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SJC 13479 Commonwealth versus Dwayne Moore.
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SJC 13478 Commonwealth versus 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
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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 against the public
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interest in fair verdicts 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 is echoed many times
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the double jeopardy protection includes
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a defendant's valued right to have his
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or her fate decided 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 is the public's interest
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in a fair verdict.
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And in this context, a fair verdict simply means a verdict
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that's rendered by an impartial jury
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or 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 must yield
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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 68 C specifically says that
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after a second return without a verdict,
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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 determining
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whether to ask whether a jury will consent
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to continue deliberations?
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Here we had an express request from the defense in light
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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 more than four years
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in the pretrial phase, we would like you
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to ask the jury notwithstanding their stated of deadlock,
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whether they will consent
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to further deliberations the judge.
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Why would the fact that the defendant asked
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for that make a difference in terms
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of assessing the judge's decision making?
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Because presumably the decision making
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is based 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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or the risk of coercion, then the fact
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that the defendant asked for the judge
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to see if they would consent, that doesn't seem
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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, if the judge were
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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 A,
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in light of his own request, and B, in light
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of Jenkins, I don't see.
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So it would just be estoppel.
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He would lose his rights
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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
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that invited error 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 whether
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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 coerce you
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or to compel you to continue deliberations
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is at an end 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 to some amount
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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 that they no longer have
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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 not 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 a judge
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shouldn't have any discretion not to ask.
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And the reason the judge shouldn't have any discretion not
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to ask is by prefacing his
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or her request with the statement that the ability
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of the court 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 is the only
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interest that can possibly outweigh
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a defendant's double jeopardy rights.
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I seem I'm over my time.
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I'd just like to say the dangers
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and the harms that are posited by cases
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by Arizona like Arizona v. Washington,
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which this court discussed in Commonwealth versus Cruz,
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are realized here.
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These young men have spent six years in the house
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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 kind
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of on a gut based on the jury to simply not,
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I would say take the final step
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before determining that there actually exists
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in 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, Brian Kelly on behalf
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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 pause it is
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if the government can't prove this case,
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what more evidence is there
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or anecdotal evidence, you might say
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that they cannot sustain their burdens
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in this particular case.
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And the standard we all know is in the light most
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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, just to sort of go straight
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into the facts 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
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or five witnesses that describe two people running
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through this courtyard.
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The court has seen any
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of the exhibits in this particular case.
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Now this is almost like a fishbowl.
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It's like right across the street from the homicide.
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The old where this used
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to be is across the street 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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and 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 sticking out
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of Mr. Moore's jacket.
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And that's fair.
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He's in the area potentially they can probably demonstrate
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he's in the area, 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 as anecdotal evidence
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or evidence to demonstrate some connection.
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Here, the case
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that most everybody has cited here 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, or 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 in that evidence
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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 individuals Davis' home seven days
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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 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 conscious 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
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that's not determinative of this question
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of 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
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they also asked the driver to take a different route
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from what the driver was being fed by his directions.
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And that-
All the time.
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The driver said that
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that had never happened in the driver's years of driving.
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In the seven years that he had been, that's true, right.
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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 quote 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 in terms
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of the shoots of this particular case.
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I don't, 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
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to what the Commonwealth would have to show
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in order to show.
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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
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to be piled on?
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Moore would've had to have
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the jacket 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
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to why they would even know this guy was there.
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They put on, he puts a jacket somewhere,
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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, which I've gone
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through in the brief,
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it's like an Olympic speed to get to the front
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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
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is really what I always struggle with in these cases
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is 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, the idea
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that if the inferences are undercut by other pieces
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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, Sepheueses
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I think is the name of the case
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where if there's other evidence
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that suggests it's S-E-P-H-E-U-E-S-E-S,
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which says basically that when there are other pieces
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of evidence that undercut those inferences,
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the court can take into consideration
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in deciding whether or not these inferences
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that the government uses are reliable,
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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
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is because, 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.
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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 I please the court?
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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, starting
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with the treatment 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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That's the judge can accept
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that as a statement that the jury is in fact
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will serve no further purpose by being asked
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to deliberate further.
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And in fact, as in the case
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which I had memorized about five minutes ago,
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the federal case on this said that there's such a danger
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of coercion here.
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Such a danger of the judge saying,
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well 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 in ruling
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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 clearly shows
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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, really within one minute
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after the shooting, these same two men are seen running out
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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 is red hood
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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 Uber drive generally works.
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And then two weeks later, Mr. Moore is 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
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of murder in the first degree 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.