-: SJC-13399, Commonwealth v. Elvio J. Marrero.
-: Thank you, Chief Justice Budd.
Good morning, Chief Justice, Justices,
and may it please the court,
my name is Ira Gant, and with Graham,
I represent Elvio J. Marrero,
a man wrongfully convicted of murder 27 years ago.
As a roadmap, I plan to use my time to address three reasons
that show justice was not done here.
First, the DNA evidence excluding the victim
from Mr. Marrero's jacket would've
removed an important piece of physical evidence
that the Commonwealth relied on
to argue that Mr. Marrero was in the victim's presence
at the time of the killing, and then used that same evidence
to corroborate a key Commonwealth witness
who claimed to catch Mr. Marrero red-handed.
Second, the exculpatory evidence
that the police (indistinct) Commonwealth withheld
by negligence
or design would've significantly
aided Mr. Marrero's defense.
The Commonwealth compounded the prejudice
to Mr. Marrero by presenting or relying
on false or misleading testimony directly related
to the evidence that it withheld,
and then third and final, the motion judge's clear error,
the judge wrongly applied a sufficiency
of the evidence standard in analyzing the record here,
and also relatedly, but separately,
relied on the theory of evidence
to resolve all of the evidence,
not argued by either party at trial
and on top of that, the judge failed
to evaluate what this court has instructed judges
to do in exactly these sort of cases.
Whether all of these things together might exist
as some sort of confluence of factors,
whether we have all-
-: Backwards for a minute.
-: Of course, your Honor.
-: What about, why couldn't the judge,
he could have gotten on that flight
and still committed the murder?
-: Well-
-: Why can't the judge look
at the entire record and make that determination?
Maybe the record doesn't support it,
why would it have to have been a (indistinct).
-: For three reasons, I suppose, your Honor,
so first, because that's
what the court has instructed trial judges to do,
to not look at the evidence
that's presented to them and say,
is there still a way that the jury could have convicted?
The question is, whether we're looking at the DNA is,
would this been a real factor
for the jury or whether we're looking at the Brady issues,
is there a rational basis for finding prejudice here?
The question,
the judge can certainly ask that question by looking at it,
but can't lose sight of the fact
that if this was not how the case was presented to the jury,
and I suppose that's my second point,
if that's not how the case was presented
to the jury as this court recently said in Tavarez,
what might have happened
or might have been presented
had these things actually been disclosed
and had this evidence existed, is speculative
and as this court instructed judges
in both Cows, Sullivan, I don't think in Cameron,
but perhaps this court should not go
through and look at the evidence
about what might have happened
when it should confine itself
to asking what would've been a real factor
for the jury, or what could the jury have done with this?
Or really what could Mr. Marrero have done
had this Brady information been disclosed,
particularly to the Brady claim,
this court's question at the end of it is,
this court's actual standard
that it has articulated is can we
be confident that had this evidence been disclosed,
it would've had no impact on the jury.
Woman: What do we do, sorry.
-: Oh, thank you.
And I think there's a reason
why your DNA argument was first in your brief
but let me take that aside
and ask you about the travel agency
and the flight record information.
What I was struck on, albeit the late disclosure,
was that there was a telephone number
with I think a 413 area code
in the record that was certainly available
to defense counsel to call.
Lawyer: Correct Your Honor.
-: That to me seems significant
and the judge honed in on that as well.
Could you explain that to me,
how that was saying that it's deprived
because here we have this kind of crooked travel agency
and we have the silent agreement that seems
to be born out by the fact
that everybody stayed away from it and the defendant,
I mean the defense attorney could have called the number
on the list and so explain that for me, please.
-: Sure, your Honor.
So I think there are a couple different ways to view
that question and that evidence,
one, the trial attorney did testify
that it was her memory that that's exactly what they did,
that they called the phone number
and they got nowhere with that.
I also would argue that the court doesn't have
to necessarily grapple with these,
the judge's credibility determinations for,
related to whether or not there was
or was not a silent agreement
or whether or not he agreed
of all of the steps that the trial attorney said
that they took about to investigate this in the middle
of a trial in 1996 when no one had smartphones
to do things like that during recesses.
What the question comes down to under the Brady analysis is
what did the defense know
and what does the record show
that the defense knew and what did they have,
proved had this information been disclosed?
Certainly, Mr. Marrero said he took the flight.
Certainly he knows that he made the reservation,
but where the judge's error lies is
in assuming that that somehow translates
to him knowing what the phone number is
to this travel agency-
-: But what about, what did he lose?
What did he lose by not having it?
You know, the (indistinct) was really going
to go to where the records were kept
and the judge thinks that it's prudent,
the defense counsel to stay away from Sunray,
is that the name of the agency?
Lawyer: Correct.
-: The judges stay away from that drug dealing agency
and let's just not not go there
which I guess feeds
into the Justice Gaziano's other point about the,
was there a secret deal?
So it's also (indistinct) in not having it.
-: Absolutely.
I'm so glad you brought up Luis Porous, Justice Lowy.
So, first, to that point,
I think that the fact that Luis Porous was called
as a rebuttal witness
to testify raises separate questions
about whether there
was this (indistinct) from Sunray Travel,
whether (indistinct) opened the door
when the Commonwealth then specifically
called the owner of Sunray Travel.
Secondly, I wanted to just point out
that the issues related to this travel agency
with things related to drug dealing is all talking
about a sub clause of a line on a 26 page police report.
(indistinct) side, the Commonwealth called three,
presented three witnesses testimony all related
to this issue.
Luis Porous testified, and repeatedly, I (indistinct),
only in Sunray Travel in October
at the time the reservation was made was Ilya Brito,
who had just told the jury I stopped working there
on October 10th and then testified I have no records
of reservations whatsoever.
The trooper had just testified
that we had looked into whether
or not Elvio Marrero on October 14th
and didn't find anything and then was asked on cross,
are you familiar with this phone number
that's on the flight record,
now, I agree-
-: But doesn't it show that the E. Marrero isn't one
of the seven people in the white paper.
It's gotta be this defendant
because it's made outta Springfield.
-: I didn't catch the first part of your question, Justice.
-: Because the government says, well,
there are seven E. Marrero's in New York City.
Could have been one of them.
-: Well, that's exactly what the government did.
-: Right, but then we get the record that says, oh no,
this was made outta Springfield.
-: Correct, your Honor.
So that's exactly what the government did,
that was the third witness they put on,
was this phone book record keeper
to say there are 26 E. Marrero's in the Bronx.
It could have been one of them
but what they didn't disclose,
and this gets to your question, justice Lowy,
what could Mr. Marrero have done with this?
What it didn't disclose was
that the police had discovered before that,
that they did link the phone number
and that they were aware that the phone number was,
413 was linked to this Holyoke Travel Agency
and next to Luis Porous's name in their records,
which the trooper admitted at the motion hearing was,
can confirm reservation made,
directly contradicting what Mr. Porous testified to
and that Ada Quiles was the ADA travel agent
who made the reservation-
-: But I guess, you know- -: Yes, your Honor.
-: The judge had a evidentiary hearing
on this Brady issue, right?
Lawyer: Correct.
-: Okay, and the judge found the prosecutor
to be credible and the defense counsel not to be, right?
On this issue.
-: Not exactly, your Honor.
So the judge did find,
did discredit the defense trial counsel
about the steps that they took
to do their investigation in the middle of the trial.
That is what-
-: And found the prosecutor to be credible,
that this was, the Sunray Travel was an issue
that both sides decided to stay away from.
Lawyer: That is what the judge found.
-: So that there was a strategic decision
to not pursue any more detail on the PNR.
-: Whether this court finds that there's a rational basis
to find that prejudice existed
from the Commonwealth failure to disclose,
or that there is an ineffective assistance
to counsel based on the trial counsel's strategic decision.
Either way, what we get to here is
that Mr. Marrero was deprived a substantial ground
of defense to present this information
to the jury because he had this information
or put forth this information,
whichever way you come at this,
one, the Commonwealth may have chosen not
to call Luis Porous
in the first place to go on and testify
that I have no records of reservations-
-: Isn't your ineffective assistance better than your other?
I mean, isn't there plenty of evidence
that he's a drug dealer in this case?
-: It was throughout-
-: So I don't quite understand why,
I see your ineffective assistance argument
is being more persuasive than,
and the judge sort of rejects
that as a strategic decision, right?
But it seems kind of odd given there's so much evidence that
you're (indistinct) and he's being charged for murder.
So his drug dealing is not something,
it's all over the case.
So why not bring in the Sunray stuff
that shows he's the guy supposedly on the plane
and it buttons that issue up for you, right?
-: The trial prosecutor,
(indistinct) prosecutor said
in the motions in limine to introduce all
of the evidence about the drug dealing,
that Mr. Marrero's drug dealing
and the drug dealing going
on in this case is inescapable
and that bore out at the motion hearing as well
but it is littered throughout the trial.
You can't turn to a day of the trial testimony,
drug dealing, that is a hundred percent the case.
-: There is a reason it's just
as Justice (indistinct) alluded to,
my number one on your arguments
is the DNA and (indistinct) that.
Lawyer: About the DNA evidence, your Honor?
Absolutely.
-: And maybe tie it to the,
if it can be, to Johnson and the testimony
about Johnson and a potential third party culprit.
-: Absolutely.
Well, I think that the DNA,
one of the reasons that it was first was because,
I think that it,
looking at the case through the DNA lens can see exactly
how this all shatters across the case.
So your question, Justice Lowy,
to your question earlier, Justice Gaziano,
the witness that testified that she saw Mr. Marrero
at around 2:00 AM with blood
on his hands is the only witness that is not somewhat
or not entirely contradicted by the flight records.
So your questions as to whether or not, you know,
couldn't the judge say, well,
how could the jury have looked at this evidence,
if this case was retried I'm sure the Commonwealth
may make that argument or could make that argument
but for the DNA evidence,
so the jury was told (indistinct) testimony
and the positive blood test
on Mr. Marrero's jacket,
the jacket was held up or pointed to
and the prior prosecutor said,
you heard the chemist
that they're tested positive
in each and every quadrant on the inside
of the jacket that was tested.
You heard that blood was leading away from the victim,
blood was on the front door.
Isn't that all consistent with Mr. Marrero
with bloody hands putting on his jacket and then leaving?
-: Two different things though,
we have the blood trail is the dreaded (indistinct) test.
Lawyer: Correct.
-: The jacket is a occult blood that Morehouse says she sees.
So, you know, if he, and that's what the DA honed in on.
So it's like, out the blood scene,
the crime scene blood and the blood trail versus the jacket
'cause they're two different tests as well, right?
Lawyer: I agree, your Honor.
I'm sorry, I didn't know if you finished your question.
-: No, no, that's the observation.
I think if you could tease that out as well.
-: I agree that there are two different tests
that come with two different results prior to trial
and then of course now
but the point is that the Commonwealth
in its closing to the argument
drew them all together to say to the jury,
isn't this all consistent?
Isn't this proof that Mr. Marrero is guilty
because (indistinct) fled the scene
and then Lynn Morehouse sees him
with bloody hands and essentially caught him red-handed.
-: That's number two though.
Number one, you gotta, I agree,
you gotta separate it out,
the blood trail, I mean, whose blood do he expect that,
isn't that gonna be the victim's blood?
-: Well of course the the blood is going to be the victims',
but that's not what, of course I think
that that is the reasonable inference that one can make,
the jury or what was argued at trial.
I think that the DNA evidence, again,
linking it to the third party culprit and linking it
to the Brady issues and everything else
is any way that you wanna cut it,
the DNA at the crime scene is not Mr. Marrero's,
it's not the victim's
and if there was Mr. Marrero's DNA at the crime scene,
you would expect to find his blood
and DNA all over the jacket.
That's also not there.
The victim's DNA all over the (indistinct),
find his DNA all over the jacket,
which is exactly what the Commonwealth argued to the jury.
-: Well, but the jacket's found how many weeks later?
The jacket's like months later, right?
-: The jacket was on Mr. Marrero when he was arrested
but I would urge this court that that same delay
in collection of evidence existed in Cows,
existed in Sullivan and also existed in Cameron
where they related to underwear that a person wore
for days before they were turned over to the police.
And so while that certainly goes to weight, and again,
(indistinct) that, that's not the end
of the analysis for this court
because that same chain of custody weight question
existed at the time of trial
when they put forth the positive blood results to the jury-
-: And argued that the results indicated was correct.
-: Correct.
So that's the two parts here-
-: Let me ask you on this,
again, the prohibited could not exclude testimony.
I know we have DNA cases involving that language.
Do we have (indistinct) is involved
in the blood grouping tests that were used pre-DNA
where they use a,
could not exclude for an include essentially?
-: I would have to go back and read the record,
but I think we think we detailed it in our reply brief
but my memory is that from the Sullivan case,
the Sullivan case involved both positive testing
and blood grouping and the Cows case involved the semen,
but not the the blood itself
but what I would note there is, you know,
in the Commonwealths brief,
they sort of suggest that this blood grouping
is the least discerning test.
-: Well, we don't know,
there's no matti stats-
-: There's been one of the tests
that they did among several others.
What we now know, not the victim's DNA,
not Mr. Marrero's DNA at the crime scene.
The central crucial point is that what the Commonwealth used
to put Mr. Marrero in the apartment
in front of the victim at the time of the killing is gone.
They could not argue that at a new trial,
if that evidence had been available in 1996,
they could not have made that argument
and that is a real factor for the jury
as they're trying
to assess the central contested issue here,
was Mr. Marrero the murderer,
was he seen in Greenfield on October 14th?
-: Really, (indistinct) DNA evidence
that you couldn't tell who it was and it was inconclusive.
You can't, you couldn't argue that today.
-: Correct.
Since this court's holdings in Cameron, no,
they could not say
that without the defense opening the dual analysis.
If there are no further questions,
I just wanted to reiterate
that missing from the judge's analysis
of the DNA and from the Brady is how these,
all these things would've worked together.
So on top of the fact
that the DNA would've been a real factor
for the jurors (indistinct)
that was presented was the evidence that wasn't disclosed
and the same is true otherwise.
Other than that, we'll rest on-
-: So the statement of the defendant to Herrera maybe,
that he did it.
-: Yes, Mr. Herrera did claim (indistinct) that-
-: They had in different stories?
-: Correct.
Even though Mr. Herrera could not remember
what day that conversation occurred
or if it even occurred on the same day,
that also would be contradicted
by the flight record
because Mr. Marrero could not have been given a ride
to Holyoke while over the Atlantic Ocean.
Thank you, your honors and we'll rest on our brief.
-: Thank you.
Okay, Attorney Lynch.
-: Oh, just barely Good morning, your Honors.
May it please the court,
assistant district attorney Bethany Lynch
for the Commonwealth.
If the court is agreeable,
I will start with the DNA issue.
The DNA issue in this case I would suggest was not
as important or (indistinct)
as the defendant is making it seen now-
-: Okay, so I'll tell you the process I use,
I go to the closing argument
and I see whether or not the prosecutor argued that point
to see if evidence is important.
We go to the closing argument in this case
and there's a silent witness here
and talks about the DNA evidence.
-: Well, she talks about the occult blood in the jacket.
I agree to that and I agree that that has been in a way,
partially disproven by the current DNA standard
or now that the DNA testing that was done
in this case that we now have, it was DNA,
there was no indication whether it was DNA
from occult blood or from just the inside of the jacket.
It came back to the defendant
but it came back partial with a mixture-
-: At trial, we have a chemist saying-
-: That there was occult blood and I don't think-
-: Occult blood in it
and we have Morehouse saying he was a bloody mess
and he was wearing
that jacket and the DA says, aha, put the jacket on.
-: I agree, but I would-
Judge: A problem.
-: It is a problem, in a way it's a problem
because I don't agree that this DNA testing completely
throws that evidence out the window-
-: That's the standard?
-: No, it's not the standard
but I'm saying that the DNA testing
that has been presented to the court-
-: Whether or not it would've been a real factor.
-: That it would've been a factor
that the defendant's own DNA was inside his jacket
versus the fact that there was testimony
that there was occult blood with no result
and we still have no result as far
as knowing whether the defendant's DNA
was the source of that occult blood.
-: So just remind me, what is the new evidence?
-: The new evidence is
that there is a partial DNA profile
from the inside sleeves of the defendant's jacket.
It's a mixture.
There's a major and a minor contributor.
The major contributor is the defendant.
So the defendant's DNA is inside his own jacket.
-: Right, big deal.
So what about the minor contributor?
-: The minor can be linked to no one.
Judge: Okay.
-: So my point is that because it can't be linked to anyone,
it is not, it does not disprove
that it was the victim's blood.
-: You asked the jury to draw the inference.
-: We did, based on the evidence
that we had at the time and I'm saying
that this DNA evidence doesn't entirely
undercut that evidence
and so, but-
-: Again, that's not the cut, right?
-: No, no, but I would suggest
that the standard is that it has
to make a meaningful difference
and the fact that it doesn't disprove
that it is the victim's blood means
that it is less of an important factor
than the defendant is currently arguing
that it is completely exculpatory.
-: (indistinct) that I did my blood grouping test.
This is all pre-DNA,
and she says there's this AK1 protein,
whatever the blood grouping test is,
and could be the defendant,
could be the victim-
-: Because they (indistinct) the other-
-: But she says the magic words,
which we've said are problematic,
cannot exclude the defendant.
-: I believe that she says that it would
be a match to either, I don't know-
-: I cannot exclude the defendant-
-: 'Cause it matches both of them and-
-: I'm a lay juror and I say, geez,
probably the, you know,
maybe the defendant's blood grouping
or his blood marker is on that blood trail.
-: But all of the other blood did exclude the defendant
and anything that was an exclusionary result
excluded the defendant in favor of the victim
or was excluded the defendant,
we don't know if it was victim blood.
So (indistinct), where the victim
and the defendant shared the marker,
which was the only marker
that resulted in a result
and that they match on that marker
was instructed to the jury-
-: That's why we said Mattie,
you can't (indistinct) the significance
of this evidence, even in DNA-
Lawyer: Yes-
-: Nevermind blood grouping, which is-
-: Yes, today, I don't know that this,
this would not come in today
but at the time, it did, and at the time it was given
to the jury as this places the defendant
at the scene because of these blood drops
because he can't be excluded.
That was not argued.
The only reasonable inference from that result is that
because all of the other blood
in this incredibly bloody scene (indistinct) someone
specifically to the exclusion
of someone else belonged to the victim.
This was also victim blood.
That was really the only inference that could be made
and it wasn't argued
that it was defendant blood at the scene.
-: Can you address this confluence argument,
the Rosario brush where we take the DNA evidence
and we also take
into account the Brady violations
and the ticketing information?
-: Yes, I would first of all just
to address the Brady violations quickly,
I would (indistinct) and more oversights obviously
and also the phone record,
anything on the PNR,
that I would point out very specifically.
That was defendant discovery.
The defendant gave that discovery to us.
We didn't have it and neglect to explain it to him,
bill of the trial and is now faulting us
for not explaining his own evidence to him.
So I would suggest that-
-: The fault was with regard to the investigation
that was then thereafter undertaken
and not disclosing the result of that investigation.
-: The investigation as to the phone number?
-: No, I thought that the prosecutor was surprised.
It was a real gut punch-
Lawyer: She was, yes.
-: To her case, and so she asked one of the (indistinct)
to run it down and then he obtained a bunch of information
that was then thereafter not disclosed to the defendant.
-: Yes.
-: The police notes. -: Yes.
The police notes but the police notes having
to do with the phone number and the ADA,
those notes were of running down the notations
on the PNR
and on the (indistinct) had
and that the defendant provided to us.
So it's at this point faulting the Commonwealth
for not going out and looking for exculpatory information
on his own evidence to give to him and explain to him-
-: But that's not the standard though.
So if the defendant's the source, right?
you get information from the defendant
and this is all (indistinct) trial,
I get that, having been there, right?
You say run this down or the ADA says,
run this down, the trooper runs it down,
get some information which is helpful
to the defense by definition,
Brady, and then does (indistinct)
because the source started with the defendant,
once you get helpful information,
you have an obligation to turn it over under Brady.
-: I would agree that there would be an obligation.
I think first of all, it would have
to be recognized as an obligation
to turn over something
that we would presume that they would not already know,
having been the source and having (indistinct) made these.
-: You don't tell the ADA's below,
the ones that you, you don't tell them, hey,
they probably have it, so don't worry about it.
-: Right, and I'm not arguing,
I'm hoping I'm not coming across exactly like this.
I'm not arguing
that there was no obligation to turn anything over.
I'm saying that at this point we got the information
from the defendant and it was mid-trial.
We do know that we had this information
and that it could be slightly exculpatory
if the defendant didn't know the full phone number.
-: I guess, back on the confluence point,
and I'm sympathetic to you
on the Brady issue (indistinct) just talks
about this is lightning speed at trial,
but ineffectiveness, I can't get around that.
Here we got the punch in the gut evidence
that E. Marrero is on this plane.
He's left town at a time that's inconsistent
with three of the witnesses.
Is there the, we know he's a drug dealer.
The whole case is about his drug dealing.
So it makes no sense not to pin that down.
Don't when we combine the evidence on the blood
with the fact that this guy is on about his passport,
is on the plane, make this a do-over?
I'm not used to this much, you know,
I've been doing this a long time.
This is a lot of evidence
that raises questions
about whether we got the right guy here.
-: But I would also suggest
that almost (indistinct) the phone number
and the ADA and the opening the door
to the international drug trafficking
that was supposedly taking place-
-: Who cares?
He's on trial for murder and he's a drug dealer.
Lawyer: I'm sorry.
-: He's on trial for murder,
everyone knows he's a drug dealer.
Both sides are putting in evidence
that the culprits are all part
of this drug dealing scheme, you know,
buyers, sellers, blankety, blank,
isn't there, don't we, and he's gotta get
to New York at a time that wipes out three
of the witnesses except for the one
who testifies about the blood on the coat, right?
And even then it's like a dash
to New York to make the timing, right?
-: It would be, and the prosecutor
is saying it's a different E. Marrero
on the plane and it looks like
it is the (indistinct) Marrero,
or at least somebody with his passport
using his travel agent, it's really hard.
-: I think the part that makes it less difficult
for me is the fact that all of that evidence,
with the exception of the phone number and who ADA was,
was already in front of the jury.
All of the evidence about the defendant's passport,
about the time, about the,
when the reservation had to be made,
how you had to check in on the plane.
The jury had all that information.
-: The defendant's travel agent is the one who,
that wasn't before the jury, right?
Because otherwise this stuff
about E. Marrero
in the phone books would've been ridiculous, right?
-: Well, what was before the jury,
Mr. Marrero used this particular travel agency
to travel routinely.
He was there almost daily
and that he was very familiar
with the employees who worked there
and so that was in front of the jury
that this was the travel agency that he used.
-: He also had Porous's testimony.
-: And he testified that he doesn't keep records
of reservations where the ticket is not paid
for at his own office and that is corroborated
by the fact that the PNR itself says
that the ticket was paid for at the (indistinct),
so he testified that he did not keep records of reservations
that were made but not paid for through his agency.
-: Let me sort of get back
to the big picture so that you can,
because there's concerns here as everybody has mentioned,
the alibi gets just blown a sunder
because you've got these witnesses testifying
about seeing him and wanting a ride
and making all sorts of inculpatory statements.
So, the alibi is just blown up
and he has potential corroboration
in the alibi
and it's not the strongest case point in the world,
but you got motive and he's got a history as well
that's not that different from the defendant.
So on the other side,
what do you have that this is not enough for reversal?
-: That it's not enough?
I think that the key point is that all
of the evidence
that you just mentioned was presented
to the jury and the jury,
it's their prerogative to do,
credited the testimony of the witnesses
and did not credit the alibi and so
what we have now in this motion
for new trial is pieces of evidence
that could have been added,
but this court, as the lower court did,
as the trial court did,
has to look at that and determine whether
or not those small pieces of evidence,
a partial phone number,
or I'm sorry, (indistinct)
versus inferentially connected based
on all of the connections
that Mr. Marrero had to Sunray Travel
that were in front of the jury
in terms of how he used it, the travel agency-
-: I wanna make sure I understand your argument
(indistinct) and give you the best (indistinct), you know,
the DNA is permeating the case.
It's giving the jurors that corroboration comfort.
You've got an alibi that's going
to be really hard to work with these other witnesses.
I gotta get to Chicopee right away
and all of that and you got Johnson,
no one not even close to as much as evidence
as the defendant,
but you got Johnson as a potential third party culprit.
That's on, as we're trying to look
at how much the missing pieces matter here.
What do we balance that against?
-: Okay, well, you do balance it against the witnesses
who placed him there in the general vicinity.
You have one witness
who was the last person
to see the victim alive and said that
at midnight, he left the defendant in the victim's house.
We know the defendant had a key to the victim's house.
We know that he is known
to hide his stash in various places and when it is stolen,
he gets very upset and he accuses the people
that he deals drugs to of stealing it.
We have a history of him attacking people
from behind with boards and threatening people
with knives and threatening to tie people up,
all of which is what happened to this particular victim.
We have his fingerprint at the crime scene
on a chair that's in close proximity to the victim.
We do have him with bloody hands.
We have him nervously (indistinct)
as soon as humanly possible.
We have him paying twice as much as normal to leave.
He usually pays a rock of crack cocaine
for a ride to Chicopee.
He paid gas money and two rocks just
to get out of town quicker, I would say-
-: But by the way,
that Chicopee description is morning, right?
Lawyer: It is.
-: And the description of him in the house is
that they're amicable, right?
That the description of him
at night is they're getting along, right?
-: Yes, (indistinct) he's sleeping
but we do know that he was (indistinct)
that there was some suspicion
or suspicion thrown on the victim
as a person who had recently stolen a stash from him.
-: To get to New York to be on a five o'clock plane.
I take it that means
all those witnesses have gotta have the time wrong, right?
-: They do, they do.
And the-
-: That's possible?
-: I would suggest it is possible and I would suggest
that is what the motion judge found is that
the witnesses who were discussing this didn't link it
to anything in particular.
They didn't link it to a clock.
They didn't link it to anything
and these were drug addicts who,
there was evidence were not necessarily up
on all the details.
So the trial judge (indistinct),
absence of, I looked at my watch
and it said it was this time,
they could be off on the time,
he could have gotten to New York.
He also did confess to the crime.
I think that's important too.
He confessed to Herrera and then when he returned,
he fled the country-
-: But the confession to Herrera was
on mid-October at a time
where he would've been in the Dominican Republic.
-: Well, I mean, (indistinct) been
in the Dominican Republic on the 14th.
I would suggest that, or the 15th if he,
like, I think mid-October leaves enough room
that he could have talked
to Herrera before he left the country.
There's no doubt that he left the country.
I don't know when.
-: It's also his conduct when he gets back.
-: And then there's his conduct, yes,
he lies to the police from Greenfield.
He also left the country
for a lot longer period of time than he usually did.
He would go to the Dominican Republic
for a few days and return and he did
that on several occasions.
This time he left in October
and didn't return till February.
He (indistinct) evidence that the jury heard and weighed,
the jury also saw the witnesses testify
and again, the jury credited the witnesses
and did not credit the alibi and the small bits
of information about a phone number
which (indistinct) drawn a line
but not, I would suggest it wasn't necessary
because there was enough inferentially
to argue that that was Sunray Travel
and I believe that the defense attorney did link them
in his closing argument saying it was a 413.
Of course the phone book was a ridiculous avenue to go down.
If the court will indulge me for one second.
There's one other issue
where the defense accused the Commonwealth
of presenting false evidence or
of not correcting false evidence to the jury
and I would just like to point out that if the court were
to read the passage in question,
the attorney for the defendant asked Trooper out
of the blue, it was not connected to anything.
There was no context.
They said, are you familiar
with an exchange in Western Massachusetts that is 413532.
It was not a full phone number,
it was a partial phone number.
They did not show him the PNR,
they didn't connect it to the PNR.
They said, do you know this phone number?
And he said, not off the top of my head.
And I would suggest to you that
that is not a false statement,
(indistinct) reviewed numerous people
in the 413 area code having to do with this case
and he answered, not off the top of my head.
So there was nothing there
to correct, there was nothing incorrect.
There was nothing misleading about that.
This was also not the trooper
who was chasing down (indistinct),
Officer Sergeant Bon Flatter is the one
who was tracing it down.
Now I know that, you know,
they're imputed to have knowledge of the other officers
but this was an officer sitting on the stand,
a trooper on the stand saying, off the top of my head,
I don't know what that number is,
(indistinct) the defense issue.
So to couch this in terms of intentional
or misleading testimony
or false testimony that the Commonwealth then failed,
the ADA then failed to correct,
I would suggest is misleading
to this court and should not be,
that you would read that very carefully
to see whether or not it appears to be false or misleading.
Judge: Okay. -: If the court
has no further questions,
I'll rest on my brief.