-: This is SJC-13281.
Matthew London Davis v. Commonwealth.
Judge: Okay, Attorney Spurlock.
Good afternoon.
-: Good afternoon.
May I please the court?
Matt Spurlock for Mr. Davis.
This is the second time
that the sufficiency of the evidence in this prosecution
is before this court.
And last time around, as this court knows,
it considered the untested and unreliable
GPS speed evidence in the analysis.
And even with that speed evidence,
which turned out to be inadmissible,
the court noted that the Commonwealth's case
was not by any means overwhelming.
The evidence at the second trial,
where the jury could not reach a verdict,
was substantially weaker for the Commonwealth.
It was only the GPS speed evidence
that was the common thread
tying together the disparate
and equivocal circumstantial evidence in this case,
allowing a minimally coherent narrative.
But without the GPS speed evidence,
all that is left is mere presence.
And no rational jury could conclude
beyond a reasonable doubt that Mr. Davis was the shooter
in the grainy surveillance video of a video.
-: But there wasn't anything conclusive.
I'll give you that, that's fair.
But there were a variety of bricks to their wall, right?
Where you had the surveillance video
with the general description,
particularly of the red sweatshirt.
You had, and you add the bricks of the witness
who the perpetrator allegedly ran by.
You have the GPS coordinates,
which were properly admitted,
that showed the defendant from the area
in which the shooting happened all the way back to his home.
Even later, about,
I think the execution on the warrant was a week later,
they still found the sweatshirt.
Why do you say that all of those bricks
can't lead to the identification of the defendant
as the perpetrator?
-: Your Honor, I think the court's opinion
in the last case is instructive on all of those points,
and I'll take them in in order, starting with the--
-: Our last decision said it may not be the strongest case
for the Commonwealth.
It wasn't opining on the sufficiency of the identification.
-: I agree, Your Honor.
But at every point,
it discussed the importance of the speed evidence
in making each of the points that you just discussed
probative at all.
So, let's start with the surveillance video.
So, this court said that the surveillance video
was not probative of ID at all.
It was probative of the intent of the shooter to kill.
That was probative.
But in terms of we have a generic description
of a Black man with mid-back length hair.
That's all the video shows.
So, in terms of probativeness for ID,
there's simply nothing there.
-: You've got to couple that with the time
because it was mid-morning, right?
So, it's not just, there weren't,
it's not a situation where there were a variety of people
that fit that description, that generalized description,
on the street at the time.
There was a specific testimony by the witness
who was there with two other people,
or three other people, who recognized.
And granted, I give you that she didn't make
a positive out-of-court identification.
But all of those things plus ending up at his home,
I just don't, I'm struggling to see why that isn't enough.
Even with the fact that this jury
might have been deadlocked on it,
why a jury couldn't find the identification made.
-: So, Your Honor, there's nothing incriminating
about being in that location in the mid-morning,
and there's nothing incriminating about going home
after a gunshot occurs, especially if you have a GPS on you.
I mean, I think we want people to go home.
So, those are certainly not something
that the jury could use to find identity
beyond a reasonable doubt.
In terms of Ms. Rock,
I'd like to point out that she had a negative ID.
It wasn't just that she couldn't identify them.
She said, "It's not him.
"I don't think so."
Moreover, the only thing that this court said last time,
on top of the negative ID,
they said would not preclude the inference
that this person that she saw was Mr. Davis was the speed.
And we simply don't have that here because she testified,
and this is at volume one, page 62,
that she saw one runner while she was out there
on the corner of Columbia Road.
Major argument in the mid-morning.
She's out there with a group of her colleagues.
There's no testimony at all
about who else may have been there in that neighborhood.
We have evidence before the jury
that that's a majority Black neighborhood.
We have evidence before the jury
that many Black men have long hair in braids or dreadlocks.
So, this ID of Miss Rock not only is a negative ID,
but the only thing in this court's word
that would not have precluded
overcoming that negative ID is gone.
So, that's what this court said last time,
and I think that is well taken
and it goes to show that the thread of the speed
really was necessary to draw an inference
beyond the reasonable doubt.
And I think when you look at some of the other cases
that have mere location,
mere presence is what we're left with.
So, let's look at some of the other cases that discuss that.
Maza was a case that this court distinguished
in its last opinion
because there was a presence issue there.
But on top of that, you had a motive,
consciousness of guilt,
and even then not sufficient to convict.
Just a couple weeks ago,
this court decided a case, Kapaia.
I don't know if I'm pronouncing it correctly.
But you also had GPS evidence there.
But in that case, you had an admission.
You had a positive ID.
You had a motive.
You had consciousness of guilt.
All of these things are missing from this case.
So, on the Commonwealth's view of this case,
the upshot of this is that anytime someone wearing a GPS
is in the vicinity of a crime,
that is gonna be good enough,
without more, without consciousness of guilt,
without motive, without any forensic evidence,
and indeed in the face of negative ID,
and that is just not the law.
I mean, it's clearly would be precluded
by what this court said in Davis 1.
So--
-: It's important to keep in mind, though, that in Davis,
we were analyzing
whether or not there was a substantial risk
of miscarriage of justice.
Obviously, there was a sufficiency issue,
and we can include the speed in the sufficiency issue.
But the discussion about other evidence
was within the context
of a substantial risk of miscarriage of justice.
-: Your Honor, you wrote that decision,
so you know it better than I do,
but I have read it many times.
And what I will say is that as I read it,
those discussions are melded into one.
So, the part that deals with sufficiency,
there's an infra that refers to this court's discussion
in the prejudicial error section.
And at every point, you talk about the three principle basis
for the sufficiency evidence.
That's the video, and that's the eyewitness ID,
and that's the GPS location.
At every point, the court, in the sufficiency section,
emphasizes the importance,
the necessary importance of the speed evidence.
And it says it's not gonna comment on
what could happen in the next trial,
but it emphasizes the importance of that.
That's how it distinguishes Maza.
That's how the court says,
"We're gonna allow that the jury could infer
"that this was the same person," because the speed,
because Ms. Rock saw one person running
and the speed showed
that the person wearing a GPS was running.
-: Those are all fair points.
What I'm saying is,
is that the speed issue
we determined didn't satisfy Daubert-Lanigan.
Matt: Sure.
-: So, what we had to do is we have the speed factors
into the required finding,
and we have to analyze whether or not
it's a required finding or not.
And so, we find that the evidence is sufficient,
but then we have to consider all the evidence
and whether there was a substantial risk
of miscarriage of justice,
and that's the prism.
So, the evidence has to,
I understand has to be considered with both,
but we're not
analyzing that to say
that it would be double jeopardy to retry it.
-: Absolutely agree, Your honor.
You state very clearly in that opinion
that you are including speed in the sufficiency analysis.
That's what I started my presentation with
the last time you had speed.
As I read that opinion,
and we can even take out that opinion.
As I see the evidence now,
speed is the crucial link
that ties the other circumstantial evidence together.
And so, without speed,
and that is discussed at each of those three paragraphs,
the three paragraphs in the sufficiency section.
I'm not talking about the prejudicial error section,
in the sufficiency section, and speed is crucial.
Speed is crucial to allow an inference
that Ms. Rock overed a negative ID
that Mr. Davis was the runner.
Speed was crucial to show that it was indeed him
in that grainy video,
which this court said could not result
in any identification.
In terms of the red sweatshirt,
with Justice Georges, Justice Georges asked about,
I don't think there's anything incriminating
about having a red sweatshirt.
There is no testimony
that Mr. Davis was wearing a red sweatshirt
on September 15th.
The fact that a young man in Boston
has a red sweatshirt in his bedroom, I think,
is neither here nor there.
I will say that they did test it for gunshot residue
and it came back negative.
So, I mean, I don't think that does anything either way.
I see my time is up.
If there are any other questions,
I'm happy to answer them.
-: Thank you.
Matt: Thank you very much.
-: Good morning, or possibly afternoon.
May I please the court?
Ian McLain on behalf of the Commonwealth.
Here, viewed in light most favorable to the Commonwealth,
through a combination of multiple pieces
of circumstantial evidence
along with the reasonable and possible inferences therefrom,
there was sufficient--
-: There are, but as Attorney Spurlock just mentioned,
isn't the tie that binds speed--
-: But respectfully-- -: And without speed
there's no mortar between these bricks?
-: Respectfully, no, Your Honor.
I think there's plenty of mortar within the bricks,
and you'd find that at Exhibit 23,
which is defense appendix page 27.
That's the map of the area.
When you look at that map and you put the times
when he was at each of the locations he was.
10:27 at the corner of Quincy and Baker.
The next minute at the corner of Baker and Bodwell.
The next minute after that,
he had made it back to Columbia Road.
You can see the distance that he traveled in that time,
and any juror can look at that and estimate roughly
how quickly he was moving.
So, while GPS speed evidence
was introduced in the first trial,
I don't see it as in any way essential in the case.
It's an inference a jury could draw
based on their own life experience themselves.
As to the bricks and the wall that you referred to,
Justice Georges, I think one was sort of left out
in the prior discussion.
-: Could you summarize those for us,
just the different pieces of evidence, just--
-: Sure, Your Honor.
I'd break it down into five sort of categories.
One is the GPS points themselves;
two: the video clip itself showing the shooting;
three: the witness on a block and a half away, Irene Rock,
and what she saw run by her;
four: the defendant's appearance,
his actual appearance as the court saw
when he was there at trial,
and as his probation officer testified to;
and the existence of the red sweatshirt.
So, I take those five pieces,
and you put those five pieces together
and it builds a solid wall.
And some of that mortar between those bricks
that we were talking about,
the significant piece that wasn't discussed.
If you look at the video clip, Exhibit 48, which you have,
the shooter fires with his right hand.
The witness, about a minute and a half, two minutes later,
testified that she saw the person run by her
with his right hand tucked into his sweatshirt
or his pants pocket.
That's further indication
the person that she saw run by her,
as opposing counsel pointed out,
the only person she saw run by was the shooter.
Then you compare that against the defendant's GPS points
and it's the same path that he traveled,
and then continued on from there to his residence,
as you pointed out, sir.
So, you put those pieces together,
that provides the mortar between each of those bricks,
establishing a solid wall here.
The other things that I would point to.
I would point to the person itself that you see
in the video footage.
I mean, it's not a great security video footage,
but it's clear enough that it's a red sweatshirt
and that it is a young Black male,
thin, tall male with hair.
You can't necessarily tell if they're braids or dreadlocks,
but they're long and thin.
And I would disagree
with opposing counsel's characterization
that the hair went to the mid-back.
I would say from looking at the video,
that the hair is beyond the shoulder length,
but I don't think classifying
it's going all the way to the middle of his back
is a fair inference from that video.
But you look at that video itself,
draw the picture that you see of that person,
and then compare it to the testimony
that Irene Rock provided from a block and a half away
of the man she saw sprint by her.
She described him as a tall, thin Black male
wearing a red sweatshirt
with hair and thin braids pulled back into a ponytail,
and the hand in the pocket or the pants.
The same hand that the shooter used to fire the weapon.
That's the same person that she saw run by.
That same person lines up with the defendant's GPS points
from the intersection where the shooting occurred,
up past Irene, and then to his house.
The reasonable impossible inferences from that,
those pieces together,
are that the defendant was the shooter here.
So, the Commonwealth presented sufficient evidence
when you look at it
in the light most favorable to the Commonwealth
and you draw those reasonable and possible inferences,
none of which have to be necessary or inescapable,
just reasonable and possible.
-: And this is not piling inference upon inference because?
-: Respectfully, Your Honor,
from each set of a couple of individual facts
you draw an inference,
and then from another set of a couple of individual facts,
you draw an inference.
The inferences are not built inference on inference.
-: Okay, and so what's the evidence that,
I mean, you've linked the GPS to the defendant,
but how did that get linked?
-: I'm not sure that--
-: I mean, how do we know that this is the,
I mean, did he have his phone on him or?
-: Oh, he was on a, he was on a GPS tracker device
as a result of a federal case.
Judge: Oh that, okay.
-: And in the retrial,
the witness that testified about that in the initial trial,
his testimony was read back to the jury in a redacted form
to eliminate any references to speed
that this court had reversed the prior conviction
on the basis of.