-: SJC-13078, Commonwealth versus Mark O'Brien.
-: [Justice Wendlandt] Okay, Attorney Essington,
whenever you're ready. -: Thank you.
Good morning. May it please the court.
Katherine Essington on behalf of the defendant,
Mark O'Brien.
I'd like to start with the first issue in my brief.
Trial counsel was ineffective
and made a manifestly unreasonable decision
in waiving an involuntary manslaughter instruction.
The instruction must be given if any view of the evidence,
any reasonable view of the evidence would support it.
Here, there were multiple ways that the jury
could have found Mr. O'Brien guilty
of involuntary manslaughter.
First and foremost, they could have found that Mr. McKenna
died as a result of going through the window
as a result of a misdemeanor assault
or that he died as a result of the reckless
and wanton conduct of the burglars
in breaking into his house at night.
Justice Gaziano: What were the injuries?
-: I'm sorry. What were the injuries?
-: What were the injuries to Mr. McKenna?
-: Well, obviously, he had a fatal injury to his arm
that was a transection of an artery
as well as some major veins.
Beyond that, he had
-: What was the cause- -: scalp wounds.
-: What was the cause of death?
-: The cause of death was his bleeding out, primarily,
I would argue, from the injury to the arm,
but the medical examiner did testify
that the scalp injuries were a contributing cause.
-: Okay, so we got injury to the arm,
and what other injuries?
-: He had bruising in various places throughout his body,
I think on his face, on his torso,
and perhaps arms and legs.
I can't exactly recall,
but there was bruising in various places in his body.
-: How would all that be consistent
with wanton and reckless conduct?
I mean, this was a pretty savage beating.
I mean, how would a reasonable view
of the evidence here support that?
-: Well, again, his cause of death
was going through the window, I would submit,
and while it does appear that there was a struggle
and he sustained injuries in that struggle,
there was no direct evidence
that Mr. O'Brien participated in that assault,
and furthermore, I would argue that the jury
could have found that there was a misdemeanor assault
with respect to what happened just before his
going through the window. -: Can I ask something
more fundamental?
I'm sorry, Justice Gaziano.
-: Oh, I he was a joint venturer.
It was a joint venture theory, right?
-: That's correct, your Honor, but-
-: You want us to separate out his involvement,
but he's a joint venture and then separate out one injury
from a cluster of injuries?
-: Well, with respect to the first part of your question,
I would argue that under the pursuant to Brown,
that the jury has to find malice
with respect to each co-venturer.
-: Well, no, you have to show shared intent.
-: Yes, the shared intent and shared malice, essentially.
-: Right.
You don't think this is at least third prong malice?
-: The jury did not have to conclude
that Mr. O'Brien participated
in any kind of a felony assault here.
There was no DNA or fingerprints
of Mr. O'Brien in the house.
-: Well, that just argues for the reasonableness
of counsel's decision to lay the defense
on O'Brien wasn't the third actor, right?
But in connection with asking for a jury instruction
on involuntary manslaughter, you'd have to at least agree
with the proposition that O'Brien was the third actor,
and once you're there,
all of those injuries inflicted to the victim,
I don't understand how you can separate them
from O'Brien if he is, in fact, the third actor.
-: Well, with respect to sort of the first part
of your question,
I'm not arguing that counsel's theory of the case
or his primary theory of the case was unreasonable,
and I don't think the court has to find that.
But I don't think it's unusual at all
for defense counsel to argue alternate theories here.
-: Right, but in the alternate universe
where O'Brien is the third actor,
I don't see the injuries here, to Justice Gaziano's point,
or at least explain to me how the injuries
to this particular victim are consistent
with lack of malice.
-: Well, again, your Honor, I would argue that,
obviously, there was a struggle.
We know that, but we don't know-
-: A vicious beating, really,
'cause it's the head, the face, the torso,
and the bleeding out from the arm and the head.
-: Well, again, the arm injury was not caused by any beating.
That was caused by his going through the window,
Again, the standard really is important here.
Is there any reasonable view of the evidence
from which the jury could have concluded that-
-: So your reasonable view of the evidence would be yes,
O'Brien was the third party,
but he was not involved in the beating?
-: That's correct, your Honor.
I don't think there was any direct evidence
that he was involved in the beating.
Again, there was no forensic evidence tying him
to the inside of the house.
There was- -: No, no,
but on this theory where you're asking for the instruction,
he was in the house. -: Sure.
The instruction would assume a sort of fallback,
what I would characterize as a fallback position,
that if the jury found that he was in the house,
that they could reach this manslaughter conviction.
-: We have a lot of cases where there are these types
of beatings or a type of injuries like this,
and we say, "Well, there was no grounds for involuntary
because it was, at a minimum, third prong malice."
What's your best case in a cluster of beatings
or injuries type case where we've said the proposition you
urge us to take?
-: Sorry, hang on a minute.
I don't know if I have a specific case,
and I'll get back to that,
but I think this is different from a lot of those cases
in that this was, first of all, an unarmed robbery,
and there was no clear intent shown to cause the death of-
-: They came back on both.
They came back on atrocity and cruelty and felony murder.
Correct? Post-Brown felony murder.
-: Yes, yes.
They came back on extreme atrocity and cruelty,
which, again, I would argue was partly as a result
of the prosecutorial misconduct in this case
in terms of arguing that they stepped on him
as he was bleeding out in addition to arguing
that leaving him to bleed out was malice
or extreme atrocity and cruelty,
and I don't think the case law supports that at all.
-: Well, if you look at Castillo
in the atrocity cruelty factors,
this certainly is sufficient, right?
-: I disagree that leaving someone
without preventing them from seeking aid is in
and of itself extreme atrocity and cruelty.
-: If you look at what we said in Castillo, right,
and we modified the Hunter standards,
I thought that this case lines up fine.
There's no sufficiency argument,
and you didn't raise a sufficiency argument
on atrocity and cruelty.
-: Yes. -: It's different.
It's different from what you- -: But yeah, I would argue-
Justice Gaziano: On closing argument, of course.
-: Yes, I would argue that that contributed
to that verdict, and, again,
I would just stress the standard here,
which is the evidence must be viewed
in the light most favorable to the defendant.
If there's any reasonable basis to support the instruction,
then it must be given,
and it's reversible error not to do so.
Again, we have a situation which is unusual,
I would argue, in this case,
that the jury could have reasonably found
that he did not die as a result
of any beating by the defendants,
that he died because of a freak accident, essentially,
of going through the window and severing an artery,
which caused him to bleed out.
-: But you said that it was both the arm
and the injuries to the back of the head, right?
-: And -: Well,
the medical examiner testified that the back
of the head was a contributing cause,
but I think there's substantial evidence
that Mr. McKenna lived for a substantial period of time
after the blows to the back of the head,
and she acknowledged in her testimony
that that likely wouldn't have killed him,
that the bleeding could have slowed down,
that that was just sort of a contributing factor
in terms of blood loss.
-: That doesn't help you though.
The fact that he's suffering for that extended period
of time doesn't help you when saying it was a freak injury
when he's beaten.
The arm injury. Then he's beaten with a fry pan, right?
Dent in a fry pan. That's kind of severe.
-: Well, I would respectfully disagree
that it doesn't help me.
I think it does show that that injury,
the fry pan injury, which was, again,
it was arguably severe, but it was an aluminum fry pan.
There was substantial evidence that he walked
over the fry pan and throughout the house
after sustaining that injury, and-
-: So that was not- -: we-
-: I'm sorry, after sustaining which injury?
The arm injury or the fry pan?
-: The frying pan injury. -: Okay.
And the frying pan was dented?
-: Correct. -: Okay.
-: And I'd like to turn, before I run out of time,
to the claims of prosecutorial misconduct in this case.
Ronald King, in this case, who was a very important witness,
gave blatantly false testimony with respect
to what benefits and payments he had received.
-: Defense counsel was able to draw out, though,
that this had been a cooperating witness
with the Boston Police Department for years, right?
-: Yes, he was, but- -: And that he had received
compensation throughout those years.
-: Yes, but again, that's a different county, first of all,
and that those payments were in exchange
for his drug work for them, essentially.
-: But the $930 was disclosed.
-: It was disclosed, but I think under Ware
that the prosecutor has a duty to correct that.
This court has said that very clearly in Ware,
even if defense counsel is aware
and that that duty was not performed here.
In addition, he gave blatantly false testimony
about whether he'd received money
for prescription medication.
He failed to disclose cash given to him
for daily living expenses and other items,
amounting to several hundred dollars,
and the jury just never heard any of that based
on the prosecutor's failure to correct that testimony,
which was blatantly false.
-: Well, assume that we give you a little bit of that
because it was cross-examined,
maybe not the full extent of what the consideration was
to the cooperating witness.
Some of it was cross-examined, and it was brought out.
So it wasn't as if the jury had no idea
that this witness got something for their testimony,
but let me go to the more important issue
that I'm struggling with.
This was unpreserved, right?
This was- -: Correct.
-: Okay, so now get to the prejudice part for me because,
to me, even if I concede that,
that's the part that I'm struggling with.
Show me how, with an unpreserved claim like this,
where there was some cross-examination,
it wasn't like it wasn't brought up at all,
how you meet the prejudice part.
-: Sure, your Honor.
Again, the importance of this witness cannot be overstated.
This was the only witness who put Mr. O'Brien in that house.
There was zero forensic evidence putting him in that house.
-: There certainly was circumstantial evidence, though,
that put him in that house.
-: I would say there was circumstantial evidence
that put him with Mr. Ferguson,
and there was forensic evidence that Mr. Ferguson
was in the house. -: Well, no,
because there was a glove that had a particular brand found
in the house.
That same branded glove was found in the defendant's car.
-: Yeah, and that was an important point on it.
This is why I wanted the prosecutor
to correct a misstatement in her brief on this issue.
Mr. O'Brien had a pair,
not one but a pair of similar gloves,
which are very common work gloves.
-: Right, but, I mean, I'm pushing back on this notion
that nothing else put Mr. O'Brien in that house, okay?
So whether it was a pair or that,
we're not saying that it was the second part of the pair,
there was a mechanic's glove in Mr. O'Brien's car.
There was a mechanic's glove in the house.
-: There were two mechanic gloves
in his car. -: Sure, sure.
But you also have evidence that the police seized his car,
the car was clean, there was cleaner in there,
there was occult blood that was found in the car.
So I'm struggling to see how important this witness is
to the fact that he was in the house,
that there was evidence that he was in the house.
-: I would respectfully disagree
that there was evidence in the house.
Again, this was an extremely bloody scene,
and there was no forensic evidence,
unlike his two co-defendants
who left DNA or had the victims blood-
-: No, King was definitely an important witness, right?
But the defense counsel did impeach King.
I guess the question on prejudice is really
or substantial likelihood of a miscarriage of justice
is whether this additional monetary contribution
to King really undermined the ability of the defense counsel
to further impeach King in the situation
where the defense counsel actually had the information
in his back pocket.
So you could just explain to me
how that further inability apparently to impeach him-
-: Sure.
I would stress, again,
that this was different from the situation where King worked
as a paid informant for the Boston Police Department.
Again, this was- -: Wasn't that the theme
of the defense counsel?
It was like this was, you know, a paid liar,
I think is what they said in closing argument, you know,
that he had for years been an informant for the police.
-: I certainly would agree that that
was a theme. -: So how does
this additional $900 really further that
in the sense of creating a substantial likelihood
of a miscarriage of justice?
-: Because it was direct payment
for his testimony in this case,
and I think that is a crucial distinction between his work
for the Boston Police Department as a paid informant.
It was an exchange for his testimony in this case,
and, again, he testified that my client, Mr. O'Brien,
confessed to him that he was the third person in this house.
There couldn't have been more damaging testimony
than that testimony.
Again, I think that his testimony
was a key part of this case, and, again, there was a long,
if you go through the transcripts,
there was a long discussion or motions and hearings
about whether defense counsel would be allowed
to get in the fact that testimony that King gave
in another case in a cold murder case
in Suffolk County had proved to be unreliable.
And ultimately, he was not allowed to get that
in front of the jury, but again,
that prolonged debate about whether that testimony
would be allowed or not,
which the Commonwealth opposed, of course,
shows how important Ron King's credibility was in this case,
and discrediting him was a key part
of the strategy in this case.
-: Can I ask you to address the sequence of the injuries and,
you know, the evidence or lack thereof?
-: Yes, your Honor.
Again, that my second claim of prosecutorial misconduct,
which was, you know, raised sua sponte by Judge Locke,
was the prosecutors arguing that the blows
from the prying pan occurred after the victim went
through the window while he was bleeding out,
that they were intending to-
-: Didn't you just argue that to us?
-: I'm sorry, no, I don't, I- -: You just tell us that?
-: I don't think I said that the blows
from the frying pan occurred
after he went through the window.
I don't think that makes any sense
-: I thought you said -: In terms of the evidence.
-: the fatal wound was the accidental thing from the window,
and then he was beaten. -: If I did, I misspoke.
I don't believe I did, but no, the fatal arm injury-
-: I know it's difficult to sequence injuries, right?
And lawyers do it all the time.
So you're saying this was prosecutorial misconduct
to sequence logically the injuries?
-: Yes, because there was no evidence to support that theory,
and, in fact, the evidence plainly
was contradictory to that theory,
and in Mr. Ferguson's case, in the co-defendant's case,
the prosecutor conceded that, you know,
the view of the evidence that made the most sense was,
in fact, the reverse,
that the frying pan injury happened before,
and the blood on the frying pan,
including the blood on the handle of the frying pan,
clearly showed that the victim had walked
over the frying pan while bleeding
and that there was no evidence to support
that that occurred after he was laying on the ground
after he'd gone through the window.
-: You know the record better than I do.
So tell me, what is the difference
between the impact splatter and the cast-off splatter?
Because there was some testimony by the blood expert
about impact splatter, which seemed to suggest
or support an inference that the sequence
was as argued by the prosecutor.
-: There was some testimony about impact splatter,
but the blood expert did not testify about sequence
nor did the medical examiner,
but I actually think it supports the opposite view.
The only, I think, impact splatter that she testified about
was in the hallway right outside the master bedroom.
The frying pan was found in the master bedroom.
The window that was broken was in the spare bedroom in this-
-: If it's arguable, that's all it needs to be, right?
Just a reasonable inference from the evidence.
-: But it has to be reasonable,
and I would argue in this case it
was not reasonable based on all of the evidence,
and the prosecutor acknowledged as much in the testimony
in her statements in the co-defendant's trial,
Mr. Ferguson's trial.
Unless there are any other questions,
my time is up, I think.
Thank you. -: Thank you.
Okay, Attorney Kiggen. -: Thank you.
May it please the court.
Christine Kiggen representing
the Commonwealth Plymouth County District Attorney's Office.
I was trial counsel for this case
as well as the co-defendants.
I'd also like to acknowledge the presence
of the trial team in the front row here
for all four of these trials.
There were three defendants.
There were four trials because one of them mistried.
-: So can you then address why apparently there
was a concession in the Ferguson trials
at the sequence?
It was not reasonable to argue
that the frying pan injuries happened
after the cut on the arm through the window.
-: Respectfully, I wouldn't agree that it was a concession.
I believe what I stated
was that we don't know the order of events,
and as I stand here today,
we don't know the order of events.
It was -: Okay,
so what made the argument reasonable in this case?
-: It was reasonable inferences from the evidence.
-: Because you don't know. -: 'Cause we don't know.
It was a chaotic- -: There was nothing
that you were relying on in terms
of the blood splatter expert.
You were just,
"We don't know whether that happened before or after,
so I'm just gonna argue that it happened after
because that's more extreme and cruel."
-: Absolutely not. -: Okay.
So what was the argument then?
-: Well, as you asked earlier about the impact spatter,
there was testimony.
The Commonwealth was limited
in their blood stain expert's testimony.
The judge limited in the trial what exactly they
could testify to in terms of opinion testimony.
However, they were able to give explanatory testimony
about the difference between the two spatters
and the impact spatter being what it sounds like,
that it's more consistent that there was spatter coming
from a violent impact upon the subject.
There was plenty of that evidence.
The house was replete with blood evidence.
There was smear evidence.
There were footprints all over the house.
There was blood from the master bedroom all the way down
to the kitchen where he was found, but there was-
-: Yeah, but I'm just gonna ask you to focus on the sequence.
So it's your position that it
was the impact blood stain splatter
as opposed to the cast-off splatter
that supported the argument that the frying pan injuries
happened after the window injury?
-: I think it was many things.
I think that that's just one-
-: And what else besides the impact splatter?
-: So the arterial bleed caused the most bleeding,
and, to be clear, Dr. Mindy Hull,
the medical examiner in this case,
testified that the cause of death was not just the arterial,
the bleed out from the arterial bleed under the arm.
It was also those injuries from the back of the head,
which inferentially came from the frying pan beating.
-: Right, so just sticking with the sequence of the injuries.
So there's the impact splatter.
-: So where I'm going with this, Justice,
is that there was blood,
copious amounts of blood in the master bedroom
where the frying pan was found.
That permits a fair and reasonable inference that,
after Mr. McKenna sustained the arterial bleed to his arm,
given the amount of blood on that master bedroom floor,
that the jury saw those pictures
that Mr. McKenna was in that master bedroom bleeding out
with those copious amounts of blood,
and that's where the frying pan is found.
And the frying pan is coated in blood,
and there is spatter on top of the frying pan,
as counsel pointed out in her brief,
and counsel speculated on her appellate brief
that that must have meant that the frying pan came first.
But there's no way of knowing what the blood
that's on the floor in the bedroom,
that suggests that Mr. McKenna
was in their master bedroom bleeding out
and that the frying pans found
in that location in the master bedroom,
and there's spatter on top of it.
So there's nothing to suggest
that the frying pan was used first.
It's more reasonable, I would suggest,
with the amount of blood that's found
on the floor in the master bedroom,
that it was used in the master bedroom
given the amount of blood,
not the cast-off and not the impact, as you're asking.
I'm suggesting the amount of blood
and the placement of the frying pan.
The cast-off and the impact is all over the house, Judge.
It's in the hallways.
It's in the area of where we believe he
was struck with the frying pan.
But Mr. McKenna is found,
his final resting point is in the kitchen,
but the amount of blood is not any less
in that master bedroom, which suggests that,
after he was bleeding out from the window,
the arterial bleed under the arm,
he was in that master bedroom,
which is where the frying pan's found.
So that is why I suggest that it is a fair
and reasonable inference to suggest
that he was struck with the frying pan
after he was bleeding out from the window.
-: Is that obvious?
-: I don't know that that's obvious, and that's what I-
-: But isn't that what you said?
-: I didn't say that.
I said that it's a fair and reasonable inference.
-: No, I mean at closing argument.
Isn't that what you said,
that he was obviously bleeding out?
-: He- -: And I suggest to you-
-: Oh, that he was bleeding out? Oh yes, that he-
-: And I suggest to you is evidence of malice.
-: Yes, obviously bleeding out, the spurts, yes.
I mistook your question as to was it obvious
as to the sequence.
No, as to him bleeding out, your Honor,
absolutely it was obvious that he was bleeding out.
-: Because his blood stained in the bedroom floor.
-: All over the bedroom floor and the walls
and the thresholds of the doors,
all along the hallways leading to the second bedroom.
-: Which would be consistent with an arterial bleed.
-: Yes. So in that sense, absolutely.
It was obvious he was obviously bleeding out.
And so I think the big issue in this case is malice,
and I argued it in my brief,
but this is not an involuntary manslaughter case.
Commonwealth versus Fitzmeyer tells us
that the law of the Commonwealth is that a battery
not amounting to a felony where there
should be an awareness of a risk of death
could be an involuntary manslaughter
under a wanton and reckless theory.
These facts couldn't be any further from a wanton
and reckless theory. -: It's two different things.
There's battery leading to death resulting in manslaughter,
and then there's wanton reckless conduct,
which is involuntary manslaughter.
-: Correct, correct. -: But either way,
it doesn't fit the bill.
-: Either way, the Commonwealth's position, your Honor,
is that it does not fit the bill.
The evidence, there were over two or 300 exhibits,
in this case, 160 of them photographs of all the blood
in the house and of the victim's injuries.
Counsel was asked during her argument about the injuries.
This wasn't a case, your Honors,
where Mr. McKenna sustained a bleed under his arm
and had a few scrapes and scratches.
I suggest he was covered from head to toe with bruises,
abrasion, scratches underneath his lip,
all around his forehead,
forceful blows to the back of the head,
which caused bleeding and contributed to his death.
The evidence in the reasonable inferences showed
that there was a beating of this man three on one,
and the three on one is because of the footprints.
There are three distinct sets of footprints,
and Trooper Bankston in this case did a diagram.
There were more than 27,
but he diagrammed out 27 separate shoe prints
and showed them to the jury all over the house,
and then in and among them,
there were the barefoot impressions,
all of this leading to a fair, reasonable,
permissible inference that these three individuals
were attacking the victim or about his house as he bled out.
The footprints in the blood, as I stated, were distinct,
and they were in close proximity to his bare footprints.
The evidence and the reasonable inferences displayed a kind
of risk that could only lead to a finding of malice,
and as I said in my brief, there's simply no version
of the facts in this particular case
that would support a finding that the victim
was subjected to a battery not amounting to a felony.
In the co-defendants' trials,
a different judge heard largely the same evidence.
He declined to instruct on an involuntary manslaughter.
I suggest what trial counsel did in this case
was he was candid.
When Judge Locke asked him, "What is the evidence
that would support an involuntary manslaughter?"
He answered candidly, "I don't see a view.
I don't see evidence of it."
And what he did instead
was he focused reasonably his defense
on Mr. O'Brien not being there,
and he did a good job of that, I suggest.
And I looked at his closing argument,
and from beginning to end,
there was a consistent theme that they
can't show that Mr. O'Brien was there.
He started with the neighborhood observations
where he said that one of the neighbors saw a black vehicle
in the victim's driveway consistent
with the co-defendant, Michael Moscaritolo.
-: Counsel, I don't mean to interrupt you,
but it is a natural segue into the discussion
about the informant, right?
So the counsel, as you just alluded to,
really focused on nothing puts him there,
and really, the central piece of evidence or witnesses
that puts him there is the informant.
Do you concede that all of that stuff didn't come out
and should have come out?
The $922 or whatever the amount was?
-: The actual dollar amounts, correct, did not come out,
and the $50 in asthma medication did not come out.
I questioned him. Trial counsel questioned him.
"Again, what about those medications?"
He didn't recall, and I cited to Commonwealth versus Moore
in this case where this court found that it
is not up to the Commonwealth to impeach their own witness
because there are occasions,
which I suggest this is one, where a witness,
due to the passage of time or confusion,
just simply makes a mistake.
I disagree, the Commonwealth disagrees that Ron King got up
and gave blatantly false testimony.
The key in the Moore case and the other cases
that focus on this kind of situation was,
was defendant provided with all of these materials?
And he 100% was.
I included that as a footnote,
and I don't know if I put it in a record appendix,
but there was, early on,
a lot of discovery regarding this individual.
There was a lot of pretrial litigation
over what was going to be produced,
and then we reargued what was admissible
before Judge Locke,
and trial counsel had every bit of the impeachment evidence,
right up to the $30,000 plus that was paid to him
by the Suffolk County DA's Office
when he worked for them as an informant.
And I would suggest in this case,
Mr. King wasn't an informant,
and I wanna make that distinction
'cause I know that counsel called Mr. King in brief
and in your Honor as well.
He's a fact witness in this case.
Yes, he's been an informant his whole adult lifetime
and potentially made a career out of it.
The jury heard all of that.
All of that that was brought out by Mr. Murphy
was absolutely ample impeachment evidence
for the jury to assess Mr. King's credibility.
I suggest that a $50 worth of asthma medication
that I think he just either didn't know,
'cause those things happen.
They don't even know what they're getting sometimes.
They just know that their expenses are getting taken care of
and they don't know all the details.
Whether he just didn't remember it
or he just didn't know it,
I don't think that that $50 payment
of asthma medication was gonna sway the jury.
-: Did Mr. Murphy bring out
that he got basically living expenses?
-: I don't know that he did.
I asked him what he was receiving.
I asked it very openly, according to the transcript.
I said, "Are you receiving any benefit for testifying?"
And he answered with a, "This is not a benefit,"
because it was emotional for him.
On cross examination,
he agreed that he received payment for a hotel room,
a one-way airline ticket to come to court to testify.
On redirect, the prosecutor asked him if there
were any other monies that were paid.
So again, counsel's- -: What was his answer to that?
-: No. -: He said $12
to change his phone number
because I'm gonna just suggest to you.
To Mr. King, that was more important
than the $50 for his asthma medication,
and that's my opinion coming from someone
who's in the midst of dealing with these witnesses.
But again, the case law recognizes
that witnesses have frailties with their memories,
whether it's confusion, passage of time,
or they just didn't know.
They just weren't aware.
But the prosecutor, me on redirect, I asked him.
So the suggestion in this case that I failed
to correct Mr. King's blatantly false testimony,
I specifically got up on redirect
when Mr. Murphy didn't bring out all of that
because I knew that there was more,
and I asked him that question.
"Was there anything else?"
And he came up with the $12 to change his phone number.
And then Mr. Murphy,
I would suggest it then prompted Mr. Murphy to say,
"Wait, he didn't get into everything else,"
and then he got up on recross, and he said,
"Did the Commonwealth pay for any medication?"
And King answered not that he was aware of.
First of all, I'm not sure that the court
would've permitted a re-redirect.
There are some judges who only allow us to do that once,
but the point is that it was asked,
it was re-asked, it was crossed,
it was recrossed, and that was what we got,
and I suggest that there's a far cry
between the mistake maybe he made in his testimony
and blatantly false testimony?
-: Can I ask you about the all or nothing strategy?
Because it seemed like counsel actually did ask
for sudden combat jury instruction
and absence of mistake or accident.
So it didn't seem like counsel
was actually pursuing an all or nothing strategy.
-: I agree based on the instructions that he was asking for,
and I have some thoughts on that
that sort of go outside the record
because there was a lot of pretrial litigation
about the theories in this case and the burdens,
the suggestions of the charges in this case.
But when you look at the record,
that's exactly what he argued.
Again, in his closing argument, it was all or nothing.
-: It was- -: Did Judge Locke decline
to instruct involuntary manslaughter?
-: Yes, that's correct. -: What about accident?
-: There was no instruction on it.
-: Okay, so he had lost the jury instruction battle.
-: On voluntary at least,
and he withdrew- -: Involuntary.
-: He withdrew, involuntary.
-: He did, he withdrew it, but again,
I think it was a moment of-
-: But couldn't ride those two horses
'cause he didn't get an instruction on voluntary.
-: Correct.
I think what counsel, in the brief, talked about, though,
was earlier on in the trial,
he had said that he wanted involuntary.
But he changed his mind,
and I suggest he was candid with Judge Locke
when Judge Locke asked him what evidence supports it.
-: Then he made whatever argument he could on voluntary
and he lost that argument. -: Yes, that's true.
And for the all or nothing, Judge, he said,
"No DNA of Mark O'Brien from a bloodstained crime scene."
He attacked the credibility of the civilian witnesses,
but he suggested other people as third party culprits,
and that was reasonable.
So there's this witness, Thomas Gunning,
and Thomas Gunning was, for lack of a better expression,
the link between the defendants and the victim in this case.
He had been in the victim's house,
he had seen some things he liked, he was impressed by it,
took some cell phone pictures, sent them out to the crowd.
Somehow, the defendants were exposed to that
and came up with the plan to rob him.
So it was reasonable to suggest Thomas Gunning
as a third party culprit.
Also Tom Gunning, there was no DNA buccal swab taken
from Tom Gunning.
So it was reasonable for him to suggest Tom Gunning.
He also, in his all or nothing,
he sort of mocked the Commonwealth's presentation
of witnesses by saying, "Hey, the first half of this trial,
you heard from all these witnesses came in here.
They don't even know Mark O'Brien.
They've never even heard of Mark O'Brien.
That's the evidence that the Commonwealth's giving you."
But again, why is he doing that?
Because he's putting together an all or nothing,
trying to distance Mr. O'Brien
from the other defendants in this case, and say,
"You heard from all these witnesses
that knew the other two guys.
What'd you hear about my guy?"
He said the Commonwealth didn't show
that Mark O'Brien was part of the joint venture,
couldn't show the intent that he had joined
in the joint venture attack.
He pointed out there were 43 separate items examined
for DNA comparison,
and not a single item pointed to Mark O'Brien.
That was a reasonable decision to argue that.
He also said, "Well, look at O'Brien's car.
That was the only place where his DNA was found."
He suggested Lauren Kalil,
the girlfriend of the co-defendant, Michael Moscaritolo.
She testified,
and it was some statement that she gave to the police.
"You don't think I was the other person in the house,
do you?"
Because one of the shoe prints
was noticeably smaller than the others,
and so he brought that up and said,
"Maybe it was these other two defendants
and maybe it was Lauren Kalil," distancing himself,
distancing from Mark O'Brien, all or nothing.
Again, this wasn't brought up today. Very important.
It wasn't just Ron King
and this other circumstantial evidence and inferences
that put Mark O'Brien in that house.
Lauren Kalil testified that the day after she saw,
she identified Mark O'Brien in a photo array,
showing up at the house with the co-defendant,
James Ferguson, and opening up the back hatch of his car
and carrying out a big bag.
There was at least a big duffel bag of some sort.
She also said that she knew James Ferguson.
She didn't know the defendant, Mark O'Brien.
She said that he was quiet, he kept his head down,
but what she saw was a fresh cut under his eye
that it took up almost under his eye.
She said it looked like a red rug burn. It was red.
That's fairly significant here,
and when you pair that up
with what Mr. Ron King testified to,
that the defendant said to him,
"I was the third guy, and things got ugly."
So it's more than what was discussed earlier
as to placing him in that house.
That injury to his eye and him showing up
at the scene the day after with this big bag
that inferentially was the guns
was very significant evidence.
But Mr. Murphy was also, again, in his all or nothing,
saying, "You can't believe Lauren Kalil's testimony
about the cut under the eye and the showing up at the house
with the big bag in the back of the car
because she's gonna say anything she can
to save her own skin."
He told the jury to disregard her testimony
because she was just working for the government.
He told the jury to disregard everything Ron King said
because he was a professional liar,
and he also argued that the cell site location testimony
did not put O'Brien in a southern location beyond Weymouth,
and it didn't, so that was also a very strong point
on the part of Mr. Murphy in arguing for his all or nothing.
Mark O'Brien didn't do it.