-: SJC-13344.
Commonwealth versus Dewane M. Tse.
-: Attorney Sheketoff.
-: Good morning, Your Honors.
Robert Sheketoff
for the defendant appellant Dewane Tse.
I raise only one issue
that the motion for required finding of not guilty,
I believe,
and this court will correct me if I'm wrong,
that this case is controlled by your recent decision
in Commonwealth versus Baez.
In any event,
the Commonwealth conceded in its opening statement
that their theory of the case
was that the defendant was the driver
of the vehicle that the shooter got out of
and then shot the victims.
And in order to get a conviction on that theory,
they would have to show that my client
was in fact the driver,
that in fact the car that they focused on
that he had rented.
-: So if we cut to the chase
in a light most favorable
in looking at Baez and Baxter,
which are really the cases
I think in everyone's mind,
can we say in a light most favorable
you lose on participation
given the GPS and the car coordinates,
but your issue is on shared lethal intent?
-: So I think that is my best issue,
shared legal intent,
but I don't think I lose (laughing)
on the participation either. -: Convince us then, I guess.
-: Okay, this is why.
This car rented from Maven,
which was some sort of car-sharing service
that doesn't exist anymore,
requires a cellphone of the person that rents it,
this is the testimony at trial,
to turn it on.
So if I'm gonna loan this car to somebody
as the person that rented it,
I have to give 'em my cellphone too.
Otherwise you can't turn the car on.
And in this case,
the car was turned off
immediately after the shooting,
and it stayed off for approximately 25 minutes,
and then it was turned on again.
When it's turned on again,
it's found some distance,
but not that far distance,
from where the shooting took place.
So no one saw anyone in this car.
There's video of the car,
Obviously I would suggest the Commonwealth
can prove this beyond a reasonable doubt,
following the victim's car.
But it's unclear who was in that car.
-: You have two bookends of him renting the car.
At least he's on video, right?
Robert: Right, but one is--
-: Renting the car and returning the car.
-: Right, one is him renting the car.
Arguably it's him,
you can't really tell for sure,
but someone similar to him
renting the car two days earlier
and returning it an hour afterwards.
Gaziano: Can I ask about the two days earlier
'cause? -: After the shooting.
I'm sorry. -: After the shooting, yeah.
-: Can I ask?
There's a statement in the Commonwealth's brief
that I'm gonna ask your sister about,
"But the gray car
eventually drove away without this person."
Does the person who rent the car
transfer the car and the key
to someone else on August 12th?
Is that what that statement is saying?
There's a reference, I read the transcript references
and the exhibit references,
I can't follow it,
'cause you have to watch the video,
which I haven't done yet.
-: Okay, (laughing)
there's no evidence in the case
that he was driving the car
and there's (laughing) no evidence in the case
that he loaned the car. -: Well, it's a very
particular question.
-: Yeah, there's no-- -: On August 12th,
I think the evidence is he rented the car.
But when I read her brief,
it suggests that he transfers the car
to somebody else on August 12th,
but I may be misreading the brief.
-: So I don't think that's the Commonwealth's position,
but they can speak for themselves.
There's just no evidence on this topic
of whether he ever loaned the car to somebody else
or was driving it on the date in question because--
-: But, Counsel, I mean, and again,
I know you're saying you're not giving up
the participation prong,
which I don't think is a very strong argument for you.
But nevertheless, you still have CSLI from the phone
that's attributable to your client
in the area before the shooting.
-: That's correct, Your Honor.
But in the circumstances of this case,
if I'm gonna loan this car to somebody,
I also have to give 'em my cellphone.
-: I thought you had to just download an app
on to your own cellphone.
Maybe I've mistaken the facts there.
-: So whatever we might think of this testimony,
the testimony is actually clear,
according to the Maven expert,
in order to turn this car on and off
after downloading the app,
you need the cellphone that downloaded the app.
It connects to that phone number.
So it-- -: So just
to follow the thought,
why can't that be the defendant's phone?
Robert: Well, it is the defendant's phone.
-: Oh, okay, all right, I thought
you were suggesting it was- -: I'm not saying it's not
the defendant's phone. -: somebody else's.
-: I'm saying that if he loans
the car to somebody-- -: He owns the phone
and owns the car?
-: Yes. -: The phone being
the key essentially.
-: The phone is the key to the car.
You can't turn the car on and off without the phone.
And this car is turned on and off.
In fact, (laughing) it's turned off
right at the exact moment of the shooting,
and stays off for 20-something minutes.
No one sees my client in that car that day.
There is a picture of someone
that resembles my client
returning the car an hour after the shooting.
No one ever sees a second person in the car, ever.
No one sees a person leave that car
and walk down the street.
That's inference on inference.
And no one sees the shooter
get back into the car.
Whether this car was involved in any way
other than following this vehicle is,
I suggest, speculation.
-: Okay, I know you're gonna say
that you can minimize this,
but again, the framework still is
in the light most favorable to the Commonwealth.
You also have, when the police went to go interview him,
he conceded that he's rented Acadias before,
both blue and red.
And again, I know you're gonna say
that that doesn't amount to anything
other than inference upon inference upon inference,
but at least with the participation part,
I think we all really are interested
in the shared legal,
we get your point on that,
the shared lethal intent part
is the part that really is where the rubber hits the road.
I know we say that there's Baxter and there's Baez,
but here the Commonwealth lays out
through the surveillance videos,
through the CSLI,
through the information
with respect to who rented it
and what was done right after
an hour after the shooting that it was returned.
Why isn't this a little bit more
than what we had in Baxter and Baez?
-: So I would suggest it's a little bit less
than you had in Baxter and Baez,
because there's no evidence.
First of all, in terms of returning the car,
it had to be returned that day.
Maybe it's a couple of hours early,
but it had to be returned that day.
There's no motive for my client.
There's no evidence of who the second person was,
what my client's,
assuming it was him that was driving,
what my client's relationship
with that person would be.
There's no suggestion that that person
ever said anything about wanting to kill this person.
There's no evidence that a gun was shown to my client.
There's no evidence that there was any talk
about doing anything to this person
before it happened.
And there's no evidence
that the shooter got back into the car afterwards.
I think Baez is a stronger case
for the Commonwealth than this case is,
because in Baez, he clearly picked up,
in the light most favorable to the government,
he clearly picked up the two shooters
after the shooting.
So I don't see any basis
for inferring a lethal intent for my client.
As this court has said before,
even if you can infer an intent
to do some sort of harm to the victim,
in order to get a first-degree murder conviction,
or armed, or assault with intent to murder conviction,
you have to show a lethal intent.
There is just total guesswork to suggest that,
I would argue.
(Robert laughing)
So I can't emphasize enough (laughing)
that in the unique circumstances of this case,
the CSLI does not put my client at the scene
because if he loaned the car to somebody,
which is a common phenomenon.
In Swafford, Mr. Gittens was the owner of the car,
and that was not enough
because no one could say
that the driver looked like Mr. Gittens.
And Gittens had a motive in that case.
I suggest that you can't even put my client in the car,
and you certainly can't put the shooter in the car.
But I concede that my best argument
is the state of mind.
Thank you. (laughing)
-: Okay, thank you.
Attorney Paris.
(pages rustling)
-: Good morning, may it please the court,
Molly Paris on behalf of the Commonwealth
asking that this court affirm
the defendant's convictions.
I'd like to start out by distinguishing this case
from Baxter and their--
-: Can you just start out with a fact question?
I just don't know what you're saying on page 18
of your brief.
Are you saying that?
I just don't know what it means,
"The gray car eventually drove away without this person."
Does that video show
that somebody else went off with the car
after he rented it?
-: So, no, what the video shows
is a gray car pulling into the front
of the Government Center Garage,
the defendant exiting the car,
leaning forward to speak with whoever was driving.
And then the defendant then walks
into the Government Center Garage,
and there's video captured of him
walking down the hallway past the kiosk.
So that gray car is just someone
who dropped him off. -: So it's not the car
we're dealing with,
it's a totally separate car,
right? -: Exactly, totally separate.
I just got confused. -: Yeah,
and that's at about 2:16 on August 12th,
two days before the murder
and about five minutes before the rental.
So turning to the three reasons
why this case is factually distinguishable,
the first is that the defendant
was hunting the victims for about 2 1/2 hours
in Mattapan Square prior to spotting the victims.
The second is the aggressive following,
the pursuit from Mattapan Square,
up Blue Hill Avenue, to Deering Road.
And the third is that the shooter
was outnumbered two to one.
-: But in Baez, we had this hunting down, right?
So if my memory...
"Baez," I mean Baxter, (laughing)
we had hunting down essentially, right?
-: Yes, Your Honor.
But in that case,
the court found that the maneuvering alone was insufficient,
and here the Commonwealth's position--
-: You have longer maneuvering in this case
versus the maneuvering in Baxter.
-: Exactly, it's not only longer in terms of time,
but in terms of geographic location.
If you look at the maps,
you can see the relation from where
Mattapan Square is. -: But how is that relevant
for lethal intent when it could be relevant
to intent to do some type of harm?
-: Well, it's relevant when you take it in conjunction
with the fact the shooter is outnumbered two to one.
And as this court found in Baxter and Baez,
in those cases, the shooter and victim,
it was a one-to-one ratio
and both were on foot.
And the court expressed--
Wendlandt: Baxter, there were two
co-defendants- -: There were two shooters,
yeah, right. -: who ultimately killed
the victim.
-: I believe there was one shooter who--
-: And there was a witness that testified
that there were two people
that ran back to the car,
and one got into the passenger seat,
one got into the back.
So there were two people on the street.
But irrespective of that,
going back to Baxter
and the point that Justice Gaziano made,
all of these things that you point out in your brief
distinguish this case from Baxter,
it's just maneuvering, right?
I mean, it's maneuvering
that you're putting an overlay in,
but it's still maneuvering of the car
and it's a little bit different than even,
I'm blanking on the name that came after Baxter,
the Appeals Court,
it's different than,
I think it was Saunders or Sanders,
where at least in that case
they said the maneuvering,
you could still infer the lethal intent
because whomever shot at the other car
was in the car that maneuvered
in the way of the people that were ultimately shot.
This isn't a situation like that,
where even if we give participation,
the car drives up, maneuvers,
somebody shoots from inside the Acadia,
and then you drive off.
-: Well, it's the aggressive maneuvering,
plus when you take into conjunction the reconnaissance,
which is what this court considered in Watson,
and also again the two to one,
which is the shooter being the one
and the two victims
in the car. -: In Watson,
there was a beef though, right?
-: And there's no evidence of motive here.
-: Correct, there's no evidence of motive.
In Watson, I don't believe there was any evidence of motive.
But regardless, just going back to the two to one,
this court explicitly expressed concern
at oral argument in Baxter
that if there was a one-on-one,
wouldn't that equally likely mean
that it was a street fight
as opposed to a shooting?
And here what we have is the shooter
running directly down,
excuse me, walking directly down Deering Road,
walking alone,
firing directly into the Lexus,
and then sprinting immediately up Deering Road,
heading in the direction of Wellington Hill Street,
seconds after the Acadia arrived on scene.
And all of this happens
while the GPS puts the Acadia outside of 85 Deering Road.
So the jury-- -: What's the connection,
if any, between the shooter and the Acadia?
-: The connection is the close geographic
and temporal proximity.
So we know the Acadia turns
onto Deering-- -: So we don't have
the shooter coming out of the Acadia
or jumping back in?
-: We have video evidence
of the shooter walking down Deering Road
and then sprinting up immediately after the shooting.
Wendlandt: But not to and from the Acadia?
-: No, but we have circumstantial evidence,
and that's sufficient here.
What we do have is video showing--
-: In Baxter, we actually had the shooter
coming out of the car
and then running back into it.
-: And the jury could infer
that the shooter came from the car
given that the Acadia
turned onto Deering Road
a little after 9:41 in the morning,
is then seen passing 56 Deering Road at 9:42.
-: Do we have any evidence
about the number of cars at 9:30 in the morning?
-: In terms of the number of cars--
-: I mean, like was it a dark, desolate area?
Any evidence of? -: I believe maybe
there was one other car
shown on the several-minute video clip
of 56 Deering Road.
But an eyewitness testified
that at the time there was no one else
aside from the shooter who approached.
So again, just to finish,
after the Acadia passes 56 Deering Road,
the GPS puts the Acadia outside of 85 Deering Road,
which is just past the intersection of Deering Road
and Wellington Hill Street,
about half a block up, for three minutes.
Then we see the shooter walking past,
down Deering Road
in the direction of Blue Hill Avenue
at about 9:45 in the morning.
And seconds after the shooting,
we see him sprinting back up.
And that's all corroborated by eyewitness testimony.
-: Assume that we give you all of that though.
Still, the issue is the lethal intent.
I mean, we said in Baxter,
perhaps the jury could infer
that whomever was in the car driving
intended something to happen
to the person in that car,
but what's the evidence
that it was a lethal something
to happen to that person in the car?
We don't have all of the indicia
that we've had in the other cases,
where there was a gun,
we know there was a motive,
there was some other plus factor
that was proven to infer the lethal intent.
How do we get lethal intent here?
-: We know it's lethal intent
because there's two victims in the car,
Darrell and Amado,
and there's one shooter.
And so the defendant stays at 85 Deering Road
in this position of safety.
He knows he doesn't have to get outta the car
because it's gonna be a quick, lethal ambush.
And also the shooter's at a disadvantage,
he's on foot,
relative to the two victims who are in the car,
which makes it different from Baxter and Baez
where the shooter and the victim are both on foot,
they're on equal footing.
-: So is the mathematics though,
the only thing that?
Because no one puts the shooter in the Acadia,
no one puts the shooter in the Acadia
after the shooting,
and no one knows what happens
to the shooter after, right?
Because they released a canine,
they couldn't find anyone,
they never found the gun,
they never found the other person.
So how do we connect that math
and wouldn't that be inference upon inference if we did?
-: I mean, that's certainly an inference,
but the Commonwealth
doesn't have to disprove all inferences.
The most reasonable inference
is that where there is no one in the area of Deering Road,
according to John McIsaac
who was sitting outside of 34 Deering Road,
which was about two or three car lengths beyond,
closer to Blue Hill Avenue,
but past the red Lexus,
which was parked outside of 40 Deering Road.
And what we have is the temporal
and the geographic proximity, which is key,
which is the closest thing
we're getting to direct evidence,
and circumstantial evidence is sufficient here.
-: We have temporal proximity in all these cases.
In Baxter and Baez too.
They're right close by.
And even in those cases,
there's a relationship between, (laughing)
there's a closer relationship between the driver
and the people accused of being the shooter.
Here, (laughing)
they never found the shooter, right?
It's just a total guess.
-: That's correct. -: By the way,
does the video even show
that there are two people in the car
that's driving away?
-: The video doesn't show who's in the car specifically.
But again, we know that the--
-: Does it even show that there are two people in the car
as opposed to it could be just the shooter in the car?
-: No, it doesn't, but we know that it's not just the shooter
because, again, the GPS pings for the Acadia
between 9:43 and 9:46 in the morning
outside of 85 Deering Road,
which is the same timeframe
when we see the shooter
walking past 56 Deering Road,
and then immediately after the shooting,
sprinting back up in the direction of Wellington Hill
to where-- -: So what's relevant
is the driver's state of mind
at the time the shooter leaves the vehicle, correct?
Molly: Correct, his shared intent.
-: How do we know that,
well, what's the evidence that the driver
knew the vehicle was multiply occupied,
as opposed to just having a sole occupant
in the victim car?
-: The jury could reasonably infer
that from the fact that one shooter,
one person emerges from the car.
-: That's kind of a (laughing) circular argument.
Right, so there has to be one person,
unless it's I guess a self-driving car,
but (laughing) there has to be one person in the car,
but how do we know that,
when they're following the car,
that they know, "Uh-oh, there's two people,
better get your gun," or whatever, lethal intent,
how are we getting there,
other than speculation and guesswork?
-: So we know that
from the shooter's direct path to the Lexus
in his limited time on Deering Road.
-: That's when the driver's outta sight though, right?
-: Correct, so the Acadia has just,
minutes before, at about, again, 9:42 in the morning,
passed 56 Deering Road,
heading towards Wellington Hill.
A minute later, he's at 85 Deering Road.
-: Is there evidence that the driver of the Acadia
drove past in sight of the victim car,
or is it just tailing it?
-: Yes, the jury could infer that
because, again, the Lexus makes a right-hand turn
onto Deering Road at about 9:39 in the morning.
The Acadia then turns right onto Deering Road,
which is a one-way street,
at 9:41:30 in the morning. -: Okay,
so he's behind him.
-: Correct, he's about a minute and half behind.
Deering's a one-way street.
And we see on video the Acadia driving past 56 Deering Road
at about 9:42 in the morning.
And we don't see the Lexus ever past that.
The Lexus never goes north of 56 Deering Road.
And that's also corroborated by Darrell's testimony
that they parked outside of 40 Deering Road.
So just briefly turning back to the other issues,
in terms of hunting the victims before the murder,
this is very similar to Watson.
If anything, it's much stronger
because we have 2 1/2 hours CSLI and GPS
corroborated by video
showing that the Acadia
is circling Mattapan Square.
And we know that at the very latest,
the jury could've inferred that the defendant
saw the victims as they left Brothers
at about 9:31 in the morning
as he's turning off Fairway.
-: Could I go back to the hunting though?
So the hunting presupposes
that it is Mr. Tse that's the driver of the car
and you heard your Brothers still,
he contests that you were able to prove that,
and considering the delay
from when it was rented
to when this actually went down,
why is that a reasonable inference
that it is the defendant
that happens to be in the car
versus giving that phone,
which acted like a fob,
to somebody else that might have intended to participate
with the person in the car to do so?
In your brief, you say that one of the factors
in favor of that
is that he didn't live in the state,
that he's a Rhode Island resident,
or went back to Rhode Island.
Is that really enough
considering there's two days that a elapses
from when the defendant rents and returns it,
that it couldn't have been given to somebody else?
That it's a reasonable inference that it was him?
-: It's a reasonable inference that it's him
because it's unreasonable
that someone would give their cellphone,
which the court has said in Almanar
that a cellphone is his essentially a proxy for the person.
It's unreasonable that someone
would give their cellphone to someone else
for hours on end.
And that's what we have here.
We have the GPS corroborated by the CSLI
for 2 1/2 hours,
and then, again, shortly after the murder,
we have the CSLI and the GPS tracking each other,
corroborating each other,
in addition to calls before and after the murder,
as that car is traveling northbound up 93,
and then is in the area of Haymarket.
And then seconds, excuse me,
minutes after the Acadia is returned,
we see the defendant alone
walking out of the Government Center Garage,
and that's on video.
But to Your Honor's point,
the fact that he's from Rhode Island
makes that case different from cases like Baxter
where the defendant was from the Roxbury area of Boston.
So it could've almost been coincidence
that the defendant Baxter
was driving where he was at the time of the murder
because he's from that area,
it's more natural.
Whereas here, this defendant comes from Rhode Island
specifically with a plan,
two days in advance, rents this car,
includes all of his personal information,
including his phone number,
his email address,
that's then verified by Maven,
which is the rental company.
It's a short-term, two-day rental,
which allows him to rent the car
from the Government Center Garage
and not even interact with any humans.
And then, again, in terms of after the murder,
he's seen on video returning the car.
Sure, it was returned that same day,
but he returns it less than an hour after the murder.
The jury could certainly infer that.
-: But doesn't his phone go off the grid
for about a half an hour after the murder?
-: There's about a 25-minute gap,
but the relevant point
is that there's no video
showing that anyone else that morning
was driving the car.
In that case, this makes it distinguishable from Gonzalez
where in that case,
there was evidence that the defendant's boyfriend
had borrowed her car
throughout the day of the shooting.
And that isn't the case here,
especially when we consider that the cellphone
is used to operate the car.
-: How do you explain that gap though,
if the cellphone is used to operate the car?
The car is in one place,
then there's no information,
and then suddenly the car is in a different place.
-: So what we know is that the last GPS point for the Acadia
was at 9:46:32 in the morning
outside of 85 Deering Road.
That's about 25 seconds after the shooter
is last seen passing 56 Deering Road,
heading towards Wellington Hill Street.
And it's about 20 seconds after police arrive,
passing by 56 Deer Road.
So we know that by the time police arrive on scene,
the Acadia's gone and the shooter's gone.
And that's because Officer Burke
testifies when he arrives
at the intersection of Wellington Hill and Blue Ave,
excuse me, and Deering,
he's looking and he doesn't see anyone running.
He doesn't see any cars and--
-: But what about the gap though?
Because if you need the phone to operate,
what about the gap?
Because the only testimony that I came across
that talked about the expert testimony
that was offered on this particular rideshare app was,
you might lose the signal
if you're going into a tunnel or something else,
but they're on Deering Road in Mattapan.
And if the return point is Government Center,
what accounts for where that car is
if the fob is the phone?
-: So we know that there's this gap,
but we know that there's physical distance
between where the GPS lasts pinged
at 9:46 in the morning,
outside of 85 Deering Road,
and where it next pings at 10:11 a.m.,
which is in the area of Mattapan Square.
The jury could reasonably infer
that the defendant traveled to that area.
But regardless, we have corroborating CSLI and GPS
from that point 10:11 in the morning
consistently until 9:43 in the morning
when the car's returned.
After the car's returned,
about 50 seconds later,
there's a final phone call.
And the phone evidence
goes towards the fact of participation
similar to Javier,
where we have calls before the murder,
no calls during the relevant time.
In Javier, that was about 15 minutes
leading up to the murder,
and here it's from 9:34 in the morning until--
-: But your contention is not that he's the shooter, right?
If he's the driver,
he can be sitting in the car with the car on,
but the shooter... (sighing)
And the shooter is a skinny guy.
He's a 300-pound guy, right?
-: Correct, there was never any dispute
that the shooter was a different person.
-: I'm confused by your last point then.
So he's not running around shooting anybody,
he's driving the car.
-: Correct, and so the lack of cellphone evidence
from 9:34 in the morning
until the shooter,
until the shooting, excuse me,
shows his act of participation.
And at about 9:33 in the morning
is when we see the Acadia
turn left off Fairway onto Blue Hill Ave.
It's passing the Lexus,
which is parked outside of the post station,
outside the post office, excuse me.
And we know the post office is slightly north,
slightly more inbound than Brothers,
which is where they had just gone
to get their breakfast.
And from that point on,
they're aggressively following the victims.
-: I just wanna summarize in my own head,
your way of distinguishing Baez and Baxter
on lethal intent
is there was more tracking,
and there was one shooter and two victims,
is that essentially your argument
for distinguishing those two cases?
-: Essentially, I'd add a little more
in terms of the reconnaissance
and then the aggressive following.
In Baxter, we don't have that reconnaissance,
we just have following for a shorter period of time.
It almost seemed about like two minutes
from reading the case.
And again, the fact that the shooter
and the victim are one on one,
and both are on foot in those cases,
whereas we don't have that in this case.
And so it's reasonable to infer that the defendant,
again, remained outside of 85 Deering Road,
which was beyond the crest of the hill.
And also in a position similar to Watson
where the Lincoln was used to block the street here,
he positions the car on a one-way street
having just made that U-turn in front of Morton Street.
Gaziano: But he's outta sight of the shooting, right?
-: He's out of sight, but he had just driven up Deering Road
-: 'Cause in Watson, he blocked the street.
I mean, that was the difference in lethal intent in Watson,
where he blocked the street,
the guy gets right out of the car, shoots him,
and then gets back in the car with a gun.
Here we have the defendant
parked outta sight, over the crest of a hill,
similar to the geographic issues in Baez and Baxter, right?
-: Yes, but my point
in terms of the positioning of the car--
-: I don't think Watson helps you
because Watson, they're right there at the scene.
-: Well, in Watson, this court,
I understand what Your Honor's saying,
though in Watson, what this court says
is that the car positioned Lincoln
to block anyone else from interfering.
And my point here is that having just made the U-turn
on Blue Hill Avenue,
passing the police station
at the intersection of Morton Street and Blue Hill Ave,
the jury could reasonably infer
that the defendant positioned the car
to quickly get away
and avoid any interference from police,
where we know that Deering's a one-way street
and that the police station
is on this specific corner
that they had just driven past
upon turning onto Deering Road.
I see that my time has expired,
unless the court has any further questions,
I'll rest on my brief.