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SJC-13348.
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Commonwealth versus David E. Roman.
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Okay, Attorney Roman.
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I'm sorry.
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I'm so sorry (laughing).
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Attorney Beaudoin.
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May it please the court.
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Neil Fishman, I'm here for David Roman, the defendant.
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This is an appeal from a first degree extremely atrocious
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or cruel murder conviction.
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I have a number of points to present to Your Honors.
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I will start with...
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I'll take them in the order of their brief,
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but that's not necessarily the order
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of power of the argument.
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Beginning with the sufficient-
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You wanna start
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with some of your more powerful ones?
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Sure, Your Honor, sure.
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Sufficiency is gonna be a real...
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That's a giant hill to climb for you.
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I acknowledge that, Your Honor.
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I was gonna be in and out of that argument real quickly.
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What I would...
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Pardon me?
No, no.
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Oh, what I would like to just say
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with regard to sufficiency, I would like to note
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that in the Commonwealth's brief,
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they say that the defense
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conceded that it was an unlawful killing.
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Well, that's not true because, of course,
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a killing in self-defense is not unlawful.
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And the defense was either
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that the killing occurred in self-defense,
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or as a result of mitigating circumstance.
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Of course, the killing with mitigating circumstances
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is unlawful, but it's mitigated down.
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Moving to a stronger point,
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the one involving the police interrogation.
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This really-
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I hate to move you forward,
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but that also is really weak, isn't it?
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I mean, there's none of the sort of no-nos
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with police interrogation here.
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What they did, it seems to be right in line
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with what we've said is permissible.
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Well, I'd like to push up against that, Your Honor,
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because I think some of the language here crosses the line.
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The police tell him, first they tell him, "Don't hold back.
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It's not worth it."
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I agree, Your Honor, we've seen cases like that.
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And then he says, okay, he's present
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at the scene of the crime. But then the police push more.
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They tell 'em, "You don't wanna come this far.
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You've been very honest with us.
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You don't wanna come this far
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and get yourself into trouble."
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Now, the implication is that he's not in trouble.
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"Continue to be honest with us.
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It's going to be helpful to you in the long run."
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I would argue, Your Honor,
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that there's number of problems with this.
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This is a...
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I wouldn't even call it an implied promise of leniency.
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It's a express promise.
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It's false.
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It also misleads the defendant
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to the severity of his situation.
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I thought we've had a few cases
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where we said, you know,
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when you say, "It'd be better for you to confess,"
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we've said, "That's okay."
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It's the express offers of leniency.
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Or if, you know, the classic case where they use
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taking the children away and the like.
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I think it's Novo or some of those other cases like that.
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The statements here go beyond this sort of
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benign...
Cajoling, yeah.
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Moral implication to do the right thing.
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They're telling the defendant
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they speak specifically about trouble,
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which is pretty close to a legal word
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as far as I'm concerned.
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And "It'll be helpful to you in the long run."
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Again, that has legal implications, so-
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Haven't we said something almost exactly
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the same as, "That's fine?
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Helpful to you in the long run?"
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We've not deemed that crossing the line, right?
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That may be true, Your Honor.
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But under the totality of circumstances,
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and that's the test.
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You have the word trouble.
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Let me ask you in the context it's raised in this case,
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because you didn't file a motion for new trial.
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There's no motion to suppress.
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The Commonwealth puts the evidence in.
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The defendant's statement of self-defense
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comes in through the Commonwealth's case, correct?
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[Attorney Fishman] I agree, Your Honor.
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So there could be a strategic reason
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not to challenge the confession.
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I agree, Your Honor.
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Nevertheless, on 33E review,
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the test is whether is there a substantial likelihood
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of miscarriage of justice.
Right.
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But we've got to guess
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because there's no motion for new trial
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about the strategy of the defense attorney.
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Well, I would just say
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under the totality of circumstances,
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you have a, you know, you have what appears
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to be a seriously mentally ill defendant
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with very serious issues.
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It's a long interrogation.
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It's an unlawyered interrogation,
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I would say under the totality of the circumstances,
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I would remind this court
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that, of course, the burden is on the Commonwealth.
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And let me ask you a question
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that I should know the answer to,
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so I'll embarrassed myself.
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Did your client testify?
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No, Your Honor.
Okay.
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So in lieu of him testifying
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and getting his self-defense out,
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the government gave him the self-defense instruction
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because of what he put into the confession.
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So a lawyer may say,
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"I'm not gonna challenge this confession
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because I don't wanna put him on the stand.
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And I got my self-defense."
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I take Your Honor's point.
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My point is that the burden is on the Commonwealth
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to prove beyond a reasonable doubt
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that the confession was voluntary.
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And under the totality of the circumstances,
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they didn't meet this burden, in this case.
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Under Rule 33E, that's the way this court approach...
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has approached a problem like this in the past.
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But I thought your claim was ineffective assistance
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for failing to move to suppress.
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It is, Your Honor.
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But it's also, and my understanding is that,
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when you have 33E review,
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that sort of collapses into the court
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looking at the whole interrogation
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to see whether the burden was met.
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Moving on to what I think is a...
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I would say...
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I'll stay in order here.
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The third point involves the admissibility
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of various evidence,
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and whether if it was technically admissible,
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whether the probative value was not substantially outweighed
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or outweighed by the potential for unfair prejudice.
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There was...
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And I'm referring to two sorts of bad act evidence here.
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There was the prior bad act evidence of the...
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restraining order,
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which is obviously very prejudicial to the defendant.
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How do we deal with the fact,
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so the restraining order comes in
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through defense counsel's questioning, and not even,
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he wasn't expecting it either.
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So the judges excluded the restraining order prior to this,
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then the wife accidentally, unintentionally brings it up.
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Or she brings it up intentionally,
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but the defense counsel's not trying to stimulate this.
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And then the defense counsel does a pretty nice job of,
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you know, getting her to explain it.
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She really wasn't afraid of him.
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Then the prosecutor then gets to cross on this.
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I mean, what do we do with all of that?
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That the defense counsel brought it up
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and it wasn't intentional.
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[Attorney Fishman] Yes, Your Honor, I agree.
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The defense counsel didn't move to strike it, right?
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He did not, Your Honor.
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Again, I would say...
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I wouldn't look at that issue alone.
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I think it goes with the subsequent bad act evidence.
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It goes with the Commonwealth's closing argument.
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All of this, Your Honor,
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is really about the whole theory of the case on appeal,
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is really that this was a character assassination.
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So what you have is you have
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the evidence regarding a restraining order.
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I concede it was defense counsel's blunder.
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I don't even know whether you would call it that,
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because as Your Honor said, testimony was unexpected.
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And then the Commonwealth,
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I think they seized too aggressively.
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Maybe the court should have reigned them in.
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But nevertheless, the evidence was presented
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that the wife, Ann, was scared for herself and for her kids.
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Completely irrelevant to this case
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and extraordinarily prejudicial.
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Then you have, with regard to bad act evidence,
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you have the subsequent bad act evidence,
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and you have the evidence of the stealing
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of the items from the victim.
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Isn't that motive?
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(chuckles) I mean...
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I mean, he kills him and walks off with the jewelry.
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That suggests that there's a motive there as well.
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So have we really excluded that kind of stuff ever?
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In another case or in many other cases,
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I'm sure that would be motive.
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Where the proceeds of the action
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are what you refer to as bad act evidence?
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Here it's subsequent bad act evidence, Your Honor,
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because it is not-
Subsequent?
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He walks out of the apartment with the pictures,
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the jewelry, the rings, the teacups, you know.
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Your Honor, as per the...
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Your Honor is correct that there is a real...
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There's temporal...
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The only force for that-
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This isn't that he's stealing somewhere else.
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This is that I just killed somebody
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and I walked off with their loot.
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But, Your Honor, respectfully,
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that wasn't the Commonwealth's theory of the case.
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The theory of the case was not that this was a,
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you know, that that was his intent to...
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for the homicide.
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But isn't it relevant to the self-defense defense?
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I don't think so, Your Honor.
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How so, because-
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Well, it shows, I think, you know,
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maybe an inference as to his state of mind.
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I don't know what to say to that other than,
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you know, his motive wasn't at issue.
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That's what-
They probably...
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The jury probably assumed that a man,
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that he was of such low character
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that he's stealing from a dead man
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and then gifting the items to his wife for Mother's Day.
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The judge gave an instruction,
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kind of just a general instruction.
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You can use it for state of mind, correct?
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The judge gave the usual limiting instructions
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when bad act evidence is there.
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I think she specifically said, "State of mind."
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I don't recall the exact instruction,
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but I didn't quarrel with eliminating instruction
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in the appeal.
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I would add-
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Is this relevant at all to atrocity of cruelty
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to show his disdain for the victim?
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Or we don't take that into account
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'cause he's already dead?
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Not under Castillo.
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That's what I was gonna say,
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'cause that doesn't come in.
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Because he basically says,
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"I took the stuff because..."
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And he uses an expletive, right?
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But under Castillo-
The characterization-
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That doesn't come in.
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The fairest characterization, Your Honor,
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of why he took the stuff was he was...
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It was a active peak.
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If that's the right pronunciation of the word.
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I would call this court's attention
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to a third area of evidence.
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And so the question is how is that admissible?
269
00:12:10.740 --> 00:12:14.310
And I agree with you that that wasn't the government's...
270
00:12:14.310 --> 00:12:15.997
There was no robbery motive.
271
00:12:15.997 --> 00:12:17.093
[Attorney Fishman] Exactly, Your Honor, exactly.
272
00:12:17.093 --> 00:12:20.070
Although he was, I guess he was convicted earlier
273
00:12:20.070 --> 00:12:21.756
of larceny, right?
274
00:12:21.756 --> 00:12:23.520
[Attorney Fishman] He pleaded guilty to it.
275
00:12:23.520 --> 00:12:24.750
Yeah, to larceny essentially
276
00:12:24.750 --> 00:12:26.310
from a dead person?
277
00:12:26.310 --> 00:12:27.410
Correct, Your Honor.
278
00:12:31.320 --> 00:12:33.270
So is that why it's not in the case?
279
00:12:33.270 --> 00:12:36.630
'Cause he's pled to this?
280
00:12:36.630 --> 00:12:37.830
I mean...
281
00:12:37.830 --> 00:12:41.310
Well, I mean, Your Honor is pressing up against an issue.
282
00:12:41.310 --> 00:12:44.790
He had pled to it, and there it is
283
00:12:44.790 --> 00:12:46.341
haunting him in the case-
Can you address?
284
00:12:46.341 --> 00:12:48.420
Can you address?
Nevertheless.
285
00:12:48.420 --> 00:12:52.590
The victim's prior issues being a good guy.
286
00:12:52.590 --> 00:12:54.030
Why don't you get into that?
287
00:12:54.030 --> 00:12:55.772
Can I ask actually, just one last question
288
00:12:55.772 --> 00:12:57.930
on the same topic?
289
00:12:57.930 --> 00:13:00.300
Assuming we agree with you, there's this fit of peak.
290
00:13:00.300 --> 00:13:01.800
Yeah.
Comes in
291
00:13:01.800 --> 00:13:06.120
and it's, you know, very distasteful and the like.
292
00:13:06.120 --> 00:13:10.140
Given the 70 stab wounds and the overwhelming evidence,
293
00:13:10.140 --> 00:13:11.373
how is it prejudice?
294
00:13:13.800 --> 00:13:16.260
The prejudice is because it feeds into this
295
00:13:16.260 --> 00:13:18.270
good versus evil narrative
296
00:13:18.270 --> 00:13:23.270
that the prosecutor really went after in closing argument.
297
00:13:26.520 --> 00:13:28.050
And that's a prejudicial narrative.
298
00:13:28.050 --> 00:13:30.180
That narrative really demolished
299
00:13:30.180 --> 00:13:32.670
any chance the defendant had
300
00:13:32.670 --> 00:13:35.253
of getting a voluntary manslaughter verdict.
301
00:13:36.240 --> 00:13:37.080
Saying that he...
302
00:13:37.080 --> 00:13:42.080
That was an improper way to characterize the case?
303
00:13:43.650 --> 00:13:45.663
Yes, Your honor, I do think so.
304
00:13:47.190 --> 00:13:48.660
I think if you...
305
00:13:48.660 --> 00:13:51.210
And really, the opening,
306
00:13:51.210 --> 00:13:54.520
it's important to look at the prosecutor's opening statement
307
00:13:55.440 --> 00:13:58.233
and his closing argument.
308
00:13:59.760 --> 00:14:04.290
And I can recite all the litany of the oversteps,
309
00:14:04.290 --> 00:14:07.770
but I would just suggest that it goes well over the line
310
00:14:07.770 --> 00:14:10.380
of enthusiastic argument or rhetoric.
311
00:14:10.380 --> 00:14:11.520
I can't remember the price-
312
00:14:11.520 --> 00:14:13.080
There's personalization of the victim,
313
00:14:13.080 --> 00:14:15.420
which we allow to some extent.
314
00:14:15.420 --> 00:14:17.190
Your honor, it's manipulative.
315
00:14:17.190 --> 00:14:21.810
It tells the jury that the poor victim is an angel
316
00:14:21.810 --> 00:14:25.500
and that defendant is, he's a nasty guy.
317
00:14:25.500 --> 00:14:28.860
And he's not nasty for the reasons he's on trial.
318
00:14:28.860 --> 00:14:31.590
He's not nasty because he committed a homicide.
319
00:14:31.590 --> 00:14:34.680
He's not nasty for that reason.
320
00:14:34.680 --> 00:14:37.440
He's nasty for a bunch of surrounding reasons
321
00:14:37.440 --> 00:14:41.110
that have nothing to do with the case.
322
00:14:41.110 --> 00:14:42.300
[Justice Wendlandt] Can you explain that?
323
00:14:42.300 --> 00:14:44.842
Well, I think I'll just take Your Honor
324
00:14:44.842 --> 00:14:48.150
through the actual closing argument.
325
00:14:48.150 --> 00:14:50.520
Well, but there's a big difference though.
326
00:14:50.520 --> 00:14:51.353
And this is the part
327
00:14:51.353 --> 00:14:53.520
that I quibble with you with.
328
00:14:53.520 --> 00:14:55.890
The difference between opening and closing
329
00:14:55.890 --> 00:14:57.870
is there's been a trial.
330
00:14:57.870 --> 00:14:59.550
And now there's evidence,
331
00:14:59.550 --> 00:15:01.530
including the stuff that you're saying
332
00:15:01.530 --> 00:15:05.220
he shouldn't have argued that was in evidence.
333
00:15:05.220 --> 00:15:09.390
So if now we're in a different procedural posture,
334
00:15:09.390 --> 00:15:10.830
a different factual posture,
335
00:15:10.830 --> 00:15:12.720
a different evidentiary posture,
336
00:15:12.720 --> 00:15:16.740
why is the argument that now we know
337
00:15:16.740 --> 00:15:19.950
what the universe of the admitted evidence is?
338
00:15:19.950 --> 00:15:22.230
Why is that prejudice?
339
00:15:22.230 --> 00:15:24.330
Because, Your Honor, the prosecutors still has
340
00:15:24.330 --> 00:15:29.040
a responsibility not to engage in an inflammatory argument.
341
00:15:29.040 --> 00:15:31.020
It's an ethical one, I believe.
342
00:15:31.020 --> 00:15:33.060
But it's certainly an legal one
343
00:15:33.060 --> 00:15:35.960
as far as there's the case law of this court is concerned.
344
00:15:38.130 --> 00:15:41.793
Let me go through some of the examples very quickly.
345
00:15:42.750 --> 00:15:47.040
So closing argument, everyone the prosecutor argued,
346
00:15:47.040 --> 00:15:47.873
except the defendant,
347
00:15:47.873 --> 00:15:50.220
said the decedent was a good guy and nonviolent.
348
00:15:50.220 --> 00:15:54.540
Again, the decedent missed his deceased husband.
349
00:15:54.540 --> 00:15:56.130
These are quotes.
350
00:15:56.130 --> 00:15:58.710
A relationship that went on for 34 years,
351
00:15:58.710 --> 00:16:00.540
and was lonely and depressed.
352
00:16:00.540 --> 00:16:04.593
The decedent was kind to Zelensky.
353
00:16:05.760 --> 00:16:08.460
Well, but let's get into the facts
354
00:16:08.460 --> 00:16:09.810
that led to that for a second.
355
00:16:09.810 --> 00:16:11.370
'Cause I am troubled
356
00:16:11.370 --> 00:16:13.690
or at least concerned about
357
00:16:15.304 --> 00:16:18.150
all the stuff about Zelensky, and the victim
358
00:16:18.150 --> 00:16:22.710
and the other men he's dealing with, that he...
359
00:16:22.710 --> 00:16:27.550
But isn't it a response to the self-defense claim that
360
00:16:30.090 --> 00:16:32.040
the victim got angry
361
00:16:32.040 --> 00:16:36.633
because he refused to have sex with him?
362
00:16:38.280 --> 00:16:39.390
Right?
363
00:16:39.390 --> 00:16:41.370
You know, and this is an example
364
00:16:41.370 --> 00:16:44.550
where someone else refused to have sex with him.
365
00:16:44.550 --> 00:16:49.230
I don't know if this is permissible, but it's a response
366
00:16:49.230 --> 00:16:50.580
Your Honor, that may be.
367
00:16:50.580 --> 00:16:51.440
But then...
368
00:16:53.610 --> 00:16:54.780
I would urge this court
369
00:16:54.780 --> 00:16:56.160
to read the whole closing argument
370
00:16:56.160 --> 00:16:58.326
'cause it goes on from there.
I get it.
371
00:16:58.326 --> 00:17:00.810
It's fiery.
372
00:17:00.810 --> 00:17:02.177
Yeah, it's fire for fire.
373
00:17:02.177 --> 00:17:04.470
I mean the fisherman thing is absurd.
374
00:17:04.470 --> 00:17:06.267
The fisherman thing, Your Honor.
375
00:17:06.267 --> 00:17:08.400
But the thing about the...
376
00:17:08.400 --> 00:17:12.120
And this is why the stolen items things is so troubling,
377
00:17:12.120 --> 00:17:14.400
because of the prosecutor comes right back
378
00:17:14.400 --> 00:17:17.040
and really hammers away at the stolen items stuff.
379
00:17:17.040 --> 00:17:20.070
And him, you know, they're looking at these stolen items
380
00:17:20.070 --> 00:17:25.070
from their marital bed and that he goes and he haggles.
381
00:17:25.650 --> 00:17:28.710
He's selling the stolen items, and there he is haggling.
382
00:17:28.710 --> 00:17:31.290
How atrocious is that?
It's all true.
383
00:17:31.290 --> 00:17:34.710
It's true, but it is character assassination
384
00:17:34.710 --> 00:17:38.520
'cause it has nothing to do with what he's on trial for.
385
00:17:38.520 --> 00:17:40.420
I quibble with "Nothing to do with."
386
00:17:41.520 --> 00:17:45.630
He kills the guy and steals all of these personal effects,
387
00:17:45.630 --> 00:17:47.433
and then gives them to his wife.
388
00:17:48.450 --> 00:17:51.090
You know, it portrays you as a bad guy,
389
00:17:51.090 --> 00:17:54.390
but it's, you know, it's factual.
390
00:17:54.390 --> 00:17:57.690
It's not like, you know.
Right.
391
00:17:57.690 --> 00:17:58.980
It's inflammatory, Your Honor.
392
00:17:58.980 --> 00:18:00.450
It demolished his chances
393
00:18:00.450 --> 00:18:02.650
of getting a voluntary manslaughter verdict.
394
00:18:04.260 --> 00:18:08.970
But one of the reasons you've brought up self-defense
395
00:18:08.970 --> 00:18:13.970
and you're portraying the victim as sort of violent.
396
00:18:14.520 --> 00:18:18.630
That he's grabbing a knife and attacking your client
397
00:18:18.630 --> 00:18:20.463
because he won't have sex with him.
398
00:18:21.900 --> 00:18:23.910
That opens the door, doesn't it,
399
00:18:23.910 --> 00:18:28.680
to showing that the victim never responded this way
400
00:18:28.680 --> 00:18:33.030
and he has similar sexual encounters or, you know,
401
00:18:33.030 --> 00:18:35.430
these types of encounters with other strangers,
402
00:18:35.430 --> 00:18:37.590
and it doesn't result in this?
403
00:18:37.590 --> 00:18:39.480
Your Honor, I would just, I would retort
404
00:18:39.480 --> 00:18:42.660
that if you look at the whole closing argument,
405
00:18:42.660 --> 00:18:46.560
it goes well beyond enthusiastic rhetoric
406
00:18:46.560 --> 00:18:47.883
and its manipulative.
407
00:18:53.190 --> 00:18:55.190
The fisherman point will...
408
00:18:56.310 --> 00:18:59.640
There's clearly no evidence about a knife, right?
409
00:18:59.640 --> 00:19:01.590
We have nothing on the knife, where it came from,
410
00:19:01.590 --> 00:19:03.270
anything else, right?
411
00:19:03.270 --> 00:19:05.310
The only thing I know about the knife, Your Honor,
412
00:19:05.310 --> 00:19:08.340
is that the defendant says he discarded
413
00:19:08.340 --> 00:19:10.050
the knife after the homicide.
414
00:19:10.050 --> 00:19:12.120
And the expert testimony on the knife
415
00:19:12.120 --> 00:19:14.580
doesn't suggest it's some kind of fisherman knife
416
00:19:14.580 --> 00:19:15.810
or anything like that, right?
417
00:19:15.810 --> 00:19:17.975
It's just a knife.
418
00:19:17.975 --> 00:19:19.433
[Attorney Fishman] That's correct, your Honor.
419
00:19:21.685 --> 00:19:23.670
[Justice Wendlandt] Wait, did they find the knife?
420
00:19:23.670 --> 00:19:24.930
No knife was ever found-
Okay.
421
00:19:24.930 --> 00:19:26.580
As far as I know.
Thank you.
422
00:19:29.730 --> 00:19:32.460
I think I have a another point too,
423
00:19:32.460 --> 00:19:34.830
to make about the jury instructions.
424
00:19:34.830 --> 00:19:38.520
But I think the brief is pretty clear about that.
425
00:19:38.520 --> 00:19:39.450
Unless the court has any-
426
00:19:39.450 --> 00:19:40.470
Just one other question on the knife?
427
00:19:40.470 --> 00:19:41.700
Yes, Your Honor.
428
00:19:41.700 --> 00:19:44.070
There's no evidence about the knife being missing
429
00:19:44.070 --> 00:19:46.920
somewhere in the victim's house or anything like the other?
430
00:19:46.920 --> 00:19:48.720
It's not one of these where we have a silver set
431
00:19:48.720 --> 00:19:52.830
and we know there's a, you know, a missing knife in the...
432
00:19:52.830 --> 00:19:54.570
I don't recall anything like that, Your Honor.
433
00:19:54.570 --> 00:19:56.040
Okay.
434
00:19:56.040 --> 00:19:57.960
Okay, thank you, Attorney Fishman.
435
00:19:57.960 --> 00:19:59.643
I'm sorry I got your name wrong.
436
00:20:04.380 --> 00:20:06.030
Okay, Attorney Beaudoin.
437
00:20:06.030 --> 00:20:06.863
Good morning, Your Honors.
438
00:20:06.863 --> 00:20:07.696
May it please the court.
439
00:20:07.696 --> 00:20:09.780
Nathaniel Beaudoin for the Commonwealth.
440
00:20:09.780 --> 00:20:10.620
Your Honors, I'd ask you
441
00:20:10.620 --> 00:20:13.530
to affirm the defendant's conviction for first degree murder
442
00:20:13.530 --> 00:20:15.390
because of the overwhelming evidence
443
00:20:15.390 --> 00:20:16.860
that the defendant killed the victim
444
00:20:16.860 --> 00:20:19.260
with extreme atrocity and cruelty.
445
00:20:19.260 --> 00:20:21.000
The fisherman thing's absurd, correct?
446
00:20:21.000 --> 00:20:24.735
So that was the prosecutor suggesting to the jury
447
00:20:24.735 --> 00:20:27.030
they could draw a reasonable inference from that.
448
00:20:27.030 --> 00:20:30.030
I don't think that suggestion won the day
449
00:20:30.030 --> 00:20:31.320
for the Commonwealth.
450
00:20:31.320 --> 00:20:32.153
So you agree with me
451
00:20:32.153 --> 00:20:33.871
that shouldn't have happened.
I agree...
452
00:20:33.871 --> 00:20:36.960
Maybe you're not gonna concede it's an absurdity,
453
00:20:36.960 --> 00:20:39.630
but would you concede that shouldn't have happened?
454
00:20:39.630 --> 00:20:42.680
I would concede that it was an inference...
455
00:20:44.580 --> 00:20:46.770
That couldn't be drawn by rational evidence.
456
00:20:46.770 --> 00:20:48.390
It was...
457
00:20:48.390 --> 00:20:50.100
The prosecutor, I believe, based on that,
458
00:20:50.100 --> 00:20:52.680
because of the testimony that he was an avid fisherman,
459
00:20:52.680 --> 00:20:55.142
was constantly going out looking for fishing spots.
460
00:20:55.142 --> 00:20:57.330
But I understand your point, Your Honor,
461
00:20:57.330 --> 00:21:00.390
that there wasn't evidence.
Do you?
462
00:21:00.390 --> 00:21:01.470
That there wasn't evidence
463
00:21:01.470 --> 00:21:04.290
that he had a fishing knife on him.
464
00:21:04.290 --> 00:21:06.180
The evidence was that he was an avid fisherman.
465
00:21:06.180 --> 00:21:07.013
That was not
466
00:21:07.013 --> 00:21:07.900
a reasonable inference, correct?
467
00:21:09.480 --> 00:21:10.610
Read the room, Counsel.
468
00:21:10.610 --> 00:21:11.550
(all chuckling)
469
00:21:11.550 --> 00:21:12.383
Yes, Your Honor.
470
00:21:12.383 --> 00:21:13.411
It was a little too...
471
00:21:13.411 --> 00:21:14.533
It went over the line.
472
00:21:14.533 --> 00:21:15.840
Alright, so.
Needed this to win, yeah.
473
00:21:15.840 --> 00:21:18.480
Alright, so let me ask you another question.
474
00:21:18.480 --> 00:21:21.840
How is the postmortem theft relevant?
475
00:21:21.840 --> 00:21:24.450
It goes to the defendant's state of mind.
476
00:21:24.450 --> 00:21:25.650
It goes to conscious.
What state of mind?
477
00:21:25.650 --> 00:21:26.850
Consciousness of guilt.
What state?
478
00:21:26.850 --> 00:21:30.630
The fact that he is after, you know, again,
479
00:21:30.630 --> 00:21:32.523
from the defendant's perspective,
480
00:21:33.420 --> 00:21:35.880
the defense was that he's acting in self-defense.
481
00:21:35.880 --> 00:21:38.880
Yet after this supposed violent attack
482
00:21:38.880 --> 00:21:42.390
where he had to stab the victim 76 times
483
00:21:42.390 --> 00:21:43.920
in order to defend himself,
484
00:21:43.920 --> 00:21:47.820
he then essentially goes shopping in the victim's house,
485
00:21:47.820 --> 00:21:51.330
takes rings off the deceased victim's fingers,
486
00:21:51.330 --> 00:21:56.330
looks at the framed Joan Crawford autographed portrait
487
00:21:56.640 --> 00:21:58.920
and says, "That's something I want to get for my wife."
488
00:21:58.920 --> 00:22:01.020
So it's basically after this traumatic self-defense,
489
00:22:01.020 --> 00:22:02.370
he basically says, "What the heck?
490
00:22:02.370 --> 00:22:04.470
I might as well just steal stuff anyway."
491
00:22:04.470 --> 00:22:05.433
Yes.
Because I'm here.
492
00:22:05.433 --> 00:22:06.630
And, yes.
493
00:22:06.630 --> 00:22:08.970
And also I included the Commonwealth's
494
00:22:08.970 --> 00:22:11.490
motion in limine in the appendix.
495
00:22:11.490 --> 00:22:13.110
And the Commonwealth also argued
496
00:22:13.110 --> 00:22:16.140
that that evidence was relevant to identity.
497
00:22:16.140 --> 00:22:17.550
I know in this case there was...
498
00:22:17.550 --> 00:22:20.160
The defendant was conceding that he did kill the victim,
499
00:22:20.160 --> 00:22:23.130
but the Commonwealth still has to prove identity.
500
00:22:23.130 --> 00:22:25.530
And that was one of the factors that the Commonwealth argued
501
00:22:25.530 --> 00:22:28.230
to get that subsequent bad act evidence in.
502
00:22:28.230 --> 00:22:30.060
When Judge Kenton-Walker instructed,
503
00:22:30.060 --> 00:22:31.110
she said, "State of mind.
504
00:22:31.110 --> 00:22:32.220
Did she also say, "Identity?"
505
00:22:32.220 --> 00:22:34.080
No, she only said, "State of mind"
506
00:22:34.080 --> 00:22:35.310
and "Consciousness of guilt"
507
00:22:35.310 --> 00:22:38.310
in both her limiting instruction after that evidence
508
00:22:38.310 --> 00:22:40.473
as well as in the final jury charge.
509
00:22:43.890 --> 00:22:44.850
And I'll just...
510
00:22:44.850 --> 00:22:46.670
And how about the...
511
00:22:47.910 --> 00:22:49.650
The things that are giving me the most pause
512
00:22:49.650 --> 00:22:52.220
besides the fishing is the...
513
00:22:55.500 --> 00:22:58.110
The evidence on the victim
514
00:22:58.110 --> 00:23:02.460
and the other people he is having these encounters with
515
00:23:02.460 --> 00:23:05.670
and the handling of the restraining order.
516
00:23:05.670 --> 00:23:08.070
'Cause it's agreed to keep the restraining order
517
00:23:08.070 --> 00:23:08.903
out of the case.
518
00:23:08.903 --> 00:23:10.710
Then the defense brings it up.
519
00:23:10.710 --> 00:23:14.040
Tell me why those aren't problematic
520
00:23:14.040 --> 00:23:15.540
from your perspective.
521
00:23:15.540 --> 00:23:18.540
So those two witnesses that testified
522
00:23:18.540 --> 00:23:20.610
as to meeting the victim online,
523
00:23:20.610 --> 00:23:21.870
eventually meeting up with them,
524
00:23:21.870 --> 00:23:24.360
those were defense witnesses.
525
00:23:24.360 --> 00:23:28.350
Those were not witnesses on the Commonwealth's witness list.
526
00:23:28.350 --> 00:23:32.550
They were taken out of order due to scheduling issues,
527
00:23:32.550 --> 00:23:34.590
I believe with the attorneys and the witnesses.
528
00:23:34.590 --> 00:23:37.050
So those were not witnesses that the Commonwealth presented.
529
00:23:37.050 --> 00:23:37.883
What were they...
530
00:23:37.883 --> 00:23:38.716
What were their...
531
00:23:38.716 --> 00:23:39.549
What were they testifying?
532
00:23:39.549 --> 00:23:42.120
What was the relevancy of their testimony?
533
00:23:42.120 --> 00:23:44.370
I can't speak for why defense counsel
534
00:23:44.370 --> 00:23:46.923
wanted them to testify.
535
00:23:48.880 --> 00:23:50.580
I don't think it was very clear
536
00:23:50.580 --> 00:23:53.730
when you look at those direct examinations of them.
537
00:23:53.730 --> 00:23:58.140
However, as was pointed out in the argument earlier,
538
00:23:58.140 --> 00:24:02.730
to some degree that evidence was relevant to the case
539
00:24:02.730 --> 00:24:06.000
because the defendant's saying that
540
00:24:06.000 --> 00:24:08.520
this victim became so angry when he, you know,
541
00:24:08.520 --> 00:24:10.830
refused to engage in certain acts with him,
542
00:24:10.830 --> 00:24:13.020
that he lunged at him with a knife.
543
00:24:13.020 --> 00:24:15.480
Was it to show that the victim
544
00:24:15.480 --> 00:24:17.793
was using these apps to meet people?
545
00:24:19.110 --> 00:24:20.310
Perhaps, showing that maybe,
546
00:24:20.310 --> 00:24:22.080
perhaps showing that he was putting himself
547
00:24:22.080 --> 00:24:25.110
in situations with strangers, people he didn't meet.
548
00:24:25.110 --> 00:24:26.710
So potentially, yes, Your Honor.
549
00:24:29.310 --> 00:24:32.700
But there was no question that he's the killer,
550
00:24:32.700 --> 00:24:33.780
the defendant's the killer.
551
00:24:33.780 --> 00:24:34.640
So I'm just...
552
00:24:35.520 --> 00:24:36.890
Okay, but anyway, so.
553
00:24:36.890 --> 00:24:37.980
[Attorney Beaudoin] And then, your, yeah your other-
554
00:24:37.980 --> 00:24:39.630
The second one is the restraining order.
555
00:24:39.630 --> 00:24:41.040
The restraining order.
556
00:24:41.040 --> 00:24:42.840
That was, as was discussed.
557
00:24:42.840 --> 00:24:46.990
That was not something that the defense attorney anticipated
558
00:24:48.060 --> 00:24:49.320
the ex-wife to say.
559
00:24:49.320 --> 00:24:51.190
I think he made that clear at sidebar
560
00:24:52.740 --> 00:24:53.573
in terms of whether...
561
00:24:53.573 --> 00:24:56.095
And yes, it wasn't supposed to come in.
562
00:24:56.095 --> 00:24:59.040
It came in because the victim said,
563
00:24:59.040 --> 00:25:00.750
I'm sorry, the ex-wife said something
564
00:25:00.750 --> 00:25:01.980
she shouldn't have said.
565
00:25:01.980 --> 00:25:03.960
But there was essentially no prejudice
566
00:25:03.960 --> 00:25:07.590
because she also testified that she was never in fear,
567
00:25:07.590 --> 00:25:09.480
physical fear of the defendant,
568
00:25:09.480 --> 00:25:10.950
nor was she concerned about
569
00:25:10.950 --> 00:25:13.050
the physical safety of her children in the home.
570
00:25:13.050 --> 00:25:13.963
So even though...
571
00:25:13.963 --> 00:25:14.970
But the prosecutor crosses
572
00:25:14.970 --> 00:25:17.610
and puts that into question, right?
573
00:25:17.610 --> 00:25:20.370
That he's irrational and she's scared enough
574
00:25:20.370 --> 00:25:22.260
to get him outta the house, right?
575
00:25:22.260 --> 00:25:25.410
He certainly cross-examined her
576
00:25:25.410 --> 00:25:28.140
on the issue of the restraining order, yes.
577
00:25:28.140 --> 00:25:30.120
But can you take me through the order?
578
00:25:30.120 --> 00:25:31.890
Because it seems like she slipped
579
00:25:31.890 --> 00:25:34.053
mentioned the restraining order,
580
00:25:34.893 --> 00:25:37.800
and then the prosecutor cross-examined her
581
00:25:37.800 --> 00:25:39.480
about her affidavit in support.
582
00:25:39.480 --> 00:25:41.103
And then there was a redirect.
583
00:25:42.540 --> 00:25:43.380
Maybe I was unclear.
584
00:25:43.380 --> 00:25:46.140
So she was a Commonwealth witness.
585
00:25:46.140 --> 00:25:50.430
So it came out on cross-examination
586
00:25:50.430 --> 00:25:52.413
that she obtained the restraining order.
587
00:25:52.413 --> 00:25:53.246
[Justice Wendlandt] I see.
588
00:25:53.246 --> 00:25:55.140
Then on redirect, I apologize,
589
00:25:55.140 --> 00:25:56.640
the prosecutor did ask her questions
590
00:25:56.640 --> 00:25:58.500
about the restraining order.
591
00:25:58.500 --> 00:26:00.750
And again, it was something that wasn't supposed to come in,
592
00:26:00.750 --> 00:26:03.240
but no prejudice because for the reasons I just stated.
593
00:26:03.240 --> 00:26:08.240
So it was error to allow the redirect on the details?
594
00:26:08.535 --> 00:26:13.473
I don't believe there was any objection to that redirect.
595
00:26:14.640 --> 00:26:17.220
But that doesn't tell me whether or not it's error.
596
00:26:17.220 --> 00:26:19.814
That just tells me what my standard is for prejudice.
597
00:26:19.814 --> 00:26:20.787
Yes, I think in terms...
598
00:26:20.787 --> 00:26:23.400
Yes, I think I could have seen a scenario
599
00:26:23.400 --> 00:26:26.160
where the judge would've perhaps struck that
600
00:26:26.160 --> 00:26:27.690
or the defense would've objected.
601
00:26:27.690 --> 00:26:29.280
But that didn't happen here.
602
00:26:29.280 --> 00:26:31.620
And in the end it didn't have any influence on the jury
603
00:26:31.620 --> 00:26:33.810
because she testified
604
00:26:33.810 --> 00:26:35.610
that she was never in fear of the victim.
605
00:26:35.610 --> 00:26:37.563
So the sidebar was not enough?
606
00:26:38.646 --> 00:26:39.479
[Attorney Beaudoin] I'm sorry, Your Honor?
607
00:26:39.479 --> 00:26:41.973
The sidebar was not enough to voice an objection?
608
00:26:44.460 --> 00:26:46.260
I know there was a sidebar conversation.
609
00:26:46.260 --> 00:26:48.420
I don't know whether a specific objection to it.
610
00:26:48.420 --> 00:26:50.100
There's no limiting instruction on it
611
00:26:50.100 --> 00:26:51.600
or there is a limiting instruction?
612
00:26:51.600 --> 00:26:53.950
On the restraining order, I don't believe so.
613
00:26:57.240 --> 00:26:59.820
And unless Your Honors have any further questions,
614
00:26:59.820 --> 00:27:01.260
the Commonwealth could rest on its brief.
615
00:27:01.260 --> 00:27:03.030
Yeah, no, the mitigating...
Yeah.
616
00:27:03.030 --> 00:27:07.440
The instructions on unanimity and the mitigating,
617
00:27:07.440 --> 00:27:08.990
it's hard to follow (chuckles).
618
00:27:10.080 --> 00:27:11.433
Why don't you address that?
619
00:27:14.151 --> 00:27:16.110
By the way, is that a standard instruction?
620
00:27:16.110 --> 00:27:18.630
Yeah, my colleagues who used to give it would know.
621
00:27:18.630 --> 00:27:21.510
But is that a standard instruction about unanimity
622
00:27:21.510 --> 00:27:22.893
and not required?
623
00:27:25.590 --> 00:27:28.190
You're referring to how the first two prongs of...
624
00:27:29.100 --> 00:27:32.730
I'm talking about the instruction that mitigating...
625
00:27:32.730 --> 00:27:35.910
Commonwealth has to disprove mitigating circumstances
626
00:27:35.910 --> 00:27:37.410
beyond a reasonable doubt.
627
00:27:37.410 --> 00:27:38.610
But it doesn't...
628
00:27:38.610 --> 00:27:40.770
But the jury doesn't have to be unanimous
629
00:27:40.770 --> 00:27:44.310
on what the theory was, the mitigating theory.
630
00:27:44.310 --> 00:27:47.430
Is that a standard instruction or?
631
00:27:47.430 --> 00:27:48.900
I can't tell you right now.
632
00:27:48.900 --> 00:27:51.090
It directly came from the model.
633
00:27:51.090 --> 00:27:51.923
I'm not sure.
634
00:27:51.923 --> 00:27:53.880
In review of that, I can't remember thinking
635
00:27:53.880 --> 00:27:57.420
this was a huge digression from the model jury instructions.
636
00:27:57.420 --> 00:27:59.253
But I think in the end,
637
00:28:00.360 --> 00:28:01.950
that claim doesn't go anywhere
638
00:28:01.950 --> 00:28:03.540
because it was clear that the jury
639
00:28:03.540 --> 00:28:06.840
found that the Commonwealth proved beyond a reasonable doubt
640
00:28:06.840 --> 00:28:09.540
that there were no mitigating circumstances.
641
00:28:09.540 --> 00:28:11.370
So it was clear that they were unanimous,
642
00:28:11.370 --> 00:28:13.350
that there were none.
643
00:28:13.350 --> 00:28:17.010
So the question of whether they were unanimous
644
00:28:17.010 --> 00:28:19.770
about which mitigating circumstances they found,
645
00:28:19.770 --> 00:28:21.660
they have to find that the Commonwealth's-
646
00:28:21.660 --> 00:28:23.783
Well, that would help the defendant, right?
647
00:28:24.990 --> 00:28:26.790
It would reduce the defendant's burden.
648
00:28:26.790 --> 00:28:28.743
Yes, yes.
649
00:28:33.240 --> 00:28:34.920
And unless there are any further questions, Your Honors,
650
00:28:34.920 --> 00:28:37.173
the Commonwealth can rest on its brief.