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SJC-13217
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Commonwealth versus Joshua Hart.
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Okay, attorney Maidman.
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Good morning.
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Please the court, Stephen Maidman for Joshua Hart,
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the defendant.
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This case is primarily about
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whether the defendant's confessions were involuntary.
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I'd like to focus on that,
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and then I'll address the spontaneous utterances issue,
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and I'll rely on my brief for the remaining two issues.
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We respect to the confessions, the record,
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this is a case where you have
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two recorded confessions, one by Virginia Sheriffs
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and one by the Massachusetts State Police.
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So the record is clear what was said and wasn't said
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during the interrogations.
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The defendant was looking for a deal,
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and he thought he got a deal.
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His deal was, I'll tell you everything about what happened,
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you get protection, to use his word,
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protection for Ms. Smith, his girlfriend.
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And you're right, the record is clear about what was said
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and what was not said.
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And we've all read cases, and know cases
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that in a continuum, this doesn't seem to even come close,
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because they continue to say to him,
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we don't have authority to do anything.
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We don't have authority to give you immunity.
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We don't have authority to give a deal to your confederate.
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We can't do anything.
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The only thing you can do is tell us what you know.
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So when you look at the transcript of the interrogation,
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help me understand at what point the Q&A specifically
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that they say, "We're going to give her a deal if you talk."
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Well, let me first address
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your first part of your question.
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They didn't say, "You don't have a deal,"
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in the first confession until the end of the statement.
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And it's in my brief, everything's either in the brief
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or the transcript.
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They said, "You can try to work a deal with that, though.
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I won't discuss deals."
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That was at the very end after he spilled his guts.
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Okay.
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When was the deal struck?
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The deal was struck within the first
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couple minutes of the interrogation.
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It's on page 29 in my brief, or 54 the record pending,
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page seven of the original transcript.
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And the words, I quoted because
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when I read this, I was struck by it.
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It says, and this this is the Sheriff Funkeiser.
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"And all I can tell you is,
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the only way you're going to protect her,
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and protect her soul," and that's the religious issue,
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"and her wellbeing, and everything else
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is for you to be upfront with us and candid
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and take advantage of this opportunity."
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So that's the now or never claim.
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"Because if it's something you feel strongly about,
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and you're given this opportunity to speak freely
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and you don't take advantage of it,
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we don't want her to,
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you're telling me you that you don't want her involved.
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I want to take your word at it."
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And he answers, "'cause she wasn't, you know what I mean?
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It wasn't supposed to happen like that and stuff.
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So that's why I said, do you think after we talk
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there's a way we could try to contact
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the police department down there and arrange something?"
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And the sheriff answers, "If you're honest with me
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and you're telling me everything that's going on."
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Defendant says, "All right, thank you."
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And then to emphasize it further,
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or to encourage the defendant further,
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the sheriff goes, "Certainly we're talking
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with the police department from Massachusetts now."
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Defendant goes, all right, thank you.
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And they want your cooperation.
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If that isn't a deal, I mean maybe not pure
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offer and acceptance from the bar exam,
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but it's pretty close in my view.
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And I would suggest the court look at it that way.
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Especially look at it from the defendant's standpoint.
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This guy, after hearing this, he thought he had a deal.
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And that's what the record says.
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Well, I know there's another side to that,
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but the point I guess I keep coming back to
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is it seems pretty clearly that this defendant
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was looking to protect his girlfriend, his confederate,
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his co-defendant, what have you.
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That, again, going back to the cases
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that informed some of our analysis,
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this isn't one of these cases where they seemingly
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had to pull teeth.
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This person seemingly came in saying,
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"I want to talk because I'm motivated
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to protect my girlfriend here."
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So can you at least give me, if you could give me this.
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Is the entire voluntariness
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of the Massachusetts interrogation,
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does it rise or fall on whether or not
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the interview with the sheriff was good or not?
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No.
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And the reason I say that is that the Massachusetts Sheriff,
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Massachusetts State Troopers,
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they knew what happened in the first one.
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They had the tape recording, whether they listened to it
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or how much they listened to it,
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it's unclear in the record.
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But they knew what went on.
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And they certainly didn't say,
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"We understand that the sheriff
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said blah, blah, blah to you,
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and I want you to know, we're from Massachusetts,
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we're not giving you a deal.
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You have no deal.
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They should have told you you don't have a deal.
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They shouldn't have said this."
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That never happened.
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Is the cat out of the bag based upon a time lapse
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or is it based upon correcting the record?
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That's what I'm.
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[Defendant Judge Name] I'm sorry, Justice Gaziano?
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We have the cat out of the bag.
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[Defendant Judge Name] Yes, yes, yes.
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That's what you're referring to
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with the Massachusetts state police,
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and there's a 24 hour, almost exactly, delay between.
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And on the case law, what you found, Mr. Maidman,
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is the cat out of bag analysis based upon a temporal break?
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Or is there?
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No.
Please explain.
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It's not that,
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that's the break in the stream of events, judge.
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The can outta the bag actually originated
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in the federal system.
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And Massachusetts uses both tests.
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At least that's what it looks like from the case law.
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First question, was there a break in stream of events?
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Did he talk to a lawyer?
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Did he talk to his friends?
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All that.
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There's nothing in the record to even suggest that.
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This guy was held incommunicado, same jail, same everything.
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Okay.
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And whereas the cat outta bag analysis is, excuse me,
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did he think, was it futile for him to withhold evidence?
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Did he have anything to lose at that point?
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This guy, this is in the record,
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he was interrogated by the Harrisonburg Police Department
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for mugging someone at a mall to get money.
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And he told the Harrisburg Sheriffs,
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or Harrisburg Police Department,
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"I'm going to jail for murder."
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Okay, so we have the Virginia County folks
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do the soul, protect your soul inquiry.
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Then we have an interview by the locals for a mugging.
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Yeah, for a mugging.
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He ripped off her purse.
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Right.
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And then we had the state police, Mass state purse.
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State police, 24 hours later.
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They come down and they get pretty thorough.
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And this guy, and by the way,
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there were additional facts
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given to the Massachusetts State Police.
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It's pretty, I think a reasonable person
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looking at the record is gonna say,
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"This guy spilled his guts all over again and more."
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Where does it go, and I read judge Agostini's opinion,
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but where does it go in the overall voluntariness inquiry,
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which is something Justice Georges referred to,
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was his will over born, essentially?
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So we have someone who wants to cooperate.
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Well, his will.
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And then like I'm thinking of the classic cases,
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Novo and some of the other cases where they basically said,
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hey, you're gonna lose your kids.
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That type of coercion.
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He really, the record is clear,
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he wanted to confess for the deal.
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I don't think the record is so clear,
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and I think this is reasonable interpretation.
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"I'm here, I need to confess, period."
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I'm here because, the reason I wanna talk to you
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is to get protection for my girlfriend.
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And I think that's what the record says.
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And one last point on this,
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this court has warned the police,
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don't bargain with defendants over releasing loved ones.
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That's relatively clear.
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The case.
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I mean, our case law is a little stringent,
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because we say like, well, some trickery is okay.
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Oh, we definitely say that.
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There's a lot of fluff in the standard as far as coercion.
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No, you're absolutely right, Justice Gaziano.
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Minimization, et cetera.
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Minimization is bad until we say it's not bad.
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Yeah, that's correct.
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But that's why, we can talk about protecting your soul.
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We can talk about now or never, we can talk about
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about all these other things that went on,
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other bad things that went on.
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But it comes back to that this defendant
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thought he had a deal.
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That's the argument.
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That's why you focus more on the deal
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rather than the religious stuff.
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Yeah, and I mean.
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The minimization and the now or never.
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Judge Agostini, you're in the same position
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as Judge Agostini, in my view,
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except for the religious stuff.
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Because he questioned him at the motion hearing,
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and he said, "I find Sheriff Hancauser credible."
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Everything else, you're in the same position.
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I would suggest the record,
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you can make your own conclusion.
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But that's, I think that's pretty much what I wanted to say
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about the Virginia confessions.
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Unless the court has any question,
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lemme just one second here.
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No, I think I covered it.
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That's the argument.
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Now, as far as Ms. Fisher's statements
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to the healthcare workers, but let me begin.
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This was a terrible crime.
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Okay, I don't wanna minimize anything.
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But the question of "excited utterances,"
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if this court goes along with 12 hours from the event,
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this court is dramatically expanding the law
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of exciting utterances in the commonwealth of Massachusetts.
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There's a, I put a.
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Doesn't it go hand in glove with the first issue?
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Because given the amount of evidence in this case,
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as far as prejudicial error goes for excited utterance.
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Oh, yes, yes.
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Even if we agree with you, frankly.
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Yes, if the confessions come in,
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then why are we talking about it, et cetera, of course.
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But on the other hand, this 12 hours,
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I found a footnote in Mass practice,
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which lists five minutes, five seconds,
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and nowhere near do we get to 12 hours.
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There's the DC circuit case, though, that says 11.
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Okay.
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I mean, I didn't find that one.
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Well, it's cited by your opposing counsel.
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That's how I found it.
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I'm not that good.
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But the point is,
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the victim in this case was brutally mugged, attacked.
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And she's been on the floor, in various states of conscious.
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I mean, I don't wanna minimize that, she was in bad shape,
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but to say, 12 hours later,
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she couldn't reflect on what happened is,
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I just don't think that's what the hearsay rules
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are all about.
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But then you get to the second part, the second test,
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whether it was testimonial.
264
00:13:08.670 --> 00:13:10.470
First we got the Massachusetts State hearsay law,
265
00:13:10.470 --> 00:13:13.833
then we got the Crawford Analysis.
266
00:13:18.120 --> 00:13:22.593
But on the confrontation analysis,
267
00:13:23.910 --> 00:13:26.940
in looking at what we looked to as a substitute
268
00:13:26.940 --> 00:13:28.590
for trial testimony,
269
00:13:28.590 --> 00:13:31.830
taking what you have said a little bit before,
270
00:13:31.830 --> 00:13:36.270
this was an awful, brutal, vicious attack
271
00:13:36.270 --> 00:13:41.270
where an elderly woman in her home was there alone
272
00:13:42.690 --> 00:13:44.520
suffering from these injuries.
273
00:13:44.520 --> 00:13:47.220
And so when we talk about why it is
274
00:13:47.220 --> 00:13:51.060
that we look to the substitute,
275
00:13:51.060 --> 00:13:53.850
do you think she's really thinking and deliberating
276
00:13:53.850 --> 00:13:56.580
about preserving testimony down
277
00:13:56.580 --> 00:14:01.530
or that she's still suffering from these awful injuries
278
00:14:01.530 --> 00:14:03.930
when a healthcare worker comes in
279
00:14:03.930 --> 00:14:06.033
and asks her what happened?
280
00:14:06.870 --> 00:14:09.544
I think she's really saying,
281
00:14:09.544 --> 00:14:11.940
this is my personal opinion.
282
00:14:11.940 --> 00:14:13.597
I'm inferring it from the record.
283
00:14:13.597 --> 00:14:15.420
I guess I don't agree with you.
284
00:14:15.420 --> 00:14:18.030
I think she was report reporting what happened
285
00:14:18.030 --> 00:14:22.980
for the purposes of seeing her assailants
286
00:14:22.980 --> 00:14:23.813
brought to justice.
287
00:14:23.813 --> 00:14:25.143
That's my reaction to it.
288
00:14:26.194 --> 00:14:28.500
It certainly can be read that way, and again,
289
00:14:28.500 --> 00:14:30.660
we're looking, it doesn't matter what she's thinking,
290
00:14:30.660 --> 00:14:33.600
it matters what the objective listener would perceive.
291
00:14:33.600 --> 00:14:36.360
She certainly wasn't saying, "I need help."
292
00:14:36.360 --> 00:14:38.730
The ambulance is already on the way.
293
00:14:38.730 --> 00:14:41.070
This is not like the 911 call, send me an ambulance.
294
00:14:41.070 --> 00:14:42.900
I think we're looking to,
295
00:14:42.900 --> 00:14:45.720
when you look at the objectivity of it,
296
00:14:45.720 --> 00:14:47.550
she had crawled out on the porch.
297
00:14:47.550 --> 00:14:49.770
She had yelled out for help, no one had come,
298
00:14:49.770 --> 00:14:51.210
she'd come back in.
299
00:14:51.210 --> 00:14:54.900
Again, I'm just trying to look to the lens of how
300
00:14:54.900 --> 00:14:59.900
somebody that's in those dire straits would be thinking.
301
00:15:00.570 --> 00:15:03.870
I'm trying to preserve testimony down the road
302
00:15:03.870 --> 00:15:06.480
as opposed to, I'm just trying to stay alive.
303
00:15:06.480 --> 00:15:08.160
I don't think she thought about preserving testimony.
304
00:15:08.160 --> 00:15:10.920
I think she thought about, this is what the guy did to me
305
00:15:10.920 --> 00:15:12.420
so the cops can prosecute him.
306
00:15:13.370 --> 00:15:14.633
I don't think that in terms of,
307
00:15:14.633 --> 00:15:16.680
and obviously these were not police officers.
308
00:15:16.680 --> 00:15:17.850
You're reporting to the healthcare workers.
309
00:15:17.850 --> 00:15:22.850
Sure, but that also cuts against you, doesn't it?
310
00:15:24.030 --> 00:15:25.110
Yes, it does.
311
00:15:25.110 --> 00:15:28.740
But still, if I'm reporting,
312
00:15:28.740 --> 00:15:30.453
this is what these guys do to me,
313
00:15:31.770 --> 00:15:35.160
it certainly sounds testimonial to me.
314
00:15:35.160 --> 00:15:37.770
But that's the issue you have.
315
00:15:37.770 --> 00:15:38.880
That's the issue.
316
00:15:38.880 --> 00:15:42.420
But again, if it doesn't pass muster
317
00:15:42.420 --> 00:15:44.220
under the hearsay rules, you never get to the second,
318
00:15:44.220 --> 00:15:46.020
you never get to the Crawford issue.
319
00:15:47.160 --> 00:15:52.160
So again I would emphasize that this court needs to look at
320
00:15:54.919 --> 00:15:58.140
how this potentially could change the law in Massachusetts.
321
00:15:58.140 --> 00:15:59.430
And I don't think it's,
322
00:15:59.430 --> 00:16:02.490
every time that this court has addressed,
323
00:16:02.490 --> 00:16:05.040
or trial judges in my experience have addressed,
324
00:16:05.040 --> 00:16:07.693
or you addressed when you were a trial judge.
325
00:16:07.693 --> 00:16:09.427
The first question in your mind is,
326
00:16:09.427 --> 00:16:10.950
well, how many seconds later was it?
327
00:16:10.950 --> 00:16:13.440
This is not seconds, this is hours.
328
00:16:13.440 --> 00:16:16.080
So unless the court has any further questions on that,
329
00:16:16.080 --> 00:16:17.430
do you have questions?
330
00:16:17.430 --> 00:16:18.320
No, I don't.
331
00:16:18.320 --> 00:16:19.283
Okay.
332
00:16:19.283 --> 00:16:21.030
I guess the only thing I'd mention,
333
00:16:21.030 --> 00:16:23.460
one thing about the venue.
334
00:16:23.460 --> 00:16:25.470
These were very prominent citizens of the community.
335
00:16:25.470 --> 00:16:27.130
No question about it.
336
00:16:27.130 --> 00:16:31.740
I'm not sure whether every potential juror
337
00:16:31.740 --> 00:16:33.176
in the veneer knew about it,
338
00:16:33.176 --> 00:16:37.800
but they certainly, this was well known in the community.
339
00:16:37.800 --> 00:16:42.330
And Judge Agostini took the position,
340
00:16:42.330 --> 00:16:43.880
well, I'll try to see the jury.
341
00:16:45.008 --> 00:16:50.008
And the question is, is there a taint here?
342
00:16:54.570 --> 00:16:56.970
This isn't much different from the co-defendant case
343
00:16:56.970 --> 00:16:57.900
that we decided.
344
00:16:57.900 --> 00:17:00.771
Well, yes, I don't wanna get into that,
345
00:17:00.771 --> 00:17:02.040
that co-defendant case theoretically is not in the record,
346
00:17:02.040 --> 00:17:03.270
but I'm aware of it, obviously.
347
00:17:03.270 --> 00:17:04.290
Well, it's precedent.
348
00:17:04.290 --> 00:17:06.052
Yeah, it's precedent.
349
00:17:06.052 --> 00:17:09.280
But in that one they had all the publicity
350
00:17:13.740 --> 00:17:15.900
from the first trial, from this trial,
351
00:17:15.900 --> 00:17:16.773
from this case.
352
00:17:17.610 --> 00:17:18.570
This guy didn't have this.
353
00:17:18.570 --> 00:17:19.800
But when this happened,
354
00:17:19.800 --> 00:17:23.160
this was a major news event in Greenfield,
355
00:17:23.160 --> 00:17:26.100
Franklin County, Massachusetts, no question about it.
356
00:17:26.100 --> 00:17:27.813
And the jurors all knew about it.
357
00:17:30.270 --> 00:17:33.693
And unless the court has any questions, I rest on my brief.
358
00:17:34.980 --> 00:17:36.093
Okay, thank you.
359
00:17:39.330 --> 00:17:40.953
Okay, attorney Von Flatern.
360
00:17:46.642 --> 00:17:48.060
Good morning Chief Justice, members of the court,
361
00:17:48.060 --> 00:17:51.120
Cynthia Von Flatern for the Northwestern District
362
00:17:51.120 --> 00:17:52.740
for the Commonwealth.
363
00:17:52.740 --> 00:17:55.560
Turning back to the first issue,
364
00:17:55.560 --> 00:17:59.970
the Commonwealth would submit that this court should find,
365
00:17:59.970 --> 00:18:03.240
as the motion judge did, that considered
366
00:18:03.240 --> 00:18:05.880
in the totality of the circumstances,
367
00:18:05.880 --> 00:18:09.960
the defendant's statement to Virginia Sheriffs
368
00:18:09.960 --> 00:18:11.640
and to the state police,
369
00:18:11.640 --> 00:18:13.500
that they were both voluntary
370
00:18:13.500 --> 00:18:15.750
in the totality of the circumstances.
371
00:18:15.750 --> 00:18:19.560
The defendant came into the interrogation room
372
00:18:19.560 --> 00:18:22.620
in Virginia saying he wanted to give details.
373
00:18:22.620 --> 00:18:24.363
He wanted to make a statement.
374
00:18:25.560 --> 00:18:28.110
They attempted to give him Miranda warnings.
375
00:18:28.110 --> 00:18:32.640
It was a very, as a judge found, conversational, cordial,
376
00:18:32.640 --> 00:18:34.800
he was treated with the utmost of respect.
377
00:18:34.800 --> 00:18:39.030
He knew the Miranda warnings and he recited them to them.
378
00:18:41.700 --> 00:18:44.280
They gave them, again, of course.
379
00:18:44.280 --> 00:18:46.604
And then there was this issue.
380
00:18:46.604 --> 00:18:50.403
He sets it up and he says, he is looking to make a deal.
381
00:18:52.620 --> 00:18:57.510
The police officer, or the sheriff,
382
00:18:57.510 --> 00:18:59.520
summarizes what he has said,
383
00:18:59.520 --> 00:19:01.830
because the defendant is talking about how much
384
00:19:01.830 --> 00:19:03.360
he cares for the co-defendant.
385
00:19:03.360 --> 00:19:05.190
He doesn't wanna see her get in trouble.
386
00:19:05.190 --> 00:19:08.550
And he summarizes that statement.
387
00:19:08.550 --> 00:19:11.460
And then he does have that one paragraph where
388
00:19:11.460 --> 00:19:16.460
he is encouraging the defendant to speak and he says,
389
00:19:21.007 --> 00:19:24.270
"We'll let your cooperation be known to the authorities,
390
00:19:24.270 --> 00:19:25.650
to Massachusetts authorities."
391
00:19:25.650 --> 00:19:28.560
And he is definitely encouraging him to speak.
392
00:19:28.560 --> 00:19:33.390
He also says, "Well, this is your chance to talk."
393
00:19:33.390 --> 00:19:36.930
And so of course there's case law about the now or never.
394
00:19:36.930 --> 00:19:39.570
Did you set up now or never, but that wasn't the case.
395
00:19:39.570 --> 00:19:41.730
He just encouraged him to speak.
396
00:19:41.730 --> 00:19:44.280
And in fact, the defendant knew that he was going to have
397
00:19:44.280 --> 00:19:46.833
the opportunity to talk to the state police.
398
00:19:48.742 --> 00:19:51.630
And then with respect to the comment that the sheriff made
399
00:19:51.630 --> 00:19:55.470
about encouraging the defendant to speak,
400
00:19:55.470 --> 00:19:57.840
to help the co-defendant's soul,
401
00:19:57.840 --> 00:20:02.840
the Commonwealth would submit, as Judge Agostini found,
402
00:20:03.090 --> 00:20:05.490
that when he said soul, he was not referring
403
00:20:05.490 --> 00:20:08.610
in a religious sense to the co-defendant's soul,
404
00:20:08.610 --> 00:20:10.410
but really to her person.
405
00:20:10.410 --> 00:20:12.600
After all, this was a woman who was still alive.
406
00:20:12.600 --> 00:20:16.860
It wasn't like she was the victim and deceased,
407
00:20:16.860 --> 00:20:21.860
and he was really referring in order to help the defendant.
408
00:20:21.930 --> 00:20:26.190
There was no other talk about the defendant's religiosity
409
00:20:26.190 --> 00:20:28.451
in this interview.
410
00:20:28.451 --> 00:20:31.320
And actually, the state police asked about
411
00:20:31.320 --> 00:20:34.050
whether he was religious, and he said, no,
412
00:20:34.050 --> 00:20:34.890
he wasn't religious.
413
00:20:34.890 --> 00:20:37.980
But something about he thought about going to the church
414
00:20:37.980 --> 00:20:41.010
to get help because his grandfather had done that one time,
415
00:20:41.010 --> 00:20:43.200
because they would give you food or something like that.
416
00:20:43.200 --> 00:20:48.000
But it was clear that the defendant didn't have an attitude
417
00:20:48.000 --> 00:20:50.040
that he was particularly religious
418
00:20:50.040 --> 00:20:52.110
when he talked to Virginia authorities.
419
00:20:52.110 --> 00:20:56.250
But what was especially clear, as this court can see,
420
00:20:56.250 --> 00:20:59.040
is that the defendant was very interested
421
00:20:59.040 --> 00:21:03.780
in having the co-defendant get the best deal that she could.
422
00:21:03.780 --> 00:21:07.350
And his statements tried to minimize her participation
423
00:21:07.350 --> 00:21:09.150
and put the onus on him.
424
00:21:09.150 --> 00:21:12.150
And of course, the onus did need to be on him a lot.
425
00:21:12.150 --> 00:21:16.500
But it also was, she was also a very active
426
00:21:16.500 --> 00:21:17.790
co-defendant in this.
427
00:21:17.790 --> 00:21:20.329
And that came out a little bit more
428
00:21:20.329 --> 00:21:23.460
in the two hour interview with Mass State Police,
429
00:21:23.460 --> 00:21:26.863
as they said, okay, now let's go over this again,
430
00:21:26.863 --> 00:21:30.300
and let's really hear the truth on some of this.
431
00:21:30.300 --> 00:21:33.240
And that was the time when he then did admit
432
00:21:33.240 --> 00:21:36.060
that this was a joint,
433
00:21:36.060 --> 00:21:39.300
there was a joint intent here to break into the home,
434
00:21:39.300 --> 00:21:41.700
to case the home and to break into the home.
435
00:21:41.700 --> 00:21:43.830
And that Ms. Smith, the co-defendant,
436
00:21:43.830 --> 00:21:47.873
was very involved with assisting the defendant
437
00:21:47.873 --> 00:21:49.722
with the murder of Mr. Hardy.
438
00:21:49.722 --> 00:21:51.720
And also committing.
439
00:21:51.720 --> 00:21:52.950
I'm sorry, is your position
440
00:21:52.950 --> 00:21:54.753
that there was no deal in Virginia?
441
00:21:56.610 --> 00:22:00.120
Yes, the position is that they said.
442
00:22:00.120 --> 00:22:02.680
Your opposing counsel read us snippets of that transcript.
443
00:22:02.680 --> 00:22:04.043
Why isn't that a deal?
444
00:22:04.043 --> 00:22:06.183
I wanna protect Smith.
445
00:22:08.400 --> 00:22:09.660
Will you help me?
446
00:22:09.660 --> 00:22:10.860
And they essentially say,
447
00:22:10.860 --> 00:22:14.055
if you tell us the truth, that's the way to go.
448
00:22:14.055 --> 00:22:17.610
He, who is an experienced person
449
00:22:17.610 --> 00:22:18.810
with the criminal justice system,
450
00:22:18.810 --> 00:22:23.730
says he wants to make a deal and protect her,
451
00:22:23.730 --> 00:22:26.100
and they encourage him in that.
452
00:22:26.100 --> 00:22:31.100
But they don't in any way coerce him into that deal.
453
00:22:32.010 --> 00:22:34.080
He wants to talk and they don't.
454
00:22:34.080 --> 00:22:35.920
So your position is there was a deal?
455
00:22:35.920 --> 00:22:38.610
No, my position is not that there was a deal.
456
00:22:38.610 --> 00:22:39.443
I didn't think so.
457
00:22:39.443 --> 00:22:41.790
They're encouraging him, but they don't make a deal,
458
00:22:41.790 --> 00:22:44.820
if you tell us, we'll do this, or if you don't tell us,
459
00:22:44.820 --> 00:22:45.862
we won't do this.
460
00:22:45.862 --> 00:22:49.290
They merely, you know, when they came into it,
461
00:22:49.290 --> 00:22:51.810
they were trying to just get the lay of the land with him.
462
00:22:51.810 --> 00:22:55.050
And he explained to them, I have this warrant,
463
00:22:55.050 --> 00:22:56.700
but he thought the warrant
464
00:22:56.700 --> 00:22:59.550
was about stealing the grandmother's car.
465
00:22:59.550 --> 00:23:01.410
Councilwoman, can I just interject
466
00:23:01.410 --> 00:23:02.700
to follow up with Justice Wendlandt,
467
00:23:02.700 --> 00:23:06.930
because attorney Maidman read this,
468
00:23:06.930 --> 00:23:08.403
and I wanna reread it to you.
469
00:23:11.107 --> 00:23:12.000
"You know what I mean?
470
00:23:12.000 --> 00:23:14.820
It wasn't supposed to happen like that and stuff.
471
00:23:14.820 --> 00:23:15.987
And so that's why I said,
472
00:23:15.987 --> 00:23:18.540
'do you think after we talk
473
00:23:18.540 --> 00:23:20.610
there's a way we could try to contact
474
00:23:20.610 --> 00:23:23.910
the police department down there and arrange something?'"
475
00:23:23.910 --> 00:23:26.160
That's his question to the sheriffs.
476
00:23:26.160 --> 00:23:28.590
And they respond, "If you're honest with me
477
00:23:28.590 --> 00:23:31.230
and you're telling me everything that's going on."
478
00:23:31.230 --> 00:23:33.436
He responds, "All right, thank you."
479
00:23:33.436 --> 00:23:35.137
They respond.
480
00:23:35.137 --> 00:23:37.680
"Certainly we're talking with the police department
481
00:23:37.680 --> 00:23:39.900
from Massachusetts now."
482
00:23:39.900 --> 00:23:42.540
He responds, "All right, thank you."
483
00:23:42.540 --> 00:23:46.797
And they respond, "And they want your cooperation."
484
00:23:47.700 --> 00:23:52.530
So again, to your opposing counsel's point,
485
00:23:52.530 --> 00:23:55.620
it's not like it's an explicit bargain for exchange,
486
00:23:55.620 --> 00:23:59.010
but doesn't this come really, really close?
487
00:23:59.010 --> 00:24:00.480
I think that the language,
488
00:24:00.480 --> 00:24:04.867
and it is only on this page of a 58 page transcript,
489
00:24:04.867 --> 00:24:08.700
that, if you read it not in the totality
490
00:24:08.700 --> 00:24:10.380
of the circumstances, I think that they are
491
00:24:10.380 --> 00:24:13.410
very encouraging of him, and they want to tell him
492
00:24:13.410 --> 00:24:17.190
that they want him to cooperate, or they want him to speak,
493
00:24:17.190 --> 00:24:19.020
and that they are going to convey that.
494
00:24:19.020 --> 00:24:20.250
But if you are looking at
495
00:24:20.250 --> 00:24:21.960
the totality of the circumstances,
496
00:24:21.960 --> 00:24:24.699
and you're somebody that is laser focused
497
00:24:24.699 --> 00:24:27.030
on protecting your girlfriend,
498
00:24:27.030 --> 00:24:29.040
and you are just, you're listening
499
00:24:29.040 --> 00:24:33.150
for the lever to be pulled and you hear that,
500
00:24:33.150 --> 00:24:37.650
even if there's another 50 something odd pages of transcript
501
00:24:37.650 --> 00:24:39.150
of this back and forth,
502
00:24:39.150 --> 00:24:40.920
wouldn't that be the thing
503
00:24:40.920 --> 00:24:43.603
that all he's listening for is that, that's all he needs?
504
00:24:43.603 --> 00:24:48.603
I think, again, we can't take it out of the whole context,
505
00:24:49.980 --> 00:24:52.830
including how they're treating him, his condition,
506
00:24:52.830 --> 00:24:55.890
which was not on any drugs or alcohol,
507
00:24:55.890 --> 00:24:58.740
not saying that he's hungry, or tired, or anything.
508
00:24:58.740 --> 00:25:01.500
They're offering him food, they're offering him water.
509
00:25:01.500 --> 00:25:05.520
I think in all of that, he's ready to speak
510
00:25:05.520 --> 00:25:07.920
and he wants to be in control of the situation.
511
00:25:07.920 --> 00:25:09.390
And they are encouraging him.
512
00:25:09.390 --> 00:25:12.847
Does the totality help you when the statement,
513
00:25:12.847 --> 00:25:14.850
"Well, we don't have the authority,"
514
00:25:14.850 --> 00:25:17.400
is at the very end after they've already confessed?
515
00:25:18.542 --> 00:25:20.850
Well, I don't think that it necessarily
516
00:25:20.850 --> 00:25:24.780
helps the commonwealth when it comes
517
00:25:24.780 --> 00:25:26.340
at the end of this statement.
518
00:25:26.340 --> 00:25:28.553
But I don't think that, again,
519
00:25:28.553 --> 00:25:33.553
they are encouraging him, and they did tell state police
520
00:25:34.920 --> 00:25:36.030
that he was cooperative.
521
00:25:36.030 --> 00:25:37.650
And state police say to him,
522
00:25:37.650 --> 00:25:39.724
they've told us that you've been cooperative.
523
00:25:39.724 --> 00:25:44.724
And he was treated well by all of these police.
524
00:25:46.029 --> 00:25:49.500
I get what Judge Agostini found, and he said
525
00:25:49.500 --> 00:25:52.590
this is an inquiry about whether his will was over born,
526
00:25:52.590 --> 00:25:56.067
and here's somebody who wants to tell a story.
527
00:25:56.067 --> 00:25:56.971
Right.
528
00:25:56.971 --> 00:26:00.930
And they're not going to dissuade him from that.
529
00:26:00.930 --> 00:26:03.069
And again, they're coming into it, they don't really know.
530
00:26:03.069 --> 00:26:06.420
And he knows that they don't even know what it's about.
531
00:26:06.420 --> 00:26:09.750
And they say, well there's a mistake.
532
00:26:09.750 --> 00:26:12.450
Well, he says, well, this is more than a mistake.
533
00:26:12.450 --> 00:26:16.980
So he is ready to speak with them at that point.
534
00:26:16.980 --> 00:26:19.260
And you know, he also knows,
535
00:26:19.260 --> 00:26:21.150
they've told him it's going to be recorded.
536
00:26:21.150 --> 00:26:24.780
He knows that his rights are being protected,
537
00:26:24.780 --> 00:26:28.530
and he can see that they're not overwhelming him.
538
00:26:28.530 --> 00:26:29.980
Except he's doing this all
539
00:26:29.980 --> 00:26:32.010
on account of his girlfriend, right?
540
00:26:32.010 --> 00:26:34.470
So yes, he does want to talk,
541
00:26:34.470 --> 00:26:38.048
but the reason, his motivation for talking,
542
00:26:38.048 --> 00:26:40.530
is to protect his girlfriend.
543
00:26:40.530 --> 00:26:42.840
Well, that's certainly a big motivation,
544
00:26:42.840 --> 00:26:44.250
and he states that,
545
00:26:44.250 --> 00:26:46.740
I think I would submit that a motivation is also
546
00:26:46.740 --> 00:26:49.511
that he is aware of how much evidence there's going to be.
547
00:26:49.511 --> 00:26:54.511
Maybe not all of it, but he is aware of what was done
548
00:26:55.110 --> 00:26:56.850
and that they use those credit cards,
549
00:26:56.850 --> 00:27:00.300
that they stole the victim's car, that there are forensics.
550
00:27:00.300 --> 00:27:02.730
He knows, mentions he knows
551
00:27:02.730 --> 00:27:04.903
there's going to be fingerprints,
552
00:27:04.903 --> 00:27:06.420
he knows there's going to be DNA in the house.
553
00:27:06.420 --> 00:27:09.620
And so it also is, I would submit,
554
00:27:09.620 --> 00:27:12.377
he feels going to make it easier on him,
555
00:27:12.377 --> 00:27:16.605
'cause he already recognizes how much trouble he's in
556
00:27:16.605 --> 00:27:18.960
and how strong the case is.
557
00:27:18.960 --> 00:27:21.810
So then going back to Justice Wendlandt's question,
558
00:27:21.810 --> 00:27:23.880
was there a deal in Virginia?
559
00:27:23.880 --> 00:27:26.610
No, I would say there was clearly no deal.
560
00:27:26.610 --> 00:27:28.320
But did he think there was a deal in Virginia?
561
00:27:28.320 --> 00:27:29.153
No.
562
00:27:29.153 --> 00:27:29.986
He didn't think there was a deal?
563
00:27:29.986 --> 00:27:31.080
No, and he didn't have a deal
564
00:27:31.080 --> 00:27:33.120
with the state police either.
565
00:27:33.120 --> 00:27:35.850
Yeah, what about the whole cat out of bag,
566
00:27:35.850 --> 00:27:37.946
break in the action analysis?
567
00:27:37.946 --> 00:27:40.320
Can you explain that to me please?
568
00:27:40.320 --> 00:27:42.720
Well, I would submit that there's no concern
569
00:27:42.720 --> 00:27:45.780
if the first statement, which I would submit
570
00:27:45.780 --> 00:27:47.550
is perfectly voluntary.
571
00:27:47.550 --> 00:27:49.410
And with the second statement,
572
00:27:49.410 --> 00:27:53.790
again, if he knows that his statement
573
00:27:53.790 --> 00:27:55.230
hasn't particularly hurt him
574
00:27:55.230 --> 00:27:59.373
because of the weight of the case against him already,
575
00:28:00.300 --> 00:28:03.930
and that he has spun it in certain ways.
576
00:28:03.930 --> 00:28:05.460
There's certain things that he said
577
00:28:05.460 --> 00:28:08.310
that the Commonwealth would show were not true,
578
00:28:08.310 --> 00:28:10.860
that would make it seem like they were
579
00:28:10.860 --> 00:28:12.540
maybe a little less culpable.
580
00:28:12.540 --> 00:28:14.010
So he's already done that.
581
00:28:14.010 --> 00:28:17.760
So if the case against him is not totally
582
00:28:17.760 --> 00:28:20.403
based on his statement to Virginia Police,
583
00:28:20.403 --> 00:28:22.983
then the cat is really not out of the bag.
584
00:28:27.270 --> 00:28:30.990
With respect to the excited utterance statement,
585
00:28:30.990 --> 00:28:32.160
the Commonwealth would submit,
586
00:28:32.160 --> 00:28:37.160
I think this case is quite unique in the fact
587
00:28:37.380 --> 00:28:42.380
that Ms. Fisher was on the ground for 12 hours in her home,
588
00:28:43.410 --> 00:28:45.180
that the attack had taken place,
589
00:28:45.180 --> 00:28:49.996
and that the nurse, her nurse did not come for 12 hours.
590
00:28:49.996 --> 00:28:54.996
I think that we would see this as an ongoing event
591
00:28:55.590 --> 00:29:00.590
where she, the lights had been turned off,
592
00:29:00.660 --> 00:29:02.460
the phones had been disabled,
593
00:29:02.460 --> 00:29:04.620
the cell phones had been stolen,
594
00:29:04.620 --> 00:29:08.010
and her husband was deceased right next to her.
595
00:29:08.010 --> 00:29:11.550
She was on the floor paralyzed and then tried to go,
596
00:29:11.550 --> 00:29:13.740
she went onto the porch and then back.
597
00:29:13.740 --> 00:29:15.750
She's got a blanket over her.
598
00:29:15.750 --> 00:29:18.600
It's obviously cold in the house.
599
00:29:18.600 --> 00:29:23.190
And so when the nurse fortunately comes
600
00:29:23.190 --> 00:29:25.140
because she had an appointment to come,
601
00:29:25.140 --> 00:29:28.770
and Ms. Fisher says, "Cindy, is that you?
602
00:29:28.770 --> 00:29:30.750
Invasion, ambulance."
603
00:29:30.750 --> 00:29:35.585
and then some other statements that is certainly said
604
00:29:35.585 --> 00:29:38.790
under the influence of the exciting event.
605
00:29:38.790 --> 00:29:42.660
I don't think that the event had ended for Ms. Fisher
606
00:29:42.660 --> 00:29:45.150
because she hadn't received any help
607
00:29:45.150 --> 00:29:47.053
and she didn't know if she received help.
608
00:29:47.053 --> 00:29:48.180
So is that the test for excited utterances
609
00:29:48.180 --> 00:29:49.290
that you want us to adopt,
610
00:29:49.290 --> 00:29:52.650
whether or not the victim has received help?
611
00:29:52.650 --> 00:29:55.350
Well, I think the test is still
612
00:29:55.350 --> 00:29:58.680
whether she was under the influence of the exciting event.
613
00:29:58.680 --> 00:30:01.950
And are you aware of any cases that hold 12 hours later,
614
00:30:01.950 --> 00:30:05.430
half a day later, that is an excited utterance?
615
00:30:05.430 --> 00:30:08.430
I think you could have 11 hours,
616
00:30:08.430 --> 00:30:12.210
and again, 12 hours obviously is a long time.
617
00:30:12.210 --> 00:30:15.660
But I think in the very unique circumstances of this case,
618
00:30:15.660 --> 00:30:19.260
I don't think that the time really matters
619
00:30:19.260 --> 00:30:20.888
in this particular case.
620
00:30:20.888 --> 00:30:22.410
But that's why I'm asking
621
00:30:22.410 --> 00:30:23.940
for the test that you're proposing.
622
00:30:23.940 --> 00:30:25.711
Yeah, I don't think the test necessarily means
623
00:30:25.711 --> 00:30:28.958
when you get help, because sometimes you could
624
00:30:28.958 --> 00:30:32.070
not need that much help.
625
00:30:32.070 --> 00:30:33.990
But this lady obviously did,
626
00:30:33.990 --> 00:30:35.520
given the nature of her injuries,
627
00:30:35.520 --> 00:30:36.990
the severity of her injuries,
628
00:30:36.990 --> 00:30:39.570
and everything else that was going on with her.
629
00:30:39.570 --> 00:30:40.860
So in this particular case,
630
00:30:40.860 --> 00:30:43.680
I think that that does matter.
631
00:30:43.680 --> 00:30:46.980
And that also goes to whether the statement is testimonial.
632
00:30:46.980 --> 00:30:49.560
You look at the severity of the injuries,
633
00:30:49.560 --> 00:30:52.140
whether we know where the perpetrator is,
634
00:30:52.140 --> 00:30:54.240
and she doesn't know that.
635
00:30:54.240 --> 00:30:59.240
And so I think, and to whom the statement was made,
636
00:31:00.210 --> 00:31:02.190
it was made to her care provider.
637
00:31:02.190 --> 00:31:04.890
So those would all go in favor of the statement
638
00:31:04.890 --> 00:31:06.810
being non testimonial.
639
00:31:06.810 --> 00:31:11.810
And then I think, as Justice Georges indicates,
640
00:31:12.090 --> 00:31:13.740
she's fighting for her life.
641
00:31:13.740 --> 00:31:18.740
She's not trying to make a statement against anyone
642
00:31:20.760 --> 00:31:24.360
in particular preserving her testimony at this point.
643
00:31:24.360 --> 00:31:28.020
That's what I would submit in this particular case,
644
00:31:28.020 --> 00:31:30.423
she's making it to her healthcare provider.
645
00:31:31.560 --> 00:31:34.140
And also, I would say,
646
00:31:34.140 --> 00:31:37.383
this statement is not very prejudicial to the defendant.
647
00:31:38.261 --> 00:31:41.427
She says there's an invasion, that's obvious
648
00:31:41.427 --> 00:31:45.120
given all the physical evidence, forensic evidence.
649
00:31:45.120 --> 00:31:48.300
And then she asked for the ambulance.
650
00:31:48.300 --> 00:31:51.150
She says she's dragged herself onto the porch.
651
00:31:51.150 --> 00:31:54.033
She said that they tried to kill her,
652
00:31:54.900 --> 00:31:57.750
but that's obvious as well.
653
00:31:57.750 --> 00:31:59.520
And she says that she's tough.
654
00:31:59.520 --> 00:32:02.820
So it's not particularly prejudicial,
655
00:32:02.820 --> 00:32:05.616
but the Commonwealth would submit
656
00:32:05.616 --> 00:32:07.680
that it was properly admitted, as Judge Agostini found
657
00:32:07.680 --> 00:32:10.023
after allowing the motion in limine.
658
00:32:11.700 --> 00:32:14.650
If there are no further questions, Commonwealth would rest.