-: SJC-13464,
Commonwealth versus Tyrone Strong.
-: Okay, Attorney Harwood, whenever you're ready.
-: Good morning, Your Honors.
I'm here on behalf of the defendant,
appellant Tyrone Strong, and the principle argument
on this appeal is the sufficiency of the evidence.
This is a case,
and I will deal with the evidence at some length
because that's the bulk of the argument here.
There were four men charged with felony murder.
The underlying felony was armed robbery.
It's important to note at the outset
that Mr. Strong was the only defendant
who was actually convicted of this crime.
One of the defendants, Mitchell Rivera,
was dismissed from the case on a motion
that challenged sufficiency of the grand jury evidence.
The other two men, Tony Ancrum, was acquitted by a jury,
Giovanni Rivera, the brother of Mitchell Rivera,
was also acquitted by a jury.
And so I think it's important-
J. Wendlandt: Were those last two trials separate,
or were they tried together? -: Yes.
J. Wendlandt: Okay, so two trials.
-: Cases were severed and there were three separate trials,
one in September of 2016, that was Ancrum, he went first.
He was the driver of the vehicle that was in question.
Rivera was dismissed on a motion in February of 2017.
Then Tyrone Strong went to trial, he was convicted,
and then Giovanni Rivera went to trial
and he was acquitted.
J. Gaziano: The same judge allowed the McCarthy motion
that was the trial judge?
-: Yes.
So the issue here is, Ironsically,
the evidence against Strong, I would maintain
before the court, was weaker than the evidence
against any of the other three people
who were either dismissed or acquitted.
In this case, and our principle argument is this,
there was no evidence placing Tyrone Strong
at the scene of the crime at the time that it was committed.
The description really came from-
J. Wendlandt: By that you mean direct evidence,
not circumstantial evidence, correct?
-: Because there was circumstantial evidence.
-: Well, he is apprehended in a vehicle after the fact,
and there are items in the vehicle which belong
or were testified to belong to the victim, Christian Perez.
But the main testimony came from Carl Irons
who was a resident, and he said he heard-
J. Gaziano: Just to clarify, though,
so there's testimony that he's with these three gentlemen
before, from at least 6:00 PM to 8:00 PM,
and then he's found afterwards with these three gentlemen
after the murder within like a half hour?
Atty. Harwood: Yes. -: Okay.
-: And-
J. Wendlandt: And there's evidence that he came
with them from Boston, is that correct?
-: That's a little more vague,
but there is evidence from witnesses
of him being in an apartment in Fitchburg
with the other two gentlemen.
-: But at least as to the placement at the scene at the time,
there's testimony from the trooper about the sand
that's caked on the sneaker that's consistent
with the area where the shooting happened?
-: No, there is no consistency.
There was never soil tested.
J. Georges: Not whether there was soil tested
to make it conclusive. -: By the trooper.
-: But there was evidence
that his sneaker had sand or dirt caked on it.
-: Which could have come from anywhere,
because they never did a soil test.
That's something that's being brought up now
by the Commonwealth in its brief.
What they didn't have is the main witness,
Carl Irons, said that he saw, heard shots,
went to his window, saw two men with do-rags,
and those presumably were the people who were the shooters.
When they apprehend and stop a green Cadillac,
not a red because-
-: That's irrelevant that it's a green versus red
because it's clearly the car
that's involved in the shooting.
So the fact that he says red
and it's green is really a red herring.
-: When they stopped the green Cadillac,
two men have do-rags.
One is Ancrum, who's the driver of the vehicle.
The other is Mitchell Rivera who is in the back right seat,
who also has a do-rag.
Tyrone Strong is in the back passenger seat.
He does not have a do-rag.
Giovanni Rivera is-
-: But we don't know who the shooters are.
This is a joint venture IN a felony murder, correct?
-: Yeah, it's a joint venture felony murder
with the underlying felony being
armed robbery. -: Being the robbery,
and the Commonwealth's theory is that the four
of them were in cahoots for this crime.
-: Right, but at the time, there is nothing to-
-: So then in that theory,
it matters not who the two shooters are.
-: Well, but there's no evidence here
that Tyrone is even the car.
At some point there's a dividing up-
-: Counsel, this is just a general overall issue
that I have with what you're arguing.
You're arguing a different standard,
and it's pointed out by the Commonwealth in their briefing,
but you're arguing we have to take this in the light
that's most favorable to you, and that's not our standard.
It's in the light most favorable to the Commonwealth.
So when you say there's no evidence here,
you also forget one other piece of evidence
that was really important, that there was evidence
that he lied about being in Fitchburg at all.
There was consciousness of guilt evidence here.
So there is evidence here.
So I guess we're really looking to you
as to where's the sufficiency argument here?
Because there is all of this,
so love to hear on that, where you come down on that.
-: Where I come down is there's nothing placing
him at the scene.
There's no evidence except
for a partial inconclusive footprint
that has anything to do with Tyrone Strong
if you believe it, and neither the Commonwealth expert
nor the defense expert could make a conclusive match.
So you have a car, you have two men.
-: Do they need to make a conclusive match?
-: Yes, they have to place him at the scene,
which they have not done.
Like by their theory,
Mitchell Rivera was calling from another location.
There's no evidence that this print was left
at the time that the crime took place.
-: But there was evidence
that it was left at a time when all three,
when three of the fellows were there together.
-: But there's no evidence,
there are other inconclusive footprints
near shell casings.
-: Can I just ask you about the footprints though,
isn't it, and just this is a factual question,
I thought that there were three footprints
that were matched to the exact brand and size
of three of the four people found in the Cadillac.
Atty. Harwood: Yes.
-: There were no unique characteristics
like wear marks or whatever, but there were, three
of these gentlemen were wearing the kind of footwear
that would've left the footwear impressions
found at the scene at the time of the crime,
in terms of when they were found, yeah.
Atty. Harwood: Three of four.
-: Yes.
-: But no, it'd be like fingerprint evidence
that's inconclusive.
Both experts said they were inconclusive,
and in addition, they did DNA testing of Mr. Strong.
There was no evidence to link him to any of the items
that were found in the car.
They did gunshot residue tests.
There was no evidence that he had discharged a firearm.
Basically, you had an inconclusive partial footprint
near casings.
There's no murder weapon here, so neither the casings
or any of the ballistic evidence linked
Mr. Strong to the projectiles found in the body.
So what you really have is you have him being seen
in the company of others before the crime, and you have him
after the crime in the car where stolen items are found,
and you also have conflicting evidence.
-: And in that car there were three firearms found?
-: Three firearms, none of which, all of which were tested,
none of which matched any of the projectiles.
-: And tell me about the ammunition found in the car as well.
-: Ammunition, again, none of which matched any
of the casings at the crime scene.
-: Was there anything about the brand of ammunition
found in the car that matched the type
of ammunition that was used?
Atty. Harwood: No.
-: Nothing. -: In fact,
if Your Honors look at volume five-
-: I thought they were the same brand of ammunition,
although it wasn't traced back to the particular.
-: I don't believe so.
There's a stipulation entered into at the beginning
of volume five of the trial transcript concerning
the lack of ballistics match.
Maybe I have the fineries wrong,
but the stipulation was basically a concession
that none of the casings or projectile were matched
to any of the guns- -: Well, they weren't matched
to a gun that was found, but they matched the brand
of the ammunition in the- -: Ammunition.
-: Fiocchi brand name was the same-
Atty. Harwood: Yeah, correct.
-: And some of the rounds of the casings at the scene were
this particular brand as well.
I don't know if that means anything,
but there's some consistency at least.
Atty. Harwood: So and then-
-: Can we go back to the footprint for a little bit?
My understanding of the, you make much of the point
that there's no way to know
when the footprint was left between-
Atty. Harwood: Right. -: After 11:30 in the morning
and by the time of the crime.
But we have a chronology that shows
that the defendant came from Boston to Fitchburg that day.
He's in an apartment at 6:00, from 6:00 to 8:00 PM
with a fellow named Martinez,
Martinez's apartment from 6:00 to 8:00 PM
with Ancrum and Mitchell,
and the shooting takes place between 8:00 PM,
and the testimony is that the men leave the apartment
around 8:00 PM in the Cadillac.
The shooting occurs between 8:00 PM and 8:40.
Why doesn't that narrow the time period?
Given that the footprint is found along
with those matching the sneakers
of two of the other three men in the car,
why isn't that a sufficiently narrow window of time
for a jury to reasonably conclude
that the footprints were made around the time
or at the time of the shooting?
-: You would have to speculate that on this public sidewalk,
and this is why I mentioned Commonwealth versus Morris,
you would have to speculate that whoever left
that size 11 print did so at 8:30 in the evening.
In fact- -: Well,
why couldn't they conclude
that it was between 8:00 and 8:30,
and that the defendant was with the men
that he was later in the car with after the shooting,
and therefore that he was there
in connection with the shooting?
-: Because you have nothing placing him,
there's no description
of anybody even resembling him at the crime scene.
It's not like,
Commonwealth versus Morris is the clown mask case
where they find a clown mask right in the scene
and it has a conclusive,
not an inconclusive fingerprint,
and this court found that's not enough.
You have to show that the print was left on the mask
at the time of the crime.
-: But here, we have evidence of the defendant's whereabouts
for a large chunk of the time that you say is pertinent,
11:30 in the morning till the time of the shooting.
And with that evidence, it's narrowed down to a half hour,
so why doesn't that distinguish this case?
-: Because that could have been left at any point
after 11:30 in the morning.
He could have been there before.
-: Only by virtue of the weather, not by virtue
of the defendant's whereabouts
or the four men in the car's whereabouts.
-: You would have to speculate, though.
The jury would have to speculate that he was there
at that time in the absence of any evidence
of a description, even general, that places him there.
-: That might be true
if the other two footprints weren't there.
But tell me why that's sheer speculation
when the other two footprints are also there.
That is, what are the odds that three people
with the same kinds of shoes and the same size of shoe
all were at the sandy sidewalk at the murder scene?
-: It's a public sidewalk, and you have the wrinkle here
that they're not always all together,
according to the Commonwealth's evidence.
J. Wendlandt: And can we add-
-: Phone calls, and he's sitting-
J. Gaziano: But we get the pickup
and the drop off in the Burger King.
-: But it's speculating that this defendant was with them
and not with Rivera earlier at the same scene,
so the jury would have to speculate
that this again inconclusive partial footprint
next to casings that aren't even matched
to the projectiles in the body,
you would have to speculate that,
you know, he was there at the time,
and he's not observed to be firing anything
because he doesn't have a do-rag on.
And that's the other thing, it's like there's no identity.
With Ancrum and the other guy, you could at least say,
"Well, they have do-rags,"
but the defendant isn't, he's six foot,
he's not the size of the assailants that.
-: If the evidence suggests
in a light most favor to the Commonwealth
that the defendant was present for this felony murder
as a joint venture, that's all they need, correct?
-: You would have to place him at the scene.
J. Gaziano: Right, if he's at the scene.
-: And you would have to also, if you could even do that,
he would have to share the intent
and knowledge that these two people
outside the car were going to shoot someone,
and he can't even- -: That seems to me
even stronger argument, frankly.
Do you wanna unpack that a little bit?
-: Well, if you could place him at the scene,
and you can't, the Commonwealth's evidence is
that there are two men with do-rags
who matched the description of the assailants,
who according, I guess, you know, to the testimony of Irons,
he hears gunshots, these two people shot him.
And you could unpack it further
and say Rivera's the one who had-
-: Irons doesn't say
that the do-rag wearing gentleman shot anybody.
He just says, "I heard gunshots.
I saw these two dark-skinned people on the sidewalk
talking to a driver in a Cadillac."
-: Right, and that they then separated.
The two men in the do-rags went in one direction
and the car went in the other.
And, you know, I didn't say,
but the tire tracks didn't match the-
J. Wolohojian: Were the casings at the crime scene
all from a single gun?
Atty. Harwood: Were they all what?
-: From a single gun?
-: There's really no ballistics evidence on that.
I mean, the Commonwealth can say otherwise,
but I looked at the stipulation and it's just.
-: Were you gonna say more about how
or whether the Commonwealth properly proved intent?
-: It was in the sense that the stolen item,
for example, the Movado watch of the victim is found
on Mitchell Rivera, who is dismissed from the case
as not being, I guess, present at the scene,
and so there's no evidence that if you believe
that the two men with the do-rags
who fit the height description are the shooters, which seems
to have been the case, there's no evidence that the person
inside the car would've necessarily had any,
shared any intent as to what they did outside the car,
especially where you have stolen items in the possession
of Mitchell Rivera, who's dismissed from the case.
He's dismissed from the case,
and yet there's a jury charge that says all
of his actions can be attributed to the defendant.
-: And forgive me, I should know this.
Is this a pre- or post-Brown bounty murder case?
-: The crime is in 2002.
J. Gaziano: Okay, so it's pre-Brown probably.
-: So if there are no other questions,
I would rest on my brief, thank you.
-: Okay, thank you.
Okay, Attorney Kennedy.
-: So this was pre-Brown?
-: This is pre-Brown.
-: So the Commonwealth had to prove the participation
in the robbery, not malice.
-: Exactly.
-: Anne Kennedy, Assistant District Attorney
for the Middle District.
Good morning, Your Honors.
This court should affirm
the defendant's first degree murder conviction
and the denial of the defendant's motion for new trial.
When viewed in a light most favorable
to the Commonwealth, not the defendant,
the evidence and the reasonable inferences therefrom was
sufficient to convict the defendant
of felony murder while engaged in an armed robbery
under a joint venture theory in the pre-Brown era.
Additionally, the footwear print found at the scene
of the crime when coupled
with the other circumstantial evidence reasonably excludes
the hypothesis that the print was impressed
at any other time than the time of the crime.
Given that information
and that the evidence was sufficient to show
that the defendant was a participant in the armed robbery
with the intent to steal, and given all the evidence
that this court has already laid out,
the evidence was sufficient.
-: Does it hurt that we don't know who's in the car
in the Commonwealth's chain of inferences?
Because there's evidence at some point
that all four of them were together
in Fitchburg at the apartment.
But between then and when they're pulled over by the trooper
on route two, it's important that we don't know,
whoever the occupant in the apartment saw
the two men on the street with the do-rags
speaking to whomever was in the car,
we don't know that this defendant was one
of the people in the car.
It could very well be that they separate
and at some point whoever's in the car picks him up,
and happens to be with them
when they're all pulled over.
Is that a problem?
-: The reason why I don't think it's a problem is
because you have to view the evidence
in the light most favorable to the Commonwealth.
And the question is, is whether it's a reasonable inference
when the earliest we have him leaving the apartment
with his friends is 8:00,
and that this crime occurs at 8:38,
and while he's with these people in the apartment,
there are a series of calls made to the victim
who is a known drug dealer,
indicating that there's an intent there
to meet up with the drug dealer.
And given all that information,
coupled with the fact that the-
-: But may I ask, wasn't there specific evidence
about who was making those calls
with the borrowed cell phone, I think?
-: Well, there was evidence that that cell phone
that Mitchell Rivera had was the cell phone
that was being used
to make those calls. J. Georges: Right.
-: There's no evidence as to who was.
I'm not trying to imply that the defendant was,
I'm just trying to say that there was no evidence
as to who actually was making the calls.
It was just with that phone.
J. Wendlandt: And who borrowed the phone?
-: Mitchell Rivera.
-: Okay, and tell me about the fact
that there was no phone found on the victim
or anywhere near the victim.
In fact, the girlfriend had the phone.
If the Commonwealth's theory is, for example,
I think it was, that this borrowed phone was used
by the coventurers to reach out
and set up the drug dealer, the victim,
and the victim doesn't have his phone, isn't that a gap?
-: With respect to that, with respect to the record
before the court, there was no evidence
as to where the victim's phone was at the time of the crime.
However, that being known, it was known
that the victim went to Fitchburg to work,
which was translated by a witness who knew him to mean
that he was going to make drug deals there.
-: You say there's nothing in the record before the court?
I mean, I'm not making it up.
I thought I read somewhere that it came from the girlfriend.
-: Yes, it came from the girlfriend.
What I'm trying to say is whether
or not the victim had the phone on him,
because he went to the hospital.
It might've been on his person.
That's what I'm trying to say is-
J. Wendlandt: I see, so it's possible
that the victim had his phone.
-: Exactly.
When we were discussing it, my thought is
that the victim probably had his phone,
and when they gave the victim's personal effects
to his girlfriend, the phone might've been
with the victim at the time.
-: Can you tell me about the McCarthy motion
and the granting of it?
-: Certainly.
What happened in this case is Judge Tucker,
who was also the judge in this case,
granted the McCarthy motion, basically
because Mitchell Rivera's footprint was not one
of the footprints that was found at the scene, or a match.
I shouldn't say the actual footprint,
because we know that it wasn't
an individualized footprint identification.
It was a classic footprint identification,
and Mitchell Rivera's footprint was not at the scene,
or anything that matched
his footprint was not found at the scene.
It was Giovanni Rivera's, his brother's print was there,
Ingram's print was there,
as well as Tyrone Strong's print was there.
-: And so despite all that circumstantial evidence
that Mitchell placed the call, borrowed the phone,
was with them until 8:00 PM at least,
you're saying the McCarthy motion was granted
because all that evidence lacked probable cause
unlike the footprints?
-: That's what the judge decided, yes,
and the judge did decide that,
which is an interesting twist as well, that he did believe
that Mitchell Rivera was a joint venturer
in the armed robbery.
He was not joint venturer when it came
to ultimately what happened with the victim
and the defendants in this case.
-: Counsel, can I just go back again,
because Justice Wolohojian just pointed me out
to what was my issue about the car.
What she reminded me of was that there was testimony
from the trooper where he was specifically asked whether
or not this defendant ever said if he got out of the car
at any point that night.
Atty. Kennedy: Yes.
-: And his answer was unresponsive.
His answer was, "I don't think he ever got out of the car."
Atty. Kennedy: Yes. -: It wasn't whether
or not the defendant ever indicated
and made an affirmative statement that I didn't get out.
So again I go back now to the same question
about how do we know, is this enough,
even in the light most favorable to the Commonwealth
that this defendant was in the car at the time
of the murder, and not potentially picked up
between when the murder happened
and when they got stopped on Route 2?
-: Because the footwear print that was found at the scene,
the footwear print that is the same.
It was a sneaker, it was the same brand,
it was the same style,
and it was the same size as the defendant's shoe.
Couple that with, as Your Honor already pointed out,
that there was sand in his shoe.
Then you add, as Justice Wendlandt pointed out,
that there were two more people in that car
with the same footprint.
The issue is he was there.
The question is between 8:00 and 8:38,
is that a sufficiently short amount of time
for the jury to reasonably infer
that that print was made at the time of the crime,
and the Commonwealth suggests that when viewed
in the light most favorable to the Commonwealth, it is.
J. Georges: Okay, thank you.
-: Does that answer your question?
J. Georges: It does, thank you.
-: Thank you.
J. Gaziano: And the evidence
of shared intent to commit the robbery?
-: I would like to discuss that.
I know my brother does not raise that issue in the brief,
but I know this court-
J. Gaziano: With a 33E issue?
-: Yes, I was just gonna say, I know this court pursuant
to its authority under 33E may address it,
and I think you need to look at not only what happened
before, but also what happened after.
When the police were pulling this car over,
and they pulled this car over within a half hour,
45 minutes of the crime, they were ordering the occupants
of the Cadillac to comply because they issued a felony stop.
They were asking them to comply,
roll down the window, put the keys on the hood.
It took them three to four minutes to do that.
In that three to four minutes,
they see the two men in the backseat messing around
with the backseat, and they, well,
I shouldn't say they saw them
actually messing around with the backseat.
They were ducking, they looked
like they were pulling things, they were doing something.
They go, the defendant is sitting behind the driver.
That seat is askew, and what is under that seat?
Two loaded firearms, 53 grams of cocaine,
and within the car are all the items,
specifically unique items that the victim owned.
-: It was the inference
that the cocaine was stolen from the victim?
-: Yes, there was no cocaine found in the Acura.
He was going to Fitchburg, as we know,
to conduct drug deals, and there was no cocaine
or drugs found in the Acura,
and there were no drugs in the victim's system
when the toxicology report came back as well.
J. Wendlandt: Was the cocaine and the firearms,
were they under the seat
that the defendant was using or Mitchell's seat?
-: It's my understanding they were under the seat
that the defendant was using, the driver's side.
I could be incorrect in that,
but my understanding was that that's where they were.
-: If you're incorrect, does it matter?
Atty. Kennedy: No. -: Okay.
-: It doesn't because they saw the two men
in the backseat basically hiding, you can reasonably infer
that they were hiding these things from the police.
J. Wolohojian: Can you talk about the,
I'll call it the ballistics evidence
that clarify the link between-
-: They found numerous casings at the scene.
The casings that they found at the scene, some of them were,
and I apologize if I don't pronounce this correctly,
Fiocchi brand or Fiocchi, I'm not sure which way
to pronounce it, they found those.
The firearms that, two of the firearms
that they found in the car that were loaded had
that same brand of ammunition, suggesting again,
another connection to this defendant and the crime.
-: But of the nine millimeter casings at the scene,
there's no evidence that two guns were involved.
Alls we know there were just seven casings.
Atty. Kennedy: Yes.
-: And well, we don't know.
-: And there there's no, none of the casings
at the scene connected specifically
to the guns that were found.
J. Gaziano: I was just curious as to whether
or not there were two shooters or one shooter.
-: There's, I can't-
J. Gaziano: We don't know.
-: No, we don't.
I don't wanna speculate on that, but I don't think,
my brother counsel has been saying
that the jury would've had to have speculated.
The Commonwealth's position is this wasn't speculation,
these were reasonable inferences.
First degree murder, felony murder can be found
through circumstantial evidence,
and this is the case where it was.
If the court has no further questions,
the Commonwealth will rest on its brief.