WEBVTT
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SJC-13548.
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Commonwealth versus Thomas Mercado.
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(papers rustling)
Diet Coke.
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Hey, can you get Diet Coke?
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I need an IV down here, I'm dying.
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(Justice chuckles)
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Okay, help me with your last name.
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Amy Codagnone.
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Attorney Codagnone, please.
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I think it's afternoon at this point.
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Good afternoon, your Honor.
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It's Amy Codagnone, on behalf of Thomas Mercado.
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Through the progress of science,
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we now know that the identification evidence
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that was critical to Mr. Mercado's conviction is,
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and I quote, "highly unreliable
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and that the identification of Mr. Mercado
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as the shooter is at great risk of being
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in error," end quote.
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This new evidence calls into question the justice
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of Mr. Mercado's conviction,
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provides him a ground of defense
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that was unavailable and unpursued at the time of his trial,
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and is counterintuitive to jurors.
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The science tells us that they would place,
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and they did place, undue weight on this unreliable
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and potentially false identification-evidence.
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In terms of whether or not Mr. Mercado's conviction
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should be reversed, there's two prongs that this court needs
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to consider on newly discovered evidence,
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and last week the court decided the Gaines case,
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which I would suggest answers some of those questions.
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The eyewitness identification science itself
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is properly considered newly discovered evidence,
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and the motion judge's finding here
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is adequately supported in the record.
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The court found that there was a 15-year acceleration
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that had occurred after Mr. Mercado's trial
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and development of the science.
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The court found also that this court's decision in Gomes
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sort of changed the law in terms of whether or not
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the science was available to defendants
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in determining that in 2009,
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the science was not available to Mr. Mercado.
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At the time that he was tried,
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defense lawyers were not seeking funds,
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getting funds, consulting these experts,
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and now the recognition has changed
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because we now know that jurors
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do not understand the science,
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and are unable to apply it without some guidance.
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So, the question I think for this court is whether
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the court correctly reviewed the trial record here.
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He was not the trial judge, he was a motion judge.
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And I would ask that after a de novo review
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and looking at the trial record here,
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that this court find that where
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the eyewitness identification science
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is the only evidence that places Mr. Mercado
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at the scene of the crime,
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at the time of the crime,
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and where we now know that that evidence is unreliable,
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that would have probably been a real factor
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in the jury's deliberations.
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Well, his, I'd like to talk about that
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because it's a little bit weird.
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His own testimony places him at the scene of the crime,
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I'm not gonna say at the time,
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but, like, around the time on the same evening.
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And it's not a case of stranger identification,
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except potentially for the victim's brother.
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And the underlying premise of the expert opinion here
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is at odds with the defense theory presented at trial.
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And I don't think that helps the defendant
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in establishing prejudice.
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The defense at trial was not mistaken identity,
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was deliberate misidentification.
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In other words, these witnesses fabricated-
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Yes, your honor.
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"Not that they did not recognize me,
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but they fabricated that I was the perpetrator."
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Sure.
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So, I don't really see
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how the eyewitness identification testimony
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bears on that defense.
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It may bear on a strategy
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before the defendant decided to take the stand,
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but once he took the stand, and this is the defense,
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I'm having a hard time seeing how this all works out.
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So, there's two things
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that I'd like to address there,
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and that's the familiarity piece,
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which Dr. Franklin says that the familiarity
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that was gained from that prior visit
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to the apartment building earlier is not,
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is actually evidence that predicts the later identification
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of Mr. Mercado as the shooter.
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But just addressing that second part
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so that I don't forget to,
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with regard to the defense,
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I think the point here is that this opens up
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an available defense that wasn't available
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to defense counsel at the time of trial.
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And the defense that was pursued
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was one of fabrication, right?
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That Martinez and Cripps were lying
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to protect the true killer
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who was a drug dealer named Polon.
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And I can see why that lacked credibility before the jury,
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because, first of all, Martinez had only known Polon
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for the one week that she was using crack in that apartment.
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And so her incentive to cover up for some man
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that she knew for one week really
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doesn't make a ton of sense.
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The defense also doesn't address why
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the victim's brother would get up from the witness stand
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and say, "That man killed my brother."
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It literally does not account for that whatsoever.
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There's no reason why he would be lying
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to protect a drug dealer he also doesn't know.
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And so this gives him a new grounded defense
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that wasn't really understood by trial counsel
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I'm confused on that,
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'cause forget the Jenga tower legal standard.
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Yes.
As glib as it is.
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The legal standard is whether or not
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the newly available evidence would be a real factor-
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Right.
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In the deliberations as it was done at trial, correct?
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Not whether or not there would've been a change of test
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of strategy had this thing been available.
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I somewhat disagree with the court on that
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because I think that in some of this court's cases
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that the court talks about
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how it opens up available defenses.
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So, for instance, in Eps,
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the defendant didn't have an expert
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who talked about shaken-baby syndrome.
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Sure.
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And it opened up a new sort of avenue for acquittal.
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And here, really honest,
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but mistaken identification is a much better defense
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because one of the things about identification
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that Dr. Franklin explains is that when
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an eyewitness even holds a false memory,
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but when the memory is encoded in their face (chuckles)
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in their memory, such that they will sort of recite it
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to a jury, they will genuinely believe it when they say it.
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When we look at all the cases that we've said
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it has been a real fact, all the misidentification cases,
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they're all along the lines of Gaines.
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But have we ever applied it when we've had two,
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we've had non strangers essentially,
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or in this situation?
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You know, and I understand your theory about it's mistaken
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because the suggestion that someone
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that was there was there later on, but-
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Right.
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I get that.
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But could you tell us, in all the cases we've had,
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they seem to me to be similar to Gaines,
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these quick hitters,
(fingers snapping)
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You know, misidentifications,
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as opposed to strangers and non strangers.
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Well, so I think that the difference between Gaines
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and other cases is that in Gaines
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there's an actual alternative avenue to conviction.
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So, if the jury in Gaines believes his confession,
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which is a corroborated confession, coupled with, you know,
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the consciousness of guilt, he's arrested in Ohio
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or something like that, you know,
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they could convict him in another way.
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So-
Iowa.
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Iowa, there you go.
(all laughing)
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Don't worry, for those of us from Ohio,
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we get confused with Iowa all the time.
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So, and in other cases, right?
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There's other paths to conviction.
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So, you know, in that sense, this is the only evidence
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that is sufficient to sustain a conviction here
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that places him at the scene at the time of the crime.
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But in other cases there, you know, there is other evidence
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that's suggestive of guilt
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on which the defendant can convict, because recall,
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this is not-
Well, here he admits
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that he was present at the scene.
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Right.
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He admits that he was present at the scene
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with these people in the women's apartment.
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He admits that he knew one of the women from before
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and they had a relation, they were friendly.
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And we do have consciousness
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of guilt evidence.
Yes.
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So it's not only,
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the eyewitness identification
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of him is not the only evidence.
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And I understand that.
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But looking at, so, for instance, Marrero,
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this court reversed Marrero's conviction
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based on DNA evidence earlier this year.
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There were people that placed Marrero
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near or at the scene of the crime,
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he made a statement to somebody
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as he's fleeing from the crime scene,
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inculpating himself in the crime,
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and he, contemporaneous, flees the country.
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So, in that case,
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it was a real factor in the jury's deliberations.
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And there's more evidence.
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In Cowls, there was also consciousness of guilt.
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He throws away his bloody shoes.
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He makes statements to the police
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that are deemed inculpatory.
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You know, in each of these cases
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there is additional evidence.
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And so the question I think for the this court
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is whether it would be a real factor
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in the jury's deliberations if the jury understands
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that the identification of evidence is unreliable.
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And to the court's point that there are multiple witnesses,
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because I think that that was a real piece
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for the motion judge.
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The exoneration cases, this is a pattern that we see, right?
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In 1/3 of exoneration cases, there are multiple witnesses,
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and if you include non-DNA exoneration cases,
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I think that the statistics are about 40% of those cases.
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There are multiple people.
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And the science tells us exactly why that is
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and why that happens.
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It's because people are primed to sort of accept
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and incorporate in their memory details
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and information that's suggested to them.
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So, shortly after this crime,
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Martinez did not identify Mr. Mercado as the shooter.
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Cripps said he was "a man in the hallway",
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which the familiarity primes her to do.
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She's, as a crack addict, and an acute crack user,
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she is primed to not only have divided attention
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and the inability to perceive
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the person's face and recall it,
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but she's also, there are studies
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that suggest that hooded strangers
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are wrongly identified as familiar others,
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based upon the expectation that
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that would be the familiar other.
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So, the science sort of accounts for that piece.
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But beyond that, you know,
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I've lost my train of thought, I apologize.
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The interlocking identifications,
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the, I apologize.
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The identification of others can lead the police into
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a, you know, giving details to people
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which they will incorporate into their memory.
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So, when Gomes rejects Mr. Mercado as the shooter,
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he continues to get information to suggest
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that Mercado is the perpetrator.
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And later on, three years later,
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when he has no actual memory of the perpetrator's face,
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according to Dr. Franklin,
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he identifies him from the witness stand,
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which is something that we know and understand
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based upon the studies and the science is something
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that would be incredibly powerfully persuasive to jurors.
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And that's the other piece of this is that it would've been,
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this new information would be a real factor
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in the jury's deliberations
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because they do not understand how to use
268
00:11:39.630 --> 00:11:41.340
and how to account for this information.
269
00:11:41.340 --> 00:11:43.920
So, much of this is counterintuitive,
270
00:11:43.920 --> 00:11:46.650
and we know that jurors placed incredibly great weight
271
00:11:46.650 --> 00:11:48.480
on identification information.
272
00:11:48.480 --> 00:11:51.540
So, you know, in the face of exonerating DNA
273
00:11:51.540 --> 00:11:53.880
or other information, jurors will still credit
274
00:11:53.880 --> 00:11:55.920
eyewitness identification experts.
275
00:11:55.920 --> 00:11:58.380
And when somebody like Michael Gomes,
276
00:11:58.380 --> 00:12:01.920
who is steered through conscious
277
00:12:01.920 --> 00:12:03.780
or subconscious information
278
00:12:03.780 --> 00:12:05.460
that he has incorporated into his memory,
279
00:12:05.460 --> 00:12:06.570
when he gets up on the witness stand
280
00:12:06.570 --> 00:12:08.460
and he says, "That man killed my brother,"
281
00:12:08.460 --> 00:12:10.170
the jurors will believe it,
282
00:12:10.170 --> 00:12:13.410
despite that he will have at that time no ability
283
00:12:13.410 --> 00:12:14.880
to recall the perpetrator's face
284
00:12:14.880 --> 00:12:17.040
when he makes the identification.
285
00:12:17.040 --> 00:12:20.160
But the real factor analysis
286
00:12:20.160 --> 00:12:25.160
is within the context of the discretion of the trial judge.
287
00:12:25.410 --> 00:12:28.950
And, so, the trial judge looked at all of this,
288
00:12:28.950 --> 00:12:33.180
the trial judge in the decision talked about the things
289
00:12:33.180 --> 00:12:38.180
that took away from the expert testimony that he credited.
290
00:12:38.430 --> 00:12:39.263
And he factored-
But, he
291
00:12:39.263 --> 00:12:40.230
was not the trial judge, your Honor.
292
00:12:40.230 --> 00:12:42.030
I'm saying that the motion judge,
293
00:12:42.030 --> 00:12:45.330
the motion judge took all of this into account.
294
00:12:45.330 --> 00:12:48.090
And, so, when the motion judge militates
295
00:12:48.090 --> 00:12:52.260
in favor of this would not have been a real factor,
296
00:12:52.260 --> 00:12:55.980
that's subject to the abuse of discretion standard.
297
00:12:55.980 --> 00:12:59.310
So tell me why that's an abuse of discretion,
298
00:12:59.310 --> 00:13:01.320
other than advocate gloss.
299
00:13:01.320 --> 00:13:02.550
So, I disagree that it's an abuse
300
00:13:02.550 --> 00:13:03.420
of discretion standard here
301
00:13:03.420 --> 00:13:06.720
because we are dealing with a trial record
302
00:13:06.720 --> 00:13:10.470
that this court has equal ability to assess
303
00:13:10.470 --> 00:13:11.670
the impact on the trial record.
304
00:13:11.670 --> 00:13:14.460
So, this court will defer to the findings of fact
305
00:13:14.460 --> 00:13:16.200
where he credits Dr. Franklin's testimony.
306
00:13:16.200 --> 00:13:17.940
But I would suggest that a review
307
00:13:17.940 --> 00:13:19.320
of those findings of fact,
308
00:13:19.320 --> 00:13:21.330
as it compares to the trial record,
309
00:13:21.330 --> 00:13:23.940
this court is in equal position to assess.
310
00:13:23.940 --> 00:13:27.210
And, so, I would suggest that this court need not defer
311
00:13:27.210 --> 00:13:29.700
to his judgment of the trial record.
312
00:13:29.700 --> 00:13:33.210
And I'm also suggesting that the court got it wrong
313
00:13:33.210 --> 00:13:36.240
when comparing this case to the other cases
314
00:13:36.240 --> 00:13:38.130
where this court has found that this was a real factor
315
00:13:38.130 --> 00:13:39.150
in the jury's deliberations
316
00:13:39.150 --> 00:13:41.220
because of the Jenga Tower analysis.
317
00:13:41.220 --> 00:13:45.060
I think that the court is requiring that Mr. Mercado proved
318
00:13:45.060 --> 00:13:46.770
that a jury on retrial would find him
319
00:13:46.770 --> 00:13:48.600
actually innocent or not guilty.
320
00:13:48.600 --> 00:13:50.250
And that's truly not the standard.
321
00:13:50.250 --> 00:13:52.020
In Marrero, this court said-
322
00:13:52.020 --> 00:13:53.940
Where in the court's decision
323
00:13:53.940 --> 00:13:57.720
is that what the court said that they're doing?
324
00:13:57.720 --> 00:13:59.677
Well, the court said that this information
325
00:13:59.677 --> 00:14:01.650
"does not implode the Commonwealth's case
326
00:14:01.650 --> 00:14:03.183
like a Jenga tower".
327
00:14:03.183 --> 00:14:05.725
Yeah, I mean it's a bit hyperbole, perhaps,
328
00:14:05.725 --> 00:14:08.580
you're saying it wasn't blockbuster information, but-
329
00:14:08.580 --> 00:14:09.690
Sure, but the-
330
00:14:09.690 --> 00:14:11.840
Can I ask you just a mechanical question?
331
00:14:12.840 --> 00:14:15.720
You had the transcripts from the first trial, correct?
332
00:14:15.720 --> 00:14:16.770
Yes.
From the trial?
333
00:14:16.770 --> 00:14:18.770
That's not part of this record or is it?
334
00:14:20.670 --> 00:14:22.512
If it's not, that is my error.
335
00:14:22.512 --> 00:14:24.210
Could you make them part of the record, please?
336
00:14:24.210 --> 00:14:25.043
I absolutely can.
Thank you.
337
00:14:25.043 --> 00:14:25.876
Yes, my apologies.
338
00:14:25.876 --> 00:14:26.783
Thank you.
339
00:14:28.470 --> 00:14:31.200
It seems to me that the jury's verdict
340
00:14:31.200 --> 00:14:34.260
reflects a necessary rejection
341
00:14:34.260 --> 00:14:38.790
of the defendant's testimony that he left
342
00:14:38.790 --> 00:14:40.710
before the shooting,
343
00:14:40.710 --> 00:14:44.130
and accepts the timeline testified to
344
00:14:44.130 --> 00:14:47.523
by the two women occupants of the apartment.
345
00:14:48.780 --> 00:14:53.190
Can you tell me why that idea is wrong?
346
00:14:53.190 --> 00:14:54.570
It's wrong because they didn't have
347
00:14:54.570 --> 00:14:55.770
the benefit of this new evidence.
348
00:14:55.770 --> 00:14:57.647
I would suggest that undercuts severely-
349
00:14:57.647 --> 00:14:59.760
[Justice Wolohojian] How would that affect the timeline?
350
00:14:59.760 --> 00:15:01.260
Well, so if you look at the timeline,
351
00:15:01.260 --> 00:15:02.520
Janette Martinez's timeline,
352
00:15:02.520 --> 00:15:05.010
it says that the defendant left at about 9:20,
353
00:15:05.010 --> 00:15:06.930
which is consistent with his testimony,
354
00:15:06.930 --> 00:15:08.400
that is also consistent with his innocence.
355
00:15:08.400 --> 00:15:10.440
The homicide doesn't happen until after midnight.
356
00:15:10.440 --> 00:15:12.390
So, her testimony in terms of the timeline
357
00:15:12.390 --> 00:15:14.640
is, in fact, consistent.
358
00:15:14.640 --> 00:15:18.840
But the jury, like I've indicated, didn't have any ability
359
00:15:18.840 --> 00:15:21.180
to understand why these women were unreliable,
360
00:15:21.180 --> 00:15:23.040
why Michael Gomes was unreliable.
361
00:15:23.040 --> 00:15:25.440
And so in evaluating their testimony,
362
00:15:25.440 --> 00:15:28.786
all that counsel is left with is this defense of
363
00:15:28.786 --> 00:15:31.170
that these people are sort of, you know,
364
00:15:31.170 --> 00:15:35.220
collaborating to protect some drug dealer and pin it on him,
365
00:15:35.220 --> 00:15:39.180
when, in reality, there's explanations for why
366
00:15:39.180 --> 00:15:42.930
they would genuinely believe that they
367
00:15:42.930 --> 00:15:45.690
had identified Mr. Mercado correctly as the shooter,
368
00:15:45.690 --> 00:15:48.480
but they did not have an adequate opportunity
369
00:15:48.480 --> 00:15:51.480
to see him, view him, recall him,
370
00:15:51.480 --> 00:15:55.015
both Cripps' and Martinez's memories and mind,
371
00:15:55.015 --> 00:16:00.015
and recall the testimony sort of said to them, to the jury,
372
00:16:00.120 --> 00:16:02.550
when I'm using crack cocaine, my memory is great,
373
00:16:02.550 --> 00:16:05.130
my perception is great, I have no problems.
374
00:16:05.130 --> 00:16:08.010
But the truth and the reality of that situation
375
00:16:08.010 --> 00:16:11.670
is that they have severe deficits in their frontal lobe
376
00:16:11.670 --> 00:16:14.880
and their ability to process and recall information.
377
00:16:14.880 --> 00:16:17.190
They have deficits in memory
378
00:16:17.190 --> 00:16:19.980
that are sort of lifetime issues.
379
00:16:19.980 --> 00:16:24.980
And, really, these witnesses, according to Dr. Franklin,
380
00:16:25.170 --> 00:16:26.880
are highly unreliable.
381
00:16:26.880 --> 00:16:30.000
And this is an opinion that she called "overdetermined".
382
00:16:30.000 --> 00:16:32.790
So there's multiple ways that she gets to this determination
383
00:16:32.790 --> 00:16:34.560
that these people are highly unreliable,
384
00:16:34.560 --> 00:16:37.680
unlikely to have made an adequate memory
385
00:16:37.680 --> 00:16:38.760
of this person's face.
386
00:16:38.760 --> 00:16:41.310
And that's because the, you know,
387
00:16:41.310 --> 00:16:42.570
initial opportunity to view.
388
00:16:42.570 --> 00:16:44.130
But, also, if you look at, for instance,
389
00:16:44.130 --> 00:16:47.100
Jeanette Martinez's testimony, she waffles back and forth
390
00:16:47.100 --> 00:16:50.850
and all over the place on every statement that she gives.
391
00:16:50.850 --> 00:16:53.490
For instance, the statement of intent to kill,
392
00:16:53.490 --> 00:16:55.290
she says "To kill, to rob, to kill.
393
00:16:55.290 --> 00:16:56.310
He said nothing."
394
00:16:56.310 --> 00:16:58.350
Every time she tells a story it's different.
395
00:16:58.350 --> 00:16:59.580
But there's an explanation in terms
396
00:16:59.580 --> 00:17:01.230
of why she would've gotten there
397
00:17:01.230 --> 00:17:03.300
and why she might, by the time she gets to the jury,
398
00:17:03.300 --> 00:17:05.070
genuinely believe that to be true,
399
00:17:05.070 --> 00:17:07.050
which is persuasive to them,
400
00:17:07.050 --> 00:17:08.460
but they don't understand why these people
401
00:17:08.460 --> 00:17:09.990
would be making the mistake.
402
00:17:09.990 --> 00:17:13.380
And, so, the explanation in terms of how somebody can,
403
00:17:13.380 --> 00:17:16.800
you know, mistake a hooded perpetrator for their friend,
404
00:17:16.800 --> 00:17:18.270
you know, that would've been a real factor
405
00:17:18.270 --> 00:17:20.130
for them in terms of deciding whether
406
00:17:20.130 --> 00:17:22.560
or not this eyewitness identification evidence
407
00:17:22.560 --> 00:17:25.200
was sufficient to rest the conviction on.
408
00:17:25.200 --> 00:17:26.186
I understand that I'm over time, I would just ask that
409
00:17:26.186 --> 00:17:29.700
that where we now have new scientific evidence to suggest
410
00:17:29.700 --> 00:17:31.563
that the conviction is based upon unreliable evidence
411
00:17:31.563 --> 00:17:33.510
that this court not look the other way
412
00:17:33.510 --> 00:17:34.825
and affirm the conviction.
413
00:17:34.825 --> 00:17:35.783
Thank you.
Okay, thank you.
414
00:17:38.250 --> 00:17:39.123
Attorney Hansen.
415
00:17:40.800 --> 00:17:41.940
Good afternoon, your Honors.
416
00:17:41.940 --> 00:17:43.980
Arne Hansen for the Commonwealth.
417
00:17:43.980 --> 00:17:45.300
This was never a case
418
00:17:45.300 --> 00:17:48.630
that was predicated on a misidentification.
419
00:17:48.630 --> 00:17:51.570
The defendant identified at trial by three individuals,
420
00:17:51.570 --> 00:17:53.580
the victim's brother, David Gomes,
421
00:17:53.580 --> 00:17:55.110
and two people that he was familiar with,
422
00:17:55.110 --> 00:17:56.820
Corinne Cripps, who had been a friend of his
423
00:17:56.820 --> 00:17:59.400
for three or four years, as well as Janette Martinez,
424
00:17:59.400 --> 00:18:01.080
who had spent the day with him.
425
00:18:01.080 --> 00:18:03.390
Now, certainly it would be difficult for me to argue
426
00:18:03.390 --> 00:18:07.260
that the identification by David Gomes wasn't perfect.
427
00:18:07.260 --> 00:18:11.070
He identified someone else prior to the trial
428
00:18:11.070 --> 00:18:12.570
as the perpetrator of this case,
429
00:18:12.570 --> 00:18:14.070
and only identified the defendant
430
00:18:14.070 --> 00:18:17.460
as the perpetrator three years after the fact in court.
431
00:18:17.460 --> 00:18:20.220
Certainly, that identification would not
432
00:18:20.220 --> 00:18:21.990
survive a Creighton motion today,
433
00:18:21.990 --> 00:18:23.910
but Creighton didn't exist at the time
434
00:18:23.910 --> 00:18:25.890
of the defendant's trial.
435
00:18:25.890 --> 00:18:27.840
There's no point in arguing that that is a weak
436
00:18:27.840 --> 00:18:30.120
and suggestive identification.
437
00:18:30.120 --> 00:18:32.250
What we are left with is an identification
438
00:18:32.250 --> 00:18:35.610
by two individuals who were familiar with
439
00:18:35.610 --> 00:18:37.350
the defendant in this case.
440
00:18:37.350 --> 00:18:39.810
As I stated, Cripps was his friend
441
00:18:39.810 --> 00:18:41.850
and they'd been hanging out in that apartment
442
00:18:41.850 --> 00:18:43.320
the entire night.
443
00:18:43.320 --> 00:18:45.450
And Janette Martinez was certainly familiar with him,
444
00:18:45.450 --> 00:18:48.150
she had spent the last few hours with him.
445
00:18:48.150 --> 00:18:50.730
And what we have here is more than just
446
00:18:50.730 --> 00:18:53.850
an identification out of the blue.
447
00:18:53.850 --> 00:18:57.750
Both witnesses provided context as to what transpired
448
00:18:57.750 --> 00:19:01.320
prior to the homicide.
449
00:19:01.320 --> 00:19:03.300
Janette Martinez testified
450
00:19:03.300 --> 00:19:06.570
that she saw the defendant, Joey Destefano
451
00:19:06.570 --> 00:19:08.730
and another individual who was only known as Polon,
452
00:19:08.730 --> 00:19:11.310
who was never truly identified or arrested,
453
00:19:11.310 --> 00:19:14.190
in her kitchen talking about their plan to rob
454
00:19:14.190 --> 00:19:16.593
and murder the victim in this case.
455
00:19:17.700 --> 00:19:21.150
She provided the jury context with respect to motive,
456
00:19:21.150 --> 00:19:23.670
opportunity and planning.
457
00:19:23.670 --> 00:19:25.950
Corinn Cripps did the exact same thing.
458
00:19:25.950 --> 00:19:28.620
She testified that the defendant asked her to go
459
00:19:28.620 --> 00:19:29.700
to the neighboring apartment,
460
00:19:29.700 --> 00:19:32.250
the victim's apartment, and see what they had.
461
00:19:32.250 --> 00:19:35.160
She went there and confirmed that they were selling cocaine,
462
00:19:35.160 --> 00:19:37.710
they were packaging it for distribution,
463
00:19:37.710 --> 00:19:40.260
at which point the defendant made his decision
464
00:19:40.260 --> 00:19:44.670
to call Destefano down and to try to plan that robbery,
465
00:19:44.670 --> 00:19:46.203
which turned into a homicide.
466
00:19:47.310 --> 00:19:48.630
So, we have more than just
467
00:19:48.630 --> 00:19:51.000
an identification out of the blue.
468
00:19:51.000 --> 00:19:54.300
We have planning, motive, opportunity,
469
00:19:54.300 --> 00:19:56.910
and on top of that we have consciousness of guilt.
470
00:19:56.910 --> 00:20:01.530
Immediately after the defendant committed this homicide,
471
00:20:01.530 --> 00:20:03.840
he fled to Puerto Rico
472
00:20:03.840 --> 00:20:07.080
and wasn't identified until more than a year later
473
00:20:07.080 --> 00:20:08.520
through fingerprint analysis when
474
00:20:08.520 --> 00:20:10.560
he was arrested for a different crime.
475
00:20:10.560 --> 00:20:12.810
When investigators from Massachusetts went down there
476
00:20:12.810 --> 00:20:16.953
to interview him, he denied being Thomas Mercado,
477
00:20:18.000 --> 00:20:20.490
gave an alias, denied any knowledge
478
00:20:20.490 --> 00:20:22.923
or involvement in the crime.
479
00:20:24.030 --> 00:20:26.040
But Commonwealth had his fingerprints,
480
00:20:26.040 --> 00:20:28.380
they knew who he was, in fact, Thomas Mercado.
481
00:20:28.380 --> 00:20:30.730
He was brought to Massachusetts to stand trial.
482
00:20:32.910 --> 00:20:35.790
The defendant's theory of defense in this case
483
00:20:35.790 --> 00:20:37.533
was not mistaken identity.
484
00:20:40.620 --> 00:20:43.080
In part, it was mistaken identity by David Gomes,
485
00:20:43.080 --> 00:20:45.810
who had a limited opportunity to view
486
00:20:45.810 --> 00:20:48.330
and identify the defendant, which again, I'm not gonna touch
487
00:20:48.330 --> 00:20:50.913
because it's not the strongest identification.
488
00:20:52.170 --> 00:20:53.883
But he argued that because Polon,
489
00:20:55.170 --> 00:20:56.250
the defendant's cousin,
490
00:20:56.250 --> 00:21:00.750
was operating a drug business out of Martinez's apartment,
491
00:21:00.750 --> 00:21:04.440
that provided motive for those two individuals,
492
00:21:04.440 --> 00:21:05.430
Martinez and Cripps,
493
00:21:05.430 --> 00:21:07.530
to lie about the identity of the perpetrator.
494
00:21:07.530 --> 00:21:08.850
They wanted to protect Polon
495
00:21:08.850 --> 00:21:11.130
because he was their source of narcotics.
496
00:21:11.130 --> 00:21:12.510
And that was the theory of defense.
497
00:21:12.510 --> 00:21:15.360
And that was what was supported by the evidence at trial.
498
00:21:16.260 --> 00:21:20.790
To argue now that the two women who were familiar
499
00:21:20.790 --> 00:21:23.010
with the defendant could not identify him
500
00:21:23.010 --> 00:21:28.010
because from feet away makes absolutely no sense.
501
00:21:29.400 --> 00:21:34.230
The defendant's, or Dr. Franklin's testimony,
502
00:21:34.230 --> 00:21:37.293
is inadmissible for several reasons in this case,
503
00:21:38.400 --> 00:21:42.000
which Judge Gordon recognized.
504
00:21:42.000 --> 00:21:44.670
The first of which is that the studies
505
00:21:44.670 --> 00:21:47.400
that Dr. Franklin relies on deal
506
00:21:47.400 --> 00:21:49.350
with stranger identification.
507
00:21:49.350 --> 00:21:52.410
And that certainly applies to the Gomes identification,
508
00:21:52.410 --> 00:21:56.280
but it does not survive the Cripps and Martinez analysis.
509
00:21:56.280 --> 00:21:58.560
They were both familiar with him.
510
00:21:58.560 --> 00:22:01.830
And the court, the Superior Court, cited the Denson case,
511
00:22:01.830 --> 00:22:03.870
which is a 2022 case out of this court,
512
00:22:03.870 --> 00:22:08.870
which is very similar in that respect to the case at bar.
513
00:22:08.970 --> 00:22:13.740
In that case, Denson was involved in a club altercation,
514
00:22:13.740 --> 00:22:15.150
which resulted in a homicide.
515
00:22:15.150 --> 00:22:18.147
He was identified on video by people that knew him
516
00:22:18.147 --> 00:22:19.860
and he was principally identified
517
00:22:19.860 --> 00:22:21.930
through the clothing that he was wearing.
518
00:22:21.930 --> 00:22:23.550
Individuals were familiar with him,
519
00:22:23.550 --> 00:22:24.547
knew what he was wearing, and said,
520
00:22:24.547 --> 00:22:25.800
"Yes, that's the same person
521
00:22:25.800 --> 00:22:27.450
that I saw earlier that evening."
522
00:22:29.940 --> 00:22:32.430
And the expert that was gonna testify in that trial
523
00:22:32.430 --> 00:22:33.570
was prevented from testifying
524
00:22:33.570 --> 00:22:35.850
because the underlying research that they were gonna testify
525
00:22:35.850 --> 00:22:38.250
to dealt with facial recognition.
526
00:22:38.250 --> 00:22:41.490
So we have a very similar parallel in this case
527
00:22:41.490 --> 00:22:45.090
where here we have analysis based
528
00:22:45.090 --> 00:22:46.350
on stranger identifications
529
00:22:46.350 --> 00:22:47.520
that says strangers aren't really good
530
00:22:47.520 --> 00:22:48.900
at identifying strangers.
531
00:22:48.900 --> 00:22:52.203
It does not touch on what we have before the court,
532
00:22:53.340 --> 00:22:54.690
that people who are familiar with each other
533
00:22:54.690 --> 00:22:56.940
can identify people who are familiar with each other.
534
00:22:56.940 --> 00:22:59.290
To suggest otherwise makes absolutely no sense.
535
00:23:01.080 --> 00:23:02.520
So for that reason alone,
536
00:23:02.520 --> 00:23:04.770
this testimony would've been inadmissible at trial
537
00:23:04.770 --> 00:23:05.603
where it doesn't really,
538
00:23:05.603 --> 00:23:08.150
the research doesn't speak to the facts of the case.
539
00:23:10.110 --> 00:23:13.320
Now, Dr. Franklin's opinion is also inadmissible
540
00:23:13.320 --> 00:23:15.570
because it really touches on the ultimate issue
541
00:23:15.570 --> 00:23:18.030
that the jury needs to decide upon.
542
00:23:18.030 --> 00:23:20.460
The jury is the only, or the trier factor,
543
00:23:20.460 --> 00:23:22.800
the only people that can touch on
544
00:23:22.800 --> 00:23:25.290
the credibility and reliability.
545
00:23:25.290 --> 00:23:27.570
We've allowed extra witnesses to testify
546
00:23:27.570 --> 00:23:30.070
and encouraged extra witnesses to testify
547
00:23:30.960 --> 00:23:34.200
multiple times in identification cases, correct?
548
00:23:34.200 --> 00:23:38.310
Yes. Which brings me to another point.
549
00:23:38.310 --> 00:23:41.700
They said that identification was unreliable.
550
00:23:41.700 --> 00:23:42.900
That's not the ultimate issue.
551
00:23:42.900 --> 00:23:44.520
The ultimate issue is whether or not the person did it?
552
00:23:44.520 --> 00:23:48.210
But, this argument, I'm following you so far,
553
00:23:48.210 --> 00:23:50.210
but this argument, I think you're going,
554
00:23:51.600 --> 00:23:53.580
it's a little far field.
555
00:23:53.580 --> 00:23:55.350
Alright, so I'll I'll move on.
556
00:23:55.350 --> 00:23:57.420
The other issue is that Dr.-
557
00:23:57.420 --> 00:23:59.160
One thing before you move on, not on that issue,
558
00:23:59.160 --> 00:24:01.263
but the second witness,
559
00:24:02.520 --> 00:24:07.020
is that really, I understand her name, Cripps,
560
00:24:07.020 --> 00:24:07.853
I can't remember.
561
00:24:07.853 --> 00:24:10.380
She's clearly someone who knows him from prior.
562
00:24:10.380 --> 00:24:13.560
The other witness just knows him from that day, right?
563
00:24:13.560 --> 00:24:15.540
Does that make her a stranger ID
564
00:24:15.540 --> 00:24:18.000
or she's sort of a mixture, right?
565
00:24:18.000 --> 00:24:21.240
She's not really what we would call a stranger ID
566
00:24:21.240 --> 00:24:24.270
but she's also not like Cripps a friend, right?
567
00:24:24.270 --> 00:24:25.103
Yes, that's fair.
568
00:24:25.103 --> 00:24:26.820
So, my understanding from the record is
569
00:24:26.820 --> 00:24:28.140
that they had met that afternoon
570
00:24:28.140 --> 00:24:30.990
and they spent several hours together inside the apartment.
571
00:24:30.990 --> 00:24:35.613
Her testimony at trial was somewhat all over the place,
572
00:24:37.500 --> 00:24:39.180
but I think what can be gleaned from it is
573
00:24:39.180 --> 00:24:43.080
that she saw the defendant and Polon in her kitchen,
574
00:24:43.080 --> 00:24:45.480
discussing murdering the victim.
575
00:24:45.480 --> 00:24:46.950
And then immediately after that,
576
00:24:46.950 --> 00:24:50.463
she sees him leave her apartment.
577
00:24:51.360 --> 00:24:53.940
She says that she then saw him waiting in the hallway
578
00:24:53.940 --> 00:24:56.700
through the peep hole with his hands in his pockets.
579
00:24:56.700 --> 00:24:59.100
And she said at one point that she didn't see the shooting,
580
00:24:59.100 --> 00:25:00.330
that she did see the shooting,
581
00:25:00.330 --> 00:25:02.280
she changed her story with regards to that.
582
00:25:02.280 --> 00:25:03.630
All of that was before the jury.
583
00:25:03.630 --> 00:25:04.980
So they were just in as good a position
584
00:25:04.980 --> 00:25:07.233
to evaluate her credibility as we are today.
585
00:25:08.400 --> 00:25:12.030
But what was consistent was they're talking at the table,
586
00:25:12.030 --> 00:25:14.100
they decide to execute their plan,
587
00:25:14.100 --> 00:25:15.210
he walks into the hallway,
588
00:25:15.210 --> 00:25:18.000
he's seen with his hands in his pocket in the hallway,
589
00:25:18.000 --> 00:25:20.973
moments later, gunshots erupt, and the victim is dead.
590
00:25:23.640 --> 00:25:27.360
With respect to what the,
591
00:25:27.360 --> 00:25:30.240
respect to the common sense principles here,
592
00:25:30.240 --> 00:25:32.700
this court has already addressed a lot of the issues
593
00:25:32.700 --> 00:25:34.560
that the defendant raises here.
594
00:25:34.560 --> 00:25:37.080
And it goes back to the Francis case
595
00:25:37.080 --> 00:25:38.850
where the court's already accepted
596
00:25:38.850 --> 00:25:40.620
that we don't need special instruction,
597
00:25:40.620 --> 00:25:43.080
or that the jury instructions are sufficient
598
00:25:43.080 --> 00:25:44.310
to address specific issues
599
00:25:44.310 --> 00:25:46.233
and expert testimony isn't necessary.
600
00:25:47.190 --> 00:25:49.830
It's common sense that memory fades over time,
601
00:25:49.830 --> 00:25:51.693
that stress impacts memory,
602
00:25:52.830 --> 00:25:56.700
that people unconsciously resolve inconsistencies with facts
603
00:25:56.700 --> 00:25:58.080
that are required after the fact,
604
00:25:58.080 --> 00:26:01.140
that there could be coercive elements in a photo array.
605
00:26:01.140 --> 00:26:03.060
These are all issues that this court has ruled,
606
00:26:03.060 --> 00:26:05.910
don't require expert testimony to be explained.
607
00:26:05.910 --> 00:26:07.620
And these are some of the issues
608
00:26:07.620 --> 00:26:09.513
that defendant is bringing up today.
609
00:26:11.460 --> 00:26:14.190
Now, I think the biggest point here is
610
00:26:14.190 --> 00:26:16.740
that we don't really have new evidence here.
611
00:26:16.740 --> 00:26:19.380
We have an analysis by an expert who was hired
612
00:26:19.380 --> 00:26:21.360
to evaluate the situation.
613
00:26:21.360 --> 00:26:23.730
It's important to note that Dr. Franklin never spoke
614
00:26:23.730 --> 00:26:25.380
with anyone that was involved.
615
00:26:25.380 --> 00:26:27.390
She never spoke to Cripps or Martinez.
616
00:26:27.390 --> 00:26:29.280
She doesn't know what the crime scene looks like.
617
00:26:29.280 --> 00:26:31.350
Well, in, in Gaines we said that this type
618
00:26:31.350 --> 00:26:34.893
of evidence constitutes newly discovered evidence, right?
619
00:26:36.930 --> 00:26:37.763
That's fair.
620
00:26:37.763 --> 00:26:39.150
So, I'll rephrase.
621
00:26:39.150 --> 00:26:43.800
What we are left with here is merely impeachment evidence.
622
00:26:43.800 --> 00:26:48.480
It doesn't change the landscape of the evidence at trial.
623
00:26:48.480 --> 00:26:52.230
And that is an important distinction between other cases
624
00:26:52.230 --> 00:26:54.270
that have been overturned in recent years,
625
00:26:54.270 --> 00:26:57.450
specifically Cowls, Dreighton and Cameron.
626
00:26:57.450 --> 00:27:01.380
So in Cowls, that case
627
00:27:01.380 --> 00:27:04.050
was precipitated on the identification by one witness.
628
00:27:04.050 --> 00:27:07.020
That witness had substantial credibility issues.
629
00:27:07.020 --> 00:27:08.640
But there was corroborating evidence,
630
00:27:08.640 --> 00:27:11.700
there was a bloody towel that that witness said
631
00:27:11.700 --> 00:27:14.490
the defendant used to wipe up after the fact.
632
00:27:14.490 --> 00:27:16.050
They did DNA analysis,
633
00:27:16.050 --> 00:27:18.390
and it turns out the victim's blood
634
00:27:18.390 --> 00:27:20.970
or the defendant's blood wasn't on that towel.
635
00:27:20.970 --> 00:27:24.450
Therefore, that was the one piece that
636
00:27:24.450 --> 00:27:28.020
buttressed the testimony of that witness, that went away,
637
00:27:28.020 --> 00:27:30.060
therefore, the conviction was overturned.
638
00:27:30.060 --> 00:27:32.130
In Dreighton, we have something very similar.
639
00:27:32.130 --> 00:27:33.261
We have one individual, Jackson,
640
00:27:33.261 --> 00:27:36.240
who testified as to what happened in the homicide
641
00:27:36.240 --> 00:27:39.060
and identified the defendant as the perpetrator.
642
00:27:39.060 --> 00:27:41.460
It turns out after the fact that another witness was
643
00:27:41.460 --> 00:27:42.930
with Jackson in the bathroom,
644
00:27:42.930 --> 00:27:44.670
stated, "I was with him in the bathroom,
645
00:27:44.670 --> 00:27:45.630
with him the entire time.
646
00:27:45.630 --> 00:27:47.070
I did not see what happened.
647
00:27:47.070 --> 00:27:48.210
He couldn't have seen what happened
648
00:27:48.210 --> 00:27:49.800
because we were in the bathroom."
649
00:27:49.800 --> 00:27:54.800
That removed that linchpin and resulted in new trial.
650
00:27:54.810 --> 00:27:57.750
In Cameron, as a sexual assault case
651
00:27:57.750 --> 00:27:59.160
where there was DNA evidence,
652
00:27:59.160 --> 00:28:02.673
there was two sets of DNA found in the victim's underwear.
653
00:28:03.750 --> 00:28:06.540
The first significant contribution,
654
00:28:06.540 --> 00:28:10.590
the defendant, in that case, was eliminated as a source of,
655
00:28:10.590 --> 00:28:12.900
but there was a second piece of DNA
656
00:28:12.900 --> 00:28:14.700
that he couldn't be eliminated from.
657
00:28:15.690 --> 00:28:17.760
It turns out more advanced DNA analysis,
658
00:28:17.760 --> 00:28:18.900
years down the road,
659
00:28:18.900 --> 00:28:20.370
determined that was female DNA.
660
00:28:20.370 --> 00:28:22.270
So it couldn't be the defendant's DNA.
661
00:28:23.970 --> 00:28:27.390
The conviction was predicated on the victim's testimony,
662
00:28:27.390 --> 00:28:28.830
which was corroborated by the fact
663
00:28:28.830 --> 00:28:30.090
that the defendant couldn't be removed
664
00:28:30.090 --> 00:28:32.970
as a source from the DNA found in her underwear.
665
00:28:32.970 --> 00:28:35.280
By removing that DNA,
666
00:28:35.280 --> 00:28:39.510
it left it on the victim's identification
667
00:28:39.510 --> 00:28:42.723
and the conviction was overturned.
668
00:28:43.710 --> 00:28:45.483
We don't have that here.
669
00:28:46.590 --> 00:28:51.590
We have three individuals who, at best, were impeached here.
670
00:28:53.820 --> 00:28:58.820
It's important to note that Dr. Franklin relied extensively
671
00:28:59.100 --> 00:29:01.737
on information provided by defense counsel here.
672
00:29:01.737 --> 00:29:04.150
And that being affidavits from
673
00:29:06.000 --> 00:29:08.640
an affidavit that was attributed to Janette Martinez,
674
00:29:08.640 --> 00:29:10.470
written in 2016,
675
00:29:10.470 --> 00:29:12.060
statements attributed to Corinn Cripps
676
00:29:12.060 --> 00:29:14.820
recanting her version of events,
677
00:29:14.820 --> 00:29:18.120
which were put in the affidavit of an investigator,
678
00:29:18.120 --> 00:29:23.120
as well as an affidavit from Joey Destefano
679
00:29:23.220 --> 00:29:24.750
who testified to the grand jury,
680
00:29:24.750 --> 00:29:28.050
but then recanted years later, he never ended up testifying
681
00:29:28.050 --> 00:29:29.550
before the court and was held in contempt,
682
00:29:29.550 --> 00:29:31.530
did a year in jail as a result.
683
00:29:31.530 --> 00:29:32.760
Now, it's important to note
684
00:29:32.760 --> 00:29:36.030
that Janette Martinez's affidavit from 2016
685
00:29:36.030 --> 00:29:37.680
during the evidentiary hearing,
686
00:29:37.680 --> 00:29:39.450
she did not adopt that affidavit.
687
00:29:39.450 --> 00:29:41.010
She explicitly rejected it
688
00:29:41.010 --> 00:29:42.990
because she noticed that her date of birth was wrong
689
00:29:42.990 --> 00:29:45.480
on the affidavit and she didn't read or write English,
690
00:29:45.480 --> 00:29:46.710
so that she had no way of knowing
691
00:29:46.710 --> 00:29:48.560
what was contained in that affidavit.
692
00:29:49.620 --> 00:29:53.220
She did adopt a letter that she wrote shortly
693
00:29:53.220 --> 00:29:56.170
after the fact that still that discussed
694
00:29:57.390 --> 00:30:01.170
the defendant and Polon in the kitchen discussing the plan,
695
00:30:01.170 --> 00:30:03.270
and then the defendant standing in the hallway
696
00:30:03.270 --> 00:30:05.040
with his hands in his pockets immediately
697
00:30:05.040 --> 00:30:06.390
before the shooting erupts.
698
00:30:07.380 --> 00:30:10.050
Corinn Cripps did not recant any
699
00:30:10.050 --> 00:30:14.130
of her trial testimony at the evidentiary hearing.
700
00:30:14.130 --> 00:30:15.450
In fact, defense counsel didn't even ask
701
00:30:15.450 --> 00:30:17.580
her any questions about it.
702
00:30:17.580 --> 00:30:19.920
So her testimony is largely unchanged.
703
00:30:19.920 --> 00:30:22.170
The statements attributed to her saying
704
00:30:22.170 --> 00:30:23.940
that she believed the wrong person was convicted
705
00:30:23.940 --> 00:30:27.360
for this crime was not borne out
706
00:30:27.360 --> 00:30:30.720
by the evidentiary record at the evidentiary hearing.
707
00:30:30.720 --> 00:30:34.470
And then Joseph Destefano, at the Grand Jury,
708
00:30:34.470 --> 00:30:38.580
he testified that he was called down to that apartment
709
00:30:38.580 --> 00:30:41.520
to help plan this proposed robbery
710
00:30:41.520 --> 00:30:42.840
that turned into a homicide.
711
00:30:42.840 --> 00:30:44.130
He said he didn't want any part of it.
712
00:30:44.130 --> 00:30:45.400
He said that he saw the defendant
713
00:30:45.400 --> 00:30:46.710
with a gun in his waistband,
714
00:30:46.710 --> 00:30:49.360
that they were gonna go forward to plan, but he left.
715
00:30:51.030 --> 00:30:54.190
Destefano then recanted all of his sworn testimony
716
00:30:55.980 --> 00:30:58.050
at the evidentiary hearing.
717
00:30:58.050 --> 00:31:00.570
But the most interesting thing about it is that he said
718
00:31:00.570 --> 00:31:02.970
that police forced him to say that the defendant
719
00:31:03.840 --> 00:31:06.720
had a revolver in his waistband prior to the homicide.
720
00:31:06.720 --> 00:31:08.220
And that is an important distinction
721
00:31:08.220 --> 00:31:10.740
because this crime was committed
722
00:31:10.740 --> 00:31:12.210
with a semi-automatic firearm,
723
00:31:12.210 --> 00:31:14.580
which left semi-automatic nine millimeter casings
724
00:31:14.580 --> 00:31:16.890
all over the crime scene, which wouldn't have happened
725
00:31:16.890 --> 00:31:18.960
with a revolver where the cartridges would've remained
726
00:31:18.960 --> 00:31:21.240
in the firearm after discharged.
727
00:31:21.240 --> 00:31:24.780
It's important to note that the lead detective,
728
00:31:24.780 --> 00:31:27.570
detective Alameda, is a firearms instructor.
729
00:31:27.570 --> 00:31:29.040
He is very familiar with guns,
730
00:31:29.040 --> 00:31:32.310
testified at the evidentiary as to how firearms work,
731
00:31:32.310 --> 00:31:33.660
knew what the difference between
732
00:31:33.660 --> 00:31:36.090
a semi-automatic firearm wasn't a revolver.
733
00:31:36.090 --> 00:31:39.280
It would've made absolutely no sense for him to tell
734
00:31:40.380 --> 00:31:42.870
Destefano that he saw a revolver
735
00:31:42.870 --> 00:31:44.190
in the defendant's waistband when he knew
736
00:31:44.190 --> 00:31:46.290
that couldn't have been the murder weapon.
737
00:31:47.250 --> 00:31:50.800
So, the evidentiary basis that Dr. Franklin
738
00:31:51.870 --> 00:31:54.930
based her opinion on did not exist
739
00:31:54.930 --> 00:31:57.000
after the evidentiary hearing.
740
00:31:57.000 --> 00:31:59.940
And despite that, she said that "even without all
741
00:31:59.940 --> 00:32:01.620
of these recantations,
742
00:32:01.620 --> 00:32:03.840
and despite the change in circumstances",
743
00:32:03.840 --> 00:32:05.730
she said she "would come to the same conclusion".
744
00:32:05.730 --> 00:32:08.400
I guess, we're drawing late,
745
00:32:08.400 --> 00:32:12.480
but the only question I have for you on that part is
746
00:32:12.480 --> 00:32:15.360
given all the deficiencies which are pointed out
747
00:32:15.360 --> 00:32:18.090
to the motion judge, the motion judge still found
748
00:32:18.090 --> 00:32:21.603
that the expert was credible as a bottom line, right?
749
00:32:22.440 --> 00:32:24.140
Yes, that's fair.
750
00:32:25.440 --> 00:32:27.330
We have to defer to the motion judge,
751
00:32:27.330 --> 00:32:28.480
at least in that score.
752
00:32:29.520 --> 00:32:30.353
Yes.
753
00:32:31.920 --> 00:32:33.960
Does the court have any other questions?
754
00:32:33.960 --> 00:32:36.110
I don't think so.
Thank you.