Announcer: This is SJC-13025.
Commonwealth V Shaquille Malcolm Brown.
-: Attorney Billowitz, please.
-: Good morning. May it please the court,
Elizabeth Billowitz,
for the appellant, Shaquille Malcolm Brown.
I'll begin with the sufficiency of the evidence
and the jury instructions,
and then move on to the grand jury indictment.
At trial, there was insufficient evidence
of Brown's identity as the shooter
and a premeditated murder.
To put it less dispassionately,
we simply don't know enough about what happened here
to incarcerate a man for the rest of his life.
Without physical evidence, eye witness ID or motive,
this conviction could only rest
on a chain of tenuous inferences and speculation
that Mr. Brown was visibly plotting a murder
in front of Rosario Market,
that Mr. Brown was the man with the chipped tooth
seen several minutes later,
and that the man with the chipped tooth was the shooter.
This string of inferences
starts with the Rosario security video.
And I realize the court may or may not
have had an opportunity to view this yet,
it's about a 13 minute compilation
showing Mr. Brown and his former co-defendant
in a parked car outside the market.
I hope the court does get a chance to see it.
Certainly, you will not see Mr. Brown plotting an execution,
and deciding to hunt down and execute the victim
as the Commonwealth claimed in its closing argument.
This is wildly speculative.
It's not reasonable to infer premeditation or intent to kill
from anything seen on this video,
especially by somebody who has absolutely
no connection to the victim.
The Commonwealth asked the jury...
-: But we do have though,
the identification of Mr. Brown
as the person in the video, right?
You're not (indistinct)...
-: Yes. No, it is not disputed
that he is seen on this video about two blocks away
from the shooting, and about 10 minutes beforehand.
The Commonwealth asked the jury to infer this deadly plot
from Mr. Brown's movements on the video.
There are two problems with this.
First of all,
that is precisely the piling of inference upon inference
that this court has forbidden.
Second, that's not a reasonable interpretation of the video.
The video doesn't show Mr. Brown furtively ducking down
to avoid being seen.
And this part is worth a careful watch,
it's about 10 minutes in,
and the timing and sequence are really important here.
What you see is the victim exiting the store.
Mr. Brown is, at that time,
getting out from the passenger side of the car.
The two men actually face in each other's direction
for a number of seconds
while Mr. Brown is making no motion whatsoever
to hide or duck away.
The victim then turns to walk down Ashmont Street,
only then do you see Mr. Brown bending down.
It's not clear why.
At most this is an ambiguous gesture,
and cannot bear the weight of these additional inferences
leading to a first degree murder conviction.
-: That's just one part of the chain,
but then we have have, thereafter,
we have that witness who was going, you know,
post-workout, who sees,
by inference,
your client talking to the victim, gunshot,
and then we have your client running away
and no one else on the street.
-: Well, certainly I would not say
that that was our client running away.
All we had here...
-: I would hope not,
but I think there's at least...
It's up to the jury to figure that one out, right?
-: The identification evidence was extremely tenuous.
It was a description, not a positive ID.
Yes, the jury could've made the inference.
-: Right, I don't mean to throw you on your presentation
'cause you're gonna get to the ID, I assume.
But please continue, I didn't wanna
interrupt you. -: No, certainly.
And that is the most important inference
that the jury was asked to make.
I just wanna make two brief points
additionally about the video,
because the Commonwealth does ask it
to do an awful lot of heavy lifting here
in terms of intent.
-: Well, let me ask you about that,
because I think you brought out a really fair point
that the plotting statements in the closing argument
probably weren't supported by the evidence,
'cause we don't know what was going on
out in front of Rosario's market.
But on premeditation,
we have the use of a firearm,
someone was shot right in the eye.
Don't we usually say intent to kill on premeditation?
I'm pretty clear from that type of a murder,
especially using a firearm.
-: There are some critical elements that are absent here.
So you're asking whether it's fair
to infer premeditation for the manner of the killing?
-: Yes.
-: Nobody saw this here.
Nobody...
And critically, nobody saw a firearm
either on the man with the chipped tooth,
who was seen by the eyewitnesses,
or on Mr. Brown, the person who was identified
as Mr. Brown on the video.
So this isn't a case where premeditation
can be inferred by bringing a weapon.
There was only a single shot here,
so this isn't a case where you can infer from multiple blows
that there was time in between blows
or shots to have deliberated.
-: Assuming, for the sake of argument,
I know you don't concede it,
assuming for the sake of argument,
chipped tooth is your client.
If that's the case,
the person had to have a firearm in his possession.
If that's the case,
the person certainly had to have a loaded firearm
in his possession.
And the person certainly had to have pointed it at someone
and shoot him in the eye.
Certainly intent to kill,
but why not premeditation?
-: Well, this is exactly the kind of
stacking of inference upon inference.
We don't know that the person
that the witness saw
either approaching the victim
or leaving afterwards,
we don't know that they had a gun.
We don't know if...
We simply don't know what happened.
We didn't see anything other than
a friendly conversation.
We didn't see any kind of altercation.
We don't know whether there was another gunman.
And, you know, the record was clear
that anybody who was running in the opposite direction
would not have been seen by either of those witnesses.
It is equally fair to infer
that the person running away with the chipped tooth,
who had been seen in a friendly interaction moments before,
was fleeing from the gunman,
was running from the expected arrival of the police
after a shot.
This is just simply such a blank slate.
And so the point is not so much that, you know,
whether one of these inferences could be made,
it's that you need A to B to C to D to E
in order to get to premeditated murder
beyond a reasonable doubt.
I wanna be very clear
that there was
no positive ID here.
The witnesses only gave a description.
One of them gave a description
with a little bit of specificity
pointing to the distinctive feature
of the chipped tooth.
Distinctive, I would say by no means unique,
particularly in this, you know, city neighborhood,
mixed income neighborhood.
The other descriptions
had absolutely nothing distinctive.
They didn't agree on the color of the clothing,
otherwise completely generic
and could easily have described
any number of young men in the neighborhood.
-: Did the height match your client?
So we had an estimate,
one person said 5'6 to 5'9,
another person said 5'6 to 5'8.
And I forgot from the record what...
-: It's a pretty wide range.
Mr. Harper, the main witness,
his account of the man's height
ranged from 5'6 to 5'10.
-: It's three inches. But how tall was your client?
Was that in the record?
-: I don't recall if it was in the record.
I believe he was somewhere in the range of 5'6 to 5'10,
which was what...
I mean, I would submit that that probably describes,
you know, 80-90% of the male population.
His skin tone wasn't described
with any particular specificity.
So really, it all hinges
on this detail of the chipped tooth.
I wanna go back to the video
just very briefly,
because the overstatements here
I think are really...
Really warrant a little bit of redress.
And I was surprised
when I first saw this video, you know,
after reading how the Commonwealth characterized it.
I wanna be clear,
you will not see the video
showing Mr. Brown peering into the store
to make sure that the victim was alone.
You'll see him approaching the store.
He's looking around.
It's not at all clear what he's looking at.
And it's terribly speculative
to say that he was confirming
that the victim was going to be alone.
If the victim entered the store alone and left alone,
what would the interior of the store show?
Importantly, the video also doesn't show Mr. Brown
following the victim.
The car that he's in drives off two minutes later
down a one way street,
it's the only way it could go.
So even if this video evidence was as clear
and incriminating as the Commonwealth says,
we still have to connect the dots of,
was Mr. Brown the man running from the scene?
Was that the man who shot the victim?
And again, we don't know, we didn't see.
You know, that is a big question as well.
And did that man do so after a period of cool reflection?
I want to very briefly address the firearm
found in the closet.
Mr. Brown's connection to that firearm was so attenuated
that it really should not have been admissible
in the murder case, more prejudicial than probative.
Even if that ruling was an error,
it does not add enough to the other evidence here
to prove a premeditated murder beyond a reasonable doubt.
Whether the jury could reasonably make one
or even some of these inferences is not the question,
it's whether this conviction can rest upon
tenuous inference and speculation.
And we urge the court to reverse the murder conviction
for insufficient evidence.
Moving on to the identification instructions.
As Justice Staziano noted,
the most critical inference
that the jury was asked to draw here
was that the man seen by Barnett Harper was Mr. Brown.
And so it was of utmost importance
that the jury be guided by accurate instruction
on this point.
The judge gave a modified eyewitness instruction
pursuant to Franklin
to address this unusual situation
where the witness is making a description
rather than a positive ID.
There were several errors in the instruction
that I address in my brief,
but in the interest of time,
I wanna focus on the two most serious.
First, the instruction repeatedly referred to
an identification instead of a description.
And this was incorrect,
because of course there was no positive ID.
And it was the jury's job
to make the identification or not
based on this description.
So repeatedly referring to an identification
as a fair compleat was at best
was prejudicially confusing to the jury.
At worst, it usurped their fact finding function.
If the jury found
that Mr. Harper was generally a credible witness,
they could have understood this instruction to mean
that he made a positive ID.
And this obviously could not be a correct basis
for their finding.
For the jury to find that Mr. Brown
was this person,
they had to make that finding beyond a reasonable doubt.
They were not told this.
The judge refused to include the reasonable doubt provision
that is featured in the model eyewitness ID instruction.
The court said in Johnson
that, "One of the primary purposes
of an eyewitness ID instruction
is to inform the jury
of the Commonwealth's heavy burden of proof
as to the accuracy of the identification."
And here...
-: Isn't that the inherent problem, counsel,
that we have a model instruction that,
you know, I think you're right,
is geared towards traditional,
"I looked at an array, I identify this person,"
and we have judges trying to modify that
to meet descriptions of clothin'
or other unique characteristics, correct?
-: That's correct. And I believe that
the instruction that was proposed by defense counsel
would've done the job precisely.
It replaced the term iden...
It removed every reference to the word identification.
And of course it included
the model reasonable doubt provision that says,
"If you are not convinced beyond a reasonable doubt
that the defendant is the person
who committed the alleged crime,
you must find the defendant not guilty."
There is another problem with that omission
that I wanna lay out very clearly
because I did not go into depth on this in my brief.
The omission of the reasonable doubt provision here
lowered the criminal standard of proof.
Because here the jury could only conclude
that Mr. Brown was the man that Harper saw
by means of an inference.
But the jury was instructed
that inferences only need to be reasonable.
The identity inference had to be more than reasonable,
it had to be beyond a reasonable doubt,
but the jury was not told that.
So for these reasons,
the instruction also constituted reversible error.
I'd like to move on to the grand jury indictment.
The indictment was impaired by the reckless presentation
of deceptive evidence
in the form of over 100 pages
of highly inflammatory DOC documents,
describing Mr. Brown's prior offenses
and his violent acts in prison.
The prosecutor apparently was seeking a connection
between the two defendants
who had both been incarcerated at the same place
for a few months.
-: Ms. Bill, can I ask you about something here?
Did Judge Roach credit the prosecutor's explanation,
albeit perhaps wrong under Code A,
of the need to present this to the grand jury if subpoenaed,
or did she not credit that explanation?
-: No.
The motion judge
condemned the Commonwealth's actions generally
as the opposite of best practice.
-: Right, but did she make a finding
that the prosecutor was acting...
That she didn't believe
the prosecutor's explanation, I guess?
-: She said that his conduct met the recklessness standard.
She said, "The record is notably silent
as to whether the prosecutor himself ever reviewed
the correction documents
to make any responsible assessment of the probative value.
And if so, why he chose to submit those records?"
I don't recall a finding specifically on his explanation
that he thought he had to turn over everything.
It was unclea...
The record was not clear
whether he himself ever reviewed the records.
Either way it's a problem.
-: Right, I'm just going
with the good faith or bad faith of the mistake.
-: Well, I think all of it is required as recklessness.
That's all that's required for an Odell Mayfield violation.
And the judge was very clear
that that standard was satisfied.
The motion judge was correct
on the first two elements of Mayfield
that the introduction of the documents
were done in reckless disregard,
and for the intention of obtaining indictments.
She was incorrect on the third,
whether the evidence
probably influenced the grand jury's decision to indict.
She held that the records didn't make a difference
because there was evidence from which
the grand jury could have concluded
that Brown was the shooter.
-: Counsel, can I ask you a question?
Does the fact that this was then...
There was then a trial,
does that correct any of the any alleged irregularities
to the grand jury?
-: It doesn't. And Mayfield is crystal clear on this,
that even after
a jury has reached another conclusion,
that that doesn't satisfy this court's obligation
to review the integrity of the grand jury process.
-: [Honorable Cypher] Thanks.
-: So the records here depicted Mr. Brown
as a violent criminal
with propensity to commit a coldblooded shooting.
It's quite possible given the weakness of the evidence here
that it distracted the jury and influenced an indictment.
Whether probable cause is satisfied
cannot be the be all and end all
of this step of the analysis.
Otherwise every Odell violation would disappear
if McCarthy was satisfied.
-: What was the factual finding...
I'm sorry, what was the factual finding
the judge reached that it was done to secure an indictment?
-: Simply that...
I don't think there was
any specific detail on that finding.
I mean, I'm not sure what other purpose
there could have been to submit this.
This wasn't a situation
where the prosecutor was simply answering a question
that one of the grand jurors asked.
I think the only other scenario
in which this court has held
that that second Mayfield element wasn't met
was where the evidence at issue was exculpatory.
So I think it is, you know,
beyond question
that this evidence
was introduced recklessly
to secure an indictment.
And given the weakness
of the evidence of guilt,
given that the bad acts evidence here
was so voluminous, so prejudicial,
it was introduced affirmatively and gratuitously.
It was not remedied by...
-: That's why I asked you initially
about the factual findings regarding the Code A,
you know, case.
'Cause if it was done under a mistaken belief
that it had to be done to...
So it wasn't an abuse of grand jury process,
it wouldn't have been done to secure an indictment.
So that's why I was asking about factual findings.
-: I don't believe she specifically addressed that.
I'll certainly review it
and update the court by letter.
I believe that that...
I'm not even sure that that explanation
was offered at the time.
I believe the first time I came across it may have been in-
Dr. McClain's brief.
-: Yeah, well, I read it in Judge Roach's opinion,
that's why. I didn't go...
-: That the prosecutor was under the belief
that he had to...
That anything he...
Yeah. Well, that...
-: So I suppose argued?
-: Yeah. Well, the motion judge
clearly did not feel that
that was a reasonable explanation,
or she would not have found
that the prosecutor acted recklessly
in either failing to review it,
failing to assess its prejudicial impact,
and then giving it to a witness
who was completely unfamiliar with it.
-: Let me ask if there are any further questions
from the panel?
Thank you, counsel.
-: Thank you very much.
-: Mr. MacLean?
-: Good morning, Your Honor. May it please the court,
Ian MacLean on behalf of the Commonwealth
along with the trial prosecutor from this case,
Assistant District Attorney, David Bradley,
who's listening to the livestream.
Firstly, I'd like to... -: So can I ask you...
Before we get in,
can I ask you about the argument
that they were plotting outside of Rosario's?
Is it not pure speculation?
-: Of course you can, Your Honor.
But before I respond (indistinct),
I'd just like to address that the family of the victim
are also watching on livestream,
and particularly the mother of the deceased victim,
Christopher Austin,
his mother, Grace Richardson, is watching.
Now, turning to the closing argument, Your Honor,
as you requested,
yes, I'd say it's a fair inference
from the evidence that was presented
to argue how you can interpret that evidence
as to what the defendant's intent was,
what was going through his mind.
Intent is almost always established
through circumstantial evidence and other evidence.
It's very, very rare
that we have a direct admission from the defendant,
"I intended to do behavior X."
So here what happened is,
the prosecutor was marshaling the evidence,
and what he had was a video
that showed the defendant's actions.
From those actions, he was pointing out,
"Look at what he did here,
I think you should infer he was thinking this.
Look at what he did here,
I think you should infer he's thinking this."
And those things being,
first, when he sees the victim exit the store
and he is across the street,
he attempts to duck out of view.
Second, after he allows the victim
to walk down Ashmont Street aways,
he crosses the street over to the store
and looks in the store through the clear glass window.
What the prosecutor was asking the jury to infer from that
is he was confirming
that the victim was in fact alone,
that there wouldn't be anybody else
coming out of the store after him.
And respectfully, Your Honor, those are fair inferences
for the prosecutor to ask the jury to make
from that video evidence that was in front of them.
Then further support
for why you can draw those inferences
would be what happens next.
The defendant returns to the blue Honda accord,
speaks with the driver of the blue Honda accord,
Keith Cousins,
then they drive off down Ashmont Street.
If they were only going to engage the victim
in a conversation,
there would've been no reason for them to stage
the getaway car,
they would've continued driving down Ashmont Street,
caught up with the victim,
parked the car, got out and spoken to him.
Instead, they took the first left off of Ashmont Street,
and then parked the getaway car somewhere up there,
which we know from the fact that the defendant
was then seen running down Waldorf Street
back onto Ashmont Street where the victim was walking.
So they staged the getaway car
at a place that would be two corners away
from where the event was going to happen.
So that one witness wouldn't see
the shooting and the getaway car at the same time.
Take those facts together,
and now it looks like that was planned
from back when they first saw the victim
exit Rosario's marketplace.
So respectfully, I think those are appropriate inferences
for the prosecutor to ask the jury to draw
from the evidence in the case.
-: Can you address the grand jury issue
in Judge Roach's findings?
Do you concede it was a mistake
to put the DOC records in totality in?
-: The totality of the records, yes, Your Honor.
And I would start by saying,
well, Judge Roach didn't make clear factual findings.
She did acknowledge at addendum page 76,
which is page 17 of her written memorandum and order,
she did acknowledge
it was a legitimate area of investigation.
So her additional factual finding
about how the records themselves were then handled,
saying that it was reckless,
we'd say that was a factual finding.
But looking to establish a connection
between these two defendants,
specifically why the getaway driver, Keith Cousins,
would be willing to act in a joint...
Go ahead, Your Honor.
-: You know, we don't need records
when the person's six years old, right?
I mean, it was...
And we don't need D reports, I mean.
So what about this explanation
that relies on Code A thinking,
"If I don't put these records in,
it's going to be an abuse of grand jury process?"
My memory of the case law
is that you abuse grand jury process
when you use the grand jury
to get trial records
that you wouldn't otherwise be able to get under Rule 17.
So is this something that was
excusable by the prosecutor,
or is this completely wrong,
or where are we on that?
-: So, Your Honor, I'd say,
yes, it can be an abuse of grand jury process
to use it as an investigative tool for trial,
that's clear.
Also, to, like, bring in a witness
and talk to them outside of grand jury.
So from that,
we interpret that every time we use
the authority of the grand jury,
we have to put the information we obtain
before the grand jury.
So that's our guiding principle.
Then how do you apply that in this particular situation
where it was a legitimate area of inquiry
in the right time span?
And, I mean, we concede, Your Honor,
that it was inappropriate to ask for time span
when there was no possibility
that they could have been housed together
because one was a minor.
Concede that that was wrong.
That was that we asked for too much.
So if we get too much information the question is...
-: It can't be that you blindly
put records in front of a grand jury
that are going to overly prejudice
the grand jury against the defendant, right?
-: We agree, Your Honor.
Yes, Your Honor, we agree with that.
And that's where the error was here.
Well, the first error was in seeking records
beyond when they could have possibly been housed together.
Then the second error was in not evaluating them
before putting them in front of the grand jury.
So then the question becomes,
if you have information that
doesn't provide any relevance to your investigation,
what do you do with those documents?
You can't simply not tell the grand jury about 'em.
So we think the best practice in that situation, Your Honor,
is to put it on the record
so that there is going to be a transcript of it
so that everyone will know,
and there could be an Odell challenge subsequently.
But to say something along the lines of,
you know, "Grand jury, we've subpoenaed a bunch of records
under your authority using subpoenas,
we haven't evaluated them all.
We don't believe there is relevant information in them,
so we're not going to produce them to you."
So now there's a record of it.
So the defense would know
that this information was subpoenaed,
and they would receive it in discovery,
and they can evaluate how they feel about that.
Now, if you have a bunch of records
and, say, two pages out of 100 are relevant,
now the question becomes, how do you get those two pages in?
You could, if it was a different proportion,
you could simply redact out bad information.
If redacting isn't gonna work,
then I think best practices would be
basically what we just said,
to tell the grand jury, "We subpoenaed records,
we received about 100 pages,
only these two pages contain relevant information,
here are these two pages."
Then there would still be a full record
so that an Odell challenge could be raised,
and the defense would receive
those other 98 pages in discovery,
so they would have access to the material
that didn't go to the grand jury.
That's probably what should have happened here, Your Honor.
Just a very tiny portion of records
that showed the brief overlap
between the two defendants at Souza
should have gone in to the jury.
And with an explanation as to other records existed,
but were not relevant to the case,
and so were not coming in to the grand jury.
That would've probably been best practices.
Also combined with a limiting instruction.
But here what the prosecutor did was put it all in,
but did provide a limiting instruction.
And that... -: Well, kind of. (laughs)
It wasn't much of a limited instruction,
and it was proceeded by,
"Here you go, have at it," or something like that.
-: Well, yes, Your Honor.
And I can come back to,
"Here you go, have at it," in a moment.
But the actual words
of the way the limiting instruction ended were this.
It's brief. And if you let me get through them,
it'll help inform the court here.
"All right, again,
let me just rephrase that a little bit better.
But basically, do not use the fact
that they have been arrested before, done time,
in deliberations when you determine whether or not
they committed this crime."
That's a clear instruction in plain English
that the jurors would've been capable of following,
and we presume that they followed those instructions.
Now, the comment they referred to,
the sort of flip in sort of comment,
when you place that in context of what had just happened
in the grand jury with a prior witness,
a video thumb drive had just come in
and there was conversation back and forth
about the voluminous amount of information
that the grand jury was gonna have to evaluate here.
So it was sort of a call back,
both it responded to the call of the question
from the grand juror himself,
and was a call back to what had just happened
a few pages before.
If you read it in isolation,
it sounds like maybe it's even nefarious possibly.
But when you read it in the context
of everything that happened that day in the grand jury,
it's not at all nefarious.
So what this boils down to on the grand jury issue is,
a valid limiting instruction
explaining to them that they could not consider
the fact that they had done time before
for the purposes of this indictment.
So if we look at the three components of the tester
that are all the defendant's burden..
-: There are also other problems
with the grand jury presentation
involving other witnesses, correct?
-: I would disagree with that. -: Was that erased?
-: Not on appeal, Your Honor.
There were other challenges that were raised
in the motion to dismiss below,
but none of which were raised in appeal.
My understanding of the appellate issue
is limited simply to the department of corrections
records that were introduced.
So the three prongs,
knowingly or acted with reckless disregard,
presented false or deceptive evidence.
So reckless, yes, as Judge Roach found.
But it's not false nor is it deceptive.
The question here is, what are prior bad acts, really?
So, I mean, I point the court...
As a result, I point the court both to Matthews and Rakes
where curative instructions were enough to address
the prejudicial impact of prior bad act evidence.
And in Rakes it was incredibly powerful,
prior bad act evidence.
In Rakes it was the defendant's own statements
that he kills people for money,
that you should remember the five P's
when you kill somebody,
proper planning prevents poor performance.
And also a mention of the defendant's invocation
of his right to counsel.
And that was all found to be cured
by a curative instruction, a limiting instruction
provided by the assistant district attorney
that was in the grand jury there. (clears throat)
So then the second prong of the test here,
was this evidence presented
for the purpose of obtaining an indictment?
Not really, this evidence was about establishing ties
between the two actors.
This evidence was really geared at the co-defendant
to explain why he would be willing to act in a joint venture
with the defendant.
This had nothing to do with establishing
the defendant as the shooter.
-: So you're saying that the findings
were clearly erroneous then?
-: No, Your Honor. I'm saying that...
-: But that's what Judge Roach said,
that the defendant satisfied
parts one and two of Mayfield, but not three.
-: She did, Your Honor, yes,
but I'd say that these are really questions
that are are mixed questions of facts
and conclusions of law.
Like, for example, in the first question, it's knowingly...
-: But this goes to the purpose for which it was obtained.
And the judge down below
was trying to ascertain essentially
the state of mind of the prosecutor,
why was this done?
So you have to argue to us, right?
That it's clearly erroneous.
-: Well, it's fine, Your Honor.
I interpret it as a conclusion of law,
but if you say it's a factual finding,
then I would say it's a clearly erroneous factual finding
based on the record below.
But then move to the third prong,
and that's really where we decide these questions.
Did this evidence
probably influence a grand jury's decision to indict?
So the defendant has to establish,
without this evidence
a grand jury probably would not have indicted.
And as Justice Cypher
pointed out during my sister's argument,
we have the benefit of the trial here,
and this defendant was convicted.
And we're talking about essentially the same evidence
that came in at the grand jury level
as came in at the trial level.
-: That's the federal standard.
The federal standard says that basically
guilty convictions
wipe away grand jury mistakes.
We don't have that law, right?
-: Well, Your Honor, I think it has been applied
in McCarthy situations,
but I don't know it is necessarily always applied
in Odell situations.
-: Right, not Odell Mayfields,
when we have prosecutorial misconduct essentially,
in both those instances we don't say,
"Well, you got a conviction, no harm, no foul,"
that's not our law, right?
-: Correct, Your Honor. But the third prong
of the applicable test here
is that the evidence probably influenced
the grand jury's decision to indict.
So in order to...
-: We have to look at the strength of the evidence
that was presented,
and the amount of prejudice
occasioned by the use of the grand jury technique, correct?
-: Exactly, Your Honor. Exactly, Your Honor.
And here, I'm simply making an analogy
to the fact that the evidence that came in
at the grand jury level
was essentially the same evidence
that came in at the trial level.
All of those crucial witnesses
that we're talking about here,
Mr. Harper being the most important,
came in and testified, and his testimony was consistent
with what he testified to at trial.
The Rosario's video came in.
The video of the defendant being interviewed
at the Boston Police Department showing his chipped tooth.
The testimony from the family members
that identified him in the Rosario's video.
-: That prong three under Mayfield
is not a sufficiency of the evidence question, right?
So at the least the judge got that wrong.
Isn't that right?
-: Yes, Your Honor.
It's not really a sufficiency of the evidence argument,
but what it...
The question is, if there was sufficient evidence
for the grand jury to indict this person,
then it's much less likely that this had any influence.
-: You know, do these 100 pages of prior bad acts
influence that decision, or what is the standard?
-: I'm sorry, Your Honor, I didn't...
You cut out at the end.
-: Well, the third prong
isn't a sufficiency question.
So the question under the third prong it seems to me
is whether these 100 pages of unreviewed documents
showing the defendant to be a bad guy
influenced the grand jury
in coming to the probable cause decision that they had to.
-: Yes, Your Honor. Did the wrongfully admitted evidence
probably influence a jury's decision to indict?
So, yes, you're right.
Technically it's not a sufficiency of the evidence analysis,
but if you have to evaluate all of the evidence
that did come in to see if this would've,
I don't know, tipped the scales
to achieve the level of probable cause.
And probable cause is not that high of the standard here.
There was more than adequate evidence that was introduced
to justify indicting this defendant
as having been the shooter himself.
-: Hey, can you get to that though on...
I'm sorry, unless Judge Wendlandt
has any further questions on this?
-: No, I think your follow-up
is exactly where I was gonna go. So go ahead, yeah.
-: Okay, so can you read my mind?
Can you tell us the best case you have,
or the closest case to an inference
that this was the shooter
based upon a witness seen in the front end
and in the back end,
but not the shooting of this incident?
-: Well, Your Honor, I don't think there is a case
that is perfectly factually analogous,
but what I have is a witness that placed him
passing him at about 92 Ashmont,
running right up to and engaging in conversation
with the defendant.
And that witness noting that he saw no one else
on the street in the vicinity,
nor did he hear or see a car drive by.
And then just a matter of a few seconds later,
the defendant is shot a single time in the face,
with stippling on his face,
meaning he was shot from close range.
Then again, Mr. Harper exiting his residence
and not seeing anyone else on the street.
So we have no one else around,
and a wound that was inflicted from close range.
So yes, we don't have an eyewitness
that observed the murder occur,
but we have basically the next best thing.
No one else was around other than the defendant,
and the wound was inflicted from close range.
This is not a second shooter on a grassy knoll
with a long range rifle.
-: What's the timeframe we have between...
I know it's, Rosario's to the shooting is 10 minutes,
but what's the timeframe
between the time that the person who was working out
sees them, goes up to his apartment,
and then hears the gunshot?
Like, how much time elapses
before the shooting from the last sighting
by this,
I think it's Mr. Harper, right?
-: Yes. Yes, sir, it is Mr. Harper.
We don't have an exact amount of time.
What we have is the amount of time it took him
to walk up the stairs into his house, enter his door,
turn off his security alarm,
and then he hears the shot.
Then he turns around and looks out the window
and then comes back out.
So we don't know exactly how many seconds that is.
Just an estimate of seconds.
-: Yeah, was he asked at trial
to estimate how much time?
-: He may have been, Your Honor.
And I will go back and look at his testimony.
And if there is a specific amount of time,
I'll send a 16(l) letter before close of business today
that gives you the reference to the exact amount of time
that he testified to.
But my recollection was,
I believe that he was a little more vague
and said just a matter of a few seconds.
And a few meaning 20 seconds,
30 seconds in that area.
But I'll confirm and send a 16(l).
Then in addition to Mr. Harper,
we have the other witness who was across the street,
basically at 90-something on Ashmont Street.
He hears the shot, turns around,
he's sitting on his couch in the living room,
turns around, looks outside the window,
also sees only one person fleeing.
And fleeing the exact same flight path
that the defendant was fleeing.
So that's the defendant that he saw.
So now we have a second witness who didn't see anyone else,
or hear or see any cars drive around.
So now we have two witnesses that place the defendant
as the only person with the victim
at the time the shooting occurred,
and the shooting was inflicted from close range.
So the inference that I'm asking you to draw
is that the defendant was the shooter.
That is a reasonable and possible inference
from those facts.
It doesn't have to be necessary or inescapable,
just reasonable and possible.
And that is absolutely reasonable and possible.
Also, add in the fact that the defendant,
as I discussed previously,
basically staged the getaway car.
If this wasn't going to be a murder,
when you're driving down Ashmont Street from Rosario's,
why don't you just stay on Ashmont Street
and go talk to the defendant?
Why do you take the first left off of Ashmont,
stage the car,
and then run down Waldorf Street to rejoin Ashmont
to catch up to the victim?
This was planned in advance
that they were going to do this.
And that, again, is a reasonable inference
that can be drawn from that evidence.
So there was sufficient evidence to establish
the defendant acted with...
Was the shooter, acted with intent to kill
and acted with deliberate premeditation.
As to the sufficiency of evidence
for the firearm possession,
he was arrested that morning in bed partially clothed
with a female guest.
The gun was found tucked on the floor in the closet,
right inside the door.
-: We have plenty of cases on constructive possession.
We'll see how this one lines up.
I'm more interested in, at this point,
the identification instruction.
Was it a mistake for the judge to term it identification
as opposed to description?
-: No, Your Honor. Because the first...
At the top of the instruction, which is page...
Volume 11, 108-109,
the way he tailored the first sentence of the instruction
made it clear what we were talking about.
He changed it from where a witness
has identified the defendant,
to where a witness has provided a description
which may identify the defendant.
That's the way he started this piece of instruction.
Then over the course of the next,
about a page of transcript,
he did use the word identify a few times,
but each time it's the call back
to that initial portion of the instruction.
So there's no abusive of discretion there.
And yes, Your Honor,
you did point out during my sister's argument
that the difficulty that judges experience here
is this model instruction requires
a significant amount of tailoring
when we have a description of a person
as opposed to an identification.
And here the judge did a good job
of striking out things that were not applicable,
cross racial ID, suggestive conduct,
express certainty, photo arrays show up,
multiple viewings, failure to ID,
and including only the things
that were relevant or pertinent here.
Your Honor, if I may, I'd like to briefly address
the reasonable doubt portion of the instruction as well.
Yes, he did excise that last portion
of the model instruction,
but the reasonable doubt component
was included in his instructions.
You've gotta look at the instructions
as a totality under Batchelder.
So I would point out
that he provided an initial charge
prior to the party's closing arguments,
and he gave the reasonable doubt charge as part of that,
volume 11, pages 35 and 37.
Then in his final charge,
he reiterated reasonable doubt
before the instruction on eyewitness identification,
that's at page 101.
And then following
the eyewitness identification instruction,
and that's at page 113,
that's when he also gave the moral certainty provision,
that's 113-114.
So here, even if the reasonable doubt
sentence was not included specifically in this instruction,
it was addressed multiple times for this jury,
so they were well aware of the applicable standard here.
And then I'd also point the court to the Johnson case
where we don't have an actual identification of a person,
that specific reasonable doubt provision at the end
isn't needed because it's captured
in the regular, standard reasonable doubt instruction.
And the trial judge here was aware of that
as he referenced on volume 11, page nine.
And that's why he excised it from his instruction
that he tailored specifically to the facts of this case.
-: Is there a question?
Okay, go on Mr. MacLean.
-: I was just gonna say, Your Honor, I see that I'm out time.
If there are any other questions from the court,
I'd be happy to address them otherwise.