-: SJC 13383 Commonwealth versus Daniel M. Brum.
Justice Budd: Okay, attorney Warren,
whenever you're ready.
-: Good morning, Chief Justice, and may I please the court,
John Warren on behalf of Daniel Brum.
This case implicates foundational evidentiary rules,
rules that ensure that the jury based their verdict only
on reliable evidence, and that didn't happen here.
Rather, the Commonwealth built its case,
a case where there was no percipient eyewitness
on identification against Mr. Brum on evidence that violated
those rules, and these errors individually,
but especially collectively, bootstrapped together,
layered on top of each other,
rendered the conviction of Mr. Brum unreliable.
Before turning Ms. Bizarro's identification,
which is an interesting issue,
I do want, if I could, I'd like to address
one of the statements that came in through Ms. Bizarro,
and there's a number of statements in my second issue
in my brief that came in through Ms. Bizarro,
any one of which in a different appeal could, on its own,
I think, forcefully constitute a strong appeal.
And the first statement was DB stabbed me,
and this was wholly inadmissible under Day and under 801D1A,
and that's because the declarant of the statement was
Jordan Raposo, and he didn't testify at trial,
and he wasn't subject to cross examination at trial.
And that statement, I don't think there could be a dispute
as to the prejudice of that statement.
It's a statement from the non-testifying victim in the case,
the only percipient eyewitness in the case,
that Mr. Brum did it, and it was wholly admissible coming in
through Ms. Bizarro's grand jury testimony-
Justice Gaziano: Do you think
it was an excited utterance?
-: So that's my second argument.
No, that it's not an excited utterance.
-: Assume you're wrong on that one?
-: Assume I'm wrong on that, it's still not admissible
under Day, because it's coming in substantively
through Ms. Bizarro's grand jury testimony,
and the Day rule and 801D1A,
which is titled the Declarant Witness Rule,
it's predicated on that concept that the declarant testifies
at trial and be subject to cross-examination.
And that was, there's no dispute, Mr. Raposo was
the declarant of that statement, and it infected
the whole trial because it's the statement
of this non-testifying person, it's untested evidence.
This person did not testify, and it came in substantively,
and the jury was instructed,
not only was there no limiting instruction
that this is just impeachment,
which shouldn't have been impeachment evidence anyway.
They were instructed to give it its full probative value
for the truth of the matter,
and it infected the whole trial.
-: One of the things about that statement, counsel,
that, I mean, you're arguing that it's inadmissible
under the rules, but I wonder, what concerned me more is
isn't that, the Commonwealth says the opposite,
but isn't it testimonial?
Isn't that statement testimonial, and that's the part,
can you address that?
Because I just, in looking at the analysis of pointing out
to who it is that did this to me, I understand
the circumstances might say that it's an ongoing emergency,
but it would seem to me that there's
a pretty good argument that it's a testimonial statement.
-: Right, I think Your Honor is absolutely right.
I think that's the second reason
why it shouldn't have come in.
And I think your Honor is also right to say that,
in the sense that the Day rule contemplates notions
of confrontation, and so when Day court carved out
a pretty broad exception to say,
we're not just gonna let in grand jury testimony
as impeachment, we're gonna say it's substantive.
You can rely on it for the truth.
-: That's the substantive cross-ex examination component.
Atty. Warren: Right. -: Right?
That's the safety net.
-: Right, that's the safety net.
-: That's the confrontation cause safety net.
-: Exactly, and it's right there in 801D1A,
which Day explicitly adopted,
and it's called the Declarant Witness Rule.
And so to Your Honor's point,
baked into that rule is the fact the guy's gotta be there
and you get to cross-examine him.
But then to the second point
about a pure confrontation issue,
which is the second argument,
this is someone who we know through Ms. Bizarro's testimony,
was trying to get her to say that it was Mr. Brum.
So the record is clear that Mr. Raposo wants Brum
to be blamed, and for that reason-
-: Well, it's not necessarily clear.
That's what Ms. Bizarro says when she tries to distance
herself from her grand jury testimony.
And certainly Judge Cosgrove didn't buy it
that this was something that she,
and he makes a determination
that she's feigning this for whatever reason.
-: And I think on the flip side, though,
but what's the evidence that it was non-testimonial?
Because most of the cases that I reviewed,
when these statements are coming in,
there's at least some sort of, you know,
there's the Nesbitt case, where the judge is parsing
certain things come in, certain things don't.
The only witness that ever testified about that conversation
where DB stabbed me came out was Ms. Bizarro,
but here she is at trial saying she doesn't even remember
that statement being made, let alone enough factual basis
for a judge to say it's not testimony.
-: I do want to challenge you on that, though,
because you've seen the video, you provided it to us.
We have testimony from the defendant's mother and brother,
I think, when when the victim comes in
to the backyard and collapses.
So we have bookends, we have the video of the victim getting
into the car, driving away after he's been stabbed.
We have testimony from other witnesses about appearing
on the scene, bleeding profusely, and collapsing.
So isn't there enough for somebody to suggest
or for somebody to find that there's an ongoing emergency
here within which the context
when that telephone call comes in?
-: I mean, I see your point, but I would suggest
there's not enough, and you know, Ms. Bizarro,
when she does talk about the statement of the grand jury,
she basically says, "DB stabbed me, and that's it."
It wasn't, I need help, I'm going to the hospital,
call for an ambulance.
It was just DB stabbed me, and that's it.
And what I would suggest is
that's simply not a strong enough factual basis.
-: Assume we think it's an emergency,
and also that Judge Cosgrove made proper findings
when his findings supported a feigned memory loss.
You still think your best argument is it's only admissible
if it's a declarant and she's not the declarant?
Atty. Warren: Precisely.
-: And how is that when you have hearsay within hearsay,
the first question is the first layer of hearsay.
The first layer of hearsay is whether
or not your prior statement of a witness under oath,
who's now testifying is subject
to cross-examination on the statement.
All right, so that's the first layer of hearsay.
Then you go to the next layer of hearsay.
It's as if that paper that statement is on is now
on the witness stand talking, and that statement now
for the second layer of hearsay is that
the victim said the defendant stabbed me.
So the second layer of hearsay, if it's satisfied,
then you don't have a second hearsay problem.
You've got your confrontation clause issue,
but the confrontation clause issue involves
the excited utterance, not that the out of court declarant
on the second level isn't there,
because both levels are satisfied.
-: Generally, you're right.
That's the analysis under totem pole hearsay,
but not when it's concerning substantive admissibility
of grand jury minutes for the truth.
Justice Georges: What's your?
-: That's Day, that's on page 73 of Day,
and that's 801D1A, and that's the Declarant Witness Rule.
If this was normal totem pole hearsay, fine,
but it's under, it has to go through the Day rule,
because that's how it comes in substantively.
-: Well, first of all, if you come into under 801D1A,
I mean 801D1C, not just 801D1A.
-: That's the same, the has the same predicate,
the declarant under conduct Day and the identification rule,
again the declarant has to be there.
If Mr. Raposo had testified at this trial-
-: Yeah, it identifies the perpetrator of a crime,
that's the idea.
-: The declarant has to be there.
If Mr. Raposo testified at this trial,
this statement could have come in
through Ms. Bizarro's grand jury testimony for the truth,
but he wasn't there.
-: So you're saying for grand jury testimony,
the rules are different under Day,
and that the regular rules of totem pole don't apply.
-: Exactly, exactly, and if I could turn
to the identification issue.
-: Give the line from Day that says that.
-: It's on page 73, and it is the,
they adopt the 801D1A rule,
which says the declarant needs to be there
and needs to be subject to cross-examination.
-: If I remember correctly, 73,
is that the footnote that you brought?
-: No, that's not the footnote.
That's in the text of Day on page 73.
-: Can you tell me the language if you have it?
-: The declarant they're referring to is the declarant
who testified to grand jury.
-: I would suggest that's not the reading of Day.
That's not declarant, that's not how-
Justice Lowy: Is Day a hearsay within hearsay case?
-: It isn't, but that's-
-: So they're obviously referring to the claimant.
Atty. Warren: I would suggest that
that's not how declarant is used.
-: Within a hearsay case, what might be meant by declarant
when it's not a hearsay within hearsay case?
-: So the rule itself is it's not,
it's the Declarant Witness Rule.
It's the reason that it's not just saying-
-: Day is what says it can't be the circumstance
we have here, but Day factually is distinct
from the circumstance we have here.
And the declarant in Day was clearly the person testifying
at the grand jury, and if you extend that, it's Ms. Bizarro.
Ms. Bizarro is on the stand subject to cross-examination.
-: I would suggest if you look at the meaning
of declarant in the rules.
-: I'm sorry, I think this is something
we're gonna have to go back and look at,
and we will keep what your position is in mind,
but let's move on to the next thing.
-: Can I ask you on the next thing,
'cause you make an argument about,
which was very interesting, about identification.
Is it identification as, you know, the neighbor sees
the shooting and calls the police, right?
Classic identification, as opposed to watching a video
and identifying, is all that necessary if we look at it
as an 801D1A statement as opposed to C?
-: So her identification is a lay, it's an opinion.
It's an opinion.
-: But it's still a statement in front of the grand jury
that's feigned, so can we just cut out with this,
and just look at it under the first exception and then?
-: No, because she's not a fact witness,
and it's it's opinion evidence,
and that's the carve out in pleas,
and that's, pleas is specifically under 701.
And it's the reason, it's an exception really
to fact witnesses coming in and saying
what they heard and what they saw.
The exception is for identifications,
this narrow holding on opinions.
-: But we still have the overlay
of this grand jury substantive use of the grand jury, right?
-: It's still, I would suggest it's still an opinion.
It's still under pleas, and it's under 701,
and that's the only way it comes in, and-
-: And that makes a statement of identification
under subsection C under your view?
Atty. Warren: It's an opinion, it's not.
-: I'm sorry, I misspoke,
it's not a statement of identification.
-: Exactly, it's an opinion on identification,
and pleas carves out this exception.
It's not a fact witness.
It's saying you're gonna give an opinion.
And the reason that Ms. Bizarro's opinion was unreliable
and inadmissible is first of all,
her opinion was contaminated from the outset.
Before she ever made an identification,
even on the Commonwealth's case,
she heard that it was Mr. Brum who did it.
That's before she ever looks at a video.
-: [Justice Wendlandt] Video from the victim?
-: From the victim.
Then we have a video which is angled and distant,
and you can't clearly see the person's face
or any distinguishing characteristics.
-: I'm sorry, is the stabber walking?
Atty. Warren: The perpetrator's jogging on the video.
-: [Justice Wendlandt] Okay, so he is moving.
-: He's moving, and you know-
-: Does she say that that's why she can tell who it is
because he has a distinctive I thought it was a walk?
-: No, you're, I mean you're right.
What she says is walk.
The person's jogging on the video.
Interestingly, the first ID she ever makes is
from a still photograph, so it's not even a moving image.
But then you go to-
-: I'm sorry, she knows the defendant for 15 years?
-: Right, clearly familiarity, but that's not enough.
And so you go to what her actual reasons were
for making this ID at grand jury.
She says it's the walk and the clothes.
Well, the clothes were completely non-descript.
The walk, this person's not,
the person's jogging on the video.
And the first ID she ever makes is from a photograph still,
and then what is missing-
-: That you're saying goes to admissibility as opposed
to just common variety cross-examination?
-: It does, because it's not helpful to the jury,
and what else is missing in her grand jury testimony is
this is evidence that's gonna give the jury the tools
to make their own assessment.
That's helpfulness under 701 in pleas.
-: To what extent do we defer
to Judge Cosgrove's findings on this?
-: So I would think it would be abuse of discretion,
but it's simply not helpful.
You look at what's the factual-
-: I don't understand what you mean it's not helpful
if we're looking at it in relation to the standard.
-: It's not, well, that's the standard under 701 evidence,
opinion evidence, it needs to help the jury decide.
-: He's made that determination that it is helpful
because he's made specific findings
about that the video itself is clear enough certainly
to him, and that's the video that she looked at.
Isn't that explicitly if not implicitly saying
that this would be helpful to the identification
along with all the other identification evidence?
-: And what I'm saying is that that was, you know,
he erred there, he erred, he got it wrong.
And the factual basis for Ms. Bizzaro's opinion
as contained in her grand jury minutes,
she says the walk and she says the clothes,
but there's no description about what it is about the walk,
what it is about the clothes that would let a jury make
their own assessment, as we usually have in these cases
when someone actually comes into court
and gives live testimony.
This is an opinion witness.
This is supposed to be helping the jury out,
and what actually happened at trial is-
-: I get under pleas, we don't want the police officers
to say I'm super witness, and that's Joe Smith, right?
We don't want that, and we said, no, let the jury do that,
and/or let someone who knows this person do that,
and we have that here when a judge makes a determination.
And this video and still that I looked at is certainly
a lot better than the video that we had
in Justice Lowy's case on the, the name's escaping me.
Justice Lowy: Davis. -: Davis.
It's a lot better than the Davis blurry mess,
so shouldn't this just go to the jury?
Atty. Warren: You know, I don't think the video-
-: As Justice Wendlandt, suggested,
that's what we have cross examination for.
-: So first, I would say the video,
it's not that it's pixelated or extremely blurry,
it's that it's distant and angled.
You can't see the person's face,
and you can't make out distinguishing characteristics.
-: Right, which is why somebody who's known this person
for 15 years might be helpful to the jury
in assessing from this distance.
Isn't that what Judge Cosgrove avowed?
-: Not from that video, not with the reasons,
the lack of reasons in her grand jury,
and not when she actually gets to trial and says,
"I don't know who that person is.
It could be any average white guy, it's unclear."
-: So we're gonna let witnesses just lie on the stand,
and perjure themselves?
-: The evidence has to be helpful to the jury,
and in the form it came in where, you know,
this again, it's a carve out for opinion evidence.
-: Yeah, so you're saying it's
basically so inherently unreliable
that the judge abused his discretion
in saying it would be helpful.
Atty. Warren: Exactly. -: Okay.
-: Exactly, and I know my time is up,
but if I could turn to the prosecutor's request
for identification.
-: What I'm gonna do is ask if anyone has questions
on that particular issue.
Okay, I'm sorry. -: Thank you.
I would ask that this court grant Mr. Brum a new trial.
-: Great, thank you.
Okay, Attorney Nadel.
-: Thank you again, Madam Chief Justice,
and again, may it please the court,
Steven Nadel on behalf of the Commonwealth.
I would suggest that this case represents
the rules of evidence-
-: First aggressor in this case.
(all chuckling)
Withdrawn.
(all chuckling)
-: But again, this case too represents the rules of evidence
embodied in Day and (indistinct) working flexibly as well-
-: And do you read Day the same way as your opposing counsel
that for purposes of grand jury minutes,
they can only come in if,
or the garden variety totem pole hearsay rules don't apply?
-: I do disagree, and I would suggest this court disagreed
in Commonwealth versus Depina, where it applied
the traditional layered hearsay rule
to an adoptive admission by-
-: Okay, so you think in Day when they talked
about the declarant, they're just talking
about whoever testified before the grand jury?
-: Right, yes, whose, you know, whether they're recanting
or making new inconsistent statements,
whose prior statements are you admitting?
Justice Lowy: There's only one declarant in Day
that they could have been referring to.
-: I'm sorry?
-: There's only one declarant in Day-
-: Well, that too, correct,
and Commonwealth versus Santiago is a case,
I know I cite it in my brief as part
of the excited utterance stuff, but in a footnote,
they talk about layered hearsay being applied
to excited utterance is also not in the Day context.
But again, it seems fairly unremarkable
at this point on that piece of it.
As to the identification issue my brother left off,
I would suggest while there's no case directly on point
in Massachusetts.
There are indications that the way her opinion,
testimony on identification was admitted was sort
of unremarkable and has found acceptance in Massachusetts.
The earliest one dealing with the exact issue
that I could find was United States versus Ingram.
That's a 10th circuit case
where kind of the main issue they, sorry?
-: Was that 40 something years ago?
Atty. Nadel: Yes.
-: Let me ask you what the,
this is how the account started quite well
with a very interesting point, and then got away from it,
which is the problem here is the lack
of evidentiary foundations, that we're trying to determine
the foundation for a lay witness or the foundation
for a spontaneous exclamation from grand jury minutes,
not from testimony at trial,
and that we don't really have the foundation leaping
off the pages of the grand jury to establish.
That's how we established this argument,
and I don't know where it comes out, but it's a good point.
-: Well, I think there is more
than just the grand jury minutes as to those two things.
I think what is persuasive about lay ID is what's
the basis of their familiarity here,
and she did testify about some of this at trial.
She was a difficult witness, obviously,
but I've known him for 15 years,
we grew up in the same streets,
went to school with his brothers, that kind of thing.
And that she again, was part of the trial testimony,
not just the grand jury evidence.
And certainly as to the excited utterance aspect of it,
I think there's ample evidence of what was going around
at that time.
You know, Andrew Brum, his wife, their cousin sees
the victim kind of stumbling to their backyard bleeding
from serious injuries to his nether regions,
kind of losing consciousness,
unable to hold himself up, and minutes later,
Shilah Bizarro shows up, and she's freaking out,
so there is some independent grounding for the reliability.
-: What about the confrontation issue with DR stabbed me,
or DR did this, what about the confrontation issue?
-: Well, I think the confrontation issue,
certainly the evidence is testimonial,
it was grand jury testimony,
but I think the confrontation clause is satisfied by having
the declarant there to be cross-examined.
-: The declarant wasn't there.
The declarant was the victim, so he didn't testify.
I'm talking about what about if that statement,
DR did this to me, or DR did it is testimonial
without having the person there,
what about the confrontation issue?
-: Well, I think confrontation-
-: Well, let me just start you fundamentally,
do you think it's a testimonial statement?
-: No, the excited evidence is not a testimonial statement.
No, I think the evidence kind of,
the timing of everything pretty clearly shows
that's a spontaneous reaction to getting stabbed.
-: Well, that's the evidence part.
That's the rules, that's the exception part.
I'm talking about the sixth amendment part,
the confrontation part.
-: Well, I think generally, when excited utterance comes in,
sometimes in domestic violence cases
where the victim may exert a fifth,
the declarant is not there to be cross-examined,
and that doesn't raise a confrontation issue
if the statements, if these utterances are not testimonial,
which it wasn't here, and then so long as, you know,
the lay ID hearsay stuff all checks out,
I don't think there's a confrontation issue beyond that.
Sorry, where was I?
-: I think what you're trying to say is that the fact
that the excited utterance, if the foundation
for the excited utterance is satisfied,
then at least in this context
when law enforcement's not involved,
it's hard to think that it's a statement that's intended
to be a substitute for trial testimony.
-: Right, it's, you know, certainly unlikely
that the victim here was gonna call his girlfriend
afterwards and be like, now is the time
to get Daniel Brum for something he didn't do.
-: If the excited utterance foundation stands.
-: Right, correct, and then that should come in under Day.
-: What about that issue of the police officer blowing up
the surveillance photo to be able to see
the license plate number in a way that the jury never did?
-: So I would say about that, it was not ideal
the way it came out in this case.
The prosecutor discovered this
during the cross-examination of that officer,
but I did check with the prosecutor 88 Gilderson,
and he confirmed with the police that they do have
this new technology.
It has a name, I forget what it's called,
but they can sort of zoom in and clarify and enhance,
but we don't, obviously that's not really part of the record
here, but to the extent there are concerns there,
I think the jury could, you know, give weight
to the officer's testimony whether or not that was true.
Certainly, the prosecutor during his redirect,
I don't have the page right front of me,
but in the transcript he kind of goes,
"Look at this video we're watching right now.
You can't see a Florida license plate
in that video, can you?"
So I think there were steps made to sort of reduce
any prejudice that might have been.
-: Counsel, did the rental contract,
I know there was a stipulation,
did the rental contract come in and did that,
I don't remember if it if that denoted
what the vehicle, the agreement was.
-: Yes.
-: For the vehicle, and whether it had a license plate,
and whether it was a Florida license plate.
-: Yes, but the stipulation was as to that he was renting
the car that they found on the street the day after,
not that he rented the car that was in the video,
but obviously, there were other confirming aspects
in the video that there was a rental car
that was out of state, so there was no front license plate,
so those details, you know, corroborated and made up
for this sort of missing Florida license plate thing
that the jury couldn't judge themselves.
If there aren't other questions on that issue,
I'll return back to the identification issue coming in
under (indistinct) as lay opinion testimony.
And I think it was you who pointed out
United States versus Ingram is about 40 years old, yes,
but the appeals court relied on that case in part
when they decided pleas to sort of reinvigorate
the lay opinion testimony and this court
in Commonwealth versus Hobbs,
which is the first degree murder case
where some improperly admitted evidence was not prejudicial
because of a brother's seriatim identifications
of his brother based on surveillance video
at the police station, at grand jury testimony.
Then of course, he recants identification at trial,
and that issue isn't specifically raised,
but under 33E, this court apparently was not troubled by it.
So I think that's what I meant by saying
that there are indications that this is
kind of an acceptable practice and-
-: It's not so much that it's within what the meant,
although I know the defendant argument.
It's that is considering Commonwealth versus Davis,
and is this appropriate lay opinion?
-: Under Commonwealth versus-
-: Well, we've said certain video,
surveillance video is not like in Davis.
Is this permissible lay opinion to have
the witness look and the grand jury witness,
as as it turned out, and say,
"Yeah, this is Mr. Defendant"?
-: I think so, and certainly, the suggestive circumstances
that may have proceeded the victim telling her who did it,
I think may play part into the-
I'm sorry?
-: Which way does that cut?
-: Depending on the circumstance,
could make it more unreliable as to unduly suggestive
under fairness principles to be admitted.
-: Is that a gatekeeping function of the trial judge
if you have a Davis blurry video to keep it out?
-: Yes, I think there's that
if it's kind of so unreliable it shouldn't be-
Justice Gaziano: And it's just not relevant.
-: Right.
-: If it's so blurry, right?
-: Or if the video quality is like,
I don't believe anyone can identify someone in this video,
all those kind of questions that precede admissibility,
but those are also questions
that the jury has to figure out for themselves.
-: That's something that the trial judges can do.
Atty. Nadel: Right.
-: Judge Cosgrove thought this one was good enough.
-: Right, and the judge instructed them on this,
you have to consider the nature (indistinct),
to look at the video, and to the extent
that there are reliability concerns
about letting in lay opinion IDs under Day,
I think that is sort of a key distinction
between eyewitness identifications
and the kind of ID that was at issue here,
because for the most part with eyewitness IDs,
you don't have the event running in the background
that you can kind of look at and say,
"Yep, that looks like a good ID to me.
No, that looks like a bad one."
Here, the jury could look at the video,
which as the judge found was a pretty good quality,
not great, given the reasons I would describe,
distance, angle, that sort of thing.
But I think a jury could look at this video and say
someone that knew this guy for 15 years,
grew up with him essentially, I think they could see
this guy at different points in the video,
and I think she gave a pretty holistic basis for that.
-: But the jury didn't grow up with the guy.
What about having the jury rely on the video to ID him?
-: I think the jury has to rely on it,
or look to the video themselves.
They can't just blindly-
-: Of course, but you'll be able to tell it's him
from the video?
Wasn't that sort of a suggestion in the closing?
-: I mean, the video was reasonable-
Sorry?
-: It certainly was a suggestion by the defense
that they didn't need the testimony.
-: That's true, yes, and that was eliminated too,
that this video was unmistakably clear.
We don't need this opinion coming in.
-: Counsel, could I ask you to just
before your time runs out,
address this is other kind of one step up argument
that your brother makes about the concept or definition
of what a percipient witness is in that,
because Ms. Bizarro wasn't a percipient witness
to the actual stabbing, that she can't be
a percipient witness for purposes of making
the identification on the surveillance.
And I know that he was relying on that footnote.
You say that that footnote is not necessarily helpful,
because you mentioned to the events in question relate
to the circumstances of making the ID,
not the actual act, criminal act.
Atty. Nadel: Right.
-: What other, what cases do you have to support that?
'Cause that was a big deal, I thought, for you to say that,
and for the other way, is there anything that you have
that supports that formulation of what to the events
in question means when it comes to percipience?
-: Well, certainly, there's not exactly on the same issue,
but there's that unpublished appeals court decision
that's cited where, you know, it's not an eyewitness
to the events of the crime identifying the perpetrator,
so already you're kind of getting away
from direct recipients, although in that case,
it was a witness who saw the culprit
running away shortly after.
Justice Georges: Any federal cases?
-: United States versus England, I think is the best one,
and I don't know if it's just 'cause it again seems
so unremarkable that it's never really reiterated,
but at least even then, it seemed like it was acceptable
enough that the main issue they were deciding was,
does a lay ID opinion come in under 701?
And then a footnote, oh, by the way,
that comes in under rule 801 prior testimonies or prior ID.
If there no other questions.