Announcer: SJC 13190, Commonwealth v. Dario Baxter.
-: Hey attorney McDonna.
-: Thank you your honor.
Good morning Chief Justice Budd and associate justices.
My name is Julissa McDonough and I represent Dario Baxter.
The evidence presented in the first trial in this case
is lower than this court is ever deemed sufficient
under Lattimore, leading to both identification and intent.
And because the evidence was insufficient in this case,
we're asking that you bar the Commonwealth
from retrying Mr. Baxter in a second trial.
I address my issues in the reverse order in my brief,
but today I'd like to start off with addressing
the insufficient evidence relating to identification,
and then address the intent relating to first degree murder
under a joint venture theory.
-: Your client's fingerprints are inside and outside the car.
It's his girlfriend's car that he drives.
She's not driving it because she's punched in at work.
And there's some photographs.
And why is that not sufficient to reach the jury?
I'm not suggesting that it's a slam dunk case.
Obviously there was a mistrial in the first case,
but why is that not sufficient?
-: Yes your honor, as to the fingerprints,
the car was seized a day and a half after the shooting.
And there was definitive proof
that Mr. Baxter had been driving the car
about 15 hours after the shooting.
And there's no evidence to suggest
that the prints were put on the car
at the time of this shooting rather
than later that evening When Mr. Baxter--
-: Just before you go into that,
can I ask you to apply the legal standard, right?
Viewed in favor of the Commonwealth
the light most favorable to the Commonwealth.
Why is in your presenting defenses,
my fingerprints were there
because I have access to the car regularly,
I had access afterwards.
But that's not viewing it
in the light most favorable to the Commonwealth.
Can you do that?
-: Yes your honor.
I think even viewing it in the light most favorable
to the Commonwealth drawing all reasonable inferences
in favor of the Commonwealth, it's still not enough.
I think it's similar to this,
your honor's decision in Anitis and also Davis.
The court has to look at whether the inferences
that the photograph was Mr. Baxter is reasonable
and taking the evidence in its totality.
They have to put Mr. Baxter behind the wheel
at the time of the crime.
There's no one who puts him anywhere near the crime
or in the vehicle.
Other than this one still photograph
that the Commonwealth suggests resembles Mr. Baxter.
So even taking all of those reasonable inferences
in its totality, it wasn't sufficient to prove
that one, it was Mr. Baxter at the time,
and that he was behind the driver's seat at the time
that the shooting occurred.
-: We also take into account where the,
his co-trainers were dropped off
after the training session downstairs Junk Downtown,
in the direction in which they walked in conjunction
with everything Justice Weinberg just laid out.
-: Yes your honor, and I think even assuming
that the vehicle was Ms. Rainier's,
that was observed in the surveillance footage
that doesn't bring it over the Lattimore standard.
As this court said in Gonzales,
people let other people borrow their car all the time.
And it wasn't even Mr. Baxter's car,
it was his girlfriend's.
And there was no evidence before the jury
that Mr. Baxter was the only person
she would allow to borrow the vehicle.
-: Well, if you segregate all these potential inferences,
clearly you're not going to satisfy Lattimore,
but it's the synergistic effect of all of them,
including the 10 being removed shortly after the shooting.
But I had a chance to look at the surveillance
and the manner in which the cowards being operated,
right before and after the shooting,
seems to indicate that the driver has a shared mental state.
I won't go all over it,
but clearly you've got a following of the individual
on Boston Wayland street going ahead and going over,
waiting and then the shooting, and then driving away.
And when you look at the surveillance tape
and you see the manner in which this car is being operated,
it's hard to see why you couldn't infer
a shared mental state from that.
-: Your honor, I think you would need more
than just the maneuvering of the vehicle.
I think it's similar to Gonzales and the fact that
there was some maneuvering of dropping people off,
turning around and leaving the scene.
But even this court said in that case, that even if,
you can infer the knowledge of the driver
under those circumstances, we still don't know
that there was the lethal intent necessary
for first degree murder.
We don't know whether even if the driver knew
that he was dropping someone off to interact with Mr. Ross,
that it was to use a firearm and shoot him.
The Commonwealth seems to suggest that the only reason
you would pull down a side street and allow the person
to return to Wayland is because the person has a gun.
But I think that's too far of an inference to draw.
-: They waited on the side of the road, relocated,
waited on the side of the road for the victim.
And then shortly thereafter, there was a shooting.
And then the civilian witnesses saw the running
and they enter back into the car.
-: I'm not sure that we can say definitively
that they're even pulling to the side of the road
to watch Mr. Ross passed by.
I think even that is based on speculation.
There's no evidence that Mr. Baxter
or anyone in the car even knew Mr. Ross.
Mr. Ross was staying at someone's house
that no one even would've known he was there.
It was a secret relationship.
So there's nothing leading up to the actual incident
to suggest that they were looking for Mr. Ross,
that this was a planned encounter,
and that it wasn't just a happen stance
they had pulled down the street
and someone in the car said, stop I wanna get out.
And this court said time and time again,
that if there's two conflicting inferences
that can be drawn from the evidence,
it's just not enough to get over the Lattimore standard.
Even pulling down the side street,
we still don't know whether the driver knew
there was gonna be some sort of encounter,
but didn't know whether any of his passengers were armed,
which this court has said in criminal versus breadth,
that there is no requirement
that he know his co-defendants are armed,
but it is one factor to suggest that he may not have known
this was gonna be a deadly encounter
even if he knew the circumstances surrounding it.
And that it wasn't just a situation
where they were gonna jump someone
or have a drug deal or something other than
the intent necessary for first degree murder.
And as to the other factors
that the Commonwealth pointed to.
So the fingerprints, there was evidence that Mr. Baxter
was driving later that evening.
They weren't necessarily placed on the vehicle
at the time of the crime.
And Mr. Baxter did admit to driving Ms. Rainier's vehicle
from time to time.
But he specifically denied driving it
on the morning of the shooting.
So taking all of these factors,
this court in Davis specifically said that an unclear video,
unclear surveillance stills is not enough
to draw the inference that it was the defendant driving.
And even in that case, this court said it was a close call,
even when there was GPS device putting the defendant
at the scene of the crime,
tracking his movements on surveillance after the fact.
And the evidence here fell far short of that,
just putting Mr. Baxter behind the wheel at other times,
other than the time of the shooting.
So, given the totality, our position is that
the Commonwealth failed to present enough evidence
to prove that Mr. Baxter was the driver
at the time of the shooting.
And even if this court does find that that was sufficient
to say that Mr. Baxter was driving,
it still doesn't prove that he had the intent necessary
for first degree murder.
As the court noted,
the evidence of the Commonwealth essentially points to
is the maneuvering of the vehicle
that he pulled down Wayland street,
pulled over to the side of the street
and then pulled down Balfour street and parked.
But even looking at the absence of some of the maneuvering,
there's no evidence that,
even if it was Mr. Baxter who was driving,
that he sped away after the fact.
Exhibit six, all the camera angles show that
the car was driving at a reasonable rate of speed
after the fact there's no evidence
to suggest that even if Mr. Baxter was the driver,
that he knew, anyone in the vehicle was armed.
All these cut against a finding that he had the intent.
-: What do you do with the evidence that your client
with pulled out over actually in the vehicle
the evening after the shooting
and that Mr. Wright was within the car at the time?
-: Yes your honor.
I mean, that was 15 hours later.
I don't think it's some evidence
that he drove the vehicle at times,
but it still doesn't place him in the vehicle at the time.
There's no suggestion that they were wearing
the same clothing that the Commonwealth alleged Mr. Wright
was wearing that morning or in the video
when they claimed they could see
through the sliver of the window.
So it at least suggests that there'd been some time
that had passed that they weren't in the vehicle that day.
And even, one of the justices had raised
the point of the window tints.
Mr. Baxter was specifically instructed during the stop
that one of the reasons for the stop was the tinted windows.
He told the police that the vehicle
had been frequently pulled over for tinted windows.
So, that someone removed the tints the day after
that there was a stop again for tinted windows,
leads to a possible inference that has nothing
to do with the vehicle being involved in a crime.
And even if Ms Rainier was removing the tints
because she believed it was involved in a crime,
it's still, doesn't put Mr. Baxter in the vehicle
at the time that it occurred.
And this court outlined three kind
of overarching circumstances the court should look to
and deciding whether the mental states there
for a driver and Gonzales.
So the direct evidence of the defendant's mental state,
evidence that the defendant acted
in a way inherently demonstrating lethal intent,
or the defendant heard
the perpetrators express lethal intent.
None of those factors are present here or any other evidence
other than the maneuvering of the vehicle
that suggest any sort of intent on behalf of Mr. Baxter.
There's no evidence he provided a firearm
to anyone in the vehicle, that he made threats
or that he made any admissions after the fact.
There's no evidence that he observed anyone
in the vehicle demonstrating any sort of lethal intent.
So, I think the closest cases to this incident
are Commonwealth v. Stuart and Commonwealth v. Kilburn.
And there is --
-: You wanna distinguish Commonwealth v. Watson now?
-: Yes your honor.
I would be happy to.
So, in Commonwealth v. Watson, there were hundreds of calls
between Mr. Watson and his co-defendants leading
up to the incident.
He was at a party
that the victim was actually at beforehand,
and there was video footage showing that they engaged
in reconnaissance beforehand.
So, Mr. Watson was then alleged to have driven Mr. Robertson
to the scene, actually blocked the street
so that no one else could get down the street.
And on video it seems to suggest that he was able to witness
the actual shooting as it occurred.
So all those circumstances show that
he had no participation given that
he had had so many conversations with the co-defendants.
There were calls, I believe, leading up to just seconds
before Denton and Bonner fired shots,
and then immediately after Watson pulls up with Robertson
in the vehicle, he gets out and fire shots.
So, given that he had blocked the street
and was personally involved in reconnaissance and fleeing,
there was far more evidence demonstrating intent.
And in this case, and even his actions after the fact
he fled his vehicle, he left his cell phone in the car.
None of those circumstances are present here.
And as to Stuart and Kilburn,
most of the evidence in those cases
also dealt with just the maneuvering of a vehicle,
driving a co-defendant away from the scene.
And even in those cases,
there are at least some circumstances beyond just
how he drove the car to suggest he had the intent.
And Stewart, the defendant actually watched
his co-defendant shoot a cat earlier in the day.
He fled away from the scene, he collided with other vehicles
to suggest no in participation and in Kilburn,
he actually pulled down an alleyway
out of view of spectators and any witnesses
in order to make a quick getaway.
The driver here is alleged to have been parked
on a public street around the corner.
And there's no evidence that he knew anyone
in the vehicle was armed.
So, our contention would be that the evidence here
it fell short, both on identification and intent.
And that the Commonwealth failed
to prove those elements to the court.
There's the other factors this court looked at,
and Jones and Watson, as I had mentioned,
there's some evidence putting the defendant
at around the scene.
Eye witnesses saying that the defendant met the description
of someone at the scene.
GPS CSLA, even phone records suggesting
that there were calls between the co-defendants
to engage in some sort of planning.
The only thing we have here is that
even if Mr. Baxter was the driver,
that he was in the vehicle for a few minutes beforehand,
that they drove over to the area of Wayland street
with no suggestion he knew who the victim was,
that there was any sort of plan.
And that at some point someone got out of his vehicle
without any suggestion that he knew what was gonna happen
if someone got out of this vehicle.
So just viewing the totality,
the Commonwealth did not present sufficient evidence
at the first trial to be entitled to try him again
without violating his right to be free from double jeopardy.
So the court doesn't have any additional questions,
I can now rest on my brief.
Thank your honor.
-: Thank you.
Attorney Doherty.
-: Running Chief Justice Budd may I please the court
Andrew Doherty for the Commonwealth.
I'd like to first acknowledge several individuals
who are watching the live stream of this, including ADA,
Tara Bergman who's the trial attorney,
as well as several family members of Michael Ross
who is the victim of this case.
Viewed in the light most favorable to the Commonwealth,
the evidence established that the driver of the car
was integral to setting up
and fleeing from an ambush murder.
And in fact,
in looking at the different steps that this driver took,
the only thing the driver really didn't do
was pull the trigger here.
He brought the shooter to the scene.
He then moved the shooter to a place where it was far easier
for him to approach Mr. Ross unawares
as he crossed the street, and then remained there
after the shots were fired.
It's reasonable to infer that he heard
that the shots were fired and then did speed away.
And there was several witnesses
who observed the car speeding down Balfour street
in order to leave the scene.
Taken altogether, that is clearly sufficient to refer
that the driver had the requisite knowledge,
the shared intent of his passenger order
to get us over this hurdle.
-: Mr. Doherty, I get the identification based
on the photograph and the like,
and I get the participation part of it,
but how do we get to lethal intent?
It's an ambush, but it isn't it equally possible
that they are tryna beat the guy up.
How do we get the lethality to prove joint venture?
-: Sure, so first of all, I think positioning,
the fact that the driver remained in the car shows
that he knows, he's well aware
that this is gonna take one person to do it
and positioning the car in a way,
if this was just gonna be,
not that we have to rule out other inferences,
we just have to show that it's a reasonable inference here,
but if they were going to beat him up,
why not beat him up as he passed them on Wayland street?
Why not bring three people to a fist fight
instead of remaining in the car able to flee?
-: It just sounds speculative to me to say that
if it's gonna be beating someone up it's one-on-one,
it would be more than one-on-one.
'Cause we have no threats, I mean, and Watson,
he pulls up as the guy shooting him, I mean,
and there is a reconnaissance.
This seems to me like Gonzales, not Watson.
I mean, I'm tryna reconcile beyond speculation
that it was gonna be a shoot in the first time
that we have evidence that a gun is wielded
is when the guy gets in the car.
We have no beef,
or at least there's no evidence of a beef, right?
-: Right, we don't know the why of this,
but we do know the how of this.
-: Right.
-: And I would look to the fact that he does it.
It's not enough that he is right next to the victim,
as he's walking up Wayland street, but that he then,
I guess, decamps
to a more strategically advantageous position on --
-: No, I agree if a light most favorable we have an ambush,
but I'm just trying to wrap my arms around
beyond the speculation what makes it lethal intent,
which is the crux of the joint venture doctrine
that you expound.
-: I mean, it doesn't get more,
it doesn't get more clear than the fact that he remains
in the car while the shooter leaves ready and able to leave
and then the shooter comes back.
And what I would add to that is --
-: So if you want us to infer that
if it was going to be a fight or beat down,
it wouldn't have been a one-on-one.
-: And that they wouldn't have hit the driver,
wouldn't have needed to move
to a more strategically advantageous position,
which was about three house lots down from Balfour street.
-: But why?
It's an ambush.
Couldn't he be just be jumping them?
-: I think, we're not talking about equal interest,
so that we're guessing which one it is,
I think it needs to be what we need to show is that
the inference here is reasonable
and the product of common sense.
And I do think it is --
-: And not be on speculation.
-: Right.
But I do think that the distinction here and what,
where this, the evidence shines the most
is that they did remove themselves to a position
where they could have just as easily jumped this guy,
to a position where he was able to approach
within a matter of a few feet, but.
-: You're making do with the evidence that you have
and you tryna draw all reasonable inferences.
I'm just wondering if that evidence is enough,
but I guess we'll see.
Cipher: I have a question on that point,
if I could follow up, just 'cause
Frank: Yeah, I'm done, thank you.
-: And that is, what is the evidence in the record
or that you can, yeah that was in the last trial
that your client knew there was a weapon involved
with the co-defendant had,
or the other joint venture had it done.
-: I think it's twofold.
It's that he was in a position
where he was as down the street
and the shooter could approach within a close distance,
which to my mind rules out and makes more likely
the inference that it was gonna be a shooting
rather than a beat down
where they just need to be close to each other,
where there needs to be multiple people there.
And the fact that the defendant remained in the car
as the driver, and let the shooter do his work
before he came back.
That makes it a more likely and reasonable inference
that this was going to be something fast and deadly,
and that he was not necessary in order to make sure
that this happened the way they wanted it to go down.
Where I would add to that is bearing in mind
that you look at the totality of the evidence,
here's a case where they, all of the circumstances
that led to the shooting were generated
by the driver himself, this defendant.
Where getting the person into the right position,
doing the observations, moving to a place
where there was a better position
to make this attack happen and then sticking around,
all of those things were the result
of the defendant's actions.
And when he created all these circumstances to then,
I think it's reasonable looking at the whole of the evidence
that there was enough to then find.
Yes, of course he knew that it was a gun.
He was the one who brought them there.
He's the one that observed the victim walking up the street
and moving to another place.
The only thing again he didn't do
is pull the trigger himself.
And I think that --
-: Mr. Doherty can you draw an inference at all
from the fact that there was a pickup after a shooting?
-: I think you need to look at the entirety of it.
And yes, that certainly was a part of it.
Where there really is a single plan here,
once the car turns over, it turns on to Wayland street.
That period of, say two minutes, is all orchestrated
in order to shoot Michael Ross.
-: isn't the issue there that it lapses into accessory
after the fact, because to have joint venture,
you need at the time of the murder,
shared lethal intent accessory after the fact speaks to
an intent to assist someone,
obviously after the crime is committed.
-: Well, he's charged with that as well,
but what could this be but a planned ambush?
and if it's a planned ambush, is it not --
-: No, I'm with you on planned ambush.
The question is what?
What kind of an ambush?
And that's where I'm struggling to see the lethal intent.
-: Right, well, I.
-: Absence a beef, absence of the other evidence we've had.
'Cause we have a bunch of getaway driver car cases, right?
-: Which I, and again, those aren't cases
where it's a getaway driver.
-: We've never said
the fact that you're a getaway driver means
that you share the intent of the shooter.
You need some other evidence apart from the actual.
-: Right, but he's not just a getaway driver here.
He's also sort of like get him in the right position driver.
And there is no better position for this shooter to be in.
-: Actually, I thought every getaway driver
would gets them in the right position, but that might be me.
-: I think that, sure if he just dropped them off, right?
Say like in man deal, where I just dropped them off
and 10 minutes later there's a shooting.
This is a far different case.
This is a case where they're in the location.
They go to a better location
that's even better for shooting
-: No, I agree with you on that the fact
that he facilitates the ambushes different than
the man deal drop-off, I get that.
-: Right, and I suppose that,
one thing I would point out,
where Gonzalez identifies three examples
of where intent could be inferred.
It certainly wasn't an exhaustive list.
And I do not think it is a far cry from Gonzalez
to also find where the driver was aware of
and a part of every step of the plan leading up
to the shooting and then after the shooting,
that it's reasonable to infer
that he knew this was gonna be a shooting,
which may be a small step away
from where the current case law lies.
I'm not saying the court needs to do that in order to make
this decision in the Commonwealth's favor,
but it seems in keeping with the state of the law as it is.
Unless there's any questions about identification,
I did wanna point out in addition to the videos
that I referenced in my brief,
there is one additional video,
exhibit five, if you start at page at the two minute mark,
you'll be able to see another camera angle
that was of evidence from the brick cameras
that shows perhaps in a clearer way what happened here.
And finally, there are two instances
in the interview of the defendant
where he says he has permission to use the car,
but also the only other person that has permission
to use Kadesia Wright's car is her sister.
And other than that, I suppose I regressed on my brief.