-: SJC-13532, Commonwealth versus William J. Camutie.
-: Okay, Attorney Gravina.
-: Good morning Your Honors.
May it please the court, Attorney Dana Gravina
on behalf of William Camutie.
I'm gonna begin today by addressing
the first argument that was raised
in Mr. Camutie's appellate brief
which is the search warrant that had been issued
for his residence for his computer, his iPhone
and his vehicle.
All four search warrants were based upon
the same affidavit from State Trooper Banks.
Mr. Camutie subsequently filed a motion to suppress,
arguing that the facts set forth within that affidavit
did not establish probable cause
to believe that Mr. Camutie had committed,
or was involved in either of the two offenses
which were identified in the affidavit.
First was that Mr. Camutie was involved
in a larceny by false pretense.
And in denying the motion for to suppress,
the motion judge relied really on a few facts.
One that Mr. Camutie had told the police
that the reason, or that Mr. Rakes
had requested a meeting on July 16th, 2013
at a McDonald's in Waltham.
That when the police later listened to a recording
of a phone call, which they found in Mr. Rakes' vehicle,
that it was in fact Mr. Camutie
who had requested the meeting at the Waltham McDonald's.
Second, that the... Mr. Camutie told the police
that the purpose of the meeting was to discuss
a real estate deal involving a property in Dorchester.
And again on that recorded conversation,
Mr. Camutie had stated to Mr. Rakes
that the reason for the meeting was to discuss
a Wilmington real estate property.
The motion judge also relies upon the fact that
when Trooper Banks looked at the MLS website,
and looked for a property in Wilmington,
he could not find a property that matched
the description of the Wilmington property
that Mr. Camutie had given to Mr. Rakes.
And next, the judge realized on the fact
that Mr. Camutie had a criminal history
involving some financial offenses, money laundering,
that sort of thing.
And-
-: And there's some additional facts, right?
That the tape recording or whatever it is,
from Rakes' car, or his phone,
says that he's got a check for him, right?
That your client has a check for him?
(Justice coughing)
-: Recording I believe says that,
according to the affidavit,
it says that Mr. Rakes would be getting
the money soon from the sale of the judgment.
Justice Kafker: And he also had something
for him to sign, too?
Is that right? -: Correct.
And so...
Nothing, nothing.
Justice Kafker: And that there's $28 million in play
from the Bugler?
-: Well that's so, what's reflected in the affidavit
is that Mr. Rakes had a
civil judgment against James Bugler
for $28 million, which he was trying to sell.
And that Mr. Camutie was assisting him
in selling that judgment.
And that's what the money is in regards to,
in terms of that, you know, those funds
from the sale of that judgment
would be on their way soon.
Is essentially what's relayed in the affidavit.
-: So you got, and then you have the fact that
the person who's supposedly subject to this, you know,
larceny camp, whatever, is dead.
And your client is the last person on the phone calls,
and there are lots and lots of phone calls.
Doesn't all of that sort of combine to be enough?
I understand it's so, it may be thinner than usual.
But there's, it doesn't,
when you put all that together
and that he's wearing the same clothes he wore
leaving the courthouse.
And again, isn't that enough?
-: I think those are two different...
I think those facts involve two different sets of-
-: Well but, I mean I was struck by the fact that,
and again, the person he's trying,
he may be trying to defraud is also dead.
It seems like that's got some significance to this.
-: But the issue is there's nothing there in those facts
which we'd just discussed,
which indicates any intent to defraud at all.
-: Really, why so much lying?
There, this, this, I have something for you to sign,
which is particularly problematic.
Attorney: But there's nothing false about that.
-: Well, well, but maybe. It may all be false.
-: Not in the affidavit.
And that's where we have to look at this point.
-: But no, the affidavit's saying
that his whole story that he told the police is not true.
And there's a pretty dramatic inconsistency,
and he has no reason to lie
unless that he's hiding something, right?
Why isn't he describing Dorchester rather than Wilmington?
Why is he doing all of this?
-: There's only two things in the affidavit
that Mr. Camutie is, you know,
which established that Mr. Camutie
has not been honest with the police.
And that is, one, who set up the meeting
at the McDonald's?
And two, whether it's in regards to
a property in Dorchester, or a property in Wilmington?
Could that be odd that Mr. Camutie didn't tell,
told two different versions of...
Told the one version to the police,
and the recording reveals that it's something different?
Sure. But there's nothing criminal.
-: Do you think it rises at least to the level
of somewhat untoward or sleazy business dealings,
but not a crime?
-: No, I think that it raises questions of why,
why is he telling the police that it's that-
-: I believe the inference is he's a con man.
Essentially, that he's-
-: I understand that's what Trooper Banks
may have suspected at the time.
But suspicion isn't reason, isn't probable cause.
And that's the question here is...
Where in those facts is there probable cause to believe
that William Camutie is
attempting to have Mr. Rakes depart with property
based upon some false representation
that he's making to Mr. Rakes.
-: I understand your argument.
And what I was trying to get at was
would you say that it raises at least suspicion
of untowardness, or sleaze,
but doesn't rise the level of a crime?
Or probable cause to believe a crime had occurred?
-: I would agree with that.
I think it raises a...
There's questions there, I'll put it that way.
I think after re, after you know,
I would agree that Trooper Banks had questions
about why Mr. Camutie made the statement that he made.
-: Given the deference we owe, right,
and the inferences that we draw?
-: Correct, I think that there's...
You know, I don't even know that it rises to...
I wouldn't say that it rises to the level of suspicion.
I would say it rises to the level of there's questions.
There's questions to be asked now.
But that's not probable cause.
So I would say that the fact established
really in the affidavit that this is two individuals
who've known each other for 30 years.
They're in frequent communication, numerous phone calls.
Over 500 emails on Rakes' computer between them.
Justice Gaziano: What about the second crime?
-: The second crime really hinges on this vehicle,
this Toyota Corolla that's, you know,
that Mr. Camutie is operating, is what I would state.
Certainly there's nothing about the fact that
Mr. Camutie meets with Mr. Rakes at the McDonald's.
And Mr. Rakes is wearing the same clothes the next day
when his body's found.
And it's only a few miles from the McDonald's.
Nothing about that says that Mr. Camutie
has improperly disposed of Mr. Rakes' body.
I think that the one fact that the judge relies upon
is that a witness at the scene
where Mr. Rakes' body was found,
says that about a half an hour before the body is found,
he sees a late 90s, two vehicles.
Late 90s, early 2000, Japanese-made vehicles.
One green, one gray.
Can't say which one is which.
And Mr. Camutie is driving on July 16th,
the day that Mr. Rakes is killed, a gray Toyota Corolla.
The major issue here is that-
-: Did the witness give a description of the person
that they saw at that site?
-: Not, that's not in the search warrant affidavit.
-: It's not... Okay, great. Thank you.
-: And so the
question here is
does Mr. Camutie's vehicle match this possible description?
And the affidavit sets forth that Mr. Camutie's vehicle
is a 2012 Toyota Corolla.
It's a brand new car.
It's certainly not a late 90s, early 2000 model vehicle.
So Mr. McArt who is the witness that reports this,
seems to have some familiarity with vehicles
if he's able to tie it down to
it's a late 90s/early 2000s model.
Certainly he's not, that's not anywhere near consistent.
Without that fact I don't think you can get anywhere close
to probable cause.
-: Do the crimes bleed into each other?
The two crimes bleed into each other, though?
He's in, again I'm, we look at this as a whole.
And I understand we have to identify a particular crime.
But it's just as a matter of common sense,
the fact that the person he...
We're worried that he's engaging in some suspicious
financial activity with is dead, and his car may be there.
Just, I understand the judges sort of keeping them apart,
and so are you.
But it just seems like it's...
We don't have to keep them that completely apart.
And the fact that he's dead
under very suspicious circumstances,
seems to add to the other side of the equation in some way.
But I, it's a question, does it? And why not?
-: Even if you blend them together-
Justice Kafker: There I think you get in trouble,
don't you?
-: I don't think even then you have probable cause.
Because again, you don't have facts
placing Mr. Camutie, or his car, at that scene.
You just have the fact that Camutie has met with Rakes
the day that Rakes ends up dead.
-: He's the last person to have communicated with him.
Based on the information they got in Rakes' car, right?
And he's communicating with him nonstop.
And it's, a lot of it is about financial activity.
It's not, "Let's go to the baseball game together."
-: Correct, there's a lot of communications between them.
The issue is non of those communications indicate
that there's any illegal activity taking place
between these two individuals.
It's clear from the communications that these are two people
who have known each other for 30 years.
They're in frequent contact.
They're involved in real estate transactions.
They're involved in attempting to sell a civil judgment.
There's nothing criminal about those facts.
-: Except that I feel like you're still separating out
the two things.
And if you put them all together,
as Justice Kafker mentioned,
it does seem to start to add up to probable cause.
Attorney: Again, I would disagree.
-: I understand.
-: Yeah, I just think even if you...
I mean, he makes an inconsistent statement.
Justice Kafker: Can I ask one other question?
Do they know, is the debt in the affidavit, or not?
-: No. -: The fact that...
They get that later, the $60,000 debt, right?
-: That's not in the affidavit.
So the only thing we have in the affidavit
is these contacts between them.
Camutie makes an inconsistent statement
about who sets up the meeting,
and the nature of the property to be discussed.
And the next day-
-: So I just wanna move,
I know you have six minutes left and you're right.
-: Yes, I do.
-: Your other issue is also complicated.
Because I do have some sympathy for you
on the fact that he's just committed,
just attempted to commit suicide.
He's dependent on the officers to give him
a sponge so that he can talk.
He's on oxycodone.
If we say this is okay,
is this the most drug-induced pain case
we've ever found voluntary in knowing in?
Is there something comparable to this?
-: I would say this would be the furthest case that-
Justice: Did you look- -: That I've seen.
-: Did you look at Commonwealth versus Clark?
Which I'm remembering vaguely.
Because I remember Commonwealth versus Clark,
Clark I think had been shot in the head.
Attorney: Correct.
-: When they interrogated him.
-: And in all of those cases the Commonwealth cites,
there is a major difference.
Which is, there's a few major differences.
One of them is that in those cases
there's all these repeated references to the fact that
the Defendant in those cases
is not showing any signs of confusion.
He's alert, he's oriented.
When you read the transcript of Trooper Bank's testimony,
Mr. Camutie is definitely confused, he is not oriented.
When you look at the July 23rd-
-: What if we look at it from the lens
that the judge did, and credit Dr. Fife?
Which we have to, right?
On faculties. (Justice coughing)
-: Even then you can't get away from the fact that-
-: And I think you would be better served
to address that part of the factual findings
that are hard for you to escape.
-: Dr. Fife certainly testified to what she testified to.
And the motion judge credited her testimony.
You also have the testimony of Dr. Farrell.
And again the standard here is whether
it's established beyond a reasonable doubt
that these are free and voluntary waivers,
knowing waivers, intelligent waivers, and statements.
-: If there's two experts,
and the judge decides to credit one over the other,
where does that leave you?
-: Well again there's...
I think one of the big differences between, again,
that decides this in terms of weighing
the different testimony of the experts.
And the fact that the judge credited
one expert over the other.
Is the fact that Mr. Cam...
And it also differentiates this case
from the other cases the Commonwealth decided.
Is that Mr. Camutie's answers to the questions
indicate that he is confused, that he is not oriented.
When the police ask him, "Where did you go?
"Where did you drive to?" He can't remember.
Justice Kafker: That's the third interview, right?
-: Second.
-: In the second one he says he's confused?
Because I thought it's not until the third one
where he sort of admits that he's...
"I'm getting confused and I can't keep things straight."
-: No, it's the second.
So on the July... There's the July 21st interview
which occurs less than 14 hours after he's found
nearly dead from a suicide attempt.
When he arrives at the hospital he's in shock.
Receives 20 packets of blood,
he's on all sorts of narcotics.
But then there's the July 23rd morning interview,
which at the end of that, or well, during that interview
he's on oxycodone, he's taken it an hour before.
And at one point he says, "I don't know what happened.
"I don't know what happened in my head."
They asked him how he dragged Rakes out of the car.
He says, "I don't know.
"I don't whether I if I, I think I dragged him out.
"I don't know if I dragged him by his feet or not."
They ask him, "Where did you drive at that time?"
He says, "I don't remember. I can't remember where we went."
Justice: Is this the same interview he can't remember
where he went to high school?
-: No, that's the next one.
-: And so then at that point Trooper Banks becomes concerned
about his mental state.
And actually has to ask him whether the medications
are affecting him.
Also asks him if he's confused.
And in response to that, Mr. Camutie is laughing,
he's chuckling.
Which I would say certainly does not speak of somebody
that is understanding the seriousness
of what's going on here.
It is exhibiting some confusion, some serious confusion.
And then yes, later in that day they go back.
The Commonwealth doesn't even attempt
to enter this statement,
but I think it goes to his mental state.
That's when he says, "I'm so confused."
He names the wrong hospital that he's in.
He can't remember the name of the high school
that he went to.
So yes, there's some real serious concerns here
about Mr. Camutie and his mental state at that time.
You also have the fact that he's admitted
to the psychiatric ward the next day
for an eight day admission.
Which Dr. Farrell says is very alarming,
since most people are only admitted for three days.
He fails the Montreal Cognitive Assessment Test
while he's there.
He has, when he's admitted he's diagnosed
with a major depressive disorder.
The notes from his admission state that he's entering
with cognitive issues, problems with remote,
and recent memory recall.
So yes, I would state there's more.
Even with Dr. Farrell's opinion,
there's more than enough here to create reasonable doubt
as to whether or not Mr. Camutie
is voluntarily, knowingly, and intelligently
waving his rights and making a statement.
-: Can I ask you about the custodial interrogation?
Do you have case loss showing that if you're in the ICU
you're in custody for the purposes of
needing Miranda warnings?
-: There's no case that's perfectly on point here.
But I'd state that the case law is pretty clear on this
that Mr. Camutie
would not had been free to leave.
And he knew that he would not had been free to leave.
And that's evidence by the fact that
as soon as he did leave the hospital, he was arrested.
Certainly at that point, had Mr. Camutie said,
"With everything they found in the apartment,
"all of the evidence that they have at that point,
"the Gmail printouts."
And Mr. Camutie is well-aware of this.
The police aren't hiding this from him
when they come to talk to him.
He's the suspect in the murder now, and he knows that.
And so certainly Mr. Camutie was not free to leave.
He's in a bed, he's heavily bandaged,
he's awaiting corrective surgery.
He can't eat, he can't drink.
So I'd say there's really no question here
about whether he's in custody.
And that wasn't even really a question that was raised
in front of the motion judge.
Justice: Okay. Any other questions?
Okay, thank you.
-: Attorney Speight?
-: Good morning, may it please the court.
Hallie White-Speight,
Assistant District Attorney for Middlesex,
on behalf of the Commonwealth.
With the court's permission,
if I could sort of start where we left off,
and work backwards?
Because that's now fresh in my mind.
And I also have memory issues. (chuckling)
There is absolutely no basis for saying that
the Defendant was in custody while he was in the hospital.
He was not confined, or restricted, in any way that was,
that went beyond the normal restrictions
of being injured in a hospital.
Justice Kafker: Even if, we'll get into that.
But even if he is, it's still a voluntariness issue.
Correct? Even if-
-: Yeah, the voluntariness is the only issue here, I think.
Because in an abundance of caution,
and as this court has recommended,
police read him Miranda warnings for what, I think,
by then is the third time since the murder.
Justice Kafker: But independent of Miranda, of course,
he has to be voluntary beyond a reasonable doubt, right?
Stated- -: Yes, yes.
The Miranda wavier has to be voluntary,
and the statements have to be voluntary.
And my brother is taking facts
from the very beginning of the episode,
and the end of the episode.
The fact that, yes, when police arrived
fortunately for the Defendant,
to try to get the key to his storage unit,
and found him bleeding after a suicide attempt,
and called 9-1-1.
Justice Gaziano: That's not legally relevant, right?
I mean he lucked out because-
-: He lucked, he certainly did luck out.
Justice Gaziano: I know but that's, that's not-
-: He was then-
-: Why don't you rest?
Well, these are sort of some complicated questions
on voluntariness.
So I wanna get to them first.
-: Okay, there's no question he was in dire straights then.
By the time they arrived at the hospital 14 hours later,
he was in a very different condition.
-: So let's go through the facts that he's in.
Because the two experts don't disagree about
sort of the medication, and a bunch of other things, right?
So he's just tried to commit suicide.
He almost bled out.
He's on what at this point?
He's about to be operated on, right?
The first time he's about to be operated on?
-: About to be operated on.
Although the surgery ended up being delayed,
Dr. Fife testifies to.
Justice Kafker: It doesn't matter, though.
He thinks he's being operated on.
-: She takes it as a sign that his condition
was not so dire.
That they could put off the surgery
to stitch his veins back together.
Is she took as a just physically as a sign
that the surgery could wait.
And that's not insignificant.
He is on some pain medication.
Justice Kafker: Well talk... He's on what? He's?
-: I think he's on, I think he had morphine,
he had dilaudid 12 hours before.
Justice Kafker: And he's on oxycodone.
-: I think he's on oxycodone.
And I don't think there's any evidence
that he was on anything other than that.
-: And he can't drink anything, so he's-
Attorney: You can't drink before surgery.
-: So he's got the police officers giving him the sponges.
Attorney: Giving him the sponge, yeah.
-: And he's, but he's coherent enough to say,
"I don't wanna record this."
Attorney: Exactly. (Justice clearing throat)
He recognized the officers.
He agreed to speak with them.
He did not want the interview recorded.
And after about, I have it written down somewhere.
I think that interview was about 25 minutes.
He said, "I don't wanna talk anymore."
Justice Kafker: In that interview-
-: So he's capable of agreeing to talk.
-: Just in that interview,
does he confess in that interview?
I can't remember. Attorney: Yes.
-: So in the first, so if he confesses a lot of this becomes,
some of the second ones are not so important.
Attorney: I agree.
And the third one,
the third interview- -: Let's go through-
Attorney: We did not even offer.
-: Let's go through the details of the condition he's in.
And compare this to some comparable, okay?
Because what I'm worried about is
we're now saying a guy who is almost dead,
who's on drugs, who's sui... Just tried to commit suicide.
And he's dependent on the officers
just to give him stuff so that he can drink.
This is a volun... This is gonna be a case
that's gonna come up a lot.
I'm trying to imagine
what's gonna be involuntary after this, so help me out.
-: Okay first, I have to take issue respectfully
with "Almost dead."
Justice Kafker: Well, he committed suicide.
-: Because he is not almost dead
when the police officers arrive at the hospital.
He was almost dead when they found him in his apartment.
And Dr. Fife's testimony on this is thorough and clear
that by the time that he is in the ICU
and the officers come, he is not,
he is no longer almost dead.
He's not in shock, he doesn't have low blood pressure.
The fluids have been replaced, his pain is managed.
That we talk about, and I think this is significant,
and Dr. Fife has testimony on this point.
(Justice Kafker coughing)
We talk about pain medication frequently
only as something that could only interfere
with the voluntariness of the statement.
And if you had a lot of it, that's probably true.
The other thing it does is manage pain.
Justice: But it kind of clouds judgment, doesn't it?
That's why you can't drive.
-: It can. It can. (chuckling)
No question.
But it also can make it possible
for you to think clearly enough to speak,
if you're in a lot of pain. -: Don't they actually warn you
not to make any legal decisions
while you're on these pain medications.
Isn't that part of the warning?
-: I don't think that's part of the warnings.
I don't think I've ever seen that on a...
It's obviously not in the records, but I...
The concern is well-founded.
But given Dr. Fife's testimony, and more importantly,
because what I really wanna direct the court to
is that the judge's findings and rulings on that motion.
He summarizes the experts testimony,
but what he really focuses on
is the officer's observations of the Defendant.
Because necessarily both experts are speculating
about what the Defendant was actually feeling.
And Trooper Banks, and I apologize.
Justice: The experts are gonna know a lot more
than the police officer observes.
-: No, but the police officer knows what he saw.
Justice: Right, right, yeah.
-: And what he heard.
And how the Defendant behaved.
And it's true that in that third interview he starts to
present some confusion.
We did not offer that third interview at all.
And I don't think he said anything
particularly helpful there.
-: But really in the first one,
is this the one with the suspect versus the witness thing?
Attorney: No, that was- -: That's the earlier one.
-: That was at the police station.
That was the day before.
I think by the time he's in the hospital,
yeah, it's clear he knows what happened,
and he wants to get it off his chest, this one.
-: Now once he's got the (indistinct),
once they found they cyanide- -: Once they found...
And once he knows that they found it, yeah.
But I would direct the court to pages 123 to 125
of the Commonwealth's Supplemental Record Appendix
which has a list of cases.
And just particularly to Commonwealth v. Bell,
where we have a patient who has suffered serious burns
on various parts of his body.
Inhaled toxic fumes, including carbon monoxide and cyanide,
obvious pain, intoxicated from alcohol and marijuana,
and the statements were found to be voluntary.
Also down the same page, Commonwealth v. (indistinct),
another Defendant who had slashed his wrists,
who was in the hospital screaming with pain,
and riving on the bed,
and made statements to medical personnel.
And those were found, too, to had been voluntary.
So that's... We have three pages there of cases.
And this is certainly not the outer limits of that.
And again the, Judge Pierce focused on
what the officers saw and observed.
And he clearly implicitly credited those officers.
And that's really what I think the court should look to.
Not just what an expert says.
Although-
-: We don't have because of the-
-: I think he- -: Because of the client,
we don't have a transcript. -: You'll, you'll, yeah.
When you have them, you'll see.
Justice Kafker: We don't have, we don't...
Justice Gaziano: We can't actually listen to it,
because he rejected the recordings.
Attorney: He rejected the recordings.
-: So we can't say- -: And that was his choice,
and he was able to make that decision.
-: So we're really dependent on the police officers
for describing his coherence with the (indistinct).
-: And at trial there was, you know,
extensive cross-examining of the police officers,
extensive argument that we shouldn't believe them
because they were out to get the Defendant.
And so on, and so forth.
If there are no further questions about that issue,
as regards to the search warrant,
my brother again, would have this court take
each piece of evidence separately.
And find an innocent explanation for each piece.
-: Well I think he did a pretty good job
of summarizing that.
The problem I got is, don't the two things...
The judge also doesn't...
If I don't collapse them,
I get very nervous there's not enough here.
If this is a case where the guy is seen
walking around the next day,
it gets a lot closer that's a search,
probable cause than if he's dead after all of this.
-: Certainly the fact that he wound up dead,
and that he wound up dead before he had time
to go home and change his clothes,
and that he wound up dead six miles away
from where his car was parked-
Justice: I don't find-
-: For the meeting with the Defendant.
-: If it's not in a search warrant
to obtain evidence of murder. Attorney: No.
-: There are two different crimes.
On the larceny part,
would you agree that some type of sleazy,
sleaze going on, or untoward business dealings.
But, larceny? Where are you getting the larceny?
-: Well, where we get larceny is...
The question, I think the question of selling the judgment
is really crucial to that.
Because he very interestingly,
he tells the police about all the stuff
that they were working on.
Although he lies to them about
the purpose of the meeting,
and about who asked for the meeting.
Which again, two days later you would think
that he would remember.
He does not tell them about this $28 million judgment
that he supposedly is arranging the sale of.
That's significant.
Why wouldn't he tell the police that
when the reason that he's setting up this meeting
is, "I have some papers for you to sign."
Your money... And he literally tells Rakes,
"The check is in the mail."
"You're gonna have your money really soon."
Indicates that he either
already has control of the judgment,
or is about to get control of it.
Combine that with the suspicious failure
to tell police that fact.
And the fact that he has
not just one, but multiple convictions for crimes
involving financial fraud.
Including a conviction of 12 counts of money laundering.
Justice: Can you lawfully sell a judgment?
-: You can lawfully sell a judgment. Absolutely.
But again, we are not-
-: If he lawfully sells the judgment and he says,
"I'll pay you next week."
Is that illegal?
-: That is, that's not illegal.
And the fact that we have not definitively proved a crime,
it doesn't mean there wasn't probable cause.
And I direct the court to Commonwealth v. Anthony
for that, it's cited in my brief.
Anthony's actually a very interesting case.
And in some ways, I think instructive about this.
Where there's no one thing that makes you say,
"This is a crime and he's committing it,
"and here's what the crime is, and here's how it works."
There's, I know of no authority that says
we are required at this stage
of applying for a search warrant
to provide all the details of the crime
for which we are seeking to gather evidence.
We only need a substantial basis
for the magistrate to believe that there is a crime.
And that evidence of that crime
will be found in the place to be searched.
-: Although the irony here is that he's...
The crime that he's committing is murder, not larceny.
Attorney: Well, I think there was larceny.
-: He may be committing-
Attorney: There was larceny, as well.
-: He may be committing murder to facilitate larceny, but-
-: I think the murder was part of the attempted larceny.
And that is one of the things
that makes this case so very, very sad.
But again I just wanna remind the court,
we do not have to provide definitive proof
of criminal activity, that's Anthony.
Evasive, peculiar and mendacious.
-: Do you have any cases that talk about the outer limits,
or of a larceny type scheme
that rises to the level of probable cause?
-: I don't, I don't.
Because most of our search warrant cases tend to be murders
and drug cases, and so forth.
No, I did not find anything that was like analogous to this.
I would say look at Anthony, though.
Anthony is a child sexual abuse material crime.
Where the Defendant, it's long and cut.
It's complicated enough in the same way as this case.
Justice: Yeah, I think we understand the legal standards.
-: I think it's- Justice: Probable cause-
-: I think it's helpful. Justice: Right.
-: In this case for that sort of,
each piece by itself is not especially criminal.
But when you put it all together in a common sense fashion,
rather than engaging in hyper-technical parsing,
you get probable cause.
-: Are there cases... The dead body to me,
I understand I'm treating these separately, but-
Attorney: Yeah.
-: We have a lot of probable cause cases
where the crime is preliminary to a murder.
And so, are there cases where the fact that
the dead body weighs into this kind of analysis?
-: Oh that's interesting, I can't...
I don't think I saw any when I was writing the brief.
But it would be interesting to...
That's an interesting project for your clerks.
(all chuckling)
Who I'm sure don't have enough to do.
(all chuckling)
Justice: I'm sure they'll appreciate it.
Justice 2: We could ask for follow up briefing.
Justice: You could also- -: You also could do that.
-: We also ask you to do a 50 state survey, too.
But that's- (all chuckling)
-: You wouldn't get- -: I wouldn't-
-: The results you got wouldn't be as good.
-: I wouldn't try as a work-shifting argument,
if I were you. (all chuckling)
-: No, I would not dream of it.
I don't know of one.
I think it does factor in.
I don't think you need to separate them rigidly.
But I do think without the dead body,
you still have attempted larceny by false pretenses.
Given the Defendant's history,
given the Defendant's behavior,
given the lying to the police,
and the sort of strangeness of what he seems
to be trying to do.
Justice: I think it's enough, so it's larceny
of the money of the judgment.
-: I think... Yeah, yeah. I think that's the-
-: So where does the property fit in?
That the Dorchester versus Wilmington?
-: That... He's either trying to...
The plan is, the way I understand it...
Either the proceeds from the sale of the judgment,
minus Camutie's presumably is taking a cut.
The Defendant's remainder of that
he seems to be trying to get him to invest in
this Wilmington property that,
as far as police could tell at that time, doesn't exist.
(Justice coughing)
Justice: But there is- -: But again,
we don't have to spell out all the details of it.
Justice: There is no New York judgment, right? It's-
-: There is a judgment. I mean it's-
Justice: There is a judgment.
-: It's uncollectible.
Justice: There is no New York.
-: There was no, we didn't know that at the time.
But the Defendant when he confessed
said there was no guy in New York.
(crosstalk drains out dialogue)
-: Basically, this guy's a sucker.
And he keeps trying to hit him up for money.
Attorney: Basically, yeah. -: In different ways, yeah.
-: Just very briefly on the question of 33E review.
The Defendant has not really made an argument
for why this court should reduce the judgment.
And I don't think there is one.
The Defendant poisoned his friend of 30 years.
He drove around with his friend in the car
waiting for him to die.
And when he was sure he was dead,
he dumped his body, his friend in the woods,
for a jogger to find the next day.
Apparently it was all for money.
We don't really know for sure.
There's nothing in the judgment
that is against the weight of the evidence.
And I see nothing mitigating in it.
And I would simply ask this court
not to second-guess the jury, but to affirm the judgment.
-: Can I just ask you to address the-
-: Oh, yes.
-: The crime of improper disposal of the body,
and the affidavit's supportability on that.
Attorney: Oh, oh, oh, in the search warrant context?
-: Yeah. -: Okay, oh my big finish.
Justice: We heard it.
(Hallie chuckling)
-: Again, if you look at it in the context
of the entire scheme, and the entire encounter,
it's stronger.
But I think even if you separate it out.
-: But couldn't you just specifically draft the...
Lack of nexus between the Corolla
that the Defendant actually was driving.
And the description that the witness gave.
-: Witness said two cars, Japanese manufacturer.
So far, fine.
One was gray. So far, good.
The thing that really seems to interfere
with the judgment that this provides probable cause
is the model year that they were from-
-: Well the fact that there are a lot of
gray Japanese- Attorney: A lot of gray-
Japanese- -: Manufactured cars-
Attorney: No, that's true. -: On the road.
So if this is enough for Camutie,
I wonder why it wouldn't be enough for everybody
driving a gray Japanese manufactured car.
-: Because the Defendant was found six miles
from where his car was parked,
wearing the clothes in which he met with the Defendant.
Is it possible that he encountered someone else
who drove him to the woods,
and he died of natural causes there?
Sure.
Is it possible that he,
when he went to this other meeting,
according to the Defendant, at the same McDonald's,
met with someone else who actually killed him,
and dumped him in Lincoln?
Sure, that's possible.
The fact that there are alternate explanations
does not defeat the finding of probable cause.
A car that is arguably consistent,
yes, it's not distinctive in any way.
And frankly, I would like to see a picture
of a 2000 Corolla next to a picture of a 2012 Corolla
before I say, "There's no way these could be the same car."
Justice: Well, that's the Commonwealth's burden, right?
It would of been great if the Commonwealth (indistinct)-
-: No because, no, we got a warrant.
Because we got a warrant.
-: It's the Defendant's burden
to show it wasn't probable cause.
Justice: Okay.
-: If we just gone and grabbed the car,
it would be our burden.
But no picture was ever provided.
Do I think it's overwhelming? No.
Do I think it's enough? Yes.
I'm now over my time. Thanks very much.
Justice: Thank you.
(papers shuffling)
(Justice coughing)
(papers shuffling)
(Justices quietly conversing)
(Justices chuckling)
-: SJC-12982,
Commonwealth versus Lee Manuel Rios.
-: Okay, Attorney Reedy.
-: Morning, Your Honors.
May it please the court.
My name is James Reedy, and I represent Lee Rios.
If I could start,
I'd like to start with the Shot Spotter issue.
The Shot Spotter evidence was a key factor
in the jury's verdict.
The Commonwealth argued, it provided hard evidence.
As they said in their closing,
"To corroborate the cooperating witnesses' testimony."
-: Can you? I want you...
That would be very helpful to me
if you could be more specific.
Because from what I understand,
bullets were found next to the body, right?
Attorney: So there is-
-: Is there really any doubt of where he was shot?
-: So there is one casing found,
with approximately seven feet from the body.
There were four shots in total.
Well excuse me, Shot Spotter said there were five shots.
There were four wounds to,
or four gunshot wounds to the victim.
There was one to the back of the head,
one to the neck, one which was a through-and-through,
from the upper arm to the lower arm.
And then, one to the lower leg.
Three slugs were recovered at the autopsy.
The head, the neck, and the leg.
Which would of left one slug.
However there was only one,
as far as the evidence was concerned,
bullet hole in the sweatshirt
that the victim was wearing at that time.
And the bullet hole was towards the upper right arm.
So the question becomes,
could that had been a slug that was lodged within,
or trapped within the sleeve that was then,
that was then deposited at some point
when the body was dropped there.
And I would say it wasn't produced at trial,
but it was part of the evidence
at the motion for the trial. (Justice coughing)
That there was no reporting of gunshots
in that area that night.
Including from the resident of the building
by whom the body was found next to.
There was no report from the next-door neighbor.
The next-door neighbor had told police that
the day after the shootings supposedly occurred,
which was approximately 12 to 15 hours
before the body was discovered,
she walked the yard outside of her house,
looked in that particular area where the body was found,
and didn't see a body.
So it would suggest there was at least some evidence,
although admittedly not produced at trial,
but available to defense counsel
that might had suggested that body was placed there after.
Justice Kafker: So one other question.
-: Sure.
-: On the importance of it.
Does it...
This, whether it's 250 feet away, or here.
Why does it matter in this case?
This isn't a case where...
There is a shooting, we know that. There's a dead body.
What difference does it make if it's 250 feet away, or not?
Attorney: It was 250 yards.
-: Okay but so again, what-
Attorney: Of two and a half football fields.
-: You say overshot him.
He says your client shot him.
I'm just not sure I understand what...
You're raising a very interesting, complicated issue about.
But I'm wondering if it has
any meaning in this case, really?
-: So certainly, there's a certain volume of evidence
present within this case.
Justice Kafker: A lot of evidence.
-: As I said, a certain volume of evidence in this case.
I do think though that if you look at how the Commonwealth
structured their argument,
and what they had said to the court was, you know,
at one point during a sidebar conversation
that the Commonwealth said,
"That I don't think half of the evidence
"is going to mean anything here,
"if the jury doesn't believe Medina's testimony."
Medina was one of the cooperating witnesses,
one of the witnesses who had been charged
relative to the homicide as part of a conspiracy.
And was essentially the Commonwealth's principle witness
within this case.
What Shot Spotter did was provided a scientific,
scientific backbone for the Commonwealth to say,
"You should believe these cooperating witnesses."
"You should believe..."
It sort of provides
the overview by which the jury should look at this case
because no matter-
-: Can you give me a specific example
of how the Shot Spotter corroborates Medina?
-: If the shooting occurred at about 3:23 a.m.
on March 24th. -: She says that.
Justice: Two, 2:32. -: 2:32, I'm sorry.
I said 3:23. Thank you, Your Honor.
Justice Kafker: She says that? Because she's not there?
-: Well she does say that the body's found soon thereafter.
That she goes with two other individuals and finds the body.
She says the Defendant is in the area at that time.
She says the Defendant has called her
immediately after the homicide to tell her
that the shooting just occurred.
So it provides corroborating evidence for what she said,
the timeline she lays out (indistinct).
-: But isn't it a fact that the body
is exactly where the Defendant tells her it's going to be?
That's pretty good corroboration as opposed to
whether the Shot Spotter does it.
-: The body is exactly where Medina tells the police
the Defendant told her the body was going to be.
And that, Medina, doesn't give that statement to the police
until after the body is found in the middle of daylight
in a very public area,
with a crowd gathered around the body
at the time it is discovered.
So it's not as if Medina says to the police
before they find the body,
"The body's located at 1470 Dwight."
She says, "The body was found at 1470 Dwight,"
after the body was found at 1470 Dwight.
Justice: Do all the ballistics match up?
-: There's no evidence relative to the matching
of the ballistics,
other than the fact that they were
the same class characteristics.
That they were all .38 caliber.
There was a stipulation, there was no ballistics testimony.
The stipulation was they are all .38 caliber.
-: Did they look at all the expended projectiles?
They're all the same?
-: They are all .38 caliber,
but there's nothing to correlate them
to one particular firearm. Justice: They never did.
-: Well even a specific firearm, but even in general,
that they share the same characteristics of one.
Justice: That evidence never came up before the jury?
-: Only by way of stipulation.
That these, the ammunition, it's .38,
and that the firearm that Jonathan Rivera says
was provided to him by Rios,
which Commonwealth alleged was the murder weapon was a .38.
Justice: .38.
-: But there was nothing to say that was,
independently that was the murder weapon at the time.
I do think, understanding that the...
That this particular case,
given the volume of evidence may not be
the proper vehicle for this court to address today.
But I do suggest that the Shots Spotter system
is highly unreliable.
There has been nothing to validate it.
And this is a little different than Shot Spotter usually,
how Shot Spotter usually arises.
Typically it's police respond to an area,
because there's a Shot Spotter report.
Here the Shot Spotter evidence was used,
they call it forensic validation tool.
To sort of backtrack,
and demonstrate that a shooting occurred
at a particular time, at a particular location.
There have been two cases, at least on record,
that I could find that have dealt with the issue
of where spot spotter is used not as...
I wanna say-
-: So there hasn't been a Daubert-Lanigan
in Massachusetts on Shot Spotter,
where they go through the whole Daubert-Lanigan protocol?
-: Not that I could find.
Most cases tend to rely on it, too.
And while in other instances,
courts have gone through a Daubert-Lanigan hearing,
and found the Shot Spotter is reliable.
In most of those instances, however,
the question was whether Shot Spotter
could accurately detect gunfire.
Not whether Shot Spotter could conduct a backtracking,
or after-action report.
-: So what you're saying,
I think it's the question that Justice Kafker
kind of led off with is,
were the case that was reactive,
the fact that there are shell casings on the ground,
with Shot Spotter alerts is pretty darn good evidence.
We don't need to get into this.
-: I would say that there's one shell casing on the ground.
There are no other shell casings.
-: I was addressing what you said the normal casings...
The normal cases, Shot Spotter alert,
police go there, there's ballistic evidence.
-: Please go there immediately,
and immediately find ballistic evidence.
-: Right. -: It's not that police...
In this case, please don't go there
and find ballistic evidence.
But that ballistic evidence is 25 hours
after the Shot Spotter report.
And where there is not any evidence to say that,
and again, understanding that the reasonable-
-: And as I've seen this play out,
usually if there's a Shot Spotter challenge,
it comes through experts. Attorney: It does.
-: And the court requires someone from Shot Spotter
to come in, and there's a defense expert...
Attorney: Definitely.
-: Like this case, and away we go, right?
-: And obviously we don't have a defense expert in this case
until a post-trial situation. Justice: Post-trial.
-: Wasn't the counsel,
in addition to the bullet on the ground,
wasn't there also evidence that the victim's body
was literally frozen to the ground?
-: So there was a police officer who testified
that the victim's body was frozen to the ground.
There was nothing then beyond that to say
how long it would of taken for the victim's body
to be attached to the ground.
There was nothing to say whether the victim was
actually literally frozen,
or whether there was some stage of rigor had set in.
It was the testimony of one of the officers
who responded to the scene.
It wasn't a police detective,
it wasn't a member of the medical examiner's office.
I do understand the court's point,
that is obviously potentially evidence of how long
that the body was there for a period of time.
But there was nothing to indicate
how long that body was there.
And any idea of how many hours
it would of taken for the body to adhere to the ground.
Justice: And there are, how many witnesses testified?
Because a bunch of them come to-
-: (indistinct) County.
-: Yeah so but, I can't keep track,
because you guys keep changing from first name
to last name. (attorney Laughing)
Your brief, in particular, made it that hard to follow.
Attorney: My apologies.
-: But four, or five, people are involved
in the cleanup exercise.
Taking the crutches, removing his phone.
So we have a lot of people corroborating.
I understand they're all may have an axe to grind here.
-: And incentive, given the fact that they were
ultimately charged with accessory after,
or conspiracy to commit murder.
-: You've done a great job of alerting us
to the Shot Spotter thing.
Let's focus on some of the issues in this case then,
other issues.
Do you wanna address the mail issue?
Isn't the response to...
Once he's heard, talking about bringing drugs
into the prison, and the person on the other line says,
"I don't want you to directly send me a check for the,"
you know, putting the marijuana paper into the prison.
Don't they have the right to look at it, the mail,
and see who else he's communicating with on this score?
-: Actually I would suggest,
well, let me take the check issue.
In order for a check to be issued from the prison,
it's not as if Mr. Rios could go back to his cell,
write a check, and put it in an envelope.
He would have to go to prison officials,
ask for a check to be issued from his canteen money.
The official would have to ensure
that he had enough in that.
They would have to then write a check.
I believe the testimony was the bursar,
for lack of a better term,
from the prison would come to the cell,
would fill out the check in front of Mr. Rios
to ensure that it was addressed to the right person,
to ensure that it was addressed to the right amount.
And then that check would be placed in an envelope,
and then mailed back. Justice: But again-
-: But there was no evidence to indicate it at all
Mr. Rios had gone through that process.
-: But once he...
The prison's concern about
this kind of marijuana paper arriving-
Attorney: Of course.
-: And he is saying, "I wanna get involved in this business."
And the person on the other line says,
"Look, you can't pay me directly."
So then, doesn't that raise the whole issue
of how this is gonna happen,
and how it's gonna be paid, and-
-: I'm not suggesting that further investigation
wasn't warranted, it certainly was here.
The question is, given the information
that the jail officials had at time,
whether they had a specific reason to believe
that Mr. Rios was sending a check to his sister,
to Tiffany Matos.
And yes, the name Tiffany does come up
during the course of one of those phone calls.
But that call wasn't listened to by the officer.
They didn't understand that name may come up
until after the letter was already seized.
Because that call was made on July 6th.
The letter was received on July 6th.
And the officer who listened to the calls,
because he was a Spanish-speaking officer,
and Mr. Rios is a native Spanish speaker,
did not listen to that July 6th call until after,
in the days after it was made.
He didn't provide a specific date,
but he said, "I would listen to the call.
"I didn't listen to the calls live.
"I would listen to the recordings
"on the days that followed."
So he didn't specifically say,
"I listened to that call on July 7th at 2 p.m."
But the interference certainly is,
he did not know that Tiffany Mat,
that Tiffany, not Tiffany Matos,
that the name Tiffany would even come up
during the course of a call,
a course of a call unrelated to the scheme
to smuggle K2 into the prison,
until after that letter had already been seized.
So at the time they seized that letter,
they did not have any connection between Tiffany
and the specific, anybody named Tiffany,
and the specific scheme.
Nor did they have any evidence at the time
that Mr. Rios was somehow sending money out.
Because they hadn't gone through the steps
to determine whether Mr. Rios had even sought a check
to be cut from the bursar's office off his canteen.
And that's where the issue lies.
It's certainly not saying that the jail did not have
a reason to believe that Mr. Rios was involved in
some sort of conspiracy.
But whether they had the connection
between that outgoing letter specifically to Tiffany Matos.
And I don't think the fact that he was involved
in the scheme, gave them carte blanche to examine
any letter going out.
Certainly any letter coming in, absolutely.
But any letter going out,
that suggested that they needed additional steps
in order to be able to do that.
-: Can you explain the legal basis for the argument
that you just made?
-: That's a good question.
So obviously there is a lessened degree
of privacy within the incarceral setting.
I would suggest that there is not,
especially for pre-trial, the detainee,
there is not an absolute abandonment
of the right to privacy
when you enter into the prison setting.
It's even less, and yes it is.
And there is certainly not,
I can't point to a specific case that says,
"Yes, this is what happens."
Because there hasn't been a case
that's necessarily directly addressed this issue.
Typically it's mail coming into the prison
is they're trying to determine contraband coming in,
rather than evidence going out.
Or there might be an instance where they have an indication
that the Defendant is sending out information
that's more concrete than what we have here.
So I would suggest that,
that given that even with a lessened degree of privacy,
that prison officials still need to have
some sort of connection beyond a mere conspiracy
to connect a particular piece of outgoing mail.
Especially here where there was not any indication
at the time that Mr. Rios was incarcerated is that they,
that he was given warning that they could
specifically examine outgoing mail.
-: So just to get really concrete about it,
here we have a situation where, I think,
you're conceding that there was a...
Activity afoot where the Defendant, that they had reason,
the prison officials had reason to believe
that he was trying to orchestrate bringing drugs
into the facility, specifically using the mails.
Not in any other way.
Attorney: Correct- -: And so-
-: It's hard for me to concede,
it's hard for me to say otherwise on these facts.
-: Yes, so taking that as a given,
what you're saying is that there is some sort of standard
that at that point, having that information,
they cannot just start reading all of his mail
on the basis that he is engaged in a scheme
to try and bring drugs in.
And they have to apply some sort of legal standard
to which mail they're going to read.
What is that standard?
-: So what I'm trying to draw distinction in those
between incoming mail, and outgoing mail, in this sense.
Justice: Well that's my question.
-: Okay, okay, fine.
-: So you're saying he, because he,
I think was the guy he was talking to on the phone, Peter?
Was that? Attorney: Yeah, yes.
-: Peter. Attorney: Yes.
-: So are you advocating what I'll glibly call it,
Peter Standard... (attorney chuckling)
That he could only read his mail to Peter.
Attorney: No.
-: So what is the standard that you're saying where you,
where they're gonna, he's gonna be using the mail
to commit a crime and bring drugs into the facility.
What is the standard that prison officials have to apply
in assessing whether they can read
a particular piece of mail outgoing?
-: I would suggest they have to have
a connection between the...
Between the outgoing letter itself.
Whether that's what the person addressed on it,
whether that's Justice Kafker's point.
If there had been,
if he had cut a check to anyone at that point in time.
-: Well they can send, but someone in prison
can send letters to people that say,
"Pass this along to so-and-so."
-: So let me also say this, which just struck me.
I also think that they have to provide
some sort of notice to the Defendant
that they're, that the outgoing mail can be read.
There is notice here certainly
that his incoming mail can be read.
There was notice that his phone calls
would be recorded and listened.
Justice: Is this part of prison regs?
-: I'm sorry?
Justice: Is this part of the prison regs,
prison regulations?
-: So the prison rights were included within the appendix.
If you look at it, they actually never say
we can look at outgoing mail...Those-
Justice: They just say, "Mail," right?
-: It says, "Mail," but then it says, "Incoming."
Then it says, "Incoming mail," specifically.
There is no suggestion with (indistinct).
There is nothing concrete within the outgoing,
within the regulations itself that says
they can scan incoming, outgoing.
-: But there is a policy specifically
that was available in the law library, was there not?
-: So there was a policy that was in the law library.
They weren't, Defendants weren't specifically noticed,
were given notice that there was a specific policy
relative to mail.
They were told, "Look, if there's not any other regulation
"you wanna find, you can look at what's in the library."
The actual regulation that was produced
by the Commonwealth was a regulation that was issued
subsequent to, well I shouldn't say that.
Was dated subsequent to the Defendant's incarceration.
And there was no connection to say that the policy
that we've introduced was the same policy
that would of been available to the Defendant
at the time that he was incarcerated.
Now that policy is dated prior to, I believe,
prior to July 6th.
But the Defendant was incarcerated in April.
The manual says, "If you wanna know anything else,
"go look at the regulations."
There's no indication that he would of been,
that regulation was in place at the time
he was incarcerated.
Nor is there any information that would say
that he was provided notice of the change in regulation.
I would say one of the important things
when it comes to recording phone calls,
is that notice is provided.
And I haven't been able to find a case
where the court says (indistinct).
Justice: That's because they plaster it
on every phone call.
-: Absolutely, and if there was,
if the Defendant had been told by a prison regulation
that says, "Your outgoing mail can be scanned,"
I can't raise that issue, to be frank.
The question becomes to what extent did he have notice
that the outgoing mail could be scanned,
there would have to be a regulation provided
so that the Defendant is provided-
-: But wouldn't it be common sense
that the Defendant would know that he can't provide payment
for his marijuana deals?
He can't use prison mail to pay for his marijuana deals?
-: Well, it would be common sense.
That's actually not what he did here.
He sent a letter to his sister.
And so it's not whether it would be common sense
the Defendant would know that outgoing mail
could be used to pay a marijuana bill.
It's common sense that he knew that his mail could be-
-: He's engaged in the scheme to sell weed paper
using the mails, right?
Attorney: I'm using weed paper for now on.
-: Okay. (chuckling)
-: I think obviously he,
whether he knew or not is a different story.
I think that whether he should of known,
he should of known that importing weed paper
into the prison was a serious violation
of prison regulations.
Whether he knew that his outgoing mail
could of been seized, even regardless of the fact
that he was potentially involved in a scheme
to import that into the prison,
I would suggest is a different question.
-: But it's clear that he didn't know
that they were reading his mail.
He wouldn't of written the letter
if he knew that they were reading his mail, right?
(crosstalk drains out dialogue)
-: Let me put it this way, I would hope not.
I would hope not.
-: On your analogy to the phone calls,
do you think those are affected at all
by the wiretap act, and the requirement in that act?
That notice be provided to both parties
that the recording is happening?
-: So it's a question I didn't consider,
but I think there's general concept.
Although I don't know of who
we specifically address in this case.
But when you get a jail call,
you're told that the call is being recorded.
And I do think courts have found that the notice within,
as long as it's posted in a clearly visible area,
that the notice provided to inmates is certainly enough.
-: Right and so that would account for the fact that
the mail might be treated
slightly differently then (indistinct).
-: I would suggest that it doesn't necessarily indicate
that the mail would be treated entirely differently.
I do think that, for instance,
simply because there's a post it,
a poster that says your phone calls are being recorded.
Now with email, the prisoners are able to maintain.
They're also told separately that
their email is also subject to being reviewed.
I think if they weren't told that,
there could be an expectation,
given the fact that the prison officials have told you
this is being subject to monitoring.
But you're not told that something else
is subject to monitoring.
A reasonable person could conclude,
"Well, my phone calls are being monitored,
"but no one's told me that my email is being monitored.
"No one's told me that my mail is being monitored.
"They'd tell me if it was."
Justice: Okay.
-: And seeing no further questions for the court, thank you.
Justice: Thank you.
Okay, Attorney Lynch?
-: Good morning, may it please the court.
Travis Lynch for the Commonwealth.
(clearing throat)
To start with the jail mail issue.
(clearing throat)
This was not, I think in the Defendant's opening brief,
it's conceded that this is not actually
a fully preserved issue.
But in and when you read the pleadings below,
it was actually out-litigated in a first amendment claim,
and also an assertion that the jail
didn't follow their own policies.
Less so, a fourth amendment.
Fourth amendment is not even cited in the original motion.
And there was no development of an Article 14 claim
to below, either.
So I think we're limited to substantial likelihood.
And at the threshold,
the Defendant doesn't say in the outset,
"I didn't know that my mail would be monitored."
And so I would rely heavily on the Miller case.
Where the court really went no further than
he didn't establish that he knew, or was unaware,
that they would be monitoring his mail.
To somewhat, to the somewhat friendly question regarding
did the Defendant actually know that
they were monitoring his mail?
Because he said all sorts of horribly,
incriminating things in there.
He was making telephone calls on a recorded line
that he knew was being recorded,
talking about importing dangerous narcotics into the jail.
So I don't think that even if he knew,
I don't think that would of stopped him
from incriminating himself in communications.
I don't think that the wiretaps that...
The wiretaps statute has any applicability to a letter,
because it's not a (indistinct).
I'm not sure, I wasn't really sure of what your question,
what Your Honor's question was to counsel, but.
And obviously there's no question about
the ability of the jail to monitor the telephone call.
That's not an issue here.
They have, he has actual notice that the jail's
monitoring his phone calls.
Justice: Can I ask you to address the Shot Spotter issue?
-: Sure.
This is not a case,
I don't think there was no Daubert-Lanigan motion
in this case at the initial trial level.
There's never been a request for a Daubert hearing.
Justice: What was the motion that was made?
-: Essentially it was Shot Spotter
won't give us enough information
to litigate a Daubert claim.
Again when confronted by the trial judge,
trial counsel says, "No, this is not a Daubert motion."
I'm paraphrasing, but that's what she said.
-: So it was a preface to a Daubert.
In order to get the information,
in order to make the Daubert not showing.
-: That's my understanding of the point of their motion.
And then they had (indistinct) idea
in the middle of the trial.
And then the judge said,
"You have enough to have made a challenge
"if you had chosen to."
I would note this case was heavily litigated.
It was a 2015 indictment
and it comes to trial in early 2018.
There's, I've lost track of the number of pre-trial motions.
There's multiple evidentiary hearings.
The only one that's on appeal here is the pre-trial,
the jail mail issue.
It's not as if they couldn't of made that argument before.
-: Did the Commonwealth make much of the Shot Spotter?
I mean, I can see they're not so focused on it.
I mean but, I mean did you belabor it?
Because I just don't see it's relevancy here.
But did you go around saying this corroborated
the witness testimony in a number of occasions?
I haven't read these transcripts yet.
When I read the transcripts,
am I going to find the prosecutor jumping up and down
and saying, "And this is confirmed by the Shot Spotter.
"And this is confirmed by the Shot Spotter?"
-: The trial prosecutor does say that the testimony
of the trial witnesses is to a degree,
like he does say it a few times in the transcripts.
I would agree with that.
But he's also saying things like,
"They're also corroborated by things like
"the telephone records."
Because there's a variety of,
people are making cellphone calls all throughout
the events of this case.
Those records are also in evidence.
I didn't get into it in great detail in the briefing.
But those records were in evidence.
So trial prosecutor is saying
they're corroborated by the Shot Spotter.
They're also corroborated by telephone records.
So it's true that he said that we did rely on it below.
But it just wasn't,
I don't think it was as nearly as important
as defense is making it out to be on appeal here.
And again-
-: And what difference would it make
if it was 250 yards away, versus...
Because they seem to have a pretty good point
that the echo, removing the echo,
and rejiggering the location is subjective.
And they would of been able to show that much better.
But does it matter what,
whether it's 250 yards away, or not, here?
-: I don't think so.
Because there's evidence that places the Defendant
and the victim in this area right, you know,
inferrably right before the murder happens,
there's the testimony of,
I believe her name was Melendez.
And the taxi driver that establishes
that they go to this area of Springfield.
The taxi driver drops them off on Calhoun Street.
The body is found in near 1470,
I believe that's the address, of Dwight Street.
Calhoun and Dwight Street intersect.
1470 is at that intersection.
So the taxi driver drops them off
right near where the body is found, essentially.
And it was a discharge,
it was the remains of a bullet.
It wasn't, I believe the evidence was,
it was the remains of a bullet was on the ground,
not shell casing.
That's my recollection of the testimony.
And it was, the body was frozen, found frozen to the ground.
So we don't have a Daubert hearing in this case.
There's, they come on newly discovered evidence claim.
The judge said, "It's not really newly discovered."
Given that the testimony was six months before
the Green testimony. -: How would defense counsel
recently had know about Green's testimony
in California six months earlier?
-: Well, there's a newspaper article about it
that could of been found.
-: [Justice Wendlandt] Where was that published?
-: It was in...
It was in a San Francisco area newspaper, and was...
I mean, I'm not sure if...
I presume it was available on the internet.
Because that's where I found it,
and that's how I brought it to the attention
of the trial judge.
Also-
-: And Green had previously testified that
Shot Spotter was reliable.
-: Green had testified, yes, in some other state.
And it was noted in an appellate decision that the-
-: So why would defense counsel reasonably be trolling
the internet for an expert named Green,
who had previously sworn that the Shot Spotter
technology was reliable
for his subsequent different testimony that it wasn't?
How is that reasonable?
-: Well the article is about Shot Spotter.
So I think you would be looking for information
about Shot Spotter.
That would be my point.
But again, even if it's not,
setting aside the question of whether it's newly-discovered
for all the reasons I've already stated,
there's no doubt cast on the justice of the conviction.
The trial judge himself says,
"This trial evidence was completely overwhelming."
Maybe he didn't use the word completely.
He said, "Overwhelming."
And on appeals, this court has to defer to that
because he was the trial judge.
That there was, granted a lot of this evidence
is in the form of cooperating witness testimony.
But there's other witnesses who aren't necessarily
cooperators, such as, I believe Michael Rivera,
was a witness who testified to Defendant's confession,
or admission to having killed the victim.
He is not a cooperator.
So you have multiple...
I mean, at a certain point what you have,
so many cooperators who are all saying
essentially the same thing.
It really undercuts the weakness of them being
cooperating witnesses.
There's just so much evidence in this case.
That the Shot Spotter evidence is not,
just not particularly important I would submit.
-: Can you address the second issue about the change?
I can't remember which...
Again, there's so many characters here.
The- Attorney: (indistinct).
-: One of them changes his testimony.
One testifies that they're going to rob and kill Lopez.
And then when he pleads guilty,
he pleads only top the robbery, right?
Attorney: That's not accurate.
-: Okay, go ahead.
-: That person is not a witness at the trial.
So he doesn't change,
that person doesn't testify at the trial.
Justice: Who is that person, because I think-
-: That's Johnathan Gavera.
The Gavera who testifies is Nathan Gavera, his brother.
So that might, there's been confusion in the briefing.
But that Johnathan Gavera is-
Justice: He doesn't testify?
-: No, he is not a witness for the Commonwealth.
Justice: So we don't have to worry about that issue?
Is that what you're telling me?
-: Right, because that person...
It's not like that person is recanting,
and giving a completely different version of event.
And also there's evidence at trial
that there's talk of a conspiracy to rob.
And all really that this plea is,
that's all that he was willing to plead to.
And also it doesn't matter for an additional reason,
because while he's simultaneously pleading guilty
to conspiracy to rob, he's saying,
"I'm also an accessory after the fact to murder.
"And the Defendant is the person that I helped."
So at the same time, in the same statement,
he's saying, "Yes, I conspired to rob Lopez
"on that earlier location."
"And then I helped the Defendant cover up the murder."
Which they'll, inculpates the Defendant.
So that casts no doubt
on the justice of the conviction, either.
(Justice coughing)
Regarding the 33E issue,
if the, a fact finder accepted the testimony
of these witnesses, it's obviously first degree murder.
There's no reason to reduce the verdict.
The other point is
we agree with the Guardado claim.
There are other firearms convictions
that are not affected by the Guardado issue here.
The improper sale of a firearm,
and the illegal, or the un, improper storage
of a large capacity weapon where children were present.
For which the Defendant received
a consecutive 14 to 15 year sentence
on and after the murder.
Justice: So you're just conceding on the licensing issue?
-: Correct.
Justice: Is that clear on the briefing that you did,
just made that point?
-: I did concede that,
I think I identified the counts.
-: Okay.
But Guardado only applies to some of those accounts?
-: Right, because lack of license doesn't,
is not an element of improper storage.
Well, I don't think there's any briefing about
whether there's a licensure component to improper sale.
But that's not before the court.
We're just conceding on the Guardado issue
as to the 10A and 10H convictions.
And ask that you affirm otherwise.
Justice: Okay, thank you. -: Thank you.
-: Court all rise, please.
Hear ye, hear ye, hear ye.
All persons having anything further to do
before the Honorable the Justices, may it please the court.
(dialogue drained by audio mic popping)
This court is now adjourned
by the State Commonwealth of Massachusetts.
Please remain standing as the Justices exit the court.
(audio microphone popping)