-: SJC-10476 Commonwealth versus Yat Fung Ng.
-: Okay, Attorney Sultan, good morning.
-: Good morning, Madame Chief Justice,
and may it please the court.
This is the third time this court
has heard oral argument in this case,
and I welcome the opportunity to seek to persuade the court
to remedy Yat Ng's unjust conviction
for first degree murder.
Now, in many first degree murder cases,
defendants make arguments for relief under 33E
in a rather perfunctory fashion,
but based on the totality of the record in this case,
including the circumstances of the offense,
the defendant's personal characteristics,
and the poor quality of legal representation
he received at trial,
this case, I submit, makes out a compelling case
for relief under that statute,
and I would like to start there, if I may.
Justice Gaziano: Can I ask you a question, Mr. Sultan,
on the third 33E part of it?
Because I understand your argument,
and it's well taken given what we've said about the defense,
of self-defense in the trial lawyer's decision
to pursue that path.
That goes in the mix.
When we look at this case,
and we have some of the other cases
we granted 33E relief on
where we talk about hot heads and fights and the like,
have we gone so far when someone retrieves a weapon?
That's my only question I have for you.
-: Your Honor, I guess what I would say about that is,
look, obviously this court has said many times
every case is different,
and it has to go to it's not just the circumstances
of the offense.
One of the things about 33E that this court has said,
and why this is such a special kind of consideration
given a no other kind of case
is because the punishment is so draconian,
is so final that the court looks at everything,
looks at the totality of the record,
including things that the jury may not even have seen
in order to determine whether a reduction
is more constant with justice.
So to answer your question, no.
I mean, looking at the most-
I've only looked at say the most recent cases
where this court has reduced verdicts,
and it's been done with increasing frequency,
frankly, by this court.
So in the last 10 years, you've got cases like Concepcion,
you've got Vargas, you've got Dowds, you've got Neimic.
Justice Gaziano: Yeah, a lot of them,
the hothead fight categories.
Attorney Sultan: None of them involved a fight
where somebody retrieved a weapon, no.
-: No, but they're all in that hothead fight type category.
Attorney Sultan: No, they're all different.
-: Right.
Attorney Sultan: I mean, they're all different.
So I mean, I can't say this case
is just like some other case.
-: Dowds had a mental health issue.
Attorney Sultan: And a number of these cases did.
I'm not trying to claim that this case
is like some other case.
This case is sui generis, I submit.
So, I mean, I understand for purpose-
I mean this court has obviously held
that the circumstances here did not justify
of voluntary manslaughter
upon reasonable provocation instruction.
I get that.
I'm not here to re-argue that,
but what I'm saying is 33E allows this court
to look at everything,
and that's what I'm gonna ask the court to do.
-: But I guess the larger point you're making,
not to rephrase what you're trying to argue,
but is that we should, in our calculus,
put in the ineffective assistance,
even if we don't find it was ineffective assistance.
Attorney Sultan: That's part of it, Your Honor,
but let me start with the circumstances.
And I guess before I do that,
I mean, here are some of the factors
that this court outlined in Colleran,
a case where it reduced a verdict
back I think in 2008.
So it said these were some of the questions
the court should ask under 33E:
whether the homicide occurred
in the course of a senseless brawl,
whether a minor controversy exploded
into the killing of the human being,
whether the entire sequence reflects spontaneity
rather than premeditation,
whether the defendant and the victim were strangers,
whether alcohol or drugs were involved.
I mean, and then it goes on
to about the personal characteristics.
So those are some of the questions
that the court should ask in deciding,
look, should this guy really spend
the rest of his life in prison?
Let's look at this broadly.
Justice Cypher: Yeah.
-: I mean that is.
Justice Cypher: And I hear you on the broadly,
and I'd like you to, before you run out,
we have plenty of time yet at the moment,
before you run out of time to talk about
the defendant's personal characteristics
that we would factor in,
but can you also, you mentioned some of these factors.
Can you address the lack of premeditation
or the time element?
Because the issue I see with the argument in the 33
in that part of it
is that there is a moment where it's,
first of all, it's not his fight,
second, he goes to his car,
retrieves a weapon and goes back,
and that actually takes it out
of a lot of other kinds of cases
because there are a few moments
where obviously he can just get in the car and drive away
or choose not to pick up the gun.
-: At this court, I think Your Honor put it very well
in the prior decision.
Because he reached for a gun, not for his keys,
there's no self-defense.
I understand.
So in terms of timing,
and it's different than,
for example, a case that the court cited, Coleman.
He did not retrieve a gun and come back.
That's not what happened.
What happened was,
and we just go through the circumstances,
so Mr. Ng, a young man, 24,
recently honorably discharged from the military,
going to college,
working in the security guard at Harvard,
witnesses this altercation outside this club in Boston.
He witnesses it.
He's not part of it.
He witnesses it,
and he sees a large, violent man
assaulting several individuals,
including a woman who he pushes to the ground.
Mr. Ng intercedes.
He intercedes,
and then the violent man threatens him
and pursues him as Ng goes back to his car.
Ng reaches his car.
He retrieves a gun.
He's still at his car.
He doesn't come back somewhere; he's at his car.
These individuals are 10 to 20 feet from each other
depending on you got bunch of different witnesses.
Two of them said that the decedent continued to approach Ng.
One of them that the Commonwealth wants to talk about a lot
said that Ng was coming back towards the decedent.
A number of others said they were both stationary,
and Ng fires-
Then Ng is goaded by this individual at that point.
You know, come on, shoot me.
What are you gonna do?
And then Ng fires one shot and kills him.
This all happened very quickly.
I can't say it happened within one minute or two minutes,
but it happened very quickly.
There was no time lag.
There was no going to his house a mile away
and getting a gun and coming back to a scene.
This was a set of circumstances that in the real world
is reflective of much more suggestive of an emotional,
angry, spontaneous response
than it is to some kind of premeditated plan.
There was no evidence that Mr. Ng
went to that club that night looking for trouble,
let alone expecting to shoot somebody.
I mean, to say that he was in a wrong place
at the wrong time, you know, sounds glib,
and it's not to excuse his conduct at all,
his criminal conduct at all,
but, in fact, that's kind of what happened here.
I mean, looking at it from a real world perspective,
there's no reason to think anything else.
These people didn't know each other.
They had no prior interaction.
I mean, this case does not resonate
as a first degree murder case.
That's really why I'm making this argument.
And so, yes, I ask the court to look at the circumstances
in that sense, in the Colleran, sense,
looking at these kinds of questions, not in the legal sense.
Yes, there was more than sufficient evidence
to convict of first degree murder.
Yes, I understand the court has said he wasn't entitled.
The court said, in fact, as a matter of law,
the defendant was not entitled to an instruction
on any absolute defense or mitigating circumstance
of the charge or murder in the first degree
based on these facts.
I understand all of that,
but that's what 33E is for.
And that's why I ask you-
Justice Gaziano: So the point on premeditation, I guess,
is that all of the hothead cases, so to speak,
Colleran cases have sufficient evidence of premeditation
or else we would've said there's not enough evidence
for first degree course.
Attorney Sultan: Of course.
-: So that's a given.
Attorney Sultan: Yes, it is a given.
-: Now we have to look-
Attorney Sultan: Yes, Your Honor, it is a given,
but sometimes, you know, there are cases
where defendants argue there was insufficient evidence,
but even if there was, 33E.
I'm not arguing that.
There's no sufficiency of the evidence argument here.
You know, he committed a crime.
There's no question about that.
This was an unlawful shooting, okay,
and based on this court's prior decision,
this was a murder, okay?
There's no other way to read the court's prior decision,
but first degree murder or second degree murder,
there's a big difference.
One, this man is gonna die in prison,
the other, at least he has an opportunity
to face the parole board and seek parole.
That's really what I'm here about today,
and that's why I asked the court to-
Justice Kafker: It seems-
-: That's why I'm starting with this particular issue.
Justice Kafker: Our standard's pretty open ended,
but do you have refinements for it?
Because you're sort of asking us to pick and choose
in these cases,
and to be honest,
our standards aren't that clear
about when we're gonna lower the verdict.
How would you improve those standards
and apply it to your client?
-: Your Honor, I don't think there's any-
I think that the standard is exactly what it should be,
which is that the court, for any reason,
that's the court has said,
any reason that's consonant
can reduce based on the entirety of the record,
including what the jury saw and what the jury didn't see,
the court can make a determination.
It's an equitable determination,
so I don't think there should be objective criteria
any more precise than what the court has laid out,
such as some of these questions of Colleran.
You know, generally look at the circumstances
of the offense,
look at the defendant's personal characteristics,
and then look at the trial,
and those are kind of broadly the things
that I'm asking the court to look at.
I don't think you can pigeonhole it anymore.
I don't think you can say-
I don't think it's a place for making
nice legal distinctions.
This really isn't,
I mean, everything this court does is a matter of law,
but this really isn't a legal determination.
It's an equitable determination.
That's really what it is,
and it's not about trying to create some precedent.
Justice Kafker: Could I shift you to your,
unless my colleagues have more questions on this-
-: [Justice Wendlant] Well, I do have one
other question about this.
You've mentioned twice now that we should include
in our equitable determination what the jury did not see.
Attorney Sultan: The court has said that.
-: What are you referring to in this case?
-: Well, I'm referring to Mr. Ng didn't testify,
so number one, his personal characteristics,
which were presented,
which they're on the record
because they were part of his Rule 25 motion post trial,
letters from his family,
information about his personal history.
There was information in the record in the bail motion
after his second motion for new trial was granted.
So in this case,
it includes the fact that he's a person of high character,
that he was honorably discharged from the military,
that he was a hard worker,
that he had no prior record of criminal convictions,
no history of violence.
Those are the kinds of things
the court can and should consider
in deciding whether or not
a first degree murder conviction should stand.
It's wonderful that the legislature
has given this court that authority,
and I'm very happy to see the court
utilizing it much more over the last decade
than it did in say the prior decade
because this is a court of last resort,
and this is kind of the end of the road
for these defendants.
If this court does not grant Mr. Ng relief,
he'll die in prison.
So yes, look at his personal characteristics.
Also in this case is an affidavit that Mr. Ng submitted
in support of his first motion for new trial,
which is before the court,
which actually sets forth his state of mind
at the time of the killing,
that he was drunk, that he was angry,
that he was upset, that he was scared.
I don't have it verbatim,
but it's in the record,
so the court can consider that as well.
That certainly was nothing the jury,
that they didn't hear because he didn't testify.
So that's part of looking at the record as a whole,
his personal characteristics,
and the third thing is the trial,
and I understand whether or not this court holds
that he received constitutionally ineffective
assistance of counsel,
it is his lawyer made a dramatic promise
in her opening statement that she didn't keep
that this court previously said-
Justice Kafker: We will go back to that one
'cause you've raised a new issue that interests me
that I'd like you to address, which is the critical state.
So he's excluded from every sidebar
except for during jury selection.
Do you want to address that and provide some-
Attorney Sultan: I very much do want to address that,
Your Honor.
Justice Kafker: Okay.
-: I think it's a very important issue.
So he's excluded from every substantive sidebar
during the trial over objection,
and you know, this court has-
-: Can I ask, Mr. Rankin,
probably no one has argued more cases than you have-
Attorney Sultan: I'm sorry, Your Honor?
-: Probably no one has argued more cases than you have.
How many times were you excluded from all sidebars?
-: Well, how many times have my clients been excluded?
Justice Kafker: Client, yeah, excuse me.
-: I'm never excluded, Your Honor.
They always let me come.
I'm sure other people have tried more murder cases
than I have, but in general, in recent years,
most trial judges have allowed my client to be at sidebar,
but it's not ubiquitous,
and it's remains something that,
I mean, I was shocked going back
reading all of the case law on this subject
that this court really hasn't ever pinned down-
Justice Gaziano: It's similar to the view?
-: Well, we can go back to Snyder, which is 1934,
where the Supreme Court said five to four upheld this court
in saying the defendants now have to be on a view,
so I submit that a view is sui generis.
Let's look at more modern law, okay.
Over the last couple of years,
this court has very eloquently and repeatedly said
in cases like Colon and Francis
has emphasized the importance of the defendant
being physically present to see and hear-
Justice Kafker: Francis-
-: And understand what's going on.
-: Francis, which I'm familiar with, you know,
he's excluded from the selection of counsel,
which it's very different, right?
He clearly should have been present
when they pick a lawyer for him.
-: None of these cases involve sidebars, okay,
but I mean, frankly, look,
what is special about a sidebar?
The sidebar is part of the trial,
and it's a part of the trial that's very important,
as it was in this case,
were substantive issues about
whether or not a witness is gonna be permitted to testify
or the scope of that testimony is addressed.
I mean, it's all well and good to say
the defendant has a right to be present
when the witness testifies,
but the defendant does not have a right to be present
when the judge decides
whether the witness will be allowed to testify.
Justice Gaziano: It's not one size fits all
because, of course, the sidebar,
when the judge calls up and say, hey,
everybody go take a lunch-
Attorney Sultan: And I say that in my brief, You Honor.
-: It's substantive ones.
-: And this court said way back in Angiulo 40 years ago,
that if it's purely administrative matters
the defendant doesn't have to be there, no question,
but anything substantive,
here, they're discussing whether or not
Sierra is gonna be allowed to testify
They're discussing the scope of the testimony
about Ng's military records.
The judge is making comments
about the weakness of his evidence,
about his subjective state of mind,
which he says in an affidavit,
I would've testified if I had heard the judge say that.
The idea that, well, we're gonna draw this nice distinction
and say the defendant has to be present
at these proceedings that are part of trial
but not this one doesn't make any sense.
-: And you certainly, look, there are no cases that I saw
in the brief where anybody's actually
really discussed sidebar
as far as either a Sixth Amendment or a due process issue,
right?
-: I've seen no case from this court
talking about specifically sidebars-
-: Or elsewhere.
-: Well, there were some federal cases
that federal government cited, and I tried to address those.
Most of those, there was no objection made,
but look, this court has its own prerogatives
under Article 12.
The court has said it's very important
that the defendant be present so he can participate,
so he can see, hear, and understand what's going on.
Judge Cypher wrote in an appeals court case in Campbell
that the defendant,
as a participant in the events being discussed,
has a unique perspective.
Well, he does have a unique perspective,
but more than that, he has a right to be there.
His life is on the line,
and to say, well, we're just talking about legal stuff,
so he doesn't need to be there, no.
This is a substantive, critical part of the trial,
and he has a right to be there,
and this court should proclaim
that he has a right to be there.
Justice Kafker: Are there any federal-
I mean, they cite federal cases going their way.
Are there any cases,
federal cases on sidebars going your way?
-: I haven't researched federal law to that extent.
I would suspect there are not.
I would suspect that the federal courts
have decided to parse this right,
as in many other constitutional areas,
more narrowly than this court can and should.
Justice Kafker: Do you think it's without limitation
where a judge could make a finding
that perhaps the defendant's being unruly or whatever?
Attorney Sultan: Absolutely.
As I say in the brief,
of course the defendant can forfeit his right to be present,
no question, based on misbehavior,
and he can waive it by not asking to be there.
I'm not saying he should be there in every case.
Justice Cypher: And all routine security concerns
would be wrapped into the decision too.
Attorney Sultan: Of course, Your Honor.
-: Right.
Attorney Sultan: But as with the court closure,
if the defendant's gonna be excluded,
then the judge needs to put on the record the reasons why.
Justice Gaziano: In this case is different
because there was a request to be present denied.
Attorney Sultan: There was a specific request,
and the court let him be.
So he's allowed to be present at sidebar
when the jurors are being questioned,
but no, during the trial, we're not gonna let him.
What is the-
I mean, there is no logical reason for that.
Justice Gaziano: Well, there is
because the immediate input of the defendant
during jury selection is different than-
Right, so if you're obviously picking juries,
and you say, what about number 12, et cetera.
Also, the other reason is you'd have to go
from the sidebar to the table,
ask the defendant what he/she believes,
and come back, right?
Attorney Sultan: Yes, Your Honor, you're right.
I mean, jury selection-
-: That's unique about jury selection.
Attorney Sultan: Yes, jury selection is different,
but that's not a basis for a distinction.
I mean, this is a fundamental right
to be present at your trial,
at your trial, not just part of your trial.
Justice Kafker: Well, if you're right, and it was error,
is it prejudicial error?
Is it structural error?
What is the stand-
Attorney Sultan: Well, that's a great question,
Your Honor.
I submit number one, it is structural error,
but this court has said in cases like Owens and Sleeper
that it's not automatic reversal,
that you do have to look at prejudice.
Now, in this case,
this kind of sui generis
because he filed an affidavit saying
I would've testified, had I been there.
Now, the motion judge was not required
to credit that affidavit,
but the motion judge denied his request
to present evidence in order to make a more robust showing
of prejudice on this,
and he can't be faulted for the fact
that the motion judge refused his request to hear evidence.
So I would submit that if prejudice has to be found,
and if his affidavit is insufficient,
then I guess the court would have to remand
for an evidentiary hearing
on that narrow issue of prejudice,
but I think this court should say it's an error.
Justice Cypher: One fast question,
and that is that you say he refused
the request for evidence.
Does the record contain a proffer of the evidence,
or is there anywhere we can look for that evidence?
-: Well, no, Your Honor.
There was an email that was sent
from the court clerk to counsel
saying the motion requested an evidentiary hearing
on two issues, courtroom closure and this sidebar exclusion.
There was an email, it's in the record, I think,
maybe at page 60 of the appendix,
saying the court will hear evidence
on the courtroom closure
but only argument on all the other issues.
So no, there was no-
It's a fair question, Your Honor.
There was no offer of proof made below,
but I think that the denial of an opportunity for a hearing,
I don't think this court is generally required
an offer of proof in deciding whether or not
a motion judge abused his or her discretion
in denying an evidentiary hearing on a motion for new trial.
I thank the court.
Justice Cypher: Thank you.
-: Thank you very much.
Okay, Attorney MacLean,
which argument do you wanna start with?
He's made quite a few good arguments.
-: Good morning, Your Honor, may it please the court,
Ian MacLean on behalf of the Commonwealth.
Unless you'd like me to start somewhere,
I'll start with a 33E argument.
Justice Gaziano, I would agree with you
that this case is different from the simple hothead cases.
And I know-
-: Well, I think if you look at Colleran,
it doesn't say you have to satisfy all these five things.
It says these are the factors.
So if you satisfy three of them, right,
I mean, and that's the nature of 33E.
It's frankly a judgment call by us.
-: Certainly, certainly, Your Honor,
but I think you went directly
to the most important factor here.
That was the fifth factor listed in Colleran,
whether the defendant carried a weapon to the scene
or left and returned with the weapon.
That distinguishes this from this sort of hothead cases
where there's an argument,
and somebody draws a knife from their pocket
and stabs someone, and they die.
Totally different situation here.
And there are a few facts that were left out
in the discussion here that lead up to him leaving
and getting weapon and returning to the scene.
The first is he interjected himself into a scuffle
that was basically done that he was not a part of.
He was told it was over, and he said, "I have business."
Then he interjected himself,
initiated an argument with the defendant during which,
what's up, tough guys?
You think you're bulletproof?
I got something for you in my trunk.
And then he went to his car and got a gun
and reengaged the defendant,
who this court found in its prior opinion
was at this point backing up
when the defendant raised the gun and shot him
one time in the forehead.
Backing up 15 to 20 feet away,
that's categorically different from the hothead cases.
So there was no miscarriage of justice here.
This was just an unambiguous case of first degree murder.
-: Where do we put in the ineffective assistance of counsel?
Say we agree with you that it wasn't reversible
on the ineffective assistance of counsel,
but we have a problem that the defense counsel
did not argue for second degree.
Does that factor in to our analysis on 33E?
-: [Attorney MacLean] Well, the entire record factors
into the analysis, Your Honor, so yes.
-: So how do we take that into account?
-: [Attorney MacLean] Your honor, I don't believe
there was ineffective assistance counsel
in trial counsel not shifting her strategy during trial
and arguing for guilt.
-: She argued a theory that was legally doomed to fail.
-: Right, however, it was put in front of the jury,
Your Honor.
It made it to the jury.
That's not ineffective assistance;
that's incredibly effective assistance.
She managed to convince the judge that there was evidence
that the defendant retreated
such that it could go to the jury,
but that also wasn't the only defense
that she put forward here.
There were two other defenses that she put forward.
She actually attacked the malice
in a second degree murder charge,
and you could find that at the third page
of her closing argument.
And then I would point the court to
what I would call a pretty strong attempt
at a Bowden defense, basically-
-: But what does Bowden do in this analysis
as far as a second degree?
-: Well, Your Honor, I think your point was that
she was ineffective in her assistance,
that she left the defendant without a defense.
I disagree with that and say-
-: She never challenges premeditation, correct?
-: [Attorney MacLean] No, she did not really challenge
the premeditation,
but she challenged the adequacy of the investigation again.
So the three defenses she went with,
self-defense, going after malice for murder two,
and then attacking Bowden,
which is basically just a way to try to muddy the waters
and get reasonable doubt,
all three of those are complete defenses.
She wasn't looking for mitigation.
It's pretty clear they weren't trying to walk out of here
with a conviction on a lesser charge.
She said she didn't even want
the reasonable provocation instruction.
They were going with an all or nothing defense,
which can be a viable defense theory.
Just because it didn't work out in hindsight
doesn't mean it was ineffective at the time.
So I would then turn to the discussion about sidebars.
Yes, Your Honor, there was an objection here,
but it was a blanket objection
at the beginning of the trial.
Justice Kafker: Well, but, so at every sidebar,
the defense attorney has to object?
-: [Attorney MacLean] You gotta let the trial judge know
why this is a critical stage versus every other sidebar,
as you referenced a sidebar where you're talking about
scheduling or logistics.
Justice Kafker: Doesn't she do it?
Doesn't she object twice?
I thought there are two different times
where she tries to get her client to sidebar.
At least she brings up the issue, right?
-: Yes, Your Honor, the initial time,
and then the second time is at volume three, page 122,
and what happened in that conversation
was a discussion about sequestration of a detective
and then also the use of a demonstrative aid
in the form of a step-
Justice Kafker: That doesn't preserve
the error in your view?
-: It would for that particular sidebar.
Justice Kafker: The one sidebar?
-: [Attorney MacLean] That sidebar.
-: Judge Spurlock goes further.
He says, Look, the only time basically I'm allowing this
was for jury selection, right?
He goes beyond and explains what his ruling is, doesn't he?
-: [Attorney MacLean] Yes, he did.
When she initially said,
I expected my client to come up at every sidebar,
he said, no, that was just for impanelment.
So even if you wanted to consider
that the objection is preserved across the entire trial,
the Commonwealth still prevails
because the right to be present
only attaches when it's a critical stage.
So we have to look at what constitutes a critical stage.
There are sidebars that could be critical stages,
and you see those in jury questions
beginning with impanelment.
Because it's sort of a mixed question of fact and law,
you might wanna use-
Justice Cypher: Counsel, shouldn't everybody,
including the prosecutor, the judge, and a defense attorney
be alert to critical stages?
A judge shouldn't need a reminder
that there may be a critical stage involved
nor should a prosecutor,
and I would think a prosecution might wanna watch out
for this too and permit and encourage the defendant
to be at sidebar.
-: Well, that could well be, Your Honor,
but as this court has found in Robinson,
what constitutes a critical stage
is left to the discretion of the trial judge.
Justice Gaziano: But if they having a argument
about sufficiency of evidence with the jury in the box,
and the defendant's not present,
is that a critical stage?
-: I would say no, Your Honor.
So I'd think about, why does the right to presence attach?
Think about the bases of it.
There's the Sixth Amendment confrontation clause issue,
so that has to do with the presentation
of testimonial evidence, right?
So we're not disputing that ever.
Even in a motion to suppress context,
the defendant has a right to be present.
The court's already said that.
A purely legal argument
would maybe fall under the second way
that you find the critical stage,
which is the due process right,
but the point there,
as the Supreme Court said in Kentucky v. Stincer,
it doesn't attach when the presence would be useless
or the benefit but a shadow.
-: So a judge could exclude the defendant
while they argue the required finding?
-: It's a purely legal argument, so-
-: Your answer is yes to that question?
-: [Attorney MacLean] It is a purely legal argument,
so I suppose it's possible,
but that's not what happened here.
The sidebars that we're talking about here
were about evidentiary rulings in the trial.
-: What about you think we'd have a little problem
with the federal court if we said that?
-: [Attorney MacLean] You might, but again,
those are not the facts of this case
or what's presented here.
What's presented here are sidebars during-
-: Well, we're trying to test you what a critical stage is
when it doesn't involve taking evidence,
and it seems to me that some sidebars may be,
and some sidebars may not be.
-: [Attorney MacLean] Correct, Your Honor,
and the jury of questions are the great example,
not just impanelment,
but questions about juror misconduct
or extraneous influences on jurors.
We've seen those cases before,
potential juror bias, Colon, Sleeper,
Caldwell, Dyer, and all of that makes sense.
Those are sort of mixed questions of law and fact
-: What about the, I mean, his lawyer puts on that,
I can't remember the person's name,
Ian's statement that about he's coming at me
is gonna be at trial.
Justice Gaziano: The Sierra testimony.
-: Yeah, the Sierra testimony.
Then the judge rules it isn't admissible,
and in passing says there's scant evidence
of the defendant's intent
That gets close, doesn't it?
Isn't that, I mean,
we're starting to worry at that point
whether the defendant has something to add here.
By the way, I'm gonna ask you also
whether that ruling is correct.
Doesn't it go to state of mind?
-: [Attorney MacLean] Sure.
-: Premeditation,
but so isn't that a stage where the defendant
may have something to add to this discussion?
-: Respectfully, no.
So I think you're talking about
two different sidebars there.
The first that they're complaining about
is the reconsideration on the exclusion
of Sierra's testimony,
the second being the judge expressing his view
about the defendant's subjective fear for self-defense.
So I'll start with the first one.
The reconsideration argument they're complaining of
happened in volume four, page 196,
and a few facts that lead up to that.
The defendant was present for the initial argument
about the admissibility of that evidence.
That's volume four from pages four to 13.
He was present for the voir dire of that witness,
volume four, 14 to 22.
He was present for the argument after the voir dire
about that witness, which was volume four pages 19 to 20.
What he was excluded from was a reconsideration
later that day
where the same legal arguments were raised again.
The defendant was aware of all of this having happened.
Justice Cypher: When you say he was excluded,
can you just refresh my memory?
It's been a little bit.
Was he excluded from the sidebar,
or was this going on in the courtroom without him?
-: He was excluded from the sidebar, Your Honor.
And again, that's volume four at 196 is where that occurred.
And then he was present again for a second reconsideration
at volume seven, page 150.
So to say that he was unaware of what was going on
regarding the admissibility of Sierra's testimony
is simply incorrect.
-: Well, but counsel, don't you think there's a more subtle
influence that comes from this
and that is that for the relationship
between a defendant and his defense attorney
they need a high degree of trust,
and if the defendant can't go to the sidebar
when certain legal things are argued
and hear the judge say certain things
to the defense attorney,
it puts more of a burden on a defense attorney
then to explain that and to recalibrate that trust
because he hasn't heard the direct response?
-: Sure, Your Honor, and the one time in the record
where the defense attorney asked for an opportunity
to speak with her client after a sidebar,
that was permitted,
and she had an opportunity then to consult with her client
on the ultimate decision.
Justice Cypher: Not quite the same.
-: Sure, sure, Your Honor,
but, I mean, I point the court back to Clarke versus Stimson
from the Second Circuit in 2000,
where they noted that both New York state law
and the federal system recognizes a fact law dichotomy here.
And when it's purely a legal question
that's being discussed,
there is no right to be present
basically because for two reasons.
One, the confrontation clause aspect wouldn't be implicated-
Justice Gaziano: What would you say to trial lawyers
that ask you in your office
about whether they should encourage
or object to the defendant being present?
Would you tell trial lawyers in your office,
by all means,
encourage the judges to have defendants to be present?
-: Sure, Your Honor, I see no harm from that happening.
It is just a logistical barrier,
but, I mean, every individual trial judge
controls their own courtroom,
and this court has previously left its their discretion
to determine what was a critical stage or not.
-: But wouldn't you advise lawyers to say no, you know-
-: [Attorney MacLean] No, I would not, Your Honor.
-: That the defendant should be there?
-: [Attorney MacLean] I wouldn't go so far as to say
the defendant should be there,
but I wouldn't advise someone to object
just for the sake of objecting.
I think the defendant's right to be there
stems from two reasons,
one, confrontation clause
having to do with testimony being presented,
and two, whether they're going to have a substantial impact
on what's happening at sidebar.
And when it's purely a question of law,
the defendant is not gonna have a substantial impact.
He's just gonna be stand-
He or she is gonna be standing there
as an observer of what's happening.
So that's the reason the right exists,
but even if this court wasn't inclined
to extend the right to every sidebar,
the defendant would still have to show prejudice here
from being excluded.
So again, going to him being excluded
from that reconsideration about
the admissibility of Sierra's testimony,
they rehashed the exact same arguments
that had been previously made.
He wasn't gonna provide any additional benefit
in that sidebar and get the judge to change their mind.
Justice Kafker: And in the prior ones that he attended,
did judge make this sort of offhand remark
that there isn't enough there?
There's something in Mr. Rankin's brief,
and I don't have it right at my fingertip,
but essentially where the judge says,
I see scant evidence of something, or other,
I can't remember, related to the defendant's intent.
And then he's on that point to say,
well, the defendant said I would've testified
if I knew that.
I'm not sure that's supported, but that's in the briefs.
What's your response to that?
-: So that sidebar happened at volume seven,
pages five through eight.
And yes, the judge did basically express an opinion
that I don't see much evidence
on the defendant's subjective fear here
to justify a self-defense instruction.
Attorney Scapicchio then argued
you can infer it from other evidence,
which clearly they then did
because the judge determined
that the self-defense instruction was warranted.
So again, even if you were gonna say
that was a critical stage-
-: We say that's wrong in the last opinion, correct?
-: [Attorney MacLean] Correct.
-: Right.
-: [Attorney MacLean] Correct.
But even if you were going to say that's a critical stage,
there would've been no different outcome here
because the judge gave the self-defense instruction,
so they got what they were looking for.
So if it was an error to exclude him,
it would've been a harmless error.
Justice Kafker: Gives the self-defense instruction
he says is incorrect 'cause there's not enough evidence,
but he doesn't testify,
which might have provided more evidence.
So it's kind of a-
-: [Attorney MacLean] Yes, Your Honor, it is circular,
but ultimately he got the self-defense instruction,
and that was before the jury.
So the judge's-
-: Which plainly didn't satisfy the jury instruction
on retreat.
-: Well, it satisfied the judge's view at the time,
and so the instruction was-
-: But it was, again, doomed to failure
because when you read the jury instruction, it ain't there.
-: Well, we're then in the realm
of a purely speculative argument now
of what would've happened otherwise.
So again, I would say that that's not a critical state.
Justice Kafker: Can I ask about your research?
You've cited some cases.
Any cases go the other way?
-: [Attorney MacLean] Not that I found, Your Honor.
-: Okay.
-: [Attorney MacLean] And I would, again,
I'd point you to the Second Circuit in 2000
saying that both New York state law and federal law
recognizes that fact law dichotomy,
which would then be consistent with the sixth,
the seventh and the eleventh
saying the defendants have no right to be present at sidebar
when they're discussing legal issues.
-: And those cases were Rule 18
or the federal equivalent cases,
or are those also constitutional analysis there?
'Cause we can, again,
be more protective if we want constitutionally.
Were those cases just interpreting the federal rule,
or were there also constitutional interpretation?
I haven't had a chance to read them yet.
-: My understanding, Your Honor, is is both
the federal rule and the constitutional support as well,
which makes sense because the two bases
for the right to be present are confrontation clause
and the due process right.
So if the defendant is not gonna have any influence
on something where it's a purely legal argument,
then there's no due process right
for him to necessarily be present.
That's basically the reasoning that underpins it here.
Justice Cypher: Does he have to have
a influence on something?
How do you measure that influence?
When you say it's substantial influence,
what does that really mean?
-: The phrase that the Supreme Court used
in Kentucky v. Stincer is when presence would be useless
or the benefit but a shadow.
That's the phrase that they use,
which is like, I'll grant you
somewhat of an amorous standard,
but if the argument is about
the admissibility of a piece of evidence,
the defendant's lawyer speaking on his behalf
is gonna make that argument to the judge.
The defendant standing next to the lawyer
when he makes that argument isn't gonna have any impact.
Justice Gaziano: Did any of the sidebars
require the defendant's knowledge or the facts
where he could have shared it with counsel to be helpful?
-: None that come-
There are four specific ones
that I gleaned from the defense's brief
that they were talking about.
I understand they're making a blanket argument for all,
but the four that I gleaned were
the reconsideration argument
about the admissibility of Sierra's testimony.
No, there was a voir dire,
so there was no specialized knowledge there.
Two, the admissibility of his military records,
those are just paper documents.
So I'm not sure why he would have anything to add
to the argument about that it's prejudicial
to say somebody served in the army.
Three, the use of a step cane is a demonstrative aid.
I don't know what specialized knowledge
the defendant would have to contribute there.
Justice Cypher: Use of a, I didn't hear you, a step-
Justice Gaziano: Cane.
-: Step cane.
Justice Gaziano: But he would have knowledge
of his military service
and what it took to get the marksmanship ribbon, right?
-: [Attorney MacLean] Correct, yes, he would.
He would've had knowledge of that.
Justice Kafker: Can I ask about the admission
of Sierra's testimony?
So I agree with you on the second, you know.
I'm not sure it was ineffective
to not argue second degree murder,
but it comes in his intent is directly relevant, right,
and why isn't a state of mind exception
that Sierra's testimony is admissible?
I missed that.
I don't get it.
-: Well, the state of mind exception, Your Honor,
under Woollam, it applies to the victim's state of mind,
not the defendant's state of mind.
Basically, what he is really trying to do here
is exactly what this court talked about in Steeves,
which is to do an end run around having to testify himself.
So really this fits-
-: Even though they have to prove premeditation,
and this relates to his state of mind,
that's not an exception of the hearsay?
-: No, it's not, Your Honor.
Justice Gaziano: Isn't all hearsay exceptions
an end run around testimony?
It's an end run when you call a witness?
When the police officer said the witness said this
in excited utterance, is that an end run?
-: [Attorney MacLean] Sure, Your Honor.
But the reason that those exceptions exist
is because there are substantial
guarantees of trustworthiness
as this court just discussed recently in Steeves.
-: Which is what the excited utterances do, right?
Because excited evidences are before the motivation
to call it the testimony.
-: Well, correct, Your Honor,
but here the call was between 20 and 30 minutes
after the fact,
and the judge decided to exclude it on that basis,
and that's not frankly the issue that's been raised now.
The issue that they're raising now,
I say for the first time on appeal,
is that this fit within the constitutional exception
to the hearsay prohibition.
I'd say the preserved issues would've been
what attorney Scapicchio raised,
which was state of mind and the residual hearsay expression,
which isn't really even a thing, but now-
-: It is a thing in Creighton.
-: So now, what they're challenging now
is that it fit within the constitutional exception
to the hearsay requirement,
so that started in Silva-Santiago,
or at least that's the first case I can find
where it was recognized,
and then sort of modified-
-: By Drayton, not Creighton, right?
We said it was a thing in Drayton.
-: [Attorney MacLean] So then in Drayton,
the constitutional exception was expanded a little bit,
and there they clarified the test for what qualifies,
two prongs, critical to the defense
and bears persuasive guarantees of trustworthiness.
Here they don't satisfy either of those two prongs,
so regardless of whether you look at it as-
-: But the judge doesn't make a finding about that, does he?
-: [Attorney MacLean] Excuse me, Your Honor?
Did the judge make a finding about the Drayton factors?
-: No, because Attorney Scapicchio didn't raise that
as a basis during trial.
She raised residual exception one time
and then several times state of mind.
-: Well, that is the residual.
She can't raise Drayton 'cause Drayton wasn't decided
before that, right?
-: [Attorney MacLean] That's fair, Your Honor.
Even if you want to construe it as preserved, they should-
-: But she was preserved because she raised
the residual clause, and Drayton's a residual clause case,
so it is preserved.
-: All right, and even if you want to determine
that it's preserved,
the Commonwealth still prevails
because the two pronged test under Drayton,
they failed to satisfy either.
One, it has to be essential to the defense.
Here, this would only have gone to one component
of the three necessary components
to get that self-defense instruction.
So they would fail based on that.
Second, persuasive guarantees of trustworthiness.
So if you look back at Steeves, which was not that long ago,
there, the persuasive guarantees of trustworthiness
came from a series of interlocking affidavits
all attesting to the same component,
and that was the guarantee of trustworthiness.
We don't have any of that here.
-: So a defendant can never put in his own state of mind?
-: He certainly can by taking the stand and testifying to it,
but what they're trying to do here
is exactly as this court acknowledged in Steeves
happens frequently,
a defendant makes a somewhat self-serving
or exculpatory statement, some hearsay statement somewhere,
and then wants to get it into evidence
while avoiding cross examination.
That's not the rarest of cases
as the constitutional exception to the hearsay requirement
exists to fulfill.
That's a fairly common occurrence
as this court recognized in Steeves.
And I see that I have run out of time,
unless anyone had any questions
about any of the remaining issues.