-: SJC-12751, Commonwealth versus Kelly D Ridley, Jr.
-: Okay, Attorney Caddick, good morning.
-: May it please the court,
Elizabeth Caddick for Kelly Ridley.
This was a 10 day trial
in which the only defense was voluntary manslaughter.
It was a reasonable defense where the evidence was
that at a party with a lot of drinking
and a lot of fighting,
the defendant was provoked by multiple people,
in particular, David Gonsabs,
where his short height and small stature were mocked.
His manhood was questioned.
He was told he didn't have it in him to fight.
He was called Little man, little boy.
And at one point he threatened to get a gun,
which he didn't get.
There was no gun.
But he was mocked then and said, you don't have a gun.
You don't have it in you.
You're not going to do anything.
And so he armed himself.
Right before the strike,
he was at the bottom of the driveway,
standing still, arms to his side.
And he was looking at and arguing
with his main taunter, Gonsabs, when from behind,
and even the witnesses who were lifelong friends
of the victim, Mr. Russell,
said that Mr. Russell came out of nowhere,
ran up to Ridley and punched him in either the back
or the side of the head,
depending on what each witness saw.
Ridley spun around.
And what these witnesses saw
was the two of them punching each other in the stomach.
Of course, Mr. Ridley had the knife.
The mental state that he had at this time
was illustrated by what happened when his relative
tried to stop the fight by grabbing him by his shoulders
and pulling him away.
Ridley turned around and stabbed him in the stomach.
And it wasn't a light stab.
His relative had a lacerated liver.
His intestines were eviscerated and he had major surgery.
So this was, by all accounts,
a voluntary manslaughter case.
And had the jury properly understood
that it was the Commonwealth's burden
to prove beyond a reasonable doubt
that there were no mitigating circumstances,
there would have been such a verdict.
-: So this really goes back to the,
at least your lead issue that the adolescent brain evidence
should have come in, right?
-: Well, the adolescent brain evidence should have come in
'cause he had a right to present a defense.
He had a right to present witnesses.
But my main argument is that the jury,
by its note to the court,
demonstrated that it misunderstood the jury instruction.
It misunderstood that the burden of proof
on the Commonwealth
was to disprove mitigating circumstances.
was to prove there were no mitigating circumstances.
-: But in in this case,
they had the recording of the instruction, right?
And we've looked favorably upon doing that, right?
Where judges send it in with the jurors.
I shouldn't say we looked favorably upon it.
We said they can do it.
-: Right, but this case is distinguished
from that for a number of reasons.
One is it wasn't just the jury saying,
we're a little confused about the burden
in voluntary manslaughter,
and so can you just reinstruct us?
And the judge says, well, go listen to my instructions.
The jury misstated the law.
And it was the law of the whole case.
It was the whole defense.
Even the judge understood, the jury misstated the law.
He said, well, their wording
isn't even in accordance with my instructions.
He said, it's proof
that there were no mitigating circumstances,
not that there were circumstances.
That's the judge's own words. He understood it.
And after he said that, he said,
well, I suppose I need to reinstruct them
on voluntary manslaughter.
And then he later says,
well, perhaps because mitigating circumstances
are also mentioned in first degree murder,
I should reins instruct them on first degree murder
and voluntary manslaughter.
Well, he didn't.
And not only did he say to the jury,
just go back and listen to my instructions,
he didn't even say,
and go back and listen to my instructions
on first degree murder and voluntary manslaughter.
This type of sloppiness can't be acceptable
in a first degree murder case where Ridley
now has a life without parole sentence.
When there was substantial evidence
of mitigating circumstances.
And the law is clear, both the US Supreme Court, this court,
when a jury misunderstands the instructions,
they didn't just ask to be reinstructed.
So you can't fall back on the case law that says,
well, it's up to the judge's discretion
whether he is going to reinstruct.
The judge should have said,
hold on, you misstated the law in this note.
Let me tell you right now
that it's the Commonwealth's burden to prove
beyond a reasonable doubt,
there were no mitigating circumstances.
-: Let me ask you this,
and I'm not sure which way this question cuts, but
so the, I think the question is something along the lines
whether or not the Commonwealth has proven
without reasonable doubt,
there were mitigating circumstances, something like that.
Caddick: Right.
And you are right, obviously,
that Judge Rufo did not tell them
they had to listen to the recording.
-: Right. He was tepid.
He says, well, if you think it'll help.
-: Well, okay, so, and then there's no reinstruction.
So the reality of this situation,
I dunno which way this cuts,
is that it's very hard to say
to prove beyond reasonable doubt,
the lack of mitigating circumstances.
And it's the government's burden to prove it.
We've gotten used to saying it,
but there were a lot of reversals
before we finally got the language right,
where the judges got it wrong,
where the lawyers got it wrong in closings.
This is some juror coming in for jury duty,
now on a piece of paper has to frame something
that we've struggled for decades to get right.
And I'm not sure which way that cuts,
but it's a lot to expect.
They're gonna be able to fastly write that out.
-: I think it cuts in favor of Mr. Ridley's argument.
You're right, it's a very difficult concept to understand
that the Commonwealth,
after the defendant proves enough evidence
of mitigating circumstances,
the burden then shifts to the prosecution
to prove a negative.
Lowy: Any evidence.
-: To prove a negative beyond a reasonable doubt.
And so the fact that the jury came back
with a question that misstates the law,
shows that they didn't understand it.
In a case like this, you can't just say,
well, they probably just missed the word no.
That can't be how first degree murder trials
are handled in this state.
And the fact that the jury thought
that the Commonwealth had to prove mitigating circumstances
beyond a reasonable doubt is not so strange
because almost every other lesser included offense,
all those elements still have to be proven
by the Commonwealth beyond a reasonable doubt.
Say it's a assault and battery and the lesser include,
I mean, assault and battery dangerous weapon
and the lesser included assault and battery.
-: If he had said, if he had reinstructed
on mitigating circumstances and said,
your note doesn't have it quite right
and then had done it, that would be okay.
-: Right, If he right,
when they show they're misunderstanding it,
the judge has no discretion.
He has to correct their misunderstanding.
-: I mean, the reality is they may, who knows,
they may not have had a misunderstanding.
It's just a very, very challenging thing
for a layperson to write.
-: True, but we don't know.
And we have 12 people and maybe half of them
thought that they, I mean,
you don't know because what you do know,
you have in black and white,
is their note where they misstate the law.
You have a judge who understands,
hey, they misstated the law, that's not my instruction.
And who understood that they misstated
that there were mitigating circumstances
when in fact the law is
there were no mitigating circumstances.
So we have that the judge knew,
and yet after 10 days of trial and all these witnesses
and all this work,
the time wasn't even taken
and the thoughtfulness wasn't even taken
to instruct the jury correctly
and correct their mistake on the record.
I also, in keeping with how it's not so unheard of
for them to think that the Commonwealth
had to prove mitigating circumstances
beyond a reasonable doubt is even in this case,
there were two separate
assault and battery dangerous weapons charges.
One was intent and one was reckless,
that the two different Mens Rea.
So of course the reckless was lesser included.
And each of them, the Commonwealth had to prove
beyond a reasonable doubt.
So it's understandable that the jury would still think
that they would have to prove
the mitigating circumstances beyond a reasonable doubt.
And of course, that is so different
than when you have all these mitigating circumstances here
from witnesses who were the best friend of the victim.
But even there evidence shows
that all these mitigating circumstances
that create voluntary manslaughter,
that they were there and the Commonwealth had to prove
that they were not there beyond a reasonable doubt
when they're clearly are there on the record.
And so this was an error that could not,
that it just cannot stand in a case like this.
-: Counsel, could you just make sure,
'cause I'm a little bit confused by what you said.
Didn't Judge Rufo tell them in response
to go listen to my tape?
-: He said, go listen to my recording
if you think it will help.
He did not pinpoint them to where in his recording
they should listen,
even though he recognized that it was voluntary manslaughter
and the burden of proof that they misunderstood,
He didn't tell them to go there.
And it was a long recording.
We know how long these jury instructions are,
particularly in first degree murder.
So it was not, and certainly more
is required of the judge when the jury misstates the law,
the only defense, and first.
-: Where do we say that?
In what case do we say that more is required?
If you follow my math for a moment.
There isn't any dispute, I don't think,
that Judge Rufo properly instructed them
at the close of the evidence.
Caddick: Correct. -: And that was on a recording.
Caddick: Right. -: Okay.
This question comes back and as part of his response,
however inadequate you might think it is,
it encompassed, why don't you go back
and listen to the recording of my charge.
-: Okay. Caddick: Right.
Where do we say that that's not enough?
Caddick: Okay.
-: What case do we say that.
-: This is Commonwealth versus Thomas.
When a jury makes explicit its difficulties,
a judge should clear them away with concrete accuracy.
He didn't clear them away with concrete accuracy.
He passively said, you can go back
and listen to the recording if you think it will help.
That was a quote from Bollenbach versus United States
where the jury came back clearly misunderstanding
what the law of conspiracy
to mail securities, interstate.
And they, I'm not gonna get into detail,
but they, by their question,
it was clear they thought that if the person
committed the crime just in one state,
they could still be guilty.
They kept saying, well, could he still be guilty
if all he did was do it in the one state?
And the answer would've been no.
' Cause it wasn't a federal crime if all he.
But the judge just kept saying,
go listen to the instructions.
And the US Supreme Court said no, when they're.
-: But it really doesn't answer my question,
where did we, when did we say that wasn't enough?
-: Well, it was in Commonwealth versus Thomas.
It was the appeals court that quoted from Bollenbach that,
and I would say that any time Bollenbach
was quoted by this court, and there are, I don't know,
hundreds of pages, well, I don't know hundreds,
but probably over a hundred pages
of Shepherd's Citations to that case.
And so, oh Skinner, oh this is the.
Commonwealth versus Skinner, 408 Mass. 88,
the jury had been struggling with the question
of deliberate premeditation
and it said that
given the jury's very specific question,
revealing a need for assistance
in exploring the heart of the distinction
between murder in the first and second degree,
the judge's silence on premeditation fell short of providing
a comprehensible standard to guide them.
So, when it.
-: The judge wasn't silent here, though.
He referred them back to the instructions.
-: Yeah, that, but
that's not curing their misunderstanding, it's passively.
-: He also told them to listen carefully suggesting.
-: Well, yeah and and even if he had said something,
he would've just reins instructed, wouldn't he?
-: Oh, if he had, well,
once the jury stated that they misunderstood
the law and the judge recognized
that they misunderstood the law,
the judge should have said just what he said.
The jury would've been better off if they heard
the discussion between the two counsel and the judge.
Because they would've heard the judge say, well,
that statement isn't even in keeping with my instructions.
It's the Commonwealth has to prove
that there were no mitigating circumstances,
not that there were mitigating circumstances.
If the jury had heard that, that would've been better.
But, then when the jury came back,
all that clarification that was going on
among the lawyers and the judge was gone.
The judge just, as I said, he passively said,
even recognizing, well, I think I should
reinstruct him on voluntary manslaughter.
He didn't, he didn't do it.
And this case just.
-: The only errors the word proven
as opposed to disproven, right?
-: I'm sorry, excuse me?
-: The error is, the sentence would've been fine
if it had said disproven, right?
It disproven beyond, I guess beyond reasonable doubt.
-: To prove that there were no mitigating circumstances
beyond the reasonable doubt, right.
Kafker: Yeah, I guess.
And you can't say there was harmless in this case
because of all the evidence
of the mitigating circumstances.
And the other errors.
And I would like to just address something
the Commonwealth brought up in the appeal
because all of the other issues,
the one about the expert witness who would,
who was of course not going to testify
that no 18 year old could ever
create the intent required for first degree murder.
It was as the US Supreme Court said
in Roper, as any parent knows,
the juvenile brain acts recklessly.
They don't think before they act.
And what his expert would've testified to,
it's not just the juvenile brain,
it's the 18 year old brain also.
So the jury could have known that,
and he had a right to present this defense.
And for the 33.E argument
is, well, and also,
the prosecutor's misstatement of the law in closing.
That goes to voluntary manslaughter too.
The Commonwealth on appeal had mentioned
that Mr. Ridley had,
and this only came out,
Mr. Ridley had shrugged when he was told
that Mr. Russell may be dying in the street.
What happened was when Joseph France said to Ridley,
my friend may be dying in the street because of you,
France said, Ridley looked shocked.
And said, said, what are you talking about?
Then the prosecutor said, well, what else did he do?
And he said, well, nothing, he just said,
what are you talking about?
And he says, well, what else did you see?
And he says, well, nothing.
And he says, well, did you see anything?
Michael says, well, I don't know. I saw he wore a T-shirt.
And then the prosecutor in a leading question said,
did he shrug?
And Fran said, yes.
Then that's dropped.
The prosecutor never even mentions it in closing argument.
He didn't mention it as an element
of extreme atrocity and cruelty.
But the Commonwealth, I argue,
because they're really bereft of evidence
of extreme atrocity and cruelty
is trying to make much of this shrug.
Well, the prosecutor didn't,
Joseph France didn't make much of it.
And frankly, I was surprised
when I read it in the Commonwealth's brief
because if it was in my mind,
I would've put it in the brief just to.
Georges: But it's in evidence.
But it's in evidence.
-: I agree. But, but the point is,
it's a shrug cannot be considered
the indifference that's required
for extreme atrocity and cruelty.
We don't even know what the shrug meant.
Did you shrug when he said, what are you talking about?
We don't know.
And you certainly can't base that.
If you have to prove beyond a reasonable doubt
the element of indifference,
you can't prove it by having
the word coming out in a leading question by the prosecutor,
the witness adopting it,
and then it's dropped from the whole prosecution.
-: Quick question before you wrap up.
Was the closing a request
for a voluntary manslaughter verdict?
Was that the closing?
Caddick: Yes.
-: Okay, and I have no idea
where this case is going to come out,
but if it was error
not to address the jury misstatement,
I don't wanna say misunderstanding,
misstatement of voluntary manslaughter.
Under our case law,
could we just enter a verdict of manslaughter?
-: Yes. Oh, this court's done it.
Yes, absolutely right.
Especially under 33.E it could, yeah.
-: And in your research, did you.
Oh, your time's just about up, so I'll save,
In your research on 33.E cases,
did you find any fact patterns similar to this one?
Caddick: Yes. -: And they're in your brief?
-: Yes. There were, yes.
Where there was multiple stab wounds, heat of passion,
and even a case where someone went and got a gun
and came back to the situation.
And this court lowered it to voluntary. Yes. Thank you.
-: Okay, thank you.
-: Okay. I was gonna say, if there were any more questions.
-: Attorney Nguyen.
-: Good morning, may it please the court,
Mary Nguyen on behalf of the Commonwealth.
With respect to the first issue,
the law is clear that confusion must be expressed
and it cannot be simply inferred.
And I just wanted to quote the Lahey case
that I cite in my brief for that proposition
and also for the proposition that you can't engage
in the type of speculation
that I would respectfully suggest my sister is engaging in
with respect to the fourth statement made by this jury.
And the quote is as follows,
confusion cannot be simply inferred
from a reinstruction request.
It is not uncommon for jurors to request reinstruction,
not because they are confused,
but because they are proceeding conscientiously
with deliberations and want to be reminded
of an instruction.
And I do point out.
-: Here that it's not just that
I'm confused by the instruction,
they actually misstate it, right?
So it, they clearly are,
they're either confused or they wrote it down wrong, right?
-: Correct. So in my brief,
and I know Justice Lowy also commented on sort of,
there's a distinction I would suggest
between a misstatement and a misunderstanding.
And I would also note that the trial judge
and the two attorneys that were there in the courtroom
while the evidence was being presented,
no one interpreted that statement as a misunderstanding.
Certainly when we're talking about
an abuse of discretion here,
whether no other conscientious judge
would respond to this juror's statement in the fashion
that Judge Rufo did.
I suggest to you that there is not
an abuse of discretion here.
There was no error.
This is a situation where the jury asked a question
and where the judge directed the jury
to re-listen to his instructions
as agreed upon by both attorneys,
and then to provide further clarification.
And then the jury deliberated, then they,
they then asked to return the following day.
They deliberated that morning
and then they returned a verdict.
So they were told to listen to the instructions.
I would ask your honors
to look at the entire supplemental instruction.
I know my sister does point out one line,
but if you go back to the record,
Justice Rufo indicates on multiple occasions
once saying, what I respectfully suggest,
and this is why I did it,
is that you take some time
and you listen to the instructions on the audio tape.
That's the first instance where he directed them
to his original instructions in the recording.
And then the quote that my sister states
is then at the end of that first day
before they returned that morning,
he says, at this juncture, I'd ask you to go back
and listen to the recording if that's helpful.
And then the next day he talks again
about the recording of his instructions.
So there's this instruction
where he repeatedly directs them
to listen to the original instruction
that is not in dispute.
And then there is a presumption,
a legal presumption in the law,
that the jury here listen to the judge's directive
to listen to these instructions.
-: So I'm not sure really,
it's a directive with the quotes that you have.
I mean, this is a well tried case
and obviously on the other issue
of carex is not complied with on the expert.
But this is an issue
I'm frankly struggling with in this regard.
The evidence warrants
of first or second degree murder, no doubt.
But, it's a case where the Commonwealth
needs to really prove beyond a reasonable doubt,
the lack of mitigating circumstances.
And I wouldn't be surprised at all if the jury
just misstated that very complex concept,
but we have no way to know,
and the jury is not directed to listen.
Why isn't that a substantial likelihood
of miscarriage of justice?
-: So I understand Your Honor's, saying that
it was not a directive.
You might disagree sort of with.
-: No, if you think it's a directive,
convince me because if they're told to go listen to it,
and the instruction is right,
obviously, when it was given and taped,
then this is then forget my question.
-: No, I mean, I'm just gonna have to defer
to the record on that.
And I guess it's a matter of interpretation
of the judge's instructions,
whether you look at it as a directive or as a suggestion.
-: I really would like help though.
I'm sincere about this,
how do I interpret it as a directive?
-: So I mean, he tell,
that's the whole role, right?
Of a judge is to provide instructions.
Here, he did that repeatedly.
And so there's a legal presumption
that they follow that instruction.
Our jury system, this is a quote that I cited in my brief,
is in many ways built on that assumption on the structure
that the judge provides the law.
Here, he provided the instructions repeatedly,
and then the jurors follow the law
and then the record supports this presumption
because this isn't a scenario where they ask this question,
the judge tells them, go listen to the instructions,
which is an instruction that all the attorneys,
both attorneys agreed upon.
And then they come back with the verdict.
They deliberated, there was sufficient time here.
So the record supports that they did in fact follow
that instruction to listen to the recording.
-: He does say,
and what I respectfully suggested is this is what I did
and this is why I did it,
is that you take some time and listen to the instructions
on the audio tape and don't tell me whether you have or not.
'Cause he doesn't want any back and forth.
But our court monitor has given you an outline
that refers you back to the time within the CD
so you can fast, I mean, he's clearly telling them
to listen to it and how important these instructions are.
I think it's fair to say that he's directing them to,
in response to their question,
to listen to the original instructions.
And the original instructions, don't they say twice?
I mean, the judge actually,
I mean it may be the model and again,
I defer to my colleagues
who gave those instructions regularly,
but it looks like he says twice that you've gotta disprove.
He, he makes the, you've gotta prove
no mitigating circumstances twice.
He makes the point and then he repeats it.
And I'm just looking at page 77
on your opposing counsel's brief
where the instruction's given, it says it twice.
-: So Justice Kafker, that's the way that I,
and I read the judge's instructions that it was a directive
and I'm just looking at sort of where you quoted.
So in addition to him saying,
take some time and listen to the instructions,
don't tell me whether you have or not,
and then goes into some detail about what the court monitor
has provided with respect to the audio.
And then about the jury's ability to go back
to certain sections that they wanna listen to.
He also provides that very important instruction
that it's my instructions as a whole that are important.
So all of my instructions are equally important to you,
as I told you and he repeated.
-: I don't know how much help that is.
But look at page, is 77 the instruction he?
I'm just looking at, I think it's your sister's brief.
I'm maybe it's.
-: Are you looking at my sister's brief?
-: Is it your brief or hers that has on 7,
I have the instructions.
It's your brief, maybe it's yours, on 77 is it your brief?
-: I believe that might be my brief.
-: Original jury instructions and final charge
on voluntary manslaughter mitigating circumstances.
Basically it goes,
therefore the Commonwealth,
so a killing that would otherwise be murder
is reduced to the lesser offense of voluntary manslaughter
when the Commonwealth has failed to prove
that there were no mitigating circumstances.
Then he repeats the point.
Therefore, if the Commonwealth proves
all the require elements of murder,
but fails to prove beyond a reasonable doubt,
there are no mitigating circumstances,
you must not find the guilt, the defendant guilty murder.
But you shall find the defendant guilty
of voluntary manslaughter.
That's the instruction, right?
That's what he's telling them to go back and reread, right?
Nguyen: Correct.
-: Yeah, that's pretty clear, isn't it?
-: Yes. and there was no dispute
that that charge is proper in this case.
And certainly here the judge reasonably chose
to stand by those approved instructions
rather than to assume the risk
of unnecessary paraphrase.
Where I think one of the cases that my sister cites
is where unfortunately the judge in that case
did provide a supplemental instruction that was erroneous.
-: Counsel, could you also give a little bit of clarification
because I think Justice Kafker raised the issue,
which was my issue with your sister's argument.
Didn't he direct them specifically?
I believe Justice Kafker read from the record.
I don't have it in front of me,
to say here's where you can go back.
The court reporter says,
this is where you can go back to find what I said.
I thought he did say that,
that they were given some direction as to where to find it.
-: So I know, I can't recall on which day,
he talks about it on both days,
but the quote that Justice Kafker was reading,
it says, but our court monitor has given you an outline
that refers you back to the time within the CD
so you can fast forward it.
And then he talks about how you can quickly
go to those sections that you wanna listen to.
-: So, this wasn't just go back and listen to the tape.
Nguyen: No, they're provided with an outline
which has the timestamps.
-: Okay, thank you.
-: Do we have that outline in your record?
-: I believe my sister did include that
in her record appendix, if I'm not misspeaking on that.
-: Thank you.
-: And also with respect to,
I just also wanted to add,
there's also that presumption
that's well known that there's a certain measure of jury
sophistication, which is also presumed.
So here I don't be.
-: That proving/disproving stuff again,
as Justice Lowy talked about,
we've got all these errors by smart trial judges,
so I don't know how much we can rely on sophistication,
if they're not specifically directed
to the right place. Right?
-: But you know, as Justice Cipher did indicate,
whether he spoke or he relied on the recording,
which were proper instructions.
They were in there,
they were in those instructions as you indicated,
justice Kafker, more than once with respect to
that specific instruction on mitigation.
If there are no other questions on this juror issue,
I'd like to turn to the expert testimony,
the exclusion of the expert testimony.
I notice that my sister, in her reply brief, indicated
that the Fernandez case, which I cite you,
is not applicable.
I respectfully disagree.
If you look at counsel's proffer, defense counsel's proffer,
during the motion hearing,
he, in his proffer, indicates
that he is seeking to enter
general adolescent brain development,
expert testimony on general adolescent brain development.
And it was on the question of intent.
He says, and I quote,
'this goes directly to whether or not a jury says,
you know what, teenagers make stupid decisions.
This is consistent with a stupid decision by a teenager
lacking the intent to commit first or second degree murder.'
So here is explicit in counsel's proffer
that he is seeking to enter in this expert,
this general expert testimony
on adolescent brain development
as it going directly to the question
of the defendant's intent with respect to murder.
And therefore the law is clear under Fernandez
and also under Okoro,
if I'm pronouncing that case correctly,
that there needs to be that additional evidence
that ties this general expert testimony
to the defendant,
which is a critical piece missing here in this case.
So there's simply no error here
in the judge's exclusion without prejudice
of the expert testimony, which counsel did not revisit,
although Judge Rufo did welcome him to revisit.
Are there any questions,
any further questions on that issue?
-: Mm mm. -: No.
-: Okay.
-: How about the closing?
How about, and think about it, reasonable provocation,
anytime there was a fistfight,
you would have the ability and the right to eviscerate
somebody, someone, excuse me.
I suggest not, is that a statement of law?
-: I don't believe it is a statement of law.
I think that it's a fair argument.
He wasn't purporting to state the law.
The prosecutor, when he made those two remarks,
that remark that you indicated,
and also the second remark being challenged,
which is quote, warranting the taking of life.
If you and I excerpted
the relevant portions
of the prosecutor's closing argument so that Your Honors
could look at the entire closing in context.
But here the prosecutor properly referred
to the facts in evidence and also the fair inferences
from those facts, when he asked the jury
to reject the defendant's claim
that this single punch constituted adequate provocation.
And certainly the prosecutor was entitled
to cast the evidence in terms favorable to the Commonwealth,
including the evidence suggesting the medical records
and observations that investigators made of the defendant
showing minimal injury, if you will,
if any, caused by this alleged single punch
that counsel was arguing was sufficient provocation.
So I think so.
-: What about, I I understand the second one,
and I'm looking at them entirely in context,
so I get the second one.
But the first statement, reasonable provocation,
anytime there was a fist fight,
you would have the ability
and the right to eviscerate someone.
Is that making a comment beyond this case
when you say anytime there was a fist fight
and making a comment of law?
-: I think the way he's saying, essentially,
let's think about this concept of reasonable provocation,
a single punch here, you get punched.
Does that constitute reasonable provocation in this case?
I suggest to you,
and then he goes into the evidence before and after.
The evidence doesn't support, in this case,
a single punch constituting reasonable provocation.
And the prosecutor is saying,
look, we know that he wasn't injured.
And he goes into, and look he didn't have any problem
running after the fatal stabbing.
Look at these minor scratches and superficial abrasions,
running through the woods half a mile.
Look at all the evidence of the defendant's state of mind
to go to the issue of whether he had the intent to kill
in this case.
So I don't think that it is a,
it was the prosecutor here
stating the law.
Are there any other questions on closing?
If there are no other questions, I would rest on my brief.