-: SJC-12180, Commonwealth V Edwin Alemany.
-: Okay.
Attorney Crouch can you hear us?
-: Yes, I can.
-: Great, let's hear from you.
-: Okay.
Good morning, may I please the court?
Andrew Crouch on behalf of Edwin Alemany
who appeals from convictions out
of the Suffolk County Superior Court.
I would like to begin today by addressing the McCoy issue.
As this court knows the motion judge
was not the trial judge
so her brief two-sentence decision
is due no special difference.
This court is in just as good a position to judge
the documentary evidence here.
But I also wanna begin by addressing and clarifying
what the standards are that are at play.
McCoy makes clear that the issue that we raise here
is a serious constitutional one
and then it's addressed through the lens
of structural error analysis.
Now, the Commonwealth in its brief spends a lot of time
focused on ineffective assistance of counsel.
And I think McCoy makes clear
that's not the relevant standard here.
We're not looking at prejudice, we're looking...
We're not trying to frame it as whether or not
the defense or defense counsel's decision
was manifestly reasonable or unreasonable.
Instead, we're actually looking...
The determination is whether or not the defendant objected
to the pursuit of two points.
One, whether the defendant objected to-
-: So, counsel can I interrupt you for a second?
Andrew: Certainly.
-: It seems to me here we have conflicting affidavits, right?
The defendant says," They never told me
"or I objected to the insanity defense."
But appellate counsel spoke to trial counsel
and trial counsel said," Yes we did,
"he knew about it all along."
So, why is this enough to get you past
an evidentiary hearing? -: Sure.
-: Why is the judge below incorrect in saying,
"I'm not gonna believe this self-serving affidavit,
"I've got another affidavit that says yes they did."
-: Sure, and I'm happy to address that.
So the standard here is not that the defendant
has to prove the underlying points of his motion
but just that he has to cast out on the issue.
And I think that due
to the public nature of these proceedings,
we actually have a window, an unusual
and unique insight into how this case developed.
And we know that from the very earliest days,
'cause it's not just the two,
say competing sets of points of view
but we have a lot of other information
that I think comes down to going back to
that two-sentence decision.
It was part that the motion judge rejected Mr. Alemany's
affidavit as self-serving
but also found that there was no corroboration
and I don't think that's supported by the record
and here's the reasons why I think that.
First of all, here that public nature shows us
that from the very earliest days
the attorneys who represent him are giving media interviews
and they're talking from jump
before they've even met with him
that they're gonna pursue a lack
of criminal responsibility defense.
And this corroborates what Mr. Alemany
says in his affidavit which is,
"At the very beginning,
"they're asking me all these questions.
"They haven't seen any of my...
"And objectively, they have not seen
"or even requested any of the medical records
"or psych records in the case."
This is what they're going forward.
In fact, it's not for about a year and a half into the case
until they finally actually do that.
But I think that you don't have to take my-
-: How does that media coverage weigh in terms of whether
or not we believe the attorneys who said that,
"Yes, we did discuss it"
and his self-serving affidavit
that it wasn't discussed or that he objected?
-: Sure, I think that it provides some context
and it demonstrates that they have kind of gone
into this case, from our point of view, with blinders
on saying, "This is the defense we're gonna raise
"and they're not listening to Mr. Alemany otherwise.
So, I think it provides context.
But I don't think you have to take my affidavit
or Mr. Alemany's affidavit.
I think it gets a little simpler than that.
And I would suggest, in the record,
halfway through trial, during a sidebar,
attorney Denner is speaking with a trial judge here
and this is transcript number nine, page 290.
And in that discussion at sidebar,
I think it's revelatory.
I think it explains and corroborates Mr. Alemany's point
and this is what happens.
Mr. Denner tells the court,
"I will tell you that this defendant is convincing to me
"and it's not affecting my defense at all
"but he is convincing to me his inability
"to grasp anything I'm doing, understand anything I'm doing.
"And can't quite understand
"why I'm not attacking everybody viciously
"because everyone is lying."
He then says, "But I'm saying that he's in terms of
"his control here, right in the court response.
"As I can see it, the defendant doesn't grasp
"the legal strategy of it.
"He'd rather have you contest it with the witnesses."
And Mr. Denner responds,
"That's what he would like."
And then the court responds,
"But you know, that's why you're the lawyer."
I would say that McCoy tells us that
that's actually not what the analysis should be here.
Instead, what we have is where Mr. Denner on the record
is saying, "Mr. Alemany is not happy with me.
"He wants me to be contesting all of this.
"He wants me to be cross examining all of the witnesses.
"He wants..."
Everybody is lying.
That's not consistent with in sort of an acceptance
of responsibility or an admission of guilt.
And McCoy makes clear that the attorney
is a mere assistant in these circumstances
that they have to listen to him.
So I'm not saying
that this court- (indistinct)
-: So your evidence is that sidebar on transcript at nine.
What do we do with the difference
between this case and McCoy?
Whereas McCoy was vociferous
and consistent in his
objection to the strategy
of admitting guilt.
Here, other than the sidebar, is there anything
of the same kind as in McCoy?
-: And I certainly respect that McCoy may be
at the outer reaches and may be kind of a gold standard.
And certainly as defense counsel we'd love to see
that sort of thing.
But that's just...
It's not necessarily how these conversations always happen.
They don't always play out in court.
So I think the other evidence that we look at-
-: So let me just alter my question.
We don't have the defendants standing up
vociferously objecting like we had in McCoy.
And we have counsel saying,
"Yeah, we talked to him about this."
-: Right.
And I would suggest this relating back to the sidebar
which I think does illustrate the goings on
in the conversations behind closed doors.
But I think beyond that
we have some additional points that I would make.
And that is, Mr. Alemany in his affidavit says,
"Attorney Denner told me that if I refuse to go forward
"with the lack of criminal responsibility defense,
"he would leave the case.
"He would just abandon the defense."
And Mr. Denner informed me
and I put that in the affidavit.
Yeah, that's correct, I told him that.
Lack of criminal responsibility is the only defense
I'm willing to take.
And along those lines, attorney Hubbard,
who is not in control of the mental health defense,
she's second seat.
But she is the one who meets
with Mr. Alemany on the regular
whereas Mr. Denner only meets with him the first time.
And then in the 22 months until trial only does it before
and after hearings
but Ms. attorney Hubbard is there for those meetings.
And she says to me, and that's in my affidavit
that they acknowledged that they did not tell Mr. Alemany
that raising the defensive
of lack of criminal responsibility
would require an admission that he killed Amy Lord.
And so, there, I think this is corroborating-
-: Counsel, can I interrupt you
on that part? -: Certainly.
Because that's the one that I'm struggling with.
You have a very clear affidavit where the trial
counsel (indistinct) that we were very clear that this was
the defense that we were gonna advance at trial.
You even point to an environment
that trial counsel was so adamant about pursuing them
that was the best defense that could be advanced
on Mr. Alemany's part that he said you would withdraw
if that were not gonna be the defense.
For an experienced lawyer like attorney Denner,
was the trial court judge or the motion judges exposed
to accept the fact that part and parcel to advancing
that defense would not be a discussion.
That you have to allocute to having killed the person.
It's part of the defense
that you're not gonna be able to advance
lack of criminal responsibility without
at the same time saying, "I did it."
-: And I certainly appreciate that as an attorney
who's litigated these types of cases.
But Mr. Alemany in his position where this is novel to him,
no, I don't think it's reasonable
for him to have that understanding
and where his counsel doesn't explain that.
And I would suggest that what we're asking for here today
is not for this court to allow the motion for a new trial,
but to grant a hearing on these back
and forth evidentiary issues.
And I think one of the things
that we'd like to take a look at
is indeed what was the nature
of the conversations that happened here.
And I think the implicit thing in attorney Hubbard statement
is the reason that they didn't tell him that is
'cause they knew he didn't want to do that.
And I think that's something
that can be explored at a hearing.
-: Well, let me ask a more refined question then.
Assume that there is a hearing
and that attorney Denner or the the second chair testifies
that we never talked about the fact
that you have to admit in the trial
the motion judge just doesn't believe that.
-: I mean, this is certainly...
It is very possible that this goes back to the trial court
and this gets resolved in the same way.
But I think that we have raised at least the minimum
through this sidebar, through the (indistinct)
in the affidavits, through...
Because the standard here is not one
that is so high to jump over.
Instead, we just have to raise doubt.
And I think that there is doubt through the circumstances
and all of the media attention through the sidebar,
through the conversations that I've had with both
of these attorneys, that we at least get
to have that- -: Let me ask the counsel.
Why don't we have affidavits from the trial attorneys?
And why is it that we take your affidavit
and not theirs?
-: So the trial attorneys in this case were helpful
to an extent, but as happens often they were not able
to give affidavits beyond this.
And they provided-
-: That's relevant, isn't it?
I mean, that's what the judge was looking at.
That's what we're going to look at.
We're going to say,
"Well, we don't have an affidavit from them
"and that's important."
That's a big point here.
I think that makes a difference.
And looking back at that US Supreme Court case,
the descent in that case went a little too far, I think.
But they did raise a point
that putting on a defense like this, it's hard not to notice
that it includes an admission of guilt.
-: I think that, yes.
And at that point
and what Mr. Alemany says in response to that
is he is rocking back.
And this is seen on the video that is cited
in these news accounts.
He is rocking back and forth at council table
for the majority of the trial
because he says he's trying to calm himself down
because he's so angry.
And attorney Denner he says told him
that the judge would kick him out of court if he spoke up
or if he said anything against
the lack of criminal responsibility defense.
All of this is weighing we would suggest on Mr. Alemany's
mind while he's trying to make a determination as
to whether or not to stand up as perhaps
was done in McCoy.
But I don't think the McCoy decision stands
for the proposition that to expressly assert oneself.
It has to be within the four corners of the walls
of a courtroom.
I think that we can look at the record otherwise
to make a determination as to whether or not
there's evidence, especially here where we're not asking
for the motion to be allowed.
We're simply asking for a hearing on this particular point
for this to come forward, to make a determination as to
whether or not he
expressly made a statement. -: Would you imagine calling
at the hearing by the way?
-: I think at this sort of hearing, we would probably
be looking at, I think attorney Nathan had some
involvement early on that might have insights
as to how the lack of criminal responsibility
defense developed.
I think the two defense attorneys, attorney Denner
and attorneys-
-: The attorneys don't like the affidavits from?
-: Well, the attorneys did not provide affidavits
in this case.
-: So the attorneys who- -: So, yes I think-
-: Were less than helpful with their...
they were helpful
to an extent you said? -: Yes, and-
So you think they'd be more helpful on the stand?
-: I don't know if they'd be more helpful or not
but I think it's something
that in this circumstance where this is a key issue
and the issue at trial and where Mr Alemany
who is the person who is supposed to be in control
of his own defense asserts that,
"I did not want this defense."
That he is somebody even under McCoy, which says
that even if it is the most unreasonable decision
in the world that will lead you straight to the gallows,
it is his decision to make.
I think that there's sufficient evidence here to bring us
and warrant at least an evidentiary inquiry
as to what went on here,
what were the conversations that happened
and what did Mr.Alemany say.
-: I ask you to address the jury question issue.
-: Certainly, certainly.
So in moving to the jury question issue,
as this court knows the crux of the defense at trial
was the defendant's mental health
and impact of his alcohol use related to his capacity
and criminal responsibility.
I was the only live issue at trial
in defense counsel from the beginning through the end
conceded guilt at every phase.
And the Commonwealth itself does acknowledge
that there was was some air here.
But at first I think it's important first to-
-: Let me stop you there because this trial happened in 2015.
And so when you say there was some error there,
weren't the model instructions in 2015
didn't they have exactly the language
that the trial judge used here?
-: I don't believe they did.
And I think the trial judge here
obviously as someone who was very involved in preparing
the future model- -: Right, but have you
looked at those two, 2013-
-: I have looked at the 2013 but also we had the 20...
I believe we had the...
I don't have them
directly in front of me- -: Yeah, they were
amended in 2018
after the trial. -: Correct.
-: But in 2013 I'm pretty sure I looked at them
and they were exactly what the trial judge said here.
-: Okay, I'll have to go back and take a look
but my memory was that it did-
-: So assuming that you're wrong and I'm right
if the judge gave the model jury instructions,
what was the error?
-: So if the judge gave the exact model instruction
from that time, I would agree
that it is not likely that there is an error.
But here my memory in going through this
and I think the Commonwealth to my knowledge
through its brief does not suggest that it tracks the model.
But instead, the brief there 'cause we...
This is the thing that I wanna clarify.
We are looking at subsection three of the model,
we're not looking at subsection two
of the lack of criminal responsibility model.
Now the Commonwealth in its brief spends the majority
of its time discussing subsection two.
And indeed, basically has the same...
Beyond that has committed a similar error
that trial judge did here
by actually misquoting subsection two.
But we're not focused on subsection two.
We're focused on subsection three and the transposition
of the "and" and the "or" in that section.
And so we would suggest that here
this is not a mere slip of the tongue.
Instead these are instructions
that were done in both oral form
and more importantly went into the jury room
to provide the roadmap to guide
the jury's deliberation here.
-: Counsel, what's the prejudice to the defendant
assuming that you're right?
Because the Commonwealth also raises the issue
that by swapping out that word
the instructions increased the burden to the Commonwealth?
So, what's the prejudice to the defendant?
-: Sure, and I would suggest that here
where we had a trial that was 16 days
on 17 indictments with hundreds, dozens of witnesses.
The prejudice comes in confusing the jury
as to the only issue in the case, the only live issue.
And that relates to the intoxication and its interplay.
And our reading of the changing, the transposition
of the "and" and the "or"
and this is influenced a little bit by the Gourlay case
and its suggestions as to the last things that are said
to a jury and how that can be problematic here.
Our problem is the confusing,
the potential to confuse the jury
as to when this intoxication part comes in
and when it does not come in.
And here the evidence wasn't overwhelming
in terms of its volume alone where this was a lack
of criminal responsibility.
For here even if the evidence was heavily inculpatory
the concern here is...
This issue is not that he perpetrated the offenses
and it was overwhelming but his mental health history
and those diagnoses and how the alcohol interplayed.
So I think I understand that a reading of it could be
that it increases that burden, but I also think that
the question is whether it unlocks that question
for the jury's consideration.
Whereas if you looked at it with the "or"
it is a circumstance where it seems
like it is more applicable
where under the "and" standard
I think that we have some trouble with that.
So for us, the end of the day, this comes down to whether
or not the jury would have been confused by this
which is at that point the sole and the key issue
left in the case for their consideration.
If the court has any further questions
I'm happy to address them.
Budd: Okay, looks like we're all set.
-: Thank you.
-: Okay.
Attorney Campbell.
-: Thank you.
Good morning, may I please the court Cailin Campbell
on behalf of the Commonwealth.
Before I start I'd like to acknowledge
the Lord family, Alexandra Cruz
and Kayleigh Ballantyne the victims in this case
as well as John Pappas and Zachary Hillman
who are the trial prosecutors.
We ask you today to affirm the convictions
against the defendant which is the evidence
at trial overwhelmingly proved that in a span of 20 hours
the defendant terrorized the streets
of South Boston leaving one young woman dead
and two others injured.
If the court has no objection
I'll take the arguments in the order my brother did.
The first is to the motion for a new trial on issue.
I think it's important here my brother mentioned
the legal standard repeatedly
but he left out some key words
which is he kept saying it has to cast doubt
on an issue but it's cast doubt supported
by sufficiently credible information.
And here the motion judge looked
at the information that the defendant provided
and deemed that it was not credible.
-: Can I ask you to address the consistent statement
in both his affidavit and council's affidavit on appeal
that there was no discussion with the defendant
as to the admission of the factual killing?
Why isn't that enough to raise a sufficient issue,
a substantial issue that an evidentiary hearing
at the least is required?
-: So I think it's important.
First I think that you cannot ignore that neither the
first seat trial counsel nor the second seat trial
counsel provided an affidavit.
And I think on background standing alone it's supports
the judge in her discretion denying the defendant's motion.
So that's the first.
The second is I think if you look at it
it's the second seat counsel attorney Hubbard
that makes that assertion not the first
seat counsel attorney Denner.
So I think that's important as well.
And if you look at the case law that the lack of
these either the first seat or the second seat
providing an affidavit are critical to the analysis
I believe but not only that if you look at what
the trial counsel did have in front of her
and I'd say the transcript really this assertion comes from-
-: Before you switched to that Ms. Campbell
can you walk me back on that?
'Cause these McCoy issues are a little different
because we've got this conflict
between counsel and the defendant.
So do we still have always required an affidavit
from council in this context
as opposed to appellate counsel because
the defense counsel sort of covering
their own approach here a little bit.
I'm just wondering if we do the exact...
I understand normally we want trial counsel affidavits,
I'm just wondering if this McCoy's situation is different
or have we required affidavits
from trial counsel in these areas as well
-: To answer your question directly
I can't think of a case in which you have...
In which you do treat it differently
because it is raised in the motion for new trial context.
And so that's the rubric and analysis
which I think judge Roche appropriately applied
in looking at the defendant's motion.
But I would say that it is telling right
because a lot of the assertions that are made
in the affidavit trial counsel doesn't even...
It's not as if there's a partial affidavit
from trial council or second seat that says some things
and not others sort of that hybrid model
of affidavit is certainly seen in post-conviction motions.
So I'd say here I'm calling upon the Goudreau case
in cases that cite that the conspicuous absence
of any affidavit is telling in this instance
and I think it supports judge Roche's decision below.
-: Is it 'cause we've written on this too.
I think it's Miranda.
We had a case in which again
we were trying to figure out fighting over
what defense counsel had to decide
and what the defendant had to decide.
And we had a lengthy affidavit
from the trial counsel, right
saying I told them everything.
He was informed.
We don't have that here though, right?
-: We don't have that here and we also don't have...
I don't believe lead counsel making assertions
to the contrary that that didn't occur.
So I think when faced with what judge Roche had
in front of her and given sort of the facts
of the case itself and trial counsel's representations
to justice Gaziano during the trial that
the defendant had problems with truthfulness
and telling the truth
that certainly the decision to discredit the information
that was presented in support of this motion
is entirely supported.
-: What about the- -: What is your
explanation on that?
I'm sorry Justice Kafker.
-: No, I think you're asking the same question go ahead.
(laughing)
-: Well, counsel for the defendant had said,
"I pointed us to the transcript nine."
Can you respond to that?
Doesn't that give a little more oomph to his argument
that he it wasn't discussed with him
that the needs to plead factual guilt?
-: Quite candidly off the top of my head
I can't speak more to the context of that sidebar.
I don't remember it being pointed out particularly
in the defendant's brief or in his motion below.
So it's just not something that is necessarily
in my mind.
I'm happy to provide a 16(l) letter-
-: No, that's okay I can read it myself
but let's just assume that it is as suggested
by appellate counsel
attorney Denner suggesting to the judge,
"My clients wants me to pursue this strategy."
And the judge says, "well, you're the lawyer."
Doesn't that present at least a gating issue
that would require an evidentiary hearing
at that point where attorney Hubbard second seat is saying,
"I never discussed with him,
"it was never discussed with him
"that he would have to do factual guilt."
And then we have Denner on the record discussing
with the trial judge saying,
"Hey, my client wants me to like
"fight it tooth and nail all the way."
Why not?
Why doesn't he get an evidentiary hearing at this point?
Campbell: I think it's important.
I think my answer to that is twofold
not having a specific memory of the sidebar
but the first is, I think it's telling it's
on the ninth day of trial
when trial counsel stood up
in his opening and conceded liability in his opening.
There's never any discussion
in any of the days previous it's not brought up.
-: So I'll grant you it's less than what McCoy did
but isn't it enough to get to a hearing?
-: And I guess assuming hypothetically not remembering
that portion of this transcript, it could be.
I think in the context of this case though it's important.
When you look at the context
of sort of the behavior that the defendant engaged
in during trial there was...
I don't wanna make light of it and call it antics
but there were certain behavioral issues that kept occurring
which I think could place this sidebar bar in context.
And I'm not really sure what happens
in the middle of a lengthy trial
when this is mentioned sort of
at a sidebar incidentally what that gives rise
to the level of...
But sort of as a hypothetical proposition
potentially that could give rise
to having an evidentiary hearing on that issue.
But I would say based on
how it was pled before judge Roche
and the affidavits that were before judge Roach
she certainly did not air or abuse her discretion
in declining to hold one.
Moving to the jury instruction issue-
-: Yeah, am I wrong counsel
that these were the jury instructions
in 2013, the trial happened in 2015 but I thought
that jury instructions in 2013
had the same "and," "or" issue?
-: So I could have sworn that I looked at the 2013
homicide instructions when I was writing the brief.
And that at least as to the portions that are discussed
about in the Commonwealth brief there was this error.
-: Okay, so I can look at the instructions myself
but can you tell me I don't really understand your argument
that this heightened the burden on the Commonwealth.
-: Sure, so if you look at the way
that the jury was instructed, if you look at the model
let's start with the model instruction because I
think it demonstrates why it heightens the burden.
So if you look at the model instruction
and what the Commonwealth has to prove,
it sets up a hierarchy of the way that the Commonwealth
can disprove the defendant's
defensive criminal responsibility.
And it lays out three separate ways
that the Commonwealth could do that
and they only need to do it in one of those ways.
And so the jury was instructed in this is pursuant
to the model.
The first is by proving that the defendant
didn't have a mental defect at all
and that followed the model and was proper.
They're then instructed number two
that if you find that the defendant did suffer
from a mental defect that he nonetheless retained
substantial capacity to appreciate the wrongfulness of
or criminality of his conduct the model says
or to confirm his conduct to the requirements of the law.
So under model of the Commonwealth can disprove
criminal responsibility in one of two ways.
Either showing that he could appreciate the wrongfulness
of the criminality of his conduct or by showing
that he could conform his conduct to the requirement
of the law.
The way that they were instructed was that
the Commonwealth had to prove both avenues
in order to disprove.
-: But isn't that really under McCoy isn't
that what the Commonwealth does have to prove?
It has to prove both.
-: No. -: No.
Okay, so- -: It has-
-: You're saying the Commonwealth can prove
that he retains a substantial capacity to
appreciate the wrongfulness or criminality of his conduct
or to conform his conduct to the requirements of the law?
-: Yes, that's the way that model instruction reads.
And here they were told that
the Commonwealth had to prove both
in order to disprove criminal responsibility in this way.
And the same is true of the next prong
which is number three on the jury is told that,
"If they find that the defendant lacks substantial capacity
"to appreciate the wrongfulness
"or criminality of his conduct
"and to conform his conduct to the requirements of the law."
So that's calling back the prong
that they were just instructed of
that the lack of such capacity was solely a result
of voluntary intoxication by alcohol or other drugs.
-: I think you might have those instructions wrong
you might wanna check that.
But in any event your position is that
taken as a whole, these were three different ways
that the Commonwealth had to prove beyond reasonable doubt
these if not A then B if not B then C-
-: Correct. -: Is that your point?
Okay. -: Correct.
-: In that because there was not an objection
to this instruction which I think is consistent
with the instructions in 2013,
there is no substantial risk or substantial likelihood
of a miscarriage of justice here.
-: Absolutely and especially looking at it and as a whole
the number of times that the jury was instructed
that it was the Commonwealth's burden
to disprove criminal responsibility generally.
-: Can you address the closing argument?
Because that seems actually the opening and the closing
it seems like there was definitely error in both.
Why not reverse on those basis?
-: Certainly, so-
-: No just to put a fine point on it, Forever 21
the parents will never do this with her
while the defendant's off partying
the parents are fretting and waiting
for a call and learning that their daughter is dead.
-: Yeah, so-
-: Why does it have to do with anything other
than atmospherics and pulling an emotion?
-: So my response is to the forever, it's Forever 24.
And as to the Forever 24
her age was relevant because the defendant engaged in it-
-: Right, but I think the point is
that it's forever 24 is- -: Sure.
And certainly it would be better left unsaid.
I think it wasn't objected to which gives some insight as
to the tone and tenor of it mentioned one time
in opening statement and one time in the closing statement.
More than that it has to be viewed
in light of the instructions
to the jury which they were specifically told both openings
and closings were not evidence
and weren't to be considered as a substitute for evidence
on in light of the instructions that sympathy and bias
are to have no part in their deliberation.
And also in light of the overwhelming evidence
of the defendant's guilt which has proved in this case
through neutral forensic evidence
as well as live testimony as well-
-: What is your view on the corrective instruction
to provide the trial judge here on the issue of the emotions
of the parents and their plead to consider
what the parents felt?
-: Certainly, so Mrs. Lord did testify at trial
and I would disagree with your honor that
it was necessarily improper to contrast
what her parents were doing with what
the defendant was doing because the defendant's
indifference to the victim's suffering as this wasn't
an extreme atrocity case was relevant to the analysis.
But in so far as there wasn't objected objection-
-: But just to stop you there
I mean you could show indifference just
by the partying and the spending of the money
you don't have to contrast that with the parents fretting.
-: You may not have to, there was an objection to it
which the judge did give a curative instruction.
I think it's critical that trial counsel
when he heard what the curative instruction was going to be
did not ask for more or indicate that it was not
sufficient to cure the prejudice that he was objecting to.
I think given that
the jury is presumed to follow that in conjunction
with the other instructions that I just mentioned
would be sufficient to cure the potential prejudice.
also considering that the evidence of the case itself.
I'd say for all those reasons it though even if
this court were to find error it was not reversible error.
If the court has no further questions I ask
that you decline to exercise your power under 33E.
This is a case in which the evidence overwhelmingly show
that the defendant murdered Amy Lord.
He did so under the very definition
of deliberate premeditation,
extreme atrocity and cruelty
and while engaged in a number of separate felonies.
There's absolutely no basis
on this record to reduce the verdict in this case.
-: Okay, thank you very much. -: Thank you.
Bailiff: Court all arise.
(indistinct) anything further to do
before the honorable justices
for the Supreme Judicial Court (indistinct) Boston
within Tremont, Commonwealth (indistinct)
is sitting at this court is now adjourned.
(indistinct)
Court is adjourned, thank you.
Please remain standing as the Justices exit.