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