WEBVTT

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<v ->SJC-13670,</v>

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Commonwealth versus Quentin Smith.

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<v ->Okay, I see we have the battle of the Cranes.</v>

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(laughing)

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Bernie Crane.

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<v ->Morning, may it please the court,</v>

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Edward Crane on behalf of Quentin Smith.

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Primary issue in this case is whether the Commonwealth

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introduced sufficient evidence that the defendant

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lacked a license to carry.

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Philip Dowd testified that he ran a search

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of the firearms licensing database

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using some spelling of the name Quentin Smith

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in a birthday of June 23rd, 2002.

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This search failed to produce any licensing records.

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However, there was insufficient evidence

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to link the result of this search to the defendant.

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There was no evidence that the defendant's birthday

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was June 23rd, 2002, nor was there evidence

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of how to spell the defendant's name

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or evidence of how Dowd spelled the name Quentin Smith

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when he ran the search.

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To establish lack of licensure through a search

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of the firearms licensing database,

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there needs to be evidence linking the result

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of the search to the defendant.

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More specifically, the Commonwealth has to establish

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that the biographical information, name and birthdate,

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used to run the search matches that of the defendant.

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<v ->Was it okay for it to be admissible though?</v>

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Are you saying it was admissible that the evidence

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of whatever it was, was admissible for the jury

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to look at and consider?

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<v ->I think it was admissible because</v>

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there wasn't a relevancy objection.

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I do think if there was a relevancy objection raised,

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that it should have been sustained without the linkage.

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<v ->Well, you're downstream one domino.</v>

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So you're getting at whether or not the search criteria

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of the person that does the search.

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But if I'm hearing Chief Justice Budd's concern,

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it's the same one I have.

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Go up one.

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Are you saying then if there was a properly

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foundational witness who was the sponsor of this,

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that they went through CEGIS,

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used the proper search parameters,

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and if had that witness done that when they testified,

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that that would have been admissible,

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non-hearsay evidence under subsection 10?

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<v ->Well, I think just with respect to,</v>

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I guess admissibility in the context of relevance

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and admissibility in the context of hearsay

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and confrontation are sort of three different issues.

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And I think that on the admissibility aspect,

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it's sort of, sorry, the relevance aspect,

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it's a question of conditional relevance.

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If this information about the search is testified to,

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and there is no linkage of it to the defendant,

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then it's sort of just evidence that is disconnected-

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<v ->That sounds like sufficiency, not relevance to me.</v>

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So are you saying that the whole here

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is that Officer Jones could have got on the witness stand

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and said, "I booked your client.

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"He told me his date of birth is whatever it is."

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That's all they needed?

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<v ->That's all they needed, and that would,</v>

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if it was established what the defendant's name

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and birthday was, and that Dowd used that information

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to run the search-
<v ->And then Dowd later</v>

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testifies this to the same name and date of birth.

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<v ->Correct.</v>

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Then it not only becomes relevant, it becomes sufficient.

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I think the relevance issue and the sufficiency issue

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are really largely the same.

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<v ->If relevance means, I think it's certainly admissible</v>

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it would lead to an inference,

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but I get you on sufficiency.

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Here's all you need.

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<v ->Thank you, Your Honor.</v>

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I'll stick to what I've briefed, what I've argued,

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what I think is the strongest argument,

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and certainly the argument that would result

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in the best result for my client.

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So I do think that the setting aside, I guess,

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the relevancy and admissibility issue,

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it really is a question very similar to that

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that we've run into with a prior conviction

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where it's the evidence that links this record

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to the defendant, and here we're talking about

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name and birthdate, and again, there's no evidence

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with respect to the defendant's birthdate.

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And then with respect to the defendant's name,

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there's testimony that his name is Quentin Smith,

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there is no testimony of how to spell his name,

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nor is there testimony from Dowd as to what he input

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when he input the name Quentin Smith into the search.

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<v Judge>So you're saying if that's all they had,</v>

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which is all they had, that wasn't enough?

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<v ->Yes.</v>

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<v Judge>Wasn't there evidence, though,</v>

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that he got the name from the DA's office?

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<v ->Yes.</v>

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<v ->So why wouldn't it be a reasonable inference</v>

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that he got the name spelled

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as the defendant spelled his name?

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<v ->I don't think there's any way,</v>

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it's entirely speculative that the DA's office,

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where the DA's office would've got this name from.

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<v Judge>You don't think maybe from the complaint?</v>

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<v ->It's possible that they did, but-</v>

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<v ->Right, we're talking about inferences here,</v>

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and whether they're reasonable.

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Why would we think,

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why wouldn't it be a reasonable inference

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that the DA prosecuting the case

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wouldn't have given the person doing the CJIS search

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the defendant's name as it was spelled on the complaint?

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<v ->Well, even then, though, the complaint is not evidence.</v>

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I think we run into a real problem, too,

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when we start to say that we can trust

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that this information was the correct information

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because it came from the DA's office.

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I think there's a slippery slope there with respect to,

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I mean, extrapolate that to other trial situations

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where one could say, well, we think this information

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was accurate, how do you know that information's accurate?

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Because we got it from the DA's office.

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Every trial is based on what the DA's office believes.

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The DA's office believes that the defendant

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committed some sort of crime.

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DA's office has to prove that with evidence.

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It can't just be proven through the mere fact

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that the DA believes this to be true.

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There needs to be some evidence here.

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Not just that they got it from the DA's office,

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but where did they get it from?

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And just someone-
<v ->So who's gonna provide</v>

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that testimony, where the DA's office got the name from?

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<v ->Well, I don't think-</v>
<v ->You're thinking</v>

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the DA has to testify?

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<v ->I think it's a lot easier than</v>

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having to follow that road.

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In this case, if the booking officer had testified,

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the booking officer could've got that information

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into evidence and-
<v ->Because that would've</v>

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come directly from the defendant?

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<v ->Exactly, yes.</v>

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<v ->Perhaps.</v>

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I mean, in this situation, I think there was testimony

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that some of that stuff gets ported into the report,

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just if you've already been in there.

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But may I ask you about Judge Pellegrini,

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because I'm a little bit, I don't understand

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the nature of his error, if he made one.

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He accepts Dowd's testimony about the search parameters,

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not for its truth.

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He specifically says that, he's only using it

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for what it is that Dowd used to come back

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with the lack of record.

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But he denies the motion for required finding.

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So can you just tell us, if you can tell us

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from the record, I couldn't get from his decision

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where he got for the truth, 'cause he said,

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I credit Dowd's testimony, there's no reason for me

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to not credit, but that part of his testimony

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was received not for its truth.

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So is the error that the required finding

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should have been allowed on that issue,

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because there was nothing tethering the search

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and the result to this particular defendant?

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<v ->Yes, yes, Your Honor, I think the required finding</v>

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should have been allowed.

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And I think where he made a mistake is,

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and it's totally understandable,

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is sort of this burden shifting.

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He assumes that, based on Dowd's testimony,

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that this information that he put into the search,

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the biographical information, the date of birth,

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was the defendant's, even though there's no evidence

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to support that.

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And I totally understand where one could assume

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that, okay, this has gotta be the defendant's information,

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despite there not being such evidence.

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And then he shifts the burden.

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What he says is, I didn't hear any evidence saying

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that it's basically undermining

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that this is the defendant's biographical information.

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But the problem is, he didn't first hear any evidence

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that it was the defendant's biographical information.

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So I think it's a shifting of the burden

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that's the problem here.

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<v ->If I may, can we move on to the pat frisk question?</v>

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And could you possibly please,

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or I guess it's disputed whether there was a pat frisk,

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but could you address whether once the,

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you do not challenge the validity of the exit order.

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And once the exit order had been achieved

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and the defendant was out of the car

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and the firearm was in his back pocket in plain view,

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is there not an inevitable discovery issue here?

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<v ->Well, I believe that they discovered it</v>

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when they, once they handcuff him and turn him around.

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So I would say, I guess at that point, yes,

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the pat frisk has already begun.

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There, obviously there's a huge gray area.

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Where does a Pat Frisk begin?

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Where does it end?

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Or well, really just where does it begin

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is a question here.

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I think there would be an inevitable discovery.

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I don't think it would inevitably have been discovered.

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If he simply exited from the vehicle,

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I'm not sure that they inevitably

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would have discovered the weapon on him.

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It's in his pants.

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So they may have discovered it,

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but I don't think it's inevitable that they discover it

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if they simply exit him from the vehicle.

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And I think that's where, that was proper.

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But beyond that, that's where we run

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into the impropriety here.

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And I'm happy to turn to the admissibility arguments

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with respect to hearsay and the confrontation clause.

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I do think it notable that this,

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though it is sort of one of the secondary arguments

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that I raise, I do find in my review

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of cases involving these Guardado issues,

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this is an issue that's raised all the time.

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So the sufficiency issue comes up here and there,

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but I see this issue almost all the time

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as to whether testimony about the absence

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of a licensing record from the database,

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whether it's hearsay and whether it violates

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the confrontation clause, that's an issue

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I see all the time.

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So I think it is important to address it.

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With respect to it being hearsay,

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it's hearsay because everything in this database

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is what we've termed computer-stored records

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in that they're human-generated records

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that are stored in a database.

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And the testimony here is about the absence

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of such a record in the database.

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And Commonwealth v. Toronto does establish

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that an absence of a record from a database,

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it is still hearsay.

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It doesn't take that out of the realm of hearsay.

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And I would say that what's required here

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is to fall into the absence of a public record exception,

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the person testifying needs to know

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how the database was created, maintained, and accessed.

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I think those are the three prerequisites.

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<v ->And we have that here.</v>

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I mean, you might disagree with it,

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but one of the things about Justice Lowy's concurrence

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is talking about that this just has to be

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00:12:17.520 --> 00:12:20.160
a preliminary determination by the trial judge

259
00:12:20.160 --> 00:12:22.297
if there's a voir dire of doubt and say,

260
00:12:22.297 --> 00:12:25.027
"Okay, how do you know this thing works?

261
00:12:25.027 --> 00:12:26.310
"What does it do?"

262
00:12:26.310 --> 00:12:29.160
And even though there wasn't this preliminary voir dire,

263
00:12:29.160 --> 00:12:31.160
he testified to it.

264
00:12:31.160 --> 00:12:34.350
And he overruled the objection of the defense

265
00:12:34.350 --> 00:12:37.620
and he talked about how those records come into CJIS

266
00:12:37.620 --> 00:12:40.260
and how we look at 'em and how I get them.

267
00:12:40.260 --> 00:12:43.290
So all of those things about having some familiarity

268
00:12:43.290 --> 00:12:46.410
with how CJIS, all these records pour into CJIS,

269
00:12:46.410 --> 00:12:47.370
he testified to.

270
00:12:47.370 --> 00:12:50.430
You may not like that, but he did testify

271
00:12:50.430 --> 00:12:52.410
to his familiarity with this database

272
00:12:52.410 --> 00:12:54.960
and how the records come into it.

273
00:12:54.960 --> 00:12:58.830
So why doesn't that come into subsection 10

274
00:12:58.830 --> 00:13:01.200
in our common law that now he can testify

275
00:13:01.200 --> 00:13:03.180
to the lack of the record?

276
00:13:03.180 --> 00:13:05.760
<v ->I think he definitely testified as to how they come in.</v>

277
00:13:05.760 --> 00:13:08.373
I think what's missing is the maintenance aspect.

278
00:13:09.690 --> 00:13:11.820
<v ->Your brief suggests he'd have to be a coder</v>

279
00:13:11.820 --> 00:13:15.720
or a programmer, a computer person essentially,

280
00:13:15.720 --> 00:13:17.700
to be able to testify.

281
00:13:17.700 --> 00:13:21.210
<v ->I don't think he needs that level of expertise</v>

282
00:13:21.210 --> 00:13:22.043
to testify.
<v ->Would you concede</v>

283
00:13:22.043 --> 00:13:23.220
he was a knowledgeable witness

284
00:13:23.220 --> 00:13:25.353
for confrontation cause purposes?

285
00:13:26.400 --> 00:13:27.270
<v ->I'm sorry?</v>

286
00:13:27.270 --> 00:13:30.270
<v ->Would you concede he was a knowledgeable witness</v>

287
00:13:30.270 --> 00:13:32.430
for confrontation cause purposes

288
00:13:32.430 --> 00:13:34.200
under Bolt Common in those cases?

289
00:13:34.200 --> 00:13:36.120
<v ->I would say he's knowledgeable</v>

290
00:13:36.120 --> 00:13:38.400
about certain aspects of the database,

291
00:13:38.400 --> 00:13:42.180
but my position is essentially that he's acting

292
00:13:42.180 --> 00:13:44.980
as a messenger in terms of he's running the search

293
00:13:44.980 --> 00:13:47.580
and he's relaying what he's received from the search

294
00:13:47.580 --> 00:13:48.900
to the fact finder.

295
00:13:48.900 --> 00:13:51.930
But what's missing is his knowledge

296
00:13:51.930 --> 00:13:54.150
of how that database is maintained

297
00:13:54.150 --> 00:13:55.830
sort of on a day-to-day basis.

298
00:13:55.830 --> 00:13:58.110
I don't think the doubt is someone

299
00:13:58.110 --> 00:13:59.760
who's completely lacking in knowledge.

300
00:13:59.760 --> 00:14:02.250
Certainly he knows how the system operates,

301
00:14:02.250 --> 00:14:04.950
how licensing works in Massachusetts.

302
00:14:04.950 --> 00:14:08.310
He's certainly someone who has a basis of knowledge

303
00:14:08.310 --> 00:14:09.360
on those things.

304
00:14:09.360 --> 00:14:12.120
But what's missing is just knowledge

305
00:14:12.120 --> 00:14:14.490
of how the database is maintained,

306
00:14:14.490 --> 00:14:15.330
how it's updated.

307
00:14:15.330 --> 00:14:17.820
I think that's critically important.

308
00:14:17.820 --> 00:14:20.280
And that doesn't mean that,

309
00:14:20.280 --> 00:14:22.860
I honestly think if he had provided more testimony,

310
00:14:22.860 --> 00:14:24.330
he may be someone-

311
00:14:24.330 --> 00:14:28.560
<v ->He testified to how data's inputted, correct?</v>

312
00:14:28.560 --> 00:14:30.720
<v ->Yes.</v>
<v ->Where it comes from.</v>

313
00:14:30.720 --> 00:14:33.870
<v ->And to the extent that you have an issue with that,</v>

314
00:14:33.870 --> 00:14:37.680
isn't that what the whole point of the cross-examination is

315
00:14:37.680 --> 00:14:40.680
to argue to the jury that you can't trust what he's saying

316
00:14:40.680 --> 00:14:42.840
because he doesn't know if it hasn't been updated

317
00:14:42.840 --> 00:14:43.710
and all these other things.

318
00:14:43.710 --> 00:14:46.740
But I do wanna get to one thing in particular.

319
00:14:46.740 --> 00:14:48.570
You're saying that this is the problem

320
00:14:48.570 --> 00:14:50.760
with getting somebody in for CEGIS.

321
00:14:50.760 --> 00:14:53.100
We're gonna have this case on right after

322
00:14:53.100 --> 00:14:55.267
where they say, "Oh no, don't do this.

323
00:14:55.267 --> 00:14:57.660
"You could just bring somebody in from CEGIS."

324
00:14:57.660 --> 00:15:01.440
So what is the defense perspective here

325
00:15:01.440 --> 00:15:05.900
about how it seems like on the defense side

326
00:15:05.900 --> 00:15:08.580
that folks are talking out of both sides of their mouths

327
00:15:08.580 --> 00:15:10.323
when it comes to this?

328
00:15:11.190 --> 00:15:13.170
<v ->I understand that because I do think</v>

329
00:15:13.170 --> 00:15:15.480
that there have been arguments raised.

330
00:15:15.480 --> 00:15:18.330
Frankly, the argument raised by trial counsel in this case

331
00:15:18.330 --> 00:15:21.270
was essentially that the only person

332
00:15:21.270 --> 00:15:23.190
that could potentially testify about this

333
00:15:23.190 --> 00:15:26.580
is a licensing authority, someone from a municipality.

334
00:15:26.580 --> 00:15:28.140
I'm not gonna go that far.

335
00:15:28.140 --> 00:15:32.697
I think that what is adequate is,

336
00:15:32.697 --> 00:15:34.520
and it doesn't have to be the keeper of the records

337
00:15:34.520 --> 00:15:36.480
or a custodian of the records of CEGIS.

338
00:15:36.480 --> 00:15:38.790
It can be one of these CEGIS employees.

339
00:15:38.790 --> 00:15:40.460
They just have to lay the foundation first

340
00:15:40.460 --> 00:15:43.740
that they know how, like Dowd did,

341
00:15:43.740 --> 00:15:46.980
testifies all about how the records come into the database,

342
00:15:46.980 --> 00:15:49.080
how the records are created.

343
00:15:49.080 --> 00:15:50.850
He has to testify about how the search works.

344
00:15:50.850 --> 00:15:53.550
That's sort of the latter half of it.

345
00:15:53.550 --> 00:15:55.770
But then it's that middle third that's missing.

346
00:15:55.770 --> 00:15:57.210
You have to have someone who testifies

347
00:15:57.210 --> 00:15:59.970
about how the records are maintained.

348
00:15:59.970 --> 00:16:01.800
Once they come in, what happens to them

349
00:16:01.800 --> 00:16:06.090
between, say, creation and expiration?

350
00:16:06.090 --> 00:16:07.980
That's what's missing.

351
00:16:07.980 --> 00:16:09.540
<v Judge>Can you just walk me through</v>

352
00:16:09.540 --> 00:16:11.943
what you think that would entail?

353
00:16:16.020 --> 00:16:19.650
<v ->I think that would entail someone describing</v>

354
00:16:19.650 --> 00:16:23.400
what happens to a record once it's created.

355
00:16:23.400 --> 00:16:25.203
Does it stay there indefinitely?

356
00:16:26.890 --> 00:16:30.300
How is a record updated once someone renews

357
00:16:30.300 --> 00:16:31.590
or doesn't renew?

358
00:16:31.590 --> 00:16:34.080
<v ->Suspended, expired.</v>
<v ->Yes.</v>

359
00:16:34.080 --> 00:16:37.710
<v ->Those sort of testimonial aspects</v>

360
00:16:37.710 --> 00:16:42.330
of beyond creation and access,

361
00:16:42.330 --> 00:16:44.490
what happens to it in the middle?

362
00:16:44.490 --> 00:16:46.300
<v ->Yes, exactly.</v>
<v ->I thought he</v>

363
00:16:46.300 --> 00:16:47.150
testified to that.

364
00:16:47.150 --> 00:16:49.380
I thought he testified that you get entered

365
00:16:49.380 --> 00:16:51.150
and then you're either revoked, suspended,

366
00:16:51.150 --> 00:16:53.730
or the other category, or expires.

367
00:16:53.730 --> 00:16:56.130
<v ->He did testify about those different statuses,</v>

368
00:16:56.130 --> 00:17:00.870
but he didn't testify about how those statuses are updated.

369
00:17:00.870 --> 00:17:03.990
How does one go from active to revoked?

370
00:17:03.990 --> 00:17:07.997
It clearly happens, but what's the process?

371
00:17:07.997 --> 00:17:09.510
<v ->But on license and authority,</v>

372
00:17:09.510 --> 00:17:12.810
you'd have to call every police department

373
00:17:12.810 --> 00:17:15.723
where the person's ever lived past 18.

374
00:17:16.890 --> 00:17:18.510
<v ->Yes, Your Honor.</v>
<v ->I'm sorry, past 21.</v>

375
00:17:18.510 --> 00:17:20.310
<v ->Yes, Your Honor, and certainly that's</v>

376
00:17:20.310 --> 00:17:22.230
an impractical result, and I don't think

377
00:17:22.230 --> 00:17:25.440
it's required by the law.

378
00:17:25.440 --> 00:17:29.010
I think what's required is to someone who, again,

379
00:17:29.010 --> 00:17:31.560
who can satisfy those three prerequisites,

380
00:17:31.560 --> 00:17:33.630
knows how it's created, knows how it's maintained,

381
00:17:33.630 --> 00:17:35.820
and knows how it's accessed.

382
00:17:35.820 --> 00:17:39.630
<v ->Where's, what's your best case for the proposition</v>

383
00:17:39.630 --> 00:17:42.000
that a database that's maintained,

384
00:17:42.000 --> 00:17:45.650
a database that aggregates local

385
00:17:45.650 --> 00:17:50.283
or state governmental records is testimonial?

386
00:17:51.750 --> 00:17:54.720
<v Crane>I would say Commonwealth v. Toronto.</v>

387
00:17:54.720 --> 00:17:56.880
<v ->That, that's your best case?</v>

388
00:17:56.880 --> 00:17:57.713
<v ->I think that's the best case,</v>

389
00:17:57.713 --> 00:18:00.330
'cause the court does say that those are-

390
00:18:00.330 --> 00:18:03.180
<v ->Those weren't, well, I won't argue with you.</v>

391
00:18:03.180 --> 00:18:05.580
<v ->Okay, is it, is it testimonial,</v>

392
00:18:05.580 --> 00:18:07.380
the database isn't testimonial,

393
00:18:07.380 --> 00:18:10.950
or is it the search that was done

394
00:18:10.950 --> 00:18:13.440
for the purposes of presenting lack of license

395
00:18:13.440 --> 00:18:17.520
and element of the crime, that's what's testimonial, right?

396
00:18:17.520 --> 00:18:18.353
<v Crane>Yes.</v>

397
00:18:18.353 --> 00:18:22.950
<v ->And here you had access to Dowd,</v>

398
00:18:22.950 --> 00:18:25.530
Witness Dowd, who actually did the search,

399
00:18:25.530 --> 00:18:30.180
so why is, why does it present a testimonial problem?

400
00:18:30.180 --> 00:18:32.550
They're a confrontation clause problem.

401
00:18:32.550 --> 00:18:35.490
You were able to confront the witness

402
00:18:35.490 --> 00:18:39.420
who did the search for purposes of the trial.

403
00:18:39.420 --> 00:18:42.540
<v ->I think that there are, there's a testimonial aspect</v>

404
00:18:42.540 --> 00:18:45.450
in Dowd's testimony that he ran the search,

405
00:18:45.450 --> 00:18:47.910
but then there's also a testimonial aspect

406
00:18:47.910 --> 00:18:51.723
of the records themselves.

407
00:18:52.920 --> 00:18:54.027
Well, I guess, no, that's not-

408
00:18:54.027 --> 00:18:55.290
<v ->No.</v>
<v ->No, that's not accurate.</v>

409
00:18:55.290 --> 00:18:56.130
<v ->No.</v>
<v ->It's really,</v>

410
00:18:56.130 --> 00:18:58.680
it's Dowd's testimony that-

411
00:18:58.680 --> 00:19:00.990
<v ->But he was there, he was presented at trial,</v>

412
00:19:00.990 --> 00:19:03.030
so you were able to confront him.

413
00:19:03.030 --> 00:19:06.480
<v ->And I guess the issue with the confrontation clause issue</v>

414
00:19:06.480 --> 00:19:11.480
would be that he can't be cross-examined about-

415
00:19:12.150 --> 00:19:13.470
<v ->Maintenance.</v>
<v ->About the maintenance</v>

416
00:19:13.470 --> 00:19:14.403
aspect of it.

417
00:19:15.390 --> 00:19:19.080
And I guess where the problem is, the hypothetical is-

418
00:19:19.080 --> 00:19:20.370
<v Judge>Well, he can be cross-examined,</v>

419
00:19:20.370 --> 00:19:21.600
he just doesn't know.

420
00:19:21.600 --> 00:19:22.890
<v ->Doesn't know, and if you put someone-</v>

421
00:19:22.890 --> 00:19:23.820
<v Judge>Well, maybe.</v>

422
00:19:23.820 --> 00:19:26.910
<v ->Who's even less knowledgeable than Dowd,</v>

423
00:19:26.910 --> 00:19:30.270
if they were someone, you put a teenager on the stand,

424
00:19:30.270 --> 00:19:31.110
and they ran the search,

425
00:19:31.110 --> 00:19:32.610
they're probably capable of running the search,

426
00:19:32.610 --> 00:19:35.197
and then saying, "Well, this person, they ran the search,

427
00:19:35.197 --> 00:19:36.840
"so you can cross-examine them,"

428
00:19:36.840 --> 00:19:38.370
but they can just say, they have no,

429
00:19:38.370 --> 00:19:39.540
I don't know, I don't know anything

430
00:19:39.540 --> 00:19:41.463
about how this database is maintained.

431
00:19:42.480 --> 00:19:44.370
And so it's not really, you know,

432
00:19:44.370 --> 00:19:48.603
the confrontation right is sort of void in that situation.

433
00:19:50.770 --> 00:19:52.090
<v ->Okay, thank you.</v>
<v ->Thank you, Your Honors.</v>

434
00:19:52.090 --> 00:19:52.923
<v ->Thank you, Your Honors.</v>

435
00:19:54.540 --> 00:19:55.593
<v ->Attorney Crane.</v>

436
00:20:09.540 --> 00:20:10.890
<v ->Good morning, and may it please the Court,</v>

437
00:20:10.890 --> 00:20:13.170
Jesse Crane for the Commonwealth.

438
00:20:13.170 --> 00:20:16.980
I'll start with the first part of the sufficiency claim

439
00:20:16.980 --> 00:20:19.050
in terms of whether the date of birth

440
00:20:19.050 --> 00:20:20.370
and the name needed to come in.

441
00:20:20.370 --> 00:20:24.330
<v ->How do you get past the DNA CODIS case, Sullivan?</v>

442
00:20:24.330 --> 00:20:25.163
<v ->Sullivan?</v>

443
00:20:26.130 --> 00:20:29.280
I think it's a reasonable inference

444
00:20:29.280 --> 00:20:33.570
to draw from the testimony that came in at trial

445
00:20:33.570 --> 00:20:36.543
that this came in through the booking process.

446
00:20:37.380 --> 00:20:40.110
None of the officers who testified

447
00:20:40.110 --> 00:20:41.820
were involved in the booking process,

448
00:20:41.820 --> 00:20:44.160
but there was some discussion

449
00:20:44.160 --> 00:20:46.620
during Officer Mazzoni's testimony

450
00:20:46.620 --> 00:20:49.020
as to what kind of information is gathered

451
00:20:49.020 --> 00:20:49.853
in the booking process.
<v ->All of it</v>

452
00:20:49.853 --> 00:20:51.843
which was objected to and sustained.

453
00:20:53.580 --> 00:20:56.070
Judge Pellegrini was very clear about that,

454
00:20:56.070 --> 00:20:59.000
and the only effort that the Commonwealth made

455
00:20:59.000 --> 00:21:02.160
was to say, I can get a booking officer here at 3:30,

456
00:21:02.160 --> 00:21:05.250
but Judge Pellegrini didn't let him do that.

457
00:21:05.250 --> 00:21:09.180
So going back to Justice Gaziano's question,

458
00:21:09.180 --> 00:21:10.770
how do you get past that?

459
00:21:10.770 --> 00:21:13.740
Because you also have to grapple with,

460
00:21:13.740 --> 00:21:15.900
Judge Pellegrini says explicitly,

461
00:21:15.900 --> 00:21:20.900
I'm not accepting the search parameters for its truth.

462
00:21:21.030 --> 00:21:22.800
So where do you get the evidence

463
00:21:22.800 --> 00:21:26.733
tethering what Dowd did to that defendant?

464
00:21:27.660 --> 00:21:29.100
<v ->I mean, I think if you,</v>

465
00:21:29.100 --> 00:21:30.630
looking at it from the other end,

466
00:21:30.630 --> 00:21:33.000
working backward from Dowd's testimony,

467
00:21:33.000 --> 00:21:34.710
you get it in through the fact

468
00:21:34.710 --> 00:21:37.380
that he got that information from the DA's office.

469
00:21:37.380 --> 00:21:38.700
I think it's-

470
00:21:38.700 --> 00:21:40.080
<v ->But that presents a problem</v>

471
00:21:40.080 --> 00:21:44.820
with which your opposing counsel has already articulated.

472
00:21:44.820 --> 00:21:46.230
Can you address that?

473
00:21:46.230 --> 00:21:47.550
<v ->Absolutely.</v>
<v ->Why are we gonna</v>

474
00:21:47.550 --> 00:21:50.130
just believe that the DA has the accurate spelling

475
00:21:50.130 --> 00:21:51.390
and date of birth?

476
00:21:51.390 --> 00:21:53.130
<v ->I don't think you have to.</v>

477
00:21:53.130 --> 00:21:54.420
I think the-

478
00:21:54.420 --> 00:21:55.650
<v ->But don't you have to for</v>

479
00:21:55.650 --> 00:21:56.940
the sufficiency of the evidence?

480
00:21:56.940 --> 00:21:59.040
I mean, that's what you're suggesting then.

481
00:21:59.040 --> 00:22:00.510
Oh, the DA must have it right

482
00:22:00.510 --> 00:22:02.823
because I guess they're the DA.

483
00:22:03.690 --> 00:22:07.170
<v ->Well, I think the issue with Dowd's testimony</v>

484
00:22:07.170 --> 00:22:11.100
really is just whether he had sufficiently reliable

485
00:22:11.100 --> 00:22:14.760
information to run the BOP-FI query.

486
00:22:14.760 --> 00:22:16.470
And I think it's a reasonable inference

487
00:22:16.470 --> 00:22:19.740
that getting that information from the DA's office

488
00:22:19.740 --> 00:22:22.500
was at least reliable enough

489
00:22:22.500 --> 00:22:24.903
to be admissible and sufficient.

490
00:22:26.260 --> 00:22:30.300
<v ->Well, he could always testify to what he did, right?</v>

491
00:22:30.300 --> 00:22:31.140
He did that.

492
00:22:31.140 --> 00:22:32.850
The question is whether it's sufficient

493
00:22:32.850 --> 00:22:37.080
to link that information to the defendant who's on trial.

494
00:22:37.080 --> 00:22:41.190
That's the piece that I think we're all struggling with.

495
00:22:41.190 --> 00:22:43.260
<v ->And I think there are a couple of factors</v>

496
00:22:43.260 --> 00:22:45.240
about the BOP-FI search itself

497
00:22:45.240 --> 00:22:49.170
that perhaps ameliorate some of these concerns.

498
00:22:49.170 --> 00:22:50.400
There was a testimony about

499
00:22:50.400 --> 00:22:52.353
the Soundex nature of the search.

500
00:22:53.880 --> 00:22:56.970
<v ->Right, but it all fundamentally requires</v>

501
00:22:56.970 --> 00:23:00.210
the spelling of the defendant's name to be correct,

502
00:23:00.210 --> 00:23:02.190
either the first or last name,

503
00:23:02.190 --> 00:23:05.010
and also that the date of birth be correct.

504
00:23:05.010 --> 00:23:07.680
And there was no evidence other than the suggestion

505
00:23:07.680 --> 00:23:10.200
that the DA must have been accurate

506
00:23:10.200 --> 00:23:13.830
when they gave these search parameters to Dowd

507
00:23:13.830 --> 00:23:16.440
that those in fact were accurate.

508
00:23:16.440 --> 00:23:19.480
I mean, I understand the search and how it works,

509
00:23:19.480 --> 00:23:24.330
but if you, you know, bad data in, bad data out.

510
00:23:24.330 --> 00:23:26.160
<v ->I think for the date of birth,</v>

511
00:23:26.160 --> 00:23:28.350
I have a little bit of a harder time.

512
00:23:28.350 --> 00:23:29.730
<v ->Well, isn't that necessary?</v>

513
00:23:29.730 --> 00:23:31.830
I mean, given that the last name is Smith?

514
00:23:32.700 --> 00:23:34.830
<v ->Right, I think for the name,</v>

515
00:23:34.830 --> 00:23:38.783
the fact that Officer Mazzoni identifies the defendant

516
00:23:40.740 --> 00:23:44.520
as Quentin Smith and says he has,

517
00:23:44.520 --> 00:23:46.920
he testifies to the fact that he knows the defendant

518
00:23:46.920 --> 00:23:49.240
from prior interactions, I think that helps us

519
00:23:49.240 --> 00:23:52.833
<v ->Does he testify that he gave Dowd that name spelling?</v>

520
00:23:54.060 --> 00:23:55.830
<v Crane>Mazzoni does not, no.</v>

521
00:23:55.830 --> 00:23:57.330
<v ->So he just says the name,</v>

522
00:23:57.330 --> 00:24:00.120
he doesn't spell it for the transcriber?

523
00:24:00.120 --> 00:24:01.020
<v Crane>No, he does not.</v>

524
00:24:01.020 --> 00:24:04.410
<v ->Okay, so we don't know how he's spelling Quentin Smith.</v>

525
00:24:04.410 --> 00:24:06.453
<v ->We do not know, that's correct.</v>

526
00:24:08.550 --> 00:24:12.190
<v ->Could you turn to the question of</v>

527
00:24:15.300 --> 00:24:18.300
what inference can be drawn from the fact,

528
00:24:18.300 --> 00:24:20.310
even if we were to assume

529
00:24:20.310 --> 00:24:24.420
that the search parameters were correct,

530
00:24:24.420 --> 00:24:29.420
but the fact that the search resulted in no records,

531
00:24:30.000 --> 00:24:34.440
how are we supposed to know or anyone to reasonably infer

532
00:24:34.440 --> 00:24:37.923
that that means that at some earlier point in time,

533
00:24:39.090 --> 00:24:41.790
or the person has never had a license

534
00:24:41.790 --> 00:24:46.680
as opposed to that that search simply means

535
00:24:46.680 --> 00:24:49.230
that at the moment in time when the search was conducted,

536
00:24:49.230 --> 00:24:51.570
he didn't have a license?

537
00:24:51.570 --> 00:24:54.180
<v ->Right, so there was testimony from Dowd</v>

538
00:24:54.180 --> 00:24:57.030
that the Firearms Record Bureau is the repository

539
00:24:57.030 --> 00:25:00.150
of all licensing records related to firearms

540
00:25:00.150 --> 00:25:01.443
for the Commonwealth,

541
00:25:02.310 --> 00:25:05.520
and in the beginning of his cross-examination,

542
00:25:05.520 --> 00:25:08.070
Dowd also testified that if someone had a license

543
00:25:08.070 --> 00:25:10.890
at some point, it would appear in the Bob Fye search,

544
00:25:10.890 --> 00:25:13.320
and he further testifies that you would see the status

545
00:25:13.320 --> 00:25:16.230
as either active, suspended, expired, or revoked.

546
00:25:16.230 --> 00:25:17.380
<v Judge>For how long?</v>

547
00:25:19.050 --> 00:25:22.100
<v ->He does not say, but I think it is a reasonable inference</v>

548
00:25:22.100 --> 00:25:24.930
because of the nature of the statuses.

549
00:25:24.930 --> 00:25:27.210
<v Judge>Yeah, what's the reasonable inference?</v>

550
00:25:27.210 --> 00:25:29.070
<v ->I think because he testifies</v>

551
00:25:29.070 --> 00:25:31.410
that a status could be expired or revoked,

552
00:25:31.410 --> 00:25:33.750
it's a reasonable inference that it persists.

553
00:25:33.750 --> 00:25:36.720
<v ->For how long?</v>
<v ->Indefinitely.</v>

554
00:25:36.720 --> 00:25:37.710
<v ->Really?</v>
<v ->Yes.</v>

555
00:25:37.710 --> 00:25:40.383
<v Judge>When was CJIS created?</v>

556
00:25:41.280 --> 00:25:45.990
<v ->I believe CJIS was created about 40 years ago.</v>

557
00:25:45.990 --> 00:25:48.660
I'm not sure, it's not in the trial record.

558
00:25:48.660 --> 00:25:52.020
<v ->But what is in the trial record is Dowd testifies</v>

559
00:25:52.020 --> 00:25:54.360
that he was a state trooper for 28 years,

560
00:25:54.360 --> 00:25:56.730
and he used it throughout his career.

561
00:25:56.730 --> 00:25:57.930
<v ->That's correct, yes.</v>

562
00:25:57.930 --> 00:26:00.600
He was consistently running CJIS queries,

563
00:26:00.600 --> 00:26:03.543
going back for his entire career.

564
00:26:09.010 --> 00:26:12.070
And I do just wanna address

565
00:26:13.920 --> 00:26:18.920
between the subsequent OUI records and the BOPFI query.

566
00:26:19.650 --> 00:26:24.450
I don't think that's quite a good analogy in this case

567
00:26:24.450 --> 00:26:28.080
because in the instance of the subsequent OUI,

568
00:26:28.080 --> 00:26:32.220
the concern is really that defendant John Dowd

569
00:26:32.220 --> 00:26:35.220
is not the same person as John Dowd

570
00:26:35.220 --> 00:26:38.490
named in the prior conviction.

571
00:26:38.490 --> 00:26:42.180
With the BOPFI query, it's not a record in and of itself,

572
00:26:42.180 --> 00:26:46.690
and it also generates results that could be more inclusive

573
00:26:47.530 --> 00:26:50.070
than what would come in,

574
00:26:50.070 --> 00:26:52.530
than what could be connected to the-

575
00:26:52.530 --> 00:26:54.153
<v ->Or less inclusive, right?</v>

576
00:26:55.260 --> 00:26:58.923
I just don't see why the OUI analogy isn't a good one.

577
00:27:00.000 --> 00:27:03.030
<v ->I think the date of birth does limit it,</v>

578
00:27:03.030 --> 00:27:05.760
but again, the Soundex query,

579
00:27:05.760 --> 00:27:07.410
the Soundex nature of the query

580
00:27:07.410 --> 00:27:11.050
could potentially pull in more names

581
00:27:11.050 --> 00:27:12.630
into the search results

582
00:27:12.630 --> 00:27:17.630
than would necessarily include the defendant.

583
00:27:18.210 --> 00:27:21.930
<v ->Wouldn't the difference be in an OUI second subsequent,</v>

584
00:27:21.930 --> 00:27:23.990
the government has to prove beyond a reasonable doubt

585
00:27:23.990 --> 00:27:25.500
that element.

586
00:27:25.500 --> 00:27:28.370
Here, this is an adjudicatory fact

587
00:27:28.370 --> 00:27:30.780
towards proving he's unlicensed, correct?

588
00:27:30.780 --> 00:27:32.160
<v Crane>Yes, that is correct.</v>

589
00:27:32.160 --> 00:27:34.010
<v ->But still, you have to get past sufficiency</v>

590
00:27:34.010 --> 00:27:36.300
even if it is an adjudicatory fact.

591
00:27:36.300 --> 00:27:37.920
<v Crane>Yes, I agree with that.</v>

592
00:27:37.920 --> 00:27:38.753
<v ->All right.</v>

593
00:27:39.870 --> 00:27:41.190
<v ->If there are no further questions</v>

594
00:27:41.190 --> 00:27:42.660
on the sufficiency portion,

595
00:27:42.660 --> 00:27:45.603
I will turn to the confrontation issue.

596
00:27:47.010 --> 00:27:52.010
I think when you parse out what the statements are here,

597
00:27:52.230 --> 00:27:55.530
there isn't really a confrontation issue.

598
00:27:55.530 --> 00:28:00.530
So the testimonial statement here was no records found.

599
00:28:00.750 --> 00:28:04.770
That was a function of Phil Dowd running the BOPFI query,

600
00:28:04.770 --> 00:28:06.963
and he was available to testify.

601
00:28:07.800 --> 00:28:10.020
He could testify to what he inputted.

602
00:28:10.020 --> 00:28:12.483
He was a knowledgeable witness.

603
00:28:13.500 --> 00:28:15.060
He extensively testified-

604
00:28:15.060 --> 00:28:19.020
<v ->What was his testimony as to the maintenance</v>

605
00:28:19.020 --> 00:28:20.450
of the database?

606
00:28:20.450 --> 00:28:23.730
<v ->He testified that the licensing authorities</v>

607
00:28:23.730 --> 00:28:25.320
and the Firearms Record Bureau

608
00:28:25.320 --> 00:28:29.130
are the entities that can revoke the licenses,

609
00:28:29.130 --> 00:28:30.870
and that would be reflected in Merck's

610
00:28:30.870 --> 00:28:33.930
based on his testimony that

611
00:28:33.930 --> 00:28:36.720
the status is updated in Merck's

612
00:28:36.720 --> 00:28:38.853
once that event occurs.

613
00:28:39.750 --> 00:28:42.750
<v ->But there's no testimony as to how long records</v>

614
00:28:42.750 --> 00:28:47.750
are maintained, how the entities responsible for updating

615
00:28:49.860 --> 00:28:52.170
actually update the record.

616
00:28:52.170 --> 00:28:55.560
Isn't that problematic from both the hearsay

617
00:28:55.560 --> 00:28:58.050
and the confrontation clause problem?

618
00:28:58.050 --> 00:29:01.410
<v ->I think there's a fair inference from the fact</v>

619
00:29:01.410 --> 00:29:05.190
that he so extensively describes the creation of the record

620
00:29:05.190 --> 00:29:08.430
that the licensing authority also would probably go

621
00:29:08.430 --> 00:29:10.530
through a similar process,

622
00:29:10.530 --> 00:29:12.660
entering the fact that they've revoked

623
00:29:12.660 --> 00:29:14.530
the license in Merck's

624
00:29:14.530 --> 00:29:18.180
<v ->So as I understand, and you can correct me if I'm wrong,</v>

625
00:29:18.180 --> 00:29:19.980
'cause I'm not an expert in this.

626
00:29:19.980 --> 00:29:22.500
As I understand the creation testimony,

627
00:29:22.500 --> 00:29:25.740
it was that the local authority takes down the information,

628
00:29:25.740 --> 00:29:29.430
it goes to some other entity for a background check,

629
00:29:29.430 --> 00:29:31.680
and then it gets activated.

630
00:29:31.680 --> 00:29:33.363
Is that what you're suggesting happens,

631
00:29:33.363 --> 00:29:35.940
that I should infer from the evidence happens

632
00:29:35.940 --> 00:29:38.370
when a record needs to be updated,

633
00:29:38.370 --> 00:29:40.740
that the local authority does some sort of updating,

634
00:29:40.740 --> 00:29:44.520
it goes to another entity for confirmation of some sort,

635
00:29:44.520 --> 00:29:45.840
and then it gets updated?

636
00:29:45.840 --> 00:29:48.300
<v ->I think the way the testimony came in,</v>

637
00:29:48.300 --> 00:29:51.270
as far as revocation goes, so for the updating portion,

638
00:29:51.270 --> 00:29:52.680
it was that the local authority

639
00:29:52.680 --> 00:29:55.410
or the Firearms Record Bureau directly

640
00:29:55.410 --> 00:29:57.133
can revoke the license.

641
00:29:57.133 --> 00:29:59.430
<v ->And that's in the transcript?</v>

642
00:29:59.430 --> 00:30:02.460
No, I mean, yes, they can revoke the license,

643
00:30:02.460 --> 00:30:06.663
but how they update the record once they do that,

644
00:30:07.730 --> 00:30:10.170
once they revoke it, once they suspend it,

645
00:30:10.170 --> 00:30:11.710
once it's expired.

646
00:30:11.710 --> 00:30:16.560
<v ->I don't believe there's direct testimony to that effect.</v>

647
00:30:16.560 --> 00:30:18.420
I do think it's a fair inference,

648
00:30:18.420 --> 00:30:21.450
because MERCS does reflect those events.

649
00:30:21.450 --> 00:30:23.400
There was testimony directly to the fact

650
00:30:23.400 --> 00:30:26.070
that the status does change in MERCS.

651
00:30:26.070 --> 00:30:27.800
And so if a licensing authority

652
00:30:27.800 --> 00:30:29.853
is the entity that's revoking it,

653
00:30:31.150 --> 00:30:34.380
the fact that that appears in MERCS,

654
00:30:34.380 --> 00:30:36.450
I think, suggests that the licensing authority

655
00:30:36.450 --> 00:30:39.360
has done something in MERCS to do that.

656
00:30:39.360 --> 00:30:42.420
<v ->How hard would it be just to ask Dowd?</v>

657
00:30:42.420 --> 00:30:44.550
<v ->I think the defendant could have done that.</v>

658
00:30:44.550 --> 00:30:45.900
<v ->Right, no, no, but it's the Commonwealth's</v>

659
00:30:45.900 --> 00:30:47.670
burden of proof, as we all know.

660
00:30:47.670 --> 00:30:51.900
<v ->Yes, I think we could have asked that,</v>

661
00:30:51.900 --> 00:30:56.190
but I think the fact that he did testify

662
00:30:56.190 --> 00:30:58.830
to the fact that these records are updated in MERCS

663
00:30:58.830 --> 00:31:01.350
is sufficient at least to establish

664
00:31:01.350 --> 00:31:03.950
that he understands how the records were maintained.

665
00:31:04.830 --> 00:31:08.100
And the fact that they're kept in MERCS,

666
00:31:08.100 --> 00:31:09.783
they're updated in MERCS.

667
00:31:10.680 --> 00:31:12.660
<v ->Indefinitely.</v>
<v ->Yes.</v>

668
00:31:12.660 --> 00:31:13.680
<v ->Okay, thank you.</v>

669
00:31:13.680 --> 00:31:15.780
<v Judge>Can I just go back to the sufficiency?</v>

670
00:31:15.780 --> 00:31:20.780
I might have missed how you explained how this document,

671
00:31:22.170 --> 00:31:25.440
assuming it's admissible, is enough to show

672
00:31:25.440 --> 00:31:27.180
that it was this defendant.

673
00:31:27.180 --> 00:31:31.500
I understand that it goes towards proving

674
00:31:31.500 --> 00:31:34.350
that it was this defendant, but I don't see,

675
00:31:34.350 --> 00:31:37.443
help me understand how it's sufficient to find him guilty.

676
00:31:38.460 --> 00:31:40.830
<v ->I think it's a two-part.</v>

677
00:31:40.830 --> 00:31:43.320
There's the information that Dowd received

678
00:31:43.320 --> 00:31:46.860
from the DA's office in terms of this is the defendant

679
00:31:46.860 --> 00:31:48.777
that was arrested by officer-

680
00:31:48.777 --> 00:31:52.260
<v ->And that's taking for granted</v>

681
00:31:52.260 --> 00:31:54.710
that the name was spelled correctly

682
00:31:54.710 --> 00:31:58.110
and the date of birth was given, all of that.

683
00:31:58.110 --> 00:32:02.940
<v ->I think only, I think that can only come in</v>

684
00:32:02.940 --> 00:32:05.790
to prove what Dowd entered.

685
00:32:05.790 --> 00:32:07.287
<v ->Right, well that-</v>

686
00:32:07.287 --> 00:32:09.480
<v ->But I think the second part of it is the fact</v>

687
00:32:09.480 --> 00:32:13.680
that Dowd does a search of the entire licensure database.

688
00:32:13.680 --> 00:32:15.480
So the entire universe of records

689
00:32:15.480 --> 00:32:17.400
is examined in that BOPFI query.

690
00:32:17.400 --> 00:32:21.630
And the fact that there is no record found

691
00:32:21.630 --> 00:32:24.690
based on that query provides an adequate basis

692
00:32:24.690 --> 00:32:27.240
to infer that the defendant never received a license.

693
00:32:27.240 --> 00:32:31.770
<v ->And he used all the different ways to spell Quentin?</v>

694
00:32:31.770 --> 00:32:33.480
<v ->There was not testimony to that.</v>

695
00:32:33.480 --> 00:32:35.820
He said, I searched for Quentin Smith

696
00:32:35.820 --> 00:32:39.153
with the date of birth of June 23rd, 2002.

697
00:32:43.480 --> 00:32:46.470
If I could just address the final,

698
00:32:46.470 --> 00:32:50.670
the testimonial piece of the confrontation portion,

699
00:32:50.670 --> 00:32:54.300
I would just note that the underlying records

700
00:32:54.300 --> 00:32:55.860
are not testimonial.

701
00:32:55.860 --> 00:32:59.280
Those are official or public records

702
00:32:59.280 --> 00:33:02.520
that are issued by licensing authorities

703
00:33:02.520 --> 00:33:04.260
pursuant to a statutory authority

704
00:33:04.260 --> 00:33:07.593
to give someone who's eligible an LTC or an FIT.

705
00:33:10.460 --> 00:33:14.430
The database itself is also not testimonial.

706
00:33:14.430 --> 00:33:16.440
Mercs and CEGIS are maintained, again,

707
00:33:16.440 --> 00:33:18.550
according to a statutory responsibility

708
00:33:18.550 --> 00:33:22.500
of the Firearms Record Bureau to aggregate.

709
00:33:22.500 --> 00:33:24.570
<v Judge>But Dowd's testimony is testimonial, right?</v>

710
00:33:24.570 --> 00:33:27.210
His search was for, okay, so let's focus on that.

711
00:33:27.210 --> 00:33:29.190
<v ->Dowd's testimony is testimonial,</v>

712
00:33:29.190 --> 00:33:32.250
but he was present to be cross-examined.

713
00:33:32.250 --> 00:33:35.080
<v ->And your brother, opposing counsel said</v>

714
00:33:37.050 --> 00:33:38.520
that because he didn't know how

715
00:33:38.520 --> 00:33:40.200
the database was maintained,

716
00:33:40.200 --> 00:33:41.370
it was not good enough.

717
00:33:41.370 --> 00:33:42.720
It was like having a teenager

718
00:33:42.720 --> 00:33:44.200
just run the search, he was saying.

719
00:33:44.200 --> 00:33:47.160
<v ->I think that's a little bit of an unfair comparison.</v>

720
00:33:47.160 --> 00:33:48.750
<v Judge>Right, so tell me why.</v>

721
00:33:48.750 --> 00:33:50.400
<v ->I think he was very knowledgeable</v>

722
00:33:50.400 --> 00:33:52.260
about how records were created.

723
00:33:52.260 --> 00:33:53.790
He testified extensively to that.

724
00:33:53.790 --> 00:33:54.660
He testified about-
<v ->Right, but focusing</v>

725
00:33:54.660 --> 00:33:58.140
on maintained, sorry, your time is running short.

726
00:33:58.140 --> 00:33:58.973
<v Crane>Sure, of course.</v>

727
00:33:58.973 --> 00:34:02.540
<v ->So focusing on his presence at trial</v>

728
00:34:02.540 --> 00:34:05.880
to testify as to what he did

729
00:34:05.880 --> 00:34:08.370
in light of the fact that he didn't testify

730
00:34:08.370 --> 00:34:13.370
as to how the data was maintained or were maintained,

731
00:34:13.770 --> 00:34:16.740
why isn't that a confrontation clause problem?

732
00:34:16.740 --> 00:34:21.150
<v ->Well, I think his testimony did suggest</v>

733
00:34:21.150 --> 00:34:22.860
that he knew how it was maintained.

734
00:34:22.860 --> 00:34:26.160
It certainly was not the most exhaustively developed

735
00:34:26.160 --> 00:34:30.180
portion of his testimony, but I know I keep repeating this,

736
00:34:30.180 --> 00:34:32.370
but he did know that the status

737
00:34:32.370 --> 00:34:34.080
of the license would change.

738
00:34:34.080 --> 00:34:37.440
He did know that the Firearms Records Bureau

739
00:34:37.440 --> 00:34:39.590
or the licensing authority could revoke it.

740
00:34:40.680 --> 00:34:43.890
I think the fact that it wasn't explored further

741
00:34:43.890 --> 00:34:48.330
doesn't necessarily undermine the fact that the defendant,

742
00:34:48.330 --> 00:34:50.220
it doesn't suggest that the defendant

743
00:34:50.220 --> 00:34:53.310
couldn't have cross-examined him further,

744
00:34:53.310 --> 00:34:57.180
and I think that did satisfy sort of the threshold question

745
00:34:57.180 --> 00:34:59.970
of was this witness knowledgeable enough

746
00:34:59.970 --> 00:35:04.970
to be cross-examined on that particular piece

747
00:35:05.220 --> 00:35:06.783
of the database.

748
00:35:08.220 --> 00:35:09.330
<v Judge>Chief, could I ask one question?</v>

749
00:35:09.330 --> 00:35:10.680
<v Judge>Please.</v>

750
00:35:10.680 --> 00:35:13.053
<v ->Go back to the suppression question.</v>

751
00:35:16.320 --> 00:35:20.220
I'm trying to figure out how putting this defendant

752
00:35:20.220 --> 00:35:25.220
in custody bears on the issue of inevitable discovery,

753
00:35:26.190 --> 00:35:30.600
because your brother says if he were just ordered

754
00:35:30.600 --> 00:35:35.600
out of the car and not placed in the custody,

755
00:35:35.610 --> 00:35:40.170
that's the part that brings to the attention

756
00:35:40.170 --> 00:35:42.120
of the officers what might be

757
00:35:42.120 --> 00:35:44.163
in his sweatpants, shorts pocket.

758
00:35:45.420 --> 00:35:49.470
How does that figure into the argument that you're saying?

759
00:35:49.470 --> 00:35:50.850
It wasn't even a pat for us,

760
00:35:50.850 --> 00:35:52.410
which I don't necessarily disagree with you,

761
00:35:52.410 --> 00:35:55.690
but that part about just get out of the car

762
00:35:56.820 --> 00:35:58.710
rather than get out of the car and turn around

763
00:35:58.710 --> 00:36:00.240
and put your hands behind your back,

764
00:36:00.240 --> 00:36:01.620
and that's when they see it.

765
00:36:01.620 --> 00:36:03.960
<v ->I think it would be more problematic for me</v>

766
00:36:03.960 --> 00:36:06.420
if the gun were all the way in his pocket,

767
00:36:06.420 --> 00:36:08.040
but here we have the butt of the gun

768
00:36:08.040 --> 00:36:11.130
sticking out of his pocket in plain view.

769
00:36:11.130 --> 00:36:15.090
I mean, I understand that the order of events

770
00:36:15.090 --> 00:36:16.530
was that he was coughed and turned around,

771
00:36:16.530 --> 00:36:17.820
and that's how it was discovered,

772
00:36:17.820 --> 00:36:21.210
but I guess I would suggest that the butt of a gun

773
00:36:21.210 --> 00:36:24.153
hanging out of a pocket is in pretty plain view,

774
00:36:26.400 --> 00:36:29.673
and that would lead inevitably to its discovery.