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SJC-13399, Commonwealth v. Elvio J. Marrero.
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Thank you, Chief Justice Budd.
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Good morning, Chief Justice, Justices,
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and may it please the court,
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my name is Ira Gant, and with Graham,
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I represent Elvio J. Marrero,
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a man wrongfully convicted of murder 27 years ago.
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As a roadmap, I plan to use my time to address three reasons
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that show justice was not done here.
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First, the DNA evidence excluding the victim
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from Mr. Marrero's jacket would've
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removed an important piece of physical evidence
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that the Commonwealth relied on
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to argue that Mr. Marrero was in the victim's presence
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at the time of the killing, and then used that same evidence
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to corroborate a key Commonwealth witness
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who claimed to catch Mr. Marrero red-handed.
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Second, the exculpatory evidence
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that the police (indistinct) Commonwealth withheld
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by negligence
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or design would've significantly
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aided Mr. Marrero's defense.
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The Commonwealth compounded the prejudice
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to Mr. Marrero by presenting or relying
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on false or misleading testimony directly related
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to the evidence that it withheld,
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and then third and final, the motion judge's clear error,
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the judge wrongly applied a sufficiency
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of the evidence standard in analyzing the record here,
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and also relatedly, but separately,
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relied on the theory of evidence
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to resolve all of the evidence,
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not argued by either party at trial
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and on top of that, the judge failed
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to evaluate what this court has instructed judges
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to do in exactly these sort of cases.
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Whether all of these things together might exist
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as some sort of confluence of factors,
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whether we have all-
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Backwards for a minute.
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Of course, your Honor.
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What about, why couldn't the judge,
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he could have gotten on that flight
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and still committed the murder?
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Well-
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Why can't the judge look
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at the entire record and make that determination?
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Maybe the record doesn't support it,
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why would it have to have been a (indistinct).
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For three reasons, I suppose, your Honor,
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so first, because that's
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what the court has instructed trial judges to do,
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to not look at the evidence
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that's presented to them and say,
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is there still a way that the jury could have convicted?
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The question is, whether we're looking at the DNA is,
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would this been a real factor
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for the jury or whether we're looking at the Brady issues,
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is there a rational basis for finding prejudice here?
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The question,
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the judge can certainly ask that question by looking at it,
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but can't lose sight of the fact
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that if this was not how the case was presented to the jury,
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and I suppose that's my second point,
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if that's not how the case was presented
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to the jury as this court recently said in Tavarez,
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what might have happened
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or might have been presented
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had these things actually been disclosed
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and had this evidence existed, is speculative
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and as this court instructed judges
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in both Cows, Sullivan, I don't think in Cameron,
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but perhaps this court should not go
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through and look at the evidence
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about what might have happened
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when it should confine itself
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to asking what would've been a real factor
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for the jury, or what could the jury have done with this?
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Or really what could Mr. Marrero have done
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had this Brady information been disclosed,
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particularly to the Brady claim,
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this court's question at the end of it is,
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this court's actual standard
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that it has articulated is can we
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be confident that had this evidence been disclosed,
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it would've had no impact on the jury.
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What do we do, sorry.
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Oh, thank you.
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And I think there's a reason
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why your DNA argument was first in your brief
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but let me take that aside
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and ask you about the travel agency
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and the flight record information.
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What I was struck on, albeit the late disclosure,
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was that there was a telephone number
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with I think a 413 area code
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in the record that was certainly available
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to defense counsel to call.
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Correct Your Honor.
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That to me seems significant
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and the judge honed in on that as well.
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Could you explain that to me,
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how that was saying that it's deprived
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because here we have this kind of crooked travel agency
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and we have the silent agreement that seems
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to be born out by the fact
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that everybody stayed away from it and the defendant,
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I mean the defense attorney could have called the number
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on the list and so explain that for me, please.
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Sure, your Honor.
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So I think there are a couple different ways to view
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that question and that evidence,
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one, the trial attorney did testify
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that it was her memory that that's exactly what they did,
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that they called the phone number
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and they got nowhere with that.
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I also would argue that the court doesn't have
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to necessarily grapple with these,
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the judge's credibility determinations for,
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related to whether or not there was
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or was not a silent agreement
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or whether or not he agreed
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of all of the steps that the trial attorney said
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that they took about to investigate this in the middle
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of a trial in 1996 when no one had smartphones
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to do things like that during recesses.
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What the question comes down to under the Brady analysis is
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what did the defense know
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and what does the record show
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that the defense knew and what did they have,
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proved had this information been disclosed?
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Certainly, Mr. Marrero said he took the flight.
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Certainly he knows that he made the reservation,
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but where the judge's error lies is
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in assuming that that somehow translates
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to him knowing what the phone number is
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to this travel agency-
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But what about, what did he lose?
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What did he lose by not having it?
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You know, the (indistinct) was really going
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to go to where the records were kept
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and the judge thinks that it's prudent,
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the defense counsel to stay away from Sunray,
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is that the name of the agency?
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Correct.
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The judges stay away from that drug dealing agency
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and let's just not not go there
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which I guess feeds
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into the Justice Gaziano's other point about the,
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was there a secret deal?
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So it's also (indistinct) in not having it.
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Absolutely.
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I'm so glad you brought up Luis Porous, Justice Lowy.
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So, first, to that point,
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I think that the fact that Luis Porous was called
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as a rebuttal witness
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to testify raises separate questions
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about whether there
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was this (indistinct) from Sunray Travel,
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whether (indistinct) opened the door
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when the Commonwealth then specifically
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called the owner of Sunray Travel.
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Secondly, I wanted to just point out
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that the issues related to this travel agency
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with things related to drug dealing is all talking
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about a sub clause of a line on a 26 page police report.
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(indistinct) side, the Commonwealth called three,
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presented three witnesses testimony all related
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to this issue.
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Luis Porous testified, and repeatedly, I (indistinct),
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only in Sunray Travel in October
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at the time the reservation was made was Ilya Brito,
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who had just told the jury I stopped working there
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on October 10th and then testified I have no records
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of reservations whatsoever.
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The trooper had just testified
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that we had looked into whether
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or not Elvio Marrero on October 14th
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and didn't find anything and then was asked on cross,
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are you familiar with this phone number
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that's on the flight record,
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now, I agree-
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But doesn't it show that the E. Marrero isn't one
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of the seven people in the white paper.
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It's gotta be this defendant
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because it's made outta Springfield.
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I didn't catch the first part of your question, Justice.
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Because the government says, well,
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there are seven E. Marrero's in New York City.
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Could have been one of them.
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Well, that's exactly what the government did.
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Right, but then we get the record that says, oh no,
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this was made outta Springfield.
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Correct, your Honor.
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So that's exactly what the government did,
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that was the third witness they put on,
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was this phone book record keeper
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to say there are 26 E. Marrero's in the Bronx.
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It could have been one of them
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but what they didn't disclose,
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and this gets to your question, justice Lowy,
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what could Mr. Marrero have done with this?
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What it didn't disclose was
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that the police had discovered before that,
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that they did link the phone number
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and that they were aware that the phone number was,
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413 was linked to this Holyoke Travel Agency
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and next to Luis Porous's name in their records,
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which the trooper admitted at the motion hearing was,
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can confirm reservation made,
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directly contradicting what Mr. Porous testified to
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and that Ada Quiles was the ADA travel agent
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who made the reservation-
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But I guess, you know-
Yes, your Honor.
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The judge had a evidentiary hearing
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on this Brady issue, right?
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Correct.
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Okay, and the judge found the prosecutor
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to be credible and the defense counsel not to be, right?
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On this issue.
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Not exactly, your Honor.
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So the judge did find,
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did discredit the defense trial counsel
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about the steps that they took
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to do their investigation in the middle of the trial.
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That is what-
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And found the prosecutor to be credible,
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that this was, the Sunray Travel was an issue
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that both sides decided to stay away from.
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That is what the judge found.
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So that there was a strategic decision
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to not pursue any more detail on the PNR.
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Whether this court finds that there's a rational basis
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to find that prejudice existed
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from the Commonwealth failure to disclose,
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or that there is an ineffective assistance
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to counsel based on the trial counsel's strategic decision.
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Either way, what we get to here is
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that Mr. Marrero was deprived a substantial ground
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of defense to present this information
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to the jury because he had this information
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or put forth this information,
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whichever way you come at this,
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one, the Commonwealth may have chosen not
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to call Luis Porous
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in the first place to go on and testify
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that I have no records of reservations-
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Isn't your ineffective assistance better than your other?
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I mean, isn't there plenty of evidence
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that he's a drug dealer in this case?
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It was throughout-
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So I don't quite understand why,
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I see your ineffective assistance argument
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is being more persuasive than,
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and the judge sort of rejects
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that as a strategic decision, right?
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But it seems kind of odd given there's so much evidence that
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you're (indistinct) and he's being charged for murder.
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So his drug dealing is not something,
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it's all over the case.
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So why not bring in the Sunray stuff
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that shows he's the guy supposedly on the plane
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and it buttons that issue up for you, right?
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The trial prosecutor,
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(indistinct) prosecutor said
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in the motions in limine to introduce all
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of the evidence about the drug dealing,
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that Mr. Marrero's drug dealing
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and the drug dealing going
270
00:11:10.470 --> 00:11:12.540
on in this case is inescapable
271
00:11:12.540 --> 00:11:14.730
and that bore out at the motion hearing as well
272
00:11:14.730 --> 00:11:18.210
but it is littered throughout the trial.
273
00:11:18.210 --> 00:11:21.318
You can't turn to a day of the trial testimony,
274
00:11:21.318 --> 00:11:25.173
drug dealing, that is a hundred percent the case.
275
00:11:27.090 --> 00:11:28.500
There is a reason it's just
276
00:11:28.500 --> 00:11:30.840
as Justice (indistinct) alluded to,
277
00:11:30.840 --> 00:11:34.013
my number one on your arguments
278
00:11:34.013 --> 00:11:36.723
is the DNA and (indistinct) that.
279
00:11:37.710 --> 00:11:39.575
About the DNA evidence, your Honor?
280
00:11:39.575 --> 00:11:40.408
Absolutely.
281
00:11:40.408 --> 00:11:43.111
And maybe tie it to the,
282
00:11:43.111 --> 00:11:47.130
if it can be, to Johnson and the testimony
283
00:11:47.130 --> 00:11:49.953
about Johnson and a potential third party culprit.
284
00:11:50.790 --> 00:11:51.623
Absolutely.
285
00:11:51.623 --> 00:11:52.860
Well, I think that the DNA,
286
00:11:52.860 --> 00:11:55.560
one of the reasons that it was first was because,
287
00:11:55.560 --> 00:11:56.760
I think that it,
288
00:11:56.760 --> 00:11:59.970
looking at the case through the DNA lens can see exactly
289
00:11:59.970 --> 00:12:02.370
how this all shatters across the case.
290
00:12:02.370 --> 00:12:05.730
So your question, Justice Lowy,
291
00:12:05.730 --> 00:12:08.611
to your question earlier, Justice Gaziano,
292
00:12:08.611 --> 00:12:12.180
the witness that testified that she saw Mr. Marrero
293
00:12:12.180 --> 00:12:13.740
at around 2:00 AM with blood
294
00:12:13.740 --> 00:12:18.210
on his hands is the only witness that is not somewhat
295
00:12:18.210 --> 00:12:22.410
or not entirely contradicted by the flight records.
296
00:12:22.410 --> 00:12:24.480
So your questions as to whether or not, you know,
297
00:12:24.480 --> 00:12:25.620
couldn't the judge say, well,
298
00:12:25.620 --> 00:12:28.830
how could the jury have looked at this evidence,
299
00:12:28.830 --> 00:12:31.050
if this case was retried I'm sure the Commonwealth
300
00:12:31.050 --> 00:12:34.230
may make that argument or could make that argument
301
00:12:34.230 --> 00:12:37.860
but for the DNA evidence,
302
00:12:37.860 --> 00:12:41.250
so the jury was told (indistinct) testimony
303
00:12:41.250 --> 00:12:42.390
and the positive blood test
304
00:12:42.390 --> 00:12:44.280
on Mr. Marrero's jacket,
305
00:12:44.280 --> 00:12:47.430
the jacket was held up or pointed to
306
00:12:47.430 --> 00:12:49.110
and the prior prosecutor said,
307
00:12:49.110 --> 00:12:50.190
you heard the chemist
308
00:12:50.190 --> 00:12:51.300
that they're tested positive
309
00:12:51.300 --> 00:12:53.130
in each and every quadrant on the inside
310
00:12:53.130 --> 00:12:54.600
of the jacket that was tested.
311
00:12:54.600 --> 00:12:57.270
You heard that blood was leading away from the victim,
312
00:12:57.270 --> 00:12:58.680
blood was on the front door.
313
00:12:58.680 --> 00:13:00.750
Isn't that all consistent with Mr. Marrero
314
00:13:00.750 --> 00:13:03.090
with bloody hands putting on his jacket and then leaving?
315
00:13:03.090 --> 00:13:04.170
Two different things though,
316
00:13:04.170 --> 00:13:09.170
we have the blood trail is the dreaded (indistinct) test.
317
00:13:11.340 --> 00:13:12.270
Correct.
318
00:13:12.270 --> 00:13:17.270
The jacket is a occult blood that Morehouse says she sees.
319
00:13:20.970 --> 00:13:25.970
So, you know, if he, and that's what the DA honed in on.
320
00:13:26.190 --> 00:13:29.400
So it's like, out the blood scene,
321
00:13:29.400 --> 00:13:32.880
the crime scene blood and the blood trail versus the jacket
322
00:13:32.880 --> 00:13:36.210
'cause they're two different tests as well, right?
323
00:13:36.210 --> 00:13:37.043
I agree, your Honor.
324
00:13:37.043 --> 00:13:38.788
I'm sorry, I didn't know if you finished your question.
325
00:13:38.788 --> 00:13:39.621
No, no, that's the observation.
326
00:13:39.621 --> 00:13:41.430
I think if you could tease that out as well.
327
00:13:41.430 --> 00:13:43.779
I agree that there are two different tests
328
00:13:43.779 --> 00:13:47.820
that come with two different results prior to trial
329
00:13:47.820 --> 00:13:49.200
and then of course now
330
00:13:49.200 --> 00:13:51.000
but the point is that the Commonwealth
331
00:13:51.000 --> 00:13:52.200
in its closing to the argument
332
00:13:52.200 --> 00:13:54.720
drew them all together to say to the jury,
333
00:13:54.720 --> 00:13:57.630
isn't this all consistent?
334
00:13:57.630 --> 00:14:00.000
Isn't this proof that Mr. Marrero is guilty
335
00:14:00.000 --> 00:14:01.680
because (indistinct) fled the scene
336
00:14:01.680 --> 00:14:03.210
and then Lynn Morehouse sees him
337
00:14:03.210 --> 00:14:05.490
with bloody hands and essentially caught him red-handed.
338
00:14:05.490 --> 00:14:07.054
That's number two though.
339
00:14:07.054 --> 00:14:08.580
Number one, you gotta, I agree,
340
00:14:08.580 --> 00:14:09.900
you gotta separate it out,
341
00:14:09.900 --> 00:14:12.930
the blood trail, I mean, whose blood do he expect that,
342
00:14:12.930 --> 00:14:14.490
isn't that gonna be the victim's blood?
343
00:14:14.490 --> 00:14:16.320
Well of course the the blood is going to be the victims',
344
00:14:16.320 --> 00:14:18.900
but that's not what, of course I think
345
00:14:18.900 --> 00:14:22.650
that that is the reasonable inference that one can make,
346
00:14:22.650 --> 00:14:24.900
the jury or what was argued at trial.
347
00:14:24.900 --> 00:14:26.400
I think that the DNA evidence, again,
348
00:14:26.400 --> 00:14:28.560
linking it to the third party culprit and linking it
349
00:14:28.560 --> 00:14:30.450
to the Brady issues and everything else
350
00:14:30.450 --> 00:14:33.090
is any way that you wanna cut it,
351
00:14:33.090 --> 00:14:35.580
the DNA at the crime scene is not Mr. Marrero's,
352
00:14:35.580 --> 00:14:37.020
it's not the victim's
353
00:14:37.020 --> 00:14:39.480
and if there was Mr. Marrero's DNA at the crime scene,
354
00:14:39.480 --> 00:14:40.860
you would expect to find his blood
355
00:14:40.860 --> 00:14:42.180
and DNA all over the jacket.
356
00:14:42.180 --> 00:14:43.590
That's also not there.
357
00:14:43.590 --> 00:14:45.740
The victim's DNA all over the (indistinct),
358
00:14:47.529 --> 00:14:48.420
find his DNA all over the jacket,
359
00:14:48.420 --> 00:14:51.240
which is exactly what the Commonwealth argued to the jury.
360
00:14:51.240 --> 00:14:54.717
Well, but the jacket's found how many weeks later?
361
00:14:54.717 --> 00:14:56.100
The jacket's like months later, right?
362
00:14:56.100 --> 00:14:59.700
The jacket was on Mr. Marrero when he was arrested
363
00:14:59.700 --> 00:15:03.120
but I would urge this court that that same delay
364
00:15:03.120 --> 00:15:05.340
in collection of evidence existed in Cows,
365
00:15:05.340 --> 00:15:09.352
existed in Sullivan and also existed in Cameron
366
00:15:09.352 --> 00:15:10.290
where they related to underwear that a person wore
367
00:15:10.290 --> 00:15:14.070
for days before they were turned over to the police.
368
00:15:14.070 --> 00:15:16.869
And so while that certainly goes to weight, and again,
369
00:15:16.869 --> 00:15:18.150
(indistinct) that, that's not the end
370
00:15:18.150 --> 00:15:19.380
of the analysis for this court
371
00:15:19.380 --> 00:15:22.440
because that same chain of custody weight question
372
00:15:22.440 --> 00:15:24.330
existed at the time of trial
373
00:15:24.330 --> 00:15:27.660
when they put forth the positive blood results to the jury-
374
00:15:27.660 --> 00:15:32.203
And argued that the results indicated was correct.
375
00:15:33.450 --> 00:15:34.440
Correct.
376
00:15:34.440 --> 00:15:36.759
So that's the two parts here-
377
00:15:36.759 --> 00:15:40.020
Let me ask you on this,
378
00:15:40.020 --> 00:15:44.163
again, the prohibited could not exclude testimony.
379
00:15:45.900 --> 00:15:50.900
I know we have DNA cases involving that language.
380
00:15:52.170 --> 00:15:53.990
Do we have (indistinct) is involved
381
00:15:53.990 --> 00:15:57.210
in the blood grouping tests that were used pre-DNA
382
00:15:57.210 --> 00:15:58.293
where they use a,
383
00:15:59.154 --> 00:16:01.863
could not exclude for an include essentially?
384
00:16:03.480 --> 00:16:05.280
I would have to go back and read the record,
385
00:16:05.280 --> 00:16:08.370
but I think we think we detailed it in our reply brief
386
00:16:08.370 --> 00:16:12.360
but my memory is that from the Sullivan case,
387
00:16:12.360 --> 00:16:14.640
the Sullivan case involved both positive testing
388
00:16:14.640 --> 00:16:19.640
and blood grouping and the Cows case involved the semen,
389
00:16:23.310 --> 00:16:25.890
but not the the blood itself
390
00:16:25.890 --> 00:16:27.960
but what I would note there is, you know,
391
00:16:27.960 --> 00:16:29.100
in the Commonwealths brief,
392
00:16:29.100 --> 00:16:31.290
they sort of suggest that this blood grouping
393
00:16:31.290 --> 00:16:34.620
is the least discerning test.
394
00:16:34.620 --> 00:16:35.453
Well, we don't know,
395
00:16:35.453 --> 00:16:38.160
there's no matti stats-
396
00:16:38.160 --> 00:16:39.570
There's been one of the tests
397
00:16:39.570 --> 00:16:41.460
that they did among several others.
398
00:16:41.460 --> 00:16:44.040
What we now know, not the victim's DNA,
399
00:16:44.040 --> 00:16:46.350
not Mr. Marrero's DNA at the crime scene.
400
00:16:46.350 --> 00:16:50.040
The central crucial point is that what the Commonwealth used
401
00:16:50.040 --> 00:16:51.990
to put Mr. Marrero in the apartment
402
00:16:51.990 --> 00:16:55.920
in front of the victim at the time of the killing is gone.
403
00:16:55.920 --> 00:16:58.080
They could not argue that at a new trial,
404
00:16:58.080 --> 00:17:00.480
if that evidence had been available in 1996,
405
00:17:00.480 --> 00:17:02.100
they could not have made that argument
406
00:17:02.100 --> 00:17:04.770
and that is a real factor for the jury
407
00:17:04.770 --> 00:17:05.603
as they're trying
408
00:17:05.603 --> 00:17:07.370
to assess the central contested issue here,
409
00:17:08.550 --> 00:17:10.770
was Mr. Marrero the murderer,
410
00:17:10.770 --> 00:17:12.960
was he seen in Greenfield on October 14th?
411
00:17:12.960 --> 00:17:15.840
Really, (indistinct) DNA evidence
412
00:17:15.840 --> 00:17:19.200
that you couldn't tell who it was and it was inconclusive.
413
00:17:19.200 --> 00:17:21.840
You can't, you couldn't argue that today.
414
00:17:21.840 --> 00:17:22.710
Correct.
415
00:17:22.710 --> 00:17:27.540
Since this court's holdings in Cameron, no,
416
00:17:27.540 --> 00:17:28.500
they could not say
417
00:17:28.500 --> 00:17:31.863
that without the defense opening the dual analysis.
418
00:17:32.730 --> 00:17:33.750
If there are no further questions,
419
00:17:33.750 --> 00:17:36.390
I just wanted to reiterate
420
00:17:36.390 --> 00:17:39.240
that missing from the judge's analysis
421
00:17:39.240 --> 00:17:42.240
of the DNA and from the Brady is how these,
422
00:17:42.240 --> 00:17:45.900
all these things would've worked together.
423
00:17:45.900 --> 00:17:47.130
So on top of the fact
424
00:17:47.130 --> 00:17:48.510
that the DNA would've been a real factor
425
00:17:48.510 --> 00:17:50.042
for the jurors (indistinct)
426
00:17:50.042 --> 00:17:51.690
that was presented was the evidence that wasn't disclosed
427
00:17:51.690 --> 00:17:53.730
and the same is true otherwise.
428
00:17:53.730 --> 00:17:54.563
Other than that, we'll rest on-
429
00:17:54.563 --> 00:17:58.530
So the statement of the defendant to Herrera maybe,
430
00:17:58.530 --> 00:17:59.970
that he did it.
431
00:17:59.970 --> 00:18:03.780
Yes, Mr. Herrera did claim (indistinct) that-
432
00:18:03.780 --> 00:18:06.270
They had in different stories?
433
00:18:06.270 --> 00:18:07.103
Correct.
434
00:18:07.103 --> 00:18:08.910
Even though Mr. Herrera could not remember
435
00:18:08.910 --> 00:18:10.560
what day that conversation occurred
436
00:18:10.560 --> 00:18:12.300
or if it even occurred on the same day,
437
00:18:12.300 --> 00:18:13.800
that also would be contradicted
438
00:18:13.800 --> 00:18:14.633
by the flight record
439
00:18:14.633 --> 00:18:17.160
because Mr. Marrero could not have been given a ride
440
00:18:17.160 --> 00:18:21.123
to Holyoke while over the Atlantic Ocean.
441
00:18:22.500 --> 00:18:24.450
Thank you, your honors and we'll rest on our brief.
442
00:18:24.450 --> 00:18:25.283
Thank you.
443
00:18:26.760 --> 00:18:27.810
Okay, Attorney Lynch.
444
00:18:30.660 --> 00:18:33.090
Oh, just barely Good morning, your Honors.
445
00:18:33.090 --> 00:18:33.960
May it please the court,
446
00:18:33.960 --> 00:18:35.760
assistant district attorney Bethany Lynch
447
00:18:35.760 --> 00:18:37.290
for the Commonwealth.
448
00:18:37.290 --> 00:18:38.760
If the court is agreeable,
449
00:18:38.760 --> 00:18:41.250
I will start with the DNA issue.
450
00:18:41.250 --> 00:18:45.520
The DNA issue in this case I would suggest was not
451
00:18:47.310 --> 00:18:49.963
as important or (indistinct)
452
00:18:49.963 --> 00:18:51.159
as the defendant is making it seen now-
453
00:18:51.159 --> 00:18:52.733
Okay, so I'll tell you the process I use,
454
00:18:54.210 --> 00:18:55.080
I go to the closing argument
455
00:18:55.080 --> 00:18:58.500
and I see whether or not the prosecutor argued that point
456
00:18:58.500 --> 00:19:02.460
to see if evidence is important.
457
00:19:02.460 --> 00:19:04.200
We go to the closing argument in this case
458
00:19:04.200 --> 00:19:06.720
and there's a silent witness here
459
00:19:06.720 --> 00:19:08.730
and talks about the DNA evidence.
460
00:19:08.730 --> 00:19:12.150
Well, she talks about the occult blood in the jacket.
461
00:19:12.150 --> 00:19:16.057
I agree to that and I agree that that has been in a way,
462
00:19:17.760 --> 00:19:20.730
partially disproven by the current DNA standard
463
00:19:20.730 --> 00:19:22.920
or now that the DNA testing that was done
464
00:19:22.920 --> 00:19:25.770
in this case that we now have, it was DNA,
465
00:19:25.770 --> 00:19:27.600
there was no indication whether it was DNA
466
00:19:27.600 --> 00:19:30.750
from occult blood or from just the inside of the jacket.
467
00:19:30.750 --> 00:19:32.220
It came back to the defendant
468
00:19:32.220 --> 00:19:34.416
but it came back partial with a mixture-
469
00:19:34.416 --> 00:19:36.510
At trial, we have a chemist saying-
470
00:19:36.510 --> 00:19:38.057
That there was occult blood and I don't think-
471
00:19:38.057 --> 00:19:39.540
Occult blood in it
472
00:19:39.540 --> 00:19:42.780
and we have Morehouse saying he was a bloody mess
473
00:19:42.780 --> 00:19:44.040
and he was wearing
474
00:19:44.040 --> 00:19:46.980
that jacket and the DA says, aha, put the jacket on.
475
00:19:46.980 --> 00:19:48.780
I agree, but I would-
476
00:19:48.780 --> 00:19:49.680
A problem.
477
00:19:49.680 --> 00:19:52.200
It is a problem, in a way it's a problem
478
00:19:52.200 --> 00:19:56.680
because I don't agree that this DNA testing completely
479
00:19:57.570 --> 00:19:59.610
throws that evidence out the window-
480
00:19:59.610 --> 00:20:01.020
That's the standard?
481
00:20:01.020 --> 00:20:02.040
No, it's not the standard
482
00:20:02.040 --> 00:20:04.410
but I'm saying that the DNA testing
483
00:20:04.410 --> 00:20:06.210
that has been presented to the court-
484
00:20:06.210 --> 00:20:08.070
Whether or not it would've been a real factor.
485
00:20:08.070 --> 00:20:09.060
That it would've been a factor
486
00:20:09.060 --> 00:20:11.880
that the defendant's own DNA was inside his jacket
487
00:20:11.880 --> 00:20:13.890
versus the fact that there was testimony
488
00:20:13.890 --> 00:20:16.320
that there was occult blood with no result
489
00:20:16.320 --> 00:20:18.420
and we still have no result as far
490
00:20:18.420 --> 00:20:20.880
as knowing whether the defendant's DNA
491
00:20:20.880 --> 00:20:23.340
was the source of that occult blood.
492
00:20:23.340 --> 00:20:25.740
So just remind me, what is the new evidence?
493
00:20:25.740 --> 00:20:26.760
The new evidence is
494
00:20:26.760 --> 00:20:29.700
that there is a partial DNA profile
495
00:20:29.700 --> 00:20:32.754
from the inside sleeves of the defendant's jacket.
496
00:20:32.754 --> 00:20:34.170
It's a mixture.
497
00:20:34.170 --> 00:20:35.850
There's a major and a minor contributor.
498
00:20:35.850 --> 00:20:38.220
The major contributor is the defendant.
499
00:20:38.220 --> 00:20:40.290
So the defendant's DNA is inside his own jacket.
500
00:20:40.290 --> 00:20:41.666
Right, big deal.
501
00:20:41.666 --> 00:20:43.620
So what about the minor contributor?
502
00:20:43.620 --> 00:20:45.870
The minor can be linked to no one.
503
00:20:45.870 --> 00:20:46.703
Okay.
504
00:20:46.703 --> 00:20:50.730
So my point is that because it can't be linked to anyone,
505
00:20:50.730 --> 00:20:54.120
it is not, it does not disprove
506
00:20:54.120 --> 00:20:55.830
that it was the victim's blood.
507
00:20:55.830 --> 00:20:58.110
You asked the jury to draw the inference.
508
00:20:58.110 --> 00:20:59.280
We did, based on the evidence
509
00:20:59.280 --> 00:21:00.840
that we had at the time and I'm saying
510
00:21:00.840 --> 00:21:03.430
that this DNA evidence doesn't entirely
511
00:21:04.860 --> 00:21:07.110
undercut that evidence
512
00:21:07.110 --> 00:21:08.400
and so, but-
513
00:21:08.400 --> 00:21:09.480
Again, that's not the cut, right?
514
00:21:09.480 --> 00:21:11.700
No, no, but I would suggest
515
00:21:11.700 --> 00:21:13.020
that the standard is that it has
516
00:21:13.020 --> 00:21:14.580
to make a meaningful difference
517
00:21:14.580 --> 00:21:16.710
and the fact that it doesn't disprove
518
00:21:16.710 --> 00:21:18.548
that it is the victim's blood means
519
00:21:18.548 --> 00:21:21.580
that it is less of an important factor
520
00:21:23.340 --> 00:21:25.020
than the defendant is currently arguing
521
00:21:25.020 --> 00:21:27.370
that it is completely exculpatory.
522
00:21:27.370 --> 00:21:29.462
(indistinct) that I did my blood grouping test.
523
00:21:29.462 --> 00:21:31.140
This is all pre-DNA,
524
00:21:31.140 --> 00:21:33.540
and she says there's this AK1 protein,
525
00:21:33.540 --> 00:21:36.243
whatever the blood grouping test is,
526
00:21:38.258 --> 00:21:39.850
and could be the defendant,
527
00:21:39.850 --> 00:21:43.292
could be the victim-
528
00:21:43.292 --> 00:21:44.125
Because they (indistinct) the other-
529
00:21:44.125 --> 00:21:46.284
But she says the magic words,
530
00:21:46.284 --> 00:21:47.580
which we've said are problematic,
531
00:21:47.580 --> 00:21:50.760
cannot exclude the defendant.
532
00:21:50.760 --> 00:21:55.110
I believe that she says that it would
533
00:21:55.110 --> 00:21:57.780
be a match to either, I don't know-
534
00:21:57.780 --> 00:21:58.877
I cannot exclude the defendant-
535
00:21:58.877 --> 00:22:01.560
'Cause it matches both of them and-
536
00:22:01.560 --> 00:22:04.230
I'm a lay juror and I say, geez,
537
00:22:04.230 --> 00:22:05.980
probably the, you know,
538
00:22:05.980 --> 00:22:07.710
maybe the defendant's blood grouping
539
00:22:07.710 --> 00:22:10.203
or his blood marker is on that blood trail.
540
00:22:11.252 --> 00:22:13.500
But all of the other blood did exclude the defendant
541
00:22:13.500 --> 00:22:16.500
and anything that was an exclusionary result
542
00:22:16.500 --> 00:22:19.300
excluded the defendant in favor of the victim
543
00:22:21.210 --> 00:22:22.980
or was excluded the defendant,
544
00:22:22.980 --> 00:22:24.690
we don't know if it was victim blood.
545
00:22:24.690 --> 00:22:25.890
So (indistinct), where the victim
546
00:22:25.890 --> 00:22:27.540
and the defendant shared the marker,
547
00:22:27.540 --> 00:22:28.560
which was the only marker
548
00:22:28.560 --> 00:22:32.340
that resulted in a result
549
00:22:32.340 --> 00:22:36.300
and that they match on that marker
550
00:22:36.300 --> 00:22:39.223
was instructed to the jury-
551
00:22:39.223 --> 00:22:42.660
That's why we said Mattie,
552
00:22:42.660 --> 00:22:44.010
you can't (indistinct) the significance
553
00:22:44.010 --> 00:22:46.496
of this evidence, even in DNA-
554
00:22:46.496 --> 00:22:47.329
Yes-
555
00:22:47.329 --> 00:22:49.348
Nevermind blood grouping, which is-
556
00:22:49.348 --> 00:22:52.620
Yes, today, I don't know that this,
557
00:22:52.620 --> 00:22:54.270
this would not come in today
558
00:22:54.270 --> 00:22:59.270
but at the time, it did, and at the time it was given
559
00:23:00.630 --> 00:23:03.030
to the jury as this places the defendant
560
00:23:03.030 --> 00:23:05.220
at the scene because of these blood drops
561
00:23:05.220 --> 00:23:06.750
because he can't be excluded.
562
00:23:06.750 --> 00:23:08.421
That was not argued.
563
00:23:08.421 --> 00:23:12.690
The only reasonable inference from that result is that
564
00:23:12.690 --> 00:23:14.550
because all of the other blood
565
00:23:14.550 --> 00:23:17.520
in this incredibly bloody scene (indistinct) someone
566
00:23:17.520 --> 00:23:18.990
specifically to the exclusion
567
00:23:18.990 --> 00:23:21.030
of someone else belonged to the victim.
568
00:23:21.030 --> 00:23:23.130
This was also victim blood.
569
00:23:23.130 --> 00:23:25.530
That was really the only inference that could be made
570
00:23:25.530 --> 00:23:26.490
and it wasn't argued
571
00:23:26.490 --> 00:23:29.013
that it was defendant blood at the scene.
572
00:23:31.393 --> 00:23:33.000
Can you address this confluence argument,
573
00:23:33.000 --> 00:23:37.230
the Rosario brush where we take the DNA evidence
574
00:23:37.230 --> 00:23:38.730
and we also take
575
00:23:38.730 --> 00:23:41.280
into account the Brady violations
576
00:23:41.280 --> 00:23:44.010
and the ticketing information?
577
00:23:44.010 --> 00:23:46.590
Yes, I would first of all just
578
00:23:46.590 --> 00:23:50.130
to address the Brady violations quickly,
579
00:23:50.130 --> 00:23:52.830
I would (indistinct) and more oversights obviously
580
00:23:52.830 --> 00:23:55.350
and also the phone record,
581
00:23:55.350 --> 00:23:57.660
anything on the PNR,
582
00:23:57.660 --> 00:23:59.790
that I would point out very specifically.
583
00:23:59.790 --> 00:24:01.530
That was defendant discovery.
584
00:24:01.530 --> 00:24:04.053
The defendant gave that discovery to us.
585
00:24:06.210 --> 00:24:09.090
We didn't have it and neglect to explain it to him,
586
00:24:09.090 --> 00:24:11.460
bill of the trial and is now faulting us
587
00:24:11.460 --> 00:24:13.740
for not explaining his own evidence to him.
588
00:24:13.740 --> 00:24:15.180
So I would suggest that-
589
00:24:15.180 --> 00:24:17.880
The fault was with regard to the investigation
590
00:24:17.880 --> 00:24:20.340
that was then thereafter undertaken
591
00:24:20.340 --> 00:24:23.280
and not disclosing the result of that investigation.
592
00:24:23.280 --> 00:24:25.920
The investigation as to the phone number?
593
00:24:25.920 --> 00:24:29.220
No, I thought that the prosecutor was surprised.
594
00:24:29.220 --> 00:24:30.660
It was a real gut punch-
595
00:24:30.660 --> 00:24:32.164
She was, yes.
596
00:24:32.164 --> 00:24:35.250
To her case, and so she asked one of the (indistinct)
597
00:24:35.250 --> 00:24:39.990
to run it down and then he obtained a bunch of information
598
00:24:39.990 --> 00:24:43.080
that was then thereafter not disclosed to the defendant.
599
00:24:43.080 --> 00:24:44.354
Yes.
600
00:24:44.354 --> 00:24:45.187
The police notes.
Yes.
601
00:24:45.187 --> 00:24:47.040
The police notes but the police notes having
602
00:24:47.040 --> 00:24:49.710
to do with the phone number and the ADA,
603
00:24:49.710 --> 00:24:54.710
those notes were of running down the notations
604
00:24:55.350 --> 00:24:56.790
on the PNR
605
00:24:56.790 --> 00:24:59.820
and on the (indistinct) had
606
00:24:59.820 --> 00:25:02.010
and that the defendant provided to us.
607
00:25:02.010 --> 00:25:04.890
So it's at this point faulting the Commonwealth
608
00:25:04.890 --> 00:25:07.620
for not going out and looking for exculpatory information
609
00:25:07.620 --> 00:25:10.650
on his own evidence to give to him and explain to him-
610
00:25:10.650 --> 00:25:12.315
But that's not the standard though.
611
00:25:12.315 --> 00:25:17.250
So if the defendant's the source, right?
612
00:25:17.250 --> 00:25:19.300
you get information from the defendant
613
00:25:20.700 --> 00:25:22.545
and this is all (indistinct) trial,
614
00:25:22.545 --> 00:25:24.113
I get that, having been there, right?
615
00:25:25.920 --> 00:25:28.230
You say run this down or the ADA says,
616
00:25:28.230 --> 00:25:30.945
run this down, the trooper runs it down,
617
00:25:30.945 --> 00:25:32.940
get some information which is helpful
618
00:25:32.940 --> 00:25:34.830
to the defense by definition,
619
00:25:34.830 --> 00:25:37.290
Brady, and then does (indistinct)
620
00:25:37.290 --> 00:25:40.500
because the source started with the defendant,
621
00:25:40.500 --> 00:25:42.450
once you get helpful information,
622
00:25:42.450 --> 00:25:45.510
you have an obligation to turn it over under Brady.
623
00:25:45.510 --> 00:25:47.520
I would agree that there would be an obligation.
624
00:25:47.520 --> 00:25:48.540
I think first of all, it would have
625
00:25:48.540 --> 00:25:50.340
to be recognized as an obligation
626
00:25:50.340 --> 00:25:51.240
to turn over something
627
00:25:51.240 --> 00:25:55.140
that we would presume that they would not already know,
628
00:25:55.140 --> 00:25:58.110
having been the source and having (indistinct) made these.
629
00:25:58.110 --> 00:26:00.907
You don't tell the ADA's below,
630
00:26:00.907 --> 00:26:02.999
the ones that you, you don't tell them, hey,
631
00:26:02.999 --> 00:26:04.770
they probably have it, so don't worry about it.
632
00:26:04.770 --> 00:26:06.900
Right, and I'm not arguing,
633
00:26:06.900 --> 00:26:08.790
I'm hoping I'm not coming across exactly like this.
634
00:26:08.790 --> 00:26:10.184
I'm not arguing
635
00:26:10.184 --> 00:26:12.173
that there was no obligation to turn anything over.
636
00:26:13.290 --> 00:26:16.380
I'm saying that at this point we got the information
637
00:26:16.380 --> 00:26:18.570
from the defendant and it was mid-trial.
638
00:26:18.570 --> 00:26:20.670
We do know that we had this information
639
00:26:20.670 --> 00:26:22.560
and that it could be slightly exculpatory
640
00:26:22.560 --> 00:26:25.380
if the defendant didn't know the full phone number.
641
00:26:25.380 --> 00:26:28.560
I guess, back on the confluence point,
642
00:26:28.560 --> 00:26:30.510
and I'm sympathetic to you
643
00:26:30.510 --> 00:26:33.780
on the Brady issue (indistinct) just talks
644
00:26:33.780 --> 00:26:36.637
about this is lightning speed at trial,
645
00:26:36.637 --> 00:26:40.323
but ineffectiveness, I can't get around that.
646
00:26:42.306 --> 00:26:45.900
Here we got the punch in the gut evidence
647
00:26:45.900 --> 00:26:48.423
that E. Marrero is on this plane.
648
00:26:49.451 --> 00:26:52.950
He's left town at a time that's inconsistent
649
00:26:52.950 --> 00:26:54.753
with three of the witnesses.
650
00:26:57.750 --> 00:27:01.920
Is there the, we know he's a drug dealer.
651
00:27:01.920 --> 00:27:04.200
The whole case is about his drug dealing.
652
00:27:04.200 --> 00:27:07.443
So it makes no sense not to pin that down.
653
00:27:08.318 --> 00:27:13.140
Don't when we combine the evidence on the blood
654
00:27:13.140 --> 00:27:16.350
with the fact that this guy is on about his passport,
655
00:27:16.350 --> 00:27:21.003
is on the plane, make this a do-over?
656
00:27:21.930 --> 00:27:26.930
I'm not used to this much, you know,
657
00:27:27.195 --> 00:27:28.170
I've been doing this a long time.
658
00:27:28.170 --> 00:27:30.240
This is a lot of evidence
659
00:27:30.240 --> 00:27:31.290
that raises questions
660
00:27:31.290 --> 00:27:34.773
about whether we got the right guy here.
661
00:27:35.765 --> 00:27:36.598
But I would also suggest
662
00:27:36.598 --> 00:27:38.130
that almost (indistinct) the phone number
663
00:27:38.130 --> 00:27:41.190
and the ADA and the opening the door
664
00:27:41.190 --> 00:27:42.870
to the international drug trafficking
665
00:27:42.870 --> 00:27:44.130
that was supposedly taking place-
666
00:27:44.130 --> 00:27:45.497
Who cares?
667
00:27:45.497 --> 00:27:48.056
He's on trial for murder and he's a drug dealer.
668
00:27:48.056 --> 00:27:48.956
I'm sorry.
669
00:27:48.956 --> 00:27:50.250
He's on trial for murder,
670
00:27:50.250 --> 00:27:51.750
everyone knows he's a drug dealer.
671
00:27:51.750 --> 00:27:53.820
Both sides are putting in evidence
672
00:27:53.820 --> 00:27:55.710
that the culprits are all part
673
00:27:55.710 --> 00:27:58.560
of this drug dealing scheme, you know,
674
00:27:58.560 --> 00:28:00.603
buyers, sellers, blankety, blank,
675
00:28:02.830 --> 00:28:05.190
isn't there, don't we, and he's gotta get
676
00:28:05.190 --> 00:28:07.740
to New York at a time that wipes out three
677
00:28:07.740 --> 00:28:09.910
of the witnesses except for the one
678
00:28:11.340 --> 00:28:13.860
who testifies about the blood on the coat, right?
679
00:28:13.860 --> 00:28:16.080
And even then it's like a dash
680
00:28:16.080 --> 00:28:18.330
to New York to make the timing, right?
681
00:28:18.330 --> 00:28:20.670
It would be, and the prosecutor
682
00:28:20.670 --> 00:28:22.500
is saying it's a different E. Marrero
683
00:28:22.500 --> 00:28:24.450
on the plane and it looks like
684
00:28:24.450 --> 00:28:26.430
it is the (indistinct) Marrero,
685
00:28:26.430 --> 00:28:28.510
or at least somebody with his passport
686
00:28:29.640 --> 00:28:32.610
using his travel agent, it's really hard.
687
00:28:32.610 --> 00:28:35.130
I think the part that makes it less difficult
688
00:28:35.130 --> 00:28:37.560
for me is the fact that all of that evidence,
689
00:28:37.560 --> 00:28:42.090
with the exception of the phone number and who ADA was,
690
00:28:42.090 --> 00:28:43.920
was already in front of the jury.
691
00:28:43.920 --> 00:28:46.170
All of the evidence about the defendant's passport,
692
00:28:46.170 --> 00:28:47.820
about the time, about the,
693
00:28:47.820 --> 00:28:49.770
when the reservation had to be made,
694
00:28:49.770 --> 00:28:51.450
how you had to check in on the plane.
695
00:28:51.450 --> 00:28:53.700
The jury had all that information.
696
00:28:53.700 --> 00:28:58.700
The defendant's travel agent is the one who,
697
00:28:58.830 --> 00:29:00.540
that wasn't before the jury, right?
698
00:29:00.540 --> 00:29:01.950
Because otherwise this stuff
699
00:29:01.950 --> 00:29:03.760
about E. Marrero
700
00:29:05.549 --> 00:29:07.470
in the phone books would've been ridiculous, right?
701
00:29:07.470 --> 00:29:09.510
Well, what was before the jury,
702
00:29:09.510 --> 00:29:12.390
Mr. Marrero used this particular travel agency
703
00:29:12.390 --> 00:29:14.219
to travel routinely.
704
00:29:14.219 --> 00:29:15.861
He was there almost daily
705
00:29:15.861 --> 00:29:16.694
and that he was very familiar
706
00:29:16.694 --> 00:29:18.220
with the employees who worked there
707
00:29:19.131 --> 00:29:21.235
and so that was in front of the jury
708
00:29:21.235 --> 00:29:23.347
that this was the travel agency that he used.
709
00:29:23.347 --> 00:29:26.763
He also had Porous's testimony.
710
00:29:28.278 --> 00:29:30.060
And he testified that he doesn't keep records
711
00:29:30.060 --> 00:29:32.130
of reservations where the ticket is not paid
712
00:29:32.130 --> 00:29:36.570
for at his own office and that is corroborated
713
00:29:36.570 --> 00:29:39.930
by the fact that the PNR itself says
714
00:29:39.930 --> 00:29:43.377
that the ticket was paid for at the (indistinct),
715
00:29:44.536 --> 00:29:48.060
so he testified that he did not keep records of reservations
716
00:29:48.060 --> 00:29:51.602
that were made but not paid for through his agency.
717
00:29:51.602 --> 00:29:52.960
Let me sort of get back
718
00:29:54.030 --> 00:29:56.193
to the big picture so that you can,
719
00:29:58.006 --> 00:30:02.310
because there's concerns here as everybody has mentioned,
720
00:30:02.310 --> 00:30:06.994
the alibi gets just blown a sunder
721
00:30:06.994 --> 00:30:09.780
because you've got these witnesses testifying
722
00:30:09.780 --> 00:30:12.330
about seeing him and wanting a ride
723
00:30:12.330 --> 00:30:16.312
and making all sorts of inculpatory statements.
724
00:30:16.312 --> 00:30:20.200
So, the alibi is just blown up
725
00:30:21.207 --> 00:30:22.620
and he has potential corroboration
726
00:30:22.620 --> 00:30:23.640
in the alibi
727
00:30:23.640 --> 00:30:27.690
and it's not the strongest case point in the world,
728
00:30:27.690 --> 00:30:32.690
but you got motive and he's got a history as well
729
00:30:33.914 --> 00:30:35.430
that's not that different from the defendant.
730
00:30:35.430 --> 00:30:37.833
So on the other side,
731
00:30:39.510 --> 00:30:42.390
what do you have that this is not enough for reversal?
732
00:30:42.390 --> 00:30:43.590
That it's not enough?
733
00:30:43.590 --> 00:30:45.510
I think that the key point is that all
734
00:30:45.510 --> 00:30:46.343
of the evidence
735
00:30:46.343 --> 00:30:48.430
that you just mentioned was presented
736
00:30:50.130 --> 00:30:51.510
to the jury and the jury,
737
00:30:51.510 --> 00:30:53.220
it's their prerogative to do,
738
00:30:53.220 --> 00:30:55.380
credited the testimony of the witnesses
739
00:30:55.380 --> 00:30:58.200
and did not credit the alibi and so
740
00:30:58.200 --> 00:30:59.730
what we have now in this motion
741
00:30:59.730 --> 00:31:02.160
for new trial is pieces of evidence
742
00:31:02.160 --> 00:31:03.960
that could have been added,
743
00:31:03.960 --> 00:31:06.600
but this court, as the lower court did,
744
00:31:06.600 --> 00:31:07.980
as the trial court did,
745
00:31:07.980 --> 00:31:09.660
has to look at that and determine whether
746
00:31:09.660 --> 00:31:13.080
or not those small pieces of evidence,
747
00:31:13.080 --> 00:31:14.881
a partial phone number,
748
00:31:14.881 --> 00:31:15.840
or I'm sorry, (indistinct)
749
00:31:15.840 --> 00:31:17.700
versus inferentially connected based
750
00:31:17.700 --> 00:31:18.810
on all of the connections
751
00:31:18.810 --> 00:31:20.940
that Mr. Marrero had to Sunray Travel
752
00:31:20.940 --> 00:31:23.100
that were in front of the jury
753
00:31:23.100 --> 00:31:25.671
in terms of how he used it, the travel agency-
754
00:31:25.671 --> 00:31:29.329
I wanna make sure I understand your argument
755
00:31:29.329 --> 00:31:33.090
(indistinct) and give you the best (indistinct), you know,
756
00:31:33.090 --> 00:31:37.770
the DNA is permeating the case.
757
00:31:37.770 --> 00:31:42.770
It's giving the jurors that corroboration comfort.
758
00:31:42.840 --> 00:31:46.170
You've got an alibi that's going
759
00:31:46.170 --> 00:31:51.120
to be really hard to work with these other witnesses.
760
00:31:51.120 --> 00:31:53.542
I gotta get to Chicopee right away
761
00:31:53.542 --> 00:31:58.020
and all of that and you got Johnson,
762
00:31:58.020 --> 00:32:02.130
no one not even close to as much as evidence
763
00:32:02.130 --> 00:32:03.880
as the defendant,
764
00:32:03.880 --> 00:32:06.300
but you got Johnson as a potential third party culprit.
765
00:32:06.300 --> 00:32:08.820
That's on, as we're trying to look
766
00:32:08.820 --> 00:32:13.674
at how much the missing pieces matter here.
767
00:32:13.674 --> 00:32:16.410
What do we balance that against?
768
00:32:16.410 --> 00:32:18.690
Okay, well, you do balance it against the witnesses
769
00:32:18.690 --> 00:32:21.360
who placed him there in the general vicinity.
770
00:32:21.360 --> 00:32:22.260
You have one witness
771
00:32:22.260 --> 00:32:23.580
who was the last person
772
00:32:23.580 --> 00:32:25.500
to see the victim alive and said that
773
00:32:25.500 --> 00:32:28.980
at midnight, he left the defendant in the victim's house.
774
00:32:28.980 --> 00:32:32.040
We know the defendant had a key to the victim's house.
775
00:32:32.040 --> 00:32:33.300
We know that he is known
776
00:32:33.300 --> 00:32:36.780
to hide his stash in various places and when it is stolen,
777
00:32:36.780 --> 00:32:38.730
he gets very upset and he accuses the people
778
00:32:38.730 --> 00:32:41.280
that he deals drugs to of stealing it.
779
00:32:41.280 --> 00:32:43.590
We have a history of him attacking people
780
00:32:43.590 --> 00:32:45.600
from behind with boards and threatening people
781
00:32:45.600 --> 00:32:47.580
with knives and threatening to tie people up,
782
00:32:47.580 --> 00:32:50.310
all of which is what happened to this particular victim.
783
00:32:50.310 --> 00:32:52.350
We have his fingerprint at the crime scene
784
00:32:52.350 --> 00:32:55.380
on a chair that's in close proximity to the victim.
785
00:32:55.380 --> 00:32:57.180
We do have him with bloody hands.
786
00:32:57.180 --> 00:33:00.547
We have him nervously (indistinct)
787
00:33:00.547 --> 00:33:01.380
as soon as humanly possible.
788
00:33:01.380 --> 00:33:03.630
We have him paying twice as much as normal to leave.
789
00:33:03.630 --> 00:33:06.180
He usually pays a rock of crack cocaine
790
00:33:06.180 --> 00:33:07.290
for a ride to Chicopee.
791
00:33:07.290 --> 00:33:10.062
He paid gas money and two rocks just
792
00:33:10.062 --> 00:33:12.450
to get out of town quicker, I would say-
793
00:33:12.450 --> 00:33:13.770
But by the way,
794
00:33:13.770 --> 00:33:17.580
that Chicopee description is morning, right?
795
00:33:17.580 --> 00:33:18.413
It is.
796
00:33:18.413 --> 00:33:22.920
And the description of him in the house is
797
00:33:22.920 --> 00:33:24.600
that they're amicable, right?
798
00:33:24.600 --> 00:33:26.340
That the description of him
799
00:33:26.340 --> 00:33:28.350
at night is they're getting along, right?
800
00:33:28.350 --> 00:33:30.180
Yes, (indistinct) he's sleeping
801
00:33:30.180 --> 00:33:31.890
but we do know that he was (indistinct)
802
00:33:31.890 --> 00:33:33.360
that there was some suspicion
803
00:33:33.360 --> 00:33:35.190
or suspicion thrown on the victim
804
00:33:35.190 --> 00:33:38.340
as a person who had recently stolen a stash from him.
805
00:33:38.340 --> 00:33:41.313
To get to New York to be on a five o'clock plane.
806
00:33:42.420 --> 00:33:43.590
I take it that means
807
00:33:43.590 --> 00:33:47.253
all those witnesses have gotta have the time wrong, right?
808
00:33:48.613 --> 00:33:49.446
They do, they do.
809
00:33:49.446 --> 00:33:50.279
And the-
810
00:33:50.279 --> 00:33:51.112
That's possible?
811
00:33:51.112 --> 00:33:52.357
I would suggest it is possible and I would suggest
812
00:33:52.357 --> 00:33:53.940
that is what the motion judge found is that
813
00:33:53.940 --> 00:33:56.670
the witnesses who were discussing this didn't link it
814
00:33:56.670 --> 00:33:58.080
to anything in particular.
815
00:33:58.080 --> 00:33:59.190
They didn't link it to a clock.
816
00:33:59.190 --> 00:34:00.450
They didn't link it to anything
817
00:34:00.450 --> 00:34:02.340
and these were drug addicts who,
818
00:34:02.340 --> 00:34:05.670
there was evidence were not necessarily up
819
00:34:05.670 --> 00:34:08.700
on all the details.
820
00:34:08.700 --> 00:34:10.716
So the trial judge (indistinct),
821
00:34:10.716 --> 00:34:11.549
absence of, I looked at my watch
822
00:34:11.549 --> 00:34:12.810
and it said it was this time,
823
00:34:12.810 --> 00:34:14.400
they could be off on the time,
824
00:34:14.400 --> 00:34:16.350
he could have gotten to New York.
825
00:34:16.350 --> 00:34:18.030
He also did confess to the crime.
826
00:34:18.030 --> 00:34:19.170
I think that's important too.
827
00:34:19.170 --> 00:34:21.900
He confessed to Herrera and then when he returned,
828
00:34:21.900 --> 00:34:23.286
he fled the country-
829
00:34:23.286 --> 00:34:24.119
But the confession to Herrera was
830
00:34:24.119 --> 00:34:27.450
on mid-October at a time
831
00:34:27.450 --> 00:34:29.820
where he would've been in the Dominican Republic.
832
00:34:29.820 --> 00:34:32.040
Well, I mean, (indistinct) been
833
00:34:32.040 --> 00:34:34.200
in the Dominican Republic on the 14th.
834
00:34:34.200 --> 00:34:37.140
I would suggest that, or the 15th if he,
835
00:34:37.140 --> 00:34:39.570
like, I think mid-October leaves enough room
836
00:34:39.570 --> 00:34:40.680
that he could have talked
837
00:34:40.680 --> 00:34:42.840
to Herrera before he left the country.
838
00:34:42.840 --> 00:34:44.460
There's no doubt that he left the country.
839
00:34:44.460 --> 00:34:48.000
I don't know when.
840
00:34:48.000 --> 00:34:51.360
It's also his conduct when he gets back.
841
00:34:51.360 --> 00:34:52.740
And then there's his conduct, yes,
842
00:34:52.740 --> 00:34:54.840
he lies to the police from Greenfield.
843
00:34:54.840 --> 00:34:56.100
He also left the country
844
00:34:56.100 --> 00:34:58.560
for a lot longer period of time than he usually did.
845
00:34:58.560 --> 00:35:01.200
He would go to the Dominican Republic
846
00:35:01.200 --> 00:35:02.970
for a few days and return and he did
847
00:35:02.970 --> 00:35:05.130
that on several occasions.
848
00:35:05.130 --> 00:35:06.450
This time he left in October
849
00:35:06.450 --> 00:35:09.120
and didn't return till February.
850
00:35:09.120 --> 00:35:13.020
He (indistinct) evidence that the jury heard and weighed,
851
00:35:13.020 --> 00:35:15.120
the jury also saw the witnesses testify
852
00:35:15.120 --> 00:35:17.400
and again, the jury credited the witnesses
853
00:35:17.400 --> 00:35:21.327
and did not credit the alibi and the small bits
854
00:35:22.860 --> 00:35:25.410
of information about a phone number
855
00:35:25.410 --> 00:35:26.940
which (indistinct) drawn a line
856
00:35:26.940 --> 00:35:30.000
but not, I would suggest it wasn't necessary
857
00:35:30.000 --> 00:35:31.800
because there was enough inferentially
858
00:35:31.800 --> 00:35:33.930
to argue that that was Sunray Travel
859
00:35:33.930 --> 00:35:36.030
and I believe that the defense attorney did link them
860
00:35:36.030 --> 00:35:38.640
in his closing argument saying it was a 413.
861
00:35:38.640 --> 00:35:43.640
Of course the phone book was a ridiculous avenue to go down.
862
00:35:44.490 --> 00:35:45.960
If the court will indulge me for one second.
863
00:35:45.960 --> 00:35:47.010
There's one other issue
864
00:35:47.010 --> 00:35:52.010
where the defense accused the Commonwealth
865
00:35:52.920 --> 00:35:54.990
of presenting false evidence or
866
00:35:54.990 --> 00:35:57.900
of not correcting false evidence to the jury
867
00:35:57.900 --> 00:36:00.150
and I would just like to point out that if the court were
868
00:36:00.150 --> 00:36:02.553
to read the passage in question,
869
00:36:04.123 --> 00:36:08.490
the attorney for the defendant asked Trooper out
870
00:36:08.490 --> 00:36:11.371
of the blue, it was not connected to anything.
871
00:36:11.371 --> 00:36:12.204
There was no context.
872
00:36:12.204 --> 00:36:13.495
They said, are you familiar
873
00:36:13.495 --> 00:36:16.110
with an exchange in Western Massachusetts that is 413532.
874
00:36:16.110 --> 00:36:17.700
It was not a full phone number,
875
00:36:17.700 --> 00:36:19.440
it was a partial phone number.
876
00:36:19.440 --> 00:36:20.910
They did not show him the PNR,
877
00:36:20.910 --> 00:36:22.590
they didn't connect it to the PNR.
878
00:36:22.590 --> 00:36:24.540
They said, do you know this phone number?
879
00:36:24.540 --> 00:36:26.670
And he said, not off the top of my head.
880
00:36:26.670 --> 00:36:28.050
And I would suggest to you that
881
00:36:28.050 --> 00:36:32.402
that is not a false statement,
882
00:36:32.402 --> 00:36:33.235
(indistinct) reviewed numerous people
883
00:36:33.235 --> 00:36:36.240
in the 413 area code having to do with this case
884
00:36:36.240 --> 00:36:39.450
and he answered, not off the top of my head.
885
00:36:39.450 --> 00:36:40.440
So there was nothing there
886
00:36:40.440 --> 00:36:42.660
to correct, there was nothing incorrect.
887
00:36:42.660 --> 00:36:44.340
There was nothing misleading about that.
888
00:36:44.340 --> 00:36:46.980
This was also not the trooper
889
00:36:46.980 --> 00:36:49.261
who was chasing down (indistinct),
890
00:36:49.261 --> 00:36:50.640
Officer Sergeant Bon Flatter is the one
891
00:36:50.640 --> 00:36:52.200
who was tracing it down.
892
00:36:52.200 --> 00:36:53.340
Now I know that, you know,
893
00:36:53.340 --> 00:36:55.620
they're imputed to have knowledge of the other officers
894
00:36:55.620 --> 00:36:57.840
but this was an officer sitting on the stand,
895
00:36:57.840 --> 00:37:01.920
a trooper on the stand saying, off the top of my head,
896
00:37:01.920 --> 00:37:03.867
I don't know what that number is,
897
00:37:03.867 --> 00:37:04.700
(indistinct) the defense issue.
898
00:37:04.700 --> 00:37:08.280
So to couch this in terms of intentional
899
00:37:08.280 --> 00:37:09.720
or misleading testimony
900
00:37:09.720 --> 00:37:12.840
or false testimony that the Commonwealth then failed,
901
00:37:12.840 --> 00:37:15.090
the ADA then failed to correct,
902
00:37:15.090 --> 00:37:16.200
I would suggest is misleading
903
00:37:16.200 --> 00:37:18.153
to this court and should not be,
904
00:37:19.410 --> 00:37:20.910
that you would read that very carefully
905
00:37:20.910 --> 00:37:23.204
to see whether or not it appears to be false or misleading.
906
00:37:23.204 --> 00:37:24.900
Okay.
If the court
907
00:37:24.900 --> 00:37:25.830
has no further questions,
908
00:37:25.830 --> 00:37:26.930
I'll rest on my brief.