-: SJC-13231 Commonwealth versus Brittany Smith.
-: Okay, Attorney Shea.
-: Good morning, Your Honors.
Richard Shea for Brittany Smith.
The issue I'd like to address this morning
is the denial of the motion for change of venue.
It's clear from the case law
that the issue of change of venue
is to be reviewed for the totality of the circumstances.
-: And when we review it on appeal,
what standard do we use?
Do we use a de novo standard
or do we review this for abuse of discretion?
-: The case law in the Commonwealth says abuse of discretion.
I submitted a 16L letter a week or two ago
which quoted the Shepherd versus Maxwell case
from the US Supreme Court,
which states that an appellate court
should give an independent evaluation of the circumstances,
so there is a somewhat heightened review of appellate.
-: So the Maxwell versus Shepherd, you're saying,
says there should be a heightened review
or a de novo review?
Attorney Shea: It says an independent evaluation
of the circumstances.
-: Independent evaluation, okay.
-: Yes.
And I think that that is reflected
in this court's cases implicitly
because the cases have gone into a lot of detail
in analyzing the statistics, and the circumstances,
and the voir dire, and so forth
beyond just an ordinary review saying,
well, the voir dire of the potential jurors was adequate.
In this case,
there are a number of factors
that have been identified in the case law,
which are to be looked at.
The cases say that the adequacy of the voir dire
is the most important factor,
but it's not the only factor.
And I'm not challenging the judge's preparation
for the voir dire,
the questionnaire, the questions,
the opportunity of the attorneys to ask questions.
Excuse me.
The individual answers
as accepted by the judge for the seated jurors,
I wouldn't challenge them individually.
However-
-: That's pretty difficult then.
If you're not gonna challenge individually,
don't you concede the first step of the analysis?
I don't think I follow where you're going with that.
-: Well, the adequacy of the voir dire is only one factor.
An important factor also identified in the cases,
I think, Skilling versus United States sets them out
and other cases have repeated them.
The extent of pretrial publicity as shown on the record.
And here,
we have the trial attorney submitted two affidavits,
one just before the Hart trial
and one just before the Smith trial
with many, many copies of pretrial publicity.
The somewhat sensational-
-: Well, you don't argue presumptive prejudice, Mr. Shea.
Correct?
Attorney Shea: I'm sorry?
-: You do not argue presumptive prejudice?
-: I'm not arguing presumptive prejudice.
I shouldn't say sensational.
I would say very emotionally charged.
-: Sure, given the nature of the crime.
-: Yes,
and the emotionally charged nature of the crime
is reflected throughout the voir dire.
The judge admitted,
I mean, the jurors kept bringing it up.
And the judge would repeatedly say,
yeah, we recognize this is horrific,
but we want to inquire
to see if you can put aside your emotions
and decide the case impartially on that.
-: And you think that that went all right?
You're not challenging those individual responses.
-: The problem with that is
the cases also say
that where there is a high percentage of jurors
who have prior knowledge
and of jurors who are excused for bias
based on prior knowledge,
there is a danger
that even though jurors express lack of bias
and it was so found by the judge that the,
I think the (indistinct) case
says there remains a shadow of a doubt
about the impartiality of the jurors
who were seated in the Morales case.
-: But I'm confused.
If you're not making the presumptive prejudice argument
and you're not challenging the individual jurors,
is there any case like this
where it fits in between one of those two categories?
If again, you're not challenging presumptive prejudice
and you're saying that the individual jurors
are properly seated,
and we should nonetheless
still have had it changed in venue?
-: I'm not saying that they were properly seated.
I'm saying that the judge did not,
in the individual voir dires,
I would not challenge on appeal an abusive discussion
in finding that juror based upon the answers.
-: Well, I thought we were going to do this on our own,
like evaluate everything independently?
-: Well, yes.
I'm not arguing the individual jurors
and the judge's findings that they could be seated.
I'm arguing that in this case,
there were 134 jurors called.
The 30 of them were excused without any inquiry
into whether or not that they knew anything about the case,
which leaves 104.
And of those,
there was 92 had prior knowledge of the case,
which is 90% of the venire,
which is an extremely high number.
-: Mr. Shea,
I understand you're asking us
to take a holistic view of this
and then you focus on the 90%, 10%,
and then as it breaks down,
11 seated that knew something about the case,
three that didn't.
In your guidance,
can you tell us cases that approach,
that use this granular view of these numbers
where they say go, no go based upon change of venue
where the judge should have just said,
all right, I've seen enough, I can't get a fair jury.
What's the closest case?
How can you help us in that?
-: I don't have a case in this court
where there's been a reversal on that basis.
The only reversal in recent history that I know of
was in the Toolen case,
which was unique in that the judge
did not individually question for the seated jurors.
But I also note that only 45% of the jurors
in the Toolen case,
of those questioned,
had heard, had read of the case,
which is a rather significant contrast
to the 90% in this case,
which again,
it was an an extremely well-publicized
and emotionally charged case when it was reported.
When it came time for the trial,
there was a resurgence of publicity,
which is an important factor.
-: So do you think those numbers in and of themselves,
Mr. Shea, would lead you to the conclusion
or should have led the judge to the conclusion
that he could not pick a jury,
a fair jury,
even doing the best that he could
with a questionnaire and appropriate questions?
-: That's one of the factors.
Another important factor, which I do emphasize,
is the fact that Hart went on trial
just before Brittany Smith,
and he was convicted,
and it was well-publicized
that he was convicted on April 13th.
Her empanelment began on the 24th.
We had three jurors who were seated
who knew of the Hart trial.
One of them had acknowledged that he knew the verdict.
The other said they didn't know,
but as one of the jurors questioned,
one of the others not seated who was questioned said,
"I knew of the trial, I didn't know the outcome,
but I can figure it out.
I would've heard about it if he had been acquitted."
So it had a danger of the knowledge of the Hart trial
seeping into the jury deliberations in this case.
-: When juror number four,
juror number four is one of the jurors
who's heard about the case.
Were there peremptories left
when juror number four is picked?
Attorney Shea: No.
-: So they're out of peremptories at that point?
-: He ran out of peremptories
and she requested more and the judge denied it.
-: Okay, so again,
you're sure on juror four,
she had no peremptories left at that point.
-: Juror four is the very last one seated.
She had no peremptories left at that point.
Yeah, the clerk states that on the record.
-: But you're not arguing
that there's a problem with the seating of juror four?
-: No.
Justice Kafker: Why not?
-: I'm not arguing the original.
-: Well, it's just change of venues
designed to prevent the seating of jurors
who are problematic
in a case in which you're not challenging
any of the seatings,
including of juror four who actually had heard the verdict.
It's just hard to sort of understand all the logic of that.
-: I did not know that juror four had known of the verdict.
That must be my error.
-: He had heard.
I'm just reading from the Commonwealth's footnote.
He had heard
that there had been a conviction in a prior case,
but did not follow it closely
and would judge this case separately.
Transcript two.
-: Transcript two?
Justice Kafker: Transcript volume two.
-: It was transcript volume four
in which the last juror was seated.
-: I'm not sure you're talking about the same juror then
'cause juror four is in-
-: He may be talking about seat four
versus juror number four.
That might be the discrepancy.
-: Yeah.
-: I think that might be what we're talking about,
two different things.
-: I'll stand by what the transcript says in volume four
about the last juror seated after she had-
-: I think I have a general sense
and I think we all do,
I don't wanna speak for anybody,
but of your argument,
which is that you're taking on,
as Justice Gaziano said,
a holistic approach to this
and that you are asking us to look at it that way.
I'm wondering, in light of the amount of time,
if you could address your next two issues
regarding sufficiency of the evidence.
-: Well, the sufficiency of the evidence
with respect to Mr. Harty was
that they were planning to steal a car,
and they planned a home invasion,
and they were going to either scare or hurt the inhabitants
so that they could steal money in credit cards.
I think the evidence is clear
that when they entered the house,
she did not,
neither Hart nor she
said that they had an intention to kill Mr. Harty.
Hart, according to the statements,
Hart went immediately to Mr. Harty and began stabbing.
And Ms. Smith had followed him into the house
and then he gave directions
for her to attack the woman in the wheelchair.
-: And did she follow that?
-: So, she did not.
So there's no evidence that she had premeditation
to kill Mr. Harty,
at least that she lacked the malice for the other two.
-: I think the Commonwealth may have tried this one
on a joint venture theory?
Attorney Shea: Yes.
-: So did she know about Hart's possession of the knife?
Attorney Shea: Yes, she did.
-: Okay.
-: With respect to the premeditated murder of Ms. Fisher,
she did not,
she testified that she did not intend to kill her,
that she followed his directions
and the worst thing she did was stab at the side,
but didn't penetrate the clothing.
-: And didn't the medical examiner say that she died,
that there is a stab wound to her lung, I thought?
Or am I mixing that up with the first person?
-: There is, yes. -: Oh, there was, okay.
-: Yeah.
That could have been inflicted by him
because he began stabbing her
after my client said she couldn't do it
and threw the knife on the couch.
And then he picked it up and continued
and sent her off to steal things
from other parts of the house.
-: Can I ask you one last,
just, sorry, were you done on that?
-: Yes, thanks.
-: I don't understand why this is an abuse of discretion.
Have you read the Tsarnaev opinion to this,
the US Supreme Court's decision, Tsarnaev?
'Cause they're emphasizing
that this is a discretionary choice throughout the opinion.
And Shepherd, if I remember correctly,
that's Dr. Shepherd.
That's like a 40 or 50 year old case, right?
-: Yes, I have not read the Tsarnaev.
-: Okay.
-: I think the last point I'd like to make is
that 64% of those who had knowledge,
prior knowledge coming into the courthouse
were excused for bias,
which is another high number to be contrasted with
what I quoted in the Angiulo opinion
where it was 47% of the venire
were claimed to have knowledge of the defendant.
I think I'm incorrect
relying on not the percentage of the venire.
It would be the percentage of those excused for bias.
I believe that's the only additional point
I wanted to make.
Thank you.
-: Thank you. -: Thank you.
-: Okay, Attorney Von Flatern.
-: Good morning, Madame Chief Justice,
members of the court.
Cynthia Von Flatern,
Assistant District Attorney
Northwestern District for the Commonwealth.
Starting with issue number one,
the Commonwealth would submit
that there was neither prejudicial
or presumptive prejudice in this case
or actual prejudice in finding a impartial jury.
The standard of review is abuse of discretion
and in this case,
the judge had wide discretion
and used it carefully to find an unbiased
and fair impartial jury.
I think if you will look at the numbers in this case,
the jurors, there were 134 jurors.
Those that were excused
because they had a medical appointment
or medical issue or something like that,
we can't infer that they were biased
or knew something about the case
due to prejudicial publicity.
The judge conducted a voir dire of all of those individuals.
And in fact, I think in reviewing this case,
I think there were only about 25 jurors
that said that did know about the case
and felt that they could not be impartial
specifically if they had heard about the trial
for the co-defendant, Mr. Hart.
And some of those said that they knew that
and they reluctantly felt that she was probably guilty too
or they may have said that,
well, they've made a determination, she is guilty.
Some of the jurors-
-: That was 25 of what's the denominator?
-: That would be 25 would be the numerator
and 134 would be the denominator.
So that would be, I believe, Your Honor, under 20%.
As the court is aware-
-: Oof, yeah, so one in five were biased?
-: Yes. -: Okay.
-: And so some of the people were biased due to publicity,
not prejudicial publicity, but some publicity.
Others in this case were excused
because they were from Orange perhaps
and they knew the victim's family
or some of them knew the defendant's family members.
Some of them may have worked with the EMTs
or one person knew something
about the defendant's children in this case.
So there were those issues,
but it had nothing to do with publicity in the case.
Those are just normal things that the judge found.
There was a 10 page questionnaire
that was developed by the parties and the judge
and the parties in the judgment case-
-: Well, of the 109 that were left,
what percentage had heard about the case?
-: That had heard about the case,
well, many had heard about the case.
-: So, what percentage was that?
-: It could have been 80%,
but I don't think that that's the issue.
And I think that the case law is clear that's not the issue.
Commonwealth versus (indistinct) would say
you look at what percentage were excused
due to a challenge for bias
because of knowledge of the case.
Some of the people,
most of the people knew about the case,
had heard some minimal information about the case,
but that did not cause them to be biased.
And it was very clear in this case,
there was a summary
that was presented to all of the potential jurors.
And most of the jurors
knew far less than what the summary had said.
An exception would be that certainly the summary
is not going to say that the co-defendant was found guilty,
so that would be a different scenario
if they had heard about the previous trial.
And I would submit that there was one juror, number four,
that did tell the judge
that he had heard about the prior trial,
but he was very clear that he felt
that was a separate issue,
that that was a different case.
And he was juror number four.
There were many-
-: And were there peremptories left
when juror number four was picked?
-: Yes, there were many peremptories left at that point.
With respect to peremptories,
there was basically three days,
three mornings of jury selection.
It went into the fourth day.
And on that day,
the defendant used her last peremptory.
Every juror after that,
there was no issue about publicity in that case.
And finally, the last juror that was chosen
had no information about the case.
And that was very clear.
So I think in this case,
Commonwealth versus (indistinct),
I think, is most instructive.
That was also a Franklin County case.
And the judge in our case took great pains
to conduct that individual voir dire
and assure for whatever reason
that a juror could be unbiased.
It many times wasn't because of publicity
that there might be an issue.
It was because they had sympathy from the victim
after reading the questionnaire
or they were not going to like the photographs in the case
or something like that.
But the judge considered all of those issues as well
to come up with a impartial and unbiased jury in this case.
If there are no other questions,
I would just go to the second issue
with respect to whether the Commonwealth proved this case
beyond a reasonable doubt for each theory
with respect to each of the victims
that my brother argues
that the Commonwealth failed to show premeditation
in the killing of Mr. Harty.
With respect to Mr. Harty, the male victim,
this was always a case of joint venture.
And there were many factors to show
that the defendant participated meaningfully with Mr. Hart
in this killing and that she shared his intent
starting with,
much of this comes from the statements of the defendants,
but also from the physical evidence,
and also from the one excited utterance of Mrs. Fisher.
So it was-
-: And just to,
since this defendant is riding on
the other defendant's intent,
what was the evidence of her companion's intent?
-: Ms. Smith, the defendant,
testified that he armed himself with a knife
at his grandmother's house.
Then the two of them walked two miles
to the victim's house.
They stopped at her grandmother's house
where she changed her clothes
and actually had an extra set of clothes.
And then they went and cased the area
looking for a house to break into.
They went to a few houses
and found that they couldn't get in.
They went to this house where they saw Mr. Harty,
age 95.
They didn't know exactly how old he was,
but they knew that he was older.
They saw that the house was open,
that they could get in because they looked in,
they saw in the garage a car.
They saw that it was an older car
and they felt that it would not have a tracking device
so they wanted to take that car.
They went and tried to break into the house.
Mr. Hart testified
that he tried to take like a screen off of the crawlspace.
He thought he could get in that way,
but the crawlspace did not go anywhere.
Ms. Smith was right there.
Her fingerprints were found on a window of the house.
And the testimony was that that window
or windows that they had looked into showed,
you could see Mr. Hart from those windows.
The defendant's palm prints
are also on the windows of the garage
that the two people go into the garage
and arm themselves with socket wrenches from the garage.
Before they even get into the house
after the door is open from the garage into the kitchen,
they see Ms. Fisher and then they enter with,
Mr. Hart, at that point, had a knife.
And there is testimony
or there is in his statement,
he states that she probably took a knife as well.
There was at least one knife
and there may have been two knives
as well as the socket wrenches.
And also just with respect to what their intent was,
they both admitted that they intended to steal a car
and escape so that she would not have to deal
with her having to go to be committed for drugs
and he would not have to deal with his criminal case.
And she also had a criminal case
that they would have to not deal with this.
But as much as in their statements
they would try to minimize
and perhaps say we just wanted to steal the car,
in fact, Ms. Smith admitted that the keys were in the car,
that they knew the keys were in the car,
yet they entered the home with weapons
and immediately set upon Mr. Hart and Ms. Fisher.
And that resulted in Mr. Hart's death by stabbing.
There were three wounds to his heart.
He basically bled to death.
Also, the wound was to his lung as well.
And Ms. Fisher, as the court knows, was injured.
There was one stab wound to her left side
and the cause of death was
Ms. Fisher suffered on the floor for 12 hours
and died five weeks later.
And the cause of death was exacerbation
of her chronic obstructive pulmonary disease
by these additional injuries,
particularly the stab wound,
but there were also cracked ribs and wounds to the neck,
a bad bump on the head, and those kinds of things as well.
So there was shared intent
and meaningful participation in Mr. Harty's death.
And there was also Ms. Smith,
the defendant, acting more individually
with respect to Ms. Fisher,
but even that was also a joint venture
because Mr. Hart also participated
in the attack on Ms. Fisher.
So I would submit that the evidence was overwhelming
with respect to malice for Ms. Fisher
as well as specifically premeditation,
extreme atrocity, and cruelty, and felony murder.
And the felonies,
the predicate felonies were the burglary while armed
and armed robbery.
And the defendants were convicted of the armed robbery
on both individuals as well.
Justice: Thank you.
-: If there are no further questions,
the Commonwealth would rest.
Thank you.