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SJC 13215, Commonwealth v. Michael Eagles.
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Good morning, my name is Dennis Shedd,
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and I'm representing Michael Eagles.
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At Eagles' 1987 trial for the murder of Lewis Jennings
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crime lab analyst, Jay Godleski,
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testified that two hairs found in Jennings' hand
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were consistent with Eagles' hairs.
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As Humeicus points out,
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his opinion may have been influenced
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by the fact that he knew that the questioned hairs
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had come from the victim's hand
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and that Eagles' was a suspect.
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Information an analyst would not be given today
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when we recognized the importance of blind administration.
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Godleski went on to testify
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that he only declares hairs to be consistent
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if they match in every characteristic,
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that he's familiar with the frequency
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at which various characteristics occur
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in the general population,
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and that the chance
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that a random person would have matching hair
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was only one in 4,500.
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Now, as the Commonwealth acknowledges,
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newly available evidence shows
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that that statistical testimony
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is unsupported by scientific evidence.
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In fact, nothing is known about the frequency
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at which various characteristics occur,
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where those characteristics are independent
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of each other.
Counsel, I understand that,
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about where we're at,
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and that now hair's inadmissible, those comparison, right?
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That's where we're at, would you say?
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Yes.
Okay.
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So bearing that in mind, I have two questions.
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One is, in the context of this case,
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what other physical evidence is there
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that places the defendant at the scene
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or as the perpetrator?
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Well, there's no question he was at the scene.
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He admits he was at the scene.
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So he testified that he was asked to be the lookout.
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All right.
While Roberio
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breaks in.
And there was footprint
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and he had blood on him,
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right?
That's right.
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Okay, now, when we move from that to the hair,
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the hair seems to me to be a bit cumulative.
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But what would that hair tell us about the crime?
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The hair tells-
Or his intent
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or something like that?
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Sure, the hair suggests when he was there.
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He's testifying-
How does it do that?
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He's testifying he comes in 20 minutes afterward,
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finds Jennings on the floor, unconscious.
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He's beaten, ligature tied tightly around his neck,
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which he tried to loosen.
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Roberio had told him this house was gonna be unoccupied
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and his intent was limited to assisting
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in a breaking and entering of an unoccupied home
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with an intent to steal.
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Those hairs in his hand,
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so that's evidence that he did not have the malice
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for murder.
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He didn't have an intent to commit an assault
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and didn't know Roberio would.
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That's his testimony, tight?
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That's right.
But what does the evidence
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show us?
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The hair evidence,
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what was it used for in the case?
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The evidence about the sneaker print, the blood on him,
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that all could have come in as he testified.
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After he entered, there's blood in there.
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He approaches Mr. Jennings,
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tries to loosen the thing, steps on the pillow.
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None of that shows he was there
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while the assault was taking place.
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How-
The hair evidence
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turns that out around, it's in his hand.
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That suggests he was in the house
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at the time the assault was taking place
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and very well participated in it.
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Counsel, may I just interrupt you on that though?
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Sure.
But wasn't there
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cross examination on this
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that the hairs just could have fallen off
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while he was in there?
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That's how they ended up there.
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I guess what I'm distilling down to is,
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he testified
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and all of these different kind of advocacy spins on,
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the jury just could not,
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basically just didn't believe him, right?
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Because he testified he wasn't in there.
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He testified that he was just a lookout.
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He testified that he had no part in the underlying crime.
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He testified to that.
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That's right.
Right, and so why isn't it
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that the jury just didn't buy his testimony?
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Well, the point here is the importance
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that was put on this hair testimony.
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The prosecutor notes in his closing
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that Jennings' hand is underneath him.
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How could that hair have gotten in his hands
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if Eagles' had not been in there
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taking part in this assault?
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That's the argument.
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That explains why how he was there
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inside at the time of the assault.
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It's that hair, that's that critical, physical,
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that puts him there at that time.
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But let me go back to a point that you made earlier
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in your argument.
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It's just the statistical stuff that was incompetent, right?
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He could still testify to the comparison
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that he thought this was a hair
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from the defendant's head, right?
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I don't think so, no, your honor.
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In the same way that DNA match evidence
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is inadmissible without statistical support,
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hair comparison obviously equally be inadmissible.
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In Tarver this court said
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the reason hair comparison comes in
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is because it can illuminate a large class of people.
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Without statistical support,
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you can no longer say that.
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That's no longer true.
The point is that
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you can testify consistent with,
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but not really beyond that
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because we don't know the percentage of the population.
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Right, there's no clue as to,
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I mean, this case, he would have to admit.
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Even if his testimony could come in,
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I believe it's consistent without statistical support,
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this would've been a very different trial
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because he would've had to admit
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he doesn't know how many people might have matching hair.
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He doesn't know how often here other people get it wrong.
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And most importantly, at this trial in 1987,
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trial counsel had no reason to question those statistics.
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They were generally accepted at that time.
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So he concedes my client's hairs
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were found in Mr. Jennings' hand.
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And he says that's the cannon in the case,
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that's what he said.
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And that put him in the pretty much impossible position
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of trying to explain how those hairs
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could have gotten in Mr. Jennings' hand
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if he hadn't been inside at that time of the assault.
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I don't wanna try and distill your whole argument
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to one sentence,
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but is it that with that evidence
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there was no chance of anything other than a guilty.
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With the hair evidence?
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I think with the hair evidence,
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that's pretty overwhelming evidence
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that he was in there at the time of the assault
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and may well have participated in it,
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'cause as the district attorney argued,
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how else could those hairs
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have gotten into his hands at that time
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given the position his body was in when he was found inside.
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But if you take away the statistical testimony,
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trial counsel would not have conceded
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that those were Michael Eagles' hairs in Jennings' hand.
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He could argued these were-
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He might not have conceded that,
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but he still had to contend with
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there was a bloody footprint on the pillow case.
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There was blood found on Mr. Eagles, right?
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Right, and all of that could have come in
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exactly the way Mr. Eagles testified.
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He came in afterwards.
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I agree, but the point I'm making, I keep going back to,
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is he testified to all of that.
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And why isn't it even without the hair evidence
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that the jury was free to disbelieve his testimony?
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They were free to disbelieve.
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I think it's the hair evidence,
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it's the critical link here that pushed them into saying,
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"I don't believe this testimony.
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He says he didn't come in till afterwards
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and this hair evidence
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shows he did come in there beforehand.
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Is the hair evidence that makes his testimony
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so incredible."
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You take that away and then this is a very different case.
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Trial counsel could have argued
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these hairs could have come from Roberio or anyone else
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who might have been in that house at any time.
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Because keep in mind that those hairs were found
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in Jennings' hand
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along with grassy material
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and what appeared to be Jennings' own hairs.
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So those hairs could have been on the floor
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for who knows how long
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and gotten in Jennings' hand
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when, as the prosecutor, argued,
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he was being dragged from room to room
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in the search for money.
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That's the critical link here.
Can I just ask
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a quick question about the evidence?
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The bloody footprint on the pillow case,
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wasn't that the ligature around?
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Was that the ligature around the victim's neck?
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No, this is a separate separate pillow case, I believe.
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Yeah, the separate pillow case.
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So if you take away the statistical evidence in this case,
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the Commonwealth's evidence that he was inside
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at the time of the assault
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is much, much weaker.
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And that's the evidence that suggested, in fact,
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he had the malice,
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the intent and knowledge necessary for murder
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and armed robbery.
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Without that, just the mere fact that the omission
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of the statistical evidence
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would've turned an important concession by the defense
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into a disputed issue for the jury to consider
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is alone enough to show that the statistical testimony
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was a real factor.
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That's what I wanted to ask you.
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The standard is that it has to be,
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we have to consider it to have been a real factor
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in the jury's deliberation,
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correct?
Right?
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And so how do we discern that from the record?
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Well, again, I think you discern, again,
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a real factor doesn't mean necessarily
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it would've proven he's innocent.
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Is this a factor the jury consider?
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And in Cowells this court said
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that evidence that's more credible
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than any other on an important issue
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likely would be a real factor.
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And in this case, the hair evidence is far and away
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the strongest evidence
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putting him in that trailer at the time of the assault,
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suggesting he participated in the assault
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and therefore he must have had the malice and intent
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necessary for this.
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I am still not quite getting how the blood evidence
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is not relevant to timing,
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but the care evidence is.
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The blood evidence could have gotten on Mr. Eagles
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in exactly the way he testified, after he comes in.
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That says nothing about when he was there.
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Hair, Eagles' hair, in Jennings' hand,
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you wonder how could that have gotten there
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if he only came in after he was unconscious?
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It's virtually impossible.
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The hair evidence is the evidence that suggests he was there
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while Jennings was standing up trying to struggle
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and not have his money be stolen.
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The hair evidence is what puts in there earlier
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before Jennings was unconscious on the floor,
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and that's the only evidence
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that puts him there at that time.
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About the occult blood on his hands
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and underneath his fingernails.
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He acknowledges, he went in there, he bent over Jennings,
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touched him, tried to loosen the ligature,.
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He acknowledges all that.
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So again, none of the blood evidence puts him there
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at the earlier time.
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The hair evidence is the only evidence
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that puts him inside the apartment
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prior to Jennings being unconscious on the floor,
271
00:10:47.070 --> 00:10:50.190
suggesting he took part in this assault.
272
00:10:50.190 --> 00:10:51.840
So that was critical evidence
273
00:10:51.840 --> 00:10:53.700
to show that he had the intent and knowledge
274
00:10:53.700 --> 00:10:57.150
necessary to commit the murder by extreme atrocity
275
00:10:57.150 --> 00:11:00.150
or armed robbery, which becomes felony murder.
276
00:11:00.150 --> 00:11:01.650
Counsel, could I go back to the point
277
00:11:01.650 --> 00:11:03.900
that Justice Lowy brought up?
278
00:11:03.900 --> 00:11:05.970
Do you concede that he could have testified
279
00:11:05.970 --> 00:11:09.333
that it's consistent with Mr. Eagles' hair?
280
00:11:10.230 --> 00:11:11.550
No, I do not.
281
00:11:11.550 --> 00:11:14.490
Again, I think this is like...
282
00:11:14.490 --> 00:11:17.220
In the same way that evidence of a DNA match
283
00:11:17.220 --> 00:11:19.710
is inadmissible without statistical support,
284
00:11:19.710 --> 00:11:21.540
because without statistical support
285
00:11:21.540 --> 00:11:23.820
you can't say it eliminates anybody.
286
00:11:23.820 --> 00:11:27.060
Same thing here, without statistical evidence
287
00:11:27.060 --> 00:11:29.910
showing it would've been eliminated a large class of people,
288
00:11:29.910 --> 00:11:32.940
his opinion that is consistent should be inadmissible.
289
00:11:32.940 --> 00:11:33.773
Do we do that
290
00:11:33.773 --> 00:11:34.606
with fingerprints?
But again,
291
00:11:34.606 --> 00:11:36.120
even if that is admissible,
292
00:11:36.120 --> 00:11:38.550
the trial would've been so different
293
00:11:38.550 --> 00:11:42.480
if he could only enter that without any statistical evidence
294
00:11:42.480 --> 00:11:44.100
that it still would've been a real factor
295
00:11:44.100 --> 00:11:45.450
for the reasons I've already stated.
296
00:11:45.450 --> 00:11:47.850
Well, if you're wrong about the fact
297
00:11:47.850 --> 00:11:51.060
that he could have testified that it was consistent,
298
00:11:51.060 --> 00:11:55.020
would you say that the prosecution could still then use that
299
00:11:55.020 --> 00:11:58.860
to argue at closing that he was in there when it went down?
300
00:11:58.860 --> 00:12:00.682
Sure, sure, they could argue that, yeah,
301
00:12:00.682 --> 00:12:02.340
but I think it would've been a much weaker argument
302
00:12:02.340 --> 00:12:03.660
without the statistical support.
303
00:12:03.660 --> 00:12:06.690
And again, counsel would no longer have been conceding
304
00:12:06.690 --> 00:12:08.010
it was Eagles' hair in his hands.
305
00:12:08.010 --> 00:12:09.990
That would've been a contested issue.
306
00:12:09.990 --> 00:12:13.260
And Mr. Godleski would've had to acknowledge
307
00:12:13.260 --> 00:12:16.560
he had no idea how many people might have matching hair,
308
00:12:16.560 --> 00:12:18.240
how often he or other examiners
309
00:12:18.240 --> 00:12:20.040
make mistakes on these things.
310
00:12:20.040 --> 00:12:20.873
That would have been
311
00:12:20.873 --> 00:12:21.706
a very different trial.
But at least
312
00:12:21.706 --> 00:12:23.910
with the consistency component of it,
313
00:12:23.910 --> 00:12:26.193
he was cross-examined on that, right?
314
00:12:27.240 --> 00:12:28.408
Wasn't there cross-examination
315
00:12:28.408 --> 00:12:31.290
about there's something to the follicle
316
00:12:31.290 --> 00:12:33.960
that suggests it was pulled out
317
00:12:33.960 --> 00:12:37.410
versus some other way that it fell out?
318
00:12:37.410 --> 00:12:38.587
Wasn't there cross-
319
00:12:38.587 --> 00:12:39.547
Oh, yeah.
Yeah.
320
00:12:39.547 --> 00:12:40.800
So-
Cross examined him.
321
00:12:40.800 --> 00:12:43.860
Yeah, he was cross examined on those points,
322
00:12:43.860 --> 00:12:44.760
right?
Right.
323
00:12:44.760 --> 00:12:47.580
So that wasn't enough?
324
00:12:47.580 --> 00:12:50.010
No, it wasn't enough because, again,
325
00:12:50.010 --> 00:12:52.197
how would it get into his hand?
326
00:12:52.197 --> 00:12:55.410
And if eagles is there and a hair is loose,
327
00:12:55.410 --> 00:12:56.400
it didn't have to be pulled out.
328
00:12:56.400 --> 00:12:57.690
If a hair is in his scalp and loose,
329
00:12:57.690 --> 00:12:59.970
if it's on his shirt and Jennings touches him
330
00:12:59.970 --> 00:13:01.080
it could have gotten in his hand.
331
00:13:01.080 --> 00:13:04.890
But how does it get in his hand if Eagles is only in there
332
00:13:04.890 --> 00:13:06.990
after the assault is over, he's unconscious
333
00:13:06.990 --> 00:13:09.060
and Mr. Jennings' hand is under his back?
334
00:13:09.060 --> 00:13:10.740
How can it happen?
335
00:13:10.740 --> 00:13:13.378
It's a difficult argument for counsel to make.
336
00:13:13.378 --> 00:13:16.620
And obviously his argument was unsuccessful.
337
00:13:16.620 --> 00:13:18.930
Without this statistical evidence though,
338
00:13:18.930 --> 00:13:20.310
it'd be a very different trial
339
00:13:20.310 --> 00:13:23.250
even if Godleski could testify the hair was consistent.
340
00:13:23.250 --> 00:13:24.480
Yeah.
Even if he could testify
341
00:13:24.480 --> 00:13:25.503
to that.
Shedd,
342
00:13:26.760 --> 00:13:28.050
I just have two more questions for you.
343
00:13:28.050 --> 00:13:30.780
One is, on the statistics for the hair,
344
00:13:30.780 --> 00:13:34.293
do we require statistics for fingerprints?
345
00:13:35.850 --> 00:13:37.413
No.
And should we?
346
00:13:38.640 --> 00:13:41.910
Well there's certainly some issues have been raised
347
00:13:41.910 --> 00:13:44.250
about the reliability of fingerprint evidence.
348
00:13:44.250 --> 00:13:45.990
So that's certainly something
349
00:13:45.990 --> 00:13:47.550
that might be considered at some point
350
00:13:47.550 --> 00:13:49.710
if we learn more about the scientific basis
351
00:13:49.710 --> 00:13:50.623
for fingerprint evidence.
352
00:13:50.623 --> 00:13:54.120
Right, and then my other other question is,
353
00:13:54.120 --> 00:13:59.070
what effect would our ruling in this case
354
00:13:59.070 --> 00:14:02.220
have on all of our other...
355
00:14:02.220 --> 00:14:04.650
We must have other cases in the pipeline
356
00:14:04.650 --> 00:14:07.950
and in the past where hair evidence has been used.
357
00:14:07.950 --> 00:14:10.383
How should we handle all of those cases?
358
00:14:12.390 --> 00:14:13.560
Well I think, again,
359
00:14:13.560 --> 00:14:15.540
my position is that the hair comparison
360
00:14:15.540 --> 00:14:17.790
should be excluded in its entirety,
361
00:14:17.790 --> 00:14:20.160
but the question then becomes
362
00:14:20.160 --> 00:14:22.440
the same prejudice issues arise in this case.
363
00:14:22.440 --> 00:14:24.060
How important was the hair evidence
364
00:14:24.060 --> 00:14:25.590
in the context of this case,
365
00:14:25.590 --> 00:14:27.720
of that particular case?
366
00:14:27.720 --> 00:14:30.060
In this case, I think there was no other evidence
367
00:14:30.060 --> 00:14:32.670
suggesting Eagles was in the trailer
368
00:14:32.670 --> 00:14:34.830
before Mr. Jenning was unconscious.
369
00:14:34.830 --> 00:14:35.970
It's a critical difference.
370
00:14:35.970 --> 00:14:37.830
In other cases it might not be that important.
371
00:14:37.830 --> 00:14:39.748
So it's a case by case decision I think.
372
00:14:39.748 --> 00:14:44.250
Could I go back to whether or not consistent with
373
00:14:44.250 --> 00:14:45.780
would be permissible?
374
00:14:45.780 --> 00:14:49.770
What did the FBI report in 2015
375
00:14:49.770 --> 00:14:53.370
that referenced that you can't indicate a probability
376
00:14:53.370 --> 00:14:55.530
or improbability number?
377
00:14:55.530 --> 00:14:58.380
Did that report in any way address
378
00:14:58.380 --> 00:15:00.390
whether consistent with
379
00:15:00.390 --> 00:15:03.300
was or wasn't a permissible question?
380
00:15:03.300 --> 00:15:05.770
Well, it certainly said that an analyst
381
00:15:07.551 --> 00:15:10.320
could conclude that hairs are consistent,
382
00:15:10.320 --> 00:15:12.210
but whether the admissibility,
383
00:15:12.210 --> 00:15:13.650
whether that's admissible to court
384
00:15:13.650 --> 00:15:17.400
was certainly not an issue that was being raised by the FBI
385
00:15:17.400 --> 00:15:21.420
or the other participants in that study at the time.
386
00:15:21.420 --> 00:15:24.330
So they were saying an analyst could conclude
387
00:15:24.330 --> 00:15:25.260
it was consistent,
388
00:15:25.260 --> 00:15:27.570
but without any statistical support,
389
00:15:27.570 --> 00:15:29.070
that's all they could say.
390
00:15:29.070 --> 00:15:30.720
So whether that's admissible,
391
00:15:30.720 --> 00:15:32.370
is not a question for the FBI.
392
00:15:32.370 --> 00:15:35.223
It's a question for in here, this court.
393
00:15:37.680 --> 00:15:41.400
Okay, so because Godleski's testimony
394
00:15:41.400 --> 00:15:42.450
about the hair comparison
395
00:15:42.450 --> 00:15:44.670
was a real factor in the deliberate,
396
00:15:44.670 --> 00:15:46.500
likely was a real factor in deliberations,
397
00:15:46.500 --> 00:15:48.780
Michael Eagle should be granted a new trial.
398
00:15:48.780 --> 00:15:49.613
Thank you.
399
00:15:49.613 --> 00:15:50.446
Thank you.
400
00:15:52.449 --> 00:15:53.730
Okay.
401
00:15:53.730 --> 00:15:55.800
Attorney Hansen.
402
00:15:55.800 --> 00:15:56.700
Good morning.
403
00:15:56.700 --> 00:15:58.350
Aren Hansen for the Commonwealth.
404
00:16:00.000 --> 00:16:02.490
With respect to this conviction, it should be upheld.
405
00:16:02.490 --> 00:16:05.010
Ultimately it doesn't really matter.
406
00:16:05.010 --> 00:16:07.290
The hair doesn't change anything in this analysis.
407
00:16:07.290 --> 00:16:08.400
Well, how could you say that
408
00:16:08.400 --> 00:16:10.590
when the prosecutor spent time
409
00:16:10.590 --> 00:16:15.590
saying that that was the thing that put the defendant
410
00:16:16.770 --> 00:16:21.770
in the trailer at the time of the assault?
411
00:16:23.310 --> 00:16:24.360
So there's two factors here.
412
00:16:24.360 --> 00:16:25.590
There's other physical evidence
413
00:16:25.590 --> 00:16:28.200
that links the defendant to the attack
414
00:16:28.200 --> 00:16:30.690
and there's the fact that he's a joint venturer.
415
00:16:30.690 --> 00:16:32.130
So respect to the other evidence,
416
00:16:32.130 --> 00:16:34.099
we've already touched upon it.
417
00:16:34.099 --> 00:16:36.570
He's covered in the victim's blood.
418
00:16:36.570 --> 00:16:39.240
Yeah, but what puts him there at the time of the assault,
419
00:16:39.240 --> 00:16:44.240
which would lead to the knowing of the intent?
420
00:16:45.360 --> 00:16:47.730
So the defendant explained at trial
421
00:16:47.730 --> 00:16:49.620
that he was a lookout for 20 minutes
422
00:16:49.620 --> 00:16:50.550
and then he went inside.
423
00:16:50.550 --> 00:16:51.383
When he went inside,
424
00:16:51.383 --> 00:16:54.030
he found the co-defendant standing over the victim
425
00:16:54.030 --> 00:16:55.170
in the living room
426
00:16:55.170 --> 00:16:57.699
and he was already unconscious and he had the-
427
00:16:57.699 --> 00:17:00.330
Right, and so then the prosecutor in closing argument
428
00:17:00.330 --> 00:17:05.130
says, "That just doesn't make sense because the hair,
429
00:17:06.420 --> 00:17:07.860
given the statistics,
430
00:17:07.860 --> 00:17:12.860
was there underneath the body in the hand of the victim."
431
00:17:13.740 --> 00:17:15.487
Right, so then the defendant continues and states,
432
00:17:15.487 --> 00:17:17.370
"At that point we started searching the trailer
433
00:17:17.370 --> 00:17:20.100
for the money, and that's when we uncovered the money."
434
00:17:20.100 --> 00:17:24.480
That testimony ignores the fact that the victim
435
00:17:24.480 --> 00:17:27.210
was dragged around the trailer.
436
00:17:27.210 --> 00:17:29.370
There was blood in every single room
437
00:17:29.370 --> 00:17:32.310
that was dripping on all the surfaces in that room,
438
00:17:32.310 --> 00:17:35.100
which suggested he was being dragged around the trailer.
439
00:17:35.100 --> 00:17:37.290
And that was done so that it could find
440
00:17:37.290 --> 00:17:39.940
his hidden hiding spots while he was still conscious.
441
00:17:40.950 --> 00:17:43.620
Okay, so I guess you're ignoring my point.
442
00:17:43.620 --> 00:17:46.050
The prosecutor makes a big deal in closing argument
443
00:17:46.050 --> 00:17:49.530
about the fact that there's a hair in the hand
444
00:17:49.530 --> 00:17:51.360
underneath the body of the victim
445
00:17:51.360 --> 00:17:55.890
and uses that to say, "Well, that is inconsistent
446
00:17:55.890 --> 00:17:57.930
with the defendant's testimony."
447
00:17:57.930 --> 00:17:59.280
Right, that was just one piece of it.
448
00:17:59.280 --> 00:18:01.110
The fact that-
But it's a big piece, right?
449
00:18:01.110 --> 00:18:04.830
Because defense counsel has already conceded
450
00:18:04.830 --> 00:18:08.403
that that's the canon that he can't explain.
451
00:18:09.270 --> 00:18:10.470
Right, it was just one piece.
452
00:18:10.470 --> 00:18:12.390
Now, the second part of it is-
453
00:18:12.390 --> 00:18:13.680
But it is just one piece,
454
00:18:13.680 --> 00:18:17.040
but why is that not something
455
00:18:17.040 --> 00:18:19.230
that would've had a real effect
456
00:18:19.230 --> 00:18:22.410
given the emphasis that the prosecutor placed on it
457
00:18:22.410 --> 00:18:24.690
and the defense counsel went to great lengths
458
00:18:24.690 --> 00:18:27.273
to try to explain through some tape?
459
00:18:28.110 --> 00:18:31.290
Because of the physical evidence, again, he's covered,
460
00:18:31.290 --> 00:18:32.550
he just doesn't have a little bit of blood.
461
00:18:32.550 --> 00:18:33.660
Every part of his clothing
462
00:18:33.660 --> 00:18:36.630
as well as underneath his fingernails has blood on it.
463
00:18:36.630 --> 00:18:37.710
With type O blood.
464
00:18:37.710 --> 00:18:39.840
And how rare is that?
465
00:18:39.840 --> 00:18:41.760
I'm sorry?
How rare is that?
466
00:18:41.760 --> 00:18:42.960
I don't know.
Yeah.
467
00:18:42.960 --> 00:18:44.760
And was that in evidence at all?
468
00:18:44.760 --> 00:18:46.020
No.
Would it surprise you
469
00:18:46.020 --> 00:18:48.573
to know that 40% of us have type O blood?
470
00:18:49.980 --> 00:18:50.930
That's new to me.
471
00:18:52.200 --> 00:18:55.800
Counsel, could I go back to just try to put a fine point
472
00:18:55.800 --> 00:18:56.940
on Justice Wendlandt question
473
00:18:56.940 --> 00:18:59.940
because I don't know that if you agree
474
00:18:59.940 --> 00:19:01.423
with attorney Shedd's position,
475
00:19:01.423 --> 00:19:05.400
but I separate this out into two things.
476
00:19:05.400 --> 00:19:08.820
There's the statistical information that he testifies to
477
00:19:08.820 --> 00:19:11.310
that we know he can't, right?
478
00:19:11.310 --> 00:19:14.610
Correct.
But could he have testified
479
00:19:14.610 --> 00:19:17.010
that on his analysis
480
00:19:17.010 --> 00:19:20.700
the hairs that were found in the victim's hand
481
00:19:20.700 --> 00:19:24.150
were consistent with Mr. Eagles'?
482
00:19:24.150 --> 00:19:25.830
That is my understanding.
483
00:19:25.830 --> 00:19:28.080
Through my research, I have not come across anything
484
00:19:28.080 --> 00:19:30.420
that suggests that you can't make that comparison anymore,
485
00:19:30.420 --> 00:19:34.680
that the statistics have been ruled as wrong science.
486
00:19:34.680 --> 00:19:36.660
My research has also shown
487
00:19:36.660 --> 00:19:38.940
that microscopy has fallen out of favor
488
00:19:38.940 --> 00:19:41.550
as DNA analysis has become more relevant.
489
00:19:41.550 --> 00:19:45.240
But it goes back to Justice Wendlandt point
490
00:19:45.240 --> 00:19:50.240
and the one that zeros in on the closing argument,
491
00:19:50.280 --> 00:19:54.300
because if he could testify to it's consistent
492
00:19:54.300 --> 00:19:57.150
with the defendant's hair,
493
00:19:57.150 --> 00:20:00.300
he could argue at closing argument
494
00:20:00.300 --> 00:20:02.760
the only way it got there is because he was there,
495
00:20:02.760 --> 00:20:03.660
couldn't he?
Yes.
496
00:20:03.660 --> 00:20:04.493
I agree with your honor.
497
00:20:04.493 --> 00:20:06.870
And you wouldn't need the statistical part of that
498
00:20:06.870 --> 00:20:08.640
to support that argument.
499
00:20:08.640 --> 00:20:09.690
I agree.
Okay.
500
00:20:09.690 --> 00:20:12.423
And do you think that that would survive Daubert,
501
00:20:13.560 --> 00:20:15.540
that something consistent with,
502
00:20:15.540 --> 00:20:18.000
even though there's no statistics to back it up,
503
00:20:18.000 --> 00:20:20.880
that would come in as admissible evidence
504
00:20:20.880 --> 00:20:23.043
as a quasi expert evidence?
505
00:20:23.910 --> 00:20:25.890
That would certainly be a challenge.
506
00:20:25.890 --> 00:20:27.210
That would be a challenge, wouldn't it?
507
00:20:27.210 --> 00:20:30.570
So the admissibility of even the consistent with
508
00:20:30.570 --> 00:20:32.340
would be a problem?
509
00:20:32.340 --> 00:20:34.620
Is that the Commonwealth's position?
510
00:20:34.620 --> 00:20:35.640
I would agree that's fair.
511
00:20:35.640 --> 00:20:37.290
So we would have to,
512
00:20:37.290 --> 00:20:40.920
in assessing the argument here on a motion for a new trial,
513
00:20:40.920 --> 00:20:43.980
consider the possibility that even the consistent with
514
00:20:43.980 --> 00:20:46.260
would not have been admissible
515
00:20:46.260 --> 00:20:49.050
given the lack of statistical basis.
516
00:20:49.050 --> 00:20:51.360
So basically the hair expert
517
00:20:51.360 --> 00:20:53.373
would not have been allowed to testify.
518
00:20:54.480 --> 00:20:56.430
I wouldn't go that far, your honor.
519
00:20:56.430 --> 00:20:59.100
So he explained what his analysis was,
520
00:20:59.100 --> 00:21:00.330
that he compared them on,
521
00:21:00.330 --> 00:21:03.990
I believe 10 major and then several other minor comparisons.
522
00:21:03.990 --> 00:21:05.497
I believe that he would've been able to say,
523
00:21:05.497 --> 00:21:07.440
"I looked at this part of the hair
524
00:21:07.440 --> 00:21:09.540
and it was similar there."
525
00:21:09.540 --> 00:21:12.870
And I go through each one of his 10 to 15 factors
526
00:21:12.870 --> 00:21:14.100
and compare those on that.
527
00:21:14.100 --> 00:21:16.290
Even though there's no statistical basis
528
00:21:16.290 --> 00:21:19.260
for making that assessment of consistency.
529
00:21:19.260 --> 00:21:21.210
Tracks a bunch of other stuff.
530
00:21:21.210 --> 00:21:22.140
Yes.
531
00:21:22.140 --> 00:21:23.460
The jury could draw their own conclusion.
532
00:21:23.460 --> 00:21:26.730
I guess the question might be, by way of analogy,
533
00:21:26.730 --> 00:21:28.890
the DNA evidence,
534
00:21:28.890 --> 00:21:32.520
the non-exclusion evidence requires a number.
535
00:21:32.520 --> 00:21:36.720
You can't just say this is non-exclusion.
536
00:21:36.720 --> 00:21:39.600
inconclusive is not admissible
537
00:21:39.600 --> 00:21:44.600
and exclusion requires statistics.
538
00:21:44.910 --> 00:21:48.360
So the question is whether or not that analysis
539
00:21:48.360 --> 00:21:52.950
would carry over to hair follicles as well.
540
00:21:52.950 --> 00:21:53.783
Right.
541
00:21:55.170 --> 00:21:57.120
I don't have an answer for the court on that one.
542
00:21:57.120 --> 00:22:01.533
I think ultimately he's a joint venturer in this case.
543
00:22:02.970 --> 00:22:06.030
What's important here is that Roberio
544
00:22:06.030 --> 00:22:07.590
was clearly the initial planner.
545
00:22:07.590 --> 00:22:09.180
There's testimony at trial
546
00:22:09.180 --> 00:22:11.160
that he was looking for somebody else to go with him,
547
00:22:11.160 --> 00:22:12.480
and two other people testified
548
00:22:12.480 --> 00:22:14.400
that they didn't wanna participate in this.
549
00:22:14.400 --> 00:22:17.640
This crime didn't happen until Michael Eagle signed on.
550
00:22:17.640 --> 00:22:18.540
Right.
551
00:22:18.540 --> 00:22:23.070
There's significant evidence, no doubt about it.
552
00:22:23.070 --> 00:22:28.070
And the defendant may well have been convicted
553
00:22:29.970 --> 00:22:32.040
without the hair, may well have.
554
00:22:32.040 --> 00:22:37.040
So whether or not this evidence is enough for a new trial,
555
00:22:38.820 --> 00:22:43.260
you do need to confront that the, again,
556
00:22:43.260 --> 00:22:45.450
picking up on the point from Justice Wendlandt
557
00:22:45.450 --> 00:22:47.760
that the prosecutor's saying the hair
558
00:22:47.760 --> 00:22:51.030
could not have landed there accidentally
559
00:22:51.030 --> 00:22:52.503
underneath the body.
560
00:22:53.430 --> 00:22:56.850
And so therefore the defendant's story
561
00:22:56.850 --> 00:23:01.830
about when he went into the trailer is not credible.
562
00:23:01.830 --> 00:23:05.310
And whether or not that type of evidence
563
00:23:05.310 --> 00:23:07.350
is enough here for a new trial,
564
00:23:07.350 --> 00:23:09.600
it's not whether or not you wouldn't have had
565
00:23:10.650 --> 00:23:14.073
significant evidence that he was guilty.
566
00:23:15.030 --> 00:23:16.170
Right.
567
00:23:16.170 --> 00:23:18.990
I think at the end of the day, even without that evidence,
568
00:23:18.990 --> 00:23:20.430
he's still a joint venturer
569
00:23:20.430 --> 00:23:23.493
where he admits that he was a lookout.
570
00:23:24.510 --> 00:23:25.890
He admits that he goes in.
571
00:23:25.890 --> 00:23:28.830
Venturer on a breaking and entering though.
572
00:23:28.830 --> 00:23:33.480
To be the joint venturer on the felony murderer
573
00:23:33.480 --> 00:23:35.310
on the extreme atrocity of cruel,
574
00:23:35.310 --> 00:23:38.433
he has to share the intent.
575
00:23:39.570 --> 00:23:40.770
Well, this was a felony murder
576
00:23:40.770 --> 00:23:42.150
where he would've to share the intent
577
00:23:42.150 --> 00:23:42.983
for the armed robbery.
578
00:23:42.983 --> 00:23:44.910
And to share the intent for the armed robbery
579
00:23:44.910 --> 00:23:46.105
you'd have to know that he was armed,
580
00:23:46.105 --> 00:23:48.960
that there was somebody inside.
581
00:23:48.960 --> 00:23:50.160
Correct.
It doesn't answer
582
00:23:50.160 --> 00:23:51.000
all the questions
583
00:23:51.000 --> 00:23:53.973
because you have to share the intent for the armed robbery.
584
00:23:55.020 --> 00:23:56.670
And what the defendant's saying
585
00:23:56.670 --> 00:23:59.250
maybe Justice Georges makes a good point.
586
00:23:59.250 --> 00:24:00.930
Maybe the jury just not gonna a credit him.
587
00:24:00.930 --> 00:24:03.090
He's right there on the witness stand.
588
00:24:03.090 --> 00:24:05.820
But you have to show the shared intent
589
00:24:05.820 --> 00:24:07.350
for the armed robbery.
590
00:24:07.350 --> 00:24:09.720
Right, and there's plenty of evidence from the scene
591
00:24:09.720 --> 00:24:12.990
that it was clear that the victim was home.
592
00:24:12.990 --> 00:24:14.460
This was an isolated area
593
00:24:14.460 --> 00:24:17.550
where the defendants needed a car to access.
594
00:24:17.550 --> 00:24:19.080
They didn't sneak up on the property.
595
00:24:19.080 --> 00:24:21.840
They see that the car is on the driveway, the lights are on.
596
00:24:21.840 --> 00:24:25.140
The outside porch is latched.
597
00:24:25.140 --> 00:24:27.960
Two people testified that you could see into the living room
598
00:24:27.960 --> 00:24:29.100
through the window.
599
00:24:29.100 --> 00:24:31.440
The victim was watching television at the time.
600
00:24:31.440 --> 00:24:35.013
It would've been abundantly clear that somebody was home.
601
00:24:36.210 --> 00:24:37.890
And they knew somebody was home
602
00:24:37.890 --> 00:24:39.960
because they pulled the phone wires out
603
00:24:39.960 --> 00:24:42.570
to prevent the victim from calling for help.
604
00:24:42.570 --> 00:24:44.700
So even if he went there for a B and E,
605
00:24:44.700 --> 00:24:46.380
it was clear that the victim was home,
606
00:24:46.380 --> 00:24:49.050
at which point it turned into an armed robbery.
607
00:24:49.050 --> 00:24:51.270
Which at least gets you to the felony murder.
608
00:24:51.270 --> 00:24:52.103
Correct.
609
00:24:57.420 --> 00:25:01.590
Now, with respect to the last portion of my argument,
610
00:25:01.590 --> 00:25:04.500
in all the cases that have been overturned,
611
00:25:04.500 --> 00:25:07.050
we have affirmative DNA evidence
612
00:25:07.050 --> 00:25:08.430
stating that this person
613
00:25:08.430 --> 00:25:10.830
was actually not linked to this crime scene.
614
00:25:10.830 --> 00:25:14.370
And I'm referring to Sullivan as well as Cowells,
615
00:25:14.370 --> 00:25:17.227
where they went back and did a DNA test and said,
616
00:25:17.227 --> 00:25:19.560
"You know what, this one piece of physical evidence
617
00:25:19.560 --> 00:25:23.400
that links this individual to this crime scene
618
00:25:23.400 --> 00:25:26.700
no longer exists and we don't have that here."
619
00:25:26.700 --> 00:25:29.544
Can you refresh my memory on Cowells.
620
00:25:29.544 --> 00:25:33.480
In Cowells, a young girl was murdered
621
00:25:33.480 --> 00:25:36.240
and the two co-defendants that did it
622
00:25:36.240 --> 00:25:39.840
came back to an apartment and washed up afterwards.
623
00:25:39.840 --> 00:25:42.240
There was blood on a towel
624
00:25:42.240 --> 00:25:44.910
that they used to dry themselves off
625
00:25:44.910 --> 00:25:48.600
and that was used to tie them to the murder.
626
00:25:48.600 --> 00:25:51.840
They went back and tested the blood on the towel
627
00:25:51.840 --> 00:25:53.160
and the DNA testing showed
628
00:25:53.160 --> 00:25:55.260
that the blood did not belong
629
00:25:55.260 --> 00:25:57.933
to either the defendants or the victim.
630
00:25:59.340 --> 00:26:01.710
And now in Cowells the court also held
631
00:26:01.710 --> 00:26:02.970
that there's a substantial difference
632
00:26:02.970 --> 00:26:05.070
between a test that says
633
00:26:05.070 --> 00:26:07.080
that this affirmatively does not belong
634
00:26:07.080 --> 00:26:08.310
to either defendant or the victim
635
00:26:08.310 --> 00:26:10.380
or any other person that might be in question
636
00:26:10.380 --> 00:26:12.330
in a test that is inconclusive.
637
00:26:12.330 --> 00:26:15.180
Essentially, if we throw out, well, we should.
638
00:26:15.180 --> 00:26:18.030
The statistical probability is gone,
639
00:26:18.030 --> 00:26:19.260
It's not scientifically valid.
640
00:26:19.260 --> 00:26:23.070
But if we just ignore that and throw it out of this case,
641
00:26:23.070 --> 00:26:25.803
we still have an inconclusive result here.
642
00:26:27.060 --> 00:26:28.650
We don't know where the hairs came from.
643
00:26:28.650 --> 00:26:31.020
We can't say that they didn't come from Eagles.
644
00:26:31.020 --> 00:26:34.713
Is that the burden on the motion for new trial?
645
00:26:35.859 --> 00:26:39.420
I thought it would it have had a real effect on the jury.
646
00:26:39.420 --> 00:26:40.620
That is correct.
647
00:26:40.620 --> 00:26:43.410
But I thought it was just important to point that out,
648
00:26:43.410 --> 00:26:45.930
that if we look at Gudro,
649
00:26:45.930 --> 00:26:47.760
it's important to look at information
650
00:26:47.760 --> 00:26:48.900
that could have been analyzed
651
00:26:48.900 --> 00:26:51.060
when determining whether a motion for new trial
652
00:26:51.060 --> 00:26:52.260
should have been allowed,
653
00:26:52.260 --> 00:26:53.970
and hear the defendant has explicitly
654
00:26:53.970 --> 00:26:57.660
not tested using DNA, tested the hairs.
655
00:26:57.660 --> 00:27:00.900
This would've been a substantially more direct way
656
00:27:00.900 --> 00:27:03.150
to attack his conviction.
657
00:27:03.150 --> 00:27:04.920
And I would suggest to the court that it's important
658
00:27:04.920 --> 00:27:07.860
to note that they chose not to do that.
659
00:27:07.860 --> 00:27:09.750
Rather they chose to attack it laterally
660
00:27:09.750 --> 00:27:12.360
by saying that statistical probabilities
661
00:27:12.360 --> 00:27:13.860
are no longer good science.
662
00:27:13.860 --> 00:27:16.050
So you're suggesting that DNA testing
663
00:27:16.050 --> 00:27:17.650
could still be done of the hair?
664
00:27:18.780 --> 00:27:19.991
That is a possibility, yes.
665
00:27:19.991 --> 00:27:22.230
And my understanding is that the defendant
666
00:27:22.230 --> 00:27:23.530
did not follow up on that.
667
00:27:25.650 --> 00:27:27.120
Did the Commonwealth?
668
00:27:27.120 --> 00:27:28.203
I did follow up.
669
00:27:29.430 --> 00:27:30.750
I never heard back from the lab.
670
00:27:30.750 --> 00:27:33.690
They stated that they were gonna send me an inventory.
671
00:27:33.690 --> 00:27:35.540
I never received that, unfortunately.
672
00:27:37.950 --> 00:27:42.483
Did the defendant know that the co-venturer was armed?
673
00:27:44.130 --> 00:27:46.350
So that's where Commonwealth v. Booth comes in,
674
00:27:46.350 --> 00:27:47.343
which I reference.
675
00:27:48.390 --> 00:27:50.280
Even if he doesn't know that he's armed
676
00:27:50.280 --> 00:27:51.510
when he goes in initially,
677
00:27:51.510 --> 00:27:54.010
if he becomes aware of the fact that he's armed
678
00:27:56.813 --> 00:27:59.860
during the co-venture and then continues in the co-venture,
679
00:28:00.960 --> 00:28:03.240
he would have the requisite intent.
680
00:28:03.240 --> 00:28:06.120
So you don't need to know that he's armed at the beginning,
681
00:28:06.120 --> 00:28:08.790
but if he become aware of it, that's enough.
682
00:28:08.790 --> 00:28:11.440
And what's the evidence that he became aware of it?
683
00:28:12.360 --> 00:28:15.000
He walked in to the trailer
684
00:28:15.000 --> 00:28:17.520
and Roberio's armed himself with shotgun
685
00:28:17.520 --> 00:28:20.220
and the victim has been beaten.
686
00:28:20.220 --> 00:28:21.690
The physical evidence suggests
687
00:28:21.690 --> 00:28:23.640
that he was strangled with a ligature,
688
00:28:23.640 --> 00:28:25.290
specifically the pillow case,
689
00:28:25.290 --> 00:28:27.210
but that he was also attacked with a chair,
690
00:28:27.210 --> 00:28:28.680
which was also covered in blood.
691
00:28:28.680 --> 00:28:30.750
That was inside of the victim's.
692
00:28:30.750 --> 00:28:35.370
But what is the evidence that the defendant was there
693
00:28:35.370 --> 00:28:37.770
at that time when all these things
694
00:28:37.770 --> 00:28:39.363
that you're listing happened?
695
00:28:42.270 --> 00:28:44.490
Well, I don't believe that matters
696
00:28:44.490 --> 00:28:46.140
the fact that it happened before,
697
00:28:46.140 --> 00:28:48.120
but he was still acting as a lookout, as a core venturer.
698
00:28:48.120 --> 00:28:49.800
I think that's what's important here.
699
00:28:49.800 --> 00:28:51.000
He doesn't need to be present.
700
00:28:51.000 --> 00:28:51.833
He doesn't need to be-
701
00:28:51.833 --> 00:28:53.910
But you're saying that that's how he knew
702
00:28:53.910 --> 00:28:58.110
that his co-defendant was armed
703
00:28:58.110 --> 00:28:59.820
because he was present
704
00:28:59.820 --> 00:29:02.883
when all of these things were happening inside the trailer?
705
00:29:04.170 --> 00:29:06.600
No, I'm stating that once he walked into the trailer
706
00:29:06.600 --> 00:29:08.280
and he saw the defendant with a shotgun,
707
00:29:08.280 --> 00:29:10.260
I think it's reasonable to infer
708
00:29:10.260 --> 00:29:11.640
the defendant had armed himself
709
00:29:11.640 --> 00:29:13.470
while beating this individual.
710
00:29:13.470 --> 00:29:16.500
But you're saying that as long as you find out
711
00:29:16.500 --> 00:29:21.000
even after the crime has occurred, then you can be-
712
00:29:21.000 --> 00:29:23.280
This was during the commission of the crime, correct.
713
00:29:23.280 --> 00:29:26.160
Yeah, what's the evident, I guess that's my question.
714
00:29:26.160 --> 00:29:30.513
What is the evidence that the defendant found out
715
00:29:31.710 --> 00:29:33.760
during the commission of the crime
716
00:29:34.650 --> 00:29:37.050
that these things were happening?
717
00:29:37.050 --> 00:29:39.630
He walked in and he saw the victim
718
00:29:39.630 --> 00:29:41.130
laying on the floor unconscious
719
00:29:41.130 --> 00:29:42.900
with a ligature around his neck.
720
00:29:42.900 --> 00:29:43.733
He testified-
You're relying
721
00:29:43.733 --> 00:29:45.000
on his testimony.
722
00:29:45.000 --> 00:29:46.230
Sorry?
Are you relying
723
00:29:46.230 --> 00:29:47.790
on his testimony to that?
Correct.
724
00:29:47.790 --> 00:29:48.690
He testified to that
725
00:29:48.690 --> 00:29:51.210
and he testified that he tried to loosen
726
00:29:51.210 --> 00:29:52.043
the ligature as well.
727
00:29:52.043 --> 00:29:52.876
He's well aware of the fact that-
728
00:29:52.876 --> 00:29:55.860
But how do we know that happened before or after?
729
00:29:55.860 --> 00:29:58.110
Oh, that would be based on his testimony.
730
00:29:58.110 --> 00:29:59.970
That would be based on the defendant's testimony.
731
00:29:59.970 --> 00:30:02.673
Did the defendant testified that he was there after?
732
00:30:03.930 --> 00:30:05.820
Correct, but it was still during the commission
733
00:30:05.820 --> 00:30:07.320
of the robbery.
734
00:30:07.320 --> 00:30:09.420
The victim is beaten unconscious.
735
00:30:09.420 --> 00:30:10.860
He's strangled with the ligature.
736
00:30:10.860 --> 00:30:14.130
The defendant says he then walks in and then they continue,
737
00:30:14.130 --> 00:30:16.080
and that's when they start to rob him
738
00:30:16.080 --> 00:30:19.013
and steal all of his money and then they make their escape.
739
00:30:21.570 --> 00:30:25.860
So can I ask you, are you relying on case law
740
00:30:25.860 --> 00:30:27.780
for the armed robbery
741
00:30:27.780 --> 00:30:32.780
that even if the victim is deceased
742
00:30:32.790 --> 00:30:37.790
in the immediate aftermath of the robbery,
743
00:30:38.220 --> 00:30:41.430
excuse me, of the death, that is,
744
00:30:41.430 --> 00:30:45.420
something stolen that it would be still a robbery?
745
00:30:45.420 --> 00:30:49.320
Yes, I would point to court to Booth
746
00:30:49.320 --> 00:30:51.780
where the robbery was of drugs
747
00:30:51.780 --> 00:30:54.360
and two people were shot during the commission of that.
748
00:30:54.360 --> 00:30:56.700
And in that case, the conviction was upheld
749
00:30:56.700 --> 00:30:59.400
and all the defendant who Booth was doing,
750
00:30:59.400 --> 00:31:01.053
was acting as a lookout.
751
00:31:02.490 --> 00:31:04.380
Here the defendant did substantially more
752
00:31:04.380 --> 00:31:05.580
where he acted as a lookout,
753
00:31:05.580 --> 00:31:07.800
but then went inside and he did in the robbery.
754
00:31:07.800 --> 00:31:09.960
He's seen with a lot of cash
755
00:31:09.960 --> 00:31:11.970
after the fact he has coins
756
00:31:11.970 --> 00:31:13.860
that are taken from the victim's beer stein
757
00:31:13.860 --> 00:31:15.420
that he offers to one of his roommates
758
00:31:15.420 --> 00:31:17.790
to pay for household expenses.
759
00:31:17.790 --> 00:31:22.170
So he certainly profited in the robbery as well.
760
00:31:22.170 --> 00:31:23.910
Did Booth claim that he didn't know
761
00:31:23.910 --> 00:31:27.183
that his co-venturer was armed?
762
00:31:28.110 --> 00:31:29.880
He did initially,
763
00:31:29.880 --> 00:31:31.260
but the court inferred
764
00:31:31.260 --> 00:31:33.480
that he should have known ahead of time.
765
00:31:33.480 --> 00:31:36.243
So they were robbed a drug dealer.
766
00:31:38.889 --> 00:31:40.770
It could have been inferred that they were gonna use weapons
767
00:31:40.770 --> 00:31:41.603
to rob drug dealer.
768
00:31:41.603 --> 00:31:42.690
Because they were robbing a drug dealer,
769
00:31:42.690 --> 00:31:43.523
the other thing was-
Right.
770
00:31:43.523 --> 00:31:47.220
So they knew someone was home and so that's why-
771
00:31:47.220 --> 00:31:48.183
Correct.
Hurt.
772
00:31:49.170 --> 00:31:52.800
But even during the commission of the robbery in Booth,
773
00:31:52.800 --> 00:31:54.780
two people were shot.
774
00:31:54.780 --> 00:31:55.730
Which would've been allowed.
I did the case,
775
00:31:55.730 --> 00:31:57.063
so I remember, yeah.
776
00:31:58.860 --> 00:32:01.560
And the defendant stayed outside.
777
00:32:01.560 --> 00:32:03.510
So it would've been reasonable infer
778
00:32:03.510 --> 00:32:06.450
from the fact that gunshots came from inside the house
779
00:32:06.450 --> 00:32:07.650
that a weapon had been used
780
00:32:07.650 --> 00:32:09.573
and he still continued to participate.
781
00:32:10.530 --> 00:32:12.060
Yeah, I understand,
782
00:32:12.060 --> 00:32:14.760
but the difference is just when,
783
00:32:14.760 --> 00:32:19.290
if the person doesn't know that the co-defendant is armed
784
00:32:19.290 --> 00:32:24.290
until after the victim has been hurt
785
00:32:26.790 --> 00:32:30.090
by whatever the guy's been armed with,
786
00:32:30.090 --> 00:32:32.910
is that still the knowledge of the arming?
787
00:32:32.910 --> 00:32:33.743
Correct.
Okay.
788
00:32:33.743 --> 00:32:36.630
That is my understanding of the takeaway from Booth
789
00:32:36.630 --> 00:32:40.130
is even after the fact it would still be valid.
790
00:32:40.130 --> 00:32:41.943
Okay.