-: Okay.
-: SJC 11375, Commonwealth v. Omay Tavares.
-: Okay, Attorney Campbell.
-: Thank you.
Good morning, and may it please the court,
Cailin Campbell, on behalf of the Commonwealth.
We ask you today to reverse the allowance
of the defendant's motion for a new trial.
-: Now, Attorney Campbell, I kind of think
you have an uphill battle here.
So can you address the precise standard
or review we should use and what the evidence against
the defendant is putting aside all the stuff that related
to the CI and the third party culprit,
anything other than that?
-: Correct.
So the correct standard that you should use,
I believe is the standard that was recently articulated
in the end case, which is the typical Saferian standard
because this is not the defendant's direct appeal.
I disagree with my sister's argument that it
is somehow unconstitutional because it lessens
the burden because that is the standard that's given
to every other criminal defendant.
I would say though that the standards though they say
that the 33E standard is more favorable,
it's hard to articulate exactly how that is.
I don't really think when you look at this case
or apply sort of what happened and how the judge air
to this case that that is a dispositive factor in any way.
That's not to say that I'm urging the court to get rid
of the holding and I think it is the correct holding.
But that being said, even if you were,
I don't believe that it changes the outcome of this case.
-: So basically you're saying whichever one we used,
we'd reach the same outcome.
-: Correct.
-: For good or for ill.
-: For for good or for ill as to me, yes.
And I will candidly acknowledge this is not the easiest case
that I've argued before the court.
Still nonetheless, I do believe that the judge aired
I do believe that the defendant ultimately received
effective assistance counsel.
Now, as to the information that's at question here,
I think it's important to look what that information is.
I'll refer to it as the proffered evidence just
for ease of discussion and it comprises of three documents.
It's important to note that each of these were exhibits
so the court can look at them de novo.
You're not bound by any credibility determinations
that the judge may have made as to those documents.
And the documents when read in combination,
which I believe they must be and which defense trial counsel
testified he received the information together,
revealed that it leads to the very first error
that the motion judge made which is what
that information actually was.
And I think that's critical to the analysis, right?
What the information is and what the information isn't.
What it is is that on September 23rd,
which is approximately two weeks before
the defendant's trial, the Commonwealth had a proffer
session with C1 who was in federal custody at the time.
He relayed that the murder was committed,
he got information.
He says that there's an individual I2 who provided
the gun to HH who committed the murder
with a man who was unknown to C1,
which is later described as the man who had been arrested
for the murder.
-: Well, before we go through, just how many layers
of hearsay that is?
-: Correct.
-: And before we recognize that there's also the layer
that it's in a report.
-: Correct.
-: That adds a layer too.
-: Correct.
-: Let's deal with the first prong here.
So there's information that the firearm
is in somebody else's hands.
The motive is different.
-: I disagree with you there.
If you read it carefully and my sister
and the motion judge referred to it as putting the gun
in somebody else's hands.
Yes, the information says that he obtained the gun.
It's silent as to who actually committed the shooting.
It says he brought the gun to the scene
and there was a dispute.
It doesn't actually say who the shooter was.
-: Does that matter?
Does that matter in terms of the test
of ineffective assistance of counsel because
if that were true, wouldn't a defense attorney find
the answer out or at least try to investigate
the answer before trial?
I mean, irrespective of that, right?
Like you get this information that potentially somebody else
could be the person who shot.
And again, there's another point to this where
that there's no indication that this was a joint venture.
So whomever the other person it would be a big deal
to know who actually shot, wouldn't it?
-: So I disagree because the proffered information
itself suggested it was a joint venture.
You're right, the facts and the investigation
at that point by the Commonwealth had not suggested
that it was a joint venture, but the proffered
information suggested it does.
I think at the end of the day,
and this is what trial defense counsel testified too,
he viewed it as more not less evidence
of his client's guilt albeit a different theory.
And I think you have to look at that information
at the time he received it at the eve of trial
and that he viewed it as more not less evidence
of his client's guilt.
And that's what makes this case really different from most.
-: But let me ask, what's the standard though?
It's not subjective, right?
So it's an objective standard?
-: It's not.
It's interesting 'cause I think it depends.
The way that I look at it, there are sort
of three potential avenues of ineffectiveness
for the use of this information.
There's a failure to investigate,
there's a failure to ask for a continuance,
and there's a failure to use this information at trial.
As to a failure to investigate,
I would say the case law is somewhat confusing.
If you look at a case like the Lang case, it is a plurality.
It breaks down different ways that you could view it.
If you look at Justice Hines' concurrence
and Justice Lang's concurrence says the same.
It says you have to look at whether the decision
was reasonable at the time and it's reasonable
if reasonable professional judgment supports
the limitation and investigation.
And the question that you ask is reason choice
whether further investigation was warranted.
And you look at it from council's perspective at the time
that the decision was made, not with hindsight.
-: And counsel says that at the time he made the decision not
to ask for continuance or investigate this.
The reason was that he didn't think
that the other witnesses would be available.
-: He didn't think the other witnesses would be available.
He did say he viewed it as more evidence
of his client's guilt.
He viewed it as inculpatory as opposed
to exculpatory evidence as well.
-: And how does that reasoning work
that it's more inculpatory than exculpatory?
-: Well, I think that reasoning works
if you're asking whether it's a reason
professional judgment, you have to look
at is this evidence truly exculpatory,
which most cases in a more classic sense,
it's not that I'm saying that this
isn't exculpatory evidence.
-: How can it be a reason practiced whatever
the term you use when you don't have all the information.
-: A reasonable professional judgment.
-: So if I'm going half cocked and don't know what's going
on, how is it a reason judgment?
-: So first, I would disagree that that was
the situation here.
Second, I would say if there was evidence to prove that,
then no, it wouldn't be a reason professional judgment.
I would say here what defense counsel was presented
with was evidence that he viewed as more inculpatory
than exculpatory and he went forward.
-: But he never talk to anybody.
How does he know?
-: He didn't.
I would agree with you there.
I think even so then that sort of collapses
into the prejudice prong.
-: Well, let's wait before we get the prejudice.
Just on the obligation to investigate,
I know no one saw the shooting,
but Braxton and Brown say there's one perpetrator.
And all of a sudden in your hands right before trial,
you find out there's going to be evidence
that there might be two.
Don't you have to sort of get up off your seat
and look into that.
So I'd say I disagree with you factually
with one aspect of that and Brown says one person comes,
he lets one person and he leaves.
He's not there at the time of the shooting.
So he can't.
-: I understand neither of them see the shooter,
but the whole theme is one person.
-: The whole theme is there is one person.
-: And that person goes by O.
-: That person goes by O.
I think it's important to the proffer,
the motion judge focuses a lot of the decision especially
where it gets to prejudice on I2 and how I2 is also O,
but there's no information elicited that I2 was there
at the time of the shooting that I2 was the shooter
to the contrary, I2 is pointing the figure at HH
and invariably the defendant.
Now, as to whether you have to investigate it,
this is an interesting question in the abstract
as well, right?
Because at the base of it, all of the evidence
that was elicited in the investigation and then through this
is that the defendant committed the murder.
Now, this evidence is that he committed it
with somebody else, but because it is still
that the defendant committed the murder,
it is not as easy as some of these cases
in which it's a more complete defense,
a mental health defense.
-: It's not your fault the attorney didn't do
any investigation, but I mean, don't you have
to at least find out what's going on here
and make a professional judgment?
-: You could, I mean, we are left with what this
trial counsel testified to you which was that he viewed it
as more inculpatory than exculpatory
and decided to go to trial.
I think playing in this as well if you look
at it at the decision the time was made,
if you look at the timeline of this case,
this is his client had been in custody for almost two years
at the time of this trial, this is not a case
in which defense counsel hadn't done
any pre-trial investigation.
-: Thought it was.
-: No, if you look at specifically the docket,
you'll see that pre-trial investigation was done.
Now, it wasn't done to this proffered information,
but there's a motion for funds for ballistician,
a motion for funds for fingerprint expert,
a motion for funds for telecommunication expert.
There's a motion for query and criminal history
of all potential suspects.
-: But not for an investigator.
-: Attorney Hammerstein doesn't file a motion
for an investigator.
Previous counsel did file a motion for an investigator.
There is no evidence as to what that investigator found
through his investigation.
-: But didn't judge (indistinct) find there
was no investigation?
-: She did.
-: Okay, is that over then?
-: I don't believe it's over especially when you look
at the docket which refutes that on its face.
I think there was an investigation
as to this proffered information.
The question becomes then even if you find
that the first prong wasn't met,
whether that prejudice the defendant.
And again, this is a unique situation and not like most
of the cases that we typically find because it does
have this inculpatory aspect.
-: Inculpatory, so now he's a joint venture in the murder?
-: Correct, but I think it's important to look
at this practically and I understand at first blush,
this is the case that is really uncomfortable
and it seems like there's a huge problem.
-: So let's count.
Tell me if I have this wrong.
The CI tells the police officer that a hearsay declare an I2
gave HH a nine millimeter firearm that HH was planning
to use in a robbery and that the police officer
wrote that down.
And implicit in all that is that I2
is getting this information from another person.
So if you count all those out, generously it's four
layers of hearsay. -: Correct.
-: Not generously, it's five. -: Correct.
I also think too if you look at it in terms
of the defense that was presented.
This is a circumstantial case.
There's no eyewitness who directly placed the defendant
in this apartment.
Ignoring the three to five levels of hearsay,
this would be direct evidence that places the defendant
in the apartment at the time of the robbery.
So it becomes a defense my client didn't do it,
he wasn't there, there's a reasonable doubt based
on the circumstantial nature of the pieces
of evidence that are brought forward
as opposed to there is direct evidence that my client
is in the apartment at the time of the robbery murder.
-: May I ask you question?
Did the victim's girlfriend Braxton testify at trial?
-: She did.
-: Did she identify the defendant as the shooter?
-: She did not.
She identify anybody as the shooter?
-: She was asked to do a photo identification
and she gives a description of the person who
is in the apartment.
She gives a description.
It's somewhat vague, she gives a height.
She says light-skinned, light build.
She gives gray hooded sweatshirt.
She sees him, she hears an argument.
She comes to go look, he points a gun at her,
she runs to the back bedroom.
She's trying to get out and that's when
the shooting takes place in the kitchen.
-: Both witnesses discuss a single shooter, right?
So the person that's there and the person who answers
the door for the drug deal, there's only one person.
-: Correct.
-: Now we have two people.
-: Now we have two people, but it becomes direct
albeit hearsay evidence that defendant
is in the apartment as attacking.
He wasn't there, there's no evidence that puts him there.
I think when you look at it.
Well, I guess this is the prejudice prong,
doesn't that substantially weaken the Commonwealth case?
-: I don't believe so.
As to the standard, the question is.
-: I'm thinking of was it the Kyle's case where
the person was in the bathroom.
-: Correct.
A serious doubt that the verdict would've remained the same.
And I don't think you can say that because contrary
to the motion judge's finding,
if the defendant presented this defense,
the Commonwealth would be able to rebut it.
And the judge cautioned defense council many times,
if you open this boat and door, they're gonna be able
to tell all the reasons why they focused on the defendant.
-: Kinda.
-: Well, no, I don't think kind of because if you.
-: No, I mean that's discretionary, right?
Because there's a burden defense,
everything doesn't come in.
We've told the trial judges that's the case.
So the judge has discretion as to whether
or not all that burden stuff comes in.
-: Absolutely.
-: Burden (indistinct) comes in.
-: Correct.
I think if you look at what evidence would've come
in is especially given the timing of this proffer
that the police investigation focused on the defendant,
the reasons why it focused on the defendant.
They get this proffered information.
There's problems with its reliability,
both because it's multiple levels of hearsay
and the person that's giving the information.
But not only that, it corroborates key pieces
of the defendant's case which is the defendant was involved.
-: So I guess with all that uncertainty,
the answer is investigate, right?
-: Right.
-: So then now we really deal with prejudice.
-: Right.
-: Correct, if you're asking sort of cautionary tale
for defense counsel, should you investigate this
and would my job be easier had defense
counsel investigated this?
Absolutely, yes.
-: You would be in the other chair.
-: I would be in the other chair which I far prefer,
but the question really becomes whether
the defendant was prejudiced and where at the base
of this evidence is that the defendant was still involved,
was still the person that did it,
where is evidence that directly puts him in the apartment
and where it otherwise corroborates key aspects
of the Commonwealth's investigation.
At the end of the day, that's where I believe
the motion judge aired.
And that even if the first prong (indistinct) was met,
the second prong was not.
I see I'm over my time.
I'm happy to answer any other questions,
otherwise I rest on the brief.
-: Do we measure prejudice based on this four layer,
five layer hearsay, or do we measure it on
if he had done an investigation,
trial counsel might have been able to bring in HH,
who would've corroborated that I2 is O and yada yada?
-: And that's a really interesting question.
I think you have to look at it as the layers
of hearsay because it was the defendant's burden
at the motion hearing to provide what an investigation
would have resulted in.
So a good example is the Lang case.
They have a psychiatric evaluation
and they said had a reasonable investigation happened,
here's the evidence that could have been admitted.
There was extensive pretrial litigation in this case.
There was extensive post-conviction.
I mean, there was extensive post-trial litigation
in this case.
There was extensive post-conviction discovery requests
that were made.
And none of this information bore fruit
that there ever would have been any more admissible evidence
other than what was here.
And I'd say where it was the defendant's burden
to provide that evidence at the motion hearing,
and he did not do so then we are stuck asking, okay,
we have this three to five layers of hearsay,
how would that have affected the verdict in this case?
-: I have a quick question. -: Yes.
-: So our job is to look to see whether
or not the trial judge made an error of law
or abusive discretion, is that right?
-: Correct.
-: Are you saying that there's an error of law here
or an abusive discretion?
-: I believe there's an error of law and the error
of law is in this, well, first of all,
I think there's a clearly a erroneous factual finding
as it relates to the proffered information,
which then that clearly erroneous factual finding
is used in the analysis which creates an error of law.
And I believe the error of the law as with the first prong,
well, I'll leave the first prong alone because I don't think
that that's my strongest argument
as to the second prejudicial prong.
I think the error of law is that it doesn't look
at whether this created, and I just wanna get
the precise language.
A serious doubt the verdict would've remained the same
because it applies that erroneous factual finding
to the case itself.
-: But is that an error of law?
-: I think in so far as the prejudice law
is stated wasn't applied correctly,
that would be an error of law.
I think it would be.
-: Okay.
-: Thank you.
-: Attorney Billowitz.
-: Good morning, may I please the court,
Elizabeth Billowitz for the defendant appellee Omay Tavares.
I'd like to start by addressing the argument
that ignoring the proffer evidence was somehow a
reasonable tactical decision.
Trial counsel could not as a matter
of law make an informed tactical decision about
the proffer evidence at this stage,
because without a reasonable investigation,
he didn't have enough information to evaluate his strategic
options and make decisions in the best interests
of his client.
He had a duty to familiarize himself with the evidence,
a duty to conduct an independent investigation.
And here as the motion judge found,
trial counsel violated these duties six ways to Sunday.
-: Couldn't that be a reasonable decision
if there's a time crunch gets this information late
and there was truly a witness unavailable
and the attorney says, I need to go now because
I'll never get this witness.
I mean, so you're talking absolutes
that when they get a proffer it's over,
but I'm not so sure it's an absolute issue
if the attorney said, based upon the circumstances
in front of me given the availability
of my witnesses, et cetera, I need to go to trial.
-: Well, the absolute first thing
that he should have done was to seek a continuance.
-: But what if he saw a continuance
and his best witness was gone?
-: There is absolutely nothing in the record to support that.
And the motion judge we explored that.
-: I'm just asking you about these absolutely trying
to paint a sense of saying if there's no investigation,
therefore it's ineffective.
Because lawyers get crazy proffers all the time, right?
-: I will accept that as a hypothetical.
I'm sure but this proffer put the gun in the hand
of a different individual, it was on its face
visibly, powerfully, exculpatory.
-: What if there was information given
to a defense attorney from the police?
It's burden type information and it says word on the street
is somebody else did it.
What do you do? -: Again, this case could
not be more different.
I would say conscientious defense counsel
would still seek a continuance.
-: And interview the street?
-: Perform whatever investigation is appropriate.
And in this case, the motion judge correctly enumerated
several steps that he should have taken
and considered the trial counsel's explanation
at the Rule 30 hearing that he was concerned
about his witnesses no longer being available
if it were rescheduled.
There wasn't anything specific that was offered there.
-: Those findings by Judge (indistinct) we defer to, correct?
-: Yes, because she presided over the rule 30 hearing.
-: Evidentiary hearing.
-: I'm sorry?
-: She had an evidentiary hearing, she made facts.
-: That's correct.
And she made a point of assessing his credibility
and competence at that hearing.
So at the time that he was making this purported tactical
decision on the literal eve of trial,
he had seen only undated and highly redacted documents.
He didn't know who I2 was.
He didn't know that anyone's nickname was O.
He didn't know the gang associations,
the criminal backgrounds.
And he just was not equipped to consider
the complex implications of all of this
and determine how it could have supported defenses.
Even if he had looked into the proffer evidence,
even if he did some investigation
and found out what we know now,
a strategic decision would've been manifestly unreasonable.
The judge applied the appropriate deference
to a tactical decision.
She considered both the explanations that were offered
at the rule 30 hearing that the witnesses were
ready to testify.
And she also considered what I think
is the common rule central argument now,
that the proffer would've done more harm than good
because it referenced a second man who could
have been Mr. Tavares.
She rejected this argument.
Correctly concluded that the proffer evidence
still was exculpatory.
And this court recently explained in Pope that exculpatory
is not a narrow term connoting alibi
or other complete proof of innocence.
It can be inculpatory in one light
and exculpatory in another.
All it has to do is provide some significant aid
to the defendant's case.
And here the proffer evidence was exculpatory really
in all three ways described in Pope.
It identified a different shooter.
-: What's the it?
When you say it identified a different shooter,
what's the it?
The it is three to five layers of hearsay, right?
-: Right.
So content wise, the proffer says
that I2 provided a specific weapon to HH.
-: I2 choose not in the room telling the out
of court declarant police officer who wrote it
in the report.
CI is in the room saying what I2 said.
I2 must have heard it from somebody else who
is there probably HH and it gets written
into a piece of paper.
So I mean, whether it's severeness substantial likelihood,
you got a great argument on the first prong,
but what's the second prong going to do
for you other than bring the defendant into the room
in a different way that adds (indistinct)
to the final instructions and the closing argument.
-: So what the proffer said was that an unnamed man called
the victim to set up a drug purchase,
but actually was intending a robbery.
And then went to the victim's home along with HH,
who was armed with a Taurus, this weapon.
And I wanna be clear, I think there was some question
about who really had the gun.
The proffer does say that I2 provided the gun to HH,
that HH was armed with the gun and that HH then tried
to return the gun to I2.
So at no point does the proffer evidence ever have
the gun in his hand.
So does the second man have the gun in his hand?
So given the specific facts of this case,
this was profoundly useful to the defense.
And I'd like to explain this what's perhaps a little bit
more precision that I did in my brief.
So there was minimal evidence that Mr. Tavares,
specifically shot the victim, right?
There was no physical evidence, no eyewitness ID,
but there was considerable evidence
that Mr. Tavares was calling the victim
and was possibly near or at the scene.
The jury heard that there was just a single
visitor that night.
So it's not surprising that they inferred
that the person making the calls was the same person
who entered and shot the victim.
Add a second person, that inference no longer holds
and the proffer would've provided.
-: What about the text message though?
-: Afterwards, the yo i got bagged?
-: Yeah.
-: That is arguably a statement that he was arrested.
There was absolutely some consciousness
of guilt in this case.
And again, consistent with possible involvement,
involvement does not mean liable for first degree murder.
So in other words, the proffer evidence would've given
the jury a plausible narrative for Mr. Tavares possibly
being involved, but reasonable doubt as to murder.
I wanna address the hearsay issues
that Justice Lowy asked about.
The judge correctly held that the proffer evidence
these documents would've come in were admissible under
the hearsay exception for third party culprit evidence.
First of all, I don't think it matters
how many layers are the issue.
That exception is generously construed all doubt.
-: Do you ever construed it across like three
or four levels of hearsay?
-: Not that I know of.
-: How will it be there?
-: Again, all doubt should be resolved
in favor of admissibility.
This evidence was undeniably relevant.
Wouldn't tend to prejudice or confuse the jury.
-: I don't know about that one where you have four
levels of hearsay.
-: I don't know that that would've been confusing to a jury.
-: Apparently not third party culprit because
of the lack of a nexus, but as far as burden goes,
I know we've been generous, but I don't know
if we've ever been that generous.
-: Well, and the generosity, the doubts resolved in favor
of admissibility is for the hearsay culprit,
third party culprit hearsay exception.
And the judge identified another basis
that doesn't relate to hearsay at all.
It's not hearsay to introduce the proffer documents
as burden evidence.
And that is a simple balancing test.
If the evidence is relevant to the adequacy
of the police investigation, I don't see how
you could say it's not here.
It's admissible unless it's probative value
is substantially outweighed by the danger of prejudice.
-: You also have the issue that was raised
by Justice Wendlandt's question to Attorney Campbell
that had he maybe pressed the CI motion, right,
and done an investigation that all
of this hearsay might have been direct evidence, right?
That if they had done all of this.
-: Exactly right.
And I will point out HH appeared in open court
on the first day and trial counsel did nothing.
So yes, had he done an adequate investigation,
we wouldn't be even necessarily relying on these documents.
I wanna make sure that I address the joint venture question.
The Commonwealth is contended that even
if trial counsel used the proffer evidence,
the jury inevitably would've convicted Mr. Tavares anyway
under a joint venture theory.
It's important to recognize this case was never tried
as a joint venture.
There's no mention at any point of a second participant.
And this court noted a similar situation
in the (indistinct) case.
Joint venture was not argued or charged.
We don't just swap in a new basis for liability
and assume the result would be the same.
The Commonwealth could have introduced this evidence itself
if it wanted to pursue a joint venture theory.
Even if it were tried as joint venture,
a finding that Mr. Tavares was this unnamed man
who set up the robbery, wouldn't mean that he would
be convicted of first degree murder.
There would have to be proof beyond a reasonable doubt
that he knowingly participated in a murder
and shared HH's intent.
-: I don't want to confuse things,
but there possibly could have been a felony murder issue.
-: I'm sorry?
-: It could have possibly been a felony murder issue.
-: Yes and again, this was not tried as such.
The Commonwealth does point out correctly
that an underlying felony doesn't need to be charged
in order to supply a predicate for felony murder,
but it does need to be supported in the record
and instructed to the jury.
And neither thing was done here.
Robbery was not articulated as a motive in the case
that was tried.
It wasn't mentioned in opening
or closing arguments, wasn't instructed.
The only relevant item in the record was
that the victim was seen with a wad
of cash before the shooter arrived,
put it away somewhere.
And I would just note that the Commonwealth really stretches
this evidence in its brief and says that $500 was seen
in the kitchen and then $500 was found in a jacket
in the defendant's apartment.
The amount was not this precise,
it was just described as a wad of 500 to $800,
later it's a $1,000.
So this is not something that should be relied on.
So the motion judge was correct in concluding
that neither joint venture nor felony murder
obviated prejudice in this case.
Regardless of whether Mr. Tavares was
the second man mentioned, the proffer evidence still
would've been helpful to the defense in casting doubt
on the eyewitnesses testimony, the Commonwealth's theory
of the case and the adequacy of the police investigation.
The Commonwealth said in its brief that
if defense counsel introduced the proffer evidence
to question the adequacy of the police investigation,
the prosecution would've countered
with a devastating rebuttal.
This is an empty threat.
A burden defense could be rebutted by showing
that the police did in fact perform an adequate
investigation or that they had some good reason
for disregarding it.
It doesn't appear that the Commonwealth can show
that the police took any steps to investigate the proffer
because in post-conviction discovery,
the Commonwealth is ordered to disclose that.
And phone records, investigation reports, form 26,
et cetera, et cetera.
And the Commonwealth produced absolutely nothing.
So it's a fair inference.
-: It could also be evidence that didn't come into trial
that points to the defendant's guilt as well, correct?
That didn't come in.
Was there any of that type of evidence in the hearing?
-: No.
And so the Commonwealth did not produce any evidence
at the hearing.
If the police had some good reason
to disregard the proffer evidence.
-: No, I'm not talking about that.
So the other prong of that is they could rebut,
they could say this is why we didn't look
at this other alternative view,
or it could be this is why we focus on the defendant.
This is all the stuff you didn't hear.
-: Correct.
-: Your position is neither of that was
in the post-conviction hearing?
-: That's correct.
If the Commonwealth had that, I don't know why they
would wait until a retrial.
They simply could have introduced that
at the rule 30 hearing.
It doesn't matter. -: The motion judge perhaps
would not have found prejudice.
-: Right, it's not before us because it wasn't
in the hearing.
-: That's correct.
For all of these reasons, we ask the court
to affirm the ruling of the motion judge,
unless this court has any further question.