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<v ->SJC-13464,</v>

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Commonwealth versus Tyrone Strong.

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<v ->Okay, Attorney Harwood, whenever you're ready.</v>

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<v ->Good morning, Your Honors.</v>

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I'm here on behalf of the defendant,

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appellant Tyrone Strong, and the principle argument

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on this appeal is the sufficiency of the evidence.

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This is a case,

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and I will deal with the evidence at some length

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because that's the bulk of the argument here.

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There were four men charged with felony murder.

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The underlying felony was armed robbery.

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It's important to note at the outset

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that Mr. Strong was the only defendant

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who was actually convicted of this crime.

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One of the defendants, Mitchell Rivera,

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was dismissed from the case on a motion

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that challenged sufficiency of the grand jury evidence.

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The other two men, Tony Ancrum, was acquitted by a jury,

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Giovanni Rivera, the brother of Mitchell Rivera,

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was also acquitted by a jury.

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And so I think it's important-

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<v J. Wendlandt>Were those last two trials separate,</v>

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or were they tried together?
<v ->Yes.</v>

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<v J. Wendlandt>Okay, so two trials.</v>

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<v ->Cases were severed and there were three separate trials,</v>

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one in September of 2016, that was Ancrum, he went first.

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He was the driver of the vehicle that was in question.

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Rivera was dismissed on a motion in February of 2017.

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Then Tyrone Strong went to trial, he was convicted,

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and then Giovanni Rivera went to trial

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and he was acquitted.

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<v J. Gaziano>The same judge allowed the McCarthy motion</v>

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that was the trial judge?

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<v ->Yes.</v>

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So the issue here is, Ironsically,

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the evidence against Strong, I would maintain

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before the court, was weaker than the evidence

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against any of the other three people

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who were either dismissed or acquitted.

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In this case, and our principle argument is this,

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there was no evidence placing Tyrone Strong

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at the scene of the crime at the time that it was committed.

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The description really came from-

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<v J. Wendlandt>By that you mean direct evidence,</v>

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not circumstantial evidence, correct?

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<v ->Because there was circumstantial evidence.</v>

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<v ->Well, he is apprehended in a vehicle after the fact,</v>

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and there are items in the vehicle which belong

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or were testified to belong to the victim, Christian Perez.

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But the main testimony came from Carl Irons

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who was a resident, and he said he heard-

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<v J. Gaziano>Just to clarify, though,</v>

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so there's testimony that he's with these three gentlemen

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before, from at least 6:00 PM to 8:00 PM,

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and then he's found afterwards with these three gentlemen

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after the murder within like a half hour?

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<v Atty. Harwood>Yes.</v>
<v ->Okay.</v>

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<v ->And-</v>

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<v J. Wendlandt>And there's evidence that he came</v>

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with them from Boston, is that correct?

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<v ->That's a little more vague,</v>

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but there is evidence from witnesses

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of him being in an apartment in Fitchburg

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with the other two gentlemen.

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<v ->But at least as to the placement at the scene at the time,</v>

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there's testimony from the trooper about the sand

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that's caked on the sneaker that's consistent

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with the area where the shooting happened?

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<v ->No, there is no consistency.</v>

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There was never soil tested.

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<v J. Georges>Not whether there was soil tested</v>

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to make it conclusive.
<v ->By the trooper.</v>

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<v ->But there was evidence</v>

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that his sneaker had sand or dirt caked on it.

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<v ->Which could have come from anywhere,</v>

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because they never did a soil test.

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That's something that's being brought up now

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by the Commonwealth in its brief.

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What they didn't have is the main witness,

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Carl Irons, said that he saw, heard shots,

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went to his window, saw two men with do-rags,

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and those presumably were the people who were the shooters.

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When they apprehend and stop a green Cadillac,

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not a red because-

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<v ->That's irrelevant that it's a green versus red</v>

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because it's clearly the car

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that's involved in the shooting.

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So the fact that he says red

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and it's green is really a red herring.

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<v ->When they stopped the green Cadillac,</v>

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two men have do-rags.

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One is Ancrum, who's the driver of the vehicle.

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The other is Mitchell Rivera who is in the back right seat,

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who also has a do-rag.

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Tyrone Strong is in the back passenger seat.

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He does not have a do-rag.

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Giovanni Rivera is-

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<v ->But we don't know who the shooters are.</v>

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This is a joint venture IN a felony murder, correct?

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<v ->Yeah, it's a joint venture felony murder</v>

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with the underlying felony being

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armed robbery.
<v ->Being the robbery,</v>

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and the Commonwealth's theory is that the four

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of them were in cahoots for this crime.

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<v ->Right, but at the time, there is nothing to-</v>

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<v ->So then in that theory,</v>

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it matters not who the two shooters are.

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<v ->Well, but there's no evidence here</v>

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that Tyrone is even the car.

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At some point there's a dividing up-

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<v ->Counsel, this is just a general overall issue</v>

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that I have with what you're arguing.

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You're arguing a different standard,

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and it's pointed out by the Commonwealth in their briefing,

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but you're arguing we have to take this in the light

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that's most favorable to you, and that's not our standard.

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It's in the light most favorable to the Commonwealth.

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So when you say there's no evidence here,

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you also forget one other piece of evidence

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that was really important, that there was evidence

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that he lied about being in Fitchburg at all.

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There was consciousness of guilt evidence here.

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So there is evidence here.

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So I guess we're really looking to you

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as to where's the sufficiency argument here?

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Because there is all of this,

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so love to hear on that, where you come down on that.

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<v ->Where I come down is there's nothing placing</v>

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him at the scene.

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There's no evidence except

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for a partial inconclusive footprint

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that has anything to do with Tyrone Strong

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if you believe it, and neither the Commonwealth expert

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nor the defense expert could make a conclusive match.

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So you have a car, you have two men.

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<v ->Do they need to make a conclusive match?</v>

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<v ->Yes, they have to place him at the scene,</v>

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which they have not done.

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Like by their theory,

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Mitchell Rivera was calling from another location.

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There's no evidence that this print was left

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at the time that the crime took place.

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<v ->But there was evidence</v>

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that it was left at a time when all three,

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when three of the fellows were there together.

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<v ->But there's no evidence,</v>

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there are other inconclusive footprints

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near shell casings.

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<v ->Can I just ask you about the footprints though,</v>

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isn't it, and just this is a factual question,

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I thought that there were three footprints

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that were matched to the exact brand and size

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of three of the four people found in the Cadillac.

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<v Atty. Harwood>Yes.</v>

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<v ->There were no unique characteristics</v>

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like wear marks or whatever, but there were, three

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of these gentlemen were wearing the kind of footwear

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that would've left the footwear impressions

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found at the scene at the time of the crime,

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in terms of when they were found, yeah.

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<v Atty. Harwood>Three of four.</v>

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<v ->Yes.</v>

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<v ->But no, it'd be like fingerprint evidence</v>

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that's inconclusive.

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Both experts said they were inconclusive,

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and in addition, they did DNA testing of Mr. Strong.

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There was no evidence to link him to any of the items

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that were found in the car.

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They did gunshot residue tests.

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There was no evidence that he had discharged a firearm.

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Basically, you had an inconclusive partial footprint

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near casings.

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There's no murder weapon here, so neither the casings

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or any of the ballistic evidence linked

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Mr. Strong to the projectiles found in the body.

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So what you really have is you have him being seen

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in the company of others before the crime, and you have him

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after the crime in the car where stolen items are found,

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and you also have conflicting evidence.

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<v ->And in that car there were three firearms found?</v>

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<v ->Three firearms, none of which, all of which were tested,</v>

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none of which matched any of the projectiles.

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<v ->And tell me about the ammunition found in the car as well.</v>

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<v ->Ammunition, again, none of which matched any</v>

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of the casings at the crime scene.

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<v ->Was there anything about the brand of ammunition</v>

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found in the car that matched the type

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of ammunition that was used?

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<v Atty. Harwood>No.</v>

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<v ->Nothing.</v>
<v ->In fact,</v>

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if Your Honors look at volume five-

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<v ->I thought they were the same brand of ammunition,</v>

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although it wasn't traced back to the particular.

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<v ->I don't believe so.</v>

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There's a stipulation entered into at the beginning

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of volume five of the trial transcript concerning

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the lack of ballistics match.

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Maybe I have the fineries wrong,

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but the stipulation was basically a concession

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that none of the casings or projectile were matched

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to any of the guns-
<v ->Well, they weren't matched</v>

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to a gun that was found, but they matched the brand

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of the ammunition in the-
<v ->Ammunition.</v>

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<v ->Fiocchi brand name was the same-</v>

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<v Atty. Harwood>Yeah, correct.</v>

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<v ->And some of the rounds of the casings at the scene were</v>

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this particular brand as well.

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I don't know if that means anything,

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but there's some consistency at least.

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<v Atty. Harwood>So and then-</v>

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<v ->Can we go back to the footprint for a little bit?</v>

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My understanding of the, you make much of the point

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that there's no way to know

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when the footprint was left between-

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<v Atty. Harwood>Right.</v>
<v ->After 11:30 in the morning</v>

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and by the time of the crime.

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But we have a chronology that shows

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that the defendant came from Boston to Fitchburg that day.

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He's in an apartment at 6:00, from 6:00 to 8:00 PM

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with a fellow named Martinez,

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Martinez's apartment from 6:00 to 8:00 PM

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with Ancrum and Mitchell,

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and the shooting takes place between 8:00 PM,

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and the testimony is that the men leave the apartment

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around 8:00 PM in the Cadillac.

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The shooting occurs between 8:00 PM and 8:40.

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Why doesn't that narrow the time period?

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Given that the footprint is found along

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with those matching the sneakers

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of two of the other three men in the car,

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why isn't that a sufficiently narrow window of time

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for a jury to reasonably conclude

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that the footprints were made around the time

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or at the time of the shooting?

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<v ->You would have to speculate that on this public sidewalk,</v>

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and this is why I mentioned Commonwealth versus Morris,

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you would have to speculate that whoever left

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that size 11 print did so at 8:30 in the evening.

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In fact-
<v ->Well,</v>

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why couldn't they conclude

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that it was between 8:00 and 8:30,

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and that the defendant was with the men

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that he was later in the car with after the shooting,

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and therefore that he was there

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in connection with the shooting?

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<v ->Because you have nothing placing him,</v>

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there's no description

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of anybody even resembling him at the crime scene.

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It's not like,

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Commonwealth versus Morris is the clown mask case

252
00:14:02.550 --> 00:14:05.580
where they find a clown mask right in the scene

253
00:14:05.580 --> 00:14:07.110
and it has a conclusive,

254
00:14:07.110 --> 00:14:10.440
not an inconclusive fingerprint,

255
00:14:10.440 --> 00:14:13.950
and this court found that's not enough.

256
00:14:13.950 --> 00:14:18.420
You have to show that the print was left on the mask

257
00:14:18.420 --> 00:14:19.650
at the time of the crime.

258
00:14:19.650 --> 00:14:23.790
<v ->But here, we have evidence of the defendant's whereabouts</v>

259
00:14:23.790 --> 00:14:28.730
for a large chunk of the time that you say is pertinent,

260
00:14:28.730 --> 00:14:32.580
11:30 in the morning till the time of the shooting.

261
00:14:32.580 --> 00:14:37.440
And with that evidence, it's narrowed down to a half hour,

262
00:14:37.440 --> 00:14:42.210
so why doesn't that distinguish this case?

263
00:14:42.210 --> 00:14:46.920
<v ->Because that could have been left at any point</v>

264
00:14:46.920 --> 00:14:49.200
after 11:30 in the morning.

265
00:14:49.200 --> 00:14:50.463
He could have been there before.

266
00:14:50.463 --> 00:14:53.190
<v ->Only by virtue of the weather, not by virtue</v>

267
00:14:53.190 --> 00:14:55.180
of the defendant's whereabouts

268
00:14:57.452 --> 00:15:00.030
or the four men in the car's whereabouts.

269
00:15:00.030 --> 00:15:01.950
<v ->You would have to speculate, though.</v>

270
00:15:01.950 --> 00:15:05.760
The jury would have to speculate that he was there

271
00:15:05.760 --> 00:15:09.030
at that time in the absence of any evidence

272
00:15:09.030 --> 00:15:13.410
of a description, even general, that places him there.

273
00:15:13.410 --> 00:15:14.460
<v ->That might be true</v>

274
00:15:14.460 --> 00:15:17.523
if the other two footprints weren't there.

275
00:15:19.290 --> 00:15:22.380
But tell me why that's sheer speculation

276
00:15:22.380 --> 00:15:24.993
when the other two footprints are also there.

277
00:15:26.132 --> 00:15:31.132
That is, what are the odds that three people

278
00:15:31.410 --> 00:15:36.410
with the same kinds of shoes and the same size of shoe

279
00:15:38.070 --> 00:15:42.483
all were at the sandy sidewalk at the murder scene?

280
00:15:43.350 --> 00:15:47.050
<v ->It's a public sidewalk, and you have the wrinkle here</v>

281
00:15:48.030 --> 00:15:51.870
that they're not always all together,

282
00:15:51.870 --> 00:15:53.973
according to the Commonwealth's evidence.

283
00:15:55.680 --> 00:15:56.513
<v J. Wendlandt>And can we add-</v>

284
00:15:56.513 --> 00:15:58.890
<v ->Phone calls, and he's sitting-</v>

285
00:15:58.890 --> 00:15:59.790
<v J. Gaziano>But we get the pickup</v>

286
00:15:59.790 --> 00:16:01.590
and the drop off in the Burger King.

287
00:16:03.570 --> 00:16:08.080
<v ->But it's speculating that this defendant was with them</v>

288
00:16:09.360 --> 00:16:14.070
and not with Rivera earlier at the same scene,

289
00:16:14.070 --> 00:16:16.800
so the jury would have to speculate

290
00:16:16.800 --> 00:16:21.120
that this again inconclusive partial footprint

291
00:16:21.120 --> 00:16:23.830
next to casings that aren't even matched

292
00:16:24.930 --> 00:16:28.050
to the projectiles in the body,

293
00:16:28.050 --> 00:16:30.270
you would have to speculate that,

294
00:16:30.270 --> 00:16:32.430
you know, he was there at the time,

295
00:16:32.430 --> 00:16:36.780
and he's not observed to be firing anything

296
00:16:36.780 --> 00:16:39.210
because he doesn't have a do-rag on.

297
00:16:39.210 --> 00:16:44.210
And that's the other thing, it's like there's no identity.

298
00:16:44.310 --> 00:16:47.437
With Ancrum and the other guy, you could at least say,

299
00:16:47.437 --> 00:16:49.680
"Well, they have do-rags,"

300
00:16:49.680 --> 00:16:54.360
but the defendant isn't, he's six foot,

301
00:16:54.360 --> 00:16:58.293
he's not the size of the assailants that.

302
00:16:59.430 --> 00:17:01.830
<v ->If the evidence suggests</v>

303
00:17:01.830 --> 00:17:04.080
in a light most favor to the Commonwealth

304
00:17:04.080 --> 00:17:09.080
that the defendant was present for this felony murder

305
00:17:11.070 --> 00:17:13.713
as a joint venture, that's all they need, correct?

306
00:17:14.610 --> 00:17:17.040
<v ->You would have to place him at the scene.</v>

307
00:17:17.040 --> 00:17:18.252
<v J. Gaziano>Right, if he's at the scene.</v>

308
00:17:18.252 --> 00:17:21.510
<v ->And you would have to also, if you could even do that,</v>

309
00:17:21.510 --> 00:17:23.790
he would have to share the intent

310
00:17:23.790 --> 00:17:25.800
and knowledge that these two people

311
00:17:25.800 --> 00:17:30.483
outside the car were going to shoot someone,

312
00:17:31.950 --> 00:17:33.420
and he can't even-
<v ->That seems to me</v>

313
00:17:33.420 --> 00:17:35.643
even stronger argument, frankly.

314
00:17:37.380 --> 00:17:40.170
Do you wanna unpack that a little bit?

315
00:17:40.170 --> 00:17:42.600
<v ->Well, if you could place him at the scene,</v>

316
00:17:42.600 --> 00:17:46.950
and you can't, the Commonwealth's evidence is

317
00:17:46.950 --> 00:17:49.530
that there are two men with do-rags

318
00:17:49.530 --> 00:17:52.680
who matched the description of the assailants,

319
00:17:52.680 --> 00:17:57.680
who according, I guess, you know, to the testimony of Irons,

320
00:17:58.200 --> 00:18:02.850
he hears gunshots, these two people shot him.

321
00:18:02.850 --> 00:18:04.980
And you could unpack it further

322
00:18:04.980 --> 00:18:07.990
and say Rivera's the one who had-

323
00:18:07.990 --> 00:18:09.480
<v ->Irons doesn't say</v>

324
00:18:09.480 --> 00:18:13.570
that the do-rag wearing gentleman shot anybody.

325
00:18:14.550 --> 00:18:17.220
He just says, "I heard gunshots.

326
00:18:17.220 --> 00:18:21.210
I saw these two dark-skinned people on the sidewalk

327
00:18:21.210 --> 00:18:24.930
talking to a driver in a Cadillac."

328
00:18:24.930 --> 00:18:27.420
<v ->Right, and that they then separated.</v>

329
00:18:27.420 --> 00:18:30.720
The two men in the do-rags went in one direction

330
00:18:30.720 --> 00:18:33.000
and the car went in the other.

331
00:18:33.000 --> 00:18:34.320
And, you know, I didn't say,

332
00:18:34.320 --> 00:18:37.353
but the tire tracks didn't match the-

333
00:18:39.138 --> 00:18:41.970
<v J. Wolohojian>Were the casings at the crime scene</v>

334
00:18:41.970 --> 00:18:44.280
all from a single gun?

335
00:18:44.280 --> 00:18:45.180
<v Atty. Harwood>Were they all what?</v>

336
00:18:45.180 --> 00:18:46.413
<v ->From a single gun?</v>

337
00:18:47.460 --> 00:18:49.860
<v ->There's really no ballistics evidence on that.</v>

338
00:18:51.570 --> 00:18:53.460
I mean, the Commonwealth can say otherwise,

339
00:18:53.460 --> 00:18:58.143
but I looked at the stipulation and it's just.

340
00:18:59.040 --> 00:19:01.590
<v ->Were you gonna say more about how</v>

341
00:19:01.590 --> 00:19:06.377
or whether the Commonwealth properly proved intent?

342
00:19:08.415 --> 00:19:13.415
<v ->It was in the sense that the stolen item,</v>

343
00:19:13.620 --> 00:19:17.610
for example, the Movado watch of the victim is found

344
00:19:17.610 --> 00:19:21.960
on Mitchell Rivera, who is dismissed from the case

345
00:19:21.960 --> 00:19:26.040
as not being, I guess, present at the scene,

346
00:19:26.040 --> 00:19:30.630
and so there's no evidence that if you believe

347
00:19:30.630 --> 00:19:32.670
that the two men with the do-rags

348
00:19:32.670 --> 00:19:37.020
who fit the height description are the shooters, which seems

349
00:19:37.020 --> 00:19:40.650
to have been the case, there's no evidence that the person

350
00:19:40.650 --> 00:19:45.450
inside the car would've necessarily had any,

351
00:19:45.450 --> 00:19:49.560
shared any intent as to what they did outside the car,

352
00:19:49.560 --> 00:19:54.480
especially where you have stolen items in the possession

353
00:19:54.480 --> 00:19:57.870
of Mitchell Rivera, who's dismissed from the case.

354
00:19:57.870 --> 00:19:59.340
He's dismissed from the case,

355
00:19:59.340 --> 00:20:02.010
and yet there's a jury charge that says all

356
00:20:02.010 --> 00:20:05.160
of his actions can be attributed to the defendant.

357
00:20:05.160 --> 00:20:07.080
<v ->And forgive me, I should know this.</v>

358
00:20:07.080 --> 00:20:11.583
Is this a pre- or post-Brown bounty murder case?

359
00:20:15.330 --> 00:20:17.553
<v ->The crime is in 2002.</v>

360
00:20:20.243 --> 00:20:22.743
<v J. Gaziano>Okay, so it's pre-Brown probably.</v>

361
00:20:24.750 --> 00:20:27.003
<v ->So if there are no other questions,</v>

362
00:20:27.003 --> 00:20:29.193
I would rest on my brief, thank you.

363
00:20:30.155 --> 00:20:30.988
<v ->Okay, thank you.</v>

364
00:20:34.590 --> 00:20:35.823
Okay, Attorney Kennedy.

365
00:20:38.065 --> 00:20:39.390
<v ->So this was pre-Brown?</v>

366
00:20:39.390 --> 00:20:40.260
<v ->This is pre-Brown.</v>

367
00:20:40.260 --> 00:20:43.110
<v ->So the Commonwealth had to prove the participation</v>

368
00:20:43.110 --> 00:20:45.549
in the robbery, not malice.

369
00:20:45.549 --> 00:20:46.653
<v ->Exactly.</v>

370
00:20:48.300 --> 00:20:50.640
<v ->Anne Kennedy, Assistant District Attorney</v>

371
00:20:50.640 --> 00:20:52.410
for the Middle District.

372
00:20:52.410 --> 00:20:53.793
Good morning, Your Honors.

373
00:20:54.690 --> 00:20:55.710
This court should affirm

374
00:20:55.710 --> 00:20:57.900
the defendant's first degree murder conviction

375
00:20:57.900 --> 00:21:02.670
and the denial of the defendant's motion for new trial.

376
00:21:02.670 --> 00:21:04.440
When viewed in a light most favorable

377
00:21:04.440 --> 00:21:06.900
to the Commonwealth, not the defendant,

378
00:21:06.900 --> 00:21:10.290
the evidence and the reasonable inferences therefrom was

379
00:21:10.290 --> 00:21:12.480
sufficient to convict the defendant

380
00:21:12.480 --> 00:21:16.230
of felony murder while engaged in an armed robbery

381
00:21:16.230 --> 00:21:20.823
under a joint venture theory in the pre-Brown era.

382
00:21:21.660 --> 00:21:25.830
Additionally, the footwear print found at the scene

383
00:21:25.830 --> 00:21:27.210
of the crime when coupled

384
00:21:27.210 --> 00:21:31.230
with the other circumstantial evidence reasonably excludes

385
00:21:31.230 --> 00:21:34.080
the hypothesis that the print was impressed

386
00:21:34.080 --> 00:21:37.800
at any other time than the time of the crime.

387
00:21:37.800 --> 00:21:39.420
Given that information

388
00:21:39.420 --> 00:21:44.070
and that the evidence was sufficient to show

389
00:21:44.070 --> 00:21:47.730
that the defendant was a participant in the armed robbery

390
00:21:47.730 --> 00:21:50.640
with the intent to steal, and given all the evidence

391
00:21:50.640 --> 00:21:53.190
that this court has already laid out,

392
00:21:53.190 --> 00:21:54.330
the evidence was sufficient.

393
00:21:54.330 --> 00:21:58.740
<v ->Does it hurt that we don't know who's in the car</v>

394
00:21:58.740 --> 00:22:01.710
in the Commonwealth's chain of inferences?

395
00:22:01.710 --> 00:22:04.290
Because there's evidence at some point

396
00:22:04.290 --> 00:22:05.940
that all four of them were together

397
00:22:05.940 --> 00:22:07.950
in Fitchburg at the apartment.

398
00:22:07.950 --> 00:22:11.760
But between then and when they're pulled over by the trooper

399
00:22:11.760 --> 00:22:16.760
on route two, it's important that we don't know,

400
00:22:18.510 --> 00:22:21.780
whoever the occupant in the apartment saw

401
00:22:21.780 --> 00:22:24.000
the two men on the street with the do-rags

402
00:22:24.000 --> 00:22:26.340
speaking to whomever was in the car,

403
00:22:26.340 --> 00:22:30.210
we don't know that this defendant was one

404
00:22:30.210 --> 00:22:32.160
of the people in the car.

405
00:22:32.160 --> 00:22:34.397
It could very well be that they separate

406
00:22:34.397 --> 00:22:38.100
and at some point whoever's in the car picks him up,

407
00:22:38.100 --> 00:22:39.390
and happens to be with them

408
00:22:39.390 --> 00:22:41.280
when they're all pulled over.

409
00:22:41.280 --> 00:22:42.783
Is that a problem?

410
00:22:43.680 --> 00:22:46.200
<v ->The reason why I don't think it's a problem is</v>

411
00:22:46.200 --> 00:22:47.940
because you have to view the evidence

412
00:22:47.940 --> 00:22:50.460
in the light most favorable to the Commonwealth.

413
00:22:50.460 --> 00:22:53.790
And the question is, is whether it's a reasonable inference

414
00:22:53.790 --> 00:22:58.110
when the earliest we have him leaving the apartment

415
00:22:58.110 --> 00:23:00.900
with his friends is 8:00,

416
00:23:00.900 --> 00:23:03.780
and that this crime occurs at 8:38,

417
00:23:03.780 --> 00:23:08.010
and while he's with these people in the apartment,

418
00:23:08.010 --> 00:23:10.500
there are a series of calls made to the victim

419
00:23:10.500 --> 00:23:13.680
who is a known drug dealer,

420
00:23:13.680 --> 00:23:16.290
indicating that there's an intent there

421
00:23:16.290 --> 00:23:18.330
to meet up with the drug dealer.

422
00:23:18.330 --> 00:23:20.370
And given all that information,

423
00:23:20.370 --> 00:23:22.200
coupled with the fact that the-

424
00:23:22.200 --> 00:23:24.660
<v ->But may I ask, wasn't there specific evidence</v>

425
00:23:24.660 --> 00:23:28.050
about who was making those calls

426
00:23:28.050 --> 00:23:29.760
with the borrowed cell phone, I think?

427
00:23:29.760 --> 00:23:34.380
<v ->Well, there was evidence that that cell phone</v>

428
00:23:34.380 --> 00:23:36.750
that Mitchell Rivera had was the cell phone

429
00:23:36.750 --> 00:23:37.650
that was being used

430
00:23:37.650 --> 00:23:38.910
to make those calls.
<v J. Georges>Right.</v>

431
00:23:38.910 --> 00:23:40.620
<v ->There's no evidence as to who was.</v>

432
00:23:40.620 --> 00:23:42.960
I'm not trying to imply that the defendant was,

433
00:23:42.960 --> 00:23:45.690
I'm just trying to say that there was no evidence

434
00:23:45.690 --> 00:23:47.880
as to who actually was making the calls.

435
00:23:47.880 --> 00:23:49.470
It was just with that phone.

436
00:23:49.470 --> 00:23:51.120
<v J. Wendlandt>And who borrowed the phone?</v>

437
00:23:51.120 --> 00:23:52.140
<v ->Mitchell Rivera.</v>

438
00:23:52.140 --> 00:23:54.840
<v ->Okay, and tell me about the fact</v>

439
00:23:54.840 --> 00:23:57.870
that there was no phone found on the victim

440
00:23:57.870 --> 00:23:58.950
or anywhere near the victim.

441
00:23:58.950 --> 00:24:00.850
In fact, the girlfriend had the phone.

442
00:24:01.903 --> 00:24:05.370
If the Commonwealth's theory is, for example,

443
00:24:05.370 --> 00:24:09.630
I think it was, that this borrowed phone was used

444
00:24:09.630 --> 00:24:11.610
by the coventurers to reach out

445
00:24:11.610 --> 00:24:14.253
and set up the drug dealer, the victim,

446
00:24:16.271 --> 00:24:19.520
and the victim doesn't have his phone, isn't that a gap?

447
00:24:21.660 --> 00:24:23.515
<v ->With respect to that, with respect to the record</v>

448
00:24:23.515 --> 00:24:26.730
before the court, there was no evidence

449
00:24:26.730 --> 00:24:31.320
as to where the victim's phone was at the time of the crime.

450
00:24:31.320 --> 00:24:35.340
However, that being known, it was known

451
00:24:35.340 --> 00:24:38.880
that the victim went to Fitchburg to work,

452
00:24:38.880 --> 00:24:42.450
which was translated by a witness who knew him to mean

453
00:24:42.450 --> 00:24:44.580
that he was going to make drug deals there.

454
00:24:44.580 --> 00:24:47.610
<v ->You say there's nothing in the record before the court?</v>

455
00:24:47.610 --> 00:24:50.160
I mean, I'm not making it up.

456
00:24:50.160 --> 00:24:53.520
I thought I read somewhere that it came from the girlfriend.

457
00:24:53.520 --> 00:24:55.140
<v ->Yes, it came from the girlfriend.</v>

458
00:24:55.140 --> 00:24:57.390
What I'm trying to say is whether

459
00:24:57.390 --> 00:24:59.910
or not the victim had the phone on him,

460
00:24:59.910 --> 00:25:03.000
because he went to the hospital.

461
00:25:03.000 --> 00:25:05.073
It might've been on his person.

462
00:25:05.940 --> 00:25:07.650
That's what I'm trying to say is-

463
00:25:07.650 --> 00:25:08.823
<v J. Wendlandt>I see, so it's possible</v>

464
00:25:08.823 --> 00:25:10.920
that the victim had his phone.

465
00:25:10.920 --> 00:25:11.753
<v ->Exactly.</v>

466
00:25:13.358 --> 00:25:14.730
When we were discussing it, my thought is

467
00:25:14.730 --> 00:25:16.500
that the victim probably had his phone,

468
00:25:16.500 --> 00:25:21.500
and when they gave the victim's personal effects

469
00:25:23.130 --> 00:25:26.280
to his girlfriend, the phone might've been

470
00:25:26.280 --> 00:25:28.080
with the victim at the time.

471
00:25:28.080 --> 00:25:29.817
<v ->Can you tell me about the McCarthy motion</v>

472
00:25:29.817 --> 00:25:32.100
and the granting of it?

473
00:25:32.100 --> 00:25:32.973
<v ->Certainly.</v>

474
00:25:33.870 --> 00:25:37.260
What happened in this case is Judge Tucker,

475
00:25:37.260 --> 00:25:39.840
who was also the judge in this case,

476
00:25:39.840 --> 00:25:42.390
granted the McCarthy motion, basically

477
00:25:42.390 --> 00:25:46.140
because Mitchell Rivera's footprint was not one

478
00:25:46.140 --> 00:25:50.940
of the footprints that was found at the scene, or a match.

479
00:25:50.940 --> 00:25:52.890
I shouldn't say the actual footprint,

480
00:25:52.890 --> 00:25:54.570
because we know that it wasn't

481
00:25:54.570 --> 00:25:57.720
an individualized footprint identification.

482
00:25:57.720 --> 00:26:00.270
It was a classic footprint identification,

483
00:26:00.270 --> 00:26:03.753
and Mitchell Rivera's footprint was not at the scene,

484
00:26:05.400 --> 00:26:06.720
or anything that matched

485
00:26:06.720 --> 00:26:08.820
his footprint was not found at the scene.

486
00:26:08.820 --> 00:26:13.820
It was Giovanni Rivera's, his brother's print was there,

487
00:26:14.400 --> 00:26:16.350
Ingram's print was there,

488
00:26:16.350 --> 00:26:18.990
as well as Tyrone Strong's print was there.

489
00:26:18.990 --> 00:26:21.690
<v ->And so despite all that circumstantial evidence</v>

490
00:26:21.690 --> 00:26:25.833
that Mitchell placed the call, borrowed the phone,

491
00:26:27.360 --> 00:26:30.933
was with them until 8:00 PM at least,

492
00:26:32.790 --> 00:26:35.940
you're saying the McCarthy motion was granted

493
00:26:35.940 --> 00:26:38.970
because all that evidence lacked probable cause

494
00:26:38.970 --> 00:26:39.960
unlike the footprints?

495
00:26:39.960 --> 00:26:43.110
<v ->That's what the judge decided, yes,</v>

496
00:26:43.110 --> 00:26:45.690
and the judge did decide that,

497
00:26:45.690 --> 00:26:49.500
which is an interesting twist as well, that he did believe

498
00:26:49.500 --> 00:26:52.940
that Mitchell Rivera was a joint venturer

499
00:26:55.290 --> 00:26:56.490
in the armed robbery.

500
00:26:56.490 --> 00:27:00.780
He was not joint venturer when it came

501
00:27:00.780 --> 00:27:05.127
to ultimately what happened with the victim

502
00:27:05.127 --> 00:27:06.963
and the defendants in this case.

503
00:27:08.040 --> 00:27:09.960
<v ->Counsel, can I just go back again,</v>

504
00:27:09.960 --> 00:27:13.230
because Justice Wolohojian just pointed me out

505
00:27:13.230 --> 00:27:15.903
to what was my issue about the car.

506
00:27:17.719 --> 00:27:21.060
What she reminded me of was that there was testimony

507
00:27:21.060 --> 00:27:26.060
from the trooper where he was specifically asked whether

508
00:27:26.520 --> 00:27:30.580
or not this defendant ever said if he got out of the car

509
00:27:31.500 --> 00:27:32.850
at any point that night.

510
00:27:32.850 --> 00:27:33.683
<v Atty. Kennedy>Yes.</v>

511
00:27:33.683 --> 00:27:35.940
<v ->And his answer was unresponsive.</v>

512
00:27:35.940 --> 00:27:39.393
His answer was, "I don't think he ever got out of the car."

513
00:27:39.393 --> 00:27:40.890
<v Atty. Kennedy>Yes.</v>
<v ->It wasn't whether</v>

514
00:27:40.890 --> 00:27:43.380
or not the defendant ever indicated

515
00:27:43.380 --> 00:27:46.380
and made an affirmative statement that I didn't get out.

516
00:27:46.380 --> 00:27:49.860
So again I go back now to the same question

517
00:27:49.860 --> 00:27:53.220
about how do we know, is this enough,

518
00:27:53.220 --> 00:27:56.880
even in the light most favorable to the Commonwealth

519
00:27:56.880 --> 00:28:01.200
that this defendant was in the car at the time

520
00:28:01.200 --> 00:28:05.580
of the murder, and not potentially picked up

521
00:28:05.580 --> 00:28:07.470
between when the murder happened

522
00:28:07.470 --> 00:28:10.860
and when they got stopped on Route 2?

523
00:28:10.860 --> 00:28:15.860
<v ->Because the footwear print that was found at the scene,</v>

524
00:28:16.530 --> 00:28:19.800
the footwear print that is the same.

525
00:28:19.800 --> 00:28:23.100
It was a sneaker, it was the same brand,

526
00:28:23.100 --> 00:28:25.200
it was the same style,

527
00:28:25.200 --> 00:28:29.130
and it was the same size as the defendant's shoe.

528
00:28:29.130 --> 00:28:32.006
Couple that with, as Your Honor already pointed out,

529
00:28:32.006 --> 00:28:34.980
that there was sand in his shoe.

530
00:28:34.980 --> 00:28:37.560
Then you add, as Justice Wendlandt pointed out,

531
00:28:37.560 --> 00:28:40.260
that there were two more people in that car

532
00:28:40.260 --> 00:28:42.240
with the same footprint.

533
00:28:42.240 --> 00:28:45.840
The issue is he was there.

534
00:28:45.840 --> 00:28:49.860
The question is between 8:00 and 8:38,

535
00:28:49.860 --> 00:28:53.070
is that a sufficiently short amount of time

536
00:28:53.070 --> 00:28:55.680
for the jury to reasonably infer

537
00:28:55.680 --> 00:28:58.800
that that print was made at the time of the crime,

538
00:28:58.800 --> 00:29:00.960
and the Commonwealth suggests that when viewed

539
00:29:00.960 --> 00:29:04.562
in the light most favorable to the Commonwealth, it is.

540
00:29:04.562 --> 00:29:05.760
<v J. Georges>Okay, thank you.</v>

541
00:29:05.760 --> 00:29:07.080
<v ->Does that answer your question?</v>

542
00:29:07.080 --> 00:29:07.950
<v J. Georges>It does, thank you.</v>

543
00:29:07.950 --> 00:29:08.783
<v ->Thank you.</v>

544
00:29:08.783 --> 00:29:09.690
<v J. Gaziano>And the evidence</v>

545
00:29:09.690 --> 00:29:12.393
of shared intent to commit the robbery?

546
00:29:13.352 --> 00:29:15.930
<v ->I would like to discuss that.</v>

547
00:29:15.930 --> 00:29:18.450
I know my brother does not raise that issue in the brief,

548
00:29:18.450 --> 00:29:19.320
but I know this court-

549
00:29:19.320 --> 00:29:20.340
<v J. Gaziano>With a 33E issue?</v>

550
00:29:20.340 --> 00:29:22.710
<v ->Yes, I was just gonna say, I know this court pursuant</v>

551
00:29:22.710 --> 00:29:26.190
to its authority under 33E may address it,

552
00:29:26.190 --> 00:29:29.490
and I think you need to look at not only what happened

553
00:29:29.490 --> 00:29:32.280
before, but also what happened after.

554
00:29:32.280 --> 00:29:35.550
When the police were pulling this car over,

555
00:29:35.550 --> 00:29:40.550
and they pulled this car over within a half hour,

556
00:29:41.340 --> 00:29:46.340
45 minutes of the crime, they were ordering the occupants

557
00:29:47.820 --> 00:29:51.330
of the Cadillac to comply because they issued a felony stop.

558
00:29:51.330 --> 00:29:53.133
They were asking them to comply,

559
00:29:54.360 --> 00:29:58.080
roll down the window, put the keys on the hood.

560
00:29:58.080 --> 00:30:00.810
It took them three to four minutes to do that.

561
00:30:00.810 --> 00:30:02.250
In that three to four minutes,

562
00:30:02.250 --> 00:30:05.640
they see the two men in the backseat messing around

563
00:30:05.640 --> 00:30:08.040
with the backseat, and they, well,

564
00:30:08.040 --> 00:30:09.150
I shouldn't say they saw them

565
00:30:09.150 --> 00:30:10.800
actually messing around with the backseat.

566
00:30:10.800 --> 00:30:12.060
They were ducking, they looked

567
00:30:12.060 --> 00:30:15.030
like they were pulling things, they were doing something.

568
00:30:15.030 --> 00:30:20.030
They go, the defendant is sitting behind the driver.

569
00:30:20.100 --> 00:30:23.640
That seat is askew, and what is under that seat?

570
00:30:23.640 --> 00:30:27.900
Two loaded firearms, 53 grams of cocaine,

571
00:30:27.900 --> 00:30:32.520
and within the car are all the items,

572
00:30:32.520 --> 00:30:35.730
specifically unique items that the victim owned.

573
00:30:35.730 --> 00:30:36.563
<v ->It was the inference</v>

574
00:30:36.563 --> 00:30:38.550
that the cocaine was stolen from the victim?

575
00:30:38.550 --> 00:30:42.000
<v ->Yes, there was no cocaine found in the Acura.</v>

576
00:30:42.000 --> 00:30:45.510
He was going to Fitchburg, as we know,

577
00:30:45.510 --> 00:30:48.840
to conduct drug deals, and there was no cocaine

578
00:30:48.840 --> 00:30:50.970
or drugs found in the Acura,

579
00:30:50.970 --> 00:30:53.070
and there were no drugs in the victim's system

580
00:30:53.070 --> 00:30:55.998
when the toxicology report came back as well.

581
00:30:55.998 --> 00:30:57.990
<v J. Wendlandt>Was the cocaine and the firearms,</v>

582
00:30:57.990 --> 00:30:59.250
were they under the seat

583
00:30:59.250 --> 00:31:03.420
that the defendant was using or Mitchell's seat?

584
00:31:03.420 --> 00:31:05.970
<v ->It's my understanding they were under the seat</v>

585
00:31:05.970 --> 00:31:07.860
that the defendant was using, the driver's side.

586
00:31:07.860 --> 00:31:09.390
I could be incorrect in that,

587
00:31:09.390 --> 00:31:11.120
but my understanding was that that's where they were.

588
00:31:11.120 --> 00:31:13.710
<v ->If you're incorrect, does it matter?</v>

589
00:31:13.710 --> 00:31:14.910
<v Atty. Kennedy>No.</v>
<v ->Okay.</v>

590
00:31:14.910 --> 00:31:16.860
<v ->It doesn't because they saw the two men</v>

591
00:31:16.860 --> 00:31:21.780
in the backseat basically hiding, you can reasonably infer

592
00:31:21.780 --> 00:31:25.023
that they were hiding these things from the police.

593
00:31:26.160 --> 00:31:27.870
<v J. Wolohojian>Can you talk about the,</v>

594
00:31:27.870 --> 00:31:29.760
I'll call it the ballistics evidence

595
00:31:29.760 --> 00:31:33.630
that clarify the link between-

596
00:31:33.630 --> 00:31:36.204
<v ->They found numerous casings at the scene.</v>

597
00:31:36.204 --> 00:31:40.520
The casings that they found at the scene, some of them were,

598
00:31:40.520 --> 00:31:43.842
and I apologize if I don't pronounce this correctly,

599
00:31:43.842 --> 00:31:46.320
Fiocchi brand or Fiocchi, I'm not sure which way

600
00:31:46.320 --> 00:31:48.900
to pronounce it, they found those.

601
00:31:48.900 --> 00:31:51.930
The firearms that, two of the firearms

602
00:31:51.930 --> 00:31:56.730
that they found in the car that were loaded had

603
00:31:56.730 --> 00:32:01.650
that same brand of ammunition, suggesting again,

604
00:32:01.650 --> 00:32:06.300
another connection to this defendant and the crime.

605
00:32:06.300 --> 00:32:10.110
<v ->But of the nine millimeter casings at the scene,</v>

606
00:32:10.110 --> 00:32:12.990
there's no evidence that two guns were involved.

607
00:32:12.990 --> 00:32:15.990
Alls we know there were just seven casings.

608
00:32:15.990 --> 00:32:16.823
<v Atty. Kennedy>Yes.</v>

609
00:32:16.823 --> 00:32:17.757
<v ->And well, we don't know.</v>

610
00:32:17.757 --> 00:32:20.640
<v ->And there there's no, none of the casings</v>

611
00:32:20.640 --> 00:32:23.550
at the scene connected specifically

612
00:32:23.550 --> 00:32:24.930
to the guns that were found.

613
00:32:24.930 --> 00:32:26.236
<v J. Gaziano>I was just curious as to whether</v>

614
00:32:26.236 --> 00:32:28.740
or not there were two shooters or one shooter.

615
00:32:28.740 --> 00:32:31.560
<v ->There's, I can't-</v>

616
00:32:31.560 --> 00:32:32.393
<v J. Gaziano>We don't know.</v>

617
00:32:32.393 --> 00:32:33.363
<v ->No, we don't.</v>

618
00:32:35.340 --> 00:32:38.250
I don't wanna speculate on that, but I don't think,

619
00:32:38.250 --> 00:32:40.110
my brother counsel has been saying

620
00:32:40.110 --> 00:32:42.900
that the jury would've had to have speculated.

621
00:32:42.900 --> 00:32:45.630
The Commonwealth's position is this wasn't speculation,

622
00:32:45.630 --> 00:32:47.343
these were reasonable inferences.

623
00:32:48.900 --> 00:32:51.990
First degree murder, felony murder can be found

624
00:32:51.990 --> 00:32:53.580
through circumstantial evidence,

625
00:32:53.580 --> 00:32:56.190
and this is the case where it was.

626
00:32:56.190 --> 00:32:58.260
If the court has no further questions,

627
00:32:58.260 --> 00:33:00.663
the Commonwealth will rest on its brief.