-: SJC-10476, Commonwealth v. Yat Fung Ng.
-: Okay attorney MacLean.
-: Good morning, may it please the court,
Ian MacLean on behalf of the Commonwealth.
Along me with Assistant District Attorney Lynn Feigenbaum,
seated behind me.
She assisted in the evidentiary hearing
on remand from this court.
And before we begin with the substantive argument,
I'd like to acknowledge several members
of the deceased victim, Karriem Brown's family
with us here in the courtroom today,
including his wife, Stacy Lewis Brown,
as well as several members of Karriem Brown's family
that are watching on the live stream today.
Your Honors, this court should reverse the allowance
of the motion for new trial.
Attorney Scapicchio made a rational decision
when she elected to preview the anticipated testimony
of Omar Sierra in her opening statement,
and therefore it was not manifestly unreasonable.
And second, the failure to pivot
to a reasonable provocation defense here
was not ineffective because that was not
a viable defense under the facts of this case.
Beginning with the opening statement questions, Your Honor.
(coughs) Whether to open at all and what to include
in an opening is a strategic decision,
or a tactical decision.
And here when we're talking about previewing testimony,
the test comes in two prongs.
First, was the attorney prepared,
or was there some incompetency in their preparation?
And then second, was the inability
to produce the testimony a decision
or outside of that attorney's control?
Here both of those prongs favor the Commonwealth.
-: How about a motion in limine before you
lay out the toothpaste,
that can't go back in the tube.
-: Yes, Your Honor.
Here filing a motion in limine would have placed
the defendant in exactly the same position.
She would have filed a motion
in limine regarding the verbal completeness,
whether the testimony was admissible
as verbal completeness should Omar Sierra testify.
Presumably the motion judge would have said,
"Yes, the testimony is admissible."
-: It was spontaneous utterance argument.
-: As a fallback argument, Your Honor.
Yes, as a fallback argument.
-: [Chief Justice Budd] Though you say
it's a fallback argument,
you don't think it's a strong argument?
-: No, Your Honor.
I mean, it's a possible argument.
The trial judge could have gone either way with that ruling.
I mean, we're talking about a statement
that was made by the defendant 20 minutes
after having murdered someone in front
of a dozen victims
while he was still fleeing from the murder.
And the witness himself, Omar Sierra,
indicated that the defendant, the declarant,
was anxious and nervous on the phone call,
and you can see that at Commonwealth Appendix 237.
That's the BPD report about
the initial interview with Omar Sierra.
So she had a legitimate basis to believe that
even if the Commonwealth didn't call the witness,
she was going to call the witness and would be able to get
it in as an excited utterance.
So it was a rational decision here.
And the question is not, Your Honor,
whether there's a different course of action
that could have possibly achieved a better result.
That's hindsight, that's not the appropriate test.
The appropriate test here is to look
at the decision that was made
and evaluate that decision for whether it was rational.
And that's what this court said just last year in Martin,
reiterating the appropriate test is not hindsight
and looking at other decisions that could have been made,
it's evaluating the decision that was made.
-: I have a little trouble on...
So she had a legitimate belief
that she could get this in
as a spontaneous utterance, right?
You're saying that now.
At this point, you're sort of taking
the defendant's position, right?
So then when she's not allowed to do it,
it's somewhat of a surprise, right?
So does that suggest she wasn't ineffective
for going ahead with this or what?
I'm confused a little bit 'cause you're taking
the defendant's position a little bit
on the admissibility of the evidence.
-: Well what I'm saying, Your Honor, is that--
-: 'Cause then, my follow up point is,
but the judge denies it.
So is the judge...
Is there an error here on that point?
-: No, Your Honor.
And regardless, that question is not
before the court right now.
-: I get it, but we sort of have
to work through it, don't we?
I will defer to my colleagues,
who are the evidence professors,
but if that's an error,
doesn't this whole thing get bollocksed up?
-: No, Your Honor.
No, because the question
is whether she made a rational decision at the time,
not whether there were alternative things she could
have done that might've possibly protected
the defendant better.
Was her decision rational?
And that's what this court said in Martin,
citing back to Kolenovic,
the manifestly unreasonable test
is a search for rationality.
-: But you're saying her decision is rational
because it might very well be a spontaneous utterance
but then the judge denies it,
which creates a whole another set of issues for us, right?
That this critical piece of evidence for her doesn't get in.
Again I don't want to distract you, go ahead.
-: So here the first prong of the test
in the opening statement is, was she prepared?
Here she was fully prepared.
We're talking about a seasoned,
experienced criminal defense attorney
with over 50 first-degree murder trials
at this point in her career.
She had the case for 14 months.
She reviewed all of the discovery,
transcript at 35, she indicated that.
She sought and obtained two continuances,
so she knew she could obtain continuances.
She didn't seek one here.
She was aware of the statement from Omar Sierra.
She was aware that it occurred 20 minutes after the murder.
She was aware of the content.
She spoke with her client about it,
and she sent an investigator to interview Omar Sierra.
She was fully prepared when she set foot
in there to give the opening statement.
-: Okay can I ask about that whole promises made
based upon a misapprehension of evidence?
Justice Lowy points out the answer was
a motion in limine, right?
Do we have any cases that say that?
-: No, Your Honor, the seminal case in this area is Garvin,
which just talks about were they adequately prepared,
or was their preparation incompetent,
and then was their ability
to produce it outside of their control?
So again, I point to the principle theory of admissibility
here was verbal completeness,
and she had every reason to believe
that the Commonwealth was going to call this witness.
-: Can you explain that?
Because the Commonwealth did not talk
about the witness during their opening.
It's clear that she requested
that the witness come to Massachusetts.
Why did you think...
Why do you make the statement that she believed
the Commonwealth was going to call the witness?
-: Several reasons, Your Honor.
First, it was the Commonwealth that filed the motion
to have the witness transported here from New Jersey.
-: [Justice Wendlandt] At her request, wasn't it?
-: She discussed it with the Commonwealth
about the proper mechanism to get him here,
to ensure he would be here.
So the Commonwealth took those steps, filed the motion.
The trial judge ruled on the motion allowing it.
The witness was transferred here to Massachusetts.
She was aware of that in advance
of giving her opening statement.
The Assistant District Attorney told her prior
to impanelment that he intended to call Mr. Sierra.
That's at transcript 23.
So when we're evaluating her decision,
is what did she know at that time?
At that time, she believed the Commonwealth was going
to call Mr. Sierra as a witness.
A reasonable belief based on all the steps
the Commonwealth jumped through to get him there,
and indicating to her they intended to call the witness.
Now Mr. Sierra, after opening statements,
changed the substance of what his testimony would be
during an interview with the Assistant District Attorney.
So the Assistant District Attorney, the Prosecutor,
changed his strategy and decided not
to call Sierra as a witness.
That is outside of the defense attorney's control here.
That's why it was not manifested--
-: Was that communicated to the defense attorney?
-: Yes, Your Honor.
The morning after the decision was made,
which is again two days after impanelment,
that was communicated.
At that point, the defense attorney moved
to her fallback argument and began
a series of concerted efforts to get the statement
in through another mechanism.
Excited utterance, spontaneous utterance,
or she also argued a state of mind,
and the general hearsay exception.
-: Can I ask you about the provocation instruction?
And as Justice Kafker points out
when he asked you about the evidentiary ruling
where you basically are switching sides,
you switched sides decidedly on provocation
because at trial the trial prosecutor
says that it warrants provocation, right?
Does that foreclose you from arguing that now?
-: No, Your Honor.
No, Your Honor, this is not a waived argument,
as the defense now suggests.
What the trial ADA did was submit
basically generic instructions saying,
"Your Honor, if you're going to give this instruction,
"we want you to give the model instruction."
That's basically what happened here.
And yes, the trial ADA is the person
who brought it to the court's attention after the--
-: And I didn't read the charge conference.
Did they talk about what the evidence raised in the...
Did the trial prosecutor say it raises self-defense
and it raises provocation?
-: No, Your Honor, never in the charge conference.
The charge conference began with
the trial judge sua sponte saying,
"I'm giving the self-defense instruction
"on the basis of Juan Tucker's testimony,"
and then they moved on with no discussion
at all ever about any of the other means
of reducing a conviction for murder.
-: Is it the Commonwealth's position that
the self-defense instruction was warranted on the evidence?
-: It could have been Your Honor, but again
that's not a question that's before the court here.
I wouldn't say--
-: Well it could be 'cause it also goes
to whether or not there's provocation.
-: Well it was very weak on the fact
of any retreat or the reasonableness
of the belief that he was facing imminent harm.
But the self-defense instruction was given
on the basis of Juan Tucker's testimony.
Justice Lowy: It matters as it relates
to the statement as well.
Justice Gaziano: Right.
-: I'm sorry Your Honor?
-: It matters as it relates to the statement as well,
whether there was a right to a self-defense instruction.
-: Well the statement itself, Your Honor,
was essentially, the relevant component of it was,
"He came at me, so I had to shoot him."
So regarding self-defense, that's only going
to achieve the subjective component.
It doesn't touch at all on the objective component--
-: No, I understand I'm going to Justice Gaziano's point.
Also it takes away the issue
of the admissibility of the statement
and the prejudice that flows from it,
if there's no right to a self-defense.
-: Well respectfully from our position, Your Honor,
this is a set of facts where there just is no good defense.
The defense attorney did the best they could
with what they had.
This is a set of facts where the defendant--
-: No, no, no, the question that I've asked you,
and Justice Lowy's asked you,
not whether it was a good defense,
but whether there was legally sufficient evidence
to raise either a self-defense or a provocation defense.
-: From the Commonwealth's perspective no, Your Honor.
But the self-defense instruction was given,
so we didn't consider that before the court here today.
The reasonable provocation instruction was
not warranted here under this set of facts
because there simply wasn't enough
to establish a sudden loss
of the ability to control yourself.
I point you to--
-: That's the point, I guess,
I'm obliquely trying to make.
Now let me try to be explicit.
In a case that does raise self-defense,
does it necessarily raise provocation?
Other than the situation of defense of another,
which is a different issue?
-: No, Your Honor.
No, Your Honor.
The two are separate, and there are factual situations
where a self-defense claim,
a self-defense instruction could be warranted
and a reasonable provocation not warranted.
Justice Gaziano: Give me one.
-: Well I would start by giving you
the in opposite, Your Honor.
Where you walk into...
You come home at night and you walk
into your bedroom and you see your spouse
in bed with someone else.
Under that set of facts, a person could well have lost
the ability for cool reflection
or restraint and simply acted.
So reasonable provocation is absolutely warranted in
that set of facts and that doesn't come anywhere near
self-defense, Your Honor.
-: How about the fight example that we have here?
-: Well Your Honor, I'd point you
to several different cases from this court.
Brea, Bianchi, Felix, and then even Vinton.
Where here the defendant engaged
in a verbal argument back and forth,
that he chose to insert himself into,
a verbal argument with the victim.
Mere words, that's not enough,
that doesn't get you reasonable provocation.
He then left the situs of that argument,
Went back to his car,
the record's not perfectly clear,
but about three car lengths away,
obtained a gun and then took a few steps back
towards the situs of the argument.
That's been--
-: Are you taking the facts
in the light most favorable to you?
I mean, throughout a lot of your brief.
I mean, there's a lot of interaction
between the victim and the defendant here.
It's more than just words, isn't there?
The least of you taking the testimony
in the light most favorable to the defendant,
which we have to do with this point.
Right?
-: Yes, Your Honor, you do you have to look at the evidence
in the light most favorable to the defendant,
but there is a line where that becomes unreasonable.
But here if you even want to take--
-: I know you don't think
there's much here but isn't there
a much better provocation defense than a self-defense?
-: No, Your Honor.
And I'd point you to Bianchi and Felix,
where in Bianchi an unarmed victim punched the defendant
in the face in an argument and that didn't warrant
a reasonable provocation instruction.
-: Mr. Salton's going to get up here
and give you a very different set of facts.
-: And under the most advantageous facts that he has,
Rosenfeld was the witness who said,
"The victim got no closer than five feet
"before he stopped and started backing up."
-: There's no suggestion whatsoever
that the victim was armed?
-: [Attorney MacLean] No, no witness.
-: Unlike Meshach Little or Fortini, correct?
-: Correct, Your Honor.
There is no suggestion that
the victim ever had anything in his hands.
In the light most favorable to the defendant,
his hands were closed as fists.
He had torn his jacket off, thrown it to the ground,
sort of banged his chest and approached,
walked towards the victim.
Walked towards
the defendant. -: And what is
the size differential?
I can't remember.
The size of the two, the victim and the defendant?
I know it's hard to hear through these masks.
The size?
-: The victim was a larger man than the defendant.
Justice Kafker: Was he?
Okay. -: Yes.
But You Honor--
-: Not only was he a larger man,
he's just overpowered two other people,
and gritting his teeth
and putting his fist into his hand.
And you know, he's talking about,
the defendant is and the victim basically just keeps
on moving toward the gun, "Go ahead and shoot me."
And he keeps on go...
In the light most favorable to the defendant,
"Go ahead and shoot me."
He's just overpowered two people.
Is it close, or it's clearly not enough?
-: It's not enough, Your Honor.
And I would point you to the witness
whose testimony you're talking about is Rosenfeld,
and I would suggest that you read all of his testimony.
It's at volume five, and it's a short snippet of testimony,
154 to about 158.
And what Rosenfeld says is, he got no closer than five feet
before he stopped, began backing away,
and when he was shot,
he was 10 to 15 feet away from the defendant.
-: I get it, how that the self-defense...
It weakens the self-defense argument dramatically,
but it's just, as Justice Lowy said,
he's just basically beaten up to people, right?
The victim has thrown this woman to the ground, right?
There's another person he's knocked down.
He's much bigger.
That doesn't get you to provocation?
-: No, Your Honor, and here's why.
The first two cases you need
to look at-- -: 'Cause I'm going
to ask Mr. Salton,
are there cases like that?
You want to anticipate that?
-: Vinton is the first, Your Honor.
The person left the scene, went back to his car,
got a knife, returned to the scene.
That leaving the scene
and returning vitiates reasonable provocation.
And then I'd point you also to Brea.
No reasonable provocation after an argument
in a bar escalates to a fight outside of a bar
where he watches the victim punch one of his friends.
-: So tell us again where in the facts
as you've been describing them,
where does that break come in this case
when the defendant enters his car
and retrieves the gun?
-: Yes, Your Honor.
So he observes the scuffle or fight,
as Justice Kafker's referring to,
where the victim pushes two people to the ground.
The defendant then chooses to insert himself
into this scrum as it's breaking up.
At that point, he gets into the argument with the victim.
At the conclusion of that argument,
where during it what he said was,
"What's up tough guys?
"You think you're bulletproof?
"I got something for you in my trunk."
Then he leaves that scene,
travels three car lengths away,
goes into his trunk, and gets a gun.
-: When you say he leaves the scene,
is the victim following him at that point?
So the scene is not left, but following him.
-: So the victim, one of the victim's friends gets him
into a car and then the victim--
-: [Justice Wendlandt] Jumps out.
-: Gets out of the car and-- -: Yep.
-: Pursues the defendant towards his own vehicle.
-: But when you say leave the scene, like you just did,
you mean the defendant walks to his car
and the victim is walking behind him?
-: [Attorney MacLean] Yes, Your Honor.
-: Okay. -: Yes, Your Honor.
-: And is that similar?
When I look at Vincent and Brea, I'm going
to see the same type of following by the victim?
-: [Attorney MacLean] Not exactly, no.
Not exactly, Your Honor. -: Okay, thank you.
-: But I would then point you to what happens next.
As the victim continues to approach the defendant
once he has the gun,
the victim gets no closer than five feet.
From the one witness who says
as close as possible-- -: How tall are you?
-: I don't recall the exact heights, Your Honor,
but there was
a height discrepancy. -: How tall are you?
-: I am 6'2", Your Honor.
-: Okay.
So less than your height the victim is from the defendant.
-: [Attorney MacLean] Yes, Your Honor.
-: Okay.
-: In the light most favorable--
-: Which is what we have to do to decide whether or not
a reasonable provocation instruction is warranted.
-: Yes, Your Honor, but if you cherry pick
that one phrase from that witness' testimony,
that's not necessarily the light most favorable
because the next thing that witness says is
the victim stopped and began retreating,
and at the moment that the defendant raised the gun
and shot the victim, 10 to 15 feet away.
So he had backed away at least five feet.
-: So that's a good point
but we're talking about an issue
where you're not able to engage in reflection,
and if you have had something happen
that constitutes reasonable provocation,
and that's already occurred,
the fact that two seconds after that someone now backs up,
even though they were coming at you, even though you had
a gun out doesn't necessarily immediately dissipate
reasonable provocation, if it existed.
-: Well respectfully, Your Honor,
I completely disagree with that.
Justice Lowy: Think about it, think about it.
-: Reasonable provocation is the question
of it overcoming your ability
to engage in reflection or thought.
Here the victim got five feet away, stopped,
began retreating, and then the defendant raised his gun
and shot him once he was 10
to 15 feet away. -: Okay,
okay.
But you just said it,
"What if he had already reached that point at 10 feet,
"in five feet, he already reached that point."
-: Well, Your Honor, I'd point you to Bianchi and Felix.
No reasonable provocation where a victim lunged at
and punched the defendant in Felix.
In Bianchi, unarmed victim punched the defendant
in the face, and that wasn't enough
for a reasonable provocation instruction.
What's the difference here?
Because he's an African-American man?
That's not a basis on which
to give a reasonable provocation instruction.
-: I understand it's a close call,
and I think you'd agree based on Judge Kirpalani's finding,
that if there's a right
to a reasonable provocation instruction,
that would constitute reason for a new trial.
-: I do not agree with Judge Kirpalani's finding at all,
that this set of facts warrants
a reasonable provocation instruction
A reasonable person-- -: Okay.
No, that's not my question.
I hear you loud and clear.
My question, I agree it's a close call,
and like Justice Gaziano said,
we don't have anything like Little for instance,
or anything close to that with making a move for a hip
or reach knowing we had a firearm before.
Nothing like that exists here.
I realize it's a close call.
However my question is,
considering Judge Kirpalani credited Attorney Scapicchio
that it wasn't strategic
to not request the reasonable provocation,
if he was entitled to the instruction,
then there need to be a new trial.
-: Yes, Your Honor.
It's purely a question of law here
because the testimony was credited
that it was an error and not a strategic decision.
With this set of facts, it doesn't warrant it.
To give that reasonable provocation instruction under
this set of facts means anytime somebody's five feet away
from you and yelling
that's constitutes reasonable provocation?
Or an objectively reasonable person can
no longer control themselves
when someone is five feet away from them,
and then backing away?
This set of facts did not warrant reasonable provocation.
-: Your position is that to give reasonable provocation
in this case would turn our case law
about words and gestures not being enough
on its head, correct?
-: [Attorney MacLean] Yes, Your Honor, absolutely.
-: But can I ask a follow-up to that?
If we also have the beating up of the two other people,
does that allow a distinction there?
Because you've got, it's not just verbal,
but we actually have physical contact
with two other people in the same melee.
Does that distinguish this case or not?
-: Here?
Not at all, Your Honor,
because of the break in time in the event.
He sees the two people pushed to the ground
and then he chooses to voluntarily insert himself
into the situation.
-: So it's just...
It's the break in time that's critical.
Otherwise--
Justice Gaziano: Provocation has to be personal
as opposed to defense of another, correct?
-: Yes, Your Honor.
The situation you're describing is now we're
in the realm of talking about defense of another.
Justice Kafker: Okay.
But yeah, all right.
-: I have just a fact question.
We keep referring to the victim pushing two people down.
Was it three?
There was the woman Miller,
there was the truck driver, right?
And then wasn't there his friend as well?
-: Well in the initial scrum before
the defendant chose
to insert himself. -: All told
before the shooting.
-: Too.
But my understanding is when he pushed his own friend
he pushed him out of the way, not to the ground.
So that's my understanding of the facts, Your Honor.
-: Okay.
So but there were three pushes all told before the shooting.
-: [Attorney MacLean] Yes, Your Honor.
-: Okay thank you.
-: [Chief Justice Budd] Okay thank you.
-: [Attorney MacLean] Thank you.
-: Attorney Salton.
-: Madam Chief Justice and may it please the court,
since I rarely get to sit on this side of the podium,
I'd like to start if I may
by briefly addressing the standard of review.
In order to reverse
or justify the reversal of Judge Kirpalani's decision
in this case granting a new trial,
the Commonwealth has to show that
that decision was an abuse of discretion.
Meaning that it was outside
the range of reasonable alternatives.
And as this court said last year in Diaz Perez,
it will only reverse if the granting
of the new trial motion was manifestly unjust.
Furthermore the credibility determinations
that the judge made based on the evidentiary hearing
are of course final and unreviewable.
And a second issue with respect to standard review
is that since this is a first-degree murder case
still under 33E review,
this court reviews claims of ineffective assistance
not under the traditional safarian standard,
but rather under the right standard.
That is whether trial counsel committed
an error or errors.
And if so, did those errors
likely influence the jury's conclusion?
-: You'd agree, Mr. Salton that
it really comes down to taking
the opening statement issue separately.
The provocation issue comes down to whether or not
it was justified in a light most favorable
to your client by the evidence.
If it was, then...
The instructions should have been given new trial.
If it shouldn't have been given, there was no harm.
-: Well I don't think it's that simple,
Your Honor, respectfully.
Number one, I think there is a waiver or a forfeiture here,
and this is very similar to cases I cited
in my brief where the Commonwealth doesn't just
not eject a trial,
but affirmatively takes a position at trial
and then tries to take the opposite position on appeal.
I mean, the court doesn't frankly
let defendants get away with that frequently
and they shouldn't let the Commonwealth get away with it.
The Commonwealth didn't just say, as my brother suggested,
"Well if you're going to give
"a heat of passion provocation instruction,
"please follow the model instruction."
That's not what they said.
I quote their request for instructions.
They said, "Based on the evidence
"in this case it is necessary for the jury
"to consider the mitigating circumstance
"of a heat of passion upon reasonable provocation."
They said it was necessary.
They submitted that request to the judge.
And now they're saying,
"Oh it never should have been such.
"It wasn't justified."
They can't engage in that kind of gamesmanship.
This is a first-degree murder case.
They forfeited that claim.
So I think that's a serious argument,
Your Honor, that the court
should consider before it even addresses whether
the evidence was sufficient.
A second point, Your Honor,
is the trial judge was clearly prepared
to give this instruction.
Both sides had asked for it
at sidebar after the initial instructions,
the prosecutor brought it up again.
The judge confirmed that from the defense counsel,
you don't want that instruction anymore?
In effect.
I mean, he was going to give that instruction.
So her express waiver of that instruction,
change the instruction.
I mean, the instruction would have been given.
It would have been the law of the case
and I think that is something the court should consider.
And then finally, if the court does reach the question
about whether he was entitled to that instruction,
Judge Kirpalani got it exactly right.
I mean, the Commonwealth,
even today, they don't want to talk about.
-: Okay can you get to the $64,000 question though
which is, is there sufficient evidence here
to justify a provocation instruction?
And you know, your brother has distinguished the cases.
So just help me out.
And why you get it?
-: Oh that's exactly what I'm about to address Your Honor.
And even today, the Commonwealth doesn't...
They want to ignore the testimony.
They say they're looking at the evidence
in a light most favorable to the defendant.
They are ignoring the witness who was
the most favorable to the defendant.
Juan Tucker.
The final witness, civilian witness
on the subject of what...
Eye witness.
He said that not only did he say that
the decedent was pursuing the defendant quickly,
not only did he say that the decedent said
to the defendant twice, "You better run,"
but finally Tucker said that the decedent continued
to move towards Mr. Ng, the defendant,
even after Ng displayed a gun.
-: The victim's unarmed.
Give me your best case
'cause this is not Little.
This is not Fortini.
What's your best case, Mr. Salton?
-: Your honor, I've read a lot of these cases.
I don't think there's a case.
I mean, every one of them
has different factual narrative scenarios.
-: But (chuckles) our case order law
is words and gestures,
even punches and threats aren't enough.
So convince me otherwise. -: That's right.
The court has to look at obviously all the circumstances.
Here the decedent,
not only had he thrown Jane Miller to the ground,
not only did he throw Greg Wheeler
to the ground like a ragdoll,
not only in the words of his own friend Lee,
was he throwing bodies.
Not only did he punch somebody else.
Not only did he jump out of the car, rip off his jacket,
throw it to the ground, rip open his shirt,
and say, "You gotta run."
-: The Commonwealth versus what Mr. Salton?
-: There's no case like it.
I'm not going to say that there's a case just like this.
Justice Gaziano: What's the closest case?
-: I think that those are...
Every factual scenario is different.
The issue is looking at all of the evidence
in the light most favorable. -: I know.
I get the legal standard and you understand the...
If you could stop talk while I'll talk.
I get the legal standard.
What you're facing is our case law that says words
and gestures are not enough.
And usually when we do carve exception to that
it's someone's armed.
Someone's given informative.
I'm going to reach for a gun.
Usually there's something else.
I'm asking you for the something else, Mr. Salton.
-: Well Your Honor, I think the cases clearly say
that it's a combination of things.
You know?
It was Rose where
you know, the decedent, you know,
bit the defendant's penis.
There are all kinds of factual scenarios.
Here it is a combination of things.
It is not just words in general.
-: But a combination...
I cut you off.
You got to tell me,
but the combination is the violence
by the victim that proceeded
and him coming towards the victim
even though the victim is armed.
-: The combination of him assaulting several people
and acting in a violent, out of control, combative,
aggressive fashion is coming toward
the decedent rapidly saying, "You better run,"
and being a larger person.
All of those things--
-: When he says that Mr. Salton,
is the defendant brandishing
the handgun when he threatens him?
-: I'm sorry, Your Honor.
I missed that.
-: Yeah.
When he makes that statement, "You better run,"
is the defendant armed at that time?
-: No, Your Honor.
And the defendant is not armed
and basically this guy who people
said his eyes were...
Wheeler said his eyes were crazy.
He appeared to be on something other than alcohol.
This large, aggressive, violent person
is coming toward Mr. Ng saying,
"You better run," and pursuing him
as Ng retreats toward his car.
So, you know...
So the question is looking at that
in a light most favorable to the defendant.
-: That's what I'm doing, counselor.
Let me ask you this question over here.
What's bothering me about the totality
of these circumstances that you're pointing out to is,
yeah, there was no testimony that he piled on whomever
he knocked down and continued to beat on them,
do something other than knock them down.
So even if I give you all of that,
does that mean you get to go to your car,
and pull out a gun, and shoot him?
-: It doesn't give you self-defense Your Honor.
-: I'm at the reasonable provocation, okay?
I'm at provocation.
-: Okay.
Well what this court has said,
going back a lot of years is, you know,
what reasonable provocation is about
in the heat of passion
is to account for the frailties of human beings
in circumstances that happen, you know,
emotionally and things.
And there are sudden things that happen
and people respond in a way
that it produces in them a feeling
of passion, anger, fear, fright, or nervous excitement
that eclipses their capacity
for reflection and restraint.
That's a pretty mushy standard.
It is but it's a mushy standard
that's about human frailty.
This is a situation that happened fast.
Mr. Ng went in as a good Samaritan
after seeing a woman knocked
to the ground and things escalated.
He was being threatened.
He was being pursued and he reacted in an inappropriate way
by getting a gun and using it.
There's no question.
I'm not defending what he did,
but that is what heat of passion manslaughter is about.
And he surly...
And it's a jury question.
I'm not the jury
and Your Honors aren't the jury,
but he was entitled to that instruction
and the Commonwealth agreed he was entitled
to that instruction, and the jury should
have been given that opportunity.
He was deprived of that substantial defense.
He didn't get the chance for the jury to decide
whether they agreed or not.
That's all he needs.
That's all he's entitled to is a fair trial.
He's not entitled to a judgment of acquittal on murder.
He's entitled to a fair trial.
Justice Kafker: Can I ask Mr.--
-: That defense was should have been before the jury.
-: I mean, these melees are so common in the law.
Don't you have a case besides Rose for us
that we could look at that we can say,
"This is the closest case to your situation"?
I mean, 'cause it just seems strange that, you know,
we have so many of these murders arising out of melees.
You should be able to find one
that creates this provocation instruction for us.
Really, you can't find one?
Justice Cypher: Ms. Salton, may I answer
that question for Justice Kafker?
Attorney Salton: Go ahead.
-: He said that he is not guilt.
(woman chuckles)
Justice Kafker: Excuse me. -: I'm sorry Your Honor.
-: They'd be not guilty.
So we wouldn't see it.
-: I mean, if Your Honor will give you leave to do it,
I will go through all of the...
You know, there's 50 of them,
the cases on this subject,
and try to find the one that's closest to this.
But frankly, I don't think that's...
There is no bright line.
If Your Honor saying, "Can't we just find a bright line
"so we don't have to fight about this in all these cases?"
Well there is no bright line.
-: But Justice Casiano's identified, you know,
he's been able to separate each one of these.
Particularly the fact that beating up somebody else
in combination with this is not enough.
So I'm just trying to find a case
that's really helpful to use.
Attorney Salton: Beating up somebody else is not--
-: No, I get it.
But are there cases that say
when you're beating up someone right next
to you and screaming at you
that's enough for provocation?
I mean, is there anything like that we can look at?
-: Look I apologize.
I did not come here today ready to kind of try
to put this case in a particular slot.
I'm happy to, if I will,
if the court will let me do it,
I will be happy within 24 hours
to give the court something
to try to find the case that's most like this one,
but I don't think that's the test.
I think it's a much more
of kind of like a Gestalt test.
Are these the kinds of circumstances?
-: Yeah, I'm fairly familiar with the case.
So I don't think you're going to find, like you said,
that there's a legal standard
and there are factual scenarios and this is unique.
Let me ask you though.
I'm curious, Mr. Salton,
is it your view that
the self-defense instruction should not have been given?
-: No, Your Honor.
I think that given Tucker's testimony
that the decedent was still coming
at Ng after he saw a gun, you know?
I think looking at the evidence,
in the light favorable
to the most favorable to the defendant,
you know, it was...
I think a judge could have gone either way,
but I'm not saying it shouldn't--
-: And I'm trying to do the Venn diagram
about self-defense and provocation.
Attorney Salton: Yeah.
-: Are you gonna have...
Do they intersect in broad swipes?
So if you had a right of self-defense
and you had this fear that led you to use deadly force,
does that in this case necessitate
a provocation 'cause the frailties are the same?
-: Well Your Honor,
I think they're different
and I-- -: I know they're different.
But like here do they intersect?
-: I recall reading it I think
a decision by a Justice Cypher
when she was on the appeals court,
it's I. Covello or something where basically she found,
or she wrote for the court,
there was enough evidence for self-defense
but there wasn't for provocation because self-defense sort
of requires the defendant
to make a calculation, you know?
Basically do I have to act,
do I have to use deadly force to defend myself?
Justice Kafker: Or do I have an opportunity to retreat?
-: Well that's part of it too.
Of course, Your Honor.
But it's much more of a calculation.
Heat of passion there's no calculation.
There's just blah, you know?
My ability to be rational
and use reflection-- -: How do you spell that,
counselor?
(all chuckle)
-: I actually have a question about that point because
the Commonwealth is saying that when
the pursuit turns into retreat,
that that means that you couldn't
have reasonable provocation and I think your point is
well if you've already hit that point,
the two seconds of retreat doesn't dissipate it.
-: Well that's totally correct, Your Honor.
Unless you've had time to cool off
the provocation already exists.
Moreover it is not clear that he retreated.
Tucker said, "He was still coming forward."
Medina said, "I'm not sure if he was coming forward or not."
Although Medina had testified before the grand jury,
he was still coming forward.
-: And Mr. MacLean says
that Tucker also says he goes backwards, right?
He retreats.
-: No Tucker said he continued to go forward
until he was shot.
He did not say he ever went backwards.
Justice Gaziano: Well Rosenfeld said that.
-: Yeah, well different people said different things.
There were a dozen of witnesses
and they had different things to say,
but we're looking at the evidence
in the light most favorable to the defendant.
May I please address briefly
the broken promise issue, Your Honor?
Thank you.
So the broken promise issue
I think is a very serious issue
and there were lots of cases like this one.
Respectfully trial counsel promised the jury in her opening
that not only promised that the jury would hear
this exculpatory evidence from Sierra,
but made that promise the linchpin of her opening.
And as this case, I think the language of the case,
I think this court in Martin,
which my brother cited repeatedly,
was that what she made was
what the court there called an informed guess.
And this court said, "That's not good enough."
The court said, "No competent lawyer
"would have taken that risk under those circumstances."
-: Counsel, did she file a motion in limine
for a determination on the spontaneous utterance issue?
-: No, she didn't, Your honor.
That's one of the things she could have done.
-: Okay.
Well so in this calculus then,
this didn't have to be
a guess, right?. -: Correct.
Correct.
-: But if you choose not to go ahead and file the motion
in limine and proceed at risk,
that why is that manifestly unreasonable
when there was a way to define
what the trial judge would have done?
-: Because it's manifesting unreasonable
to go forward like that
when there are different things you can do
to avoid or mitigate the risk.
One, emotion limine.
Two, defer your opening.
Three, make an opening without making this promise
the linchpin of your opening.
All of these have been suggested by this court
and by the first circuit as alternatives.
You don't just kind of throw
it out there and hope for the best.
That's what she did. -: Counsel.
Counsel, once that happened,
once she did that and once the witness didn't produce
or wasn't produced, and the witness wasn't called,
and she didn't get it in otherwise, was there any...
Did she ever address that with the jury in the closing
or was there an instruction by the judge on this issue?
-: I think that's a great question, Your Honor.
There's a case, a federal case I cite
I think Williams out of California
where the court sort of addressed that question.
Okay, what do you do now?
You know, you made this promise
you can't keep the promise
and yeah, there are several things you can do.
You can ask the judge to give an instruction
that as a result of evidence, you know, you recall.
It's basically just say to the jury,
"It's not her fault based
"on evidentiary rulings made during in the trial,
"he didn't testify," or, "You asked for leave
"to argue to tell that to the jury.
"You know, I promise you this because
"of a ruling of evidence that was made by the court.
"I wasn't able to present that testimony.
"You know, I'm sorry."
Something without not just ignoring it.
I mean, these cases say it's worse
if you just don't say anything.
She made it...
Not only did she not...
She made it worse because she got up
in her closing and said,
"You didn't hear from Mr. Sierra,
"do you wonder what he was going to say?"
Now the judge sustained the objection
to that line of argument.
But if the jury had possibly forgotten the promise,
which I submit they hadn't,
she reminded them that she had made this promise.
She didn't explain why she did.
-: I don't know how it fits into the calculus here.
Probably not at all, but it would make life a lot easier
for trial judges and for fairer trials
if both sides, when they've got bombs like this,
that they present it to the judge by way
of a motion in limine before the opening.
-: Of course, when there's something this critical...
I mean, as a trial lawyer, I mean,
I like to spring surprises
but this was no surprise.
This was evidence everybody knew about
and she was making this a centerpiece of her defense.
Of course, as Justice Georges suggested she should
have filed a motion to limine, you know?
Am I going to be able to get this in
before she put her whole,
put it out there to the jury?
That this was gonna be
the linchpin of her whole claim of self-defense
and it blew up in her face,
and the defendant suffered as a result of that.
That's manifestly unreasonable.
Taking that risk under those circumstances
and the result the prejudice is obvious.
And I think that in some, Your Honors,
this is actually this case is a great illustration
of how 33E can work to rectify injustice.
This court sua sponte after oral argument remanded
for a determination an evidentiary hearing
on these ineffective assistance issues.
There was a evidentiary hearing.
There are detailed findings 31 pages long
by the trial judge, the motion judge,
and as a result a miscarriage of justice
was rectified by the motion judge
and I ask this court to affirm his decision.
It was not an abuse of discretion.
It was not manifestly unreasonable it was the correct
and appropriate result. -: Okay, thank you.
Justice Cypher: Thank you. -: Thank you both.