up again
about questioning the jurors on volume 13, page seven.
So stepping back to the process,
the motion in liimines were argued, impanelment ensued.
The topic was raised again, the defense, excuse me,
The Commonwealth brought a renewed motion
to admit the evidence.
Further argument is had and not until six days
into the trial testimony does the judge decide
to admit the evidence, after six days of testimony.
And particularly what she said tipped the scales for her
was the defendant's statement.
And I think that's really important here.
Gaziano: The happy marriage reference?
-: Happy marriage, no infidelity, no financial problems.
I slept in the basement
because of an allergy to a detergent,
not because he's perusing Backpage.com
for just under three hours and making a date with an escort.
That notably he did not keep.
And I would say that the jury could reasonably infer
because of the confrontation that ended up ensuing.
I think also the Backpage evidence.
Kafker: I'm confused by that.
-: That he didn't meet with the escort.
When was he supposed to meet with the escort?
-: 10:00 AM on the day of the murder when the his CSLI
and the video surveillance and her CSLI,
all placed them at the home for that four hour period
between around 8:45 and 12:45.
I also think the Backpage, Justice Gaziano,
Does that answer your question about the trajectory?
And I think this evidence is the, well, let me step back.
Not only is the evidence relevant
and we can go to that point,
but this judge carefully considered it.
Judge Ames said she was 'admitting it in a very, very,
very circumscribed manner'.
And she did, she excluded the evidence
of the photograph he took.
She asked that only the Backpage,
that word show up on his phone extraction in any explanation
of the exact ads he's perusing, be redacted.
And not only redacted,
they were originally redacted in black.
She said, I want it redacted in white
so as to reduce any prejudice.
So it was very careful.
There were two contemporaneous limiting instructions
when this evidence came in and there was an instruction
in the final charge to the jury regarding this evidence.
Not only that it would,
the jury could use it to go to motive and intent,
but specifically to state of mind.
And that's really what this evidence went to.
And there was a nexus, a close nexus,
between this evidence and the time of the murder
and it part and parcel with his state of mind
in the hours before he killed his wife.
If your honors have no further questions
on the Backpage evidence,
I will conclude by saying that the defendant
should not be granted any relief under Section 33 E.
This is a case where the defendant in a gruesome fit of rage
attacked and killed his wife
behind their closed bedroom door, as I mentioned.
And while their one year old daughter
was watching television in the room, in the living room.
The evidence indicates that he overpowered his wife,
repeatedly struck her, forcefully strangled her,
and as she was dying, or once she was dead, stabbed her.