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SJC-12180, Commonwealth V Edwin Alemany.
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Okay.
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Attorney Crouch can you hear us?
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Yes, I can.
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Great, let's hear from you.
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Okay.
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Good morning, may I please the court?
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Andrew Crouch on behalf of Edwin Alemany
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who appeals from convictions out
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of the Suffolk County Superior Court.
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I would like to begin today by addressing the McCoy issue.
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As this court knows the motion judge
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was not the trial judge
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so her brief two-sentence decision
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is due no special difference.
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This court is in just as good a position to judge
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the documentary evidence here.
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But I also wanna begin by addressing and clarifying
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what the standards are that are at play.
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McCoy makes clear that the issue that we raise here
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is a serious constitutional one
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and then it's addressed through the lens
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of structural error analysis.
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Now, the Commonwealth in its brief spends a lot of time
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focused on ineffective assistance of counsel.
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And I think McCoy makes clear
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that's not the relevant standard here.
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We're not looking at prejudice, we're looking...
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We're not trying to frame it as whether or not
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the defense or defense counsel's decision
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was manifestly reasonable or unreasonable.
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Instead, we're actually looking...
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The determination is whether or not the defendant objected
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to the pursuit of two points.
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One, whether the defendant objected to-
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So, counsel can I interrupt you for a second?
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Certainly.
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It seems to me here we have conflicting affidavits, right?
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The defendant says," They never told me
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"or I objected to the insanity defense."
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But appellate counsel spoke to trial counsel
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and trial counsel said," Yes we did,
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"he knew about it all along."
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So, why is this enough to get you past
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an evidentiary hearing?
Sure.
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Why is the judge below incorrect in saying,
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"I'm not gonna believe this self-serving affidavit,
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"I've got another affidavit that says yes they did."
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Sure, and I'm happy to address that.
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So the standard here is not that the defendant
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has to prove the underlying points of his motion
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but just that he has to cast out on the issue.
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And I think that due
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to the public nature of these proceedings,
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we actually have a window, an unusual
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and unique insight into how this case developed.
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And we know that from the very earliest days,
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'cause it's not just the two,
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say competing sets of points of view
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but we have a lot of other information
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that I think comes down to going back to
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that two-sentence decision.
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It was part that the motion judge rejected Mr. Alemany's
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affidavit as self-serving
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but also found that there was no corroboration
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and I don't think that's supported by the record
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and here's the reasons why I think that.
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First of all, here that public nature shows us
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that from the very earliest days
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the attorneys who represent him are giving media interviews
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and they're talking from jump
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before they've even met with him
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that they're gonna pursue a lack
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of criminal responsibility defense.
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And this corroborates what Mr. Alemany
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says in his affidavit which is,
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"At the very beginning,
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"they're asking me all these questions.
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"They haven't seen any of my...
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"And objectively, they have not seen
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"or even requested any of the medical records
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"or psych records in the case."
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This is what they're going forward.
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In fact, it's not for about a year and a half into the case
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until they finally actually do that.
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But I think that you don't have to take my-
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How does that media coverage weigh in terms of whether
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or not we believe the attorneys who said that,
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"Yes, we did discuss it"
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and his self-serving affidavit
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that it wasn't discussed or that he objected?
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Sure, I think that it provides some context
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and it demonstrates that they have kind of gone
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into this case, from our point of view, with blinders
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on saying, "This is the defense we're gonna raise
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"and they're not listening to Mr. Alemany otherwise.
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So, I think it provides context.
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But I don't think you have to take my affidavit
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or Mr. Alemany's affidavit.
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I think it gets a little simpler than that.
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And I would suggest, in the record,
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halfway through trial, during a sidebar,
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attorney Denner is speaking with a trial judge here
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and this is transcript number nine, page 290.
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And in that discussion at sidebar,
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I think it's revelatory.
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I think it explains and corroborates Mr. Alemany's point
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and this is what happens.
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Mr. Denner tells the court,
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"I will tell you that this defendant is convincing to me
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"and it's not affecting my defense at all
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"but he is convincing to me his inability
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"to grasp anything I'm doing, understand anything I'm doing.
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"And can't quite understand
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"why I'm not attacking everybody viciously
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"because everyone is lying."
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He then says, "But I'm saying that he's in terms of
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"his control here, right in the court response.
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"As I can see it, the defendant doesn't grasp
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"the legal strategy of it.
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"He'd rather have you contest it with the witnesses."
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And Mr. Denner responds,
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"That's what he would like."
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And then the court responds,
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"But you know, that's why you're the lawyer."
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I would say that McCoy tells us that
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that's actually not what the analysis should be here.
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Instead, what we have is where Mr. Denner on the record
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is saying, "Mr. Alemany is not happy with me.
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"He wants me to be contesting all of this.
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"He wants me to be cross examining all of the witnesses.
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"He wants..."
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Everybody is lying.
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That's not consistent with in sort of an acceptance
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of responsibility or an admission of guilt.
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And McCoy makes clear that the attorney
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is a mere assistant in these circumstances
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that they have to listen to him.
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So I'm not saying
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that this court-
(indistinct)
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So your evidence is that sidebar on transcript at nine.
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What do we do with the difference
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between this case and McCoy?
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Whereas McCoy was vociferous
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and consistent in his
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objection to the strategy
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of admitting guilt.
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Here, other than the sidebar, is there anything
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of the same kind as in McCoy?
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And I certainly respect that McCoy may be
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at the outer reaches and may be kind of a gold standard.
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And certainly as defense counsel we'd love to see
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that sort of thing.
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But that's just...
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It's not necessarily how these conversations always happen.
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They don't always play out in court.
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So I think the other evidence that we look at-
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So let me just alter my question.
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We don't have the defendants standing up
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vociferously objecting like we had in McCoy.
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And we have counsel saying,
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"Yeah, we talked to him about this."
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Right.
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And I would suggest this relating back to the sidebar
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which I think does illustrate the goings on
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in the conversations behind closed doors.
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But I think beyond that
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we have some additional points that I would make.
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And that is, Mr. Alemany in his affidavit says,
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"Attorney Denner told me that if I refuse to go forward
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"with the lack of criminal responsibility defense,
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"he would leave the case.
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"He would just abandon the defense."
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And Mr. Denner informed me
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and I put that in the affidavit.
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Yeah, that's correct, I told him that.
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Lack of criminal responsibility is the only defense
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I'm willing to take.
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And along those lines, attorney Hubbard,
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who is not in control of the mental health defense,
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she's second seat.
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But she is the one who meets
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with Mr. Alemany on the regular
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whereas Mr. Denner only meets with him the first time.
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And then in the 22 months until trial only does it before
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and after hearings
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but Ms. attorney Hubbard is there for those meetings.
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And she says to me, and that's in my affidavit
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that they acknowledged that they did not tell Mr. Alemany
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that raising the defensive
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of lack of criminal responsibility
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would require an admission that he killed Amy Lord.
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And so, there, I think this is corroborating-
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Counsel, can I interrupt you
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on that part?
Certainly.
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Because that's the one that I'm struggling with.
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You have a very clear affidavit where the trial
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counsel (indistinct) that we were very clear that this was
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the defense that we were gonna advance at trial.
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You even point to an environment
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that trial counsel was so adamant about pursuing them
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that was the best defense that could be advanced
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on Mr. Alemany's part that he said you would withdraw
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if that were not gonna be the defense.
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For an experienced lawyer like attorney Denner,
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was the trial court judge or the motion judges exposed
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to accept the fact that part and parcel to advancing
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that defense would not be a discussion.
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That you have to allocute to having killed the person.
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It's part of the defense
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that you're not gonna be able to advance
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lack of criminal responsibility without
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at the same time saying, "I did it."
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And I certainly appreciate that as an attorney
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who's litigated these types of cases.
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But Mr. Alemany in his position where this is novel to him,
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no, I don't think it's reasonable
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for him to have that understanding
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and where his counsel doesn't explain that.
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And I would suggest that what we're asking for here today
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is not for this court to allow the motion for a new trial,
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but to grant a hearing on these back
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and forth evidentiary issues.
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And I think one of the things
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that we'd like to take a look at
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is indeed what was the nature
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of the conversations that happened here.
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And I think the implicit thing in attorney Hubbard statement
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is the reason that they didn't tell him that is
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'cause they knew he didn't want to do that.
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And I think that's something
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that can be explored at a hearing.
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Well, let me ask a more refined question then.
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Assume that there is a hearing
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and that attorney Denner or the the second chair testifies
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that we never talked about the fact
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that you have to admit in the trial
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the motion judge just doesn't believe that.
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I mean, this is certainly...
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It is very possible that this goes back to the trial court
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and this gets resolved in the same way.
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But I think that we have raised at least the minimum
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through this sidebar, through the (indistinct)
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in the affidavits, through...
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Because the standard here is not one
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that is so high to jump over.
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Instead, we just have to raise doubt.
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And I think that there is doubt through the circumstances
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and all of the media attention through the sidebar,
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through the conversations that I've had with both
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of these attorneys, that we at least get
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to have that-
Let me ask the counsel.
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Why don't we have affidavits from the trial attorneys?
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And why is it that we take your affidavit
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and not theirs?
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So the trial attorneys in this case were helpful
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to an extent, but as happens often they were not able
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to give affidavits beyond this.
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And they provided-
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That's relevant, isn't it?
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I mean, that's what the judge was looking at.
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That's what we're going to look at.
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We're going to say,
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"Well, we don't have an affidavit from them
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"and that's important."
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00:10:18.410 --> 00:10:19.733
That's a big point here.
267
00:10:20.790 --> 00:10:22.770
I think that makes a difference.
268
00:10:22.770 --> 00:10:25.853
And looking back at that US Supreme Court case,
269
00:10:27.510 --> 00:10:31.030
the descent in that case went a little too far, I think.
270
00:10:31.030 --> 00:10:33.070
But they did raise a point
271
00:10:33.070 --> 00:10:37.240
that putting on a defense like this, it's hard not to notice
272
00:10:37.240 --> 00:10:39.893
that it includes an admission of guilt.
273
00:10:41.340 --> 00:10:42.277
I think that, yes.
274
00:10:42.277 --> 00:10:43.140
And at that point
275
00:10:43.140 --> 00:10:45.340
and what Mr. Alemany says in response to that
276
00:10:45.340 --> 00:10:47.010
is he is rocking back.
277
00:10:47.010 --> 00:10:49.430
And this is seen on the video that is cited
278
00:10:49.430 --> 00:10:50.290
in these news accounts.
279
00:10:50.290 --> 00:10:53.100
He is rocking back and forth at council table
280
00:10:53.100 --> 00:10:54.550
for the majority of the trial
281
00:10:54.550 --> 00:10:56.390
because he says he's trying to calm himself down
282
00:10:56.390 --> 00:10:57.670
because he's so angry.
283
00:10:57.670 --> 00:11:00.810
And attorney Denner he says told him
284
00:11:00.810 --> 00:11:03.710
that the judge would kick him out of court if he spoke up
285
00:11:03.710 --> 00:11:05.900
or if he said anything against
286
00:11:05.900 --> 00:11:08.210
the lack of criminal responsibility defense.
287
00:11:08.210 --> 00:11:11.500
All of this is weighing we would suggest on Mr. Alemany's
288
00:11:11.500 --> 00:11:13.930
mind while he's trying to make a determination as
289
00:11:13.930 --> 00:11:16.840
to whether or not to stand up as perhaps
290
00:11:16.840 --> 00:11:18.050
was done in McCoy.
291
00:11:18.050 --> 00:11:19.750
But I don't think the McCoy decision stands
292
00:11:19.750 --> 00:11:24.050
for the proposition that to expressly assert oneself.
293
00:11:24.050 --> 00:11:26.680
It has to be within the four corners of the walls
294
00:11:26.680 --> 00:11:27.540
of a courtroom.
295
00:11:27.540 --> 00:11:30.080
I think that we can look at the record otherwise
296
00:11:30.080 --> 00:11:32.290
to make a determination as to whether or not
297
00:11:32.290 --> 00:11:34.500
there's evidence, especially here where we're not asking
298
00:11:34.500 --> 00:11:35.620
for the motion to be allowed.
299
00:11:35.620 --> 00:11:38.650
We're simply asking for a hearing on this particular point
300
00:11:38.650 --> 00:11:41.300
for this to come forward, to make a determination as to
301
00:11:41.300 --> 00:11:42.960
whether or not he
302
00:11:42.960 --> 00:11:44.470
expressly made a statement.
Would you imagine calling
303
00:11:44.470 --> 00:11:46.900
at the hearing by the way?
304
00:11:46.900 --> 00:11:49.060
I think at this sort of hearing, we would probably
305
00:11:49.060 --> 00:11:52.990
be looking at, I think attorney Nathan had some
306
00:11:52.990 --> 00:11:55.190
involvement early on that might have insights
307
00:11:55.190 --> 00:11:56.960
as to how the lack of criminal responsibility
308
00:11:56.960 --> 00:11:58.600
defense developed.
309
00:11:58.600 --> 00:12:00.750
I think the two defense attorneys, attorney Denner
310
00:12:00.750 --> 00:12:01.591
and attorneys-
311
00:12:01.591 --> 00:12:03.843
The attorneys don't like the affidavits from?
312
00:12:03.843 --> 00:12:06.010
Well, the attorneys did not provide affidavits
313
00:12:06.010 --> 00:12:06.964
in this case.
314
00:12:06.964 --> 00:12:08.603
So the attorneys who-
So, yes I think-
315
00:12:08.603 --> 00:12:09.950
Were less than helpful with their...
316
00:12:09.950 --> 00:12:10.783
they were helpful
317
00:12:10.783 --> 00:12:11.960
to an extent you said?
Yes, and-
318
00:12:11.960 --> 00:12:14.500
So you think they'd be more helpful on the stand?
319
00:12:14.500 --> 00:12:15.970
I don't know if they'd be more helpful or not
320
00:12:15.970 --> 00:12:17.090
but I think it's something
321
00:12:17.090 --> 00:12:21.280
that in this circumstance where this is a key issue
322
00:12:21.280 --> 00:12:24.220
and the issue at trial and where Mr Alemany
323
00:12:24.220 --> 00:12:26.690
who is the person who is supposed to be in control
324
00:12:26.690 --> 00:12:28.657
of his own defense asserts that,
325
00:12:28.657 --> 00:12:30.070
"I did not want this defense."
326
00:12:30.070 --> 00:12:33.160
That he is somebody even under McCoy, which says
327
00:12:33.160 --> 00:12:35.110
that even if it is the most unreasonable decision
328
00:12:35.110 --> 00:12:37.200
in the world that will lead you straight to the gallows,
329
00:12:37.200 --> 00:12:38.740
it is his decision to make.
330
00:12:38.740 --> 00:12:41.300
I think that there's sufficient evidence here to bring us
331
00:12:41.300 --> 00:12:44.010
and warrant at least an evidentiary inquiry
332
00:12:44.010 --> 00:12:45.420
as to what went on here,
333
00:12:45.420 --> 00:12:47.500
what were the conversations that happened
334
00:12:47.500 --> 00:12:49.063
and what did Mr.Alemany say.
335
00:12:50.686 --> 00:12:52.530
I ask you to address the jury question issue.
336
00:12:52.530 --> 00:12:54.390
Certainly, certainly.
337
00:12:54.390 --> 00:12:57.543
So in moving to the jury question issue,
338
00:12:58.600 --> 00:13:02.860
as this court knows the crux of the defense at trial
339
00:13:02.860 --> 00:13:04.060
was the defendant's mental health
340
00:13:04.060 --> 00:13:07.170
and impact of his alcohol use related to his capacity
341
00:13:07.170 --> 00:13:08.640
and criminal responsibility.
342
00:13:08.640 --> 00:13:10.890
I was the only live issue at trial
343
00:13:10.890 --> 00:13:12.830
in defense counsel from the beginning through the end
344
00:13:12.830 --> 00:13:15.380
conceded guilt at every phase.
345
00:13:15.380 --> 00:13:16.770
And the Commonwealth itself does acknowledge
346
00:13:16.770 --> 00:13:19.440
that there was was some air here.
347
00:13:19.440 --> 00:13:21.690
But at first I think it's important first to-
348
00:13:21.690 --> 00:13:24.770
Let me stop you there because this trial happened in 2015.
349
00:13:24.770 --> 00:13:27.530
And so when you say there was some error there,
350
00:13:27.530 --> 00:13:29.830
weren't the model instructions in 2015
351
00:13:29.830 --> 00:13:31.930
didn't they have exactly the language
352
00:13:31.930 --> 00:13:34.010
that the trial judge used here?
353
00:13:34.010 --> 00:13:35.020
I don't believe they did.
354
00:13:35.020 --> 00:13:37.339
And I think the trial judge here
355
00:13:37.339 --> 00:13:42.230
obviously as someone who was very involved in preparing
356
00:13:42.230 --> 00:13:43.818
the future model-
Right, but have you
357
00:13:43.818 --> 00:13:45.834
looked at those two, 2013-
358
00:13:45.834 --> 00:13:48.710
I have looked at the 2013 but also we had the 20...
359
00:13:48.710 --> 00:13:50.550
I believe we had the...
360
00:13:50.550 --> 00:13:51.383
I don't have them
361
00:13:51.383 --> 00:13:52.216
directly in front of me-
Yeah, they were
362
00:13:52.216 --> 00:13:53.450
amended in 2018
363
00:13:53.450 --> 00:13:54.310
after the trial.
Correct.
364
00:13:54.310 --> 00:13:57.660
But in 2013 I'm pretty sure I looked at them
365
00:13:57.660 --> 00:14:00.630
and they were exactly what the trial judge said here.
366
00:14:00.630 --> 00:14:02.310
Okay, I'll have to go back and take a look
367
00:14:02.310 --> 00:14:03.890
but my memory was that it did-
368
00:14:03.890 --> 00:14:05.940
So assuming that you're wrong and I'm right
369
00:14:05.940 --> 00:14:08.350
if the judge gave the model jury instructions,
370
00:14:08.350 --> 00:14:09.950
what was the error?
371
00:14:09.950 --> 00:14:12.670
So if the judge gave the exact model instruction
372
00:14:12.670 --> 00:14:14.870
from that time, I would agree
373
00:14:14.870 --> 00:14:16.930
that it is not likely that there is an error.
374
00:14:16.930 --> 00:14:19.230
But here my memory in going through this
375
00:14:19.230 --> 00:14:21.930
and I think the Commonwealth to my knowledge
376
00:14:21.930 --> 00:14:25.170
through its brief does not suggest that it tracks the model.
377
00:14:25.170 --> 00:14:27.690
But instead, the brief there 'cause we...
378
00:14:27.690 --> 00:14:29.480
This is the thing that I wanna clarify.
379
00:14:29.480 --> 00:14:32.380
We are looking at subsection three of the model,
380
00:14:32.380 --> 00:14:34.280
we're not looking at subsection two
381
00:14:34.280 --> 00:14:36.060
of the lack of criminal responsibility model.
382
00:14:36.060 --> 00:14:38.550
Now the Commonwealth in its brief spends the majority
383
00:14:38.550 --> 00:14:41.400
of its time discussing subsection two.
384
00:14:41.400 --> 00:14:44.380
And indeed, basically has the same...
385
00:14:44.380 --> 00:14:47.300
Beyond that has committed a similar error
386
00:14:47.300 --> 00:14:49.360
that trial judge did here
387
00:14:49.360 --> 00:14:51.060
by actually misquoting subsection two.
388
00:14:51.060 --> 00:14:53.800
But we're not focused on subsection two.
389
00:14:53.800 --> 00:14:56.840
We're focused on subsection three and the transposition
390
00:14:56.840 --> 00:14:59.670
of the "and" and the "or" in that section.
391
00:14:59.670 --> 00:15:01.840
And so we would suggest that here
392
00:15:01.840 --> 00:15:04.120
this is not a mere slip of the tongue.
393
00:15:04.120 --> 00:15:06.860
Instead these are instructions
394
00:15:06.860 --> 00:15:08.380
that were done in both oral form
395
00:15:08.380 --> 00:15:10.760
and more importantly went into the jury room
396
00:15:10.760 --> 00:15:12.960
to provide the roadmap to guide
397
00:15:12.960 --> 00:15:14.380
the jury's deliberation here.
398
00:15:14.380 --> 00:15:17.110
Counsel, what's the prejudice to the defendant
399
00:15:18.010 --> 00:15:18.870
assuming that you're right?
400
00:15:18.870 --> 00:15:21.060
Because the Commonwealth also raises the issue
401
00:15:21.060 --> 00:15:24.060
that by swapping out that word
402
00:15:24.060 --> 00:15:28.310
the instructions increased the burden to the Commonwealth?
403
00:15:28.310 --> 00:15:31.640
So, what's the prejudice to the defendant?
404
00:15:31.640 --> 00:15:33.140
Sure, and I would suggest that here
405
00:15:33.140 --> 00:15:35.850
where we had a trial that was 16 days
406
00:15:35.850 --> 00:15:39.140
on 17 indictments with hundreds, dozens of witnesses.
407
00:15:39.140 --> 00:15:42.330
The prejudice comes in confusing the jury
408
00:15:42.330 --> 00:15:44.840
as to the only issue in the case, the only live issue.
409
00:15:44.840 --> 00:15:49.390
And that relates to the intoxication and its interplay.
410
00:15:49.390 --> 00:15:52.980
And our reading of the changing, the transposition
411
00:15:52.980 --> 00:15:54.680
of the "and" and the "or"
412
00:15:54.680 --> 00:15:58.897
and this is influenced a little bit by the Gourlay case
413
00:15:58.897 --> 00:16:03.897
and its suggestions as to the last things that are said
414
00:16:03.900 --> 00:16:06.670
to a jury and how that can be problematic here.
415
00:16:06.670 --> 00:16:09.100
Our problem is the confusing,
416
00:16:09.100 --> 00:16:10.840
the potential to confuse the jury
417
00:16:10.840 --> 00:16:13.330
as to when this intoxication part comes in
418
00:16:13.330 --> 00:16:15.120
and when it does not come in.
419
00:16:15.120 --> 00:16:18.170
And here the evidence wasn't overwhelming
420
00:16:18.170 --> 00:16:21.450
in terms of its volume alone where this was a lack
421
00:16:21.450 --> 00:16:23.100
of criminal responsibility.
422
00:16:23.100 --> 00:16:26.240
For here even if the evidence was heavily inculpatory
423
00:16:26.240 --> 00:16:28.500
the concern here is...
424
00:16:28.500 --> 00:16:31.830
This issue is not that he perpetrated the offenses
425
00:16:31.830 --> 00:16:34.000
and it was overwhelming but his mental health history
426
00:16:34.000 --> 00:16:37.250
and those diagnoses and how the alcohol interplayed.
427
00:16:37.250 --> 00:16:39.840
So I think I understand that a reading of it could be
428
00:16:39.840 --> 00:16:42.325
that it increases that burden, but I also think that
429
00:16:42.325 --> 00:16:45.260
the question is whether it unlocks that question
430
00:16:45.260 --> 00:16:47.020
for the jury's consideration.
431
00:16:47.020 --> 00:16:50.990
Whereas if you looked at it with the "or"
432
00:16:50.990 --> 00:16:52.340
it is a circumstance where it seems
433
00:16:52.340 --> 00:16:53.960
like it is more applicable
434
00:16:53.960 --> 00:16:55.750
where under the "and" standard
435
00:16:55.750 --> 00:16:57.170
I think that we have some trouble with that.
436
00:16:57.170 --> 00:17:00.300
So for us, the end of the day, this comes down to whether
437
00:17:00.300 --> 00:17:03.120
or not the jury would have been confused by this
438
00:17:03.120 --> 00:17:06.270
which is at that point the sole and the key issue
439
00:17:06.270 --> 00:17:08.320
left in the case for their consideration.
440
00:17:11.110 --> 00:17:12.890
If the court has any further questions
441
00:17:12.890 --> 00:17:14.190
I'm happy to address them.
442
00:17:15.730 --> 00:17:17.560
Okay, looks like we're all set.
443
00:17:17.560 --> 00:17:18.393
Thank you.
444
00:17:21.100 --> 00:17:22.010
Okay.
445
00:17:22.010 --> 00:17:23.013
Attorney Campbell.
446
00:17:23.900 --> 00:17:24.733
Thank you.
447
00:17:24.733 --> 00:17:26.530
Good morning, may I please the court Cailin Campbell
448
00:17:26.530 --> 00:17:27.950
on behalf of the Commonwealth.
449
00:17:27.950 --> 00:17:29.740
Before I start I'd like to acknowledge
450
00:17:29.740 --> 00:17:31.910
the Lord family, Alexandra Cruz
451
00:17:31.910 --> 00:17:34.800
and Kayleigh Ballantyne the victims in this case
452
00:17:34.800 --> 00:17:36.710
as well as John Pappas and Zachary Hillman
453
00:17:36.710 --> 00:17:38.870
who are the trial prosecutors.
454
00:17:38.870 --> 00:17:40.560
We ask you today to affirm the convictions
455
00:17:40.560 --> 00:17:42.370
against the defendant which is the evidence
456
00:17:42.370 --> 00:17:46.490
at trial overwhelmingly proved that in a span of 20 hours
457
00:17:46.490 --> 00:17:47.930
the defendant terrorized the streets
458
00:17:47.930 --> 00:17:50.460
of South Boston leaving one young woman dead
459
00:17:50.460 --> 00:17:52.380
and two others injured.
460
00:17:52.380 --> 00:17:53.710
If the court has no objection
461
00:17:53.710 --> 00:17:56.740
I'll take the arguments in the order my brother did.
462
00:17:56.740 --> 00:18:01.530
The first is to the motion for a new trial on issue.
463
00:18:01.530 --> 00:18:03.390
I think it's important here my brother mentioned
464
00:18:03.390 --> 00:18:04.790
the legal standard repeatedly
465
00:18:04.790 --> 00:18:06.270
but he left out some key words
466
00:18:06.270 --> 00:18:08.620
which is he kept saying it has to cast doubt
467
00:18:08.620 --> 00:18:11.210
on an issue but it's cast doubt supported
468
00:18:11.210 --> 00:18:14.010
by sufficiently credible information.
469
00:18:14.010 --> 00:18:15.290
And here the motion judge looked
470
00:18:15.290 --> 00:18:17.200
at the information that the defendant provided
471
00:18:17.200 --> 00:18:19.700
and deemed that it was not credible.
472
00:18:19.700 --> 00:18:22.870
Can I ask you to address the consistent statement
473
00:18:22.870 --> 00:18:26.750
in both his affidavit and council's affidavit on appeal
474
00:18:26.750 --> 00:18:31.650
that there was no discussion with the defendant
475
00:18:31.650 --> 00:18:35.993
as to the admission of the factual killing?
476
00:18:38.210 --> 00:18:42.300
Why isn't that enough to raise a sufficient issue,
477
00:18:42.300 --> 00:18:44.620
a substantial issue that an evidentiary hearing
478
00:18:44.620 --> 00:18:45.860
at the least is required?
479
00:18:45.860 --> 00:18:46.825
So I think it's important.
480
00:18:46.825 --> 00:18:50.610
First I think that you cannot ignore that neither the
481
00:18:50.610 --> 00:18:52.900
first seat trial counsel nor the second seat trial
482
00:18:52.900 --> 00:18:54.830
counsel provided an affidavit.
483
00:18:54.830 --> 00:18:58.170
And I think on background standing alone it's supports
484
00:18:58.170 --> 00:19:00.850
the judge in her discretion denying the defendant's motion.
485
00:19:00.850 --> 00:19:02.600
So that's the first.
486
00:19:02.600 --> 00:19:04.730
The second is I think if you look at it
487
00:19:04.730 --> 00:19:08.010
it's the second seat counsel attorney Hubbard
488
00:19:08.010 --> 00:19:09.650
that makes that assertion not the first
489
00:19:09.650 --> 00:19:12.030
seat counsel attorney Denner.
490
00:19:12.030 --> 00:19:14.563
So I think that's important as well.
491
00:19:16.757 --> 00:19:19.930
And if you look at the case law that the lack of
492
00:19:19.930 --> 00:19:22.260
these either the first seat or the second seat
493
00:19:22.260 --> 00:19:25.520
providing an affidavit are critical to the analysis
494
00:19:25.520 --> 00:19:27.950
I believe but not only that if you look at what
495
00:19:27.950 --> 00:19:29.860
the trial counsel did have in front of her
496
00:19:29.860 --> 00:19:33.230
and I'd say the transcript really this assertion comes from-
497
00:19:33.230 --> 00:19:35.330
Before you switched to that Ms. Campbell
498
00:19:36.880 --> 00:19:38.500
can you walk me back on that?
499
00:19:38.500 --> 00:19:41.470
'Cause these McCoy issues are a little different
500
00:19:41.470 --> 00:19:43.150
because we've got this conflict
501
00:19:43.150 --> 00:19:46.550
between counsel and the defendant.
502
00:19:46.550 --> 00:19:50.390
So do we still have always required an affidavit
503
00:19:50.390 --> 00:19:52.460
from council in this context
504
00:19:52.460 --> 00:19:54.740
as opposed to appellate counsel because
505
00:19:57.451 --> 00:19:59.420
the defense counsel sort of covering
506
00:19:59.420 --> 00:20:02.390
their own approach here a little bit.
507
00:20:02.390 --> 00:20:04.650
I'm just wondering if we do the exact...
508
00:20:05.572 --> 00:20:08.170
I understand normally we want trial counsel affidavits,
509
00:20:08.170 --> 00:20:11.550
I'm just wondering if this McCoy's situation is different
510
00:20:11.550 --> 00:20:16.080
or have we required affidavits
511
00:20:16.080 --> 00:20:18.890
from trial counsel in these areas as well
512
00:20:20.440 --> 00:20:21.870
To answer your question directly
513
00:20:21.870 --> 00:20:24.910
I can't think of a case in which you have...
514
00:20:24.910 --> 00:20:26.880
In which you do treat it differently
515
00:20:26.880 --> 00:20:30.050
because it is raised in the motion for new trial context.
516
00:20:30.050 --> 00:20:32.490
And so that's the rubric and analysis
517
00:20:32.490 --> 00:20:36.020
which I think judge Roche appropriately applied
518
00:20:36.020 --> 00:20:38.470
in looking at the defendant's motion.
519
00:20:38.470 --> 00:20:40.420
But I would say that it is telling right
520
00:20:40.420 --> 00:20:42.840
because a lot of the assertions that are made
521
00:20:42.840 --> 00:20:44.750
in the affidavit trial counsel doesn't even...
522
00:20:44.750 --> 00:20:47.330
It's not as if there's a partial affidavit
523
00:20:47.330 --> 00:20:49.610
from trial council or second seat that says some things
524
00:20:49.610 --> 00:20:52.890
and not others sort of that hybrid model
525
00:20:52.890 --> 00:20:56.370
of affidavit is certainly seen in post-conviction motions.
526
00:20:56.370 --> 00:20:59.190
So I'd say here I'm calling upon the Goudreau case
527
00:20:59.190 --> 00:21:01.940
in cases that cite that the conspicuous absence
528
00:21:01.940 --> 00:21:05.300
of any affidavit is telling in this instance
529
00:21:05.300 --> 00:21:08.090
and I think it supports judge Roche's decision below.
530
00:21:08.090 --> 00:21:11.530
Is it 'cause we've written on this too.
531
00:21:11.530 --> 00:21:13.250
I think it's Miranda.
532
00:21:13.250 --> 00:21:16.720
We had a case in which again
533
00:21:16.720 --> 00:21:19.000
we were trying to figure out fighting over
534
00:21:19.000 --> 00:21:20.740
what defense counsel had to decide
535
00:21:20.740 --> 00:21:22.800
and what the defendant had to decide.
536
00:21:22.800 --> 00:21:24.460
And we had a lengthy affidavit
537
00:21:24.460 --> 00:21:26.410
from the trial counsel, right
538
00:21:26.410 --> 00:21:28.063
saying I told them everything.
539
00:21:30.950 --> 00:21:32.640
He was informed.
540
00:21:32.640 --> 00:21:35.280
We don't have that here though, right?
541
00:21:35.280 --> 00:21:37.600
We don't have that here and we also don't have...
542
00:21:37.600 --> 00:21:39.810
I don't believe lead counsel making assertions
543
00:21:39.810 --> 00:21:41.750
to the contrary that that didn't occur.
544
00:21:41.750 --> 00:21:44.880
So I think when faced with what judge Roche had
545
00:21:44.880 --> 00:21:47.910
in front of her and given sort of the facts
546
00:21:47.910 --> 00:21:51.280
of the case itself and trial counsel's representations
547
00:21:51.280 --> 00:21:53.310
to justice Gaziano during the trial that
548
00:21:53.310 --> 00:21:54.980
the defendant had problems with truthfulness
549
00:21:54.980 --> 00:21:55.840
and telling the truth
550
00:21:55.840 --> 00:21:59.100
that certainly the decision to discredit the information
551
00:21:59.100 --> 00:22:00.850
that was presented in support of this motion
552
00:22:00.850 --> 00:22:02.775
is entirely supported.
553
00:22:02.775 --> 00:22:03.968
What about the-
What is your
554
00:22:03.968 --> 00:22:05.370
explanation on that?
555
00:22:05.370 --> 00:22:06.873
I'm sorry Justice Kafker.
556
00:22:06.873 --> 00:22:08.697
No, I think you're asking the same question go ahead.
557
00:22:08.697 --> 00:22:10.810
(laughing)
558
00:22:10.810 --> 00:22:15.407
Well, counsel for the defendant had said,
559
00:22:15.407 --> 00:22:18.420
"I pointed us to the transcript nine."
560
00:22:18.420 --> 00:22:19.960
Can you respond to that?
561
00:22:19.960 --> 00:22:22.930
Doesn't that give a little more oomph to his argument
562
00:22:22.930 --> 00:22:25.920
that he it wasn't discussed with him
563
00:22:27.066 --> 00:22:30.856
that the needs to plead factual guilt?
564
00:22:30.856 --> 00:22:34.240
Quite candidly off the top of my head
565
00:22:34.240 --> 00:22:38.470
I can't speak more to the context of that sidebar.
566
00:22:38.470 --> 00:22:41.150
I don't remember it being pointed out particularly
567
00:22:41.150 --> 00:22:43.700
in the defendant's brief or in his motion below.
568
00:22:43.700 --> 00:22:46.320
So it's just not something that is necessarily
569
00:22:46.320 --> 00:22:47.320
in my mind.
570
00:22:47.320 --> 00:22:49.330
I'm happy to provide a 16(l) letter-
571
00:22:49.330 --> 00:22:51.040
No, that's okay I can read it myself
572
00:22:51.040 --> 00:22:53.560
but let's just assume that it is as suggested
573
00:22:53.560 --> 00:22:56.680
by appellate counsel
574
00:22:58.560 --> 00:23:01.137
attorney Denner suggesting to the judge,
575
00:23:01.137 --> 00:23:05.140
"My clients wants me to pursue this strategy."
576
00:23:05.140 --> 00:23:08.740
And the judge says, "well, you're the lawyer."
577
00:23:08.740 --> 00:23:11.840
Doesn't that present at least a gating issue
578
00:23:11.840 --> 00:23:14.200
that would require an evidentiary hearing
579
00:23:14.200 --> 00:23:19.200
at that point where attorney Hubbard second seat is saying,
580
00:23:19.657 --> 00:23:20.967
"I never discussed with him,
581
00:23:20.967 --> 00:23:22.157
"it was never discussed with him
582
00:23:22.157 --> 00:23:24.010
"that he would have to do factual guilt."
583
00:23:24.010 --> 00:23:26.990
And then we have Denner on the record discussing
584
00:23:26.990 --> 00:23:27.957
with the trial judge saying,
585
00:23:27.957 --> 00:23:29.367
"Hey, my client wants me to like
586
00:23:29.367 --> 00:23:31.577
"fight it tooth and nail all the way."
587
00:23:32.840 --> 00:23:33.673
Why not?
588
00:23:33.673 --> 00:23:35.750
Why doesn't he get an evidentiary hearing at this point?
589
00:23:35.750 --> 00:23:36.960
I think it's important.
590
00:23:36.960 --> 00:23:39.950
I think my answer to that is twofold
591
00:23:39.950 --> 00:23:42.070
not having a specific memory of the sidebar
592
00:23:42.070 --> 00:23:44.190
but the first is, I think it's telling it's
593
00:23:44.190 --> 00:23:45.970
on the ninth day of trial
594
00:23:45.970 --> 00:23:48.200
when trial counsel stood up
595
00:23:48.200 --> 00:23:51.120
in his opening and conceded liability in his opening.
596
00:23:51.120 --> 00:23:52.730
There's never any discussion
597
00:23:52.730 --> 00:23:55.670
in any of the days previous it's not brought up.
598
00:23:55.670 --> 00:23:57.770
So I'll grant you it's less than what McCoy did
599
00:23:57.770 --> 00:24:00.163
but isn't it enough to get to a hearing?
600
00:24:01.000 --> 00:24:04.980
And I guess assuming hypothetically not remembering
601
00:24:04.980 --> 00:24:08.723
that portion of this transcript, it could be.
602
00:24:11.670 --> 00:24:14.570
I think in the context of this case though it's important.
603
00:24:15.490 --> 00:24:16.600
When you look at the context
604
00:24:16.600 --> 00:24:18.610
of sort of the behavior that the defendant engaged
605
00:24:18.610 --> 00:24:20.700
in during trial there was...
606
00:24:20.700 --> 00:24:22.990
I don't wanna make light of it and call it antics
607
00:24:22.990 --> 00:24:27.990
but there were certain behavioral issues that kept occurring
608
00:24:28.500 --> 00:24:31.120
which I think could place this sidebar bar in context.
609
00:24:31.120 --> 00:24:32.330
And I'm not really sure what happens
610
00:24:32.330 --> 00:24:34.140
in the middle of a lengthy trial
611
00:24:35.350 --> 00:24:36.950
when this is mentioned sort of
612
00:24:36.950 --> 00:24:40.320
at a sidebar incidentally what that gives rise
613
00:24:40.320 --> 00:24:42.010
to the level of...
614
00:24:42.010 --> 00:24:44.810
But sort of as a hypothetical proposition
615
00:24:44.810 --> 00:24:46.770
potentially that could give rise
616
00:24:46.770 --> 00:24:50.160
to having an evidentiary hearing on that issue.
617
00:24:50.160 --> 00:24:51.030
But I would say based on
618
00:24:51.030 --> 00:24:52.610
how it was pled before judge Roche
619
00:24:52.610 --> 00:24:54.900
and the affidavits that were before judge Roach
620
00:24:54.900 --> 00:24:58.130
she certainly did not air or abuse her discretion
621
00:24:58.130 --> 00:24:59.623
in declining to hold one.
622
00:25:01.370 --> 00:25:04.033
Moving to the jury instruction issue-
623
00:25:04.033 --> 00:25:06.030
Yeah, am I wrong counsel
624
00:25:06.030 --> 00:25:07.980
that these were the jury instructions
625
00:25:07.980 --> 00:25:12.310
in 2013, the trial happened in 2015 but I thought
626
00:25:12.310 --> 00:25:14.330
that jury instructions in 2013
627
00:25:14.330 --> 00:25:16.163
had the same "and," "or" issue?
628
00:25:17.220 --> 00:25:20.850
So I could have sworn that I looked at the 2013
629
00:25:20.850 --> 00:25:23.100
homicide instructions when I was writing the brief.
630
00:25:23.100 --> 00:25:28.100
And that at least as to the portions that are discussed
631
00:25:28.190 --> 00:25:30.840
about in the Commonwealth brief there was this error.
632
00:25:34.090 --> 00:25:36.160
Okay, so I can look at the instructions myself
633
00:25:36.160 --> 00:25:40.610
but can you tell me I don't really understand your argument
634
00:25:40.610 --> 00:25:43.480
that this heightened the burden on the Commonwealth.
635
00:25:43.480 --> 00:25:47.160
Sure, so if you look at the way
636
00:25:47.160 --> 00:25:49.440
that the jury was instructed, if you look at the model
637
00:25:49.440 --> 00:25:51.560
let's start with the model instruction because I
638
00:25:51.560 --> 00:25:54.660
think it demonstrates why it heightens the burden.
639
00:25:54.660 --> 00:25:57.240
So if you look at the model instruction
640
00:25:57.240 --> 00:25:59.420
and what the Commonwealth has to prove,
641
00:25:59.420 --> 00:26:02.310
it sets up a hierarchy of the way that the Commonwealth
642
00:26:02.310 --> 00:26:04.230
can disprove the defendant's
643
00:26:05.140 --> 00:26:07.670
defensive criminal responsibility.
644
00:26:07.670 --> 00:26:10.160
And it lays out three separate ways
645
00:26:10.160 --> 00:26:11.580
that the Commonwealth could do that
646
00:26:11.580 --> 00:26:14.200
and they only need to do it in one of those ways.
647
00:26:14.200 --> 00:26:16.950
And so the jury was instructed in this is pursuant
648
00:26:16.950 --> 00:26:17.783
to the model.
649
00:26:17.783 --> 00:26:19.040
The first is by proving that the defendant
650
00:26:19.040 --> 00:26:21.270
didn't have a mental defect at all
651
00:26:21.270 --> 00:26:24.020
and that followed the model and was proper.
652
00:26:24.020 --> 00:26:28.730
They're then instructed number two
653
00:26:28.730 --> 00:26:30.650
that if you find that the defendant did suffer
654
00:26:30.650 --> 00:26:33.550
from a mental defect that he nonetheless retained
655
00:26:33.550 --> 00:26:36.330
substantial capacity to appreciate the wrongfulness of
656
00:26:36.330 --> 00:26:39.600
or criminality of his conduct the model says
657
00:26:39.600 --> 00:26:42.600
or to confirm his conduct to the requirements of the law.
658
00:26:42.600 --> 00:26:46.830
So under model of the Commonwealth can disprove
659
00:26:46.830 --> 00:26:51.460
criminal responsibility in one of two ways.
660
00:26:51.460 --> 00:26:55.440
Either showing that he could appreciate the wrongfulness
661
00:26:55.440 --> 00:26:57.350
of the criminality of his conduct or by showing
662
00:26:57.350 --> 00:26:59.870
that he could conform his conduct to the requirement
663
00:26:59.870 --> 00:27:00.703
of the law.
664
00:27:00.703 --> 00:27:01.900
The way that they were instructed was that
665
00:27:01.900 --> 00:27:04.090
the Commonwealth had to prove both avenues
666
00:27:04.090 --> 00:27:05.160
in order to disprove.
667
00:27:05.160 --> 00:27:08.650
But isn't that really under McCoy isn't
668
00:27:08.650 --> 00:27:10.650
that what the Commonwealth does have to prove?
669
00:27:10.650 --> 00:27:12.540
It has to prove both.
670
00:27:12.540 --> 00:27:14.180
No.
No.
671
00:27:14.180 --> 00:27:15.013
Okay, so-
It has-
672
00:27:15.013 --> 00:27:16.890
You're saying the Commonwealth can prove
673
00:27:16.890 --> 00:27:19.070
that he retains a substantial capacity to
674
00:27:19.070 --> 00:27:23.000
appreciate the wrongfulness or criminality of his conduct
675
00:27:23.000 --> 00:27:26.030
or to conform his conduct to the requirements of the law?
676
00:27:26.030 --> 00:27:28.900
Yes, that's the way that model instruction reads.
677
00:27:28.900 --> 00:27:30.061
And here they were told that
678
00:27:30.061 --> 00:27:31.360
the Commonwealth had to prove both
679
00:27:31.360 --> 00:27:34.530
in order to disprove criminal responsibility in this way.
680
00:27:34.530 --> 00:27:37.710
And the same is true of the next prong
681
00:27:37.710 --> 00:27:40.427
which is number three on the jury is told that,
682
00:27:40.427 --> 00:27:43.277
"If they find that the defendant lacks substantial capacity
683
00:27:43.277 --> 00:27:44.547
"to appreciate the wrongfulness
684
00:27:44.547 --> 00:27:45.777
"or criminality of his conduct
685
00:27:45.777 --> 00:27:48.590
"and to conform his conduct to the requirements of the law."
686
00:27:48.590 --> 00:27:50.500
So that's calling back the prong
687
00:27:50.500 --> 00:27:52.150
that they were just instructed of
688
00:27:54.004 --> 00:27:55.810
that the lack of such capacity was solely a result
689
00:27:55.810 --> 00:27:58.653
of voluntary intoxication by alcohol or other drugs.
690
00:28:01.970 --> 00:28:03.710
I think you might have those instructions wrong
691
00:28:03.710 --> 00:28:05.093
you might wanna check that.
692
00:28:06.020 --> 00:28:11.010
But in any event your position is that
693
00:28:11.010 --> 00:28:14.143
taken as a whole, these were three different ways
694
00:28:14.143 --> 00:28:17.140
that the Commonwealth had to prove beyond reasonable doubt
695
00:28:17.140 --> 00:28:22.010
these if not A then B if not B then C-
696
00:28:22.010 --> 00:28:22.870
Correct.
Is that your point?
697
00:28:22.870 --> 00:28:24.400
Okay.
Correct.
698
00:28:24.400 --> 00:28:27.210
In that because there was not an objection
699
00:28:27.210 --> 00:28:29.810
to this instruction which I think is consistent
700
00:28:29.810 --> 00:28:31.883
with the instructions in 2013,
701
00:28:33.260 --> 00:28:37.280
there is no substantial risk or substantial likelihood
702
00:28:37.280 --> 00:28:39.060
of a miscarriage of justice here.
703
00:28:39.060 --> 00:28:41.880
Absolutely and especially looking at it and as a whole
704
00:28:41.880 --> 00:28:45.530
the number of times that the jury was instructed
705
00:28:45.530 --> 00:28:46.810
that it was the Commonwealth's burden
706
00:28:46.810 --> 00:28:49.223
to disprove criminal responsibility generally.
707
00:28:53.170 --> 00:28:54.670
Can you address the closing argument?
708
00:28:54.670 --> 00:28:57.590
Because that seems actually the opening and the closing
709
00:28:57.590 --> 00:29:00.723
it seems like there was definitely error in both.
710
00:29:01.840 --> 00:29:05.550
Why not reverse on those basis?
711
00:29:05.550 --> 00:29:07.790
Certainly, so-
712
00:29:07.790 --> 00:29:11.010
No just to put a fine point on it, Forever 21
713
00:29:11.010 --> 00:29:13.640
the parents will never do this with her
714
00:29:13.640 --> 00:29:15.770
while the defendant's off partying
715
00:29:17.420 --> 00:29:19.770
the parents are fretting and waiting
716
00:29:19.770 --> 00:29:23.100
for a call and learning that their daughter is dead.
717
00:29:23.100 --> 00:29:23.933
Yeah, so-
718
00:29:23.933 --> 00:29:26.360
Why does it have to do with anything other
719
00:29:26.360 --> 00:29:28.300
than atmospherics and pulling an emotion?
720
00:29:28.300 --> 00:29:32.900
So my response is to the forever, it's Forever 24.
721
00:29:32.900 --> 00:29:34.290
And as to the Forever 24
722
00:29:34.290 --> 00:29:37.420
her age was relevant because the defendant engaged in it-
723
00:29:37.420 --> 00:29:38.850
Right, but I think the point is
724
00:29:38.850 --> 00:29:40.913
that it's forever 24 is-
Sure.
725
00:29:41.829 --> 00:29:45.240
And certainly it would be better left unsaid.
726
00:29:45.240 --> 00:29:49.240
I think it wasn't objected to which gives some insight as
727
00:29:49.240 --> 00:29:52.460
to the tone and tenor of it mentioned one time
728
00:29:52.460 --> 00:29:55.823
in opening statement and one time in the closing statement.
729
00:29:56.920 --> 00:29:58.650
More than that it has to be viewed
730
00:29:58.650 --> 00:30:00.470
in light of the instructions
731
00:30:00.470 --> 00:30:03.120
to the jury which they were specifically told both openings
732
00:30:03.120 --> 00:30:05.050
and closings were not evidence
733
00:30:05.050 --> 00:30:07.800
and weren't to be considered as a substitute for evidence
734
00:30:07.800 --> 00:30:11.860
on in light of the instructions that sympathy and bias
735
00:30:11.860 --> 00:30:14.850
are to have no part in their deliberation.
736
00:30:14.850 --> 00:30:16.770
And also in light of the overwhelming evidence
737
00:30:16.770 --> 00:30:19.120
of the defendant's guilt which has proved in this case
738
00:30:19.120 --> 00:30:21.380
through neutral forensic evidence
739
00:30:21.380 --> 00:30:24.168
as well as live testimony as well-
740
00:30:24.168 --> 00:30:26.930
What is your view on the corrective instruction
741
00:30:26.930 --> 00:30:31.040
to provide the trial judge here on the issue of the emotions
742
00:30:31.040 --> 00:30:36.040
of the parents and their plead to consider
743
00:30:36.300 --> 00:30:37.580
what the parents felt?
744
00:30:37.580 --> 00:30:40.650
Certainly, so Mrs. Lord did testify at trial
745
00:30:40.650 --> 00:30:42.560
and I would disagree with your honor that
746
00:30:42.560 --> 00:30:46.040
it was necessarily improper to contrast
747
00:30:46.040 --> 00:30:47.140
what her parents were doing with what
748
00:30:47.140 --> 00:30:48.750
the defendant was doing because the defendant's
749
00:30:48.750 --> 00:30:51.510
indifference to the victim's suffering as this wasn't
750
00:30:51.510 --> 00:30:55.220
an extreme atrocity case was relevant to the analysis.
751
00:30:55.220 --> 00:30:57.660
But in so far as there wasn't objected objection-
752
00:30:57.660 --> 00:30:59.860
But just to stop you there
753
00:30:59.860 --> 00:31:02.970
I mean you could show indifference just
754
00:31:02.970 --> 00:31:04.940
by the partying and the spending of the money
755
00:31:04.940 --> 00:31:08.970
you don't have to contrast that with the parents fretting.
756
00:31:08.970 --> 00:31:11.320
You may not have to, there was an objection to it
757
00:31:11.320 --> 00:31:14.400
which the judge did give a curative instruction.
758
00:31:14.400 --> 00:31:16.730
I think it's critical that trial counsel
759
00:31:16.730 --> 00:31:19.320
when he heard what the curative instruction was going to be
760
00:31:19.320 --> 00:31:22.540
did not ask for more or indicate that it was not
761
00:31:23.460 --> 00:31:26.160
sufficient to cure the prejudice that he was objecting to.
762
00:31:26.160 --> 00:31:27.730
I think given that
763
00:31:27.730 --> 00:31:30.380
the jury is presumed to follow that in conjunction
764
00:31:30.380 --> 00:31:33.590
with the other instructions that I just mentioned
765
00:31:33.590 --> 00:31:35.830
would be sufficient to cure the potential prejudice.
766
00:31:35.830 --> 00:31:40.320
also considering that the evidence of the case itself.
767
00:31:40.320 --> 00:31:43.010
I'd say for all those reasons it though even if
768
00:31:43.010 --> 00:31:45.910
this court were to find error it was not reversible error.
769
00:31:49.360 --> 00:31:52.700
If the court has no further questions I ask
770
00:31:52.700 --> 00:31:57.647
that you decline to exercise your power under 33E.
771
00:31:58.560 --> 00:32:01.970
This is a case in which the evidence overwhelmingly show
772
00:32:01.970 --> 00:32:04.370
that the defendant murdered Amy Lord.
773
00:32:04.370 --> 00:32:08.070
He did so under the very definition
774
00:32:08.070 --> 00:32:09.500
of deliberate premeditation,
775
00:32:09.500 --> 00:32:11.700
extreme atrocity and cruelty
776
00:32:11.700 --> 00:32:14.360
and while engaged in a number of separate felonies.
777
00:32:14.360 --> 00:32:15.680
There's absolutely no basis
778
00:32:15.680 --> 00:32:18.590
on this record to reduce the verdict in this case.
779
00:32:18.590 --> 00:32:21.177
Okay, thank you very much.
Thank you.
780
00:32:21.177 --> 00:32:26.177
Court all arise.
781
00:32:27.351 --> 00:32:30.697
(indistinct) anything further to do
782
00:32:30.697 --> 00:32:32.760
before the honorable justices
783
00:32:33.602 --> 00:32:36.560
for the Supreme Judicial Court (indistinct) Boston
784
00:32:36.560 --> 00:32:39.574
within Tremont, Commonwealth (indistinct)
785
00:32:39.574 --> 00:32:41.537
is sitting at this court is now adjourned.
786
00:32:41.537 --> 00:32:43.644
(indistinct)
787
00:32:43.644 --> 00:32:45.100
Court is adjourned, thank you.
788
00:32:45.100 --> 00:32:48.433
Please remain standing as the Justices exit.