-: Good morning counsel.
-: Good morning.
-: You should know that the four justices that appear
before you would decide this case as a quorum.
So I will turn it to Mr. Crouch for his argument.
-: Thank you.
And good morning. And may I please the court.
Andrew crouch on behalf of Mr. Tishara,
who appeals from convictions
out of the Plymouth County Superior Court.
This was a close case.
It was one in which the trial judge
at the conclusion of the Commonwealth's evidence stated.
I think this case is really about Mr. Leverone
referring to Olivio.
He told two versions of what happened,
and the case really depends on which version
the jury believes.
This case largely dependent as the judge said
on Olivio's testimony,
is an individual who frequently lied to investigators
during grand jury and eventually at trial.
These lies are troubling,
but also as this case moves forward,
near most forward, as the trial judge said
it really is between these two competing narratives.
It's between the version of events that Olivio says
and the version of events that other witnesses say.
And in a close case like this small mistakes are magnified
and those mistakes get amplified
if they're repeated throughout the trial,
and whether that is an evidentiary error, an argument error,
an error by the trial judge or the prosecutor.
When you pile them together
in a cumulative nature, it requires reversal.
I would start today with the first issue in the brief,
namely the errors in both the opening statement
and in the closing argument.
So in terms of the prosecutor's statements,
when we look at the opening statement,
what jumps out and none of this was objected
to all acknowledge that from the forefront.
And so we're looking at a substantial likelihood standard.
-: Could I ask you a question please?
Just to clarify.
The said question here is to whether or not
the defendant was the one who killed or shot the victim?
-: I think that there are some competing defenses.
And I think that with the decision
and not to be too roundabout here,
I think that there is some question.
I think that part of the defense was that
it was actually Mr. Busby, there was some suggestion
that it was Mr. Busby who actually did the shooting
but I think the evidence largely focused on the defendant
as the shooter in the case.
And I think that this can get into an issue
I was to discuss later
with regards to the self-defense argument
but specifically with regards
to looking at the opening statement,
it's here where we immediately get to see
some of the problems in this case.
And that was where the prosecutor
within the very first words
that the prosecutor says to the jury,
makes this statement, this forecast of the evidence
that suggests that it is the defendant
who mistook Keith Leverone, the victim in this case
for his brother Olivio.
And I would suggest that while we certainly
give a great deal of leeway
to counsel arguing in their opening statements,
and that is, sometimes that reasonable forecast
doesn't come to fruition if a witness takes
a fifth amendment or asserts the fifth amendment
or decides not to testify, that's not the case here.
There was no evidence to support an idea
that the defendant mistook one individual
for another individual.
They are in different locations
by the Commonwealth's evidence,
they're wearing different clothing
by the Commonwealth's evidence.
There's no suggestion that they, they look the same.
None of Olivio's friends even know who Keith is.
And so it's under those circumstances
that this is not a reasonable forecast what is to come.
And this sort of error cascades
moving into a closing argument error,
where the Commonwealth just changes 180 degrees
in terms of its direction
in what the theory of the case is.
No longer is it a question
of that the defendant mistook Keith for Olivio.
It's now that the defendant specifically targeted Keith,
because he was Olivio's brother.
This again, this sort of wild shift
demonstrates the sort of the lack of strength
in the Commonwealth's case,
but also here there wasn't any basis in the record
to suggest that the defendant actually knew who Keith was
and let alone that he was Olivio's brother.
The evidence that the Commonwealth points to,
not at the time of trial when it's making these arguments
but on appeal, try to serve backfill,
and explanation is, there's one sentence
where Olivio was asked, "How do you know Mr. Tishara?"
And he said "From around."
And then he said "Were you friends?"
He said, "Sure, basically."
No more detailed than that.
They don't say for how long, they don't say in what depth.
What we do know from the evidence at trial
is that nobody knows who Keith is.
Who's there, none of Olivio's crew know,
who are riding with him that night.
friends that he talks to at the gas station,
or at 7-Eleven, have never met Keith before,
by the Commonwealth's own evidence,
Keith never gets out of the vehicle.
There is some disagreement in the facts as to what,
there is one witness who says Keith,
he was involved in the fight.
But there was nothing to suggest
that he was actually known and therefore targeted.
And this in a close case like this, this is fireworks.
This is really damning evidence, when we look at--
-: There was no objection to it.
There was no objection to it, though.
-: No objection to it, certainly not.
And as we know from their standards here on both sides,
but they suggest sometimes that objection is actually
what causes greater damage here
'cause it doesn't allow the judge to try to step in
offer any kind of instruction.
-: But Crouch, the Commonwealth
doesn't have to prove motive, correct?
-: Does not have to prove motive.
-: So what we have is this crazy series of events
where Olivio stabs the guy,
we have this incredible hostile turn of events
and the evidence seems to be
that Keith doesn't play any role in this.
But nonetheless at the last event, Keith is shot.
So whether or not it's a mistaken ID or retaliation
the fact remains that there's an incredible amount
of enemies between Mr. Tishara and Mr. Olivio Loverone
and as a result of this, Keith Leverone is shot, correct?
-: That is correct.
And I think that part of the problem here is that,
while the Commonwealth is not required to prove motive,
they are required to prove intent.
And here in terms of deliberate premeditation,
they're saying he shot him specifically
because they thought that he was Olivio's brother.
That backfills, while that may be called motive
in some respect, it gives in an otherwise the Commonwealth
and the prosecutor themselves say,
"I know you're probably asking, why did this happen?
"Why did Keith get shot?"
Keith got shot because he was Olivio's brother.
There is nothing in the record of support that.
-: Well, if we have someone,
the reason why they didn't do it it's unclear
if they raised a gun and put bullets into somebody
isn't that kind of evidence of intent?
-: Well, then this feeds into the second argument
with regards to self-defense
and some of the other underlying issues.
This is, I think as I said,
sort of backfills the Commonwealth's argument
and it allows them to sort of answer the question,
that is the main question in the case.
Was this just a mere firing, not necessarily accident,
but just in response to the circumstances
as somebody trying to get away,
somebody trying to stop a beating,
to prevent further beating
or was it a targeted killing?
It's a pretty substantial difference.
And it's one that when we don't have a lot of evidence
on either side, when the evidence is close,
as the trial judge said for the Commonwealth to come in
and say something like this,
without any support in the record
this is not your average thing where it's just hyperbole.
And then the jury is left with the question,
does the Commonwealth know something that I don't know,
why was he targeted?
He was targeted because he was his brother.
That is something that I think could weigh on the jury.
-: And I don't want to distract you
from your self-defense argument.
We'll get into that.
But did judge Chin remark the case as close
or did appear to be close
because Leverone tells different tales?
-: Yes, and that was what the judge said, as I said...
-: So he's not saying it's close
because we don't know what the intent is.
He's not saying it's close
'cause it could have been self-defense.
He said it's close
because Levorone Olivio is all over the place.
-: Well, the judge has says that in part,
but also the judge doesn't think much
of a self-defense argument because, arguably
he gets it wrong based upon,
as an actual abuse of discretion for getting the law wrong
and saying Barbara means mutual combat,
mutual combat means we're done,
like we don't have to have a conversation.
-: Was it at a 7-Eleven, right?
-: Yes.
-: They went to Hass before? -: Correct.
-: These are very well known Brockton,
late night gathering spots.
-: Yes, very pop.
There are 30 people at that 7-Eleven
at three in the morning, yes.
-: Right, so at the 7-Eleven, it's a parking lot.
Where's the retreat?
-: So, circumstance, getting into that self-defense argument
and I'll talk about where the danger is to him earlier,
but here where the retreat is,
is that, we have to take into account,
as you said all of the crazy events
that occurred that evening.
And they start, it's not just this snapshot
in moment in time of what happens
at that exact second, at the 7-Eleven
But it's what is in the defendant's mind
based upon the entire rest of that night.
And as you noted an hour to two hours earlier,
he is at a Hass station where Olivio's crew pins him up
against the car, and Olivio stabs him several times
with a dangerous weapon.
Then an hour or two hours later,
depending on the timing around just before 3:00 am
show up at another location.
And here I think is where the judge gets a bit confused,
he says, Olivio comes up and by all accounts says,
"Look, I'm here to fight, I'll fight anybody."
It's this generalized threat.
Lifts up his shirt, shows he doesn't have a weapon
at that point, and then he, as he say, thrown upon.
And the Commonwealth tries both at the trial.
And later on appeal here
to sort of downplay the nature of the beating.
But if we go and just look at the witnesses--
-: Does it matters how bad the beating was?
-: I think it certainly does
'cause it gives the defendant and understood of it.
The defendant at that point, it matters for both
of the first to come.
-: How did it go to the issue of the retreat?
I think we're just circling about this case.
-: At that point, he has been stabbed,
he has now been beaten for up in here,
because we keep this in the light,
most favorable to the defendant
and the bar to get that self-defense instruction is low
and judges are supposed to error on the side of caution
and giving it, in terms of retreat here,
he has been beaten, he got injured earlier,
he has been beaten for up to 10 minutes.
The cases don't suggest that he has to singularly retreat
in every single circumstances.
If the nature of the invitation to fight changes,
and it goes from, he assumes I presume
he's gonna fight one person
as opposed to fighting all of Olivio's crew
which again, that is either three or four people
depending on who we're talking about.
Here, we're looking at four people
in the light, most favorable to the defendant.
And we look at as attorney Galvin pointed out
to the judge at trial, we're looking at the timing here.
The timing is within seconds.
Olivio himself testifies that he has maybe 10 feet away
by the time the gun is pulled
and a shot is fired shortly as it happened.
-: He can have a gun in his hand before, did he?
-: He did not have a gun in his hand before.
-: He had to get it from someplace.
He got it from the car.
-: Basically he turned around and got it.
And Olivio says, "This happened quick."
-: And why could he not rum up to retreat
instead of getting gun.
Why was he not up to retreat?
-: Because at that point, it think, based upon,
and again, in the light most favorable to defendant
framing it in light of what happened earlier on
the defendant does not know whether or not
these individuals, what, the individuals claim.
Olivio claims "Fight is, over fight is over."
At this point he is dazed,
he's on the ground has been beaten for 10 minutes,
he's been kicked in the head,
he's been kicked in the ribs,
he's been punched repeatedly,
had a shirt pulled over his head.
He doesn't know that the fight is necessarily over.
These individuals, maybe moving back to a vehicle,
he knows that they have had dangerous weapons earlier.
And these circumstances, and it's not for this court
or myself to judge whether or not that self-defense
would have been successful ultimately at trial.
The point is whether or not
the jury should have begin
in the opportunity to consider it.
-: Can I ask them a question though about these vehicles?
I'm really confused about the black Acura,
which I suppose there was evidence
that was the one that he had been driving,
that Olivio had been driving?
-: Right.
-: And red Ford Focus in which the defendant was later found.
I thought that there was evidence
so that the defendant took off in the Acura,
the black Acura.
So I don't understand the relationship between that
and the red Ford Focus.
-: Sure, so the ref Ford Focus
or the maroon car as it's called,
it's the one that is used earlier in the evening.
And that is one that I think at that point
doesn't necessarily show up at the gas station.
It's the really the black car,
that is the one that is eventually,
that is the one in which Olivio
and his crew and Keith are riding.
And eventually the defendant leaves the scene
and is able to finally retreat
after the fight concludes and the shot is fired.
-: Well, the defendant goes into the Acura.
-: Yes, he actually has to retreat
to actually get away from the scene.
He has to leave in Olivio's car,
the guy who beat him up.
That's how he gets away.
-: And the victim at that point though,
was already in the car, right?
He was in the car?
-: No, this is a problem.
We actually, and this is part of the problem
with the Commonwealth's evidence, here.
And this is part of it from the closing argument.
In the closing argument,
the Commonwealth States, look, Keith was cowering,
he knew that this was coming,
he was dragged from the vehicle.
There is no evidence in the record to support that.
Nobody, there are 30 people there,
there are multiple people who testify at trial.
Nobody has any idea how Keith got out of the vehicle.
We didn't know.
-: They do know that he was shot from pretty close?
-: Well, Dr. Hall is not able to testify
as to what the distance is.
-: But at the position is, but I mean, how close?
-: It says that there aren't any powder marks,
something like that.
Dr. Hall can't testify as to the distance and the proximity.
So we actually don't know.
And the Commonwealth tries to make a lot of this,
Commonwealth tries to say, look,
basically it uses the phrase executed twice.
Went from mistook in the very first words to the jury
and by the end, it's an execution
where the person is dragged from the vehicle
and his cowering knows it's coming and he is shot.
There's no basis in the record for that,
you won't find it in Dr. Hall's testimony.
Indeed, the trial judge himself says
that this is pure speculation and sustains an objection,
doesn't allow them to testify.
He doesn't allow Dr. Hall to testify
or the Commonwealth to raise these points
because there isn't any basis in the record for it.
We just don't know
what position Keith was in when he was shot.
But we do know that at that point,
the defendant when he is fleeing the scene,
the way he's able to get away is in Olivio's car.
So I would suggest his ability for retreat
in that circumstance where he has been beaten
by those individuals, he's at least gotten over that low bar
that required the giving of that self-defense.
-: By the time he gets into the car,
I take it that the victim has been shot.
-: You say that's he's been shot
All of this happens very quickly.
-: He's outside though.
-: Yeah, at that point is outside of the car
and he's able to get away from the scene
based upon having...
Yes at that point, indeed Keith has been shot
and is presumably laying on the ground
outside of the vehicle.
Again, we just don't know.
There isn't evidence to fill in what happened there.
And it's not even a basis for speculation.
There just isn't any evidence on it.
-: When he's arrested, though,
when the defendant is arrested,
he's arrested in the red Ford Focus, right?
-: He is arrested in the red Ford Focus,
which was not at the scene as he said.
There is sort of a gap, which is I think the confusing part.
It is used in the earlier scene
where Olivio claims that, even though it's cold weather
whatever that Tishara is leaning out the car window
and popping off shots at him,
even though the guy who's driving the car Andretti says,
or was in the car, says, "That never happened."
Then it is at the Hass, it is not then
that individual then basically I think leaves the scene
goes elsewhere and then that car comes back
into the fold the next day
when it is pulled over by the troopers
and then searched, eventually.
So, in concluding with regards to the closing argument,
just to finalize the argument there,
even though this is under the substantial likelihood
standard, there are a variety of things that are said
in this case where it is, as we've noted,
basically two competing narratives of what happened
when the prosecutor inserts themselves
and make statements that are outside of the record
in a substantial way in a close case,
I would suggest this does rise to the level
of a substantial likelihood.
When the Commonwealth is saying
that he intentionally executed Keith
that he was cowering and knew he was about to be shot
that he dragged him from the vehicle before shooting him.
And especially that the defendant started a fight
with multiple people
so he knew he'd be able to shoot somebody afterwards.
Along with, the Commonwealth misstatement,
there are no basis in the record forecasting
of what the evidence would be in the opening statement.
I would suggest that when we put all these together
even under a substantial likelihood standard
there are problems here.
And these are problems that rise to the level
in a case, such as this,
that this is that unusual case
that substantial likelihood standard is met.
And just finally with regards
to the second argument and the...
Sorry to jump around here a little bit
but a lot of this is interrelated.
When we take the evidence in the light most favorable
to the defendant, and we consider that low bar
for entry, here where the trial judge mistakes
the standard and says that that standard under Barbara,
which I have to leave
he's looking at the appeals court decision
and not the Supreme judicial court decision on Barbara.
And says, mutual combat prohibits it.
We know that that's not the standard,
we know that that's not the rule.
That we know that there's more substance
to a discussion that has to happen.
And it didn't happen in this case.
So I'd invite this court to take a closer look
at what that should have been.
And as we know, this is not a situation where
we are here to judge whether
that would have ultimately been successful.
But instead we know that the jury
is the one who should have probably been allowed to consider
with all of these circumstances as Justice, Gaziano noted.
These are crazy circumstances.
This case is very unusual happening
in multiple different locations.
And just briefly under 33E, this is not case where--
-: Can I just start you there please?
I'd like to ask a question about
whether you can point us to any case
where defendant retreated from fight to retrieve the weapon,
he then used in self-defense.
-: I think the cases that we can look at
are the best ones essentially
are the cases where I think we can draw
at least the sharpest contrast,
as opposed to ones that are necessarily analogizing to
because these are kind of unusual cases.
The ones like this, where it happens,
like almost like that.
Like within seconds, according to Olivio himself.
The cases that we look at are ones where,
an individual goes away for some period of time,
gets a weapon and then comes back,
makes phone calls, things like that.
And I don't have the direct case in front of me.
I don't know if it was Barbara.
Well, I don't unfortunately have the direct case
in front of me, I wanted to talk about.
But those are the cases where...
And I don't know if it's the case more along the lines
of Pring-Wilson, where or something along those lines.
But the cases where we see the sharpest contrast
are ones where the defendant leaves the scene
for some period of time and then comes back with a weapon.
And that's not what happened here.
This is a contiguous circumstance that happens
in the light most favorable to defendant
within mere Seconds of this fight.
You not necessarily concluding in the defendant's mind,
but at least the last punch or the last kick
having been received after a night of being abused
beaten, and stabbed and kicked by the same group.
-: Thank you Mr. Crouch.
-: Okay.
Miss. Nguyen
-: We're done with yourself Nguyen,
you have to unmute yourself.
(laughs)
-: Okay approved there you go.
May I please the court?
My name is Mary Nguyen, on behalf of the Commonwealth.
This was not a close case.
In fact, there was overwhelming evidence in this case
that the defendant was the shooter.
There was overwhelming evidence of intent and premeditation.
There was physical evidence
tying the defendant to the shooting
to the black gloves that were in a plastic bag
with gunshot residue and DNA
linking the defendant as a potential contributor.
Which were found in a plastic bag
with the defendants blood-stained clothing.
There was testimony from other witnesses,
corroborating Olivio's testimony.
So this was not a case where the evidence
that the defendant was the shooter
was solely dependent on Olivio.
Not only do we have that physical evidence
to corroborate his testimony,
we have testimony from Lydia Goncalves,
testifying that after the fight ended
and everyone walked away,
the defendant walked over to his companion
and demanded the gun and retrieved the gun
from his companion.
That there's the surveillance video.
-: Question about the by the timing of this,
his brother says, this is just like seconds apart.
So what, what are you talk about the timing?
Could you tell us about the timing of all of this.
-: Sure, so with respect to the timing,
I think it's important to know,
and especially with respect to self-defense,
is that the defendant's combatants had walked away
the fight was over.
And that doesn't come only from Olivio,
that testimony also comes from Lydia Goncalves.
The fight for all intents and purposes was over.
The combatants had withdrawn from the fight
and the defendant was on the ground, he stood up,
then he walked over to his companion Mr. Busby,
demanded a gun, retrieved a gun,
and then proceeded to chase Olivio.
So, with respect to the time,
all of those actions were taken by the defendant
in that span of time.
So this is not a situation
where the defendant was in imminent danger.
There was no present threat at that juncture
or an overt act by the victim or in the victims crew
if you will at the time of the shooting,
there was no impending harm.
So any perceived threat ended
when the defendant's combatants walked away
-: Could you give me some sense of how far apart
the black Acura was
from where the fighting had been taken place
where they were beating up the defendant.
-: Certainly, so the Acura was parked in the second.
I believe the evidence,
it wasn't like in the second lane if you will.
So, it wasn't close proximity.
-: It wasn't or was not.
-: It was.
-: Yes, okay.
-: It was in close proximity.
-: How could he tell them that the fight was over
and he was walking away to the car that was close by?
-: How could the defendant tell?
-: Yeah, how could he tell that the fight was over?
-: Well, the evidence from the witnesses
were that the fight had ended,
he was on the ground and his combatants had walked away
heading to their car.
-: Which was pretty close by?
Mary: Correct.
-: Okay.
So he has to race over to the car.
In other words in order to kill the brother?
-: The evidence was that, in fact he was chasing after Olivio
and Olivio was running away.
And why was he running away,
because the defendant had a gun.
-: And where did Olivio go?
-: Olivio ran towards Belmont street.
-: Okay, which was away from where the car was parked
or where the car was parked, or what?
-: It was away from where the car was parked.
-: So the car was already there.
It was there while Olivio was running away,
and then the defendant.
-: Correct.
And seated in the car was Keith.
So, Olivio testified that when he was running away
from the defendant armed with a gun,
he did see his brother still remaining in the car,
still seated in the car. -: So he was running away?
He didn't and run to the car, in other words.
-: He was headed to the car,
but then ran past the car as he was being chased.
-: He was past the car in other words.
-: Yes, he did ultimately go pass the car.
Barbara: Okay.
-: As he was running away from the defendant.
-: You trying say he shot the victim
and then got in the car and took off.
-: Correct.
And then there was--
-: Olivio was watching all of that?
-: So, the evidence was that while he was running,
and he was running back after he heard the gunshot
but he did in fact see the defendant taking off in his car.
And then the next time he sees his brother,
his brother's no longer in the car,
he's on the ground with a bullet in his head.
And then there's surveillance video in this case,
showing the defendant dressed in Olivio's hat
and sweatshirt, which were inside of Olivio's car
before defendant stole the car
and fled from the shooting scene.
-: What happens to a car by the way?
-: So, what happens to the car was not part of the evidence
the Commonwealth's motion to admit evidence
that there was an arson with respect to the car
was not allowed, so the jury didn't hear that evidence.
Barbara: Okay.
-: But they did hear about the fact that it was recovered
in Taunton, not too far away from Brockton.
And that the defendant is seen on video,
approximately two miles away
from where the car was recovered
dressed in clothing, belonging to Olivio,
which was inside that car prior to the defendant
stealing that car.
-: What, what do we make of the inconsistencies
and the government's theories
about mistaken ID and retaliation?
-: So, with with respect to that,
so, as your honor had indicated
motive is not an essential element,
it's not something that the Commonwealth has to prove
but I think that when you look at the opening,
it was grounded in good evidence,
given that all the evidence suggested
that the animus that the defendant had
was with respect to Olivio.
And then during the entire sequence of events that day,
Keith was not involved, he was present, but not involved.
So, certainly the prediction that the prosecutor made
in her opening was reasonable.
But with respect to the theory at the end,
I don't think it matter so much
that there was evidence, as I indicated
and I briefed that the jury could infer
that the defendant knew that Keith was Olivio's brother.
But I think the more important thing
is that there was evidence
that Keith was part of Olivio's crew, if you will.
So I think that the theory
that the defendant was running after Olivio
and chasing him with a gun and couldn't get to him,
so he instead shot a companion
of Olivio is what's important.
-: Was there evidence any way
that the defendant knew that the car was Olivio's car?
-: I'm sorry.
-: Was there evidence that the defendant
knew that the car was Olivio's?
-: Yeah, so that's actually the evidence
about the prior shooting on Warren Avenue.
So, Olivio driving his Acura
when the evidence was that the defendant was shooting
at him from the red Ford Focus.
-: Was there another somewhat farfetched argument
that the defendant allowed himself to get beaten
and not have a gun, and then he did it
to kind of wore them in?
Isn't that wildly speculative an improper argument?
-: Your honor, I don't believe it was.
I think that the jury rationally could have concluded
based on the evidence, they could draw this inference.
I believe it was a reasonable impossible for the jury.
-: If somebody allows themselves to get thumped.
(laughs)
to make them unawares,
and they made them may gonna grab the gun.
That's not very logical,
and it seems to me to be very farfetched and improper.
-: I think the jury could have credited evidence
that the defendant invited a fight
with the knowledge that his companion had a gun
and that there was no indication that anyone else
was gonna go back there.
-: To allow themselves to get thumped by three guys?
-: Because he knew he could use, and intended to use the gun
that was readily available to him.
-: So I think that's the problem is
if we sanction these things
and prosecutors do kind of reckless arguments
like this, right?
-: I think that that argument was grounded in the evidence,
but to the extent that there's a question about a misstep
in the prosecutor's statements,
in that regard the judges repeated instructions
with respect to closing arguments and not being evidence
was sufficient to cure any, any possible like this.
-: I'm kind of concerned too, in that regard
about the fact that the prosecutor argued something
that the judge had really sustained
his defendant's objections
in terms of the questions you asked about the expert
doctor, medical examiner,
as to how close the weapon had been,
the angle of the weapon, where this film was fired
how the shot had occurred.
What had been the victims position
at the time of the shooting, and so forth.
And I thought that the judge was pretty clear
that the expert was not going to speculate
or adopt some of the Commonwealth suggestions.
And yet the prosecutor states
her arguments are suggestion quote unquote.
But non of them was really based on evidence
before the jury, where there was it?
-: Your honor, I believe that my reading of the record
is that the judge sustained the objection
with respect to the medical examiner
indicating that that would be speculation
on the part of the medical examiner.
But my reading of his reasons
in sustaining the objection is that he thought
that there was sufficient evidence before the jury
for the jury themselves to draw that inference.
And I think the fact that there was evidence
that the victim was shot on the top of his head down
and that he was last seen sitting inside the car
than he's next scene outside of the car
with a bullet in his head,
that it was a reasonable inference for the jury to conclude
that the victim was outside
on the ground and much lower than his killer,
so that he has to either be kneeling,
cowering, squatting, crouching or on his knees.
I think that was a reasonable inference
based on that evidence.
And in any event, the jury did not appear to be swayed
by that portion of the argument.
The prosecutor in particular remedied that argument
with respect to cowering,
to the extreme atrocity cruelty theory
and the jury simply rejected that specific theory
and did not convict the defendant on that theory.
-: Can I ask you a question please
about whether or not does any evidence
of the shooting had to have taken place
outside the car than inside the car was only evidence
as to blood inside the car or anything like that?
-: So there was no evidence, there was no forensics
with respect to the black Acura
because the jury didn't hear this,
but it was eliminating instruction
that there was no forensic analysis
because outside of the record we know,
or outside of the trial evidence
we know that the car was torched.
But that was not put before the jury.
-: No, I mean a got it.
Just said it, okay.
Okay.
-: And just continuing on self-defense, I talked about
the fact that the defendant wasn't an imminent danger
but even assuming that he reasonably believed
that he was an imminent danger
he was still not be entitled to self-defense instruction
because he had a duty to retreat.
And I know this was touched upon in my brother's argument,
but what he failed to do so.
The defendant is the evidence
was such that the defendant easily could have
and should have walked away after the fight ended.
He chose not to retreat,
and he decided instead to walk only so far as his companion
in order to retrieve the gun.
And there was no evidence as judge Gaziano indicated
that the events took place in a store parking lot
with ample open space for the defendant to retreat.
So there was no evidence
that there was anything preventing the defendant
from walking away.
There was no evidence that he attempted to retreat
instead choosing to escalate the situation he created.
With respect to closing,
I'll move on to closings.
And we talked a little bit about the closing,
I don't think I have anything further to comment on
with respect to closing.
Does anyone else have had any questions?
-: No further questions, Mrs. Nguyen.
Rest on your brief.
-: I will rest on my brief.
Thank you.
Gaziano: Right, thank you counsel.