-: SJC-13348.
Commonwealth versus David E. Roman.
Justice Budd: Okay, Attorney Roman.
I'm sorry.
I'm so sorry (laughing).
Attorney Beaudoin.
-: May it please the court.
Neil Fishman, I'm here for David Roman, the defendant.
This is an appeal from a first degree extremely atrocious
or cruel murder conviction.
I have a number of points to present to Your Honors.
I will start with...
I'll take them in the order of their brief,
but that's not necessarily the order
of power of the argument.
Beginning with the sufficient-
Justice Kafker: You wanna start
with some of your more powerful ones?
-: Sure, Your Honor, sure.
-: Sufficiency is gonna be a real...
That's a giant hill to climb for you.
-: I acknowledge that, Your Honor.
-: I was gonna be in and out of that argument real quickly.
What I would...
Pardon me? -: No, no.
-: Oh, what I would like to just say
with regard to sufficiency, I would like to note
that in the Commonwealth's brief,
they say that the defense
conceded that it was an unlawful killing.
Well, that's not true because, of course,
a killing in self-defense is not unlawful.
And the defense was either
that the killing occurred in self-defense,
or as a result of mitigating circumstance.
Of course, the killing with mitigating circumstances
is unlawful, but it's mitigated down.
Moving to a stronger point,
the one involving the police interrogation.
This really-
-: I hate to move you forward,
but that also is really weak, isn't it?
I mean, there's none of the sort of no-nos
with police interrogation here.
What they did, it seems to be right in line
with what we've said is permissible.
-: Well, I'd like to push up against that, Your Honor,
because I think some of the language here crosses the line.
The police tell him, first they tell him, "Don't hold back.
It's not worth it."
I agree, Your Honor, we've seen cases like that.
And then he says, okay, he's present
at the scene of the crime. But then the police push more.
They tell 'em, "You don't wanna come this far.
You've been very honest with us.
You don't wanna come this far
and get yourself into trouble."
Now, the implication is that he's not in trouble.
"Continue to be honest with us.
It's going to be helpful to you in the long run."
I would argue, Your Honor,
that there's number of problems with this.
This is a...
I wouldn't even call it an implied promise of leniency.
It's a express promise.
It's false.
It also misleads the defendant
to the severity of his situation.
-: I thought we've had a few cases
where we said, you know,
when you say, "It'd be better for you to confess,"
we've said, "That's okay."
It's the express offers of leniency.
Or if, you know, the classic case where they use
taking the children away and the like.
I think it's Novo or some of those other cases like that.
-: The statements here go beyond this sort of
benign... -: Cajoling, yeah.
-: Moral implication to do the right thing.
They're telling the defendant
they speak specifically about trouble,
which is pretty close to a legal word
as far as I'm concerned.
And "It'll be helpful to you in the long run."
Again, that has legal implications, so-
-: Haven't we said something almost exactly
the same as, "That's fine?
Helpful to you in the long run?"
We've not deemed that crossing the line, right?
-: That may be true, Your Honor.
But under the totality of circumstances,
and that's the test.
You have the word trouble.
-: Let me ask you in the context it's raised in this case,
because you didn't file a motion for new trial.
There's no motion to suppress.
The Commonwealth puts the evidence in.
The defendant's statement of self-defense
comes in through the Commonwealth's case, correct?
-: [Attorney Fishman] I agree, Your Honor.
-: So there could be a strategic reason
not to challenge the confession.
-: I agree, Your Honor.
Nevertheless, on 33E review,
the test is whether is there a substantial likelihood
of miscarriage of justice. -: Right.
But we've got to guess
because there's no motion for new trial
about the strategy of the defense attorney.
-: Well, I would just say
under the totality of circumstances,
you have a, you know, you have what appears
to be a seriously mentally ill defendant
with very serious issues.
It's a long interrogation.
It's an unlawyered interrogation,
I would say under the totality of the circumstances,
I would remind this court
that, of course, the burden is on the Commonwealth.
-: And let me ask you a question
that I should know the answer to,
so I'll embarrassed myself.
Did your client testify?
-: No, Your Honor. -: Okay.
So in lieu of him testifying
and getting his self-defense out,
the government gave him the self-defense instruction
because of what he put into the confession.
So a lawyer may say,
"I'm not gonna challenge this confession
because I don't wanna put him on the stand.
And I got my self-defense."
-: I take Your Honor's point.
My point is that the burden is on the Commonwealth
to prove beyond a reasonable doubt
that the confession was voluntary.
And under the totality of the circumstances,
they didn't meet this burden, in this case.
Under Rule 33E, that's the way this court approach...
has approached a problem like this in the past.
-: But I thought your claim was ineffective assistance
for failing to move to suppress.
-: It is, Your Honor.
But it's also, and my understanding is that,
when you have 33E review,
that sort of collapses into the court
looking at the whole interrogation
to see whether the burden was met.
Moving on to what I think is a...
I would say...
I'll stay in order here.
The third point involves the admissibility
of various evidence,
and whether if it was technically admissible,
whether the probative value was not substantially outweighed
or outweighed by the potential for unfair prejudice.
There was...
And I'm referring to two sorts of bad act evidence here.
There was the prior bad act evidence of the...
restraining order,
which is obviously very prejudicial to the defendant.
-: How do we deal with the fact,
so the restraining order comes in
through defense counsel's questioning, and not even,
he wasn't expecting it either.
So the judges excluded the restraining order prior to this,
then the wife accidentally, unintentionally brings it up.
Or she brings it up intentionally,
but the defense counsel's not trying to stimulate this.
And then the defense counsel does a pretty nice job of,
you know, getting her to explain it.
She really wasn't afraid of him.
Then the prosecutor then gets to cross on this.
I mean, what do we do with all of that?
That the defense counsel brought it up
and it wasn't intentional.
-: [Attorney Fishman] Yes, Your Honor, I agree.
-: The defense counsel didn't move to strike it, right?
-: He did not, Your Honor.
Again, I would say...
I wouldn't look at that issue alone.
I think it goes with the subsequent bad act evidence.
It goes with the Commonwealth's closing argument.
All of this, Your Honor,
is really about the whole theory of the case on appeal,
is really that this was a character assassination.
So what you have is you have
the evidence regarding a restraining order.
I concede it was defense counsel's blunder.
I don't even know whether you would call it that,
because as Your Honor said, testimony was unexpected.
And then the Commonwealth,
I think they seized too aggressively.
Maybe the court should have reigned them in.
But nevertheless, the evidence was presented
that the wife, Ann, was scared for herself and for her kids.
Completely irrelevant to this case
and extraordinarily prejudicial.
Then you have, with regard to bad act evidence,
you have the subsequent bad act evidence,
and you have the evidence of the stealing
of the items from the victim.
-: Isn't that motive?
(chuckles) I mean...
I mean, he kills him and walks off with the jewelry.
That suggests that there's a motive there as well.
So have we really excluded that kind of stuff ever?
-: In another case or in many other cases,
I'm sure that would be motive.
-: Where the proceeds of the action
are what you refer to as bad act evidence?
-: Here it's subsequent bad act evidence, Your Honor,
because it is not- -: Subsequent?
He walks out of the apartment with the pictures,
the jewelry, the rings, the teacups, you know.
-: Your Honor, as per the...
Your Honor is correct that there is a real...
There's temporal...
The only force for that-
-: This isn't that he's stealing somewhere else.
This is that I just killed somebody
and I walked off with their loot.
-: But, Your Honor, respectfully,
that wasn't the Commonwealth's theory of the case.
The theory of the case was not that this was a,
you know, that that was his intent to...
for the homicide.
-: But isn't it relevant to the self-defense defense?
-: I don't think so, Your Honor.
How so, because-
-: Well, it shows, I think, you know,
maybe an inference as to his state of mind.
-: I don't know what to say to that other than,
you know, his motive wasn't at issue.
-: That's what- -: They probably...
The jury probably assumed that a man,
that he was of such low character
that he's stealing from a dead man
and then gifting the items to his wife for Mother's Day.
-: The judge gave an instruction,
kind of just a general instruction.
You can use it for state of mind, correct?
-: The judge gave the usual limiting instructions
when bad act evidence is there.
-: I think she specifically said, "State of mind."
-: I don't recall the exact instruction,
but I didn't quarrel with eliminating instruction
in the appeal.
I would add-
-: Is this relevant at all to atrocity of cruelty
to show his disdain for the victim?
Or we don't take that into account
'cause he's already dead?
-: Not under Castillo.
-: That's what I was gonna say,
'cause that doesn't come in.
Because he basically says,
"I took the stuff because..."
And he uses an expletive, right?
But under Castillo- -: The characterization-
-: That doesn't come in.
-: The fairest characterization, Your Honor,
of why he took the stuff was he was...
It was a active peak.
If that's the right pronunciation of the word.
I would call this court's attention
to a third area of evidence.
-: And so the question is how is that admissible?
And I agree with you that that wasn't the government's...
There was no robbery motive.
-: [Attorney Fishman] Exactly, Your Honor, exactly.
-: Although he was, I guess he was convicted earlier
of larceny, right?
-: [Attorney Fishman] He pleaded guilty to it.
Justice Gaziano: Yeah, to larceny essentially
from a dead person?
-: Correct, Your Honor.
Justice Kafker: So is that why it's not in the case?
'Cause he's pled to this?
I mean...
-: Well, I mean, Your Honor is pressing up against an issue.
He had pled to it, and there it is
haunting him in the case- -: Can you address?
Can you address? -: Nevertheless.
-: The victim's prior issues being a good guy.
Why don't you get into that?
-: Can I ask actually, just one last question
on the same topic?
Assuming we agree with you, there's this fit of peak.
-: Yeah. -: Comes in
and it's, you know, very distasteful and the like.
Given the 70 stab wounds and the overwhelming evidence,
how is it prejudice?
-: The prejudice is because it feeds into this
good versus evil narrative
that the prosecutor really went after in closing argument.
And that's a prejudicial narrative.
That narrative really demolished
any chance the defendant had
of getting a voluntary manslaughter verdict.
-: Saying that he...
That was an improper way to characterize the case?
-: Yes, Your honor, I do think so.
I think if you...
And really, the opening,
it's important to look at the prosecutor's opening statement
and his closing argument.
And I can recite all the litany of the oversteps,
but I would just suggest that it goes well over the line
of enthusiastic argument or rhetoric.
I can't remember the price-
Justice Gaziano: There's personalization of the victim,
which we allow to some extent.
-: Your honor, it's manipulative.
It tells the jury that the poor victim is an angel
and that defendant is, he's a nasty guy.
And he's not nasty for the reasons he's on trial.
He's not nasty because he committed a homicide.
He's not nasty for that reason.
He's nasty for a bunch of surrounding reasons
that have nothing to do with the case.
-: [Justice Wendlandt] Can you explain that?
-: Well, I think I'll just take Your Honor
through the actual closing argument.
-: Well, but there's a big difference though.
And this is the part
that I quibble with you with.
The difference between opening and closing
is there's been a trial.
And now there's evidence,
including the stuff that you're saying
he shouldn't have argued that was in evidence.
So if now we're in a different procedural posture,
a different factual posture,
a different evidentiary posture,
why is the argument that now we know
what the universe of the admitted evidence is?
Why is that prejudice?
-: Because, Your Honor, the prosecutors still has
a responsibility not to engage in an inflammatory argument.
It's an ethical one, I believe.
But it's certainly an legal one
as far as there's the case law of this court is concerned.
Let me go through some of the examples very quickly.
So closing argument, everyone the prosecutor argued,
except the defendant,
said the decedent was a good guy and nonviolent.
Again, the decedent missed his deceased husband.
These are quotes.
A relationship that went on for 34 years,
and was lonely and depressed.
The decedent was kind to Zelensky.
-: Well, but let's get into the facts
that led to that for a second.
'Cause I am troubled
or at least concerned about
all the stuff about Zelensky, and the victim
and the other men he's dealing with, that he...
But isn't it a response to the self-defense claim that
the victim got angry
because he refused to have sex with him?
Right?
You know, and this is an example
where someone else refused to have sex with him.
I don't know if this is permissible, but it's a response
-: Your Honor, that may be.
But then...
I would urge this court
to read the whole closing argument
'cause it goes on from there. -: I get it.
It's fiery.
Yeah, it's fire for fire.
Justice Gaziano: I mean the fisherman thing is absurd.
-: The fisherman thing, Your Honor.
But the thing about the...
And this is why the stolen items things is so troubling,
because of the prosecutor comes right back
and really hammers away at the stolen items stuff.
And him, you know, they're looking at these stolen items
from their marital bed and that he goes and he haggles.
He's selling the stolen items, and there he is haggling.
How atrocious is that? -: It's all true.
-: It's true, but it is character assassination
'cause it has nothing to do with what he's on trial for.
-: I quibble with "Nothing to do with."
He kills the guy and steals all of these personal effects,
and then gives them to his wife.
You know, it portrays you as a bad guy,
but it's, you know, it's factual.
It's not like, you know. -: Right.
-: It's inflammatory, Your Honor.
It demolished his chances
of getting a voluntary manslaughter verdict.
-: But one of the reasons you've brought up self-defense
and you're portraying the victim as sort of violent.
That he's grabbing a knife and attacking your client
because he won't have sex with him.
That opens the door, doesn't it,
to showing that the victim never responded this way
and he has similar sexual encounters or, you know,
these types of encounters with other strangers,
and it doesn't result in this?
-: Your Honor, I would just, I would retort
that if you look at the whole closing argument,
it goes well beyond enthusiastic rhetoric
and its manipulative.
-: The fisherman point will...
There's clearly no evidence about a knife, right?
We have nothing on the knife, where it came from,
anything else, right?
-: The only thing I know about the knife, Your Honor,
is that the defendant says he discarded
the knife after the homicide.
-: And the expert testimony on the knife
doesn't suggest it's some kind of fisherman knife
or anything like that, right?
It's just a knife.
-: [Attorney Fishman] That's correct, your Honor.
-: [Justice Wendlandt] Wait, did they find the knife?
-: No knife was ever found- -: Okay.
-: As far as I know. -: Thank you.
-: I think I have a another point too,
to make about the jury instructions.
But I think the brief is pretty clear about that.
Unless the court has any-
Justice Kafker: Just one other question on the knife?
-: Yes, Your Honor.
-: There's no evidence about the knife being missing
somewhere in the victim's house or anything like the other?
It's not one of these where we have a silver set
and we know there's a, you know, a missing knife in the...
-: I don't recall anything like that, Your Honor.
Justice Kafker: Okay.
-: Okay, thank you, Attorney Fishman.
I'm sorry I got your name wrong.
Okay, Attorney Beaudoin.
-: Good morning, Your Honors.
May it please the court.
Nathaniel Beaudoin for the Commonwealth.
Your Honors, I'd ask you
to affirm the defendant's conviction for first degree murder
because of the overwhelming evidence
that the defendant killed the victim
with extreme atrocity and cruelty.
Justice Gaziano: The fisherman thing's absurd, correct?
-: So that was the prosecutor suggesting to the jury
they could draw a reasonable inference from that.
I don't think that suggestion won the day
for the Commonwealth.
Justice Gaziano: So you agree with me
that shouldn't have happened. -: I agree...
-: Maybe you're not gonna concede it's an absurdity,
but would you concede that shouldn't have happened?
-: I would concede that it was an inference...
-: That couldn't be drawn by rational evidence.
-: It was...
The prosecutor, I believe, based on that,
because of the testimony that he was an avid fisherman,
was constantly going out looking for fishing spots.
But I understand your point, Your Honor,
that there wasn't evidence. -: Do you?
-: That there wasn't evidence
that he had a fishing knife on him.
The evidence was that he was an avid fisherman.
Justice Gaziano: That was not
a reasonable inference, correct?
Justice Georges: Read the room, Counsel.
(all chuckling)
-: Yes, Your Honor.
It was a little too...
It went over the line.
-: Alright, so. -: Needed this to win, yeah.
-: Alright, so let me ask you another question.
How is the postmortem theft relevant?
-: It goes to the defendant's state of mind.
It goes to conscious. -: What state of mind?
-: Consciousness of guilt. -: What state?
-: The fact that he is after, you know, again,
from the defendant's perspective,
the defense was that he's acting in self-defense.
Yet after this supposed violent attack
where he had to stab the victim 76 times
in order to defend himself,
he then essentially goes shopping in the victim's house,
takes rings off the deceased victim's fingers,
looks at the framed Joan Crawford autographed portrait
and says, "That's something I want to get for my wife."
-: So it's basically after this traumatic self-defense,
he basically says, "What the heck?
I might as well just steal stuff anyway."
-: Yes. -: Because I'm here.
-: And, yes.
And also I included the Commonwealth's
motion in limine in the appendix.
And the Commonwealth also argued
that that evidence was relevant to identity.
I know in this case there was...
The defendant was conceding that he did kill the victim,
but the Commonwealth still has to prove identity.
And that was one of the factors that the Commonwealth argued
to get that subsequent bad act evidence in.
-: When Judge Kenton-Walker instructed,
she said, "State of mind.
Did she also say, "Identity?"
-: No, she only said, "State of mind"
and "Consciousness of guilt"
in both her limiting instruction after that evidence
as well as in the final jury charge.
And I'll just...
-: And how about the...
The things that are giving me the most pause
besides the fishing is the...
The evidence on the victim
and the other people he is having these encounters with
and the handling of the restraining order.
'Cause it's agreed to keep the restraining order
out of the case.
Then the defense brings it up.
Tell me why those aren't problematic
from your perspective.
-: So those two witnesses that testified
as to meeting the victim online,
eventually meeting up with them,
those were defense witnesses.
Those were not witnesses on the Commonwealth's witness list.
They were taken out of order due to scheduling issues,
I believe with the attorneys and the witnesses.
So those were not witnesses that the Commonwealth presented.
-: What were they...
What were their...
What were they testifying?
What was the relevancy of their testimony?
-: I can't speak for why defense counsel
wanted them to testify.
I don't think it was very clear
when you look at those direct examinations of them.
However, as was pointed out in the argument earlier,
to some degree that evidence was relevant to the case
because the defendant's saying that
this victim became so angry when he, you know,
refused to engage in certain acts with him,
that he lunged at him with a knife.
-: Was it to show that the victim
was using these apps to meet people?
-: Perhaps, showing that maybe,
perhaps showing that he was putting himself
in situations with strangers, people he didn't meet.
So potentially, yes, Your Honor.
-: But there was no question that he's the killer,
the defendant's the killer.
So I'm just...
Okay, but anyway, so.
-: [Attorney Beaudoin] And then, your, yeah your other-
-: The second one is the restraining order.
-: The restraining order.
That was, as was discussed.
That was not something that the defense attorney anticipated
the ex-wife to say.
I think he made that clear at sidebar
in terms of whether...
And yes, it wasn't supposed to come in.
It came in because the victim said,
I'm sorry, the ex-wife said something
she shouldn't have said.
But there was essentially no prejudice
because she also testified that she was never in fear,
physical fear of the defendant,
nor was she concerned about
the physical safety of her children in the home.
So even though...
-: But the prosecutor crosses
and puts that into question, right?
That he's irrational and she's scared enough
to get him outta the house, right?
-: He certainly cross-examined her
on the issue of the restraining order, yes.
-: But can you take me through the order?
Because it seems like she slipped
mentioned the restraining order,
and then the prosecutor cross-examined her
about her affidavit in support.
And then there was a redirect.
-: Maybe I was unclear.
So she was a Commonwealth witness.
So it came out on cross-examination
that she obtained the restraining order.
-: [Justice Wendlandt] I see.
-: Then on redirect, I apologize,
the prosecutor did ask her questions
about the restraining order.
And again, it was something that wasn't supposed to come in,
but no prejudice because for the reasons I just stated.
-: So it was error to allow the redirect on the details?
-: I don't believe there was any objection to that redirect.
-: But that doesn't tell me whether or not it's error.
That just tells me what my standard is for prejudice.
-: Yes, I think in terms...
Yes, I think I could have seen a scenario
where the judge would've perhaps struck that
or the defense would've objected.
But that didn't happen here.
And in the end it didn't have any influence on the jury
because she testified
that she was never in fear of the victim.
-: So the sidebar was not enough?
-: [Attorney Beaudoin] I'm sorry, Your Honor?
-: The sidebar was not enough to voice an objection?
-: I know there was a sidebar conversation.
I don't know whether a specific objection to it.
-: There's no limiting instruction on it
or there is a limiting instruction?
-: On the restraining order, I don't believe so.
And unless Your Honors have any further questions,
the Commonwealth could rest on its brief.
-: Yeah, no, the mitigating... -: Yeah.
-: The instructions on unanimity and the mitigating,
it's hard to follow (chuckles).
Why don't you address that?
By the way, is that a standard instruction?
Yeah, my colleagues who used to give it would know.
But is that a standard instruction about unanimity
and not required?
-: You're referring to how the first two prongs of...
-: I'm talking about the instruction that mitigating...
Commonwealth has to disprove mitigating circumstances
beyond a reasonable doubt.
But it doesn't...
But the jury doesn't have to be unanimous
on what the theory was, the mitigating theory.
Is that a standard instruction or?
-: I can't tell you right now.
It directly came from the model.
I'm not sure.
In review of that, I can't remember thinking
this was a huge digression from the model jury instructions.
But I think in the end,
that claim doesn't go anywhere
because it was clear that the jury
found that the Commonwealth proved beyond a reasonable doubt
that there were no mitigating circumstances.
So it was clear that they were unanimous,
that there were none.
So the question of whether they were unanimous
about which mitigating circumstances they found,
they have to find that the Commonwealth's-
-: Well, that would help the defendant, right?
It would reduce the defendant's burden.
-: Yes, yes.
And unless there are any further questions, Your Honors,
the Commonwealth can rest on its brief.