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SJC-13479, Commonwealth v. Jerion Moore.
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SJC-13478, Commonwealth v. Nicholas Sicellon.
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Okay, Attorney Schnipper.
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Good morning, Chief Justice Budd.
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May it please the court,
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I'm Merritt Schnipper here today on behalf of Jerion Moore.
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My time before the court today is brief,
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so I'd like to take the court directly to the question
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of Chapter 234, Section 68C
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and how that statute balances the defendant's rights
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to be protected against civil jeopardy
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against the public interest in fair verdicts
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in criminal cases,
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which is the only significant other interest in play here.
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As Arizona v. Washington shows
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and this court has echoed many times,
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the double jeopardy protection includes
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a defendant's valued right to have his or her fate decided
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by the particular jury
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before which jeopardy is already attached.
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In other words, the defendant has a constitutional right
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separate from the questions of multiple prosecutions
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or duplicative convictions
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to be tried one time and one time only.
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Of course, in this case,
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there's already been two full trials, two full opportunities
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for the government to carry its burden.
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It's been unable to do so
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and we've had two hung jury mistrials.
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Balanced against the defendant's double jeopardy right,
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the only other interest in play
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is the public's interest in a fair verdict.
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And in this context, a fair verdict simply means
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a verdict that's rendered by an impartial jury
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or a verdict that is not coerced out of a jury.
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And manifest necessity basically is a way of saying
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that in a very particular circumstance,
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the defendant's double jeopardy rights
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must yield to the public interest in a fair verdict.
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I think these are all accepted propositions.
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The question becomes what steps does the judge have to take
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to ensure that manifest necessity actually exists?
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Section 68C specifically says that after a second return
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without a verdict, which there's no dispute we have here,
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the jury may not be sent out again
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without their own consent.
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So in other words, further compelled deliberations
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at that point are prohibited,
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but consented to deliberations are permitted.
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And in fact, as this court's decision in Jenkins shows,
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can actually produce the break of a log jam
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and results in a verdict from a jury
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that formally had stated it was unable to reach one.
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So the question is,
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under what circumstances must a judge ask,
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or another way of saying,
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how should a judge guide their discretion
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determining whether to ask
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whether a jury will consent to continue deliberations?
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Here we had an express request from the defense
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in light of everything that had gone on
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and we're not just talking about one trial, two trials,
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and at that point,
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more than four years in the pretrial phase.
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We would like you to ask the jury,
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notwithstanding their stated deadlock,
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whether they will consent to further deliberations.
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The judge-
But why would the fact
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that the defendant asked for that make a difference
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in terms of assessing the judge's decision-making?
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Because presumably, the decision-making is based
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on her assessment of the jury's impasse, right?
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Whether if the judge is convinced
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that asking for consent would veer towards coercion,
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coercion or the risk of coercion,
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then the fact that the defendant asked for the judge
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to see if they would consent,
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that doesn't seem to me to go anywhere.
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Well, I have two points to make there.
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The first is that I respectfully disagree
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because we're talking about the defendant,
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whose double jeopardy rights are at stake here, right?
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This is the person whose constitutional right is in play.
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Sure, but once they then,
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if the judge were to ask the question you had proposed
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and they returned a guilty verdict,
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then wouldn't the defendant be arguing
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the verdict was coerced?
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How could the defendant make that argument,
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A, in light of his own request, and B, in light of Jenkins?
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I don't see.
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So it would just be estoppel.
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He would lose his rights because of estoppel. He could-
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Well, if he were to request continued deliberations
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and then those deliberations were to have continued,
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it's hard to argue how that invited error
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would then be subject to appeal.
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But let me just get to the question of how a judge can,
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how we can second guess or how a judge can decide
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whether or not she's gonna be coercing a verdict, right?
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Jenkins answers that question.
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You begin your request by saying, "My ability to compel you
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to continue deliberations is at an end.
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You are free to go home if you now choose."
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I would like to inform you
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that not withstanding your stated inability
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to reach a verdict, the parties in this case would request
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that you continue consent
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to some amount of continued deliberations.
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That's up to you to decide.
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So obviously it's a baseline principle of appellate review
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that juries are presumed to follow judicial instructions.
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If a judge informs the jury
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that they no longer have to continue deliberating
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and that the court lacks any power to compel them,
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you have removed the possibility
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of a compelled and coerced verdict, right?
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So at that point, you've eliminated,
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or you shouldn't have been eliminated.
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You've protected the only interest
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that counterbalances the defendant's double jeopardy rights.
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So at that point, I would argue
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a judge shouldn't have any discretion not to ask.
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And the reason the judge shouldn't have any discretion
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not to ask is by prefacing his or her request
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with the statement that the ability of the court
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to compel further deliberations is at an end,
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the public interest is protected
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and the public interest in a fair verdict
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is the only interest that can possibly outweigh
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a defendant's double jeopardy rights.
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I see I'm over my time.
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I'd just like to say the dangers and the harms
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that are posited by cases like Arizona v. Washington,
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which this court discussed in Commonwealth v. Cruz,
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are realized here.
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These young men have spent six years
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in the house of correction, now awaiting a third trial.
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The Commonwealth has been unable
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to carry its burden twice at trial.
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So they're heading into a third trial.
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And to simply say that a judge exercises discretion
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kind of on a gut based on the jury to simply not,
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I would say take the final step before determining
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that there actually exists a manifest necessity,
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that's a violation of double jeopardy rights.
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And I think that should prohibit a further retrial.
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Okay.
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If there are any further questions, I'll rest on my brief.
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Thank you.
Thank you.
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Okay, Attorney Kelly.
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Morning.
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May it please the court,
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Brian Kelly on behalf of Nicholas Sicellon.
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Rather than saying what he said
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for the next three and a half minutes,
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I'll just focus on the sufficiency argument.
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This is a case, as the court well knows, was tried twice,
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once in 2021, again in 2022.
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In the second case, there were six days of evidence
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with three days of jury deliberations.
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So the question that I posit
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is if the government can't prove this case,
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what more evidence is there or anecdotal evidence,
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you might say, that they cannot sustain their burdens
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in this particular case?
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And the standard we all know
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is in the light most favorable to the government,
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but any rational juror can find the elements of the offenses
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beyond a reasonable doubt.
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So I just dovetail back into that question.
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We've had two trials, two hung juries.
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I submit to the court that that's very good evidence
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that the government cannot demonstrate
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beyond a reasonable doubt any of these elements
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or even one of the elements.
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But so what I would say,
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just to sort of go straight into the facts
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of this particular case,
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you could concede that on all of the evidence
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in the light most favorable to the government,
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that the defendants are near the scene of the crime.
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So you have about, I think four or five witnesses
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that describe two people running through this courtyard.
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The court has seen any of the exhibits
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in this particular case.
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You know, this is, it's almost like a fishbowl.
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It's like right across the street from the homicide.
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Where this used to be is across the street
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from the homicide, Boston Police.
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And there are exits everywhere.
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So you got two people running
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and you hear multiple witnesses saying different things.
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But even if you narrow that down and distill it to,
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in the light most favorable to them, you have an individual
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by the name of Mr. Harris who's looking out his window.
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He sees an individual with a full red hoodie.
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And the reason why I think that's important
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is because none of the other witnesses say that.
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And the Commonwealth will talk about a hoodie
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sticking out of Mr. Moore's jacket.
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And that's fair.
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He's in the area potentially.
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They can probably demonstrate he's in the area,
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but what evidence do they have
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that demonstrates that these two guys are the shooters?
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They have no motive.
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And I understand they don't have to prove motive,
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but it is usually used is anecdotal evidence
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or evidence to demonstrate some connection here.
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The case that most everybody has cited here
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is this case, Davis,
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which Davis comes once on this GPS issue and goes back
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and then it comes back up on a question
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of the insufficiency, of the sufficiency of the evidence.
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This court says sufficient.
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But when you look at the first decision,
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you can see some real differences
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in that evidence and this evidence.
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One of the biggest pieces of evidence,
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and for some reason we're dealing again
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with a red piece of clothing,
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but there's a red piece of clothing
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that's found in that individual Davis' home
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seven days after the incident.
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They also have GPS points, data points
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that demonstrate a flight path that is not consistent
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and not true in this particular case.
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So to me, the question is,
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and I would also point out in this particular case,
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I'm sure the government will talk about this,
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what they claim is consciousness of guilt evidence.
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That is the two defendants allegedly get into an Uber
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and they're directing him.
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And I suggest to the court that that's not determinative
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of this question of
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you got two young men, African Americans.
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They're leaving the scene of a shooting.
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It's easily explainable that they get into an Uber
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'cause they're concerned
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that there's a shooting behind them.
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So the main question I would focus-
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But didn't the driver testify that,
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or there was evidence that they also asked the driver
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to take a different route from what the driver was being fed
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by his directions?
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And that-
All the time.
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The driver said that that had never happened
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in the driver's years of driving.
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In the seven years that he had been.
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That's true. Right, and-
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And can you also talk about
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the gunpowder residue on the coat?
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So there's, on Mr. Moore's jacket,
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and I believe it's 16 days after the offense,
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they find gunshot residue on the,
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I believe the sleeve of Mr. Moore.
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And I agree that that's obviously something
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that the government's gonna focus in on,
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but I suggested the court the amount of time that's gone by.
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I mean, we're talking about two weeks,
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a little more than two weeks.
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I don't know that that again is determinative
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in terms of the shoots of this particular case.
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I see what Your Honor is talking about.
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If you look at this Davis case that I've talked about,
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Davis, there's a very similar piece of clothing,
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but just direct the court back to
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what the Commonwealth would have to show
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in order to show that's the jacket though, right?
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Because Harris says it's a red jacket, not a black jacket.
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So how far are the inferences allowed to be piled on?
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Moore would've had to have the jacket
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somewhere nearby, right?
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So I guess the argument would be they commit the shooting
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and a guy they don't know, there's no connection to,
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there's no motive, there's no evidence as to why
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they would even know this guy was there.
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He puts a jacket somewhere, which there's no evidence of,
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there's no witnesses who say that,
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there's no evidence of that.
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They disappear on the video.
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I'll acknowledge that. They're gone.
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But when would he have put this jacket on?
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I mean, you look at the timeline,
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which I've gone through in the brief.
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It's like an Olympic speed
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to get to the front of this building.
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So I get where the court's going,
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but I would just point out that the jacket
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is totally different than what Mr. Harris has described
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as the shooter's jacket.
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He's wearing a full-length jacket.
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He doesn't say anything about a jacket being over that.
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So what I would focus the court in on is
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really what I always struggle with in these cases is
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how many inferences can they make?
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How many inferences can they draw?
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How many inferences can be piled on top of one on the other?
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Because in this particular case, what you see is,
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what I always think about is this,
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the idea that if the inferences are undercut
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by other pieces of evidence in the case,
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and Mr. Schnipper cited a case,
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which I think is great in this particular issue,
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Sepheus I think is the name of the case,
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where if there's other evidence that suggests,
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it's S-E-P-H-E-U-S, which says basically that
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when there are other pieces of evidence
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that undercut those inferences,
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the court can take into consideration in deciding
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whether or not these inferences that the government uses
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are reliable, usable in this context.
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The question of is there a rational juror
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that could find the elements beyond a reasonable doubt?
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And the reason I point that out is because,
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oh, I'm way over,
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is because when you look at all of these witnesses
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and what they say, when you look at all of the evidence,
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at best, I would suggest to the court
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that all you can say is that Mr. Moore and Mr. Sicellon
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are at best in the location, which we know is not enough.
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So I'll rest on that in a brief. Thank you very much.
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Okay. Thank you.
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Attorney Lynn.
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Good morning, Your Honors.
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May it please the court, Paul Lynn for the Commonwealth.
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With me is Assistant District Attorney David Bradley,
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who is the trial prosecutor in this case.
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Starting with the treatment
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of the jury deadlock in this case,
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and the jury is undeniably deadlocked.
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They use the word deadlock in their note to the court.
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They say that we will,
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I'm not quoting, I'm paraphrasing here.
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We could not reach a verdict based on further deliberations.
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In that situation under Fuentes, which I cite in my brief,
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the judge can accept that as a statement
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that the jury is in fact, will serve no further purpose
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by being asked to deliberate further.
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And in fact, as in the case which I had memorized
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about five minutes ago, the federal case on this,
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said that there's such a danger of coercion here,
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such a danger of the judge saying, well, you know,
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I don't really believe you're deadlocked.
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Won't you try some more?
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And the court said, no, that's not what we want.
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That's also what this court said in Fuentes.
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And so for those reasons,
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the judge acted well within her discretion
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in ruling that this was indeed a genuine deadlock.
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Turning to the sufficiency of the issue,
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we have three witnesses here.
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We have a witness who sees the shooting, sees two people.
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This is not a case in which the defendant is just charged
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as an accessory, as a getaway driver.
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This is a case in which two men are seen walking
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to the murder scene for five minutes before the murder.
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They disappear for two minutes.
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Within that two-minute period,
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Mr. Harris sees the murder, which is committed by two men,
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one of whom is wearing a red jacket.
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The videotape of these two men
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clearly shows that the defendant, Mr. Moore,
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is wearing a red hooded sweatshirt underneath his coat.
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Then two minutes, you know, within,
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really within one minute after the shooting,
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these same two men are seen
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running out of the housing complex
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that unfortunately now has been demolished,
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so it's no longer visible on Google Maps
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or anything like that.
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And are seen, again, walking back the same way they came.
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This time, Mr. Moore's red jacket,
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red hood is tucked under his jacket
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so you can just barely see it in one of the videos
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and you can't see it from behind.
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They get in this Uber, they tell the driver where to go,
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which the driver says is unusual.
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That's not how an an Uber drive generally works.
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And then two weeks later, Mr. Moore seen wearing a jacket
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that has gunshot residue on it.
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Considering all those facts, the evidence,
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even though it has failed to persuade two juries so far,
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is more than sufficient to prove the defendants',
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both defendants' guilt of murder in the first degree
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in this case.
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If there are no questions,
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I will otherwise rest on my brief.
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Okay, thank you.
Thank you.