-: SJC-12565, Commonwealth versus Antwan Gonsalves.
-: Great, Attorney Caddick.
-: May it please the court, Elizabeth Caddick for Antwan--
-: Hold on for one second, we've got an echo
and let's see if we can figure out why that is.
Staff: Something with the wave feed.
-: All set, nope.
Caddick: I still hear it.
-: Hello?
Okay, great, thank you.
Okay.
-: May it please the court, Elizabeth Caddick
for Antwan Gonsalves.
Budd: And we'll just start the clock.
-: All right, for any conviction based on extreme atrocity
and cruelty, of course the facts and the effect
on the victim must be such that it was extremely atrocious
and extremely cruel.
The crime and the death of Tywann Jones
was certainly atrocious and cruel,
but it was not extremely atrocious and cruel.
It was not wicked, brutal, appalling, horrifying
and utterly revolting.
It was a murder that was the equivalent
of second degree murder, but not a murder based
on extreme behavior and suffering that justifies--
-: Counsel, I've been thinking about your argument
and one thing that I wanted to ask you
was framing the argument as you do with regard to,
okay, it's atrocious and cruel but it's not extreme,
does that result in a desensitization do you think?
Is there a desensitization to this kind of conduct
that's been going on in our case law?
-: No, first the law on extreme atrocity and cruelty
as this court explained in Castillo was because
the legislature back when any first degree murder conviction
resulted in death for the defendant
wanted to reserve any murder that resulted in execution
to be either premeditated or extremely atrocious and cruel.
And it certainly wasn't minimizing murder
that was not extremely atrocious and cruel.
But it's an element of the crime of first degree murder
and therefore it has to be proved beyond a reasonable doubt
in order for the conviction to be affirmed.
And so the fact that that is the law,
that it must be utterly revolting,
extremely atrocious and cruel.
And in this case, it was a swift, maybe a one,
maybe a two minute fight that was senseless,
there was no harboring of ill will between the two,
there was no premeditation,
the jury did not convict based on premeditation--
-: So but there were five knife wounds, right?
And any one of which I think or a few could've been fatal,
and the victim was conscious for a degree afterwards.
So understanding that we might not be
looking at it from the victim's perspective,
if it's just anger and it's just a fight,
isn't one knife stab enough?
-: Well, this was what this court has found
in so many other cases where it has actually
under 33E power lowered the first degree murder
to second degree.
It's found relevant
that this was just a spur of the moment fight
that was senseless among people
who didn't even know each other where alcohol was involved
and that was exactly this case.
Mr. Gonsalves had been drinking all night.
Even the Commonwealth's witnesses said
that he had been drinking, he didn't wanna drive later
in the night because of his intoxication.
And it was a swift stabbing.
It looked as if he was punching the victim
and all of the witnesses said it was swift.
-: Now, you know, can we go back to the idea
of whether we focus on the conduct or the victim?
If we had an unconscious victim already and somebody engaged
in extreme conduct, like say dismemberment
or something really egregious,
gutting them or something like that to kill them,
that would if they were conscious be...
Wouldn't that still be...
Would that still be extremely atrocious and cruel,
even though the victim didn't know?
-: Well, according to the law where
the jury had to find one of the Cunneen factors,
it's possible that someone could be convicted
of extreme atrocity and cruelty,
even if the victim didn't suffer
because that would have been one of the Cunneen factors.
So yes, and I suppose if society wanted retribution
against someone whose behavior--
Cypher: Well, retribution or containment.
-: Exactly, but--
Cypher: I'd go with containment.
-: But this court has never said
that any stabbing is extremely atrocious and cruel.
And in--
Kafker: This is a pre Castillo case, right?
-: Yes, it was.
-: So you're working with the cases before Castillo.
Isn't this pretty much in the mainstream of those cases?
-: Well, Castillo was really a correction
of what was initially not only the intent
of the legislature back in 18 I think '54,
but the interpretation of the legislature's intent
in the Devlin case, which this court cited in Castillo,
which was I think 1879 that discussed
and detailed what the extreme atrocity and cruelty would be.
And even in Devlin, it said it always goes to the actions
of the defendant and whether his actions
were extremely atrocious and cruel.
-: We have multiple stab wounds,
did Castillo change our case law
regarding multiple stab wounds?
Caddick: No.
-: What about your client's comment about poked, the brag,
does that show indifference and is that a Cunneen factor?
-: Well, the law says indifferent to the victim's suffering.
So it's not as if--
-: Well, if he says in a boastful manner, "I just poked him."
Doesn't it show he's not exactly feeling sorry
for what he did?
-: First of all, we don't know that he said it
in a boastful manner.
-: All right, then what manner do you think it was said?
And it's the light most favorable
to the Commonwealth, correct?
-: Right, but the fact that the evidence is to be viewed
in the light most favorable to the Commonwealth,
if what you're arguing--
Gaziano: I'm not arguing, I'm asking.
-: No, I'm sorry, if what someone is arguing.
-: You may think it's that but I'm asking.
Please tell me why we should discount
or what weight we should put on the statement about poked?
-: Okay, the fact that it was a murder
and someone would be sentenced to life, to life,
it would be with parole but to life in prison
for the murder, that would account for a comment like that,
but the fact of extreme atrocity and cruelty is
that the behavior has to be extremely atrocious
and cruel, brutal, wicked.
This was a--
-: One of the Cunneen factors is indifference
to the suffering of the victim, correct?
Caddick: I'm sorry, what was the beginning?
-: Yeah, I'm sorry, indifference to the suffering
of the victim is one of the Cunneen factors, correct?
-: Right, but again, it has to be an extreme indifference
because if someone commits a murder,
unless they immediately start sobbing--
-: Where does it say extreme difference?
It's extreme atrocity, cruelty, I get that of course
and the Cunneen lists out factors
but indifference is one of those factors.
I don't remember reading extreme indifference.
-: But I think it goes without saying that it has to be
if what you have is something that goes,
if you don't have premeditation,
something that goes from second degree to first degree
and because if you have someone who kills someone
and just shrugs and walks off, they're indifferent.
But there's nothing else to show that any
of the Cunneen factors that is not first degree murder.
Unless you're only going to say second degree murder
is someone who is immediately remorseful
and pleads for help for the victim.
There still has to be something
that makes this particular murder greater
than a murder as a whole.
And there is nothing, including and again,
the murder was atrocious and cruel
and there's certainly no intent to minimize.
-: What about the notion of overkill?
We have that exceeds that which is necessary to...
You know what I'm talking about.
Here we have independently fatal stab wounds.
Isn't that again under Cunneen a factor, this overkill?
-: I would say no because if the defendant had for example
slit the throat of someone and then continued to stab them,
but if someone is punched in the heat of a fight
is punching someone with a knife in their hands
and certainly--
-: Well, punching is a red herring
because any stab motion is gonna appear to be a punch
to someone who doesn't know someone has...
So when you're saying punching, it minimizes the fact
that they're putting a blade into someone five times.
-: I understand but what I'm getting to is that
if what you're doing is acting in a frenzied manner,
fighting with someone who angered you
and you don't have x-ray vision and know
that you've hit a significant artery or a vein or organ--
-: But these are all in the chest and abdomen in fatal areas,
in critical areas.
It's not like some of the stab wounds were superficial,
they were incised, they were all that stuff.
You have chest and abdomen five stab wounds.
-: Right, if someone was trying,
if someone was actually trying to kill someone
and trying to go for a prominent artery, vein or organ
and the victim is using defensive motions successfully
and in fact they're being stabbed perhaps 12 times
but nothing is being hit, that is I think worse,
I mean, if they obviously eventually kill the person,
than this type of situation where there's no evidence
that the defendant was going for a vital organ.
But still second degree murder includes an intent to kill,
which I don't even know was proved in this case,
but it's still...
So the fact that he may have intended to kill
doesn't defeat the argument that he was not proved guilty
beyond a reasonable doubt of extreme atrocity and cruelty.
And the fact that--
-: A factual question, I'm reading from the motion
for a new trial.
On page, it's 77 in the record,
but it's the defendant and Rosco got back in the car,
they were loud and happy.
Caddick: Loud and?
-: Happy, that's Bethune testified that they were loud
and happy according to the motion judge.
Is that an accurate characterization
of what Bethune testified to?
-: I don't remember her saying happy at all.
I remember her saying she was trying not
to hear what was going on or see what was going on.
-: But if she testifies they were happy,
that's also another factor, right?
-: If they knew that they killed someone, yeah--
-: Well, they knew that they stabbed him five times
and they're happy about it.
That's also a problem for you, right?
-: It could be, it was a small knife too.
I certainly don't remember her saying happy
and I don't remember the Commonwealth mentioning that
in its brief--
-: It's not in the Commonwealth's brief, but I just noticed
that there's a cite to 216 page 82,
maybe the Commonwealth can look at up before they talk.
-: Well, I think that again
if the court is going to say that any stabbing,
clearly a stabbing that results in death
is a stabbing that hit something vital.
So that doesn't defeat the argument.
-: It didn't just hit one thing vital,
it hit five things vital, right?
It hit a whole bunch of different vital organs, right?
-: Right, although...
Stabbing is the second most common form of homicide
in the United States, so it's certainly
and it's gotta be something and again if the first...
Although the ME said that any of the stab wounds
could have resulted in death,
he was still alive after the five stab wounds.
He fell, I mean, he asked for help, he fell
and he tried to get up and fell two more times.
And then there's no evidence
of him being conscious after that.
And the exhibit that the Commonwealth admitted
of the surveillance video from the 7-11 store shows that...
It doesn't show him moving at all
and when the paramedics got there, they started CPR
and continued it as he was being brought away.
So it looks as if he had no vital signs at that point.
So I don't see that his suffering
was extremely atrocious and cruel.
-: But Attorney Caddick, let me just ask.
Is it fair to say that we only have to find,
the jury only has to find one of the factors?
It's not a matter of weighing the whole situation, right?
Caddick: Right, right, right.
-: 'Cause I understand there are some factors that do weigh
in your favor, but they found the five stab wounds...
-: I agree, but for a review by this court,
this court is of course more familiar
with murder as a whole than the jury
and the jurors have probably only known this murder
and so it is probably difficult.
-: Doesn't that go more towards our 33E review
and those cases where we've talked about the people
that come together and they don't know each other
and they have a fight in a bar?
Isn't that what really you're talking about
in this argument?
-: Well, I certainly would--
-: No, I'm not asking you to concede anything,
but this also goes to your 33E argument, correct?
-: Right, it does and there certainly was a 33E argument
so that even if this court were to find all the elements
of extreme atrocity and cruelty, there are cases
where someone has a long history of terrible violence
and they certainly were--
-: Can you help me?
Where does this case line up in those 33E reduction lines?
-: Okay, well, I had listed in the brief
all the times this court had stated cases
that had facts similar to this one.
It was a senseless brawl among strangers
where alcohol was involved.
And certainly, those were stabbings
and stabbings as often as five, I think one was seven,
but also even if you look at Castillo
where it lowered the conviction from first to second degree,
and Castillo had gone to a party afterwards.
I know the Commonwealth had characterized
where Mr. Gonsalves went afterwards
as going to an after party, there was no evidence
that it was joyful or anything.
It appeared to be somber from all the testimony.
And in Castillo, he actually went back to the car
to grab a gun and go and shoot the victim,
and he fled the scene.
-: Isn't there some suggestion that he came back to the car
to get the knife?
-: Well, the best evidence we have from two witnesses
is that he went back to the car after he left.
There's no legitimate evidence that he grabbed
or retrieved something.
I know the Commonwealth spent a lot of time in trying
to justify the behavior of the defense attorney
who of course argued was ineffective
that she was able to get a not guilty
on first degree premeditated murder
because of her skill and claimed that there was evidence
that Mr. Gonsalves retrieved something from the car.
What Rosco said is that he went back to the car
and didn't see him retrieve anything.
And then this Arias witness specifically said
when asked the first five times by the Commonwealth,
did he retrieve anything,
"I didn't see he retrieved anything,
"he just went back to the car."
And then at some point, the DA said when Arias was talking
about something else for two pages said,
"And so he retrieved something from the car."
Arias said yes.
And then she said, "So you saw him retrieve something?"
And then he didn't adopt that.
He went on talking about
what he had been talking about before.
He clearly had English as a second language
and it was the words of the Commonwealth, not Arias
who specifically said he did not retrieve anything.
And also I just wanna also point out that it was presented
in the record that the defense attorney had been suspended
from the practice of law and was being disciplined
for her neglect and malfeasance
in cases involving criminal defendants.
And the day after the brief was filed,
this court affirmed her discipline
and her suspension from the practice of law.
So I ask the court to consider that when it looks
at the ineffective assistance of counsel claims.
-: All set?
Okay, thank you very much.
Okay, Attorney Russell.
-: Thank you.
Good morning and may it please the court,
Assistant District Attorney Lindsay Russell
for Middlesex on behalf of the Commonwealth.
Turning first to the sufficiency of the extreme atrocity
and cruelty evidence here.
Now, this is a murder in which the Commonwealth showed
that the defendant unprovoked inflicted five separate
independently fatal stab wounds
to the victim in his abdomen where his vital organs are
before returning to his friends to boast about how he,
"poked the victim up."
Now, the medical examiner here testified
about the severe internal injuries
and bleeding to the victim.
And there's both testimony and video footage,
which I encourage this court to watch,
showing the victim's conscious suffering
as he stumbles around holding his stomach
attempting to speak before collapsing
onto the floor of a 7-11.
Now, these factors I would suggest represent at least five
of the seven independently sufficient Cunneen factors,
which your honors have touched upon with my sister.
And just to go back to Justice Kafker's question
about the loud and happy testimony.
That actually came out from Trooper Murphy
about what Bethune had said to him
during one of the previous interviews.
So that didn't actually come out on her testimony,
but that was unobjected to testimony
that came out during Trooper Murphy's testimony.
So I would suggest that that does go
toward the indifference here that the defendant showed
when he got back to the car
and was explaining what had just happened.
Now, as you know as your honors pointed out, this case came
before Castillo which somewhat modified the Cunneen factors
but even were we to look at this case through the lens
of Castillo, I would suggest
that the Commonwealth's evidence here still easily suffices
to show extreme atrocity and cruelty.
Not only was the victim's conscious suffering shown,
which again I highly encourage
and I actually filed a motion recently to transmit
that specific exhibit that has that video evidence on there
and I would suggest that the court watch that to see
and it happens for it's probably about a minute
of him stumbling around and then falling onto the ground
before his friends come over.
And he's still moving around with blood coming
and he actually wasn't pronounced dead here until--
Gaziano: Doesn't Castillo warn us against that?
-: Well, I would suggest that yes, Castillo,
which again came out three years later.
-: No, I understand Castillo,
but Castillo interprets our common law,
correct? Russell: Correct.
So it warns us not to be overly swayed by the actions
of if someone hits a vital organ or doesn't
and the person unfortunately suffers,
Castillo told us to stay away from that, correct?
-: That's correct, that we can't divorce these factors
from the defendant's conduct.
-: Right and the focus is on the defendant's conduct.
-: And here, I think other than the conscious suffering,
we certainly have the excessive and disproportionate nature
of the method in which the defendant,
again these five stab wounds, there's been cases
where this court has found less stab wounds.
And actually in Castillo,
where this court found through its 33E review
that it merited lowering that to a second degree.
In that case, there was only a single gunshot wound
to the back of the head.
And again, that was a situation
where the victim was not blameless
and had even possibly returned to his...
Or had at some point armed himself for a fight.
It was a fight between individuals,
whereas here, we don't have any evidence to show
that the victim instigated any sort
of reasonable provocation from the defendant.
It was the defendant and the defendant alone
that instigated the violence and the hostilities here.
And that's just not seen in Castillo or really any
of these other cases where this court has found a reduction
in either from first degree to second degree--
-: It's a larger argument between groups
of people though, correct?
Russell: I'm sorry?
-: I'm sorry, there's a larger argument
between groups of people, correct?
-: Right and in some of these cases, yes.
In some of them, it's still a one on one,
but the victim is still actively pursuing the--
-: Let me ask you, where does this case lie
in our 33E jurisprudence and can you make sense
of when we reduce cases and when we haven't
in these kind of senseless fights?
-: Right, so again, I think Castillo is a good example
where these two sides fighting against each other
and I think that's what the senselessness referred to there.
-: Because at bottom,
most of these cases are senseless, correct?
There are very few cases that make sense.
-: That's very true.
I would suggest in Commonwealth v. King is another case.
It's from 1978, but that was another
not a one-sided situation.
And actually that was not extreme atrocity and cruelty.
It was premeditation but that was under 33E
that was reduced.
Commonwealth v. Jones, 1975 case,
that was from second degree down to manslaughter
where the victim had a straight razor on him
and the defendant said that he believed
that the victim might stab him with a razor.
-: But we've had cases where people are in bars
and they push into
the what are you looking at type situations
and someone ends up dead, we've reduced them
under 33E, correct?
-: We do, that's true, your honor.
However, in this case, we don't have anything on the part
of the victim showing that he instigated
any sort of hostilities.
All we have is that the victim walked up to the car,
asked something about drugs
which obviously highly infuriated the defendant
and Rasco testified that he found it insulting,
funny but insulting.
Whereas in the defendant obviously took huge offense to this
and got out of his vehicle
and not only confronted the victim once on the sidewalk
to have some sort of verbal argument,
but returned to his car and there is evidence of this
from two witnesses, whether there's evidence there
that he retrieved anything or not, he did return to the car
at some point and go back to the sidewalk
for a "second altercation"
and that is when these five stab wounds happened
to the victim.
There's no evidence that either
that the victim was the instigator
or even that the victim threw any punches or was involved
in any sort of fight at all, like the cases you find
where you have reduced based on 33E.
-: There's some undercurrent that this is two drug dealers.
Do we need to buy in to that or how important is that?
It's a fight over turf.
-: Right, I'm not sure how important the motive is here.
It definitely explains something
that would otherwise be completely nonsensical.
However, as you know we didn't need to prove motive,
but I do think it adds some color to the situation
to see but why exactly did this happen
because there was evidence at least that there was some sort
of discussion about drugs.
And even the victim, prior to the victim
approaching the vehicle, the witness, Devon Queen, testified
that he had asked the victim if he could get some weed
from him because he thought that he smelled weed
on the victim and that that is basically what brought
the victim over to the defendant's car.
For what reason, it's really not completely clear,
but I don't think that's necessary here.
And if there are no further questions
on at least the extreme atrocity and cruelty,
I'll just move briefly to what my sister mentioned
about trial counsel being suspended subsequently to this.
I would just overall as a response to that broad claim
really what the defendant is asking this court to do
is indulge in dubious propensity evidence.
What happened after this case to another client of counsel's
in an appellate matter is wholly irrelevant to this case
and whether this client was deprived of effective assistance
with respect to his representation in trial.
And I would just cite the McGuire case for that,
421 Mass. 236.
Counsel's performance here is clearly reflected
in the record and we don't need to go beyond that.
It shows thorough preparation and familiarity
with the issues, including extensive knowledge
of the witness' pretrial statements
and how certain witnesses changed their testimony
or their narrative of what occurred
and omitted certain statements
and then later walked those back.
And she used that in a highly effective manner
I would suggest to impeach multiple witnesses on the stand.
-: Pasco has a long criminal record
and the trial judge doesn't get the record,
so she's not aware.
She makes a discovery request, but she never gets it.
-: Trial counsel, I don't think there's evidence to suggest
that she did not receive the criminal records here.
As you know, the Commonwealth is under an obligation
to provide those as they would've been testifying witnesses.
And I would suggest
that I believe his entire criminal record
would've been attached to the immunity order,
although I do recognize that my sister says it was just
that pending, that charge for which he was on probation.
But I would suggest that the fact that the file
that my sister received from trial counsel
didn't have all of the Commonwealth's discovery
does not mean that trial counsel did not have all
of Commonwealth's discovery at the time.
-: She doesn't use it.
Isn't there some exchange at trial where it comes up
and they ask whether she has the record
and she says she doesn't?
-: She says, when the judge asks, she attempts to impeach
it's one of the victim's friends, I forget which one,
she attempts to impeach him with a previous conviction,
prosecutor objects and the judge asks if it's
a certified conviction and trial counsel says
she doesn't have the certified conviction,
so it doesn't allow it.
But that's not with Rasco.
But I would suggest that she thoroughly impeached Rasco
with evidence directly related to this case
and to his previous statements.
Gaziano: The problem are the pending cases
that she doesn't get into, correct?
-: Well, I'm not sure he had any pending cases
with respect to Rasco.
If you're referring to Bethune,
she did have a pending case at the time.
Gaziano: Right, I'm sorry.
-: Right, and that would obviously
that could possibly go toward bias.
However, in this case, it's unlikely I would suggest
that the trial judge would've even allowed that...
-: The whole curry favor argument, right?
-: Yes, right, because she had consistent statements
with her trial testimony prior to the uncharged incident,
prior to that occurring, she had already decided
to cooperate with the Commonwealth.
And in any event, even if the trial judge
would have allowed trial counsel to cross Bethune
on her pending charge, the Commonwealth at that point
would've been able to admit prior consistent testimony
which would've just bolstered her damning testimony
about--
-: That's not admissible as of right though, correct?
-: It's not admissible as of right.
I'm just saying if the trial judge had allowed
the bias evidence to come in about this pending charge,
we would've been able to show that,
well, she made statements that are consistent
with her trial testimony prior to the incident that arose--
-: You could've asked to do that, you could have, right?
-: Right, I would suggest that it might have been an abuse
of discretion for the trial judge not to allow that,
but correct, we would've requested
and I believe that we would have been allowed to do that
in that circumstance.
-: One minor point, was it error
when Bethune says she spoke to God?
There's no objection to that.
I take it we don't want witnesses changing their testimony
after they speak to God being brought up in court, right?
Was that an error and should that have been...
Should that have been objected to?
-: I really don't see that as an error.
I don't think that that's anything more
than really just a witness saying
that they consulted their conscience
and decided to tell the truth.
Kafker: It's a little different, isn't it?
-: I mean, I suppose she did say she spoke to God
after being locked up in jail for the night,
but just to put that in context of the situation there,
that was on cross examination when counsel was asking
basically why are you changing your mind all the sudden
on all this, on your narrative of what occurred here?
And she says, "When I came out from being locked up
"in a jail cell, I decided, I spoke with God
"and I decided I was going to tell the truth.
"So everything I said before that was a lie."
So even if obviously--
Cypher: So really she was saying she spoke to God,
not that God spoke to her.
-: That's true, she was saying she spoke to God.
And I would suggest that she said it in the context
of where she was also admitting
that she had repeatedly lied to police.
So I don't think that that goes much toward prejudice here
given the context in which she was admitting this.
And this isn't anything,
this was an innocuous solitary reference,
it wasn't repeated by the prosecutor in closing or anything
and it really just has it's nothing like any of the cases
in which this court has found trouble with the religiosity
and prosecutors honing in on that
with respect to certain witnesses.
Kafker: Prosecutor doesn't bring that up
in closing, does he?
-: She doesn't bring that up.
She just says that when she took the grand jury oath is
when she decided to tell the truth.
And I would just obviously every day in this Commonwealth,
witnesses swear to tell the whole truth,
nothing but the truth so help them God.
And this really wasn't much different than that.
And if there are any further questions on any
of the other ineffective assistance claims or anything else,
and if not, then the Commonwealth would rest on its brief.
Budd: Okay, thank you.
Russell: Thank you.