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<v ->SJC-13447,</v>

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Commonwealth versus Epshod Jeune.

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<v ->Attorney Rappaport, welcome back.</v>

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<v ->Thank you very much.</v>

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It's nice to be back.

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If it please the court,

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Steven Rappaport on behalf of Epshod Jeune.

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The focus of this argument today is going to be

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on the prejudicial impact of the erroneous admission

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of the O'Brien testimony.

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<v ->Can I ask one...</v>

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Before you get too far, Fisher has been decided.

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<v ->[Attorney Rappaport] Yes, I know.</v>

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<v ->These issues seem to be almost exactly the same as Fisher.</v>

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So when you distinguish the argument here

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from what we've already decided,

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that would be helpful, at least for me.

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Because we tend not to change our minds

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within a couple of months, right?

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<v ->And I understand that, Your Honor.</v>

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I had the advantage, of course,

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of watching the Fisher argument numerous times.

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And I think I know...

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<v ->But you also have the advantage</v>

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of reading the Fisher decision.

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<v ->Oh, absolutely.</v>

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And I'm gonna comment quite a bit on that.

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<v Justice Kafker>Go ahead.</v>

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<v ->If I may.</v>

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<v ->I don't mean to cut you off.</v>

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<v ->It's such an interesting question.</v>

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<v ->How is this case different than the Fisher case?</v>

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In this Passover Easter season,

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I'm about to sit down at a Seder,

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and somebody's gonna ask that question.

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(speaking in foreign language)

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Why is this night different than all other nights?

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Well, I was actually thinking of that as,

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how am I gonna deal with this case?

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'Cause this is not an easy situation for me to be in,

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arguing on behalf of Mr. Jeune at this time.

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But I do believe I have certain advantages.

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For instance, a major part of Fisher's argument

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had to do with whether or not it was erroneously admitted,

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whether this evidence was erroneously admitted.

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And there was quite a bit of back and forth as to,

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well, the prejudicial impact versus the probative value.

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I would submit, I don't know whether this court

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found the admission of the evidence erroneous

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because the prejudicial effect

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outweighed the probative value

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or because there was absolutely no probative value

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in that evidence.

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<v ->The evidence being O'Brien's narrative versus the video</v>

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<v ->Exactly.</v>

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The video is clearly valid evidence in the case.

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<v ->I don't know if we did a 403 analysis.</v>

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<v ->Well, Justice Georges was questioning counsel.</v>

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<v ->Well, I would go by the written opinion.</v>

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Because I think what the opinion says is that

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it was erroneous for O'Brien to narrate period,

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not whether we should do a 403.

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<v ->Well, it wasn't the narrative.</v>

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For him to make the identification,

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to say, "Those are the guys."

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It's perfectly all right for him to say, for instance,

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"Look at the clothing here and look at the clothing here."

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<v ->So assuming that we think it was erroneous,</v>

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that there was no balancing as you're suggesting,

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what makes this case different,

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which I think is where you started,

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which is why the prejudicial effect?

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<v ->There are two major differences.</v>

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One is the nature of the defense.

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And the second thing

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is the most important video in this case,

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the Burlington video where the homicide occurs.

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It absolutely,

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with regard to the second individual alleged to be Jeune,

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it was hopelessly obscure.

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There was just no way of making an identification

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of that individual from that video.

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And frankly, look at what happened at Burger King.

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This was the first time

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that there's this actual face-to-face meeting

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with the individuals.

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The first thing that O'Brien does

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when he has Fisher get out of the car is he pat frisks him.

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Why does he pat frisk him?

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He pat frisks him because he recognizes him.

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This is what he says.

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"I recognized him from the video

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"as this fellow who was walking into the hotel."

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"Did you pat frisk Jeune?"

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"No."

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<v ->But wouldn't whether he's obscured or not</v>

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go more towards whether or not he can give an opinion.

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We already acknowledged...

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I think everybody agrees,

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and hopefully the Commonwealth does too,

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that that shouldn't have happened.

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And all our case law and the appeals court case law

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on whether or not it's an obscured versus a clear video

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goes into whether or not someone can do it.

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And here, it's clear, couldn't do it.

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<v ->So now we say he can't.</v>

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I think you were the first justice to raise the issue

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of the limiting instruction in this case

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and saying, "Well, in Wardsworth,

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"we didn't have a limiting instruction,

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"but in this case we do."

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And frankly, that's not true.

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There was no limiting instruction in this case.

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<v ->Didn't Judge Henry say,</v>

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"Hey, that's your call," to the jury essentially?

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No, that's not what he said.

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That's part of what Justice Henry said.

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And certainly in the opinion in Fisher,

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this court said that the most impactful factor

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in determining that the admission of the testimony

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was not prejudicial was this limiting instruction.

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But let's look at the limiting instruction.

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First of all, the timing of the instruction.

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O'Brien testified over three days, extensive testimony.

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On day six of the trial,

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he was talking just about the Keurig video.

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He wasn't talking about identifying

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either of the individuals.

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But on day seven, long, long direct examination

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with numerous references to these being the guys.

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Day eight, once again, long direct examination

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as to these being the guys.

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<v ->That's 'cause there's a lot of evidence</v>

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that these are the guys,

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and particularly about your client.

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<v ->My client was involved in this joint venture.</v>

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<v ->Let's keep on track so we can get to that.</v>

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<v ->Okay, okay.</v>

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<v Justice Gaziano>So what was the fault</v>

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of the limiting instruction?

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<v ->This is what he says.</v>

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Well, first of all, it's the timing.

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It's one thing to say to the jury right now,

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"Ignore the elephant that walked into the room just now."

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It's another thing to let the elephant sit in the room

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for three days and then say,

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"Oh by the way, ignore that elephant that came through."

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And that did pretty much happen in this case.

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<v ->So it was too late.</v>

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<v ->Certainly too late, I would submit.</v>

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But the first instruction given to the jury was as follows,

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"O'Brien's testimony was offered

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"for whatever assistance it may provide you

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"in making your determinations.

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"You may consider O'Brien's testimony

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"regarding the identity of those persons in the video

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"and give it whatever weight

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"that you deem it fairly is entitled to."

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This was the first instruction.

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There's no limitation on the use of the evidence there.

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<v Justice Gaziano>What's the last thing he says though?</v>

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<v ->Well, you have to make your own determination.</v>

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And in fact, I think in the Fisher opinion,

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that was underlined.

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And it's part of the record, I believe,

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the jury instructions in this case.

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Nothing's underlined.

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How would a reasonable juror take this instruction

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given by Judge Henry?

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He's telling them, "You don't have to use it.

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"You still have to make your own decision,

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"but you can use this in any way that it may help you."

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If you take a look at what instruction

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is given at every single superior court criminal case

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and was given in this,

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the general instructions to the jury are,

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"You are the sole and exclusive judges of the facts.

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"You alone determine what evidence to accept,

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"how important any evidence is that you accept,

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"and what conclusions you draw from the evidence."

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That's given as boilerplate to every jury.

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And that's what this instruction said.

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<v ->But Judge Henry does.</v>

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First, he says, "You are not bound to accept that testimony.

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"Indeed, you must make your own determination

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"as to what you see-"

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<v ->[Attorney Rappaport] As you have to do with any evidence.</v>

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<v ->And then in the concluding instruction, he goes,</v>

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"If you conclude that he intended to tell the truth,

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"you must also consider the possibility

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"that he made a good faith error in identification."

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You know, and we got the honest mistake here.

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<v ->Well, don't we have to do that</v>

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with considering the credibility of any witness?

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The witness may be lying,

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but then again, the witness may have made a mistake.

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These are general instructions given to a jury.

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This did not limit in any way.

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In fact, Judge, there's three times,

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three times in addition to the first time

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at the end of direct examination of O'Brien.

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There are three more times that the judge says to the jury,

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and these are his words,

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"You must give the identification testimony

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"of Trooper O'Brien whatever weight

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"you deem it's fairly entitled to receive.

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"You heard the testimony of Trooper O'Brien

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"who identified persons-"

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<v ->Can I shift you just a little bit?</v>

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'Cause there's just so much evidence

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and our opinion makes this point

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that your guy is there and-
<v ->Where's there?</v>

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<v ->He's in all three places.</v>

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<v ->What's the scene of the crime?</v>

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Is the scene of the crime the hotels,

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or is the scene of the crime the room?

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I mean seriously, Your Honor, which is it?

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According to Fisher, the scene of the crime is the hotels.

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"I wasn't there.

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"I had nothing to do with this."

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And the evidence was overwhelming that he was as well

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involved in this scheme.

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<v ->So does that dovetail?</v>

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And one of the first things you said on prejudice

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was the nature of the defense?

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<v ->[Attorney Rappaport] Absolutely.</v>

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<v ->Then you went into obscured video</v>

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and then the limiting instruction.

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So get back to nature of the defense,

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how the nature of the defense distinguishes from Fisher.

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<v ->Well, Fisher's defense was,</v>

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"I wasn't involved in this in any way."

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That's what his defense was.

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"I'm not the guy that appears in any of those videos."

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<v ->Right, and so how does your client's defense differ?</v>

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<v ->"I wasn't in the rooms."</v>

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First, let's start with Gattuso.

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<v ->Your defendant defined the scene of the crime as the room.</v>

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And he was maybe at the hotel, but not in the room.

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<v ->Absolutely.</v>

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In his opening, and certainly in his closing,

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defense counsel says, "Look, a reasonable verdict

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"in this case would be

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"guilty as to robbery of Gattuso, because he's involved,

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"and guilty of the homicide-"

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<v ->He has her credit cards, right?</v>

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<v ->Everything.</v>

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Judge, this was, if I tell you overwhelming...

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I try cases.

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If it wasn't for Commonwealth versus Brown,

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this would've been a long guilty plea.

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I mean, seriously, if not for Commonwealth versus Brown.

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At least, defense counsel recognized,

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"Wait a minute, Brown may be a game changer

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"depending upon a person's role in the offense."

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00:11:56.550 --> 00:11:59.700
Might a jury say that the getaway driver

257
00:11:59.700 --> 00:12:03.030
or the lookout is just as guilty as the person in the room?

258
00:12:03.030 --> 00:12:05.557
Certainly, but they also might say,

259
00:12:05.557 --> 00:12:06.390
"Well, wait a minute,

260
00:12:06.390 --> 00:12:08.947
"knowledge and intent really matters here.

261
00:12:08.947 --> 00:12:11.163
"Somebody's out in the getaway car,

262
00:12:12.037 --> 00:12:16.687
"somebody's down the hall as a lookout,

263
00:12:16.687 --> 00:12:18.715
"that's very different."
<v ->I'm confused.</v>

264
00:12:18.715 --> 00:12:20.280
<v ->Meaning that you're suggesting there were three people</v>

265
00:12:20.280 --> 00:12:21.220
involved in this rather than two?

266
00:12:21.220 --> 00:12:23.400
<v ->Maybe as many as four.</v>

267
00:12:23.400 --> 00:12:26.250
Three, we know there's at least three people.

268
00:12:26.250 --> 00:12:28.407
That's a given, and the Commonwealth concedes-

269
00:12:28.407 --> 00:12:30.990
<v ->The only reason we know there's three people</v>

270
00:12:30.990 --> 00:12:33.660
or you can make an argument that there's three people

271
00:12:33.660 --> 00:12:36.630
is when they get to the car,

272
00:12:36.630 --> 00:12:38.700
there are three or four people in it.

273
00:12:38.700 --> 00:12:39.540
<v ->No, no, no, no, no.</v>

274
00:12:39.540 --> 00:12:40.890
Your Honor, if I may.
<v ->Go ahead.</v>

275
00:12:40.890 --> 00:12:45.724
<v ->The videos show that as two individuals leave the car,</v>

276
00:12:45.724 --> 00:12:49.800
the two individuals who are alleged to be Fisher and Jeune

277
00:12:49.800 --> 00:12:53.280
leave the car and walk into the hotel,

278
00:12:53.280 --> 00:12:56.610
the car is moving around outside.

279
00:12:56.610 --> 00:12:58.200
And O'Brien admits it.

280
00:12:58.200 --> 00:12:59.640
He actually says that.

281
00:12:59.640 --> 00:13:02.310
Well, obviously, there's at least a third person

282
00:13:02.310 --> 00:13:03.450
involved in this.

283
00:13:03.450 --> 00:13:06.750
And I submit to the court, there's at least a third person.

284
00:13:06.750 --> 00:13:07.860
We don't know if there's a fourth.

285
00:13:07.860 --> 00:13:10.530
Is there a getaway driver and a lookout?

286
00:13:10.530 --> 00:13:13.110
I mean, the nature of these crimes,

287
00:13:13.110 --> 00:13:15.240
one would think that you would wanna have a lookout.

288
00:13:15.240 --> 00:13:19.080
These hotels look very very busy: people coming in and out.

289
00:13:19.080 --> 00:13:20.880
It wasn't that late at night.

290
00:13:20.880 --> 00:13:23.730
It is a time when people would be coming in and out.

291
00:13:23.730 --> 00:13:28.730
I mean, the point is, yes, he was involved from day one.

292
00:13:30.270 --> 00:13:35.270
In his opening, I think defense counsel said something like,

293
00:13:35.857 --> 00:13:38.047
"Well, if you don't think the police

294
00:13:38.047 --> 00:13:40.087
"planted all this evidence,

295
00:13:40.087 --> 00:13:43.530
"you're gonna come back with this as your result."

296
00:13:43.530 --> 00:13:47.580
But what happened here doesn't say anything

297
00:13:47.580 --> 00:13:50.460
about what happened in Johnson's room.

298
00:13:50.460 --> 00:13:53.733
Johnson's room is the crime scene.

299
00:13:54.750 --> 00:13:58.503
If my client is driving his car that night,

300
00:13:59.700 --> 00:14:02.490
especially at the Burlington Hotel

301
00:14:02.490 --> 00:14:05.607
where he's well known by everybody who works there,

302
00:14:05.607 --> 00:14:08.850
was the local marijuana dealer at the hotel

303
00:14:08.850 --> 00:14:10.950
and everybody staying at the hotel

304
00:14:10.950 --> 00:14:13.623
who smoked marijuana knew him,

305
00:14:14.700 --> 00:14:17.430
why would he be the guy that goes into the hotel?

306
00:14:17.430 --> 00:14:18.810
<v ->Well, isn't he the guy</v>

307
00:14:18.810 --> 00:14:20.310
who comes in through the side entrance,

308
00:14:20.310 --> 00:14:21.540
not in the front entrance, or might-

309
00:14:21.540 --> 00:14:23.400
<v ->He's supposedly number two.</v>

310
00:14:23.400 --> 00:14:26.970
He's supposedly the fellow that comes in the side entrance.

311
00:14:26.970 --> 00:14:30.000
You cannot make out a face.

312
00:14:30.000 --> 00:14:33.600
All you can see is a dark hoodie,

313
00:14:33.600 --> 00:14:37.203
a cap, dark pants, and dark shoes.

314
00:14:38.670 --> 00:14:42.120
The gait of the individual was a major factor

315
00:14:42.120 --> 00:14:44.280
that O'Brien used to try to compare.

316
00:14:44.280 --> 00:14:46.950
Well, look at this guy in Saugus.

317
00:14:46.950 --> 00:14:48.780
Look at this guy in Woburn.

318
00:14:48.780 --> 00:14:53.780
And look at this video of the defendant at work in Waltham.

319
00:14:55.650 --> 00:14:57.930
You can't do that with the Burlington video

320
00:14:57.930 --> 00:15:02.040
because it doesn't show the gentleman's gait in any way.

321
00:15:02.040 --> 00:15:06.360
All you have is this person coming in

322
00:15:06.360 --> 00:15:10.770
in a black hoodie, dark clothing.

323
00:15:10.770 --> 00:15:13.740
You can't tell anything about the way the person walks

324
00:15:13.740 --> 00:15:15.513
from that particular video.

325
00:15:18.150 --> 00:15:22.350
So the main difference between this and Fisher

326
00:15:22.350 --> 00:15:25.203
is the nature of the defense.

327
00:15:26.880 --> 00:15:28.350
Yes, it's a joint venture.

328
00:15:28.350 --> 00:15:30.990
Yes, my client's involved in a joint venture.

329
00:15:30.990 --> 00:15:33.213
But he wasn't in the room.

330
00:15:34.470 --> 00:15:36.870
First, we start with Gattuso.

331
00:15:36.870 --> 00:15:41.870
Gattuso describes an individual, as the second individual,

332
00:15:42.120 --> 00:15:43.680
very different than Jeune.

333
00:15:43.680 --> 00:15:44.913
First of all, clothing.

334
00:15:45.750 --> 00:15:48.570
The Commonwealth's alleging that the person

335
00:15:48.570 --> 00:15:51.780
that went into the room was wearing a black hoodie.

336
00:15:51.780 --> 00:15:53.820
Gattusa says, "No, it's a gray hoodie."

337
00:15:53.820 --> 00:15:57.273
She's off by at least five inches with regard to the height.

338
00:15:58.410 --> 00:15:59.243
Facial hair.

339
00:15:59.243 --> 00:16:02.880
We know that Jeune at the time has facial hair.

340
00:16:02.880 --> 00:16:05.880
This woman is talking about the man's complexion,

341
00:16:05.880 --> 00:16:08.190
but he didn't have any facial hair.

342
00:16:08.190 --> 00:16:09.150
Tattoos.

343
00:16:09.150 --> 00:16:13.470
We know Jeune is heavily tattooed on his hands.

344
00:16:13.470 --> 00:16:15.697
She says, "I didn't see any tattoos on his hands."

345
00:16:15.697 --> 00:16:18.120
"Well, he was probably wearing gloves,"

346
00:16:18.120 --> 00:16:20.430
as one of the people in one of the videos

347
00:16:20.430 --> 00:16:22.260
is shown to be wearing a glove.

348
00:16:22.260 --> 00:16:25.200
Nope, he wasn't wearing gloves.

349
00:16:25.200 --> 00:16:28.267
The argument was, "Wait a minute,

350
00:16:28.267 --> 00:16:30.600
"that's not Jeune in the room."

351
00:16:30.600 --> 00:16:32.010
Not that Jeune's not involved,

352
00:16:32.010 --> 00:16:35.040
not that Jeune doesn't show up on one of the videos.

353
00:16:35.040 --> 00:16:37.230
At that particular hotel, at the Woburn Hotel,

354
00:16:37.230 --> 00:16:40.530
he's identifiable in one of the videos.

355
00:16:40.530 --> 00:16:44.220
But he's not the man in the room according to Gattuso.

356
00:16:44.220 --> 00:16:46.743
Well, what does the Commonwealth say about that?

357
00:16:48.530 --> 00:16:51.960
I know that one of the factors that the court looks at

358
00:16:51.960 --> 00:16:54.570
in situations like this is prejudice.

359
00:16:54.570 --> 00:16:56.880
What did the DA say in her closing?

360
00:16:56.880 --> 00:17:01.880
Well, "Michelle Gattuso has her memory in her mind's eye.

361
00:17:02.497 --> 00:17:05.100
"The police have the video."

362
00:17:05.100 --> 00:17:10.100
Later on, "The police took the time to examine the videos."

363
00:17:11.670 --> 00:17:15.330
I know that one of the issues in Wardsworth was,

364
00:17:15.330 --> 00:17:17.520
well, there's four guys.

365
00:17:17.520 --> 00:17:19.860
Judge Kafker, you actually picked up on that:

366
00:17:19.860 --> 00:17:22.680
four witnesses in Wardsworth versus one.

367
00:17:22.680 --> 00:17:25.920
Well, not according to this closing.

368
00:17:25.920 --> 00:17:28.417
She didn't say, "Well, O'Brien had the video."

369
00:17:28.417 --> 00:17:30.600
"The police have the video."

370
00:17:30.600 --> 00:17:33.990
She's implying that there are more than one person

371
00:17:33.990 --> 00:17:35.913
who could provide this information.

372
00:17:37.200 --> 00:17:40.680
Nobody else testified about any videos in this case.

373
00:17:40.680 --> 00:17:43.860
I submit that, that kind of takes it out of,

374
00:17:43.860 --> 00:17:45.567
there's just one person giving the testimony.

375
00:17:45.567 --> 00:17:47.580
<v ->Can I ask about the baseball hat?</v>

376
00:17:47.580 --> 00:17:50.523
Was there something distinguishing about the baseball hat?

377
00:17:52.290 --> 00:17:55.560
<v ->In the Burlington video, you can't see the baseball cap.</v>

378
00:17:55.560 --> 00:17:56.730
You can just see the brim.

379
00:17:56.730 --> 00:17:58.650
You really don't see anything.

380
00:17:58.650 --> 00:18:02.430
There may be a sticker, but you really can't tell.

381
00:18:02.430 --> 00:18:06.030
In the Woburn video,

382
00:18:06.030 --> 00:18:09.660
which basically O'Brien identifies him

383
00:18:09.660 --> 00:18:11.370
from the Woburn video and then says

384
00:18:11.370 --> 00:18:12.750
it's the same guy there.

385
00:18:12.750 --> 00:18:16.830
But you can make an identification of him from that video.

386
00:18:16.830 --> 00:18:19.140
And he's wearing a very distinctive shirt.

387
00:18:19.140 --> 00:18:21.480
He's wearing a very distinctive cap.

388
00:18:21.480 --> 00:18:24.150
That cap, I don't believe was ever recovered.

389
00:18:24.150 --> 00:18:26.610
They do recover an A's cap.

390
00:18:26.610 --> 00:18:30.300
He supposedly had like a Oakland A's baseball cap,

391
00:18:30.300 --> 00:18:31.410
but it was a different color.

392
00:18:31.410 --> 00:18:34.050
The cap that they recover from Jeune's house

393
00:18:34.050 --> 00:18:38.340
was a different color than the hat in the video, number one.

394
00:18:38.340 --> 00:18:42.403
But there were photos of Jeune wearing the T-shirt.

395
00:18:44.760 --> 00:18:48.570
There's no question that Jeune is depicted

396
00:18:48.570 --> 00:18:50.580
in that Woburn video.

397
00:18:50.580 --> 00:18:53.700
There's a substantial question as to whether or not

398
00:18:53.700 --> 00:18:56.070
he's depicted in the Burlington video.

399
00:18:56.070 --> 00:19:00.360
And quite frankly, Jeune concedes

400
00:19:00.360 --> 00:19:04.380
that he's involved in the armed robbery of Gattuso.

401
00:19:04.380 --> 00:19:07.380
I'm not asking that the court reverse that conviction.

402
00:19:07.380 --> 00:19:10.530
I am asking the court to reverse the murder conviction

403
00:19:10.530 --> 00:19:12.840
because the evidence is very, very different

404
00:19:12.840 --> 00:19:14.130
as to Burlington.

405
00:19:14.130 --> 00:19:17.853
I do wanna say a few things, if I may, before I finish.

406
00:19:18.930 --> 00:19:22.620
First of all, O'Brien's testimony wasn't cumulative.

407
00:19:22.620 --> 00:19:26.430
He was the only person who identified Jeune

408
00:19:26.430 --> 00:19:29.490
as being the person in those videos.

409
00:19:29.490 --> 00:19:30.810
It wasn't collateral.

410
00:19:30.810 --> 00:19:34.237
Because as I say, Jeune had conceded early on,

411
00:19:34.237 --> 00:19:37.947
"Yes, I'm involved in this particular crime."

412
00:19:39.360 --> 00:19:43.920
But it goes to his identification of him

413
00:19:43.920 --> 00:19:46.380
as being the man going into the room.

414
00:19:46.380 --> 00:19:47.823
So it's not collateral.

415
00:19:48.750 --> 00:19:53.750
The imprimatur of the super witness, if you will,

416
00:19:53.850 --> 00:19:56.880
I think it's particularly bad in this case.

417
00:19:56.880 --> 00:20:01.880
First of all, we know that O'Brien is, if not the lead,

418
00:20:02.070 --> 00:20:04.290
one of the lead investigators in the case.

419
00:20:04.290 --> 00:20:06.000
I think what sets him off

420
00:20:06.000 --> 00:20:09.060
from other police officers, though, is the fact

421
00:20:09.060 --> 00:20:12.030
that he was excluded from the sequestration order.

422
00:20:12.030 --> 00:20:14.790
And he's in and out, and he admits that he's in and out

423
00:20:14.790 --> 00:20:18.360
of the courtroom throughout this entire long trial.

424
00:20:18.360 --> 00:20:20.100
He may be viewed much more

425
00:20:20.100 --> 00:20:22.620
as a member of the prosecution team

426
00:20:22.620 --> 00:20:24.990
than as just a mere police officer.

427
00:20:24.990 --> 00:20:29.190
And I submit that that also gives him enhanced credibility,

428
00:20:29.190 --> 00:20:33.240
including how many times he says he's watched it.

429
00:20:33.240 --> 00:20:35.280
I already mentioned the closing argument

430
00:20:35.280 --> 00:20:39.030
where I believe, once again,

431
00:20:39.030 --> 00:20:42.060
it almost takes it out of the one witness situation

432
00:20:42.060 --> 00:20:44.347
and says, "Well, there are many witnesses

433
00:20:44.347 --> 00:20:46.200
"who could tell you this."

434
00:20:46.200 --> 00:20:49.230
And, finally, I have to come back

435
00:20:49.230 --> 00:20:52.770
to the limiting instruction.

436
00:20:52.770 --> 00:20:55.590
You know, there was evidence in this case

437
00:20:55.590 --> 00:21:00.590
about the Saugus attempt with one of the sex workers

438
00:21:02.670 --> 00:21:07.670
and the defense had objected.

439
00:21:07.860 --> 00:21:09.600
It was prior-bad-act evidence.

440
00:21:09.600 --> 00:21:13.110
So what you have is during,

441
00:21:13.110 --> 00:21:16.920
or I should say prior to the testimony coming in

442
00:21:16.920 --> 00:21:20.223
about Saugus, you have Judge Henry saying,

443
00:21:25.387 --> 00:21:28.387
"This evidence must not be considered

444
00:21:28.387 --> 00:21:31.207
"to prove the defendant's bad acts,

445
00:21:31.207 --> 00:21:33.597
"only for a limited purpose."

446
00:21:36.240 --> 00:21:38.587
At the beginning, prior to the testimony, he says,

447
00:21:38.587 --> 00:21:40.687
"I'm giving you this instruction at this time

448
00:21:40.687 --> 00:21:43.267
"because the testimony that you are about to hear

449
00:21:43.267 --> 00:21:47.077
"is being offered only for a limited purpose.

450
00:21:47.077 --> 00:21:50.040
"I want you to understand the narrow nature of the purpose."

451
00:21:50.040 --> 00:21:52.290
That's a limiting instruction.

452
00:21:52.290 --> 00:21:53.660
That is a limiting instruction.

453
00:21:53.660 --> 00:21:56.377
It says, "This evidence may only be used

454
00:21:56.377 --> 00:21:59.007
"for this purpose, not for this."

455
00:22:01.140 --> 00:22:04.230
There absolutely was no limiting instruction.

456
00:22:04.230 --> 00:22:05.610
And yes, Judge, you're right.

457
00:22:05.610 --> 00:22:08.970
<v ->Just have one final question for you 'cause you're over.</v>

458
00:22:08.970 --> 00:22:13.680
So the Woburn, you say there's no question

459
00:22:13.680 --> 00:22:17.160
your client is in the Woburn room, right?

460
00:22:17.160 --> 00:22:19.040
<v ->No, no, no, no, no, no, no.</v>

461
00:22:19.040 --> 00:22:21.630
No question that he's involved in the Woburn case.

462
00:22:21.630 --> 00:22:24.693
He's seen approaching the hotel.

463
00:22:27.060 --> 00:22:28.953
And by the way, O'Brien says-

464
00:22:31.680 --> 00:22:33.690
<v ->You're saying when we read through this whole record,</v>

465
00:22:33.690 --> 00:22:37.170
we can't determine that he's the guy in the room

466
00:22:37.170 --> 00:22:38.670
in Woburn as well.

467
00:22:38.670 --> 00:22:41.670
'Cause if he is the guy in the room in Woburn,

468
00:22:41.670 --> 00:22:43.590
we know the gun's used in the room,

469
00:22:43.590 --> 00:22:45.990
the gun's pointed at the person's head.

470
00:22:45.990 --> 00:22:49.743
So if he's involved in that one in the room,

471
00:22:50.910 --> 00:22:53.940
can't we find the necessary intent

472
00:22:53.940 --> 00:22:56.190
for felony murder even after Brown?

473
00:22:56.190 --> 00:22:58.230
'Cause he knows that guns are being pointed

474
00:22:58.230 --> 00:23:01.860
at sex workers' heads in the other one.

475
00:23:01.860 --> 00:23:05.650
<v ->Well, now, you're making a determination that-</v>

476
00:23:05.650 --> 00:23:08.130
<v ->Well, I'm just using what you're conceding.</v>

477
00:23:08.130 --> 00:23:10.260
And I'm trying to understand what you're conceding.

478
00:23:10.260 --> 00:23:15.260
'Cause unlike your briefs, you've come up with a new theory

479
00:23:15.660 --> 00:23:17.610
that's not in your briefs.

480
00:23:17.610 --> 00:23:20.010
So I'm trying to respond on the move here

481
00:23:20.010 --> 00:23:23.370
to what I didn't see in any of the briefs.

482
00:23:23.370 --> 00:23:24.203
<v ->Okay.</v>

483
00:23:24.203 --> 00:23:27.180
And, Judge, in a sense, I must apologize.

484
00:23:27.180 --> 00:23:29.550
But in a sense, when you prepare for oral argument,

485
00:23:29.550 --> 00:23:31.170
you see things you've never seen before.

486
00:23:31.170 --> 00:23:32.490
<v ->I've been down this road already.</v>

487
00:23:32.490 --> 00:23:35.310
So I'm just trying to get a sense,

488
00:23:35.310 --> 00:23:39.600
if we find he's in the room in the Woburn one,

489
00:23:39.600 --> 00:23:41.310
and there's sufficient evidence of that,

490
00:23:41.310 --> 00:23:45.510
and it's a pointing a gun at the head, threatening to shoot,

491
00:23:45.510 --> 00:23:48.810
basically blow your head off kind of robbery,

492
00:23:48.810 --> 00:23:50.470
isn't that gonna be enough

493
00:23:51.780 --> 00:23:54.060
for the felony murder conviction here?

494
00:23:54.060 --> 00:23:56.370
<v ->I don't know.</v>

495
00:23:56.370 --> 00:23:58.680
I don't know because I don't know

496
00:23:58.680 --> 00:24:02.400
how a reasonable juror would have looked at it.

497
00:24:02.400 --> 00:24:06.303
What I do know is that a reasonable juror was told,

498
00:24:07.717 --> 00:24:11.160
"You can use this for whatever purpose you want."

499
00:24:11.160 --> 00:24:13.467
So there is really no limiting instruction.

500
00:24:13.467 --> 00:24:16.470
And the overwhelming evidence of guilt

501
00:24:16.470 --> 00:24:20.670
as to Mr. Jeune in this case is that he was involved

502
00:24:20.670 --> 00:24:25.670
in a joint venture to rob various sex workers.

503
00:24:25.860 --> 00:24:28.830
What's not clear in this case-
<v ->With a firearm.</v>

504
00:24:28.830 --> 00:24:31.067
<v ->Excuse me.</v>
<v ->With a firearm.</v>

505
00:24:31.067 --> 00:24:32.943
<v ->With a firearm, okay.</v>

506
00:24:34.500 --> 00:24:38.580
What's not clear in this case is whether or not

507
00:24:38.580 --> 00:24:43.580
he was, A, one of the two people in Gattuso's room.

508
00:24:44.490 --> 00:24:45.840
Because frankly,

509
00:24:45.840 --> 00:24:49.230
not only does she describe somebody very differently,

510
00:24:49.230 --> 00:24:51.750
she fails to pick his photo out of an array.

511
00:24:51.750 --> 00:24:53.520
I know that the Commonwealth argued as well,

512
00:24:53.520 --> 00:24:55.950
he was younger then.

513
00:24:55.950 --> 00:24:58.503
She picks out an entirely different individual.

514
00:24:59.340 --> 00:25:01.500
I would submit that the evidence

515
00:25:01.500 --> 00:25:06.420
that he's in Gattuso's room is far from overwhelming.

516
00:25:06.420 --> 00:25:11.420
And there's no evidence that he's in Johnson's room.

517
00:25:11.610 --> 00:25:16.590
The evidence is that he was engaged with others

518
00:25:16.590 --> 00:25:21.590
in a scheme to rob various sex workers.

519
00:25:21.720 --> 00:25:25.320
He's guilty of the armed robbery for sure.

520
00:25:25.320 --> 00:25:28.500
He's guilty of the attempted armed robbery for sure.

521
00:25:28.500 --> 00:25:33.090
He's not necessarily guilty of the homicide,

522
00:25:33.090 --> 00:25:36.537
and certainly not murder if he's not in the room.

523
00:25:36.537 --> 00:25:39.187
I'm not saying he couldn't be found guilty of murder.

524
00:25:41.760 --> 00:25:46.760
There's no way you can say that if he's not in the room

525
00:25:46.950 --> 00:25:50.940
that he knew and he intended what happened in that room.

526
00:25:50.940 --> 00:25:55.410
So yes, the crime scene as far as Fisher was concerned,

527
00:25:55.410 --> 00:25:57.090
I'm nowhere near this.

528
00:25:57.090 --> 00:25:58.190
I'm not involved.

529
00:25:58.190 --> 00:26:03.190
<v ->Okay, but you don't have to be.</v>

530
00:26:03.930 --> 00:26:08.070
<v ->Right, right, I'm just trying to get to the point</v>

531
00:26:08.070 --> 00:26:09.884
that we're almost six minutes over.

532
00:26:09.884 --> 00:26:11.096
<v ->[Attorney Rappaport] I'm sorry, Your Honor.</v>

533
00:26:11.096 --> 00:26:13.440
<v ->And if there's nothing else that you have,</v>

534
00:26:13.440 --> 00:26:15.060
I think we get it.

535
00:26:15.060 --> 00:26:16.470
No, you've done a very good job

536
00:26:16.470 --> 00:26:17.640
of getting your point across.

537
00:26:17.640 --> 00:26:20.033
<v ->I appreciate it.</v>
<v ->Thank you, I appreciate it.</v>

538
00:26:21.720 --> 00:26:23.043
<v ->Okay, Attorney Elliott.</v>

539
00:26:26.820 --> 00:26:27.653
<v ->Good morning.</v>

540
00:26:27.653 --> 00:26:28.530
May it please the court,

541
00:26:28.530 --> 00:26:30.150
Assistant District Attorney Christa Elliott

542
00:26:30.150 --> 00:26:32.940
from Middlesex on behalf of the Commonwealth.

543
00:26:32.940 --> 00:26:35.940
I'm gonna turn first, as my brother focused on,

544
00:26:35.940 --> 00:26:37.500
to the identification issue.

545
00:26:37.500 --> 00:26:39.120
But I do want to first note

546
00:26:39.120 --> 00:26:41.220
that the defendant's defense at trial

547
00:26:41.220 --> 00:26:44.220
was not that he was not in the room.

548
00:26:44.220 --> 00:26:46.773
Rather, if we look to the defendant's closing,

549
00:26:47.670 --> 00:26:49.320
at the very beginning of his closing,

550
00:26:49.320 --> 00:26:51.960
he defines the key theme of his closing by saying

551
00:26:51.960 --> 00:26:53.677
that the theme is, quote,

552
00:26:53.677 --> 00:26:55.867
"Wanton and reckless conduct is not murder.

553
00:26:55.867 --> 00:26:57.787
"If it results in the death of a human being,

554
00:26:57.787 --> 00:26:59.940
"it is manslaughter, but it is not murder."

555
00:26:59.940 --> 00:27:02.737
And then closes out the closing by saying, quote,

556
00:27:02.737 --> 00:27:05.377
"If you come back with manslaughter and armed robbery,

557
00:27:05.377 --> 00:27:06.517
"which has a life sentence,

558
00:27:06.517 --> 00:27:08.981
"you will have done justice and there will be no winners."

559
00:27:08.981 --> 00:27:10.587
<v ->So this was a third prong</v>

560
00:27:10.587 --> 00:27:13.182
versus involuntary manslaughter case.

561
00:27:13.182 --> 00:27:15.120
<v ->Exactly, correct.</v>

562
00:27:15.120 --> 00:27:16.530
There was not a question at trial

563
00:27:16.530 --> 00:27:18.210
as to whether or not the defendant

564
00:27:18.210 --> 00:27:19.650
was one of the people in the room.

565
00:27:19.650 --> 00:27:22.680
There was the recognition essentially to the jury

566
00:27:22.680 --> 00:27:25.260
as long as you believe the Commonwealth's evidence,

567
00:27:25.260 --> 00:27:26.250
my guy was there

568
00:27:26.250 --> 00:27:28.410
was essentially what defense counsel was arguing

569
00:27:28.410 --> 00:27:32.010
but just trying to mitigate the malice throughout.

570
00:27:32.010 --> 00:27:35.010
So turning to the identification issue,

571
00:27:35.010 --> 00:27:36.570
the Commonwealth does concede

572
00:27:36.570 --> 00:27:39.630
that in light of this court's decision in Fisher

573
00:27:39.630 --> 00:27:42.000
that Trooper O'Brien's identification of the defendant

574
00:27:42.000 --> 00:27:44.280
in the hotel surveillance footage was error.

575
00:27:44.280 --> 00:27:47.070
However, this fleeting singular identification

576
00:27:47.070 --> 00:27:48.600
did not prejudice the defendant

577
00:27:48.600 --> 00:27:51.060
where the evidence against him was utterly overwhelming

578
00:27:51.060 --> 00:27:53.520
as this court acknowledged in Fisher.

579
00:27:53.520 --> 00:27:56.160
And the trial judge gave repeated and forceful instructions

580
00:27:56.160 --> 00:27:58.200
to the jury that they alone were responsible

581
00:27:58.200 --> 00:28:01.383
for determining the identity of the men in the footage.

582
00:28:03.090 --> 00:28:06.870
There was no issue with the instructions that were given.

583
00:28:06.870 --> 00:28:09.240
The instructions were comprehensive.

584
00:28:09.240 --> 00:28:12.270
They were clearly targeted to Trooper O'Brien.

585
00:28:12.270 --> 00:28:15.060
They repeatedly mentioned his name and invoked his name,

586
00:28:15.060 --> 00:28:17.730
telling the jurors that they must be the ones

587
00:28:17.730 --> 00:28:20.400
to make the determination based on the video alone.

588
00:28:20.400 --> 00:28:24.630
And there was no error in those instructions.

589
00:28:24.630 --> 00:28:26.400
And certainly, there was no prejudice

590
00:28:26.400 --> 00:28:27.270
based on the overwhelming-

591
00:28:27.270 --> 00:28:31.290
<v ->But I mean, it's just contradictory to allow the testimony</v>

592
00:28:31.290 --> 00:28:32.790
and then to give the instruction.

593
00:28:32.790 --> 00:28:37.790
Because to allow him to testify and then to tell the jury,

594
00:28:38.797 --> 00:28:42.217
"You can consider it in any way you want

595
00:28:42.217 --> 00:28:45.960
"but you make the call," then leads to the logical question:

596
00:28:45.960 --> 00:28:48.333
Then why is he testifying in the first place?

597
00:28:49.260 --> 00:28:51.441
<v ->Well, to be clear that this-</v>

598
00:28:51.441 --> 00:28:53.433
<v ->We've already said, it's error.</v>

599
00:28:55.590 --> 00:28:57.930
<v ->So in terms of that, that instruction,</v>

600
00:28:57.930 --> 00:28:59.940
I mean that is the appropriate instruction

601
00:28:59.940 --> 00:29:03.360
to give a witness who is making an identification

602
00:29:03.360 --> 00:29:04.653
based on the video.

603
00:29:06.616 --> 00:29:07.449
And I apologize-

604
00:29:07.449 --> 00:29:09.720
<v ->I think you'd say it if it's someone with familiarity,</v>

605
00:29:09.720 --> 00:29:11.733
an appropriate witness, not O'Brien.

606
00:29:12.660 --> 00:29:14.190
<v ->Correct, correct, exactly.</v>

607
00:29:14.190 --> 00:29:15.610
And because, of course, as far as the judge-

608
00:29:15.610 --> 00:29:18.510
<v ->Given the fact that it wasn't an appropriate witness,</v>

609
00:29:18.510 --> 00:29:21.573
that O'Brien shouldn't have testified as he did,

610
00:29:22.560 --> 00:29:24.780
the reliance on the jury instruction,

611
00:29:24.780 --> 00:29:29.780
to say there's no prejudice seems awkward at the least.

612
00:29:29.970 --> 00:29:33.810
Because, you know, as your opposing counsel has pointed out,

613
00:29:33.810 --> 00:29:36.100
they could consider it for whatever value

614
00:29:37.170 --> 00:29:40.500
they considered it to have

615
00:29:40.500 --> 00:29:43.500
when in fact they shouldn't have heard it at all.

616
00:29:43.500 --> 00:29:46.410
<v ->Yes, and I do want to address both,</v>

617
00:29:46.410 --> 00:29:48.210
kind of two tiers of points here.

618
00:29:48.210 --> 00:29:49.740
The first is that I think it's important

619
00:29:49.740 --> 00:29:51.900
to read the instructions in their entirety.

620
00:29:51.900 --> 00:29:52.830
Because that language

621
00:29:52.830 --> 00:29:54.547
about "considering it for whatever value

622
00:29:54.547 --> 00:29:56.617
"you believe it would have," is couched within,

623
00:29:56.617 --> 00:29:58.563
"You are not bound to accept that testimony.

624
00:29:58.563 --> 00:30:01.020
"And indeed, you must make your own determinations,"

625
00:30:01.020 --> 00:30:02.850
and similar invocations throughout.

626
00:30:02.850 --> 00:30:05.160
And so those instructions

627
00:30:05.160 --> 00:30:07.050
really do need to be read as a whole

628
00:30:07.050 --> 00:30:10.500
as opposed to having those individual pieces excerpted.

629
00:30:10.500 --> 00:30:12.600
But also in Jeune's case,

630
00:30:12.600 --> 00:30:16.260
the evidence against Jeune was so incredibly strong

631
00:30:16.260 --> 00:30:18.240
that regardless of whether or not

632
00:30:18.240 --> 00:30:21.390
there was that singular problematic-

633
00:30:21.390 --> 00:30:22.710
<v ->Stronger than the Fisher evidence.</v>

634
00:30:22.710 --> 00:30:25.920
<v ->Significantly stronger than the Fisher evidence.</v>

635
00:30:25.920 --> 00:30:29.760
Here, we had the obvious likeness of the defendant

636
00:30:29.760 --> 00:30:31.620
to the person who was in the video.

637
00:30:31.620 --> 00:30:33.720
We had his phone and its records

638
00:30:33.720 --> 00:30:35.520
for two separate phone numbers.

639
00:30:35.520 --> 00:30:36.420
We had one of the phones

640
00:30:36.420 --> 00:30:37.680
and then the records for two numbers,

641
00:30:37.680 --> 00:30:39.090
we never found the second phone,

642
00:30:39.090 --> 00:30:41.340
that provided direct evidence of his guilt,

643
00:30:41.340 --> 00:30:43.140
including the fact that he had accessed

644
00:30:43.140 --> 00:30:45.630
the backpage.com ads of all of the women

645
00:30:45.630 --> 00:30:46.980
who were working as escorts.

646
00:30:46.980 --> 00:30:48.570
He had communicated with the victims.

647
00:30:48.570 --> 00:30:51.180
And all of his location information for those cell phones

648
00:30:51.180 --> 00:30:53.460
perfectly lined up with the surveillance footage

649
00:30:53.460 --> 00:30:54.301
that captured his-

650
00:30:54.301 --> 00:30:58.950
<v ->He's clearly either the brains of the operation</v>

651
00:30:58.950 --> 00:31:00.690
or he's involved in everything.

652
00:31:00.690 --> 00:31:03.860
This new argument, though, raises some...

653
00:31:06.270 --> 00:31:09.300
He's robbing his own hotel, which is a little odd,

654
00:31:09.300 --> 00:31:10.140
that he's running in.

655
00:31:10.140 --> 00:31:12.063
So you want to address that?

656
00:31:13.260 --> 00:31:15.450
I understand it's new

657
00:31:15.450 --> 00:31:17.700
and you're gonna have to do this on the fly.

658
00:31:17.700 --> 00:31:20.430
But why don't you take a shot at it anyway?

659
00:31:20.430 --> 00:31:21.263
<v ->Of course.</v>

660
00:31:21.263 --> 00:31:23.763
I think that, you know, we have a,

661
00:31:25.020 --> 00:31:27.870
even with this argument, there is a clear inference

662
00:31:27.870 --> 00:31:31.740
that can be made that this defendant was in fact

663
00:31:31.740 --> 00:31:33.990
in those hotel rooms.

664
00:31:33.990 --> 00:31:35.940
I think that the fact that the defendant

665
00:31:35.940 --> 00:31:38.130
enters through the side door in Burlington,

666
00:31:38.130 --> 00:31:39.420
the hotel where he is known,

667
00:31:39.420 --> 00:31:42.390
where he has worked up until a couple days before

668
00:31:42.390 --> 00:31:44.070
or at least relatively recently,

669
00:31:44.070 --> 00:31:46.110
is incredibly probative of the fact

670
00:31:46.110 --> 00:31:51.110
that he is intentionally trying to hide his person

671
00:31:51.240 --> 00:31:54.660
further than he was in the other videos

672
00:31:54.660 --> 00:31:56.850
and does support the fact that he was in fact

673
00:31:56.850 --> 00:31:58.320
that person who was in the room.

674
00:31:58.320 --> 00:32:00.780
Looking to Gattuso's testimony,

675
00:32:00.780 --> 00:32:04.290
there is specific evidence that Gattuso

676
00:32:04.290 --> 00:32:07.110
testified that there were two people who were in her room.

677
00:32:07.110 --> 00:32:09.360
The surveillance footage shows two people

678
00:32:09.360 --> 00:32:11.910
going from the vehicle into that hotel.

679
00:32:11.910 --> 00:32:14.520
It does not show a third person going into that hotel.

680
00:32:14.520 --> 00:32:16.740
So the reasonable inference for the jurors

681
00:32:16.740 --> 00:32:18.570
is that both of those people

682
00:32:18.570 --> 00:32:21.720
that are observed going into the hotel in Woburn

683
00:32:21.720 --> 00:32:24.570
are in fact the two people that ended up in Gattuso's room,

684
00:32:24.570 --> 00:32:27.030
regardless of whether or not there are any discrepancies.

685
00:32:27.030 --> 00:32:28.623
<v ->Is the hat distinctive?</v>

686
00:32:29.520 --> 00:32:31.383
The hat seems to be important.

687
00:32:32.670 --> 00:32:35.310
The video shows some very unusual hat.

688
00:32:35.310 --> 00:32:38.103
And is that the same hat found in his house?

689
00:32:39.224 --> 00:32:41.310
<v ->I would have to double check.</v>

690
00:32:41.310 --> 00:32:43.500
Certainly, that hat has been admitted into evidence.

691
00:32:43.500 --> 00:32:45.270
It was not something that I specifically focused on.

692
00:32:45.270 --> 00:32:47.220
There was absolutely an A's hat

693
00:32:47.220 --> 00:32:51.450
that was found and then admitted into evidence

694
00:32:51.450 --> 00:32:54.060
that was found in Jeune's house

695
00:32:54.060 --> 00:32:55.320
after the execution of the search warrant.

696
00:32:55.320 --> 00:32:57.270
But I would have to review the record again.

697
00:32:57.270 --> 00:33:01.440
<v ->And from what I remember, Gattuso does...</v>

698
00:33:01.440 --> 00:33:05.070
This guy has all these tattoos on his hands,

699
00:33:05.070 --> 00:33:07.080
including distinctive ones about Haiti

700
00:33:07.080 --> 00:33:08.223
and some other things.

701
00:33:11.940 --> 00:33:14.460
Does she testify that the person has no tattoos

702
00:33:14.460 --> 00:33:15.900
and is not wearing gloves?

703
00:33:15.900 --> 00:33:16.980
I can't remember.

704
00:33:16.980 --> 00:33:18.870
<v ->I believe she did testify to that.</v>

705
00:33:18.870 --> 00:33:20.160
That was part of her testimony.

706
00:33:20.160 --> 00:33:21.690
I think that it is important to remember

707
00:33:21.690 --> 00:33:24.030
that this is a woman who interacted with these two men

708
00:33:24.030 --> 00:33:26.400
for, as she testified, between three and four minutes

709
00:33:26.400 --> 00:33:28.830
in an incredibly high stakes environment

710
00:33:28.830 --> 00:33:30.330
with a gun trained to her head

711
00:33:30.330 --> 00:33:32.610
and for much of the time on the floor.

712
00:33:32.610 --> 00:33:35.370
You know, the fact that there are inconsistencies

713
00:33:35.370 --> 00:33:37.714
in her description is not particularly surprising.

714
00:33:37.714 --> 00:33:40.770
<v ->Is it the Commonwealth's theory that he was the shooter?</v>

715
00:33:40.770 --> 00:33:41.970
<v ->Yes.</v>

716
00:33:41.970 --> 00:33:44.100
Well, the Commonwealth did not have a specific theory.

717
00:33:44.100 --> 00:33:47.640
That was what the jury came back kind of indicating.

718
00:33:47.640 --> 00:33:49.380
<v ->But didn't they come back with the opposite though?</v>

719
00:33:49.380 --> 00:33:52.590
I thought Fisher is the principal.

720
00:33:52.590 --> 00:33:55.230
Who's found to be the principal in this?

721
00:33:55.230 --> 00:33:56.790
I can't remember; was it Fisher or Jeune?

722
00:33:56.790 --> 00:33:59.520
One of them has a principal conviction,

723
00:33:59.520 --> 00:34:02.730
and the other only has a felony murder conviction, right?

724
00:34:02.730 --> 00:34:04.590
<v ->They're both felony murder convictions, Your Honor.</v>

725
00:34:04.590 --> 00:34:05.667
<v ->No, they both have felony murder,</v>

726
00:34:05.667 --> 00:34:08.130
but I thought one also has a principal.

727
00:34:08.130 --> 00:34:09.540
<v ->Well, Jeune had...</v>

728
00:34:09.540 --> 00:34:12.090
I do apologize, I don't have the verdict slip

729
00:34:12.090 --> 00:34:12.960
in front of me at the moment.

730
00:34:12.960 --> 00:34:16.560
But Jeune was found guilty of possession of the firearm,

731
00:34:16.560 --> 00:34:18.060
whereas Fisher was not.

732
00:34:18.060 --> 00:34:19.757
<v ->But he had the ammo in his house.</v>

733
00:34:19.757 --> 00:34:21.663
<v ->He had have the ammo at his house.</v>

734
00:34:22.500 --> 00:34:26.550
So the impression based on the verdicts

735
00:34:26.550 --> 00:34:29.400
was that the jury believed that Jeune was the person

736
00:34:29.400 --> 00:34:30.990
who fired the gun.

737
00:34:30.990 --> 00:34:33.030
But regardless of who it was that fired the gun,

738
00:34:33.030 --> 00:34:34.830
it does not matter for the purposes

739
00:34:34.830 --> 00:34:36.990
of joint venture felony murder.

740
00:34:36.990 --> 00:34:41.790
<v ->Right, was Fisher acquitted of possession of the ammo</v>

741
00:34:41.790 --> 00:34:43.153
or of possession of a firearm?

742
00:34:43.153 --> 00:34:45.990
<v ->Yes, I believe that it was a not guilty</v>

743
00:34:45.990 --> 00:34:47.703
on possession of the firearm.

744
00:34:48.780 --> 00:34:49.890
I would double check the record,

745
00:34:49.890 --> 00:34:51.840
but that is my recollection for Fisher.

746
00:34:55.740 --> 00:34:58.890
If there are no further questions on that issue,

747
00:34:58.890 --> 00:35:01.350
I would simply note that

748
00:35:01.350 --> 00:35:05.850
the bulk of the rest of this case

749
00:35:05.850 --> 00:35:07.470
is really controlled by Fisher

750
00:35:07.470 --> 00:35:08.580
with the exception, of course,

751
00:35:08.580 --> 00:35:10.170
of the possession of the firearm charge,

752
00:35:10.170 --> 00:35:13.680
which the Commonwealth has conceded does need to be remanded

753
00:35:13.680 --> 00:35:16.593
pursuant to Bruen and Guardado 1 and 2.

754
00:35:18.420 --> 00:35:21.603
If there are no further questions, I would rest on my brief.