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SJC-13475, Commonwealth v. James Bellard.
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Okay, Attorney Osborne.
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Good morning, Your Honors.
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My name is David Osborne.
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I represent the appellant James Bellard in this case.
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Mr. Bellard was convicted of witness
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intimidation under a bribery theory,
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which at the time was Chapter 268, Section 13-1B.
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You mean intimidation of a witness
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and the means being equivalent to bribery?
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Correct, correct.
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And I recognize that the ball keeps on moving on
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what the thing of value is?
Yes.
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But having said that, could the defendant saying
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to the victim here, "Look, this is just
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"how you can get back to normalcy.
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"This is how you can get everything you want,
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"we have to leave you alone.
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"Police start knocking at the door.
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"Here's the plan, just do this."
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Could that be a thing of value?
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No, I don't think that it could be, Your Honor,
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you haven't articulated in that scenario,
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which I think is the Commonwealth's position
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in this case.
That's where I got it.
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Yeah. (laughs)
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I don't think it works, even when you
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articulate it as well as you've done.
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The problem with it is that there's no,
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well, there's several promises with it.
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First of all, there's no promise of a thing of value.
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It may be that Mr. Bellard, and this is,
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I'm saying this for argument's sake,
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it may be that Mr. Bellard did intend for her to,
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did intend to interfere with his criminal
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prosecution by encouraging his fiancé
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not to cooperate with the authorities.
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That may be the case arguably,
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it's not my position, but that arguably is the case.
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The problem is, you can't under Massachusetts law
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be guilty of witness intimidation
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by this theory without more.
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There has to be an illegal means there.
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And the illegal means in this case is the offer
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of a thing of value, the promise of a thing of value.
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Now, the Commonwealth says, the thing
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of value is, is that Mr. Bellard,
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as you've articulated, assured,
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or promised his fiancé, that everything would
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go back to normal and their lives would be
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as it was before the case happened.
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Now, there's a few problems with that,
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as I said, first, there's nothing
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in the record that supports the position
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that that's a promise of some sort.
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He did say, what the Commonwealth says is
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that position, that description is based on four facts.
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And I will point out, by the way, Your Honors,
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that the Commonwealth argued other facts
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at the appeals court, which it does not argue here.
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So I hope that means that the Commonwealth understands
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that those facts were not supported by the record,
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Commonwealth said in the appeals court that-
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Can I ask what-
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Go ahead.
I'm sorry.
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Can just say what is a,
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are you saying that what he said
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was not a thing of value for the witness?
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Right.
It was not a thing of-
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Well, it wasn't, it's two things.
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It wasn't a promise.
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Well, it was an offer though, wasn't it, no?
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It wasn't, he didn't make any offer.
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And that's what I was going to talk about,
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but there is another problem as you mentioned it,
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which is the thing of value.
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There's no evidence that this thing,
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that the Commonwealth has described as the promise,
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even if it was a promise, and I do want to get to that,
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even if it was a promise, there's no evidence in the record
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that it had any value to the fiancé.
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Does it have to be monetary value?
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No, it does not need to be monetary value, Your Honor,
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but I think when something is not inherently valuable,
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if it's not cash, it's not a car or jewelry
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or something like that, if there's no inherent
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value to it-
Intrinsic versus extrinsic.
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So, like, if I'm a defendant on a case
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and you know, and Mr. Keneally my cohort
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is gonna rat me out, and I call him
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and say, "Hey, I'll be your best friend for the next year."
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Yeah.
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"If you drop the charges."
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Yes.
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That potentially could be
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in that sense
That would be
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a thing of value.
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That's correct,
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but the Rowano case-
As much as being
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my friend would, but that'd
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Yes.
be a thing of value.
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If he value your friendship.
Right.
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I won't pry into that,
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but that's something like the Rowano case
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where the court said in sort of an offhand comment
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that that would have been, if the Commonwealth
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had brought a bribery type theory of the case-
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It need not be, "I'll take you to the Red Sox game.
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I'll buy you"-
But there has to be some,
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but there has to, yes, but there has to be
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something in the record that gives you
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some confidence that that is something desired.
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You don't think she wanted
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Yeah, I-
things to get back
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to normal, wasn't that her desire?
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Yeah.
Wasn't that-
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Well, that's what the Commonwealth says.
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If you look at this record and all we have,
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Your Honors, is this record, there's nothing else.
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There's no other evidence.
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There's no disputed facts.
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There's no-
Audio tape from the jail.
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Pardon, yes.
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That's how you know.
It's two conversations,
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basically the same, but it's a 27 minute conversation.
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There's no dispute about what was said.
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[Chief Justice Budd] Mm-hm.
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And I encourage Your Honors to read this
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from start to finish as you may have already done,
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because you need to understand
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the context of this conversation,
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which we can chat about in a moment if you want.
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But what she articulates throughout this conversation
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is, "I want this harassment to stop."
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She never says, "I want us to go back to the way we were."
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She never says, "I miss you.
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I need you to help us take care of our children."
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There's not a, it's quite striking,
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but there's not a single word.
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But that's presuming that the promise
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is that we're going to get back together.
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If you separate away from that,
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and I'm starting from reverse order,
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that what you can hear is palpable,
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is that she's tired of being deluged
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Mm-hmm.
With, "Where are you,
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what are you gonna do", prosecution, law enforcement,
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and therefore, not necessarily that you're going
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to get back together, but I promise you that that anxiety
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and that angst and that frustration of people
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keep coming after you to participate will go away.
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How is that, I guess that's what I'm struggling with.
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But it's the plain language of the statute.
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It requires the promise of a thing of value.
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And clearly-
But why isn't
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that a thing of value?
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You're saying monetary or otherwise,
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why can't peace of mind be something
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that is incredibly valuable to someone?
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It can be valuable,
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but he's not promising something of value to her.
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He's not promising her that the case is go,
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the harassment is going to stop by something that he
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is able to give her in exchange for her non-cooperation.
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And that gets us to another question about
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whether or not there needs to be a quid pro quo,
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whether this needs to be an agreement or the offer
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of a bargain in which he will do this, if she does that.
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That's a second-
No, but would you finish
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whatever you were about to say?
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Why is this not a thing of value for her?
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Yes, it wasn't a thing of value to her
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because she never articulates anywhere
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that she wants to go back to her life with Mr. Bellard
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as it was.
But she did articulate
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the fact that she wants this harassment to stop.
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Correct.
And he promises that
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this harassment will stop.
How can that be a,
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he can't promise something that he can't deliver.
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So that's different though.
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The Commonwealth characterizes as a promise,
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but it's not.
But he can have
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an understanding that in this prosecution,
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without her cooperation, the case goes away and it does.
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Well-
I mean,
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I don't know what other evidence they might have of it,
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but I mean, the way that this was split up,
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he was acquitted on part of it.
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And then the other part was this part
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and without her cooperation, wouldn't the case
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be dismissed with want of prosecution?
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That has nothing to do with a
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promise of a thing of value to her.
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She never expresses, by the way, any view about
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how she wants the case to resolve.
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She doesn't say, I want you-
She doesn't,
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but I guess what I'm getting frustrated with
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is you're just not answering the question.
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Well, I'm trying to.
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If the prosecution and her participation
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in the prosecution is the part
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that everyone's coming to her to participate in,
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if the index prosecution goes away,
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no one's coming to her to participate.
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Right.
So it's symbiotic.
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So if she's expressing frustration and all the other
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emotional feelings that she's feeling,
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and she wants that to go away,
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Right.
And somebody tells her
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if the index prosecution goes away
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by you not participating,
Right.
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how is that not a promise related
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to a thing of value to her?
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Because Mr. Bellard has no control
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over whether the case goes away.
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All he's doing, I've struggled, by the way,
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Your Honor, I know that the panel
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may be struggling with this as well,
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I have struggled with how to articulate the problem.
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When I first read this transcript.
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I said, "Where is the crime?
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"Where is this bribe?"
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This so-called bribe.
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I've struggled to articulate it.
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I've attempted it and I know I'm falling short.
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But the reason that it's, I'll try again.
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The the reason that this is not the promise
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of a thing of value is that Mr. Bellard is not saying,
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"I will do this in exchange for something else."
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All he's doing is saying what,
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he's telling her what the reality is, right.
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So if she says, "I don't wanna cooperate.
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"I want nothing to do with this case.
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"I want the police to leave me alone.
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"I want the DA to leave me alone."
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And his response is, "Well, just keep doing that.
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"Just ignore the police, don't answer the door."
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This case is gonna be heard in a couple of weeks.
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But you can,
That's all he says.
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you can willfully do it indirectly, and-
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You can do it indirectly,
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correct.
You can do it indirectly.
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And I know you wanna get to the quid pro quo,
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that's actually probably a harder argument
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for you than whether or not this is a thing-
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I'm happy to stay with this part of the argument.
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It's an easier, a less difficult argument for you.
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So I sort of would like to linger on this
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for another minute.
I'm happy to do that.
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So you can do it indirectly.
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Yeah.
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And I know she says DTSS
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but you know, for a parent,
Yeah.
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the biggest thing is your kids.
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Yeah.
And she's clearly
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distressed about
Absolutely.
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DCF
Absolutely.
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and clearly having DCF not show up anymore,
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or not the threat of DCF or not the police
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throwing the DCF thing around if they were,
261
00:11:07.740 --> 00:11:12.330
that would be subjectively a thing of value to her.
262
00:11:12.330 --> 00:11:13.230
Absolutely.
263
00:11:13.230 --> 00:11:14.250
That was driving her.
264
00:11:14.250 --> 00:11:16.597
What the Commonwealth said in the appeals court is,
265
00:11:16.597 --> 00:11:17.790
"Well, he promised her that he
266
00:11:17.790 --> 00:11:21.330
would help with the DCF matter."
267
00:11:21.330 --> 00:11:22.980
And of course, he never did that.
268
00:11:22.980 --> 00:11:24.630
And there's a reason for that.
269
00:11:24.630 --> 00:11:25.950
He had no ability to control
270
00:11:25.950 --> 00:11:27.630
what happened with the DCF case.
271
00:11:27.630 --> 00:11:31.837
All he said was in this transcript is,
272
00:11:31.837 --> 00:11:32.945
"Don't worry about it.
273
00:11:32.945 --> 00:11:35.257
"They're just making a lot of noise.
274
00:11:35.257 --> 00:11:37.830
"They're just trying to intimidate you."
275
00:11:37.830 --> 00:11:41.070
These are just words, these are attempts to persuade.
276
00:11:41.070 --> 00:11:43.620
They are not the offer of a thing of value
277
00:11:43.620 --> 00:11:47.820
that I will give you in exchange for your not cooperating.
278
00:11:47.820 --> 00:11:49.710
A crime in federal court.
279
00:11:49.710 --> 00:11:51.810
It could, depending on how they brought it.
280
00:11:51.810 --> 00:11:54.180
And yes, we-
Corruptly
281
00:11:54.180 --> 00:11:55.740
persuade.
Corrupt persuasion, yes.
282
00:11:55.740 --> 00:11:58.260
I think, and that's the problem here.
283
00:11:58.260 --> 00:12:00.060
I think everybody assumes that there's some,
284
00:12:00.060 --> 00:12:02.820
if somebody says something to encourage
285
00:12:02.820 --> 00:12:05.760
another person not to testify, that may be a crime
286
00:12:05.760 --> 00:12:07.710
that the legislature should address.
287
00:12:07.710 --> 00:12:10.110
But it is not currently a crime
288
00:12:10.110 --> 00:12:11.670
under Massachusetts law.
289
00:12:11.670 --> 00:12:16.670
Something like that is a crime under federal law.
290
00:12:16.830 --> 00:12:19.350
And could this potentially, I don't think
291
00:12:19.350 --> 00:12:22.920
Mr. Bellard could have been prosecuted under federal law,
292
00:12:22.920 --> 00:12:25.260
but there's at least an argument there.
293
00:12:25.260 --> 00:12:27.150
Because if you say-
294
00:12:27.150 --> 00:12:30.933
Not to take you too much off your script,
295
00:12:33.090 --> 00:12:36.600
wouldn't we have all sorts of First Amendment
296
00:12:36.600 --> 00:12:40.927
speech problems with a law that says,
297
00:12:40.927 --> 00:12:42.600
"Stop talking to the police",
298
00:12:42.600 --> 00:12:44.100
that is
Yeah.
299
00:12:44.100 --> 00:12:46.410
a witness intimidation charge?
300
00:12:46.410 --> 00:12:49.650
I think that's a good point, Your Honor.
301
00:12:49.650 --> 00:12:53.160
I think the federal statute says corruptly,
302
00:12:53.160 --> 00:12:56.340
so I think that might be how they get around that.
303
00:12:56.340 --> 00:12:59.010
Right, I think that you must have to read something
304
00:12:59.010 --> 00:13:00.304
into that corruptly.
Yeah.
305
00:13:00.304 --> 00:13:01.290
You'd have to, yes.
306
00:13:01.290 --> 00:13:02.700
And there's a split in the circuits
307
00:13:02.700 --> 00:13:05.370
about what exactly corruptly means, but-
308
00:13:05.370 --> 00:13:06.690
So saying to the witness,
309
00:13:06.690 --> 00:13:08.760
potential witness, be a stand-up guy.
310
00:13:08.760 --> 00:13:10.080
Yeah.
311
00:13:10.080 --> 00:13:11.850
That would-
No, yeah, exactly,
312
00:13:11.850 --> 00:13:12.683
Your Honor.
that's not a crime.
313
00:13:12.683 --> 00:13:15.600
If you just say, "Hey, you know, don't testify.
314
00:13:15.600 --> 00:13:17.910
You know, this is all gonna go away in a couple of weeks",
315
00:13:17.910 --> 00:13:20.220
which is exactly what Mr. Bellard did in this case,
316
00:13:20.220 --> 00:13:22.270
repeatedly, over and over and over again.
317
00:13:23.760 --> 00:13:26.520
That's not a crime unless he's holding out something that,
318
00:13:26.520 --> 00:13:29.820
because remember what the legislature is trying to do,
319
00:13:29.820 --> 00:13:32.040
and the Commonwealth agrees with this,
320
00:13:32.040 --> 00:13:35.538
the intent of this is to prevent undue influence
321
00:13:35.538 --> 00:13:40.538
on a witness by intimidating them or by harassing them,
322
00:13:42.330 --> 00:13:45.900
or by making misrepresentations to them,
323
00:13:45.900 --> 00:13:49.890
or by bribing them, or however you want
324
00:13:49.890 --> 00:13:52.920
to describe this particular prong of the statute.
325
00:13:52.920 --> 00:13:54.750
There has this very specific means.
326
00:13:54.750 --> 00:13:58.290
It not just that you're encouraging somebody.
327
00:13:58.290 --> 00:14:00.060
The legislature could have said that,
328
00:14:00.060 --> 00:14:02.310
and there might be First Amendment issues with that,
329
00:14:02.310 --> 00:14:04.020
but they didn't do that.
330
00:14:04.020 --> 00:14:09.010
So you have to fit Mr. Bellard's conduct into this statute.
331
00:14:11.370 --> 00:14:13.740
And there's a huge hole here,
332
00:14:13.740 --> 00:14:16.353
which is that you don't have a thing of value,
333
00:14:18.120 --> 00:14:20.550
even though there's something of value to her,
334
00:14:20.550 --> 00:14:22.222
clearly,
That's, isn't that-
335
00:14:22.222 --> 00:14:25.840
But it's not something that he can promise her
336
00:14:26.730 --> 00:14:30.897
because it is a-
337
00:14:30.897 --> 00:14:32.220
But doesn't he make it appear
338
00:14:32.220 --> 00:14:33.720
to be that he could promise it?
339
00:14:33.720 --> 00:14:34.770
No, I don't think he did
340
00:14:34.770 --> 00:14:36.107
Your Honor.
As you said,
341
00:14:36.107 --> 00:14:39.030
if you ignore them, then this is what's gonna happen.
342
00:14:39.030 --> 00:14:39.900
He's advising her,
343
00:14:39.900 --> 00:14:41.190
I guess you would say.
But remember,
344
00:14:41.190 --> 00:14:43.260
she was already doing this.
345
00:14:43.260 --> 00:14:45.877
She had told Mr. Bellard-
He says,
346
00:14:45.877 --> 00:14:46.860
"Don't answer the phone,
347
00:14:46.860 --> 00:14:48.240
don't answer-
Yeah, he said,
348
00:14:48.240 --> 00:14:51.870
and the reason is because she says, "They're harassing me."
349
00:14:51.870 --> 00:14:54.810
And she makes it very clear during this conversation
350
00:14:54.810 --> 00:14:56.010
she's not cooperating.
351
00:14:56.010 --> 00:14:58.320
She's wants nothing to do with this case.
352
00:14:58.320 --> 00:15:00.180
She wants it to be done.
353
00:15:00.180 --> 00:15:02.520
And she doesn't want the police coming to her door.
354
00:15:02.520 --> 00:15:04.110
She doesn't want the DA coming to her door.
355
00:15:04.110 --> 00:15:06.960
And so he says, "Well, don't answer the door."
356
00:15:06.960 --> 00:15:10.920
Now, there's nothing more clever about his advice than that.
357
00:15:10.920 --> 00:15:12.817
It's just, "Keep doing what you're doing.
358
00:15:12.817 --> 00:15:15.081
"My case is coming up in two weeks."
359
00:15:15.081 --> 00:15:19.710
Well, isn't there a concern
360
00:15:19.710 --> 00:15:21.720
that she might change her mind?
361
00:15:21.720 --> 00:15:26.681
You make a big deal in the brief that there's nothing
362
00:15:26.681 --> 00:15:30.510
to do willfully
Right.
363
00:15:30.510 --> 00:15:33.000
to get her to not testify.
364
00:15:33.000 --> 00:15:35.550
There's no need for quid pro quo
365
00:15:35.550 --> 00:15:38.250
'cause she's not going anywhere near the witness stand.
366
00:15:38.250 --> 00:15:40.080
Yeah, but that's-
Well, we ought to
367
00:15:40.080 --> 00:15:42.780
all know that it's not really
368
00:15:42.780 --> 00:15:44.850
the last two weeks out that matters.
369
00:15:44.850 --> 00:15:46.260
Yeah.
It's usually,
370
00:15:46.260 --> 00:15:49.203
you know, a day out or even a minute out that matters.
371
00:15:50.280 --> 00:15:51.113
And that's true, Your Honor,
372
00:15:51.113 --> 00:15:53.400
and the Commonwealth says that in its brief.
373
00:15:53.400 --> 00:15:54.870
The problem is that,
374
00:15:54.870 --> 00:15:56.970
I'm not arguing that that's the only evidence
375
00:15:56.970 --> 00:16:00.120
that this is not a promise of a thing of value.
376
00:16:00.120 --> 00:16:05.120
I'm just saying that when you look at this conversation
377
00:16:05.467 --> 00:16:08.310
in its whole, in its entirety, not these little snippets
378
00:16:08.310 --> 00:16:11.017
that the Commonwealth plucks out and says,
379
00:16:11.017 --> 00:16:12.930
"Well, he said he cared about his family."
380
00:16:12.930 --> 00:16:15.190
Oh my goodness, can you imagine a man
381
00:16:16.290 --> 00:16:17.790
says that he cares about his family?
382
00:16:17.790 --> 00:16:19.170
That's a bribe.
383
00:16:19.170 --> 00:16:22.563
Or that he says that they're still getting married.
384
00:16:23.430 --> 00:16:25.350
Well, he said that before this conversation
385
00:16:25.350 --> 00:16:27.810
about the criminal case ever came up.
386
00:16:27.810 --> 00:16:29.670
And that was just, that wasn't a promise of marriage
387
00:16:29.670 --> 00:16:31.110
as the Commonwealth concedes.
388
00:16:31.110 --> 00:16:32.490
It was just-
This is a light
389
00:16:32.490 --> 00:16:34.260
most favorable, right?
390
00:16:34.260 --> 00:16:35.430
It is light most favorable.
391
00:16:35.430 --> 00:16:39.420
But there still has to be evidence beyond
392
00:16:39.420 --> 00:16:42.210
a reasonable doubt, even with taking the inferences
393
00:16:42.210 --> 00:16:44.310
in the light most favorable to the Commonwealth.
394
00:16:44.310 --> 00:16:48.006
So the Commonwealth packages up this promise,
395
00:16:48.006 --> 00:16:51.877
but, and sure, we can speculate and say,
396
00:16:51.877 --> 00:16:55.897
"Well, maybe he's going to,
397
00:16:55.897 --> 00:16:58.800
"he's gonna confront a fiancé who wants to testify,"
398
00:16:58.800 --> 00:17:00.450
although there's nothing in this record
399
00:17:00.450 --> 00:17:02.820
that would give you any reason to be concerned.
400
00:17:02.820 --> 00:17:05.160
She's making it crystal clear she does not want
401
00:17:05.160 --> 00:17:07.383
to have anything to do with this case, and-
402
00:17:11.129 --> 00:17:12.833
He promised to be with her?
403
00:17:14.100 --> 00:17:17.857
No, there's, well, what he says is,
404
00:17:17.857 --> 00:17:19.110
"You wouldn't be going through this sh,"
405
00:17:19.110 --> 00:17:20.880
this is the quote, "You wouldn't be going
406
00:17:20.880 --> 00:17:22.770
through this shit if I was out there."
407
00:17:22.770 --> 00:17:23.790
That's the quote.
408
00:17:23.790 --> 00:17:28.020
He doesn't say he's going to come back and stand by her
409
00:17:28.020 --> 00:17:29.940
even if we believe that that was something she wanted.
410
00:17:29.940 --> 00:17:32.040
And by the way, this is a domestic abuse case.
411
00:17:32.040 --> 00:17:33.903
Maybe it's not something she wants.
412
00:17:35.100 --> 00:17:36.750
Well, why would he be talking to her?
413
00:17:36.750 --> 00:17:39.660
Well, so she-
Kind of begs the question.
414
00:17:39.660 --> 00:17:41.700
Well, we can, again, we can speculate,
415
00:17:41.700 --> 00:17:44.250
but that's the problem with this case, Your Honor.
416
00:17:44.250 --> 00:17:45.690
That's the problem.
417
00:17:45.690 --> 00:17:48.120
All we have is speculation and conjecture,
418
00:17:48.120 --> 00:17:51.030
'cause all we're limited to is this.
419
00:17:51.030 --> 00:17:52.200
I think we know what happened here.
420
00:17:52.200 --> 00:17:53.460
The Commonwealth knew it wasn't
421
00:17:53.460 --> 00:17:55.470
gonna have a witness in this case.
422
00:17:55.470 --> 00:17:58.440
And so it went through all of his transcripts.
423
00:17:58.440 --> 00:18:00.090
Of course they did.
And they found this.
424
00:18:00.090 --> 00:18:01.380
And by the way, Your Honors,
425
00:18:01.380 --> 00:18:03.510
this is the best they came up with.
426
00:18:03.510 --> 00:18:04.710
This is the best they came up with
427
00:18:04.710 --> 00:18:09.630
and if you want any, if you want to understand
428
00:18:09.630 --> 00:18:11.400
any reason to doubt that there might be
429
00:18:11.400 --> 00:18:13.350
a reasonable doubt here, beyond a reasonable doubt
430
00:18:13.350 --> 00:18:15.810
standard met here, you just have to look at
431
00:18:15.810 --> 00:18:20.810
all of the variations on what this thing was
432
00:18:21.060 --> 00:18:22.830
that-
Did he at one point say,
433
00:18:22.830 --> 00:18:25.597
you know, something along the lines of, you know,
434
00:18:25.597 --> 00:18:27.860
"Just do what's best for you", or something?
435
00:18:27.860 --> 00:18:30.720
He did say that, which I think it goes to my point,
436
00:18:30.720 --> 00:18:32.850
Understand.
which it confuses
437
00:18:32.850 --> 00:18:33.810
this whole motive question.
438
00:18:33.810 --> 00:18:34.643
What's his motive?
439
00:18:34.643 --> 00:18:35.966
Is his motive because he's trying to deal
440
00:18:35.966 --> 00:18:39.051
with an upset fiancé and he's just trying to
441
00:18:39.051 --> 00:18:39.884
calm her down?
Well, I think the motive,
442
00:18:39.884 --> 00:18:41.430
I know you don't think the motive's clear.
443
00:18:41.430 --> 00:18:43.050
I think the motive's clear.
444
00:18:43.050 --> 00:18:44.760
I just don't know if it's really a crime.
445
00:18:44.760 --> 00:18:47.190
The motive is that he's trying to placate her.
446
00:18:47.190 --> 00:18:49.800
He's trying to get her into his camp.
447
00:18:49.800 --> 00:18:52.380
He's trying to say, "Just keep on doing what you're doing."
448
00:18:52.380 --> 00:18:54.420
He's trying to get to the trial date
449
00:18:54.420 --> 00:18:56.820
so she doesn't go in and testify.
450
00:18:56.820 --> 00:18:58.710
Yeah.
And he's playing her.
451
00:18:58.710 --> 00:19:01.618
It's not too complicated to see what he's doing.
452
00:19:01.618 --> 00:19:04.080
The issue is whether that constitutes a crime.
453
00:19:04.080 --> 00:19:06.930
And also whether you've proven that element,
454
00:19:06.930 --> 00:19:09.090
the intent element beyond a reasonable doubt.
455
00:19:09.090 --> 00:19:11.910
And I think that's my greatest problem
456
00:19:11.910 --> 00:19:15.600
with this case is that you can make the argument,
457
00:19:15.600 --> 00:19:18.461
you can strain as the Commonwealth clearly did here,
458
00:19:18.461 --> 00:19:23.070
and present a set of facts that, you know,
459
00:19:23.070 --> 00:19:25.020
some, you know, the trial judge didn't see it
460
00:19:25.020 --> 00:19:26.550
the same way as the prosecutor.
461
00:19:26.550 --> 00:19:27.750
The appeals court didn't see it
462
00:19:27.750 --> 00:19:29.520
the same way as the trial judge.
463
00:19:29.520 --> 00:19:32.400
I mean, everybody's come up with a different
464
00:19:32.400 --> 00:19:37.080
concoction for what the bad conduct was here.
465
00:19:37.080 --> 00:19:42.080
But we're straining to make a crime here
466
00:19:42.180 --> 00:19:45.870
when maybe it just wasn't, maybe it just isn't there.
467
00:19:45.870 --> 00:19:48.294
He was encouraging, as Your Honor says,
468
00:19:48.294 --> 00:19:53.294
he certainly had a motive to not have her testify.
469
00:19:55.590 --> 00:19:58.531
That's unquestionable.
Okay, I am sorry.
470
00:19:58.531 --> 00:20:01.290
We're almost five minutes over
I'm sorry, Your Honor.
471
00:20:01.290 --> 00:20:04.260
you have absolutely made your points, thank you so much.
472
00:20:04.260 --> 00:20:05.093
Thank you, Your Honors,
473
00:20:05.093 --> 00:20:07.170
I appreciate it.
All righty.
474
00:20:07.170 --> 00:20:08.220
Okay, Attorney Jiang.
475
00:20:11.370 --> 00:20:12.900
Good morning, may I please the court,
476
00:20:12.900 --> 00:20:14.913
Kristen Jiang for the Commonwealth.
477
00:20:16.020 --> 00:20:19.440
I believe the biggest issue here is whether or not
478
00:20:19.440 --> 00:20:21.180
there was a promise made in this case,
479
00:20:21.180 --> 00:20:24.300
things on the transcripts that's before the court.
480
00:20:24.300 --> 00:20:27.150
And it's the Commonwealth's position
481
00:20:27.150 --> 00:20:29.280
that there was an indirect promise
482
00:20:29.280 --> 00:20:31.050
made here.
What's the promise?
483
00:20:31.050 --> 00:20:35.730
That the defendant and this witness would resume
484
00:20:35.730 --> 00:20:39.090
their life as it was before if she listened to him.
485
00:20:39.090 --> 00:20:41.670
If she listened to him, she stopped answering the door.
486
00:20:41.670 --> 00:20:43.530
Where is that in the transcript?
487
00:20:43.530 --> 00:20:47.040
So it's implied, it's not directly in the transcript.
488
00:20:47.040 --> 00:20:48.270
There's no direct quote.
489
00:20:48.270 --> 00:20:49.890
Which transcript are you're relying on?
490
00:20:49.890 --> 00:20:54.817
The strongest piece is, number one on page 19.
491
00:20:54.817 --> 00:20:56.820
"You wouldn't be going through this
492
00:20:56.820 --> 00:20:58.290
if I was out there with you."
493
00:20:58.290 --> 00:20:59.820
That's probably the strongest line
494
00:20:59.820 --> 00:21:01.890
that I can pull from the transcripts.
495
00:21:01.890 --> 00:21:04.560
There's also sprinkled throughout the transcript
496
00:21:04.560 --> 00:21:07.297
in the context of, "We're still getting married,
497
00:21:07.297 --> 00:21:09.360
"I care about our family",
498
00:21:09.360 --> 00:21:11.700
and, "Listen to me and this will go away."
499
00:21:11.700 --> 00:21:13.027
He says that over and over again.
500
00:21:13.027 --> 00:21:14.167
"Listen to the man that knows,
501
00:21:14.167 --> 00:21:17.010
"listen to me, and this will go away."
502
00:21:17.010 --> 00:21:19.140
As to the DCF case in particular,
503
00:21:19.140 --> 00:21:20.340
it's true that he didn't say that
504
00:21:20.340 --> 00:21:23.160
he was gonna help her with the DCF case.
505
00:21:23.160 --> 00:21:28.160
I don't, and I apologize if my argument
506
00:21:28.380 --> 00:21:30.960
to the lower court was misconstrued,
507
00:21:30.960 --> 00:21:33.930
he said that the DCF can stay open until whenever,
508
00:21:33.930 --> 00:21:35.520
it doesn't really matter.
509
00:21:35.520 --> 00:21:38.287
Meaning, "If you listen to me and you don't
510
00:21:38.287 --> 00:21:40.837
"show up to this trial and testify against me,
511
00:21:40.837 --> 00:21:42.587
"you don't have to worry about it."
512
00:21:43.695 --> 00:21:46.020
Is that something in his control?
513
00:21:46.020 --> 00:21:46.920
No, it's not.
514
00:21:46.920 --> 00:21:49.260
I agree, that's not in his control.
515
00:21:49.260 --> 00:21:53.460
It is in his control to some extent, the defense strategy.
516
00:21:53.460 --> 00:21:55.260
He knows very well from his lawyer
517
00:21:55.260 --> 00:21:57.000
that if this witness doesn't show up,
518
00:21:57.000 --> 00:21:58.710
that the case is going to go away.
519
00:21:58.710 --> 00:22:00.750
And he communicates that to her.
520
00:22:00.750 --> 00:22:03.150
Why isn't this just stating the fact?
521
00:22:03.150 --> 00:22:05.850
Why isn't this just trying to, you know,
522
00:22:05.850 --> 00:22:09.480
make her feel better about things?
523
00:22:09.480 --> 00:22:12.360
Why isn't this just advice?
524
00:22:12.360 --> 00:22:14.910
Why isn't this just trying to persuade her?
525
00:22:14.910 --> 00:22:17.760
Well, his intent really comes through,
526
00:22:17.760 --> 00:22:19.417
through the transcript, when he says over and over,
527
00:22:19.417 --> 00:22:20.670
"Listen to me, listen to me,
528
00:22:20.670 --> 00:22:23.430
listen to a man that knows."
And the intent
529
00:22:23.430 --> 00:22:25.980
is that she not testify, right?
530
00:22:25.980 --> 00:22:26.813
Yes.
Okay,
531
00:22:26.813 --> 00:22:28.320
so we can agree on that.
Yes.
532
00:22:28.320 --> 00:22:29.958
But why is this not just,
533
00:22:29.958 --> 00:22:32.107
"Here's what will happen if you don't,
534
00:22:32.107 --> 00:22:34.147
"if you don't answer the door, they'll stop coming.
535
00:22:34.147 --> 00:22:38.760
"If you don't say anything, everything will be okay."
536
00:22:38.760 --> 00:22:41.820
He's just telling her what the fact is.
537
00:22:41.820 --> 00:22:44.130
Well, read in the context of their relationship
538
00:22:44.130 --> 00:22:46.537
that's coming through the transcript where he says,
539
00:22:46.537 --> 00:22:48.037
"I care about you and our family.
540
00:22:48.037 --> 00:22:50.520
"We're still getting married, right?"
541
00:22:50.520 --> 00:22:53.820
When he talks about, "You wouldn't be going through this
542
00:22:53.820 --> 00:22:54.653
if I were out-"
I agree.
543
00:22:54.653 --> 00:22:56.790
No, I agree that he said all of those things.
544
00:22:56.790 --> 00:22:57.813
Yes.
Yes.
545
00:22:59.520 --> 00:23:01.650
So why isn't this just him
546
00:23:01.650 --> 00:23:04.203
telling her the fact of the matter?
547
00:23:05.280 --> 00:23:08.010
Because those statements pull it out of
548
00:23:08.010 --> 00:23:12.900
just him giving advice, especially read in light
549
00:23:12.900 --> 00:23:14.760
of their history of domestic violence.
550
00:23:14.760 --> 00:23:17.160
I know we don't have explicit facts on the record here
551
00:23:17.160 --> 00:23:20.040
about their history, but we do have facts
552
00:23:20.040 --> 00:23:21.510
that there was an assault here
553
00:23:21.510 --> 00:23:22.890
that left her bleeding from the mouth
554
00:23:22.890 --> 00:23:24.450
and she was taken away by ambulance.
555
00:23:24.450 --> 00:23:26.300
And that's the case we're talking about here.
556
00:23:26.300 --> 00:23:28.260
Was that in the trial record?
557
00:23:28.260 --> 00:23:29.340
Yes.
For this trial.
558
00:23:29.340 --> 00:23:31.920
Yes, the docket and then there was
559
00:23:31.920 --> 00:23:35.190
testimony as well about, because really
560
00:23:35.190 --> 00:23:36.420
the issue at trial was whether
561
00:23:36.420 --> 00:23:38.100
or not he was the one that made these calls.
562
00:23:38.100 --> 00:23:41.610
But the arresting officer did testify at this trial.
563
00:23:41.610 --> 00:23:42.630
So that is in the record.
564
00:23:42.630 --> 00:23:44.206
Counsel, can you just remind me,
565
00:23:44.206 --> 00:23:48.300
was this a separate docket number
566
00:23:48.300 --> 00:23:50.190
from the underlying domestic case?
567
00:23:50.190 --> 00:23:51.150
Yes, it was.
568
00:23:51.150 --> 00:23:52.860
In this particular docket,
569
00:23:52.860 --> 00:23:55.470
was there a stay away no contact order?
570
00:23:55.470 --> 00:23:57.301
I don't recall from that,
571
00:23:57.301 --> 00:23:58.320
I apologize.
Is the docket
572
00:23:58.320 --> 00:24:00.480
on this case in the record appendix?
573
00:24:00.480 --> 00:24:02.340
It should be, yes.
Okay.
574
00:24:02.340 --> 00:24:07.340
Would that inform at all the analysis here,
575
00:24:07.560 --> 00:24:09.840
if there were a stay away no contact
576
00:24:09.840 --> 00:24:13.440
from the alleged victim and to kind of
577
00:24:13.440 --> 00:24:15.603
give the flavor to what this really was?
578
00:24:16.590 --> 00:24:19.200
It could, it would inform it more
579
00:24:19.200 --> 00:24:21.093
if this were intimidation case,
580
00:24:22.290 --> 00:24:24.617
I suppose it could give some background to,
581
00:24:24.617 --> 00:24:27.210
I think it makes a difference that this was a DV case.
582
00:24:27.210 --> 00:24:29.910
That was the underlying case.
Mm-hmm.
583
00:24:29.910 --> 00:24:31.740
You know, this wasn't a theft or something like that.
584
00:24:31.740 --> 00:24:33.600
This was a domestic violence case.
585
00:24:33.600 --> 00:24:36.000
I think that does give flavor to this.
586
00:24:36.000 --> 00:24:39.720
So before I ask you about whether or not
587
00:24:39.720 --> 00:24:42.150
what was being offered was within
588
00:24:42.150 --> 00:24:44.460
the defendant's control to promise,
589
00:24:44.460 --> 00:24:46.810
I just have a technical question
590
00:24:48.480 --> 00:24:50.490
that's not addressed in the brief.
591
00:24:50.490 --> 00:24:53.700
When, as you know, when you have a jury waived case,
592
00:24:53.700 --> 00:24:55.800
this is jury waived in front of Judge Flatley.
593
00:24:55.800 --> 00:24:56.633
Correct.
594
00:24:56.633 --> 00:24:57.570
When you have a jury waived case,
595
00:24:57.570 --> 00:24:59.370
the judge doesn't have to say anything.
596
00:24:59.370 --> 00:25:00.660
Right.
597
00:25:00.660 --> 00:25:02.580
But the judge does say something,
598
00:25:02.580 --> 00:25:04.837
and if I'm remembering correctly, she says,
599
00:25:04.837 --> 00:25:07.860
"Well, there was a promise", and the promise was
600
00:25:07.860 --> 00:25:11.190
that if she didn't testify they'd get married.
601
00:25:11.190 --> 00:25:16.190
Is there anything binding since she said that,
602
00:25:16.410 --> 00:25:20.020
about that being what's required
603
00:25:20.880 --> 00:25:25.715
for the Commonwealth to be able to show sufficiency?
604
00:25:25.715 --> 00:25:26.790
I don't believe there is.
605
00:25:26.790 --> 00:25:28.230
I did do a little research into this.
606
00:25:28.230 --> 00:25:29.430
There's not a lot on it,
607
00:25:31.253 --> 00:25:33.487
but, well, for one in the record, she said,
608
00:25:33.487 --> 00:25:35.820
"Based on what I just heard",
609
00:25:35.820 --> 00:25:38.310
and that explicit offer of marriage.
610
00:25:38.310 --> 00:25:41.010
So she was referring to "What I just heard",
611
00:25:41.010 --> 00:25:43.080
which was a portion of the recording
612
00:25:43.080 --> 00:25:45.750
that the prosecutor had played during her closing.
613
00:25:45.750 --> 00:25:47.580
So I think that that covers us here,
614
00:25:47.580 --> 00:25:50.220
because she was referring to the same transcript
615
00:25:50.220 --> 00:25:52.380
that we're all looking at here.
616
00:25:52.380 --> 00:25:54.090
So I think it's fair game for me to point
617
00:25:54.090 --> 00:25:55.983
to any part of the transcript,
618
00:25:57.930 --> 00:26:01.770
but also, you know, if this were a jury trial,
619
00:26:01.770 --> 00:26:03.210
we wouldn't really know the reason
620
00:26:03.210 --> 00:26:04.800
that they found this defendant
621
00:26:04.800 --> 00:26:05.910
guilty.
I'm sorry, yeah.
622
00:26:05.910 --> 00:26:07.807
Right.
But if she said,
623
00:26:07.807 --> 00:26:12.600
"That's the reason that I'm ruling that he's guilty
624
00:26:12.600 --> 00:26:14.122
of this."
Right,
625
00:26:14.122 --> 00:26:17.853
Are you arguing that that was the promise?
626
00:26:18.690 --> 00:26:19.860
No, the offer of marriage?
627
00:26:19.860 --> 00:26:21.000
No, no, absolutely not.
628
00:26:21.000 --> 00:26:22.740
I concede that there is no support
629
00:26:22.740 --> 00:26:24.150
for that.
We have to look other,
630
00:26:24.150 --> 00:26:26.010
somewhere else.
Correct.
631
00:26:26.010 --> 00:26:29.490
Yeah, I'm just proposing that you can look somewhere else.
632
00:26:29.490 --> 00:26:31.080
You don't have to rely on that
633
00:26:31.080 --> 00:26:32.202
incorrect finding.
Have to look,
634
00:26:32.202 --> 00:26:33.300
yeah, we have to look somewhere else.
635
00:26:33.300 --> 00:26:34.953
Correct, correct.
636
00:26:36.120 --> 00:26:37.920
Did I answer your question completely?
637
00:26:37.920 --> 00:26:38.753
I'm sorry.
You did.
638
00:26:38.753 --> 00:26:39.586
Yeah.
Okay,
639
00:26:39.586 --> 00:26:40.709
thank you.
Except we don't
640
00:26:40.709 --> 00:26:42.030
have an answer, if you have,
641
00:26:42.030 --> 00:26:43.350
you don't have to do anything.
642
00:26:43.350 --> 00:26:44.957
The judge doesn't have to do anything.
643
00:26:44.957 --> 00:26:46.087
Correct.
If the judge said,
644
00:26:46.087 --> 00:26:49.080
"My theory in this jury waived case
645
00:26:49.080 --> 00:26:53.302
is theory A
Mm-hmm.
646
00:26:53.302 --> 00:26:55.602
and there's not enough evidence of theory A,
647
00:26:56.790 --> 00:26:59.970
and there is a theory B, it's too bad.
648
00:26:59.970 --> 00:27:02.520
She decided to say theory A, she didn't have to.
649
00:27:02.520 --> 00:27:03.390
It's jury waived.
650
00:27:03.390 --> 00:27:04.980
In jury waived you say guilty or
651
00:27:04.980 --> 00:27:05.940
not guilty.
Right.
652
00:27:05.940 --> 00:27:08.550
But anything you say is fair game.
653
00:27:08.550 --> 00:27:10.950
So I'm not sure we have an answer to that question.
654
00:27:10.950 --> 00:27:14.850
But here's what I see as the biggest challenge.
655
00:27:14.850 --> 00:27:19.850
Not whether he was trying to influence her,
656
00:27:20.190 --> 00:27:21.423
because he clearly was
657
00:27:21.423 --> 00:27:23.310
Yes.
trying to influence her.
658
00:27:23.310 --> 00:27:27.030
The issue is can you have a promise
659
00:27:27.030 --> 00:27:30.663
under the statute of something that you can't control?
660
00:27:31.950 --> 00:27:33.990
Well, an analogy would be what if
661
00:27:33.990 --> 00:27:37.170
he did say, "Will you marry me?
662
00:27:37.170 --> 00:27:39.990
I'm gonna marry you if I get out of here."
663
00:27:39.990 --> 00:27:41.790
But she doesn't wanna marry him.
664
00:27:41.790 --> 00:27:45.829
I still think it's a crime when he finishes that sentence.
665
00:27:45.829 --> 00:27:47.100
Because he can control
666
00:27:47.100 --> 00:27:47.933
whether he marries her.
That's true.
667
00:27:47.933 --> 00:27:49.050
He could control his end of it,
668
00:27:49.050 --> 00:27:50.430
but he can't control the result.
669
00:27:50.430 --> 00:27:53.100
He can't control whether she's gonna say yes or not.
670
00:27:53.100 --> 00:27:55.027
Well, that's the same as if I said,
671
00:27:55.027 --> 00:27:57.720
"I'm gonna offer you $500"
672
00:27:57.720 --> 00:27:59.100
and you're not gonna take it,
673
00:27:59.100 --> 00:28:00.180
it's still-
Right
674
00:28:00.180 --> 00:28:03.780
or you don't have the money, maybe you don't have the money.
675
00:28:03.780 --> 00:28:05.857
But I think that's still completes
676
00:28:05.857 --> 00:28:07.479
the crime when you make the statement.
677
00:28:07.479 --> 00:28:08.529
If you think that's-
678
00:28:08.529 --> 00:28:12.000
Well, you know whether you can marry someone
679
00:28:12.000 --> 00:28:13.530
or have $500, you know.
Right.
680
00:28:13.530 --> 00:28:17.100
What you don't know is whether or not
681
00:28:17.100 --> 00:28:19.440
you can stop the police from coming,
682
00:28:19.440 --> 00:28:22.497
get DCF to leave you alone.
683
00:28:22.497 --> 00:28:27.090
Get back to whatever that normalcy she's looking for is,
684
00:28:27.090 --> 00:28:31.200
it's not something that he can unilaterally do.
685
00:28:31.200 --> 00:28:32.283
Does that matter?
686
00:28:33.457 --> 00:28:35.400
I think here to distinguish it a little bit,
687
00:28:35.400 --> 00:28:37.680
he does relay his lawyer's advice that if
688
00:28:37.680 --> 00:28:40.770
she doesn't show up, it's gonna all go away and be fine.
689
00:28:40.770 --> 00:28:43.290
So that's a little bit of a distinction here,
690
00:28:43.290 --> 00:28:46.440
is that he's purporting this professional knowledge
691
00:28:46.440 --> 00:28:48.660
from his attorney that as long as
692
00:28:48.660 --> 00:28:50.730
she doesn't show up, this is gonna be fine.
693
00:28:50.730 --> 00:28:53.100
But that doesn't answer the question.
694
00:28:53.100 --> 00:28:54.180
It's conditional.
695
00:28:54.180 --> 00:28:55.800
Yes, that's true.
696
00:28:55.800 --> 00:28:56.633
That's true.
697
00:28:56.633 --> 00:28:59.190
And he doesn't have control over it.
698
00:28:59.190 --> 00:29:00.527
I mean-
He doesn't.
699
00:29:00.527 --> 00:29:01.590
Right.
He doesn't,
700
00:29:01.590 --> 00:29:04.350
he does have control over this general sense
701
00:29:04.350 --> 00:29:06.573
of resuming their life as it was before,
702
00:29:08.100 --> 00:29:10.140
which is without police coming to her door,
703
00:29:10.140 --> 00:29:13.533
which is without the prosecutor's office calling her,
704
00:29:15.510 --> 00:29:16.383
et cetera.
705
00:29:19.470 --> 00:29:20.760
If there are no further questions,
706
00:29:20.760 --> 00:29:22.713
I'm happy to rest on my brief.