-: SJC 13391, Commonwealth versus Donovan E. Goparian.
-: Mr. Schnipper, good morning.
-: Good morning, Justice Gaziano. May it please the court.
I'm Merritt Schnipper here today on behalf
of the defendant, Donovan Goparian.
The Brady violation in this case was egregious,
both in terms of the initial non-disclosure
and in terms of the prosecutor's failure
and his duty of inquiry upon receiving the Richardson email.
Billy McElhinney
is not some random third party culprit possibility.
He's the defendant's nephew,
one of the Commonwealth's main witnesses
in the case against Mr. Goparian, and, of course,
he's a demonstrated participant in events
surrounding the burning of Marie Martin's car,
and Vito Nuzzolilo is not a random or anonymous source.
He's someone that federal agents
who conducted his proffer confirmed McElhinney lived with
at the time he made the withheld admissions.
-: This may go to the failure to have a hearing,
but we don't know because there's a proffer,
but then there's no affidavit, and then, of course,
because there's no ensuing hearing,
we don't know what Vito-
-: Nuzzolilo. -: Nuzzolilo.
We don't know what he's gonna say.
-: Well, I did provide the court with an affidavit
in which he adopted his statements in the proffer report,
and I feel that's plenty to show what he would've said.
I mean, I could've written out
what was in the proffer statement and had him sign that,
but the reality is that's the contemporaneous record
of his statements,
and I agree because we didn't have an evidentiary hearing,
we don't know specifically what he would've said.
And we can say with likelihood that he would've said
what he said in his proffer report,
or he might've said quite a bit more,
and he might've crumbled under cross exam,
or he might've stood up brilliantly.
But we don't know, and the reason we don't know
is 'cause of the Commonwealth prevailed
on not having an evidentiary hearing,
and I think because we don't have an evidentiary hearing,
there's a lot of other things we don't know
about what happened at Mr. Nuzzolilo's proffer and,
of course, not only about what happened at his proffer
but about what the Worcester Police Department did
or did not do in response to the information it received.
-: Because obviously, you object at not having a hearing,
and then- -: I definitely do as well
as not granting us our multiple motions
for post-conviction discovery because, you know,
without a hearing and without post-conviction discovery,
there really is no way for the defense
to penetrate what happened in terms of the prosecutor,
the police department, the federal agency, and the witness,
and what happened in this proffer statement, right?
So there's no doubt that this is a knowing
and willful violation of Brady,
and it's not just a violation
because they didn't forward the email
that was sent by Detective Richardson.
It's a violation because, upon receipt of that,
it's quite clear the court went through it
in Graham v. Hampden DA, but that is not new law.
That's a summary of longstanding law.
That's both federal and state law.
They had a duty to inquire, bounded only by reasonableness,
to find out what was there,
and what was there at minimum is the information
that's contained in the DEA-6 report.
That's the minimum that was there.
Now what we don't know
is whether the police department ran down any
of the leads that Mr. Nuzzolilo gave them.
What we don't know is whether, for instance,
there was a search in this pond
where Mr. McElhinney said he threw the gun,
and, of course, the gun in this case was never recovered.
So there's a lot that we don't know, and frankly,
there isn't anything more that the defense
could've done to show the Superior Court
that we were entitled to know this, right?
I mean, I come to the court for post-conviction discovery
based on what happened at trial, right?
I'm denied on the representation from the Commonwealth
that they have nothing responsive.
I get the DEA-6 report. I renew my motion.
I'm denied once again.
I then spend two years engaged
in a public records process.
I obtain the Richardson email that shows without question
that the Commonwealth had responsive materials,
had notice of the proffer.
I'm once again back before the court asking for discovery.
I'm denied again.
I say, "Judge, I'm at the hearing,
the non-evidentiary hearing,"
basically pleading with the judge saying, "Please help me.
Please order certification that the files
of the Worcester Police Department
have been searched for this material," and I'm just denied.
So there isn't anything more that we could've done
than we did do in the Superior Court
to obtain whatever information we do have,
but what we do already have and what we're able
to bring before the court is absolutely devastating
because we're certainly entitled to the more favorable,
substantial basis standard of review.
This is a knowing and willful violation of Brady.
It's withheld in the face of a specific request
as well as in the face of mandatory disclosure obligations
under 14(a)(1)(A)(iii), right?
So that's all there,
but when you look at the specific issues of trial prejudice,
it's astounding how it pervades the case, right?
And I think I'd like to go through a bunch of them,
but the most potent to me is when trial counsel's attempting
to cross examine Heidi Thompson
about whether Billy McElhinney had access to guns.
The Commonwealth objects.
Of course, the Commonwealth knows
that they're withholding statements
about his access to guns or at least his access
to one very important gun in this case.
-: The part where the purported witness says
that he was responsible,
Billy says he's responsible for the murder,
that was admission by silence, right?
-: For the killing itself, he said,
"Did you kill this woman?"
And he just hung his head. -: He hung his head, right,
but the other ones is so far as the view,
-: So- -: The vehicle and the firearm
are part of the- -: We actually admitted them
-: They're part of the proffer. -: over a part of course
of several conversations while he was living
with Nuzzolilo at the apartment that, of course,
the federal agents were monitoring at the time
that they were investigating Nuzzolilo.
So the federal agents were able to confirm at least
that McElhinney was with Nuzzolilo for a period of months
where these admissions could have been made.
But when Mark Shea defense counsel goes to sidebar
to argue the Commonwealth's objection,
(laughs) it's amazing.
He says, you know, because right before trial,
Heidi Thompson finally says, you know,
"I took Billy McElhinney to buy gasoline the night
that the car was burned."
Well, that's really something, but, of course,
Mark Shea doesn't know (laughs) at the time
that Billy McElhinney made admissions to burning the car.
So he's up there saying,
"Judge, now that we understand that Billy McElhinney
is getting the gasoline and burning the car,
we see that he plays the entire role that the government
is saying Goparian could've played in this entire case.
We don't know who shot this woman."
So he's feeling his way towards exactly the information
that is being withheld.
That's because he knows something
is wrong with this case, right?
All these people are mixed up in something crazy going on.
-: Just so I make sure I understand. Thompson testifies.
What does Thompson say Billy, whatever his name is,
is doing about burning the car and other things?
I know she's testifying
that they're driving around together, right?
Merritt: Oh, so she testifies-
-: I'm just trying to figure out the difference
between what she testifies to what we learned from,
you know, whatever this guy's name, the federal informant.
Merritt: So Mr. Nuzzolilo is the federal informant,
and McElhinney is the trial witness in the defense.
-: No, I know the difference, but I'm trying to understand.
Thompson testifies to Billy doing certain things.
-: So she testifies to Mr. Goparian burning the car.
She testifies to them going to the McElhinney home.
-: Thompson's testimony doesn't put Billy
at the burning scene, the scene of burning the car at all?
-: He does not. -: Okay.
-: She says that he, sorry, Mr. Goparian and herself-
Kafker: Nor does Hogan do that either.
-: That's correct, right.
Hogan is the one who drives down
to Worcester with Marie Martin.
You know, he's the one who's present there.
According to his CSLI data, he's shown on video there.
Obviously, it's only his testimony
that places Mr. Goparian there.
Of course, Mr. Hogan's testimony
is significantly compromised both by the fact
that he's the initial suspect in the case
and the person with an astounding level of connection
to Ms. Martin and her life and her death but also that,
of course, the rest of our post-conviction investigation,
the part that doesn't flow directly
from the Nuzzolilo proffer information
is all focused on Tom Hogan,
and it shows both that he's the person
who possessed a firearm that's most likely
of the firearms in the universe of this case
to have fired the bullet that's found in Ms. Martin's head.
-: I mean, you have got a big Brady violation,
but with the firearm, just to,
I guess to sidetrack you just a little bit, I'm sorry,
but the violation I see is the weight
of the projectile, right? -: Well, I think it's-
-: It's a 71 grains, correct? -: The question-
Well, that's certainly a violation here,
but it's our position that we've established,
at least a prima facie case
that justified an evidentiary hearing
on whether the Commonwealth
has provided any firearms discovery in this case.
-: Well, we have a firearms report,
and then there's a note that's later discovered in the-
Merritt: So there's a firearms report-
-: A note of the ballistician,
and the ballistician's note says what the grains are,
but you have the projectile.
Merritt: You do have a projectile.
-: So (laughs) it doesn't take a rocket scientist to weigh it
or to figure out if the defense hired a ballistician,
they have the particular projectile,
they could weigh it themselves.
And, you know, every ballistics report I've ever seen,
it shows the grains of the projectiles are recovered-
Merritt: Sure, so this one doesn't.
It only shows the caliber. -: Right.
It's not exactly shocking that they would weigh a bullet
and tell you what the grains are.
-: All right, well, let's assume for purposes of argument
that it's not a newly discovered analysis
because it was available before trial
if the decision had been made to go
and inspect the bullet and follow that up,
even though, let's also assume,
because I think we have established a prima facie case,
that there was no firearms discovery provided.
The question of whether it's newly discovered
is only one of the questions the court has to answer
because under well-established Rule 30 case law going
from Grace up to Rosario in the present,
even if it's not newly discovered,
it needs to be just considered in the context
of the entire case with evidence that is newly discovered,
and what it shows, what it shows is that if Mr. Goparian
supposedly possessed a .32 revolver that he would use,
he'd modify bullets with rubber O-rings
and shoot them out of that revolver.
Well, when Lewis Gordon performed an analysis,
he did that with both a .38 revolver
like the one seized from Hogan
and a .32 revolver like the one Mr. Goparian-
-: This was available to you. -: It's available,
-: The second ballistician- -: But I say it's important-
-: The same with the medical testimony, right?
Because I see that as late discovery as far as-
Merritt: I'm sorry, with what?
-: What you argue with counsel about
is whether or not this is a late discovery,
a newly discovered testimony regarding whether
or not the person would've been alive to give, right?
So I read the request for continuance,
and I don't see anything where defense counsel,
although he submits an affidavit later,
says to the judge, "I need a continuance
because I've got this fantastical evidence
that the person was shot in the face,
and they said something,
and I need a continuance to go hire a medical expert
to figure out whether this is plausible."
-: He certainly does not go into that depth,
but if you look at the January 29th, 2020 transcript
at page five, he says,
"I just received two new reports last night,
and I'd like a continuance so I can investigate them."
-: He goes, "I'm renewing my motion to continue based
on these two reports," and then later on,
he doesn't say anything about a medical expert.
-: No, he doesn't but those- -: And then later on, he says,
the judge says, "The significance has
to do with the antique firearm," and then the judge says,
"Anything further relative to the continuance?"
And he says, "No."
-: All right, so you've quoted the transcript correctly,
but what I'm saying is that he says,
"I'd like a continuance based on two new reports.
The two new reports are the O-rings and the dying words."
-: But you should've brought it to the judge.
It's late discovery,
but it's as opposed to newly discovered.
So the judge should've been on notice that,
'cause if I'm sitting there as a trial judge
and someone says to me, "I just got this testimony.
This cries for expert review."
Well, a judge should say,
"Because of that, you get your continuance."
-: All right, well I think the judge should've said that too,
but this is what I'd like the court to focus on, all right?
He asked for a continuance based on the two new reports.
It is true that the dying words
is one of the two new reports, right?
He doesn't focus on them in his argument to the court.
And, of course, that doesn't change the fact
that this is likely false testimony
as shown by Dr. Laposata's affidavit,
and I think that's worth the court thinking about
regardless of newly discovered status,
but what he does say is he has an affidavit says,
"If I got the continuance, I would've done this,"
and you know what the government says?
"We will stipulate to the truth of that statement,
and the reason we will do it
is that we wanna avoid an evidentiary hearing,
and the reason we wanna avoid an evidentiary hearing,
of course, is that a criminal defendant
can't win a Rule 30 motion without an evidentiary hearing
in the Superior Court."
So that's a tactical play by the Commonwealth, and they won.
So that's a perfect situation
in which judicial estoppel applies
'cause they took a position below-
-: And I'm not saying under Brescia in all those cases
that we don't consider everything that happened
along with the, I think,
blatant Brady violation to begin with.
-: I agree with you. I mean, it all has to be considered.
Gaziano: I would hope you would agree with me.
-: (laughs) I mean, it's certainly a blatant Brady violation,
but what's going on here
is there's just a swirl of non-compliance.
So it's really hard to figure out,
particularly without an evidentiary hearing,
what actually is going on.
I would like to revisit the question
of non-disclosure of firearms evidence because, you know,
what I've come forward with
is my own affidavit reviewing the file
and finding no firearms report,
not just not the handwritten notes.
Mark Shea's affidavit,
he has no recollection of seeing them,
and, of course, zero discovery compliance certificates filed
by the Commonwealth during the pretrial period.
That adds up to a powerful prima facie case
of non-disclosure.
The way to explore that and to rebut that
is to have an evidentiary hearing,
which the Commonwealth was welcome, and I said,
"They don't wanna cross examinee Mark Shea when it,"
November 21st of 2023 when we're talking
about an evidentiary hearing, I say,
"They don't wanna cross examine any of these witnesses?"
-: And your review of record,
there's absolutely no ballistics report.
-: There's no ballistics report,
and so that's why I called up the trial prosecutor,
and I said, "Could you please provide it to me?"
And he was courteous and he did.
It took 90 days to get it from the state police.
If he had produced it in pretrial discovery-
-: (laughs) So the defense attorney goes forward
in a case involving this incredibly strange scenario
of a caliber of bullets,
and you're telling me they went forward
without a ballistics report?
-: I'm not telling you that he did or didn't do anything.
I'm telling you
that we've established a strong prima facie case
that that's what happened,
and the way to explore that was at an evidentiary hearing
that we more than abundantly satisfied the requirements
for holding.
That's what I'm telling you,
but what I'm also telling you is that when you flip around
to the substantive part of the firearms analysis,
the gun that is most likely to have fired the bullet
that is taken from Ms. Martin's head
is a .38 caliber revolver,
and the reason for that is that Lewis Gordon,
who's a very well respected ballistician in this state,
does an analysis of both a .32 revolver
and a .38 revolver firing a .32 automatic round,
which is the exact type that came from Tom Hogan's home.
And he says, "The .32 revolver, it's not perfect,
but it engages with the lands and grooves
and has striations."
There's random markings on the .38. That's the similarity-
-: He doesn't do what most ballisticians do
and say that they're a match and the like.
Merritt: There is no match, yeah.
-: He says, "There's striations,"
so take it as far as it goes. -: But what else he says,
which is I think rather remarkable
and very relevant to this case,
is that he says, "When I measured the velocity
of the mismatch fire from the .38,
it came out of the barrel
at approximately 70% reduced velocity as to normal firing."
In other words, it was it moving at only 200 feet per second
rather than between seven and 800,
which is the expected velocity.
And Dr. Laposata says, "That's entirely consistent with
and explains how a person was shot
from close range in the face and still has a bullet
that doesn't even penetrate farther
than just through their cheekbone."
-: If Justice Gaziano is happy on fire,
I'd like to better understand the third party defense
and how it was prevented here.
So what was the theory of the defense in the case?
Was it that one of these guys,
Billy or Hogan, did the killing?
-: It's basically just that there's absolutely no way
to know who did the killing and that Tom Hogan
is completely tied up in the case
and that everybody else has motives to lie.
-: And this suicide idea, is that,
I haven't had a chance to read the transcript.
I'll be honest.
The briefing raised so many legal issues,
I didn't get beyond that.
-: I think if I hadn't even gotten more words,
I could've given you more arguments.
-: So I read the brief,
and the alternative is that we've got this suicide theory
where she wants to kill herself.
Is any of that present in the trial, you know, this-
-: Sure, there's a ton of it present in the trial.
Obviously, there's a bunch-
Kafker: Some of it's excluded, right?
-: Yeah, some is excluded. -: From the proffer.
-: Then she-
-: Her ex is excluded. -: Her ex is excluded
on the question of when he's first told of her passing,
he says, well, "She's had suicidal issues before,
suicidal issues before."
That's what he says to the police,
and then he's also prohibited from testifying.
He runs an insurance agency that,
because of her mental health issues,
she couldn't get life insurance.
-: Okay, so she- -: But the-
-: Go ahead. -: I'm sorry.
So the suicide theory is she wants to set up the ex.
-: Yes. -: Biuso.
-: And then she shoots herself in the face,
and then she has a friend dispose of the firearm
-: Not that she- -: and burn her body?
-: That he shoots. Well, no, that's not our theory.
Well, because there's absolutely no witnesses
to any of this, it's anybody's guess what actually happens.
The only evidence that Mr. Goparian
is the one who shot a gun at her comes up
at the very end of the, right before trial when,
all of a sudden, these witnesses
who have been cooperating with the government for two years-
-: Given the disposal of the body,
suicide seems like a farfetched theory and not deserving-
Merritt: Well, I'll say two things about that.
-: Not deserving of an instruction by any stretch.
-: All right, well, if you don't feel that way,
you don't feel that way, but, you know,
as far as I'm concerned
and the light most favorable to the defendant,
especially given the lack of credibility of the people
who came forward at the last minute to say he shot her,
I think that life's most favorable, he does get it.
But frankly, between Brady and new available evidence,
we don't need a manslaughter.
-: I don't think the manslaughter is your strongest argument.
-: I'm not advancing it as a strongest argument,
but my job is to be a comprehensive presenter
of all the issues in this case for 33E purposes.
So I chose to present it 'cause I certainly
don't think it's frivolous, but I accept your position.
-: Your primary argument is that the federal informant
would've pointed out that Billy is the guy,
and you weren't allowed to develop that
because of the disclosure violations?
You would've had a lot more evidence to prove that, right?
-: We would've a tremendous amount
of more evidence to prove that,
both because we would've had his own admissions
to confront him with, and we would've been able
to weave those admissions together
with Heidi Thompson's independent statement right
before trial that, "Oh my God, I just need to tell you
that I took Billy McElhinney
to buy gasoline the night the car was burned."
So all of a sudden it's not just we
don't just have Mr. Nuzzolilo's statements.
We have Heidi Thompson's statements saying
that she took Billy, and, then of course,
there's a ton of inconsistencies
between Thompson and McElhinney
about the night that the car was burned.
-: Again, 'cause there's so many moving pieces,
I'm having trouble connecting.
Merritt: No, it's a complicated case for sure.
-: And Hogan, the gun, the ballistic evidence
that you're focused on is connecting it to Hogan,
not Billy, correct? -: That's right,
and you're echoing a point
that the Commonwealth has emphasized.
"Well, your defense is in disarray.
You're pointing at Hogan with a gun
and McElhinney with a gun."
My response to that is, "Yes, we are.
Our job is not to solve this crime.
It's to create reasonable doubt
about whether Mr. Goparian committed it."
And when you have two individuals,
it's definitely implicated in all the surrounding acts,
both of whom had access to firearms,
neither of which the government
did a meaningful investigation of, and, of course,
counsel is pursuing a Boden instruction,
obviously not given,
but that's one of the themes of his defense.
-: When you strip away the case to, I think, its essence,
we have a trial judge who we have to give deference to
who basically says that assuming all this Brady violations,
although he says it wasn't in the custody of control,
which I think is not correct, but anyway,
strip that away, he says,
"The evidence was so prejudicial that it doesn't matter."
What's your response to his points that he raised
for lack of prejudice by the prima facie?
-: If you're gonna claim overwhelming evidence,
this is a testimony only case.
There's not a shred of physical, forensic, video,
anything connecting Mr. Goparian to this crime.
The only meaningful substantive testimony comes
from these three witnesses,
all of whom are hopelessly compromised
by our post-conviction investigation,
and what's important about the way they're compromised
is they all just kind of say,
"Oh, and then he just made these admissions to killing her,"
but what makes their testimony meaningful
is that they're part of his life
and they're testifying to the surrounding events.
But especially with Thompson and McElhinney
but to a lesser extent with Hogan as well,
their testimony list surrounding events is shown
to be completely incredible by the fact
of their own involvement or at least putative involvement
based on their pretrial statements
in burning this woman's car with her body in it.
-: Any good comparative cases you would point us to
where a judge relies upon pure testimonial?
-: I don't have a case for you,
but I just think that the bottom line
is like the judge sat, right?
Obviously, he was convinced by the evidence,
but we just have to look at what, you know,
when the witness's testimony is weakened, right,
by external evidence that's produced,
what we do is look to corroborating things
that don't depend on that witness,
whether that's forensics, video,
-: What about the phone- -: fingerprint scans.
Dewar: Excuse me? What about the phone records?
Gaziano: Yeah, the acoustics are strange.
-: Oh, I'm sorry.
Dewar: What about the phone records?
-: Well, the phone records,
obviously they're obtained without probable cause.
That's our position, but the only thing
that phone records show for in terms of the Tracfone,
the 2470 number and Mr. Hogan
is that they're in contact a ton.
-: But the defendant's also in touch with Hogan.
-: Yes.
Well, nobody's claiming he doesn't know Mr. Hogan
or they didn't contact him.
I mean, again, accepting that that evidence
is properly before the court,
we're not suggesting that he didn't know Tom Hogan.
We're suggesting that a story is being told by other people
who were implicated in this crime
to point the finger at this guy, right?
And the phone records, all they show is contacts.
They don't show any substance
of the nature of the communications,
and at the operative times,
all the communications are between Tom Hogan
and Ms. Martin's, you know, burner and her Tracfone.
We don't have a time of death, right?
Tom Hogan goes down there at three.
Her body shows up in a burning car at 10.
-: The defendant's phone was off
for four hours at a crucial moment,
and if Hogan is there killing her,
he wouldn't be calling her on the cell phone.
-: Well, who knows what happens?
And the point of our entire presentation
is that there's a ton of reasonable doubt here
if the case is properly presented.
So what Tom Hogan says when the police first confront him
about her death is, "Oh, you know, there's a log of stuff.
She's been feeling threatened by her boyfriend."
Like when he is first confronted
by the police with her death,
he's putting into effect a plan
to blame her boyfriend for her death.
That's what he's doing.
He says, "She has a log of stuff."
He says, "She was feeling threatened by him."
She is doing so this weird thing where,
even though she has an existing trespass order
against him the morning that she dies,
she's going to the police station to ask
for a new no trespass order against him.
There's a lot of reasons to believe
that something very bizarre is going on here,
and Tom Hogan is obviously very caught up in it.
So to say that the phone records, what do they prove?
-: Well, you had just asserted
that the only evidence was witness testimony,
and it seems like there are also phone records,
and there are also the observations of the car
that was used by the defendant going to and from the site.
-: Those observations are in a search warrant.
They're not testified to at trial.
-: Oh, that's helpful to know. -: So that's one point.
I mean, there's phone records back and forth,
but they just don't establish anything
that people are in contact with,
(laughs) and if you're gonna take witness testimony
that's chock full of holes like this and say the fact
that there's no available GPS information
from somebody's phone for four hours
is enough to corroborate this
and send someone away for life without parole,
I just don't think that can stand up.
-: I understand that the strange detail
about the candles was excluded from trial.
-: No, it was in there. -: Oh.
I thought that the candles and save mat, the mat notes.
-: The responding police officers
who did the initial response
to Ms. Martin's home found those candles burning,
and that was admitted.
-: That was admitted. -: Yes.
-: And there was no other evidence in the record relating
to any investigation as to who lit those candles?
-: No, certainly not.
I mean, I guess the assumption is,
because it was in her locked home that she had,
but that's only just an inference
from the fact they were found in her home burning.
-: And Billy, what's Billy's connection to the victim?
I'm just trying to, again- -: It's not clear.
-: It's not clear, so- -: No.
-: Hogan knows the victim 'cause he works for Biuso.
-: He worked for Mr. Biuso for a number of years.
Then he is introduced by Mr. Biuso to Ms. Martin.
He becomes Ms. Martin's handyman and kind of hangout buddy,
and he then obviously stops working for Mr. Biuso,
at which point he participates in cooking up a plot
to have him severely beaten or killed, and then-
-: Hogan does, but not- -: Hogan does, yes.
-: But Billy, whatever his name is,
is totally unrelated to all this.
His only real connection is to your client, right?
-: He's his nephew, but he, well,
he's a person who's part of Heidi Thompson's life.
He's part of the entire circle in which these people live.
Kafker: I'm just trying to get the big picture.
-: Sure. The big picture is that-
Kafker: Can I ask one question more for-
-: Yeah, please.
-: All the stuff you've got on the gun,
your guy doesn't come out and say
that the gun in Hogan's house is the gun, right?
I'm just trying to makes sense-
Merritt: Oh, he makes no statements at all.
-: I'm just trying to understand the overall significance
of the ballistic stuff.
Merritt: Sure. The gun is never found.
-: Gun is never found.
-: The bullet itself does not show signs of it being shot
by the type of gun for which it is designed.
So it's a .32 automatic round,
and when it's fired from a .32 automatic pistol
that Tom Hogan has, obviously, that has close striations,
just like what we call lands and grooves marks,
the standard stuff.
The murder bullet does not have any of those marks.
It has random scratches on it.
So they seized four guns from Tom Hogan's home,
but the police only test fire the .32 revolver,
excuse me, pistol, but when we, post-conviction, say,
"Let's test fire with an O-ring on it,
one of these pieces of ammunition out of a .38 revolver,
just like the one seized from Tom Hogan's home,"
it comes out with markings that Mr. Gordon says
are very close to the markings that are on, and, of course,
they wouldn't be perfect replicas 'cause
those are randomized markings. -: Although, again,
the trial testimony
is that your client got the bullets from Hogan.
-: But that's actually not the trial testimony.
It's certainly suggested by the Commonwealth's evidence.
There is never actually any testimony
about whether Mr. Hogan provided ammunition.
He says they had talked about him providing ammunition.
In a pretrial prep session,
he denies giving any ammunition to Goparian,
and I think that's very important when the court thinks
about the overall justice of this conviction
because the bottom line is there is no other source
of bullets available to Mr. Goparian,
at least that we know of in the record.
So the fact that this is a perfect match
by caliber and weight to Mr. Hogan's home
and he's the only one who has access to it
and he's the one who has access to a gun
whose test fires bore the closest resemblance
to the bullet in Ms. Martin's head in a case
where no firearm that was used to shoot her
was ever recovered, I think, is pretty powerful evidence.
-: And you've got the fact that the federal informant said
that Billy just got rid of the gun, so that helps you also.
-: Yeah, and not only that Billy said
that he got rid of the gun
but that there's no evidence at all
that the police decided to go look at this pond,
which is right down the street
from where Billy says he smashed the gun and figure out
whether there were any pieces of a gun in that.
And of course, that's the case,
even though they never found the weapon, right?
And the truth is we don't know
whether the police investigated that
because we've been denied any discovery
from the Worcester Police Department's files
about anything they might have done.
And we cannot simply, frankly,
in a first-degree murder case
accept Commonwealth counsel's representations
that there's nothing there,
especially not when those representations
were proved to be inaccurate by my public records work,
which turned out that, two years after he had said,
"We don't have anything," I got the email.
I mean, you know, deference to a trial judge is one thing,
and letting him sit there
and simply deny me access to evidence that I have more
than established entitlement to is another.
I just don't think deference gets us that far.
I mean, the bottom line is we built a post-conviction case
that justified discovery.
We built a post-conviction case
that justified an evidentiary hearing.
We were denied that and largely
because the Commonwealth chose to stipulate
to the truth of those affidavits, right?
That's the position it took, right?
And that's why we're here without a hearing
because the Commonwealth
didn't wanna cross-examine Mark Shea
about any of those things,
didn't wanna talk to Lewis Gordon about his analysis
and what it showed and what it didn't show,
didn't want us to have a hearing
where he would put up slides of micro photos
of the bullets that he had used
and he could've explained the different ways
that a .38 does or doesn't engage.
None of that was wanted to be in the record,
but what that does is builds a comprehensive case
where the Commonwealth's case was totally lacking.
We have done post-conviction the investigation
that the government should have done
if we wanted to drill down and really find out
what happened the night this woman died, right?
What they've done is say, "Well, we've got our guy,
we have people who say he did it,
and we're not gonna disturb this apple cart
by going to look in this pond, by talking to Nuzzolilo more.
We're not gonna figure out what kind of gun
might have fired this mismatched fire.
We're not gonna ask any questions
about why (laughs) our victim was shot in the face
and does a bullet that just just goes here
and just basically punches through her cheekbone and stops."
Right? That's a very bizarre fact.
We've all dealt with firearms cases.
It doesn't make any sense
until Lewis Gordon comes forward and says,
"Well, a mismatched fire only came out
at 200 feet per second, 70% reduced velocity."
Dr. Laposata says, "Well, that's consistent
with what I see in this autopsy report.
Dr. Hull, the state's medical examiner,
really doesn't have any interest
in talking about anything, right?
"I can't say. Blah, blah, blah," right?
I mean, again,
I know the medical examiners just stick to their report,
but the bottom line is you bring in Dr. Laposata,
also a coroner medical examiner
and a very well-respected pathologist,
and she takes one look at it and says,
"You don't need to examine anything
to know that when a person is shot here
or when you have this blow here sufficient
with the force to break your cheekbone,
there's gonna be a tremendous amount of pain.
It's vascular and dense.
There's gonna be blood flowing in.
You're gonna be choking almost immediately.
There's absolutely no way that anybody could talk to you
on the phone and think you were normal joking around."
When Tom Hogan signs off on that part of his testimony,
he says the trial, of course,
'cause he has to introduce this to incriminate the defendant
while also making himself look not guilty, right?
So he does, he says, "Oh yeah, no, she was fine.
She was joking around,
so I just hung up and went home," right?
That's the person he just spoke to on the phone supposedly
who's just been shot in the face.
You know, (laughs) I know I'm way over here,
and I appreciate all the time 'cause this is just a case
with a tremendous amount going on,
but what we're really about, right,
and this is like a 33E-relevant question,
it's like we're just at a fundamental fairness zone here.
Like this is the end of this man's life.
Life in prison without parole,
convicted of first-degree murder,
and this is the level of both egregious Brady violation,
just, I mean, willful, both in terms of non-disclosure
and failure of inquiry, leaving us completely out there.
Like there is no way he has any access
to this information without the government simply,
and you know what else is amazing?
I mean, since you're just letting me go on.
The Trump-
(everyone laughs)
Gaziano: This is gonna be your last thought.
-: The trial prosecutor says he received a call.
So he obviously he did receive the Richardson email,
but he also received a call from his federal counterpart,
the AUSA on the Nuzzolilo case to inform him
that the AUSA believed had received information
in the Nuzzolilo proffer relevant to this state murder case.
So at that point, he doesn't even just say,
"Could you just send me the report of the proffer?"
I mean, you know, again,
and that he's standing there while trial counsel was saying,
"He's feeling his way towards.
Wait, Billy's involved in this much deeper, judge,"
and the trial prosecutor is just not saying a thing.
I mean, that's just fundamentally unjust.
Gaziano: Thank you, Mr. Schnipper.
-: I'll rest on my brief. Thank you very much.
(Gaziano laughs)
-: Attorney Haran, please. -: Good morning.
May it please the court.
Assistant District Attorney Donna-Marie Haran
on behalf of the Commonwealth.
The Commonwealth is here conceding
that the prosecutor should have disclosed to the defendant
prior to trial the limited information he knew
about that 2018 proffer.
We are not suggesting otherwise.
What we asked Judge Wrenn to focus on and what he did
and which I suggest he did not abuse his discretion
is whether the defendant has established prejudice
in the failure to disclose this information,
and given the overwhelming evidence
of the defendant's guilt at trial,
which Judge Wrenn was well aware of as the trial judge,
the lack of credibility of the information.
I'm gonna call him Vito
'cause I also have a hard time pronouncing his last name.
-: I should know how to pronounce his name,
but the other part of it is what's the linchpin
of Judge Wrenn's findings on lack of prejudice?
Because we have this bizarre factual pattern,
many moving parts with different parties
and shifting alliances and motives,
and we have, as Justice Dewar pointed out,
the telephone conversations,
but the testimony in the third party culprit stuff pointing
to Billy seems relatively significant
in that it's compromised heavily by the federal informant.
So give me what the linchpin
of Judge Wrenn's decision was on prejudice.
-: The overwhelming evidence against the defendant
and the lack of credibility of their information,
if I may take some time to explain it.
First of all, for the overwhelming evidence,
we have Hogan who does not know
and there's no connection between Billy and Hogan.
We have Hogan who says that he sets up the murder for hire.
He drives the defendant there.
The defendant says,
"I think I wanna try to have sex with the victim.
She's kind of cute." He drops her off.
We have the phone records that corroborate
that Hogan was calling both the defendant
and the victim constantly, saying, "What's going on?
We have the victims."
-: But isn't Hogan compromised because he could be a suspect?
-: If I- -: Yeah, please continue.
-: He does, and that was fully vetted in front of the jury.
Hogan definitely lies to the police
when he first talks to them,
and he definitely is trying to hide.
They search Hogan's car,
and they find gas receipts and stuff
that do place him at different places
around the time that the defendant is with the victim.
We have then the victim calling Hogan and saying,
"I was just shot.
He groped me and he shot me,"
and then we have him showing up at Billy's house.
We have the defendant showing up at Billy's house,
saying he just hemmed up a stripper,
meaning, which Billy testified,
that he just killed the stripper.
We have Miss Thompson who also arrives at Billy's house.
We have Miss Thompson who testifies that she sees-
-: Yeah, but both Thompson and Hogan (laughs) are potential.
You know, they're deeply implicated in this.
We've got Hogan- -: I disagree with that.
-: Hogan helped- -: Hogan is-
-: Hogan helped set up the murder,
-: Yes. Hogan. -: according to Hogan,
and Thompson helps conceal the murder.
Donna-Marie: Yes.
-: We have no neutral witnesses here, right?
-: Well then you have Joe O'Grady who testifies
that he comes and picks up Billy at nine o'clock,
and you have Miss Thompson corroborating that,
saying she does see O'Grady picking up,
and he says he drops the defendant,
I mean, I'm sorry, he drops Billy-
-: Better slow down, okay? -: I apologize, your Honor.
We have Joe O'Grady testifying
that he picks Billy up from his house around nine o'clock.
We have-
Kafker: What does that show?
-: If you give me one more second,
we have him testifying that he drops Billy
back off at midnight.
We have the 911 call for the fire of the burning
of the thing coming at nine, 10:30.
So he has the time that the car is set on fire,
which Miss Thompson testifies to.
We have Billy with Joe O'Grady
at his apartment from nine to 12,
and we have Miss Thompson corroborating that part
that she sees Mr. O'Grady picking Billy up
at his house around nine o'clock.
We have her testifying that she goes
with the defendant to Swan Ave.
-: Okay. Again, you're so deep in this.
I'm not as deep, so- -: I apologize.
-: The car is burned at nine o'clock.
The car is reported being burned sometime
around nine to 10:00 PM, right?
-: Yes, the 911 call, I believe, comes in at 10:30 from,
the Worcester Fire Department responds to about a burning,
the victim's car being set on fire.
-: And so you're saying, because this guy,
Bill O'Grady says that he's with, I mean,
Joe O'Grady or whatever his name is,
he's with Billy around that time,
therefore there's (laughs) overwhelming evidence that,
and do we have phone records or anything objective
that confirms that or just the testimony of Mr. O'Grady?
-: We have the testimony of the witness, of Mr. O'Grady,
and then we have the jailhouse informant, Mr. Millott,
that testifies that the defendant confesses to him in jail
and ask him to call Miss Thompson
to get her to not testify and assert her 5th.
As soon as he gets outta jail,
we have her and Ms. Thompson both testifying
to the phone call that he makes to her,
that he tells her it's best if she not testify,
that she should assert her 5th Amendment privilege.
She testifies she receives a phone call
from someone she doesn't know
who says that exact same thing, that she shouldn't testify,
that she should assert her 5th Amendment privilege,
and she should keep, basically should keep her mouth shut.
He testifies that the defendant confessed to him
that he did kill the victim,
and then we have the phone records which suggest that,
and also, Mr. Nuzzio, I'm gonna say Vito
'cause I know I'm gonna mispronounce his name, I apologize.
We have him saying that one of the key pertinent facts
was he left the door open
when he claiming Billy burnt the car,
and we know that that's not true
'cause we have the Worcester Fire Department testifying
that when they came into the engulfed car,
they opened the door.
The door was shut. It was not open as-
Gaziano: The hemmed up a stripper,
that was told to Billy though, right?
-: Billy, yes. -: Right.
-: And then we have the defendant threatening Billy,
we have the defendant threatening Hogan,
and we have the defendant threatening Miss Thompson
to keep his mouth shut,
and we have his cell phone being shut off around the time,
the pertinent time of being dropped off
and the car being burned.
-: Yeah, I think Mr. Schnipper's point is,
okay, (laughs) you may have a better story,
but when the prosecutor fails
to turn over basically a witness
who's gonna be a third party,
is gonna point the finger at someone else,
and, you know, you got a messy story to begin with,
he gets to present that to the jury,
or it's just, you know, the jury's got nothing besides that.
It seems compelling when you've got such egregious,
or at least strong, Brady violations here.
-: I just don't think we have anything of substance from Vito
and we don't have an affidavit from him saying,
"I would've testified."
-: The thing I didn't understand.
Mr. Schnipper said that he did a follow-up, that he,
I can't remember the exact terminology, that he adopted.
We've got something that indicates he adopted the proffer.
I haven't read that yet.
What is that? What is that?
-: I wanna go back to the time of the ninth day of trial.
The first thing Judge Wrenn says is,
"Where's an affidavit from this Vito?"
And his counsel, Mr. Ryan says,
"Oh, I can get one immediately.
I can get one now," and he's like,
"Well, I'm troubled by there's no affidavit."
That's in 2020.
I file my opposition, I think, in 2022,
pointing out there's still no affidavit
from this Vito saying what he would've testified to.
And keep in mind,
this Vito faced mandatory minimum 10-year
federal drug sentencing and was only trying to leverage this
to try to get a reduced deduction of sentence.
So we have that as well going to his credibility.
-: And we got all- -: And so then-
-: There isn't a credible witness in the case. So I get it.
Donna-Marie: Well, I disagree with you.
I respectfully disagree with you.
-: So go. Who-
-: Can I ask -: Go ahead.
-: a clarifying question?
When Millott testified, the jailhouse informant,
how was he cross examined?
How was he challenged by the defense?
Donna-Marie: You know what?
I gotta be honest with you, your Honor. I don't remember.
-: I'll look for it. Thank you.
-: I apologize. -: That's all right.
-: I just don't remember how he was.
I think just that he's not believable.
I know he argued he wasn't credible,
but I don't remember his exact cross examination of him.
Gaziano: Yeah, we'll look at it. Thank you.
Kafker: Go ahead.
-: And as the trial judge, Judge Wrenn was well aware
of all this evidence that was against the defendant,
and the thing, and oh, sorry, I lost my train of thought.
So then after my opposition in which I pointed there still
was no affidavit from Vito at,
I think it was the hearing on the motion
to decide whether there should be an evidentiary hearing,
it's the first time I'm handed an affidavit,
which is I suggest not of substance.
It just simply says,
"Everything I said in the proffer I'm sticking to
is true and accurate," and quite frankly,
I think Judge Wrenn would've recognized
that he's stuck in a box here
because if he doesn't say that,
he could be facing issues down the road with the feds
if he's admitting that he lied to them.
So given all that we don't have an affidavit saying,
-: Yeah, but if he- -: "Today, I would"-
Kafker: If he had an evidentiary hearing,
all this could've come out,
but you don't have an evidentiary hearing, which you oppose.
-: I did, but I just wanna note for the fact
that my brother did not say he wanted Vito
to testify at the evidentiary hearing.
He actually said the opposite.
He said, "I don't think I really need him.
I would like Sergeant Richardson."
So to come up here and be so indignant
that we didn't have an evidentiary hearing
with Vito when he didn't request Vito testify,
that wasn't on his list of people he wanted to testify,
I think is a little disingenuous here
because he specifically said he didn't think he needed him
and just wanted defense counsel
and his two experts to testify
and maybe Sergeant Richardson.
Those are the people he requested.
-: I assume we could look at the post-conviction request
for a hearing to see whether or not-
-: November 21st.
I have the transcript right here
where he specifically says he recognizes it
will be difficult to get Vito here, and he quote,
"doesn't think he really needs him."
And the four people he wanted were his two experts,
defense counsel Mark Richardson, I mean, I'm sorry,
defense counsel Mark Shea and Sergeant-
-: Richardson. -: Detective Mark Richardson.
Those are the four people he requested
for the evidentiary hearing,
and the Commonwealth argument as to the two experts
was even if you accept everything they say is true,
they don't entitle the defendant to a new trial.
So we argued it wasn't necessary
to have an evidentiary hearing versus the two experts,
and also we weren't challenging anything
that Mr. Shea was saying in his affidavit.
So therefore, that was our argument
as to why an evidentiary hearing wasn't necessary.
-: You see, I don't think it's significant that if you posit
what the former Rhode Island medical examiner says
is that you presented incredible evidence to the jury?
That someone could speak after being shot in the face?
-: She does not.
If you read her affidavit, it does not say,
she actually says, "She'll be able to talk."
So I would agree with you if her affidavit said,
"She would never be able to talk," which was the Neves,
I forget the name of the case, Rodriguez-Neves case,
that would be difficult.
She actually says, "I believe she would've been conscious
and able to talk.
I just don't think she'd be able to talk normally."
I don't think that
gives the defendant a very substantial ground
of defense there because she's not testifying she
could not talk at all.
She's saying she actually thinks she could talk.
She would've been conscious.
It's just she wouldn't have been talked normally.
So then you'd be trying to cross-examine Hogan
on what does he mean by normally or jokingly,
and I just don't think that provides a substantial ground
of defense or -: And Hogan's-
-: would've been a real fact in the jury's deliberation.
-: Hogan's is the key witness, and the day before trial,
we get this major new information from him?
-: We do,
which was immediately turned over by the prosecutor.
As soon as he learned of it,
he gave it to defense counsel, and defense counsel,
that's on the record on the first day of trial,
defense counsel says immediately that Mr. McLaughlin
had turned this over to him as soon as he had gotten it.
-: Hogan or Thompson testifying pursuant
to some cooperation agreement or-
-: No. -: No? Okay.
-: And they all corroborate each other's testimony,
which is also the cell phone records
also corroborate Hogan's testimony
as to the phone calls he received and that to,
and regarding real quick the first issue,
I didn't argue this in my brief,
and I did just wanna quickly say
for the motion to suppress the search warrant,
I would suggest even if this court were to find,
which I do not concede, that there wasn't probable cause,
the information would still have been admitted
through Hogan's cell phone records and Hogan's testimony
'cause this is the defendant's number
and 'cause he testifies how he knows the defendant
by the name Oz,
that the defendant has that tattooed on him.
All the communications between the defendant
and the victim and Hogan would've come in
through Hogan's cell phone records and Hogan's testimony.
So I did not argue that in my brief,
and I do wanna raise that point.
I thought about it as preparing for oral argument that,
even if this court were to conclude that the motion
to suppress the search should've been allowed,
Hogan's records would've still come in
and would've still implicated the defendant
'cause all the communications which Hogan testified to
at trial would've still been admitted.
-: Just this idea that someone told the prosecutor
that it wasn't a Brady violation, is there,
I understand the US Attorney's Office denied that, right?
Is there any basis for it whatsoever?
When we go through the record,
what are we gonna discover about that?
That she says somebody tells her it's not Brady,
which it may be meaningless anyway,
but I'm just trying to understand
is there some good faith basis for that
that we're gonna find in the record
when the US Attorney's Office says,
"We didn't say anything of the kind"?
Donna-Marie: First, I don't think you have that
from the US Attorney's Office.
-: We have- -: I thought we-
-: So it's a male first- -: Denial, yeah.
-: It's a male prosecutor, and he,
at the time of trial, when the motion to continue
was brought up the ninth day of trial,
he says, "This is what I know.
This is my limited information,"
and I think he repeats it at the first motion
for post-conviction discovery,
and he did file another motion to clarify what he meant.
-: I thought he said,
the assistant US attorney said something to the effect,
"There's no Brady violation here,"
and then the assistant US attorney says,
"I didn't say anything like that."
-: No, that's not what we have.
We have he, the prosecutor, does say that it was,
I'm trying to, I have the transcript right here.
He does say something like, "I can tell you
what I know the limited information I know about this,
your Honor," and he talks about that he-
-: I remember reading something in the brief on this,
but again, it was a lot of briefing late at night, so I'm-
-: Let me ask you.
The judge's finding that the information
was not in the custody control of the Commonwealth
notwithstanding the email is erroneous, correct?
-: I respectively disagree. No.
Vito is not our witness. -: No.
-: We do not have immunity agreement with him.
We don't have a proffer with him.
The federal government did the proffer.
-: No, but the information, the feds take that information,
they pass it along to a Worcester detective, correct?
-: They had a discussion with him about what they gathered,
and I admit that what they discussed-
-: (laughs) So as soon as a Worcester detective is,
well, the Worcester detective is a member
of the prosecution team, correct?
-: Yes. -: So the information
is in the custody of the Commonwealth, right?
-: That information that was told to him, yes,
and I agree that that should've been disclosed
prior to trial to the defendant.
-: Yeah, whether it's the report
versus the information is a red herring.
It's the information that's exculpatory, correct?
-: Yes, but I'm just saying the physical report itself,
we did not have access to, -: Whatever.
-: but yes. -: You still have information.
-: I'm conceding that information that was received,
which, again, because of Mr. O'Grady giving Billy an alibi,
the fact that all the information known at trial,
Miss Thompson's testimony-
-: Was the judge's finding just focused on the report
as opposed to the information as far as custody control?
-: Judge Wrenn's finding
was that he did not find Vito credible,
that the information contained in the report he
did not find credible given the evidence at trial,
which he found was overwhelming for the reasons I stated,
given Mrs. Thompson's testimony,
given that Hogan's testimony,
given Mr. O'Grady's testimony, given an alibi.
-: That's two different concepts.
There's a credibility determination,
and there's a prejudice determination.
How is he assessing credibility
without the person's testimony?
I get the circumstances that he's desperate.
He's about to be sentenced. There's that.
Is that why he says he's not credible?
-: Yes, and that's what he says first
at the motion to continue and then again
in his findings on the motion for new trial
because at both times, he's facing federal sentence.
He also finds he still doesn't have an affidavit
of substance from Vito, which says,
"I today will testify to the following,
even though I'm now sentenced,"
and I think I put it in my thing,
"to 11 years and eight years.
Even though I've been launched by the federal government,
I'm still willing to testify to all this.
We don't have that- -: I take it
that the affidavit is short, but it does say, you know,
"I was provided with this DEA report regarding with federal.
I have reviewed this report.
It accurately describes my statements to the agents
during the proffer about what Billy McElhinney told me
about his own involvement in the Marie Martin case.
Those statements are true.
If I had been called as a witness during the trial,
I would've testified consistent
with the statements described in the report.
If I am called as a witness at a hearing
on the motion for a new trial,
I will testify consistent
with the statements described in the report."
I mean, it's not a fresh set of statements,
but it does completely adopt and say
that he would testify to those statements.
Is there case law suggesting
that the judge can discredit the affidavit
because it doesn't include the statements?
-: I don't know of a case off the top of my head,
your Honor, that says you can do that.
I just think common sense wise that Judge Wrenn,
given that we were inquiring about an affidavit
since that ninth day of trial and then after my opposition,
and then it's another eight months after my opposition
is filed that I'm handed this affidavit,
I think Judge Wrenn could take into consideration
in determining whether he believes this warrants a new trial
given the evidence at trial,
given the credibility issues he deems
with the information that we do know that is provided
that is directly contradicted by the evidence at trial.
So I think he could take all that into consideration,
and it's not an affidavit of substance,
that that still would not have been a real fact
in the jury's determination, which was,
the end of the day, what he was to determine
whether the defendant was prejudiced
by this lack of disclosure of the information
that the prosecutor knew at the time
that he didn't disclose.
And I think he was well warranted in concluding it
would not have been a real difference
in the jury's determination and in the jury's verdict,
which is what he was asked to do
under the motion for new trial.
And I suggest this court should not find
that he abused his discretion
and to affirm the order denying the motion for new trial
and affirm the conviction.
-: Okay, before you run away, though,
so what I was talking about earlier,
I'm reading from Mr. Schnipper's brief.
"In April 2021, Goparian filed a motion
for discovery relating to Nuzzolilo's proffer session.
Worcester Police Department participation
and the person who purportedly told the trial prosecutor
Nuzzolilo's proffer was not Brady material.
When prompted at a hearing
to disclose this person identity," just lost it.
"The prosecutor claimed, 'I had a conversation
with assistant US attorney William Abely.
Five days later, the prosecutor wrote to the court
to clarify that, although Attorney Abely
was the person he called to inform me
that he had received information,
at no time did he characterize the information
as not Brady material.'"
-: Yes. -: So is there anybody
out there that characterized this as not Brady material
that if, or is this, what do we do with all of this?
-: On the record, we have him at the ninth day
of trial saying that, I found the transcript.
"I'll tell you what I know to the judge," and he's like,
"I believe there's a federal proffer with the feds in 2018.
I don't know the individual,
I'm assuming it's the same individual we're talking
about right now.
I know they found one not to be credible.
That information was passed to me,
and it was represented to me they
did not believe it was Brady material.
I believe he was wrong when he said that."
And so when he filed that second letter or thing saying,
"I wanna clarify," he was wrong when he said
that US Abely was the one that said that to him.
He wanted to clarify that.
I don't know if anyone specifically said to him,
but what he knows is the information
that was passed to him was not found credible,
and that is backed up by the evidence at trial,
and that's what he believed mistakenly,
and the Commonwealth is conceding.
He should've disclosed that,
because it was not deemed credible,
he didn't have to turn it over.
That was an error. That shouldn't have happened.
He should've turned it over.
We are conceding that, but what this court has to determine
is whether the defendant was prejudiced because of this,
and I suggest, as Judge Wrenn found,
basically the lack of credibility of this information
and the overwhelming evidence of the defendant's guilt,
which you can knock each of these witnesses,
but they all corroborate each other,
and they all don't know each other.
So it would be a different thing if Hogan knew Billy
or Hogan knew Heidi or they all knew Thomas Millott,
but only Hogan and Thompson seem
to know each other inferentially,
and they all know the defendant.
The defendant is the key player
in all four of these witnesses.
So based on all that,
being that Judge Wrenn was the trial judge
and seeing the evidence at trial,
I think I ask this court to affirm his order
denying the motion for new trial
and affirm the defendant's conviction
for first-degree murder.
Gaziano: Thank you, counsel.