-: SJC-13340.
Commonwealth versus Derrell L. Fisher.
-: Okay, Attorney Wood, whenever you're ready.
-: Good morning.
My name is Chauncey Wood.
I have the honor of representing Derrell Fisher.
I am joined today by two members of my firm,
Caroline Alpert and Danya Fullerton,
who helped write these briefs.
And I'm also joined by Mr. Fisher's mother
and his two aunts.
I'd like to focus today on my third argument,
the admission of Trooper O'Brien's
lay identification opinion,
that Mr. Fisher was the person depicted
in the surveillance video.
Defense counsel made a timely and clear objection
to the admission of Trooper O'Brien's
identification opinion.
So first, it's a preserved claim of error.
Trooper O'Brien's identification opinion was the centerpiece
of the Commonwealth case against Mr. Fisher.
-: What do we do with the instruction at the end of the case?
I get your objection, but this case is somewhat unique,
unlike the other cases where there's an instruction
at the end of the case about the,
that's for you to decide.
How do we weigh that?
-: There are five factors I think
that undermine the admissibility of this opinion.
And I think that instruction,
if we're talking about the same thing, made it worse.
So if we're talking about the same thing
and my goal is to get there in my 20 minutes,
that's the fifth point.
So this is a preserved-
-: You don't wanna do it first? -: I don't know!
Wood: All right, all right.
So, all right. -: Just a thought.
-: That's fine, I hear what you're saying.
Thank you for that.
-: Don't forget, basic rules.
-: Don't look at gift to in the mouth, I guess,
or this is what you care about.
-: I'm just asking. -: Either way.
-: 'Cause I just wanna get the impact
of that instruction on your argument.
-: Here's the instruction that I'm talking about it.
See if we're talking about the same thing.
The judge improperly instructed the jury to evaluate
the reliability of Trooper O'Brien's opinion
using the same factors they would use to evaluate
the reliability of an actual eyewitness identification.
This created a false equivalency between O'Brien
and an actual ID witness who must testify from memory.
But in fact, Trooper O'Brien was in the same position
as the jury because he was able to view the video
and Fisher's appearance at booking
as many times as he wanted.
The reliability of his memory was not relevant.
There were many other points which I was going to cover
before this, which do bear on the reliability
of his unusual identification testimony.
But his memory, like a normal eyewitness identification
was irrelevant and precisely
because he was in the same position as the jury-
-: Maybe we're speaking two different instructions.
I thought there was an instruction,
please correct me if I'm wrong.
I thought there was an instruction that said
what's depicted in the video is up to you to determine.
-: Yeah, I'm sure that he did say something to that effect.
And I submit that in light of all of the factors
in this case, to grossly oversimplify, the prejudice,
all of this argument is that the admission
of Trooper O'Brien's inadmissible suggestive opinion
was unfairly suggestive.
And so the jury, as this court recognized
in Wadsworth, hearing an opinion
from a police officer with the imprimatur of authority,
would defer to that police officer's opinion
instead of their own.
So it's fine for a judge to say you make the final decision.
-: Your position of the damage is done.
-: That's right. That's right.
But that other opinion,
I'll come back to the other instruction,
which is obviously different than what you're talking about,
but the judge gave the other instruction
I think is more important.
Here's how you evaluate this.
You evaluate it just like a normal eyewitness identification
from memory.
I saw the bad thing happen.
And the question is, is your memory reliable?
And the judge creates a false equivalency.
And so the judge actually bolsters the reliability
of this lay opinion because his memory is not at issue,
but precisely because he's in the same position as the jury,
it was unhelpful.
So let me back up.
So this is a preserved claim of error.
Because it's the centerpiece, it's a material issue.
And finally, a straightforward application
of this court's precedent in Wadsworth and Davis
both decided after the trial of this case
demonstrated the Trooper O'Brien's identification opinion
was inadmissible and in combination
with the prosecutor's closing argument.
That it was reversible error.
In other words, this single issue is dispositive
of this case.
We're not asking you to create new law
or interpret complicated questions,
a straightforward application-
-: Isn't there a lot of other ID evidence on this
on your client?
-: No. -: Really?
-: The single pillar of this case is-
-: I understand that you consider that the single pillar,
but what is the other ID evidence against your client?
-: The videos. -: Besides the videos.
-: There's nothing.
With all due respect, there's nothing.
So what there is,
the other evidence against my client
is a statement he made to the police during the takedown
about consciousness of guilt.
The police officer, we submit,
this shouldn't have even been admitted, but asks him,
"Where were you on the night of the killing?"
"I was at work."
Turns out he wasn't at work.
He works overnight at the airport.
But he was at work the night before that,
and he was at work the night after that.
Could he have been confused?
When surrounded by 10 police officers?
Yeah, he could have been confused.
That's the other.
And then he also received a text from the co-defendant.
"It's on the news."
Respectfully, those three things, the videotape evidence,
the consciousness of guilt statement and the texts
from Epshod Jeune are the only evidence linking my client.
Indeed, all of the other evidence
linking somebody to this crime
linked Epshod Jeune to this crime.
The police-
-: What about the bullets?
-: They were found in the car registered to Epshod Jeune
in the driveway of Epshod Jeune's mother's house.
Absolutely, those linked somebody to this crime.
They linked Epshod Jeune to the crime.
The police searched my client's house and they found
no clothing connecting him to the crime,
to the guy in the surveillance video.
They found no evidence, no proceeds of the crime.
They found lots of evidence in searches.
It was all the ID of the second victim, Ms. Gattuso
and I think other documents related from her.
And they found the bullets.
All of the evidence they found.
And they also found clothing, I believe,
linking Epshod Jeune to the crime.
Again, all of the physical evidence they found,
literally all of it was linking Epshod Jeune to the crime.
My briefing exhaustively goes through this.
And so I refer you to my briefing,
this central crucial point.
That all of the physical evidence,
all of it, linked Epshod Jeune, not my client.
The cell phone evidence.
The cell phone evidence linked Epshod Jeune to these crimes.
There was lots of back and forth
between each of the three victims and a cell phone number.
That cell phone was Epshod Jeune.
There was zero, zero cell phone evidence linking
my client's cell phone to any of the victims.
Again, the cell phone call he had that was arguably relevant
to this case after the fact was Epshod Jeune once saying,
a texting my client saying, "It's on the news."
The admission of Trooper O'Brien's lay ID opinion.
This was central because the central,
the most important piece of evidence was this video,
really, by far.
And the thing that was made that most prejudicial
was this lay ID opinion interpreting that.
And for five different reasons that the admission
of that opinion was reversible error.
So first of all, as a general evidentiary matter,
lay opinion about factual questions are prohibited.
A determination of the identity of a person depicted
in a surveillance video is clearly a factual question
normally left to the jury.
Wadsworth makes clear that a lay identification opinion
from a surveillance video
must satisfy two separate independent evidentiary rules
to be admissible.
701 and 403.
Trooper O'Brien's opinion satisfies neither.
-: No, let's talk about those two things.
So first, on the lay opinion testimony.
The judge does a very good job of saying,
"I've looked at the video, it's clear,
but it's not entirely something
that the jury couldn't have some help on."
And the judge makes a determination that it would be helpful
to the jury's determination of identity to hear
the Trooper's testimony.
So that we look and talk about
whether there was an abusive discretion.
I understand you might disagree with it,
but the other part is something different.
It goes back to Justice Gaziano's point.
In terms of doing the 403 analysis,
one of the things that we looked to
is the limiting instruction.
And there was a really powerful limiting instruction.
Again, you might disagree with it,
but there was a powerful limiting instruction
that the judge gave that said,
"This person could say whatever they wanna say,
but ultimately it's still up to you to determine
whether or not it establishes
who the prosecution says it is in this video."
So let's begin first.
That 701, the helpfulness,
the judge makes a determination.
I've looked at the video and I think it would be helpful.
-: So, what your honor's referring to
is a factor laid out in Commonwealth v Plea,
an appeals court case unmistakably clear.
The quality of the video must be in some middle ground.
Neither unmistakably clear nor so blurry to be useless.
And in fact, that's one factor.
And he says, "Check, it meets that."
But the problem with the judge's analysis
is that there's a lot more to 701 than that.
There's two things.
And he frankly commits reversible error
on both of them and they're independent.
So if he's wrong about either one,
that's reversible error.
And he was wrong about both of them.
So first, and this is not controversial,
this is black letter law.
701, it requires two things.
The lay identification witness, and again,
this is an exception to the normal rule
that you don't let in lay opinions,
nevermind from police officers.
This lay opinion witness must have sufficient
relevant familiarity with the defendant.
Didn't have that.
Second, the jury-
-: He did have that. -: No.
-: He did have that.
You are saying it came within the context.
You're discounting it because it came
within the context of the investigation.
But he had met with your client in the Burger King.
He had had opportunity to talk to your client.
And so the idea of whether or not he had had familiarity,
if you wanna discount it because it came within the context
of the investigation, that's fine.
But this is a judgment that the judge makes.
That is satisfied.
-: Well, with all due respect.
Of course, I'm here appealing a judge's decision.
I don't mean to be personally disrespectful to the judge.
I disagree with the judge.
And the case law is clear that his definition
of familiarity that he used was wrong.
The relevant definition,
and I'm citing this court's precedent.
This court's precedent in Wadsworth makes clear in Vacher.
Another case makes clear that the relevant familiarity here
is familiarity with the defendant
before the video was created.
The whole point of this is that that familiarity,
that prior familiarity, which the jury can't possess,
gives the witness a power to make an identification.
The fact that he saw Mr. Fisher at the Burger King
after he had viewed the surveillance videos
dozens and dozens of times,
after he had gathered evidence,
after two other police officers had seen Mr. Fisher
in a clearly the car in a suggestive circumstance
and interviewed and said to him,
"I think that's the guy in the video."
And made his identification, saw Mr. Fisher
for the first time in that incredibly biasing context
and saw him for three or four minutes.
That's his own testimony, which we cite in our brief.
That is not the familiarity.
And familiarity developed after you have seen the videos
is quite simply not the familiarity this court
was describing in Wadsworth and Vacher.
So that is the judge's first error.
He's simply wrong under this court's prior precedent
about his definition of familiarity.
Secondly, the other issue that a familiarity
and that by itself is reversible error.
The fact that he had no prior familiarity,
with prior no prior familiarity with Mr. Fisher
is reversible error,
Vacher, Wadsworth.
But secondly, he also had to satisfy,
even if he had prior familiarity, and this is Austin,
Even if he had prior familiarity,
that the jury could not also possess.
Because again, this is an exception to the normal rule
that on factual questions,
we let jurors decide the factual questions like this,
like identification of the guy in the video.
That, the jury could not also possess.
That was just wrong.
The court's claim that the jury didn't have that
is just simply wrong.
I cite to the Commonwealth's supplemental record appendix
pages 151 to 154.
They're actually in color, but this is theirs.
As soon as Mr. Fisher was arrested,
he was taken to the police station
and they did booking photos.
They didn't do just normal booking photos.
They did full color, full body and closeup booking photos.
The point of this is that the jury knew exactly
what Mr. Fisher looked like at the time of the crimes.
The point is that this witness,
this police officer had no information
that the jury couldn't also possess.
Again, I'm citing Wadsworth and Vacher
and most importantly, Austin's recognition
that even if this officer has prior familiarity,
he can't testify to this opinion
because of the danger of prejudice.
If he's not adding anything,
the jury can't figure out themselves-
-: And Austin couldn't really see the video very well.
The video wasn't very clear at all in Austin,
that the police officer looked at.
-: I take your point, Your Honor.
If I could re-characterize that,
you're saying the video here,
what if the video is really good?
Isn't that important?
And what I would say is, first of all, the prosecution,
and don't take my word for the quality of the video.
The prosecution did, as they were required to do by the law,
argue that this was not unmistakably clear.
The judge found as he was required by the law
that this was not unmistakably clear.
And the only reason the prosecutor's allowed to argue
this whole point is the finding
that this is not unmistakably clear.
So it's a question, it's a legitimate factual question.
And the prosecutor, because it wasn't unmistakably clear,
had to rely on or chose to rely on the distinctive braids
and the unique appearance, not look at his face.
You can't tell it's him.
But look at the braids, the braids, the braids,
and literally, three times.
She used it three times.
And then his unique appearance
by which she means the braids.
So clearly the prosecutor understood that video,
and this is not me.
The prosecutor understood that video was not dispositive.
And so the question ultimately is not could a jury,
and this is the most important thing,
the question is not
could a jury reasonably have concluded
beyond a reasonable doubt that looking at this video,
that that was Derrell Fisher?
That's not the issue.
Defense counsel moved to exclude this,
and the court denied that request.
The question is whether if that was inadmissible,
if that opinion was inadmissible,
did the erroneous admission influence
the jury's opinion about that?
Or did it have but very slight effect?
And so I need to go back to why all the reasons why
this opinion had...
Well, there's a couple different things.
I wanna go back to 403.
Your honor, correctly hit the guidepost 701 and 403.
I've covered 701.
403.
And you noted, Justice Georges,
that there was a limiting instruction.
The limiting instruction, as I've already said,
was the judge's effort.
But there was a huge amount of prejudice here
that couldn't be cured by any limiting instruction.
So first of all, in any 403 analysis,
you start with the probative value.
For the reasons I've already indicated,
there was no probative value.
He didn't have any familiarity with this person,
and whatever he had,
it wasn't familiarity that the jury could possess itself
because of these booking photos.
But he didn't add any value.
But now let's look at the prejudice prong.
-: Counsel, before you go onto the prejudice prong,
you mentioned in the supplemental appendix.
Did the booking photo,
did your client have a hat on in the booking photos?
I just don't.
-: He does not have a hat on.
And so I'm gonna get to that,
that's important and helpful to us.
The sources of prejudice.
And this is very helpful because Wadsworth
had the exact same sources of prejudice.
So you don't need to take my word for it
about whether this was prejudice.
Wadsworth had the exact same points of prejudice.
First, the identification opinion was of a police officer
who brings a greater imprimatur of authority.
I've already talked about that.
Justice Gaziano mentioned this in Therum argument.
This is the super witness,
the police officer who marches in and says,
"Let me tell you the answer to the question here,
the ultimate question.
Who did this?
That guy.
That's what this really is."
That's incredibly prejudicial.
And the court, again,
that's not Chauncey Woods rhetoric, that's the court,
although it is.
But that's this court's decision that's precedent.
That's boring old appellate precedent, SJC Wadsworth.
Secondly, in Wadsworth,
the court noted that the officer offered bolstering,
specifically the officers.
They viewed this video footage four or five times
over and over and repeatedly
suggesting their opinions concerning its content
merited greater weight than that of the jurors.
In our case, the O'Brien testified
he watched this video dozens of times.
It's in words.
-: In Wadsworth, we had the charts with,
look at the sneaker and all that.
I tried the Darty case, so the Cody.
So here, I guess the only distinction
between this case in Wadsworth
would be the limited instruction,
which didn't happen in Wadsworth, correct?
-: Well, I mean, so-
-: I know you're saying the limited instruction was faulty,
but is that the distinction?
The distinction between this case in Wadsworth?
-: So you're referring in Wadsworth,
I don't know the this specific point,
but if what you're saying is one
of the police officers actually went through the exercise
of pointing out points of similarity,
that's actually helpful.
-: Yeah, 'cause in words, they had a blow up
of a grainy thing, and then the defendant, they said,
"All right, stripe on sneaker, stripe on sneaker."
Blah, blah, blah.
-: That sort of thing is arguably more permissible.
Here, my first point before I get to your point
is that didn't happen here.
That O'Brien didn't make any effort to point out,
well, I might, I think I'm overstating it.
I mean, I think he might-
-: We have a police officer says, that's him.
-: Yeah, yeah. -: As as opposed to...
Look at the thing. -: Exactly.
It's the larger,
let me step back and say conclusion.
That's him.
That's the biggest problem.
But beyond that, I mean,
there are lots of similarities Wadsworth,
which was reversal.
The limiting instruction.
I don't know the answer about the limiting instruction.
I take your word for it,
that there was no limiting instruction in Wadsworth.
-: That's my memory, but I could be wrong.
-: I don't know. I don't know.
-: Also, in Wadsworth,
we had four different police officers
and Wadsworth doing it, right?
Wood: Yeah.
-: It was done by four different cops.
-: Yeah, I mean, the cumulative effect,
this was the lead investigator and he said,
"I watched it dozens and dozens of times."
I don't think that that's a material distinction.
I think that it's clear that he was the case officer
and his opinion, he was brought in as the superhero
to give the opinion.
But there's more.
That in Wadsworth, I wanna point out
the similarities to Wadsworth.
There's just two more, so bear with me.
I know I'm over.
The prosecutor elicited O'Brien's lay idea opinion
before the jury could watch
the surveillance video themselves
creating cognitive bias in the jury.
This is complicated.
And so rather than spend a lot of time on it,
I'd lay it out the chronology in at page 31
of my reply brief.
But the point is, the prosecutor says,
and this is from the witness,
"What are we gonna see in this video?"
"You're gonna see the defendant."
"Okay, now show them the video."
What are they gonna see?
They're gonna see the defendant in this matching exercise.
In Wadsworth, this court recognized that's priming,
which creates cognitive bias.
Court's words, not mine.
The exact same thing happened here.
And then finally, the improper testimony in this case
was extensive and went to the central issue.
Again, Wadsworth notes three things.
Extensive, central to the Commonwealths case,
and the prosecutor focused on it in closings argument.
All three points the same in our case.
Extensive Trooper O'Brien offered this opinion five times.
The ADA adopted it five more times.
So to the question of materiality, your honor,
four witnesses, I don't know how many times they said it,
but we got 10 references in O'Brien's testimony to this.
-: But there is a difference when four people say,
"This is the guy,"
as opposed to one person saying it's a guy.
I mean, people have trouble disagreeing
when four different people say it's that.
Versus, okay, that's his opinion versus my opinion.
There is a difference.
-: Well, I respectfully submit that,
at least on the facts of the record of this case.
The importance of Trooper O'Brien and the length
of his testimony that it's not a material difference.
That's my respectful opinion.
It was extensive in my view.
It was central.
There was no other evidence that placed Fisher at the scene.
And third, the prosecutor focused on it in closing.
And I know I'm out of time, but I think this is crucial,
she didn't just focus on it, in closing.
She violated this court's second relevant precedent
on this case, Davis.
Now I'm not in the business of defending prosecutors,
but I will note that Ms. Lynch made this argument
before the court decided Davis,
for whatever that's worth.
And I think she was...
Strike that.
In any-
-: I'm gonna ask you to tear it down
because you are almost five minutes.
-: Distinctive braids and unique appearance.
We have a Black man.
And first of all, he's wearing a hat.
Now, your Honor asked about the hat,
the hat is a problem for the commonwealth because the hat,
as the scientific evidence indicates
when you cover the hairline, you make it more obscuring.
There's no evidence linking Mr. Fisher to that hat,
to any hat.
So this accomplice in the video wearing a hat
makes it more difficult to engage in this matching exercise.
It's not relevant.
It's irrelevant, it's harmful.
I mean, it's relevant because it's harmful.
So the point though on the distinctive braids
is all you can see is about an inch
of what looked like braids underneath the hat.
And so what she's saying are distinctive braids
are about that much about an inch of braids
underneath the hat.
Davis, the braids went all the way down to mid back.
So arguably, that's more distinctive.
This is not distinctive and it's not unique.
And I submit that that was clearly an error.
-: Chief, let me ask a couple follow up questions
because you seem to be backing into the whole back
into the 701 issue.
Because if all of this is true,
doesn't that bolster the judge's determination
that this would be helpful to the jury
on the issue of identification?
If all you're saying is this,
because there was testimony from the girlfriend
that she had braided Mr. Fisher's hair
within some proximity to the night of the crime,
you have this issue where you're saying by your own argument
that the hat makes it a little bit more difficult
to do this matching thing.
The matching thing that you say they could do
without O'Brien's help on the video versus the booking video
that we could do this matching thing,
but I think you just conceded
that you couldn't really do that because of the hat.
So again, it seems to back end in this issue that the judge
did not abuse his discretion in making the determination
that the Trooper's testimony would be helpful
to the issue of identification.
But this is the point I wanna get to.
If you accept that out and you say
that there's no other testimony
that puts Mr. Fisher at the scene,
you still have the other ones that we didn't get into
because it's the issue with the motion to suppress.
The consciousness of guilt evidence
of the statements that Mr. Fisher makes.
Now, I couldn't necessarily tell from your argument
in your brief.
Are you still saying it's a totality of the circumstances
consideration on adding the groom factors
to the issue of race?
I mentioned that because it seems as if in your brief,
you elevate race over the other broom issues
because the testimony was short.
It was only about a couple different things.
All of the other things seem to militate in favor
that it wasn't custodial, that it wasn't coercive,
all of the other factors we go into.
So is it just race?
Is race the super element
in the totality of the circumstances?
-: So, Your Honor covered a huge amount of ground
and I'm gonna start with the question
you clearly want answered, respectfully.
This is the first issue in the brief.
The answer to your question is, it sounds...
No, I'm not elevating race over the other groom factors.
What I'm saying is that the court should add,
and add is even I think unnecessary.
It's clear from JDL that the court is supposed to consider
all of the relevant factors.
And so I think what I'm saying is that in addition
to all the groom factors recognized
in addition to what JDL says,
as part of what JDL says, the court
should include race in that determination.
-: May I ask you, because I should know this,
but is the affidavit in support of the motion to suppress
in the record?
-: I don't know, and if it's not, I'm happy to-
-: Well, I'm asking because does,
does your client raise in the affidavit
that because of the disparity between me and the other,
all of these white officers, that I found
that my willingness to speak was overborne
by the circumstances that I found myself
in that Burger King parking lot.
-: Again, I don't wanna guess.
I have no idea about the answer to that question.
And on the issue of, I think you also touched on-
-: Matter as to whether this is preserved.
-: We're talking, so sorry.
Your Honor, I'm trying to follow the thread.
I think you're asking if Mr. Fisher
didn't complain about the racial issues
in feeling intimidated by the police officers,
a young Black man,
we've waived the claim that you should consider race.
Is that the argument?
-: I don't know that it's the argument,
but what I think it does
is it gives the commonwealth to be on notice
that I've gotta now martial evidence to demonstrate
that race had nothing to do with this.
However it is that they can.
In terms of initially when you started,
you said that Mr. Fisher was surrounded by 10 officers
in this parking lot.
And as I read the testimony in the motion
to suppress hearing, that wherever it happened, it was one,
maybe two officers, there were some other officers
that were told to leave from another community.
There was another set of police officers
from another community that were watching the road.
So this idea, again,
of demonstrating to the court that it's not 10 people
surrounding this gentleman,
it's giving the commonwealth an opportunity to defend
against the fact that it wasn't race.
-: I think that there's so much there,
and I know that I'm not allowed to,
my time is already up.
But what I would say is I commend the court
the 33E dive that you're gonna do.
I stand absolutely firmly behind the claim
that this, put race to the side.
This was an remarkable takedown.
That's the police officer's words.
A remarkable takedown.
13 officers surrounded this car with at least one gun drawn.
The guy who's the point man.
They were all white and there are three Black guys
in the car.
There's no doubt that this was an overwhelming
show of force.
There's also no doubt because the motion judge found it
that when they pulled Fisher outta the car and two officers
put their hands on him and pat frisked him, he was seized,
he was not allowed to leave.
The question, and I put a side race.
And this doesn't depend on race.
Race is not dispositive.
There's no dispute that he was seized
by these cops, guns drawn.
The question is,
and then sitting next to him, his cousin says,
"Can I leave?"
And the cops say, "No, you can leave when we're done."
He hears that.
Now, Fisher gets taken to the side by two other cops
and they say before beginning what the trial judge admits
is interrogation in a homicide investigation.
The cop says, "You can leave if you want to,
but I wanna ask you some questions."
Fisher says, "Okay."
And then they ask him the questions.
What I'm saying is, that's all undisputed.
Forget about race.
That brief statement.
"You can leave if you want to,"
before he interrogates him in a homicide,
cannot undo what the court already found to be custody.
You can't leave.
So that's the core of that argument.
-: Didn't the court found the opposite?
That he wasn't seized for constitutional purposes
such that Miranda was necessary?
-: Sorry, I wanna be clear.
The court found that when he was pulled out of the car
and pat frisked, he was not free to leave.
That's what the court found.
And then when the officer took him to the side
and before he interrogated him
and he found this was interrogation,
he said, "You can leave if you want to."
The court of the trial found that that statement,
"You can leave if you want to"
transformed this not free to leave into free to leave.
That's what the court found.
And that point is what we're saying.
That couldn't transform not free to leave
into free to leave.
That's what we're disputing.
But just one last thing because the braided hair,
this is crucial.
-: I think we've heard about that.
-: You already talk about the braided hair.
-: Sure.
I'm just gonna say the girlfriend braided his hair,
it's not relevant.
The police, I apologize, I apologize.
Thank you very much.
Thank you.
-: Okay, Attorney Elliott.
-: Thank you.
May it please the court,
Assistant District Attorney Christa Elliott from Middlesex
on behalf of the Commonwealth.
The Commonwealth requests that this court affirms
the judgements against the defendant and declines
to grant relief pursuant to 278, section 33E.
I will turn first to the issue discussed by my brother.
The trial judge in this case did not abuse his discretion
by allowing Trooper O'Brien to testify that he recognized
the defendant as the same person captured
in the hotel surveillance videos.
I first wanna address my brother's point
in his claim that the Trooper O'Brien's identification
was the centerpiece of the Commonwealth's case.
This identification was certainly not the centerpiece
of the Commonwealth's case.
-: How is this different than Wadsworth?
-: This is significantly different than Wadsworth
because in Wadsworth,
the improper identification evidence was extensive.
There were four separate officers who testified
and presented different side by side photos,
which contributed to the authority
of those identifications that were being made-
-: By saying it wasn't central,
you're allowing and I think you have to
that it was improper, correct?
-: No, we are not allowing that it is improper.
We absolutely believe that the trial judge
did not abuse his discretion.
This was a fully litigated motion in limine hearing
in which the decision was made
after a fully litigated motion in limine hearing.
-: Yeah, I don't get how...
Again, it's a super witness how a police officer can say,
"Yup, I've got specialized.
That's him and you're gonna find out it's him."
How's the police officer able to do that
when the jury should do that?
I mean the judge appropriately instructs at the end.
That's your call.
It's not the officer's call,
but why is the officer doing it in the first place?
-: Well, because the officer has a special familiarity with,
the judge has made that determination that the officer
has a special familiarity with that witness
that the jury cannot possess.
-: So are you saying that's more like somebody
who knows a friend or something?
That don't worry too much
if I'm making an identification of Justice Gaziano
in a photograph.
-: A colleague. -: A colleague, sorry.
Not a friend.
(judges laughing)
-: I would just say that it is certainly similar.
It's not quite the same
as if you have a friend identification
where there is some extensive multi-year familiarity.
But certainly, it is more similar to that and the.
-: The jury has the same familiarity 'cause they see the guy
during the trial.
-: But the judge specifically found in this case
that the appearance of the defendant was different
at the time of the trial than his appearance was
in the surveillance videos or during the stop.
And here, we do have some photos of the stop itself
in kind of an unusual twist given
that there was a journalist who was on scene
who actually provided photos of the stop.
-: I'm just trying to understand how this case
will be limited.
Won't police be able to do this every time?
That the arresting officer by watching video repeatedly
will always be more familiar enough to do this?
Or how is this limited, I guess?
Was that clear? My question?
I'm worried that every time officers
will be able to develop,
the arresting officers will be able to develop
this special familiarity with video.
-: Can I follow up with Justice Kafker's point?
Because do you agree with your brother's seemingly take
from Wadsworth that there's a bright line
that we set out in that case.
That if your familiarity is based on watching the video
before you have any personal interaction, that you're out.
-: Yes, I do not agree with that assessment
that that is what Wadsworth stands for.
I will acknowledge that certainly the vast majority
of our case law does involve a situation
where a police officer has a prior familiarity
before they watch that surveillance video.
And I would also note that unfortunately, the vast majority
of the case law in this area is unpublished.
And so I would draw the court's attention
for whatever it's worth,
acknowledging that this is an unpublished decision
and it is persuasive only to Commonwealth v Barry.
That was decided on August 3rd, 2017
and that's Appeals Court docket 15P1508.
That was a case that specifically found that a detective
had sufficient familiarity
from watching a surveillance video
before going and then finding the suspect-
-: I thought a case law, if I remember it right,
says something like you have to be familiar with the person
and it can't be from police interactions.
So it has to be someone who knows someone
from a neighborhood.
A cop happens to know the person not from doing FIOs.
We've said that in cases.
And this seems to me more of the FIO flavor
than the I know from the neighborhood.
-: And I certainly recognize the concern
that is raised by Your Honor.
I would note though that this again goes back-
-: As we get more and more video surveillance
in every case we see, these ground rules
seem a little shaky to me.
That we need to be clear to the bar and to the police
and defense bar what the rules are
and not to have or sanction these super witnesses.
-: Certainly.
And I simply don't think that we have a super witness here
in this case.
And I want to go back to the fact that the judge did in fact
make a determination in this case after a full hearing
that a single officer could make this identification.
He specifically weighed
the potential prejudice with against the probative value
and found that in this limited circumstance,
that this identification could occur.
Additionally, there simply was no substantial prejudice
to the defendant in this case.
-: I'm trying to understand why.
I'm not saying you're wrong,
I'm just trying to understand.
So again, the officer's familiarity with the defendant
is just arresting him, right?
And then he's given this sort of capacity to say that's him.
Are there any limitations on that?
I'm just trying to figure out what the limitations
are gonna be.
-: I think that certainly one of the limitations
would be looking at the quality of a video.
-: But if it's really clear,
the police officer shouldn't testify.
-: Certainly.
If it's very clear then we would wouldn't have one of-
-: That is murky ground,
which most of them are frankly...
Most of them are in Hollywood quality
and the ones that like Davis
that are just simply blurs aren't relevant.
So what we're really litigating
are the ones in between, correct?
-: That is correct.
-: And again, I just don't know how we sanction
in these police officers to testify.
You might be saved by the instruction, I don't know,
but I just don't get how this is different from Wadsworth
given the centrality of the identification to the case.
I mean, in the fact that the prosecutor, rightfully so,
uses it in her closing argument 'cause it was introduced,
it was allowed into evidence.
-: Well, Your Honor,
I would respectfully disagree that the prosecutor utilized
the identification in her closing argument.
In fact, what she did was she specifically called
the jury's attention to the fact that they needed
to look at that video and make a comparison.
And she actually cited to the booking photos and to compare
the booking photos with what they were seeing
in the surveillance video.
She never actually invoked Trooper O'Brien's identification
of the defendant.
Judge Gaziano: I might have missed that.
She didn't do that?
-: Did not invoke it.
And I certainly would request that this court look
at the citations that my brother makes
because I've reviewed all of those citations
and from my reading, there is no invocation
of Trooper O'Brien's identification in closing.
-: I'm sorry, go ahead, go ahead.
-: Counsel, if I remember correctly, was Ms. Gattuso's ID,
was that suppressed? -: Yes, your Honor.
-: So this would've been the only other evidence
independent of the video of the identification
of Mr. Fisher.
-: This would've been
the only other direct evidence, Your Honor.
But certainly, there was ample other
circumstantial evidence-
-: Is that what makes this different?
Because there was no other direct evidence of...
Could we say that would just be tough luck
for the Commonwealth if that's the case?
I say that and I'm not trying to be glib
that we said what we said about police officers coming in
and saying that's the person.
And what the jury can infer from that
because the police officer does that.
And I take Attorney Wood for that point.
We said that.
But here, there's nothing else.
So is that part of the calculus for the judge
in unmistakably clear?
It's not unmistakably clear and there's nothing else to help
the jury hear about because Gattuso's testimony's out.
Is that part of the calculus or should it not be?
-: I don't believe that that is specifically part
of the calculus here because you are specifically looking
at a discreet evidentiary ruling based on the video itself
and based on what that officer is able to observe
from the video and based on the other police factors.
And those police factors do not contemplate porting in
additional evidence that has or has not been excluded.
And certainly, I think if this court were to start
pulling other factors
based on the state of the Commonwealth's case
into this analysis,
I think that we would run into some significant difficulties
with the court weighing in on the evidence itself.
-: So the evidence we have,
the video evidence is properly admitted.
The problem is the officer's overlay on top of that.
We have his admission.
It's the comment that Jeune says to him, "It's on the news."
What does he say it when he is arrested?
The incriminating comment that he says when he's arrested?
-: The incriminating comments
were when not when he was arrested,
it was when the car was,
when he was interviewed at the Burger King.
-: What did he say?
-: He specifically said that when he was asked
where he was on the night of the crime,
which had not been defined for him,
he said that he was at work
and that would've been at Logan Airport.
And then he also provided his phone number.
And the officers recognized that phone number
to have been one of the phone numbers
that was in communication with co-defendant Jeune's phone.
-: Okay.
And we don't have any CSLI, we have none of that here.
Do we have any other identifying evidences
we haven't brought up in the briefs or?
I haven't read the transcripts yet.
-: So the CSLI for the defendant was very limited.
There was not a CSLI that was admitted for the period
of the crimes themselves
but the CSLI for the defendant does show
that he was in Boston both before and after the crimes,
which is in the approximate location
where his co-defendant was.
So there is that particular CSLI evidence.
-: And that that correlates to the videos, right?
Because you had the co-defendant going to Red Roof
to the other one, to the other one
and ending up at the extended stay.
Christa: Correct.
-: And you had video of Mr. Fisher in all three.
-: Exactly.
So we do not have the CSLI
of the defendant's phone at those locations
but we do have him on video.
And with his CSLI showing that he
and the defendant were together both
before and after the crimes.
-: Because this is distinctive clothing.
Is any of this clothing found?
-: Yes, what was is presumed to have been
the defendant's pants that he was wearing in the videos
was in fact found during the search warrant of his house.
And that those pants were in fact introduced into evidence.
-: I mean, I thought the shirt was distinctive.
What is it about the pants that's distinctive?
-: The pants have kind of a cinched bottom to them.
They're black baggy pants with a cinched bottom.
Certainly, the shirt that co-defendant Jeune was wearing
is far more distinctive than the pants,
but the pants that were consistent
with what the defendant was wearing-
-: So everything you got, 'cause the briefs,
I mean, there are a lot of issues raised in the briefs.
So everything about identification that could lead us
to saying that the cops overlay was not prejudicial.
-: Of course.
So first, there is the defendant's statement
regarding his alibi that shows consciousness of guilt.
We have the confirmation that he did in fact have
similar braids to what is seen in the video at the time
and at the time of his arrest by his girlfriend
who testified that she had in fact at that time,
done his braids for him in that style.
We have his communications with his co-defendant
in the immediate aftermath of the murder.
The two of them were in constant communication
and that the phone records are included
in the Commonwealth supplemental record appendix.
Including that one statement,
that one text message statement from Jeune to the defendant
saying, "It's on the news."
There's also the fact that the co-defendant Jeune
changed his phone number immediately after the murders
and the defendant-
-: There's a ton of evidence on Jeune.
Focus on Fisher.
-: Of course.
And then defendant Fisher started texting
that new phone number and so clearly indicating
that the two were in communication
around that phone number switch.
The pants that were found in his house,
as I've already discussed,
is certainly evidence of the fact
that he was the same person in the video.
The descriptions that were provided
from Gattuso certainly match.
-: Quiet match, right?
Because someone describes the person, the first street.
The first sex worker describes him as 5'4, right?
And he's a much bigger guy.
-: She describes the defendants as approximately her height
and describes herself as I believe around 5'4.
How big is Jeune?
-: He's, I believe, a little bit shorter
than the defendant is.
So certainly, there are some inconsistencies there.
But the testimony was also that Michelle Gattuso
was on the floor with a gun to her head
for the vast majority of this interaction.
And then as we've already discussed,
the other identification evidence or evidence
that goes toward identification is that the defendant's
cell phone location was in Boston
both before and after the crimes,
along with co-defendant Jeune at the time.
And so for all of those reasons,
the Trooper O'Brien's identification simply
did not prejudice the defendant in any meaningful way.
Also think it's important to focus on exactly
what Trooper O'Brien did testify.
He specifically testified to really only about
two separate instances
where he was identifying the defendant.
And in the first,
he testified that he recognized that the person
in the front passenger seat was the same person he had seen
in the extended stay video the night before.
And that was Derrell Fisher.
It was uncontested that Derrell Fisher
was in fact the person who was in that front passenger seat.
And so it was a very brief bit of testimony at that point.
The only other testimony in which he was identifying
the defendant was where he testified
that based on this surveillance video,
which was the Saga's surveillance video,
I believed that it was the same person
in the extended state video from Burlington,
the Red Roof in video
and I believe that it was Derrell Fisher.
This was not a completely unequivocal statement of surety.
It was a, I believe this is who this person was.
And that absolutely comports with the instructions
that the jury then received at the end where they were told,
you need to make this determination.
You have to be the ones who decide who it is in that video.
And the jury was further instructed that they needed
to determine whether or not Trooper O'Brien
was either incorrect or making a false statement.
They were explicitly instructed both contemporaneously
at the close of the direct exam of Trooper O'Brien
as to this fact.
And they were instructed during the general instructions
at the end.
And so for those reasons, simply, there was not prejudice,
even if this wasn't improper identification.
I will turn next to the question of the suppression
since that was hit upon it briefly by my brother.
And in this case,
the motion judge properly denied the defendant's motion
to suppress where his statements were not a product
of custodial interrogation and he was thus not entitled
to Miranda warnings.
-: Have other cases where someone's in custody
than not in custody?
-: I have not specifically looked for a case where someone
was in custody and then not in custody, but here, the-
-: It seems odd to me that with all due respect
for Judge Fishman, the police take down this vehicle,
he's hauled out of there.
One person's told they can't leave.
Clearly, he can't leave.
It's custodial at that point.
And then when they speak to him, they say,
"Oh, you can leave."
Now he's magically not in custody.
I'm just wondering if there are cases that say
your custody status changes.
-: Well, we certainly have cases that talk about
how a terry stop does not necessarily arise to custody
and things of that nature.
I certainly recognize what Your Honor is saying.
I think that we do have two very dis-
-: There are terry stops and then there are terry stops.
Christa: Of course.
-: There's a, "Hey, come here, I need to talk to you."
And then there's the takedown.
-: Of course, and I think the takedown,
it does not actually adequately describe what happened here.
We had the three men who were in this vehicle,
police did come up to-
-: The the blue lights and a gun drawn, right?
-: But there was no evidence on the record
that any of those men in the vehicle saw that gun drawn.
There was a gun drawn, but even the defendant's own witness,
Romaine Price did not testify that he saw a gun drawn.
So there's simply no evidence what any of those-
-: How many cars stopped the defendant's vehicle?
-: I believe there were three officers initially on scene
from Woburn who had originally seen the vehicle.
-: In one police car?
-: They weren't one police car.
I simply don't recall if it was two or three police cars.
But of course, the vehicle was stopped.
The police came up to the vehicle
and while the men were still inside that vehicle,
they were also explicitly told
that they were not under arrest
and that the officers were interested in the car.
They were told, the officer said,
"You may have had nothing to do with this.
We are interested in this car
because it may have been involved in a crime."
And so when the defendant was asked
to step out of the vehicle,
that would've been his understanding at that.
-: Pat frisk?
-: I'm sorry, what was that, Your Honor?
-: Pat frisk?
He was pat frisked once he got to the back of the vehicle.
And so Judge Fishman specifically said
that he was not free to leave at that point.
-: So I'm wondering if we have any cases or if you are aware
of anything where someone is taken down, pat frisk,
not free to leave, and then all of a sudden,
they're free to leave.
I'm not aware of any, but are you?
-: I'm not personally aware of any off the top of my head.
I can certainly do a little research into that
and submit a letter if Your Honor would appreciate.
-: I would. -: Okay, of course.
-: And it might be the opposite as well.
-: Of course, of course.
I will certainly submit that letter.
But regardless here, we have a situation where assuming
that we are at a point where the defendant is now far away
from the vehicle, which he was,
then he walked over to a separate portion
of the Burger King parking lot.
He was explicitly told, "You are free to leave,
you're not under arrest."
Asked a couple of very basic questions.
And of course, acknowledged that he was free to leave.
He was asked a few very basic questions
and then ultimately did leave the area.
He went behind the Burger King.
-: We he handcuffed at any time?
-: He was not handcuffed at any time.
None of these men were handcuffed at any time.
So he went behind the Burger King,
he spoke with his friends,
he spoke with the Burger King employees.
He went into the Burger King.
He ate his Burger King meal and then asked the police
to call a cab and ostensibly left in the cab,
he was not arrested at that time.
Simply none of the factors weigh in favor of determining
that the defendant was in custody under the groom factors
and the motion judge properly denied
the defendant's motion to suppress.
If there are no further questions, I would rest on my brief.
-: There was one question I had.
In response to a question or the issue
of an accident instruction.
You write that in a felony murder case,
you don't get an accident instruction.
-: Yes, and the Commonwealth acknowledges
that our brief should have probably more artfully said,
it is unclear at this point whether or not a defendant
would be entitled to an accident instruction.
-: Do you think that law survived Brown?
-: I would say that it may not have survived Brown, but-
Judge Gaziano: I think you're right.
-: Certainly, there was no entitlement
to an accident instruction here.
-: Okay, thank you very much.