Neil: SJC-12616, Commonwealth B, Jervain Watson.
-: Thank you. Mr. Fishman.
-: Yes, your honor, can you hear me?
Frank: Yes, we can.
-: May it please the court, Neil Fishman
for the defendant-appellant Jervain Watson.
Your honor,
if this were up on appeal
from a wrongful death lawsuit,
it's the defendant's view
that the court could not
sustain the verdict.
That's how strong this case is
from Mr. Watson's perspective.
Viewing the evidence in the light most favorable
to the Commonwealth,
no rational trier of fact could have found
beyond a reasonable doubt
that Mr. Watson participated
in this shooting
with the intent required.
Now, with the court's indulgence,
I'd like to skip over the participation part
and really just rest on my papers on that.
'Cause I-
-: Neil, before you do that,
could you just walk us through the car,
what he did with the car
and the facts in the light most favorable.
I had real trouble following the description
of how he drove that particular car
and what he did and the blocking of somebody.
Can you describe again
in the light most favorable of the Commonwealth,
what it is he's doing?
-: Well, your honor,
what it is he's alleged to be doing.
So assuming those-
-: Yeah, we have testimonies.
It's not alleged, it's testimony, right?
So, again, we have a conviction and testimony.
So we have to accept that, right?
-: Well, your honor,
just to grapple with that for a second,
there is no testimony
that he's behind the wheel of the car.
Now, of course, the Commonwealth says,
"You can fairly infer
that he's behind the wheel of the car
at that time."
-: Can you feel the inferred from the fact that,
his girlfriend rented the
car the day before
from when he visited his fingerprints
that are on the front and back driver's side,
that his cellphone's in the car,
that the keys to his Lexus are in the car,
that three other individuals
that he was with at the bar
in light most favorable to the Commonwealth,
were in the car with him.
Can any of those be used as inferences
that he was in the car?
-: Those are all fair and reasonable inferences
that he's in the car at some point.
But from Mr. Watson's perspective,
they don't prove...
They would not be sufficient
to allow a rational trier of fact,
to conclude beyond a reasonable doubt,
that he was behind the wheel of the car
at the time of the homicide.
But as I started out here today,
I just want to stress, if that is not,
although it is a strong leg,
a strong part of this argument,
the strongest part of Mr. Watson's argument
for the argument that this court
has no option, zero option,
but to
reverse the murder conviction
and throw out the murder indictment.
'Cause there's
pretty much close to zero proof
that Mr. Watson intended
to be part of a plan
to shoot and kill Mr. McCubbin.
-: How about this Toyota silver Rav4
owned by Bonnard sister,
and the Red Lincoln
MKX in the light most favorable to CommonWealth,
doing a reconnaissance
on Havelock Street.
Then minutes later
with the light shining from the Red Lincoln,
Mr. Robinson gets out,
approaches the victim, shoots him nine times
and then being right at the right moment,
the Red Lincoln picks up Mr. Robinson.
And that he angles the car during the killing
so that the shooting is able to take place.
-: Yes, your honor.
So my reply to that is that is a
awfully tendentious interpretation of the video.
The one part I would agree
with the Commonwealth's interpretation
is there's no dispute
that whoever that first shooter is,
we're assuming from our perspective
that it's Mr. Robinson.
Whoever that first shooter is
gets in a car immediately after accomplishing
his shooting.
And he's wheeled away.
There's no dispute about that.
Everything else,
that's an awful lot of conclusions
the Commonwealth is drawing
from what is a few seconds of
pretty grainy video.
I would quarrel with all of that.
However, I would submit
that even if all of that is absolutely true,
absolutely true,
that's still not enough to establish
beyond a reasonable...
Just to get a rational trier of fact
to conclude beyond a reasonable doubt,
that Mr. Watson intended
to kill the victim.
I wanna really draw your honor's attention
to all that's missing from this case.
There's so much missing from this case
as far as from Mr. Watson's concern.
There's no proof that Mr. Watson knew the victim.
There's no proof that he ever wielded a weapon.
There's no proof that he knew Robertson had a gun.
There's no proof that he heard or saw anything
on Robertson's part adventing legal intent.
There's no proof that Mr. Watson did anything
adventing legal intent.
And this is a very important one, your honor.
Unlike the Gonzalez case,
which this court reversed and dismissed
the murder indictment,
unlike the Gonzalez case,
there's no proof that even in this case
Mr. Watson had a motive to kill Mr. McCubbin.
And finally,
I do wanna draw this court's attention
to the way the car was allegedly dumped
by Mr. Watson allegedly.
Speaks more to panic than to the fact
that this was some sort of a planned homicide.
You know, as I mentioned,
Gonzalez is really the Bible here,
and so far as Mr. Watson's concern.
I don't see how this court
can reverse the Miss. Gonzalez's conviction
for murder and dismiss the indictment
and not do the same here.
I wanna remind this court
that in the Gonzalez case,
the defendant
and the alleged defendant driver there,
had quite a motive.
She had sold the car to the victim
who owed her 100 bucks.
And the victim punched out her boyfriend's tooth
and tried to sell it back to her.
Meanwhile, also her activities
and the way she handled the automobile,
allegedly handled the automobile,
more probative
of some sort of involvement in a plan than here.
In that case, she dropped off the four defendants
who were allegedly involved in a shooting,
and she drove off into the three point turn.
Here all we have is the car
that, again, Mr. Watson is allegedly driving-
-: But can we go over Gonzalez for a moment?
-: Yes, your honor.
-: In Gonzalez,
the defendant's participation was limited
to dropping off the co-defendant near the murder.
Here in light most favorable to the Commonwealth,
he's right there as the murder takes place.
In Gonzalez, there's evidence that
her boyfriend and the co-defendants
had used the phone and car
near the time of the murder.
You have not only that here,
but when you look at the four perpetrators
in light most favorable to the Commonwealth
there's something like 550 cell calls
between them in the weeks before.
In Gonzalez says you've
got her association with the co-defendants
was not extensive.
Here, the moments before they were at the club,
and you know about Bonner leaving the scene
with Donna
and where the gun is found in the ballistics.
In Gonzalez,
her car was not present during the murder,
was not used to transport the shooter away.
Here not only is the Red Lincoln
used to take the shooter away,
but the defendant abandons it
and leaves it running with his cell phone
and Lexus in the car.
There's no evidence linking
the defendant, Gonzalez,
to the car at any time
concerning the murder.
And here we have the evidence that I won't repeat,
that I mentioned once.
I mean, how could a case be more distinguished
than Gonzalez from this case?
-: Let me speak to all of that, your honor.
First of all, I'm gonna take it...
First, your honor, mentions
the telephone evidence in Gonzalez.
And this court observed
with regard to the telephone of evidence in Gonzalez,
that it wasn't clear,
at all clear, from the evidence,
whether it was Gonzalez or her boyfriend
who was using that phone.
In other words,
she didn't have exclusive use of that cell phone.
Well, I think we have the precisely
the same circumstances here.
Here we have two lines, right?
We have Mr. Watson's step-mother
had purchased a line.
We'll call that line 6426.
And Mr. Robertson's girlfriend
had purchased a line.
And we'll call that one 8764.
The problem in this case
is by the Commonwealth's own admission,
these guys are switching up their lines.
In fact,
Mr. Watson is conducting his alleged affair
with Emmah Roso
on the 8764 line, Mr. Robertson's line.
The line that the phone calls are going to bond
are the ones right before the homicide and after,
assuming that the timing on this things is correct.
That line is a 6426 line.
However, we don't know
that Mr. Watson had exclusive use of that.
In fact, it looks quite the other way.
So I mentioned the telephone evidence.
Your honor correctly points out
that in Gonzalez,
she drops off the shooters
and then is uninvolved.
Here...
In other words, in Gonzalez,
it's before, before the homicide.
Here it's after the homicide.
And that's why arguably,
it was fair
at least to bring a prosecution
for accessory after the fact.
But if that is also why
it was unfair and wrong for a variety of ways,
spelled out in the appellant brief
to have these two charges brought together.
-: Okay, but you agree there's sufficient evidence
on accessory after the fair?
-: No, I do not, your honor,
because as I point out in the brief,
there are a number of problems with that.
One is we don't know...
It's unclear to me
that when the rational trier fact
could have concluded beyond a reasonable doubt
that assuming Mr. Watson is behind the wheel,
again, this is a big if,
that he knew a felony had just occurred.
There's a number of reasons
why that might not be.
And the other thing is that
there's insufficient proof
that Mr. Watson assisted
Mr. Robertson with the intent
than Mr. Robertson avoid
or escape attention (instinct)....
-: Is it fair to characterize this
in a light most favorable to the government
as an ambush?
-: Oh, this is horrific.
I don't know what words to use.
-: So could you answer that question,
was it an ambush?
-: I don't know what the word means. It is a...
-: I think you do.
I mean,
did they ambush this victim?
And then the question is
if you have a getaway driver
whose present during the ambush
and then picks the assailants up
and drive him away,
doesn't that lead to moraliability?
-: Ah, so first of all...
-: Which is different than Gonzalez.
So that's, I guess, the larger point
I'm trying to make?
-: I'll engage that your honor because,
let's assume I don't know ambush,
I'll call it an ambush,
but your honor used the magic word,
which is present.
And as your honor is well aware
a mere presence at the scene of a crime
for purposes of proving a joint venture is insufficient.
-: And that's exactly what I'm trying to get at.
Because when you have a getaway driver
who never leaves the getaway vehicle, right?
Isn't it always where the government has to prove
that they have knowledge?
So suppose they get out of the car and they said,
"We're gonna beat up this guy."
There's merely no liability.
That's just mere presence
and they do something that's out of the ordinary.
But here we have to look at the
why that's most favorable to government.
So what inferences are properly drawn
when you have this type of hostile relationships,
you have an ambush and then the getaway driver?
What do you think is fair to infer
of the knowledge of the getaway driver?
Knowledge and intent, I guess?
-: If I'm understanding your honor's questions correctly,
it's sort of what I anticipated
this argument might be like,
which is that
you're asking me what would be sufficient
to prove that the getaway driver
is in on the murder.
And I can't tell you what would be sufficient.
But what I can say is
this case it's insufficient.
And again, I told you all that's missing.
And I will just-
-: Well, I think what has been sufficient
is illustrated by Gonzalez, right?
So we have to-
-: Right.
-: And you appropriately argue your case
is close or actually less inculpatory than Gonzalez.
-: That's right, your honor. That's right.
-: (indistinct). Okay.
-: No. Last, last, last.
-: Yeah, whatever.
(Frank laughing) (indistinct)
But I understand your point of the sufficient.
-: Before we-
-: Yes, your honor, go ahead.
-: I'm confused by the accessory after the fact conviction,
when he's...
Can he really be a principle and an accessory
after the fact,
when his role is, as the getaway driver?
I'm just...
Can you walk us through that
and particularly in light of Vic
and the different elements.
Because I get confused by this.
-: Yes, your honor.
It's actually quite interesting.
So as your honor is well aware,
under the Vic analysis,
you just go by the elements.
And there's no argument here
that the elements to accessory act in the fact
are different from the elements
of first-degree murder.
However, there's other case law
from this court
that says under some certain circumstances,
we let that alone
and we actually get to the reality
of what's going on.
And the reality of what's going on
is that the defendant was tried for joint murder
for his alleged role as the getaway driver.
Those words are in the Commonwealth's papers
and certainly in the...
Well, at trial.
And that's precisely the same conduct,
he was tried for accessory after the fact.
What's interesting there
is, as your honor,
as a point of logic, I suppose
but also of case law,
that you cannot be the principal
and the accessory after the fact,
you can't be an accessory to yourself.
Well, Zanetti
kinda punched through all that,
and said,
"With joint venture,
we don't really care about accessory
or principal."
Excuse me. "We don't care about
whether you're the aider or abettor
or you're the principal.
It's all the same.
For the purposes of joint venture,
you are a joint venture,
you are involved in a group plan."
And so here, where there's really no argument
that Mr. Watson is the shooter,
practice conceded he's not.
The accessory after the fact conviction
was unfairly duplicated.
-: But council,
let me go back to what you said for a minute.
You said, you can...
I understand the point about
not being a principal
and an accomplice to your own crime.
But isn't there a distinction between accessory
before the fact
and this kind of accessory
after the fact made in the case law?
I'm not saying this is a proper conviction.
I'm just saying,
I see a distinction in the case law
between after the fact and those before the fact
that's been identified.
So it kind of moves us into a different category.
-: Well, all I would say your honor is...
And I think your honor, may be where I am,
is that with this case,
to try this man with basically the same crime,
the accessory after the fact
and the murder,
the only difference is
the accessory after the fact,
it would be a lesser included crime
because there's no intent to kill
that's required for a conviction
of accessory after the fact.
But with regard to joint venture murder,
so long as... Yeah.
-: No. Because I guess what you're trying to...
What you're saying also
is that with joint venture,
one of the things we look to identify a joint venture,
is whether there's assistance afterwards.
Sometimes that factors in to the whole calculus
of assessing a joint venture, is that right?
-: Absolutely, your honor. And not only that,
that was the CommonWealth's theory
of the case against my client,
that he was the getaway driver.
-: But really
in this instance looking at evidence
that's supporting two different kinds of crimes,
but the elements are different.
So I understand your argument, I think
and I see the trouble in the issue.
I'm not sure how it resolves legally.
But it's...
Would you say there's any distinction
in how the jury was instructed
in terms of the evidence
and what would count as a piece of evidence
that would go to the joint venture
after the shooting
versus evidence that would go to accessory
after the fact?
-: Yes. So in the case law,
it says, "When you have a situation like this,
the jury should be instructed
that the accessory after the fact conviction
must rest on separate and distinct acts."
In this case
the jury was not instructed like that.
I don't think there's any dispute about that.
-: Can I ask you...
I'm sorry. Have you finished your answer?
-: I have your honor, yes.
-: You have?
Can I ask you before you leave about the jury
question during deliberations
where the jury asked whether the joint ventures
can have different theories?
Neil: Yes.
-: So as it relates to deliberate premeditation,
your view is
one can't have deliberate premeditation
and one can't.
I mean, they both have to have deliberate...
'Cause she had intent for deliberate premeditation, right?
-: Yeah. Just to simplify that, your honor,
is that
when you have a joint venture prosecution,
you have to prove joint venture.
And there cannot be a joint venture,
where your crimes have different elements.
So you have to-
-: So I understand your point about
deliberate premeditation.
As you know, we had Commonwealth versus Castillo
a few days ago
come out on extreme atrocity or cruelty,
where once again we reaffirm the point
that the jury doesn't have to
determine that the defendant
intended commit the crime
with extreme atrocity or cruelty.
Now, it may be that there was error as it relates
to the deliberate premeditation.
So it doesn't matter.
But is there anything left of your argument
as far as just the extreme atrocity or cruelty
issues since (indistinct) would presumably be enough?
-: I do wanna say
with regard to extreme atrocity and cruelty,
I hope it's not too late in the day
for this court to really entertain the fact that
it's wrong for a defendant to be strictly liable
for first-degree murder,
where his culpability only rises to the level
a second-
-: As it relates to this case,
so where Castillo came out I think two days ago.
Does the joint venture
have to have a shared intent that the killing
occurred with extreme atrocity or cruelty
when there's no requirement of that intent
by what we used to call the principle?
-: That's certainly the argument
I put forward in the brief.
And I don't mean to be circuitous
with your honor,
but the argument is that,
a joint venture should not be held liable
for first-degree murder,
where his culpability
only rises on the second-degree murder.
And maybe the best case for all of that
is the Brown case,
where this court said,
"You know, it's as old as the hills
for American law
where your culpability for your crime,
whatever crime you're a judge guilty of,
has to match your culpability."
I realized that's some sort of a general statement
of what Brown stood for,
but I think it applies.
One other-
-: Your time has passed Mr. Fishman.
Let me ask if anybody has any further questions
for Mr. Fishman?
Thank you Mr. Fishman.
-: Thank you.
Frank: Miss. Jordan.
-: Good morning may it please the court,
Darcy Jordan on behalf of the Commonwealth.
If we could just start at Gonzalez.
I think, Justice Lowy really pointed out
how the Commonwealth does distinguish this case
from Gonzalez.
But I think most notably
what we have here is actually
the video of the ambush execution happening.
And not only do we have the video
of the actual murder,
but we have the moments leading up to the murder,
which the Commonwealth says,
"Absolutely proved beyond a reasonable doubt
that the driver of the car who was Watson,
conducted surveillance with his coventures
in the moments before the murder."
And that the video shows the Lincoln and the Rav4
that is later associated with Bonner and Denton
to drive around the block
the moments before Mr. McCubbin parks on
Havelock Street.
Moments after the victim parks,
then we see the Lincoln,
outside the view of the camera
we see the Lincoln pull up,
we see the headlights shining
on the back of the Lincoln...
I mean, on the back of the victim's car.
And then you see Robertson
covertly sneak up behind McCubbin's car
and then ambush him by riddling him with bullets
as he sits in the driver seat.
Simultaneously the Lincoln
I wanna say rolls.
It purposely drives extremely slowly
and you can see Robertson shooting at McCubbin
in those headlights.
And then the Lincoln comes to a stop
perpendicular with Mr. McCubbin's car
and Robertson,
you see him touch the door
and get into the car and immediately drive away.
The Commonwealth contends that that video alone
establishes premeditation and cruelty atrocity
for Watson who is the driver of the car.
If I can also just distinguish Gonzalez
and the phone evidence in Gonzalez.
My brother points to
the differential in the two phones,
the 4626 number and the 85764 number
that the Commonwealth prescribes
was used by Robertson and maybe Watson.
But the meaningful evidence in this case
contra to Gonzalez,
is that when we're looking at the phone evidence here,
is that the phone that was in the Lincoln
immediately after the murder.
So that's the meaningful phone
when we're looking at Gonzalez.
And the phone evidencing in Gonzalez
was really toward participation on not intent.
So here we have a phone in the immediate moments
after their murder
in a moving vehicle that is abruptly left
next to the personal items,
or I should say the personal car key of Watson
with his fingerprints on the gearshift
immediately next to it.
So that alone distinguishes
this factual circumstance from Gonzalez.
So Commonwealth contends that this evidence--
-: Is it 426 that's in the Lincoln?
-: That's right. 426, that's the phone number
that is only associated with Watson.
There's no other person
that's associated with that phone.
If I can also turn to the intent evidence,
I think, Justice Gaziano was talking about,
"Is this an ambush?"
Absolutely this was an ambush.
The way that Robertson covertly
comes up behind the car
and the fact that Watson's waiting in that car,
only suggest an ambush with a weapon.
This isn't a setup for a fist fight
or some kind of mutual combat.
This is a setup for a execution style,
where the defendant...
I'm sorry. The victim is riddled with bullets
from his torso through his legs.
And that would...
I think the Commonwealth contends,
again, to support both the premeditation-
-: Well, what's the evidence he knew that
his confederates were armed?
-: Well, I think that goes to it.
This kind of idea of
dropping off somebody.
in a way that would allow for a secret attack,
wouldn't be consistent without a weapon.
That would be unreasonable, making no sense
for Watson to drop off his coventurer
and allow for that kind of immediate combat.
There would be no reason for him-
-: What about he knew that Denton and Bonner
are moments away with,
and they are coming to finish the job?
-: I still think that that could be,
but I still think the way,
if you watch the video,
the way that Robertson and Watson positioned themselves,
only allows for the idea of this ambush,
of this quick getaway,
of this quick attack
that just would not lend itself
to any kind of attack that was without a weapon.
It would be inconsistent with-
-: Do you have any cases that say that?
-: No. I don't have any cases offhand that say
that an ambush would be consistent with-
-: 'Cause I'm familiar with Breton
and some of the other case file
that we have out there
and even some cases that have people with guns,
and we say, "
Well, it could be an attempt to scare."
So how are we supposed to draw this huge inference
without any statements
or brandishing of the weapons beforehand?
-: Again, I don't have a case specifically
that says,
"These facts of this case lend themselves
more so to a weapon." And I think--
-: I mean, more so the logistics that you paint
in that there's a,
I guess, ambush is the right word,
and this coordinated attack,
that necessarily involves the use of a firearm
and deadly force
as opposed to they're gonna thump a guy
in the street.
-: I can't answer that I have a case
that exactly says that.
I think I can only argue the facts here,
only suggest an attack by use of a weapon.
That any kind of idea of any other kind of attack
would not be congruent with the actual evidence.
And the fact of the matter is,
that beforehand, the four core ventures
are all coordinating and pre-planning,
also, I think, lends itself to the fact that
this was a coordinated event.
Not just,
"Hey, we're gonna lay you off with a scare
and then you're gonna finish up the job."
I think it's clear that
it was planned
and intent for,
that the purpose of the ambush was to kill him
or at least to maim or hurt.
I recall his previous final injury.
Because the shocks were from the torso.
He was shot in the chest and the legs.
Robertson shot was not in the head as was-
-: Yeah, but that's after
he gets out of the vehicle.
-: Right.
-: So if he didn't know about the guns,
you've got a problem
inferentially, right?
-: If what Watson didn't know?
Again, your honor, already pointed to Britt,
that stands for the fact that,
you know, possession of a firearm
is not an element to murder.
And I can only go back
to the factual circumstance of this case
to say that
it's inferentially reasonable
based on Robertson and Watson,
how they conducted themselves
in the motor vehicle.
And the surveillance
only lends itself to an attack
with use of a weapon in this case.
If I can turn to the accessory-
-: Can you address the accessory
after the fact issue.
I find it extremely confusing that...
And I understand, Vic, we got different elements,
that's not the issue.
The whole thing is he's the getaway driver here
and part of the whole planning,
and your whole theme.
And then we've
also got him convicted of accessory after the fact,
which means he wasn't an accessory
during the crime, right?
-: Sure. -: I get confused by this.
-: Sure, I think that's understandable
given the factual overlay of both charges.
I think the Commonwealth's contention
is really at the end of the day,
if this court finds sufficient
evidence of the murder,
we think it makes sense that in these
particular factual circumstance,
that the accessory after the fact would fall away.
Because in this case, the-
-: Okay. 'Cause that's quite different
from what you're doing in the brief.
-: Well, I think--
-: You're conceding that we shouldn't affirm
both convictions here?
-: Well, I think my answer is kind of longer than that.
And then I think it gets into
the jury instruction,
and I think...
Then a parlay into me becomes
ideas of judicial economy,
when it comes to factual circumstance like this.
But I think in this case
where Watson was a aider and abettor
and his flight
allows for the concurrent assistance in the escape
of a principle or in this case Robertson.
That it would be...
In fundamental fairness of justice,
it would make sense
limited to these kind of factual circumstance
for the accessory to fall away
if this court finds sufficiency on the murder.
But I just parlay that into
there could be circumstances
in which the aider and abettor
factually, other facts could support
a subsequent accessory after the fact charge.
And I think-
-: Meaning (indistinct).
I'm sorry.
So you could have someone
who is a getaway driver
and then they go back to the scene.
Two days later, they pick up the shell cases.
-: Exactly.
But I think in this case,
I think it was handled properly because...
Especially in the light of Zanetti and Brown
where the mental state of the aider and abettor
and the principal are kind of into one.
When we're in superimposing that language
on the accessory after the fact,
and the accessory after the fact statute
only talks about principle.
So when we look at it this way,
if the Commonwealth is charging both of those
as a joint venture and accessory after the fact,
and based on the same facts or similar facts,
and it's really a question of intent,
both of those charges should go to the jury,
allow the jury to make a finding on both
and then allow for a reviewing appellant court
to then look at the case.
Because if sufficiency of the subsequent crime,
in this case, murder,
is later found insufficient by a reviewing court,
then the fall back
could be accessory after the fact
and would allow the reviewing court
to either remand
the accessory after the fact for re-sentencing
or allow for that conviction and sentence to stay.
-: I guess you're saying
that it's like either the larceny
or the receiving stolen property,
by way of analogy.
But I've read the judge's instructions.
Isn't the challenge here,
that she doesn't come right out and say that,
if he's a joint venture or an accessory,
and we invade an abettor for the language now
because of the Zanetti,
such that he would be guilty of murder,
then the jury has to be instructed
that he has to have an intent
before the murder
to help him escape.
Not only does he have to share
the intent for the murderer,
but his beforehand intends to help him escape.
Whereas if it's the accessory after the fact
that the intent to escape
is formulated after the defendant knows
that there's been a murder,
and that the judge did not make that fine distinction.
-: I think that the judge
did make that fine distinction.
I think the temporal limitations
that you just described
are in the language of the jury instruction.
I think what my brother is asking
in his brief, is to say,
that the jury should have been instructed,
if you find him guilty of murder,
then you cannot reach the accessory after the fact.
And I think the Commonwealth's position is that,
"No. Those two charges
can be factually consistent,
but again, lending itself to a later determination
by reviewing court
of what should happen in fairness."
And I-
-: Can he be sentenced for both?
-: Again, I think that factually is different.
But I think, yes, you can be sentenced for both.
And I think that's important by-
-: What you were describing before
is more like what we said
in possession of ammunition
and possession of a loaded gun.
You can be convicted of both
but you can only be sentenced to one of those.
-: And I think that
the structure of the statute
is different than it is when we are applying it
to the cases here. Because-
-: No, I think they're clearly different elements.
-: Right. 'Cause I think in my brother's brief,
he's arguing that the defendant here
can't be found guilty of accessory after the fact,
due to double jeopardy or merger.
And the Commonwealth-
-: Yeah, the problem is that the offense conduct,
'cause it's not the picking up the shell casings
two days later.
The offense conduct is used by the government
to support two different crimes, right?
Same as the first conduct.
-: I don't think so 'cause I think
the circumstance supporting the murder
are everything that happens before and after.
And I think we get kind of troubled up
because when we look at the facts that happened
after their murder to inform joint venture,
we're really looking at the evidence
as it resolves around participation
and not intent.
And I think when we're distinguishing-
-: The murderer is when he drives here,
the accessory is when he drives away?
-: Right.
As I started this part of the argument
that in this case-
-: That can't be right 'cause you've pointed out
how important it is in Gonzalez
that they pick up as well as drop off.
Is there a problem because...
I'm sorry. This is really difficult
and our instructions need to be clear
when you're doing these types of cases.
Did the judge here do what we said in Newsome?
I'm reading from Newsome.
"Here is the other judge's instructions
clearly established
that the defendant could not be found guilty of murder,
if his only participation consisted
of aiding another person after the fact
and escaping from the police
and just inherently disposing of weapons."
But are the instructions here clear
or do they get
the whole issue garbled between...
I understand there's plenty here,
probably on the first-degree murder thing.
But when you start using the getaway driver
position to get both convictions,
doesn't this get messed up?
-: I understand your point.
But I think what supports the murder is
his mental intent before and during.
And that's it.
And then the accessory after the fact
is what happens after. So it's-
-: But the problem is,
what makes it clearest
that he's involved in the thing
before and during,
is his role as the getaway driver.
Particularly the way you described it.
He immediately pulls up and drives off with him.
That's the crime. It's all part of the crime.
It's not like he's hiding him in his apartment
two days later.
And the judge keeps talking about...
I'm trying to...
The language in the instructions
keeps referring to the overlap between this.
So I worry about how we clean this up.
Are there good instructions out there
on this point
about what you're supposed to do and not to?
-: The judge here just used the model during instructions
and I think if this court is to
readdress the instructions,
it would be to clarify...
And actually,
I don't even know how you could clarify more,
because in the accessory after the fact,
it clearly says
it's after the crime is committed.
And then again, the language and joint venture
is the mental intent before formed,
and it says before and during. So-
-: The defendant's argument,
I don't think, we've said many times now,
it's not that each doesn't have an element,
the other doesn't.
It's sort of like, sometimes the indecent
A and B is just incidental to the rape.
And I think what the defendant is saying
is, you know, the escape is on both sides here.
And this is one of those situations
where that same act can't be both crimes
just like an indecent A and B in the rape.
It's not that you can't compartmentalize it
and have it work with different elements.
It's just that these circumstances
is just (indistinct).
It's just too confusing and it's too unfair
to have it be both.
-: And the Commonwealth acknowledges that.
And I think, if discord is to hold that,
it would be a limited holding
where in this case, Watson,
as he was escaping the crime he committed
concurrently he allowed in the escape
of his coventurer.
But I think the Commonwealth's point is that
these two crimes do not merge,
that they don't offend double jeopardy
and nor would a sentence on both
be always contrary to justice.
But in this case,
it might just be the fundamental fairness,
basically hatch out if you will, in this case.
But I don't think...
My brother, again, contends it's merger,
it's double jeopardy and the Commonwealth
just doesn't think those are sound-
-: You've made your argument.
And just before we move, you know,
because we're almost out of time.
What about the jury question
during deliberations?
-: I think the judge...
The instruction was very clear,
the original instructions,
where the judge talked about
first-degree murder having multiple theories.
And I think the jurors question went right back
to that instruction.
Does each defendant have to have the same theory
supporting their conviction?
And so I think it really made sense
the way the judge answered it,
and that of course, we could have a joint venture
found guilty unanimously of,
for example, premeditation
and the other joint venture
found guilty of extreme atrocity,
so long as malice aforethought
was supporting both of those convictions.
-: Could you agree that
if the theory is deliberate premeditation,
you can't have the jury come back and say,
"Okay, well, I'm gonna use the old (indistinct) words."
The joint venture had a mental state
of malice aforethought.
You don't have to intend
extreme atrocity or cruelty.
And the principal had a mental state
of deliberate premeditation.
You couldn't have...
Could you have a joint venture there?
-: I think you can.
I think so long as there's malice aforethought,
I don't think the theory
matters of joint ventures.
So long-
-: Yeah. If he had mental state
and it takes an additional... She had mental state
for deliberate premeditation.
-: But the malice aforethought is implied
in the premeditation
and where it is implied in the atrocity
and the other theory.
But as long as there's malice aforethought,
I don't think that both joint ventures
need to have the same theory
as applied to the malice.
-: Any further questions from Miss. Jordan?
Then thank you council.
-: Thank you.