-: SJC-13217
Commonwealth versus Joshua Hart.
-: Okay, attorney Maidman.
-: Good morning.
Please the court, Stephen Maidman for Joshua Hart,
the defendant.
This case is primarily about
whether the defendant's confessions were involuntary.
I'd like to focus on that,
and then I'll address the spontaneous utterances issue,
and I'll rely on my brief for the remaining two issues.
We respect to the confessions, the record,
this is a case where you have
two recorded confessions, one by Virginia Sheriffs
and one by the Massachusetts State Police.
So the record is clear what was said and wasn't said
during the interrogations.
The defendant was looking for a deal,
and he thought he got a deal.
His deal was, I'll tell you everything about what happened,
you get protection, to use his word,
protection for Ms. Smith, his girlfriend.
-: And you're right, the record is clear about what was said
and what was not said.
And we've all read cases, and know cases
that in a continuum, this doesn't seem to even come close,
because they continue to say to him,
we don't have authority to do anything.
We don't have authority to give you immunity.
We don't have authority to give a deal to your confederate.
We can't do anything.
The only thing you can do is tell us what you know.
So when you look at the transcript of the interrogation,
help me understand at what point the Q&A specifically
that they say, "We're going to give her a deal if you talk."
-: Well, let me first address
your first part of your question.
They didn't say, "You don't have a deal,"
in the first confession until the end of the statement.
And it's in my brief, everything's either in the brief
or the transcript.
They said, "You can try to work a deal with that, though.
I won't discuss deals."
That was at the very end after he spilled his guts.
Okay.
Budd: When was the deal struck?
-: The deal was struck within the first
couple minutes of the interrogation.
It's on page 29 in my brief, or 54 the record pending,
page seven of the original transcript.
And the words, I quoted because
when I read this, I was struck by it.
It says, and this this is the Sheriff Funkeiser.
"And all I can tell you is,
the only way you're going to protect her,
and protect her soul," and that's the religious issue,
"and her wellbeing, and everything else
is for you to be upfront with us and candid
and take advantage of this opportunity."
So that's the now or never claim.
"Because if it's something you feel strongly about,
and you're given this opportunity to speak freely
and you don't take advantage of it,
we don't want her to,
you're telling me you that you don't want her involved.
I want to take your word at it."
And he answers, "'cause she wasn't, you know what I mean?
It wasn't supposed to happen like that and stuff.
So that's why I said, do you think after we talk
there's a way we could try to contact
the police department down there and arrange something?"
And the sheriff answers, "If you're honest with me
and you're telling me everything that's going on."
Defendant says, "All right, thank you."
And then to emphasize it further,
or to encourage the defendant further,
the sheriff goes, "Certainly we're talking
with the police department from Massachusetts now."
Defendant goes, all right, thank you.
And they want your cooperation.
If that isn't a deal, I mean maybe not pure
offer and acceptance from the bar exam,
but it's pretty close in my view.
And I would suggest the court look at it that way.
Especially look at it from the defendant's standpoint.
This guy, after hearing this, he thought he had a deal.
And that's what the record says.
-: Well, I know there's another side to that,
but the point I guess I keep coming back to
is it seems pretty clearly that this defendant
was looking to protect his girlfriend, his confederate,
his co-defendant, what have you.
That, again, going back to the cases
that informed some of our analysis,
this isn't one of these cases where they seemingly
had to pull teeth.
This person seemingly came in saying,
"I want to talk because I'm motivated
to protect my girlfriend here."
So can you at least give me, if you could give me this.
Is the entire voluntariness
of the Massachusetts interrogation,
does it rise or fall on whether or not
the interview with the sheriff was good or not?
-: No.
And the reason I say that is that the Massachusetts Sheriff,
Massachusetts State Troopers,
they knew what happened in the first one.
They had the tape recording, whether they listened to it
or how much they listened to it,
it's unclear in the record.
But they knew what went on.
And they certainly didn't say,
"We understand that the sheriff
said blah, blah, blah to you,
and I want you to know, we're from Massachusetts,
we're not giving you a deal.
You have no deal.
They should have told you you don't have a deal.
They shouldn't have said this."
That never happened.
-: Is the cat out of the bag based upon a time lapse
or is it based upon correcting the record?
That's what I'm.
-: [Defendant Judge Name] I'm sorry, Justice Gaziano?
-: We have the cat out of the bag.
-: [Defendant Judge Name] Yes, yes, yes.
-: That's what you're referring to
with the Massachusetts state police,
and there's a 24 hour, almost exactly, delay between.
And on the case law, what you found, Mr. Maidman,
is the cat out of bag analysis based upon a temporal break?
Or is there?
Maiman: No. -: Please explain.
-: It's not that,
that's the break in the stream of events, judge.
The can outta the bag actually originated
in the federal system.
And Massachusetts uses both tests.
At least that's what it looks like from the case law.
First question, was there a break in stream of events?
Did he talk to a lawyer?
Did he talk to his friends?
All that.
There's nothing in the record to even suggest that.
This guy was held incommunicado, same jail, same everything.
Okay.
And whereas the cat outta bag analysis is, excuse me,
did he think, was it futile for him to withhold evidence?
Did he have anything to lose at that point?
This guy, this is in the record,
he was interrogated by the Harrisonburg Police Department
for mugging someone at a mall to get money.
And he told the Harrisburg Sheriffs,
or Harrisburg Police Department,
"I'm going to jail for murder."
-: Okay, so we have the Virginia County folks
do the soul, protect your soul inquiry.
Then we have an interview by the locals for a mugging.
Maiman: Yeah, for a mugging.
He ripped off her purse.
-: Right.
And then we had the state police, Mass state purse.
-: State police, 24 hours later.
They come down and they get pretty thorough.
And this guy, and by the way,
there were additional facts
given to the Massachusetts State Police.
It's pretty, I think a reasonable person
looking at the record is gonna say,
"This guy spilled his guts all over again and more."
-: Where does it go, and I read judge Agostini's opinion,
but where does it go in the overall voluntariness inquiry,
which is something Justice Georges referred to,
was his will over born, essentially?
So we have someone who wants to cooperate.
Maiman: Well, his will.
-: And then like I'm thinking of the classic cases,
Novo and some of the other cases where they basically said,
hey, you're gonna lose your kids.
That type of coercion.
-: He really, the record is clear,
he wanted to confess for the deal.
I don't think the record is so clear,
and I think this is reasonable interpretation.
"I'm here, I need to confess, period."
I'm here because, the reason I wanna talk to you
is to get protection for my girlfriend.
And I think that's what the record says.
And one last point on this,
this court has warned the police,
don't bargain with defendants over releasing loved ones.
That's relatively clear.
The case.
-: I mean, our case law is a little stringent,
because we say like, well, some trickery is okay.
Maiman: Oh, we definitely say that.
-: There's a lot of fluff in the standard as far as coercion.
-: No, you're absolutely right, Justice Gaziano.
-: Minimization, et cetera.
Minimization is bad until we say it's not bad.
-: Yeah, that's correct.
But that's why, we can talk about protecting your soul.
We can talk about now or never, we can talk about
about all these other things that went on,
other bad things that went on.
But it comes back to that this defendant
thought he had a deal.
That's the argument.
-: That's why you focus more on the deal
rather than the religious stuff.
Maiman: Yeah, and I mean.
-: The minimization and the now or never.
-: Judge Agostini, you're in the same position
as Judge Agostini, in my view,
except for the religious stuff.
Because he questioned him at the motion hearing,
and he said, "I find Sheriff Hancauser credible."
Everything else, you're in the same position.
I would suggest the record,
you can make your own conclusion.
But that's, I think that's pretty much what I wanted to say
about the Virginia confessions.
Unless the court has any question,
lemme just one second here.
No, I think I covered it.
That's the argument.
Now, as far as Ms. Fisher's statements
to the healthcare workers, but let me begin.
This was a terrible crime.
Okay, I don't wanna minimize anything.
But the question of "excited utterances,"
if this court goes along with 12 hours from the event,
this court is dramatically expanding the law
of exciting utterances in the commonwealth of Massachusetts.
There's a, I put a.
-: Doesn't it go hand in glove with the first issue?
Because given the amount of evidence in this case,
as far as prejudicial error goes for excited utterance.
Maiman: Oh, yes, yes.
-: Even if we agree with you, frankly.
Yes, if the confessions come in,
then why are we talking about it, et cetera, of course.
But on the other hand, this 12 hours,
I found a footnote in Mass practice,
which lists five minutes, five seconds,
and nowhere near do we get to 12 hours.
-: There's the DC circuit case, though, that says 11.
-: Okay.
I mean, I didn't find that one.
-: Well, it's cited by your opposing counsel.
That's how I found it.
I'm not that good.
-: But the point is,
the victim in this case was brutally mugged, attacked.
And she's been on the floor, in various states of conscious.
I mean, I don't wanna minimize that, she was in bad shape,
but to say, 12 hours later,
she couldn't reflect on what happened is,
I just don't think that's what the hearsay rules
are all about.
But then you get to the second part, the second test,
whether it was testimonial.
First we got the Massachusetts State hearsay law,
then we got the Crawford Analysis.
-: But on the confrontation analysis,
in looking at what we looked to as a substitute
for trial testimony,
taking what you have said a little bit before,
this was an awful, brutal, vicious attack
where an elderly woman in her home was there alone
suffering from these injuries.
And so when we talk about why it is
that we look to the substitute,
do you think she's really thinking and deliberating
about preserving testimony down
or that she's still suffering from these awful injuries
when a healthcare worker comes in
and asks her what happened?
-: I think she's really saying,
this is my personal opinion.
I'm inferring it from the record.
I guess I don't agree with you.
I think she was report reporting what happened
for the purposes of seeing her assailants
brought to justice.
That's my reaction to it.
It certainly can be read that way, and again,
we're looking, it doesn't matter what she's thinking,
it matters what the objective listener would perceive.
She certainly wasn't saying, "I need help."
The ambulance is already on the way.
This is not like the 911 call, send me an ambulance.
-: I think we're looking to,
when you look at the objectivity of it,
she had crawled out on the porch.
She had yelled out for help, no one had come,
she'd come back in.
Again, I'm just trying to look to the lens of how
somebody that's in those dire straits would be thinking.
I'm trying to preserve testimony down the road
as opposed to, I'm just trying to stay alive.
-: I don't think she thought about preserving testimony.
I think she thought about, this is what the guy did to me
so the cops can prosecute him.
I don't think that in terms of,
and obviously these were not police officers.
You're reporting to the healthcare workers.
-: Sure, but that also cuts against you, doesn't it?
-: Yes, it does.
But still, if I'm reporting,
this is what these guys do to me,
it certainly sounds testimonial to me.
But that's the issue you have.
That's the issue.
But again, if it doesn't pass muster
under the hearsay rules, you never get to the second,
you never get to the Crawford issue.
So again I would emphasize that this court needs to look at
how this potentially could change the law in Massachusetts.
And I don't think it's,
every time that this court has addressed,
or trial judges in my experience have addressed,
or you addressed when you were a trial judge.
The first question in your mind is,
well, how many seconds later was it?
This is not seconds, this is hours.
So unless the court has any further questions on that,
do you have questions?
Wendlandt: No, I don't.
-: Okay.
I guess the only thing I'd mention,
one thing about the venue.
These were very prominent citizens of the community.
No question about it.
I'm not sure whether every potential juror
in the veneer knew about it,
but they certainly, this was well known in the community.
And Judge Agostini took the position,
well, I'll try to see the jury.
And the question is, is there a taint here?
-: This isn't much different from the co-defendant case
that we decided.
-: Well, yes, I don't wanna get into that,
that co-defendant case theoretically is not in the record,
but I'm aware of it, obviously.
Gaziano: Well, it's precedent.
-: Yeah, it's precedent.
But in that one they had all the publicity
from the first trial, from this trial,
from this case.
This guy didn't have this.
But when this happened,
this was a major news event in Greenfield,
Franklin County, Massachusetts, no question about it.
And the jurors all knew about it.
And unless the court has any questions, I rest on my brief.
-: Okay, thank you.
Okay, attorney Von Flatern.
-: Good morning Chief Justice, members of the court,
Cynthia Von Flatern for the Northwestern District
for the Commonwealth.
Turning back to the first issue,
the Commonwealth would submit that this court should find,
as the motion judge did, that considered
in the totality of the circumstances,
the defendant's statement to Virginia Sheriffs
and to the state police,
that they were both voluntary
in the totality of the circumstances.
The defendant came into the interrogation room
in Virginia saying he wanted to give details.
He wanted to make a statement.
They attempted to give him Miranda warnings.
It was a very, as a judge found, conversational, cordial,
he was treated with the utmost of respect.
He knew the Miranda warnings and he recited them to them.
They gave them, again, of course.
And then there was this issue.
He sets it up and he says, he is looking to make a deal.
The police officer, or the sheriff,
summarizes what he has said,
because the defendant is talking about how much
he cares for the co-defendant.
He doesn't wanna see her get in trouble.
And he summarizes that statement.
And then he does have that one paragraph where
he is encouraging the defendant to speak and he says,
"We'll let your cooperation be known to the authorities,
to Massachusetts authorities."
And he is definitely encouraging him to speak.
He also says, "Well, this is your chance to talk."
And so of course there's case law about the now or never.
Did you set up now or never, but that wasn't the case.
He just encouraged him to speak.
And in fact, the defendant knew that he was going to have
the opportunity to talk to the state police.
And then with respect to the comment that the sheriff made
about encouraging the defendant to speak,
to help the co-defendant's soul,
the Commonwealth would submit, as Judge Agostini found,
that when he said soul, he was not referring
in a religious sense to the co-defendant's soul,
but really to her person.
After all, this was a woman who was still alive.
It wasn't like she was the victim and deceased,
and he was really referring in order to help the defendant.
There was no other talk about the defendant's religiosity
in this interview.
And actually, the state police asked about
whether he was religious, and he said, no,
he wasn't religious.
But something about he thought about going to the church
to get help because his grandfather had done that one time,
because they would give you food or something like that.
But it was clear that the defendant didn't have an attitude
that he was particularly religious
when he talked to Virginia authorities.
But what was especially clear, as this court can see,
is that the defendant was very interested
in having the co-defendant get the best deal that she could.
And his statements tried to minimize her participation
and put the onus on him.
And of course, the onus did need to be on him a lot.
But it also was, she was also a very active
co-defendant in this.
And that came out a little bit more
in the two hour interview with Mass State Police,
as they said, okay, now let's go over this again,
and let's really hear the truth on some of this.
And that was the time when he then did admit
that this was a joint,
there was a joint intent here to break into the home,
to case the home and to break into the home.
And that Ms. Smith, the co-defendant,
was very involved with assisting the defendant
with the murder of Mr. Hardy.
And also committing.
-: I'm sorry, is your position
that there was no deal in Virginia?
-: Yes, the position is that they said.
-: Your opposing counsel read us snippets of that transcript.
Why isn't that a deal?
I wanna protect Smith.
Will you help me?
And they essentially say,
if you tell us the truth, that's the way to go.
-: He, who is an experienced person
with the criminal justice system,
says he wants to make a deal and protect her,
and they encourage him in that.
But they don't in any way coerce him into that deal.
He wants to talk and they don't.
Wendlandt: So your position is there was a deal?
-: No, my position is not that there was a deal.
Wendlandt: I didn't think so.
-: They're encouraging him, but they don't make a deal,
if you tell us, we'll do this, or if you don't tell us,
we won't do this.
They merely, you know, when they came into it,
they were trying to just get the lay of the land with him.
And he explained to them, I have this warrant,
but he thought the warrant
was about stealing the grandmother's car.
-: Councilwoman, can I just interject
to follow up with Justice Wendlandt,
because attorney Maidman read this,
and I wanna reread it to you.
"You know what I mean?
It wasn't supposed to happen like that and stuff.
And so that's why I said,
'do you think after we talk
there's a way we could try to contact
the police department down there and arrange something?'"
That's his question to the sheriffs.
And they respond, "If you're honest with me
and you're telling me everything that's going on."
He responds, "All right, thank you."
They respond.
"Certainly we're talking with the police department
from Massachusetts now."
He responds, "All right, thank you."
And they respond, "And they want your cooperation."
So again, to your opposing counsel's point,
it's not like it's an explicit bargain for exchange,
but doesn't this come really, really close?
-: I think that the language,
and it is only on this page of a 58 page transcript,
that, if you read it not in the totality
of the circumstances, I think that they are
very encouraging of him, and they want to tell him
that they want him to cooperate, or they want him to speak,
and that they are going to convey that.
-: But if you are looking at
the totality of the circumstances,
and you're somebody that is laser focused
on protecting your girlfriend,
and you are just, you're listening
for the lever to be pulled and you hear that,
even if there's another 50 something odd pages of transcript
of this back and forth,
wouldn't that be the thing
that all he's listening for is that, that's all he needs?
-: I think, again, we can't take it out of the whole context,
including how they're treating him, his condition,
which was not on any drugs or alcohol,
not saying that he's hungry, or tired, or anything.
They're offering him food, they're offering him water.
I think in all of that, he's ready to speak
and he wants to be in control of the situation.
And they are encouraging him.
-: Does the totality help you when the statement,
"Well, we don't have the authority,"
is at the very end after they've already confessed?
-: Well, I don't think that it necessarily
helps the commonwealth when it comes
at the end of this statement.
But I don't think that, again,
they are encouraging him, and they did tell state police
that he was cooperative.
And state police say to him,
they've told us that you've been cooperative.
And he was treated well by all of these police.
-: I get what Judge Agostini found, and he said
this is an inquiry about whether his will was over born,
and here's somebody who wants to tell a story.
-: Right.
And they're not going to dissuade him from that.
And again, they're coming into it, they don't really know.
And he knows that they don't even know what it's about.
And they say, well there's a mistake.
Well, he says, well, this is more than a mistake.
So he is ready to speak with them at that point.
And you know, he also knows,
they've told him it's going to be recorded.
He knows that his rights are being protected,
and he can see that they're not overwhelming him.
-: Except he's doing this all
on account of his girlfriend, right?
So yes, he does want to talk,
but the reason, his motivation for talking,
is to protect his girlfriend.
-: Well, that's certainly a big motivation,
and he states that,
I think I would submit that a motivation is also
that he is aware of how much evidence there's going to be.
Maybe not all of it, but he is aware of what was done
and that they use those credit cards,
that they stole the victim's car, that there are forensics.
He knows, mentions he knows
there's going to be fingerprints,
he knows there's going to be DNA in the house.
And so it also is, I would submit,
he feels going to make it easier on him,
'cause he already recognizes how much trouble he's in
and how strong the case is.
-: So then going back to Justice Wendlandt's question,
was there a deal in Virginia?
-: No, I would say there was clearly no deal.
-: But did he think there was a deal in Virginia?
Von Flatern: No.
-: He didn't think there was a deal?
-: No, and he didn't have a deal
with the state police either.
-: Yeah, what about the whole cat out of bag,
break in the action analysis?
Can you explain that to me please?
-: Well, I would submit that there's no concern
if the first statement, which I would submit
is perfectly voluntary.
And with the second statement,
again, if he knows that his statement
hasn't particularly hurt him
because of the weight of the case against him already,
and that he has spun it in certain ways.
There's certain things that he said
that the Commonwealth would show were not true,
that would make it seem like they were
maybe a little less culpable.
So he's already done that.
So if the case against him is not totally
based on his statement to Virginia Police,
then the cat is really not out of the bag.
With respect to the excited utterance statement,
the Commonwealth would submit,
I think this case is quite unique in the fact
that Ms. Fisher was on the ground for 12 hours in her home,
that the attack had taken place,
and that the nurse, her nurse did not come for 12 hours.
I think that we would see this as an ongoing event
where she, the lights had been turned off,
the phones had been disabled,
the cell phones had been stolen,
and her husband was deceased right next to her.
She was on the floor paralyzed and then tried to go,
she went onto the porch and then back.
She's got a blanket over her.
It's obviously cold in the house.
And so when the nurse fortunately comes
because she had an appointment to come,
and Ms. Fisher says, "Cindy, is that you?
Invasion, ambulance."
and then some other statements that is certainly said
under the influence of the exciting event.
I don't think that the event had ended for Ms. Fisher
because she hadn't received any help
and she didn't know if she received help.
-: So is that the test for excited utterances
that you want us to adopt,
whether or not the victim has received help?
-: Well, I think the test is still
whether she was under the influence of the exciting event.
-: And are you aware of any cases that hold 12 hours later,
half a day later, that is an excited utterance?
-: I think you could have 11 hours,
and again, 12 hours obviously is a long time.
But I think in the very unique circumstances of this case,
I don't think that the time really matters
in this particular case.
-: But that's why I'm asking
for the test that you're proposing.
-: Yeah, I don't think the test necessarily means
when you get help, because sometimes you could
not need that much help.
But this lady obviously did,
given the nature of her injuries,
the severity of her injuries,
and everything else that was going on with her.
So in this particular case,
I think that that does matter.
And that also goes to whether the statement is testimonial.
You look at the severity of the injuries,
whether we know where the perpetrator is,
and she doesn't know that.
And so I think, and to whom the statement was made,
it was made to her care provider.
So those would all go in favor of the statement
being non testimonial.
And then I think, as Justice Georges indicates,
she's fighting for her life.
She's not trying to make a statement against anyone
in particular preserving her testimony at this point.
That's what I would submit in this particular case,
she's making it to her healthcare provider.
And also, I would say,
this statement is not very prejudicial to the defendant.
She says there's an invasion, that's obvious
given all the physical evidence, forensic evidence.
And then she asked for the ambulance.
She says she's dragged herself onto the porch.
She said that they tried to kill her,
but that's obvious as well.
And she says that she's tough.
So it's not particularly prejudicial,
but the Commonwealth would submit
that it was properly admitted, as Judge Agostini found
after allowing the motion in limine.
If there are no further questions, Commonwealth would rest.