-: SJC-11503
Common wealth three b
under counsel Evans
Mr lyne
-: Good morning, your honors.
Attorney honors, Riordan on behalf of the defendant,
I to fund silver less.
When this case was last, before you,
you ran for a hearing on whether or not
the third party competent defense
was the preferred defense of the defendant.
At a subsequent hearing, the defendant testified
that he told his counsel
that he had committed these homicides
and was not in his right mind at the time.
He said he wanted to pursue a mental health defense.
But every time he brought it up with his attorney,
the attorney said,' no.'
The defendant said he could not change his attorney's mind,
no matter how many times he said he did not want the third
party coverage defense.
When asked by the district attorney,
if he accepted his attorney's decision,
he'd said that he was obligated to follow him.
He had no choice.
fellow counsel also testified.
He testified that he left the decision on the trial strategy
to the defendant himself,
which under McCoy and other cases
is his decision to make,
not the, not the clients.
We also have evidence of a letter that trial counsel sent in
September, 2012.
A matter of
-: You know, I think you gotta work from the trial,
the motion judge's decision you're sort of re-arguing
the motion to us. Aren't you?
I mean the motion judge founder was a joint decision,
right?
-: Yes.
-: So I think you gotta work from the judge's facts
unless you're arguing that fact, unless you're arguing,
these are clearly erroneous fact-findings.
-: I am. Yes.
As I stated, in my brief, the defense,
the defendant testified that it was not his decision.
It was his attorney's decision.
And the trial attorney says he didn't make any decision at
all, that it was the defense decision.
So when the trial judge said it was a joint decision,
just as clearly contradicted by the evidence that was before
the judge.
And we do have this letter from trial counsel
In September 2012,
a matter of days before the then scheduled trial date,
in which he responds to an inquiry from the defendant about
a mental health defense.
The facts that the defendant was writing that letter,
days before the trial, substantiates,
he'd wanted to pursue a mental health defense.
And it negates trial counsel's claim that the defendant had
made a decision some eight months earlier
to pursue a third party coverage defense.
And in this case,
the defense had great vitality.
Trial counsel had records
that showed that within the four months of these homicides,
the defendant had to involuntary mental health commitments
that involve drugs and alcohol.
He had records would show that the defendant had mental
illness since age 15.
-: Before we leave the first part of your argument,
the defense counsel has multiple meetings
with two experts, right two doctors,
defense counsel also has multiple conversations
with the defendant about this, right?
That's in the testimony at the hearing, is that correct?
It would sound like as if this pops up, you know,
unexpectedly, there's been a lot of work done
on whether to go this route or not.
And a lot of back and forth between the defendant and
counsel, correct?
-: Well, not exactly.
The evidence in regards to the trial attorney
consulting and experts
was He did consult Dr. Brown on not on trial strategy,
but on a motion to suppress the defendant's statements.
So not on the, any of the issues we're talking about here,
he did discuss with Dr. Goes Marin
pursuing a criminal responsibility, defense.
-: And he rejected it
And he says he can't support a mental health defect defense,
right?
-: Yes.
-: And, and again, there's, there are a number of meetings.
Both of them testify the defendant and counsel,
they talk about this. It's not just,
this comes up at the last second,
the way you just described it, right.
There's a back and forth described by defense counsel
at a minimum, right.
With the client.
-: I'm sorry
-: Go ahead.
-: I did not mean to imply that this came up at the last
minute. I, I didn't mean that at all.
I was merely saying, that the fact that there was a
discussion about a mental health defense,
so close to the trial is corroborative
of the defendant's claim that he wanted to pursue ,
in mental health defense,
and had not decided to go on another defense.
Mr. Riordan, does your defense good for your argument here?
Depend on the judge's finding, being clearly erroneous
because I'm not sure that it was.
-: well, not necessarily. I think that
even if it was a strategy that was advised
by trial counsel,
then in light of the fact that they third-party culprit
defense had no chance of success
and the were other viable defenses
council's recommendation to pursue this
was manifesting and reasonably
-: well, you say that had no chance,
but so the defense that you would have
liked to have seen would have been,
it's not a criminal responsibility that he would have lacked
the capacity to formulate the intent, right?
-: Yes. Both mental and Cameron and intoxication.
-: Okay.
So, With the third party culprit defense, you've got
the third party culprit and admitting that he did,
and with the diminished capacity defense,
I've never seen it.
It worked to get less than second degree
because he'd given the jury the choice of
not guilty or lacks the capacity to formulate the intent
necessary for murder.
And maybe it's a second degree as opposed to first degree,
but I've never seen it BA you know, walk away,
not guilty with a diminished capacity had to,
I don't know how often that happens,
but why is that manifestly unreasonable
to go with the
third-party culprit,
who admitted to committing the crime as opposed to a
diminished capacity where you have to convince the jury
that it's a not guilty based on lack of capacity
to formulate the necessary intent.
-: So under the McCarver,
I think it's pronounced case .
The lack of mental
mental impairment defense goes to negating mouse,
which would reduce the crime from murder to manslaughter.
Wouldn't be a not guilty.
Well, there's not necessarily a lesser included offense
instruction.
when there's the diminished capacity defense,
that happens all the time.
You may not have the factual backdrop,
and maybe there wasn't one here
from the inflator instruction,
but you've got a diminished capacity
and saying that there's lack capacity
to formulate the necessary and then you're left with a,
a not guilty, or maybe a reduction of second degree.
In other words, every time there's a diminished capacity.
is not a factual predicate for manslaughter was the here.
-: I think it was but if the diminished capacity
was successful, it would negate both murder one
and murder two I believe
-: Exactly!
-: But
we're not postulating that necessarily would have required a
not guilty.
-: Saying after the unmanned flutter
left her include unmanned flutter ,could be a manslaughter.
-: Well, and I think in this case where the question is this
defendant would be arguing as a trial strategy,
that he did the homicides, but under diminished capacity,
I believe that would be sufficient for manslaughter.
-: (mumble) problems by five people describe him as coherent.
He's developed, this alternative scenario with the two and
home invaders.
He's, you know, described not just by police
but by an EMT, or a nurses coherent.
There's no evidence that he's having some kind of
schizophrenia episode here.
Rather, He seems together.
And the amount of alcohol was it 0.0966
it's little over the women here,
but we're not talking about,
some huge amount of alcohol consumed.
We're expense counts as two bad choices here.
And you can't bring both, where they're going pull off
on each other. So we really say
this is not a tactical decision
a reasonable tactical decision.
-: With regard to the blood alcohol of 0.096.
That was at 4:32 in the morning,
the emergency room doctor also gave testimony of retrograde
analysis that said,
you know how much the alcohol goes down per hour.
And so she said that, going back two hours. at 2:30 AM,
his reading would have been 0.146 as far as.
-: And does it, prove he intensity
provides your some testimony that he is somebody who
can handle a lot of alcohol.
Doesn't he have some testimony himself saying that he can
function fine with lots of alcohol on him. So.
-: Well, I wouldn't say it functions fine.
There was evidence that he,
after 10 shots, is when he starts feeling it.
But there was also evidence that when he consumes alcohol
and cocaine, which is the case here,
that it's a far different matter
In many instances in the records were shows that he lost
control and had to be hospitalized.
And he's not that well when he consumes both of
those things.
But I think the bigger picture here is considering the
third-party culprit defense ,relative to the other defends
that I am raising here
under the Commonwealth timeline of the
third of when this homicide was committed,
their postulation is that it was committed sometime after
2:51 AM.
The third party culprit here is the supposed the third-party
culprit here.
Gonzalez,
He was placed coming into his house in Lowell at 2:00 AM.
There are four alibi witnesses put on by the common law
that he was at his house, till at least 3:30 AM.
When two of those witnesses last left and another witness,
his girlfriend Gonzalez his girlfriend testified.
He was there at least until five. When she went to bed.
We also had a cell tower call from Gonzalez's
bouncing off below
power into 2:25 AM
There's no way.
-: Problems with this, the clear problems.
Although I know you sort of try to dig holes in the idea
that he couldn't hire someone to do the killing,
but there's motive. And he says, he's, he did it.
I'm not saying it's a great defense, but you know,
it is a way of staying out of jail.
If he wins, it's a home run,
as opposed to spending a huge amount of time in jail
with this impaired, you know, impairment defense.
I just, and, you know, I thought the earlier motion,
judge justice,
bud does a pretty good job of showing their compare.
The comparative defenses,
both have problems in both have benefits. You know,
they're neither. One's great, but you know,
some like this there's a clear winner here between the two
choices.
-: I would respect when we say that there is,
I just don't see any possibility of the third-party culprit,
defense succeeding in light of the Commonwealth timeline,
that it was committed after 2:51.
And yet Gonzales's plays going into his house at 0306
excuse me, coming out of his house at 3:06 AM.
There's no way he can be in Hudson at 0251 in Lowell at
0306.
And that was it.
-: He can ask his friends to kill him for him. Canny.
-: Yeah. Well, in that, in that regard, you know,
the defense counsel made the argument at trial
as the DA is making now
that he had Gonzalez had friends,
he knew of murderous would commit murder.
There was absolutely no evidence to support that claim by
trial counsel or the Commonwealth does none.
And as far as Gonzalo having any kind of money,
he just got out of prison like a few months before he could
not afford to register or insure his car and his car.
It was foreclosed on because he missed a copy
right about in May.
So he did not have the means or the ability to hire other
people.
-: He may not have he ability to hire professional killer,
but, you know, as you know, Mr Riordan,
we got a lot of cases where your buddies killed people in
this court.
it's, it's not something we haven't seen before,
right?
-: It is, but it has to be grounded on evidence.
I mean, that's just pure speculation.
They may ask a question if just as catheter satisfied,
speaking of grounding and evidence,
one of the concerns of on remand or why,
one of the reasons that the sent back was that it deepened
in the medical records,
some of which were not necessarily before the,
the trial judge or the motion judge was evidence of the
defendant's mental impairment, mental illness,
potential mental illness, or,
or past problems with illuminations and things of that
nature.
It worry you to have succeeded in this motion.
What evidence would you have put,
would you be then putting before a trial judge?
would, do you have an expert who now supports this
better than you
did then the defendant did before?
-: No, we will be pursuing this strictly on the basis of the
records that are before would be admitted at trial.
Thank you.
One of the aspect about the impossibility of the
third-party culprit, defense succeeding
is the blood splatter evidence.
There was a testimony from defense and Commonwealth experts
that there was blood splatter on the defendant's clothes.
And it was a mixture of Bennet's blood in the defendant's
blood.
Yet the defendant told the police,
he came across Bennet's body.
After the fact she had bought even stabbed.
She was in her bedroom on the floor, covered with a blanket.
-: Mr. Riordan.
I understand that point. I didn't quite understand.
So there's blood spatter and there's some difficulty in
determining whether the blood splatter is his versus
Bennet's, right?
He's the majority contributor to that blood splatter is that
right?
-: There was DNA evidence that it was a mixture of both of
their bloods. I think the question you are referring to.
-: Well,
my question is could the splatter be his and the other stuff
not be splatter as opposed to just blood evidence of Bennet?
-: I think that was the evidence.
I believe the evidence was that the splatter, they,
they took a sample of the blood splatter and the result was
a mixture of both of them.
I think the question that came up at trial was there was
like a particular dot. And the question was,
whose blood is that?
And the witness said,
why can't tell you exactly whose blood that particular.is
because it's a mixture of both of their bloods.
-: I guess. And I may not be articulating this very well,
and I apologize,
but so there's flatter blood splatter on him. Clearly.
There's also two people's blot on it.
Could the splatter be from himself
himself and the other blood not be splatter evidence,
as opposed to just,
he's he rubs against her or something like that as he's
moving about.
-: There was no evidence to that effect.
There was none. And, and, and I think,
the real issue here is if indeed
the defendant came across
Bennet's body, after she was on the ground, covered with a,
a blanket, he would not have anyone splattered.
It doesn't matter whether,
whether or not that particular drop was his or Bennet's,
he would not have any blood splatter on him at all.
-: He's cut. He's got cuts, right?
He's in the hospital with he's he's caught up, right.
Well, I wouldn't may have cut.
-: Up himself, but he's cut up, right?
Yes. The emergency room doctor testified it was superficial.
It wasn't like there was no evidence that the cuts to him
were of the kind would produce blood splatter.
Okay.
I didn't understand it so well
also in regards to the third party, corporate defense,
not succeeding, not only chronologically,
just the timing is impossible that Gonzalez could have
possibly committed these homicides in Hudson,
and then be captured going out of his house at 0306
That's just not physically possible. And again,
there's the DNA, the blood splatter evidence
in light of all that,
there was no possibility of success on the third party
culprit defense,
and while the impaired impairments and the intoxication
defenses would be tough to pursue without an expert.
At least they had some possibility.
There was no possibility with you.
Have no further questions, your honor.
Thank you, Mr. Riordan
Jessica Langsam
-: Good morning.
May I please the Court Jessica Langsam
Assistant District Attorney for Middlesex
appearing on behalf of the Commonwealth.
And as my brother just reviewed this court's
opinion in full as if this court remanded this case for
hearing on a very narrow issue.
And that was to determine whether at the time trial defense
counsel forward represented to justice Tuchman before the
trial, in this case in February and March of 2012,
that he would not be presenting a mental health defense.
That's either a lack of criminal responsibility or a mental
impairment, intoxication defense,
whether it was manifestly unreasonable to forego those
defenses. in light of the defendant's mental health history.
And that hearing was held before justice peers.
And after hearing the testimony of both the defendant, and
attorney Ford justice Pierce found that as the court has
already referenced, there were multiple attorney,
client consultations, and that defense counsel forward,
and the defendant made a joint decision to pursue a
third party corporate defense.
Justice Pierce,
further ruled that defense counsel for it had considered
mental health defenses that he consulted with Dr.Rose Marin
is your honors reference, to as a psychiatrist.
Dr. Rose Marin evaluated the defendant.
I believe the defendant was a Bridgewater at that time,
He reviewed the defendant's medical records.
And Dr.Rosemary and concluded after this review.
And he met with trial defense counsel for it
I think he testified for about three hours that he could not
support a mental health defense,
or an intoxication defense
and defense counsel Ford learns this on January 24th of 2012
and consistent with that.
He informed justice Tuchman at those February and March
hearings that he will not be the insanity defense.
He didn't plan to call any experts and he didn't plan
to offer any evidence of the defendant's
mental health or medical records.
So, justice Pierce concluded that we're defense defense
counsel for didn't have an expert,
this strategic choice to not assert a mental health defense
was not manifestly unreasonable.
So this is plainly an informed strategic decision.
And, as has already been discussed, defense counsel. Ford
couldn't go forward with dr. Brown,
He testified at the hearing that he only consulted
with Dr. Brown on the motion to suppress regarding
the voluntariness of the defendant's statements,
which included mental health.
But dr. Brown also was a psychologist and he had not,
nothing that would be an unacceptable background
for the expert, but he never examined the defendant,
Unlike dr. Rosemary Miran.
And defense counsel forward as,
as was elicited at the hearing was an experienced criminal
defense training
This is an individual who had been practicing law
for 43 years. He was on the CPCs murder list for 25 years.
He testified that he had handled many murder cases,
and that based on his experience,
successful presentation of both,
either a lack of criminal responsibility defense,
or a mental impairment defense required expert testimony.
So to kind of shift the focus.
And as the case law makes clear
and I've cited call on mission
this court sided Colon nov edge in the bellezze
opinion.
The manifestly unreasonable test is a search for rationality
and counsel strategic decisions.
And it's not whether counsel could have made alternate
choices.
And that's really what my brother is presenting
to the court here.
So it's not a question of,
was there a better defense wasn't mental health defensive
better defense than a third-party corporate defense,
though arguably,
and for the reasons that are set out in the briefs,
there wasn't because as, as your honor,
justice Khafre has already referenced the third-party
corporate Defense was the only defense that
preserved the defendant's credibility with the jury,
where he had made these statements to first responders from
the time from the individual, the EMT workers,
Officer Parker who was in the ambulance.
And the officer and the trooper
who spoke with him at the hospital,
and then the several interviews that occurred at the Hudson
police station.
And so those statements were coming into evidence because
Dr. Brown had testified at the motion
suppress hearing before
justice Tutman. And although those, she credited
Dr.Brown's testimony that the defendant was suffering
from a mental illness.
She concluded that
the objective evidence is we've just gone over all of these
individuals who observed the defendant shortly after the
crimes were committed at the manner in which he interacted
with all these people that his waiver of the Miranda
warnings and his statements were knowing voluntary,
intelligent.
So those statements were coming in so further as the court
has referenced is even if a mental health and a third-party
culprit defense aren't legally inconsistent,
really practically.
They undercut each other because defense counsel forward
would have to go forward with either a third-party corporate
defense, which is consistent with the statements
that someone else
has done it, or that no, the defendant actually did it,
but he's mentally ill.
And another point that's been made in the brief.
So I'll just go over quickly, is that if defense it,
defense counsel Ford had gone forward,
at least with the lack of criminal responsibility, defense,
or possibly with a mental impairment defense,
then the defendant would have been evaluated by a
Commonwealth expert who liked
Dr. Rosemary Marin and would likely have concluded
the defendant could not be diagnosed
with a mental disease or defect at the time of the crime.
And so that would be a disincentive to pursue that defense.
-: What do you say about Mr. Rurdan's position
that the judges judge Pierce's findings were
clearly erroneous?
-: Your honor, I would dispute that.
And I think that the record is plain,
that justice Pierce's findings were not clearly erroneous.
The defense counsel forward testified that he had numerous
discussions with the defendant regarding the choice of
defense,
but those conversations continued all the way up until the
time of trial.
He also explained that the letter that he sent,
which was dated shortly before the trial date in September
of 2012, was a summary of these consultations ,
and wasn't information that he was providing
sort of on the Eve of trial.
The defendant also testified and that's at the
February 13th, 2019 transcript to page 31,
that he was convinced that a third-party culprit defense was
the best decision.
So plainly it's not unreasonable to forego mental health
defenses when the third-party culprit defense as the
defendant testifies before justice Pierce is his personal
choice.
And if the court has no further questions,
I would rest on my brief.
And I'd ask this court to affirm both the order,
denying the motion for new trial and the judgment for the
murders of Trisha Bennett and Angel Ortiz council
-: Thank you, council.
-: Thank you, your honor.
Thank you, Mr. Gaziano