-: SJC-13309, Commonwealth v. David J. Pond.
-: Okay, Attorney Tretchikoff.
-: That is correct, your Honor. Good morning.
Good morning, Madam Chief Justice.
And may it please the court, Constantine Tretchikoff,
Special Assistant District Attorney
on behalf of the Commonwealth.
Before I start, I also wanted to mention that the victim,
the alleged victim in this matter
has been made aware of the oral argument today.
She could not be here,
but she supports the Commonwealth's argument in this case.
Both the decision of the motion judge
who treated Rule 17 as a discovery tool in this case,
and the decision of the single justice
who ignored the systemic implications of this case
were abuse of discretion and should be reversed.
In this case, the defendant initially filed a motion
to inspect the crime scene, which the motion judge allowed.
During the hearing on that motion,
defense counsel represented that she wanted to expend the-
That she wanted to inspect the residence
of the alleged victims, specifically the kitchen,
the hallways, the doorways, the driveway,
the living room, and the dining room.
The Commonwealth objected to that on the basis of relevance
and on the basis of alternative means
to present defense counsel with that information
to prepare for trial, but the motion judge allowed.
The motion saying, "There is really nothing
that can substitute for the defense counsel's eyes
on the crime scene."
A month after the motion was allowed,
defense counsel visited the residence
and was granted access to exactly the areas
that she was asking for during the motion hearing,
but as they say, appetite comes with eating.
And she wanted also to access the two bedrooms.
One is the victim's bedroom
and the other one is the bedroom that the defendant
used to occupy, and the bathroom
inside the victim's residence.
And she was not allowed to do that
because that was beyond the scope of the initial motion.
-: Can I just ask a question?
So if the judge said there's no substitute
for actually seeing, right?
-: Yes, your Honor. -: Why is that not the answer
for the additional areas that they wanted to take a look at?
Isn't that the answer?
They needed to see the areas?
I understand that there were more things
that they wanted to see after that, but.
-: That is correct, your Honor, but these areas have
nothing to do with the scene of the crime.
Under Mattis and under all Rule 17 cases that I have read,
the objects, the documents, the papers, the books,
they have all been relevant to the crime itself.
-: So was there enough concern
that there might be these prior bad acts
that allegedly took place in the bathroom,
in the bedroom, though?
-: Your Honor, the Commonwealth, again,
we reiterated that position multiple times.
We have no intention to introduce these bad acts
in our case, chief.
If the defendant opens the door to that on cross-examination
or in his case, that can be a different story,
but we have no intention to do that.
-: I think we probably should hit the reverse button though
because we're at the merits of the issue
and you got the first hurdle
as to whether or not the single justice
even needed to reach the merits,
and we really haven't talked about that.
-: Yes, your Honor, happy to address that.
The issue concerns,
there are three, I would say, systemic implications
with respect to this case.
One is irreparable violation to the victim's privacy,
and it also goes to the thought prong under Fantanas,
the chilling effect on the Commonwealth's cases.
Because if the ruling is allowed to stand
and if defense counsel will be allowed,
as she was in this case,
unfettered access to all rooms and curtilage
of the residence of the victim,
even the areas that the defendant was not asking for-
-: Wasn't counsel escorted to the premises with an officer?
-: Yes, the judge ordered the police officer to be present,
but that does not in any way mitigate the intrusion
of the constitutionality protected
in reasonable expectation of privacy
that the victim has in her residence.
-: Was the defendant able to go?
Did the defendant attend?
-: No, your Honor, the defendant was not in attendance.
-: So the defendant wasn't there.
How is this any different than a jury
taking a view of a scene of a crime,
such as a home where something happened inside?
-: That motion would be subject
to the discretion of the trial judge.
There would be no commentary,
there would be no inspection of the scene,
no taking photographs, no taking measurements.
It will be an impartial finder of fact,
just taking the view under section 1109
and of mass guide to evidence.
No commentary would be allowed,
the judge would be present during the view.
This is different because if we may go back to the issue
of relevance that Chief Justice Budd mentioned,
the defendant justified the intrusion
into the victim's resident based on the prior bad acts,
but as this court repeatedly said,
most recently I think in the Jones case decided in 2017,
the proponent of the evidence,
the moving party must establish the evidence
that they seek to admit before the motion judge
under Rule 17.
In this case, the defendant mentioned prior bad acts
that happened at some unspecified point in the past.
The victim and the defendant started dating in 2003
and stopped in 2021 after this horrific incident
that we alleged has occurred.
That's 18 years of relationship.
Defense counsel said that at some point
during that relationship, there were these prior bad acts
that he committed against the victim
and the victim was making prior
inconsistent statements about them.
We have no idea when they happened.
Was it five years ago, 10 years ago, 15 years ago?
-: So it's not that this isn't an important issue
and that we shouldn't be chatting about it, but I'm sorry,
I'm still stuck back on absolutely prong one here
about extraordinary circumstances.
-: Absolutely, your Honor.
So what happened in this case
is that the ruling of the motion judge,
she failed to consider the reasonable
expectation of privacy.
-: No, no, no, but I think what Justice Lowy,
and I apologize for interrupting you, but I think-
Well, at least my question is
why did the single justice abuse his discretion
in not allowing the appeal of the allowance of the motion?
-: Your Honor, because there are several systemic issues
that are involved in this case.
One is, and this is what we argue
towards the end of our brief,
the constitutional implication of Mattis.
Because what Mattis left undecided
is when you have a state sanctioned
and state directed search of a private residence,
which constitutes for all intents and purposes
of state action,
and the search occurs in a constitutionally protected area,
the 4th Amendment in Article 14
require probable cause for that search.
And currently the Rule 17 protocol
for when the search occurs
in the constitutionally protected-
-: And you're saying the victim's 4th Amendment right
is being violated by allowing entry
by defense counsel into her bedroom.
-: Without establishing probable cause and without-
-: But the kitchen is okay?
-: Pardon me, your Honor? -: Probable cause for what?
-: Probable cause, the nexus between the allegations,
what evidence the defendant seeks to find there
and what he seeks to prove.
-: [Justice Wendlandt] I'm sorry, your Honor.
-: Where's the state action?
-: It's court directed search, your Honor.
Under Mattis, the court has to carefully craft
the order for the inspection of the crime scene.
The court should provide under Mattis
who may have access on behalf of the defendant,
when access may occur,
for how long the access should be there,
what people, what additional individuals
are permitted to be.
That's direct-
-: So the 4th Amendment doesn't protect
against all searches, just unreasonable searches.
Why is it unreasonable to allow the defense counsel
to enter into the crime scene area
beyond what the Commonwealth is immediately alleging?
-: Your Honor, one, warrantless searches
under the 4th Amendment are all presumptively unreasonable
and the party who wants to do the search
bears the burden of established the reasonableness.
-: Well, and you've got a difference
with regard to a residence, don't you?
But you normally don't have a reasonableness standard
for searching a residence,
you usually have to go in through a warrant?
-: Correct.
-: But in this case you're saying there's no probable cause?
-: [Constantine Tretchikoff] Yes, your Honor.
-: And that there would have to be a warrant?
-: Your Honor, there would have to be a demonstration
of probable cause to enter the areas of the relevance-
Of the residence, excuse me,
which have no relation- -: And the only areas
we're concerned about are the bedroom,
the secondary areas, not the first areas.
-: Correct, the bedrooms and the bathroom that, again,
the defense counsel conceded that
during the second motion hearing.
They have no relation whatsoever to the crime.
They're only related to a collateral matter,
the alleged prior bad acts.
And in all rules- -: I am one step behind
Justice Cipher, as I always am.
What probable cause for, to believe what?
-: To believe that the evidence found, the nexus.
The nexus that the evidence found in those areas
would be relevant to what the defendant seeks to prove.
-: And that comes from Mattis? -: It's not different
from probable cause that we have to establish.
-: Well, it is that was because
the probable cause that you have to establish, as you say,
is that a crime is being committed.
-: Correct, and the defendant is alleging
that certain acts have occurred
and the evidence that he seeks by entering those premises
would be supported, would be found in those premises-
-: The alleging crimes occurred?
-: No, but she's alleging these prior bad acts.
-: So you would elevate prior bad acts
to the status of requiring a warrant?
-: Your Honor, not- -: Prove a prior bad act?
-: I'm sorry, I may have misspoken.
In this case, we would argue that
the access to the bedroom and the bathroom
should not have been granted in the first place,
because they have nothing to do with the crime whatsoever.
-: So, if you were to have been more focused
on the opposition to the Mattis motion in your pleadings,
you would be focused on the second search only?
-: Correct.
And that is the only second search
that we are appealing from.
We did object to the first search
that was confined to the actual scene of the crime.
The kitchen, the dining room, the living room,
the doorways, the hallway, and the driveway.
And defense counsel had access to that.
Then she decided sue sponte, I guess,
to expand the scope of that.
I wanted to go to the bedroom,
the second bedroom, and the bathroom
where the victim undisputedly have
a reasonable expectation of privacy in her residence.
I don't think there can be any debate
about that, respectfully.
And then that showing what the defendant failed to do
is A, to demonstrate relevancy
because it was allegedly connected to some prior bad acts
that occurred God knows when in the past.
And if they haven't long ago,
what relevance, if any-
-: But let's remember what you're arguing right now
for a minute, because I am still on
whether this extraordinary circumstance
is such that Justice Gaziano needed to reach the merits.
And you're arguing,
the reason you got into this argument
is you're saying because number one,
there's a systemic concern about defense attorneys
going into private homes
as it relates to a constitutional issue.
-: Without establishing relevance
and under the motion that was treated
as a fishing expedition and
not as a rule of production. -: And you had other reasons
that you thought that there were
extraordinary circumstances here?
-: Your Honor, well, the constitutional implications
of Mattis, we have discussed that already.
That's one systemic issue.
The second one is irreparable violation
of the victim's privacy
if this approach is allowed to stand.
The third one is the crippling effect
on the Commonwealth's cases,
because if this approach is allowed to stand
and the victims are aware
that the defense counsel could be granted to the access
of the entire residence and curtilage
in case the scene of the crime happens to be
inside the residence,
that will have and may have chilling effect
on the victims in reporting crimes,
which will in turn hinder the Commonwealth's interest
in prosecuting the offenses.
So those would be the three aspects.
And I apologize, it took me so long to answer
your Honor's question,
that invite that this is the issue of systemic importance.
-: So you're saying it's extraordinary
because once this is allowed,
will be allowed again in other cases,
and you don't have a means of remedying this
because you're the Commonwealth,
so you can only come this way?
-: That is correct, your Honor.
And also with-
-: Okay, I just wanna go back to my original,
an earlier question about why isn't it an invasion
of the victim's privacy when the jury goes in to look?
-: That would be subject to the motion
to view the crime scene.
And at that point the trial will already be ongoing.
We do not invite the court
to say that there needs to be probable cause
to establish that the view would be intrusion
on the victim's privacy,
because I don't think the view would be a search
in the constitutional sense.
-: How is it if the defense goes and looks?
-: And takes measurements and takes photographs.
-: So you wouldn't object if they were just in there looking?
You object to the photographs.
-: On the constitutional grounds, no.
On the relevance grounds, yes.
Because what happened in this case, the judge,
the decision really says it all.
She says, "None of us right here today
can say exactly what will occur at trial.
We can make educated guesses about how a trial may play out.
The purpose of this is for counsel
to get a scope of the area
in which all of this conduct is alleged."
If that is not a dictionary illustration
to officiary expedition, I do not know what is, your Honor.
She treated this motion as a discovery tool, not as-
Excuse me, your Honor.
-: That's okay.
So the extraordinary circumstances that you're talking about
is that we issue an opinion.
If we issue an opinion
that it's not extraordinary circumstances,
that somehow there's an implication
that we've reached the merits,
but the case that reaches the merits is Mattis.
And Mattis is a strong case for it to be allowed,
because as you know, it's a small apartment,
it's 3000 square feet or something,
there's eight people in there,
and an allegation that rape took place on the couch.
So you know that doesn't seem like that close a case.
If this is not an extraordinary circumstance,
that doesn't mean that the court saying
it's okay to go look into bedrooms and bathrooms
for prior bad acts that aren't issues at trial,
it just says that it's not extraordinary circumstance.
It doesn't condone the merits of the order.
-: Your Honor, I would not want to speculate
how the court will approach the case,
but I will note in relation to what you just said,
and I believe I mentioned this in passing before.
All Rule 17 cases, and I know my time is up,
so I will be very brief.
In all rule 17 cases that I am aware of,
decided in this state,
all objects, papers, books, documents
were directly relevant to the crime itself.
They were all about the crime, the criminal activity,
the victim's credibility in relation to the crime.
In this case, the defendant is basically urging the court
to take this one step further,
to say, "Even if it is not related to the crime,
has nothing to do with the crime whatsoever,
it's related to a collateral matter that happens,
again, God knows when, that is still sufficient."
I would say at a minimum,
and this sort of dovetails back to your Honor's question
about the systematic issues in this case,
at a minimum that seems to be a very drastic expansion
of the scope of Rule 17,
to include not only something
that's directly related to the crime,
but also something that is related
to collateral matter in relation to the crime.
If the court wants to bless this approach into existence,
that will obviously be applicable,
that new approach would obviously be applicable
to both the defendants and the Commonwealth
in all future cases,
because as the court is abundantly aware,
Rule 17 does not distinguish between the parties.
Justice Lowy: That's the merits.
-: Okay. Thank you. -: Thank you very much.
-: Okay.
Attorney...
-: DeMayo. -: Sorry.
-: Good morning.
May it please the court, Christopher DeMayo for David Pond.
We're here today to ask that the court affirm
Justice Gaziano's decision denying the 2113 petition,
or in the alternative that if it gets down to the merits,
affirm Judge Frison's order on the discovery issue.
Both of these, this is a course of case of
abuse of discretion, not substituted judgment.
So even if individual members of this court
might have come down differently,
it's not the case that both these two jurors
acted outside the realm of reasonable decisions,
which is what the Commonwealth has to show here.
I'll say at the outset,
we don't dispute that Ms. Arsano, the alleged victim,
has a privacy interest in her house.
Of course she does, but Mr. Pond is being charged
with some serious crime.
Strangulation, assault to murder,
serious felonies with long sentences.
He has interest in a due process,
interest in putting on a strong defense,
a 6th Amendment interest in cross-examining
the alleged victim about,
effectively cross-examining her about what happened.
So we have competing interests,
and when you have competing interest
the judges sort of weigh them
and try to come up with a appropriate fair remedy,
and I would submit that when Justice Gaziano
got this case last summer and he looked at the order,
what you see is a judge,
Judge Frison trying to balance the interests
and trying to come up with a fair remedy.
On the one hand she said, yes,
the defense counsel does get to go into the house,
which acknowledges the fact that Attorney Jensen
needs to be able to educate herself
to put on a strong defense for Mr. Pond.
On the other hand, she said, "You only get one crack at it.
You get one hour.
There'll be a police escort,
so take all your photos and measurements
within that one hour and that's it."
-: But that's not what happened.
-: That's not what happened because she showed up
and three of the doors were closed.
And my brother said something about expansion.
My understanding was the original order was
Mr. Jensen said, "I need to see the doorways,"
which I took to mean if nothing else,
I need to look into the rooms.
But when she showed up, several doors were closed
and there's a police officer there, so she couldn't.
She really had nothing she could do
except go back to Judge Frison.
So on the face of it, I guess what I'm saying is
this is a case where a judge appears to be considering
the sorts of things she's supposed to consider.
And she came up with a ruling,
which sort of takes both these into account.
So from the single justice's perspective,
nothing really jumps out.
Now I know my brother is saying that there's
a systemic issue here that she said
that anytime there's a crime on a private property,
you get a defendant and his attorney
can view the entire property.
I don't think that's really a fair reading of what she said.
That makes it sound like if the John Adams courthouse
were a private property and there were a crime in this room,
you could inspect every single room
from the social law library up down.
She didn't say that, that's not really a fair reading.
Also, this was an oral ruling.
It was written down in a margin.
So the idea that if she had typed up a kind of formal
memorandum of decision that might get picked up on Lexus,
you might think,
"Well, this could be cited by other people
and cause mischief on the line."
-: This is an unusual argument
for a warrant in this circumstance,
and it just makes me wonder
if the court order under Rule 17 weren't the appropriate-
Is this this analogous to an administrative search
more than a probable cause for a crime search?
I mean, there's no argument-
Your first phase of it, I guess.
It's the second, but I don't...
Nevermind.
-: So I mean, I took it to be a just a,
it's a Rule 17 Mattis type of case is what I'm saying now.
-: Yeah, that's where it should stay.
-: With your response that there is state action?
-: If this is state action,
then there's a lot of state action going on
in the superior courts, because I mean,
if you think of all the civil-
We're looking at this from the criminal side,
but if you think of Rule 26, Rule 33,
Rule 34 of civil procedure,
people are constantly being forced to cough up tax records
and bank statements and all kinds of things
they don't want to do.
Maybe it's all state action,
but I think this court would be going into uncharted water
if they were gonna go that way.
The last thing I will say in the single justice's defense is
I understood my brother just now to say that
Justice Gaziano aired because there was a issue
of constitutional importance here
because of the state action, but I,
and I may be wrong,
but my recollection is the 2113 petition did not mention
this whole probable cause state action issue.
Because I remember...
And if I'm wrong about that, I stand corrected.
But if I'm right, I don't think that we can really fault him
for not recognizing a argument that was not in the petition.
So that's my defense of Justice Gaziano.
My defense of Justice Frison is basically that,
I think that there were two good reasons here
for her to allow defense counsel in.
The first general, the second specific.
The general one is it's just kind of bread and butter
defense work to go look at the crime scene.
It's required by CPCS.
You can be ineffective if you don't do it.
Attorney Jensen couldn't be here, unfortunately.
but she wanted to be here,
but I talked to her a couple days ago
and she said she's been in this business since 1981
and she has never not gone to a crime scene.
So the idea that-
-: Well, I was a trial judge for 19 years
and I never allowed a motion like this.
One reason I never allowed one was I never had one.
So it's not exactly happening every day.
And the concern is is that it will,
and that goes to prong four of Lampron,
the fishing expedition.
And Mattis, we were clearly right on Mattis.
The attorney had to be able to go in and Mattis
to prepare for trial.
I mean, I don't see how that could come out otherwise.
This isn't Mattis, this is going into rooms
that aren't part of where the crime took place
because of prior bad acts
that the Commonwealth intends not to offer.
-: Well, with respect to the Commonwealth,
it's really not up to them to say what's offered.
I mean, Mr. Pond, the defense disputes
that some of these other claims that were made,
and they're not very collateral.
These are claims she made to the police
and to the grand jury
at the same time she was making the allegations
that resulted in the indictments.
And it's our contention that some of these
are just implausible.
And of course Attorney Jensen
bases some of this on talking to Mr. Pond,
and of course if you're an attorney,
you trust but verify.
So she believes him, but she wants to see this.
And the idea here, and I know Mr. Tretchikoff
was saying we don't know when this happened,
but the idea is that some of her allegations
are just not feasible based on where counters are
and where cupboards are and where toilets are
and which way doors swing and things like that.
-: Well, there's a requirement under Lampron
that you can't get the information otherwise reasonably.
And the defendant knows where the doors are.
-: Well, again, Attorney Jensen's
gonna be the one doing the cross-examination.
So to do that effectively,
I think she has a professional duty to kind of
at least try to educate herself by looking at-
It's not the same thing talking to people.
It's sort of like we had the students here earlier.
They could watch this on a video,
but it's not the same as coming in
and having the full effect.
And I would submit it's kind of the same idea there.
So this was not something that was done
simply to harass the alleged victim here.
This is something that Attorney Jensen
does as a matter of course, and in this particular case,
she had a reason to go back to the court
and ask to look in these rooms
because it goes to impeachment
of the Commonwealth's key witness.
I mean, the whole case turns on this alleged victim.
So for that reason also
I would ask that if the court gets down to
considering Judge Frison's actions here,
that they find that, again, it's abuse of discretion,
not substitute of judgment, so that even if-
-: Abuse of discretion on a Lampron Rule 17 motions
that happen all the time.
-: Well, fair enough. Fair enough.
-: And so if that's extraordinary circumstances,
what comes before the single justice, it isn't.
-: Well, yes.
That's a point well taken,
and that's why it might be easiest
just to dispose of this on the first ground
about the propriety of Justice Gaziano's.
But be that as it may, I think Judge Frison
was within her discretion, and making the decisions she did
she clearly tried to balance the factors
this court told her to balance in Mattis.
People might disagree,
but it was within the range of reasonable alternatives.
And those are the main points I wanted to make unless court-