-: That's SJC-12753 Commonwealth, Charlie M Breyer.
-: Thank you, and Ms. Belger we'll hear from you.
-: Good morning, your honor this is Amy Belger
for Charlie Breyer.
May it please the court.
This is a case where based upon the trial evidence,
the defendant was entitled to the voluntary manslaughter
instruction that his attorney requested.
The judge's refusal to give that instruction
was both an abuse of discretion,
as well as the violation of my client's
state and federal constitutional rights.
The judge said that because Mr. Breyer did not testify
on his own behalf,
that he would be denied the instruction.
And she additionally said that the trial evidence
did not support the instruction.
The legal standard here is viewing the evidence
that came in at trial that the jury heard
in the light most favorable to the defendant,
all reasonable inferences get drawn in his favor.
And once doing that,
if the evidence supports any view of the evidence supports
giving that instruction,
it is reversible error not to give it.
In this case,
viewing the trial evidence in the light
most favorable to the defendant,
there was evidence to support a view
of the killing that would lead a jury
to find is that it was done with reasonable provocation.
The evidence of reasonable provocation
was that the Commonwealth witness of Doula Galloway
testified that the same men
that were fighting and in conflict inside the bar
were the same men that rushed out of the bar,
pushing and shoving,
and got into a conflict outside.
The Commonwealth's witness
Tyrone Brooks testified that men came out of the bar,
pushing and shoving and shoved him in conflict
and seconds later, a gun went off.
Additional evidence was my client, Charlie Breyer,
as seen on the video tape
is standing right behind his friend
who was sucker punched by a stranger.
-: He's not his friend, right?
He's the friend of a friend, right?
You're part of a larger group,
actually a much larger group than the other group, right?
-: That is unclear, your honor
and the reason I say that is because you see
the victim and his friends who are outside,
follow behind into the crowd.
The men that my client and his friends
were involved in the conflict with inside the bar.
So, and then it's the victim who ends up shot.
-: Well the bearded man punches.
I can't remember the person's name begins with a w
-: Waldo
-: Waldo and he's Waldo is not the friend of the defendant.
He's a friend of the defendant's friend.
and Waldo is not knocked down.
He's hit and standing.
So I'm trying to understand exactly the provocation.
They're not, you know, it's not a spouse,
it's not a close friend.
He brings a gun into this mix
based on the fact that this guy
who is walking out of the place with gets slugged,
and there are a bunch of other guys there, on his behind.
It seems like,
and also we've got the issue of whether your client
went out to pick the gun out of the hide, right?
-: We're looking at the evidence and the light
the light most favorable to the defendant
and drawing inferences on what he's entitled to
as a jury instruction.
So there's no direct evidence that my client had any gun.
There, isn't.
So you have to draw an inference
in favor of the government, right?
To circumstantially, put a gun in him.
-: There's no one is identifying your client
is the shooter that even in the light most favorable to you,
I'm confused.
-: Okay, if we could stop the clock,
I think we've lost Justice Lenk
so let's hold on for a second, Mr. Lowy,
if you could reach out to justice Lenk please.
-: I do that.
-: Okay, we have everybody
and we have Justice Lenk on the telephone.
Lenk: Hi yes, here I am.
-: Great, so Ms. Belcher, we stopped the clock
and continue please.
-: So with respect to guns at the scene of the shooting,
we know that there was more than one
and there was probably more than two
because almost immediately after
the victim is shot in this case, my client's friend,
Joseph Monet is shot between five and seven times
in the legs, a block away
with a different firearm.
So, there's no clear, direct evidence.
There's circumstantial evidence that my client had a gun,
but there's no direct evidence of it.
There's plenty of evidence
that this is a very dangerous melee
that is escalated with men coming out of a bar
where men are being shoved and punched.
And then the gun goes off and kills the victim.
And in looking at the evidence in the light most favorable
to Mr. Breyer, I would submit to the court that
that scene and that evidence
constitutes reasonable provocation.
The absence of malice,
the absence of deliberate premeditation
is certainly suggested to the jury
based upon the facts that they heard.
And it doesn't have to be a foregone conclusion, of course,
for him to be entitled
to that voluntary manslaughter instruction.
This the legal standard is very generous to him.
-: Can I ask you a related question,
a different argument for a second,
you make an argument and I think you're right,
that the judge misunderstood the use of absence of motive.
That absolute absence of motive could have been
relevant for the purposes of proving reasonable doubt,
as opposed to proof of motive.
But isn't the motive here clear, it's a fight,
and whether someone's defending his group versus the other,
it's a really any doubt of what.
This isn't one of those cases
where we've got some bizarre murder
we can't understand.
This is literally, we understand if there was a fight here.
And so is motive meaningful in this case at all?
-: I think it's meaningful in this case
because of the strategies adopted by the trial lawyers
who tried the case, made it meaningful.
This is one of those very tricky things,
both if you're the trial ADA,
and if your defense counsel for Mr. Breyer.
We have an alternative defense, right?
Miss ID, Mr. Breyer is not the person
who committed the crime.
Or the alternative, if the jury finds
that he is satisfied that he is the person
that it wasn't murder, that it was manslaughter.
So trial counsel has to be very careful with what he's doing
because he's arguing in the alternative.
In addition,
the trial prosecutor doesn't want to suggest
motive out of fear by doing that in arguing that,
that the trial prosecutor,
it is going to undercut
the top count of first degree murder.
So the trial, the criminal doesn't argue any motive,
doesn't suggest any motive to the jury.
You know, that doesn't commit right?
That isn't argued.
The jury can certainly infer it,
but it isn't suggested or argued by the Commonwealth.
So at that point trial counsel is certainly,
effectively arguing the jury,
doesn't know why this murder happened.
-: Can I interrupt you, Ms. Belcher,
let's assume that the judge
should not have given the instruction
because defense counsel is simply referencing well,
to the lack of the motive here
is something you should consider
unreasonable doubt because it's not here.
So it would have certainly would have been better
if the instruction hadn't been given,
because it didn't also have with it.
However, you may consider the lack of motive,
if you find that from the facts
on the issue of reasonable doubt.
But Justice Gaffer, wasn't suggesting
not that the instruction
should have been just given one way,
it's more of what's it matter here
when the statement of law was correct.
Yeah, I agree it shouldn't have been given
and that the judge misunderstood
the defense attorney's argument.
But what the judge said was a correct statement of law,
what do we do with it?
-: I think it's problematic
in terms of my client's right to a fair trial
and for the jury to be instructed in a fair way,
because in addition to giving this unbalanced instruction,
although, correct, certainly that was legally correct.
What you said about motive evidence.
The unbalanced nature of the instruction and the omission
of what would have made it balanced,
is exacerbated by, she points out to the jury.
You may have heard reference by defense counsel
to the Commonwealth not proving motive.
And then she says,
I'm going to be instructing you shortly.
On that she's pointing out it is not only unbalanced,
but she's suggesting to the jury
that defense counsel's argument
with respect to lack of motive is somehow improper.
It is somehow something that they should look
at that argument as erroneous or suspect.
I would submit to you because of the way,
because of her saying that to the jury,
that's certainly not an instruction that's proper to get.
It's gratuitous commentary,
that's disparaging of a legal argument
that was proper and effective.
And I would submit zealous on the facts of this case.
So I think that that is an additionally problematic part
of this unbalanced motive, jury instruction.
-: Can we go back for a moment to the, to the manslaughter?
I'm not sure what you said is going to be available.
He said that in the light, most favorable to the defendant,
we're assuming that the defendant did not have a gun
and didn't go out back to his car.
When we look at the light, most favorable to the defendant,
we look at that in the context of entire evidence.
We don't just ignore the existence of evidence.
So we'll ask Lenk about that.
But you think your strongest argument on manslaughter,
that his car, when Mr.Breyer was,
they gets hit with a bullet.
If my memory of the evidence is correct.
-: I think that that 50% of, of my strongest argument,
the other 50% is his friend getting shot so many times
right afterwards by a different gun.
Because what that shows is that
we don't have all of the information
and the jury didn't have all of the information
or on what the dispute was about
what actually caused this.
But what we do know is that was a really dangerous scene.
There's more than one person shooting people,
And in a matter of seconds.
-: Isn't there a fist fight and it's your client.
that is the one that shoots first?
And then what happens afterwards
is kind of like the horses out of the barn.
-: There's pushing in those shoving
and there's this blindsided punch, and then.
-: So we have provocation sudden combat,
your guys got involved in combat and self-defense
as a punching, and then there's a shot.
-: So, where, what I'm arguing
and trial counsel was arguing very effectively,
I would submit is that, that the scene itself,
when the gun went off could be viewed by a jury as evidence
of reasonable provocation.
-: So if I'm out in a bar with somebody,
somebody I'm with is punch in the face,
that's reasonable provocation for me,
take out a gun and stop blast from the crowd?
-: There's more than that,
I would submit in terms of evidence
of reasonable provocation here.
These are the man who was punched was Mr. Breyer's friend
he was in the bar with earlier,
that there was a conflict.
The men coming out of the bar are the same men
that were in conflict, that's his friends.
-: It's his friend's friend, I mean, let's not forget.
we're talking about whether there's a manslaughter
when the contention is that your client
fired the first shot.
It's his friend's friend and he's not in the immediate area.
-: It's his friend's friend
that he's grown up with younger brother.
That's who it is that he's known since the sixth grade.
-: Have we ever said that your friend
being punched in the face is reasonable provocation?
-: What we've, what you've said is that
when there is a situation like this,
where there's a melee,
where there is pushing when they're shoving,
when there's reason for a person to be provoked,
and even the term nervous excitement under the law
qualifies as reasonable provocation.
-: Give me a case site that says about the punch in the face,
are you going to be done?
-: Yes, I can give you well for certainly Bins and Felix,
talk about the light most favorable to the defendant.
Masco is a dispute over a dog
that escalates to a killing.
Baker is a minor controversy with a single punch
that explodes into a killing and ACRA Valeo.
And the, from the appeals court is rapidly exploding events.
-: All those situations it's the defendants though, right?
-: Right
-: And this is the defendant's friends, friends.
-: No, this is the defendant
rather that he's known since the sixth grade
that he witnessed and a dispute inside the car
with the same group of people earlier.
So all of these facts together, right?
Looking at a very generous, legal standard
of when that instruction becomes an entitlement
adds up to viewing ends
in the light most favorable to Mr Breyer together.
A jury could find nervous excitement
could find reasonable provocation,
and they should consider that.
-: Ask you about the computer generated
versus computer stored
as far as the terminal with your client's name.
-: Yeah, so detective Ridge goes and looks at a screen
at Logan airport and eight years later,
testifies to what he read on a screen.
Now that not anything other than hearsay.
That is not a computer stored record.
-: Let me just assume
that you mean it's not computer generated.
You mean it is computer stored.
-: That's exactly what I mean.
-: Yeah alright.
Well, let's just take that argument is true.
So the objection is hearsay and there's a lot,
and now the first argument out of the box,
and it's the best evidence wrote argument.
So that's not preserved as to the best evidence.
But as to hearsay, assuming it's computer stored,
you've got a statement of the defendant,
a statement by a party opponent,
and arguably you have a business record.
You don't have authentication preserved,
nor do you have the best evidence rule preserved.
-: So the judge raises the best evidence, suicide, spotty.
She comes up with that one.
It's got nothing to do with the best evidence rule.
If you look at sail yer, footnote 10,
which is the case that she relies on to say,
it's the best evidence rule that this court said,
and you said the exact opposite of that.
-: No, that's the issue is whether it's hearsay
or not hearsay.
So you don't have, I agree with you.
That's the evidence rule for red herring here, I do.
I guess my question is,
I mean, there, isn't an argument that could be made.
But I won't get into it.
The issue is that if the judge was wrong
and it's a hearsay issue,
but there was an exception for the hearsay,
then the evidence was admissible.
-: Well, defense counsel objected said it was hearsay.
And there is no exception that allows it to be admitted.
-: Whose statement is it that's been read off?
-: It's the statement of either an employee by the airline
or an employee by Sabre
what the flight is booked through.
It's that person's statement,
it's not the defendant's statement.
-: Okay, so if it's not a statement
of a party opponent.
Why isn't that a statement
that there was a business duty to record
and it was recorded in the ordinary course of business,
and it wasn't the ordinary course of business to record it?
-: Nobody argued that below, but even if it was,
you have a business duty to things correctly,
in a medical record.
You have a business duty to record things at the RMV.
That doesn't mean that somebody that can come in and say
that they saw it on a screen eight years later.
-: That's the evidence that you said didn't exist.
So that wasn't preserved.
-: I'm confused,
isn't this obviously computer generated Sabre,
which is, it's not Sabre you're entering.
When you buy a ticket, you tap in your information,
meaning that the defendant taps in his information.
Why are we thinking this is done?
The airlines don't re type your stuff in anything.
Why is there any possibility
that this is not computer generated?
-: Actually they do your honor,
because the department of Homeland security
requires that they do.
And if you look at the record appendix upon my reply.
-: I read what you wrote.
You think that they literally retype as opposed to,
download this information into another program.
You think they go through every flight and re type?
Somebody sits there and re types everything?
-: Well, the government requires
that they be trained and certified
of how to input it into that system.
And individual humans have to be trained
in how to do it.
-: Isn't, just that they download the information,
not that they re type it?
-: If Look at the training manual,
and what's required of them to be certified,
to enter into the system
that is shown on those screens at airports,
as a matter of national security.
They're saying that that's what they require.
-: Did any of this come out at trial
or are we just looking at it now, knowing this?
-: It wasn't flushed out in that at this level of trial,
no it wasn't.
-: And can I ask one other question?
Are we sure they couldn't print out that form
five years later?
Is that why the best evidence is the oral testimony
cause there's no possibility
of regenerating that information?
I'm confused by that, because is that what happened?
And is there their testimony to that effect?
-: I'm sorry, no need to cut you off.
There's no evidence concerning what Sabre's record
retention policy was,
cause it does seem to have come from a Sabre agent.
There was no evidence as to that.
The only evidence was that the Commonwealth didn't have it.
-: Sabre is not, you don't have agents in Sabre.
Sabre, is that how the computer system operates
when you input flight information, but go ahead.
-: The Litigation, the federal litigation with Sabre
suggested the opposite.
-: None of this comes out at trial.
What talking about computer generated computer skill.
This is not before the judge.
We just have a simple hearsay objection.
What do we do with that?
-: I think you'd find that it was hearsay
based on the records you have,
because it doesn't fall within any exception.
It doesn't fall under the best evidence rule.
It is no different than reading information off a screen
in an RMV case or reading a medical record
that's not there in the courtroom.
-: Well, that's the best evidence rule objection,
but there's a suggestion that this is a business record
and why isn't it?
-: Well, your honor,
I would say that when there's no record at all,
that's there, there's no document of any kind.
-: I understand you have,
although I don't think you're gonna win on it.
I understand you've got a legitimate,
best evidence rule objection.
But every time they ask you about the hearsay exception,
you bring up the best evidence rule.
-: Well, I think it's your honor.
It's my position that if somebody
is testifying from their memory of what they saw
on a computer screen,
and there's no document that that's, you're sick.
-: No, that's the best evidence rule objection,
but that's not preserved.
-: All right, any further questions Ms Belger?
Thank you.
Mr Linn please.
-: Good afternoon your honor.
Is Paul Linn and for the Commonwealth
my I please the court.
The first thing I would like to do is correct a mistake
by my sister and her argument.
She said, there's no direct evidence
that the defendant had gun.
There is direct evidence that the defendant had a gun,
Tyrone Brooks, who was my witness testified.
He described the person who fired the gun
as wearing a gray hoodie and tan pants.
And then he identified footage,
video footage of the defendant outside the bar,
as the person who saw firing the shot.
So yes, there is direct evidence.
The facts of this case are very similar
regarding the manslaughter issue
as the facts and Commonwealth versus penal,
which I cite in my brief, that's 481, mass 413, 2019.
In that case too, there's a bar brawl.
In that case, it appears to be a physical bar brawl.
And the combatants are thrown out of the bar
outside of the bar, the intended victim,
his name is Easton squares up to fight the co-defendant
and the co-defendant reacts by pulling out a gun.
At some point, the defendant grabs the gun
from the co-defendant chases him
and then fires a shot that hits another person.
And in that case, this court said
that the defendant was not entitled
to a voluntary manslaughter instruction
for exactly the reasons that I argue in my brief,
which he brought the co-defendants brought a gun
to a fistfight.
Now my sister argues in a reply brief in here today
that the shooting of monad and the shooting,
the bullet hole in the car indicate
that there were more people there with guns.
But there are several problems with that argument.
First of all,
it wasn't raised at trial defense counsel at trial argued
entirely based on the evidence leading up to the shooting.
But more important I think is that there is no evidence
that the defendant knew at the time
that anyone else was armed.
There's no evidence that these two groups know each other.
There's no evidence that the defendant running was group.
Believes these people have a reputation for being armed.
There's no evidence that anyone displays a gun
prior to the shooting.
All that happens prior to the shooting
is there is this argument in the bar
in which the bearded man
uses an extremely offensive epithet
to further to Waldo aquas Vivas.
And then outside the bar, there's this punch
you can't see on the video,
but we accept the Waldos testimony
and the light most favorable to the defense
that he got, the sucker punch.
But none of that suggests that anyone's armed.
And as you've pointed out,
Waldo remain standing and remains fighting
in these few seconds between the punch and the shooting.
So there's no reason for the defendant to believe
that he needs a gun,
that anyone needs to be protected with a gun.
And the third thing is I want to make it absolutely clear
that because my sister argues in a reply brief,
that Monyette was shot as he was running down
Blue Hill Avenue, that's incorrect.
He was shot while he was on the, at the Johnny
to repair his car, which was parked on Waverly street,
which was perpendicular blue Hill Avenue.
And that the shooter was farther up Waverley straight away
from the breezeway.
So that's makes it a very strained inference
that this second shooting
was committed by somebody affiliated with the victim.
But even if it was, the defendant had no idea
at the time of the shooting that anyone else was armed.
-: can I get you to shift to the last my colleagues
have questions on the first issue,
the absence of motive.
The judge kind of mangled that a little bit.
Didn't she?
Kenneth then says that if you asked for that instruction,
if you give the first part of the instruction,
you should give the second of its asked, right?
-: Red canister, I don't think it does.
It's because it wasn't requested.
And that's pretty much all they stay about it.
As they say it wasn't requested didn't across
the cause of likelihood of a miscarriage of justice.
So I don't think they actually say,
they say the instruction has been given before
and they say was in action.
-: You don't have to prove motive,
but motive is central to a who done it, correct?
-: Correct, yes.
-: And the danger is that the judge took away that arrow
when the defense attorney's quiver by saying
don't consider motive.
Cause he was arguing.
They didn't prove it was my guy,
cause my guy didn't have any motive.
-: To, but she didn't that's the bottom line.
Is she simply gives the instruction
that the Commonwealth doesn't have to prove much.
Now she does refer to the defendant's argument.
And I don't concede that the argument was wrongly given.
It is clear from the cold transcript
that defense counsel doesn't explicitly say
the Commonwealth has to prove motive.
But both the prosecutor and the judge who are present
hear that argument and suggesting
that the Commonwealth has to prove motive.
-: That's not what the defense attorney said.
-: As I said, it's not explicitly what he said,
but the judge and the prosecutor who are there,
who hear how we emphasize as this word,
here's how he makes that argument.
Both independently came to the conclusion
that he had suggested that the Commonwealth had a burden.
-: Forgive me I don't have it in front of me,
but what was it in her instruction
that preserved the who'd done it defense?
-: Nothing affirmatively preserved it.
This is a case like Boden Though,
or excuse me, not like Boden, I should say.
But like the Boden rule, what the error was in Boden,
as the judge says, you absolutely cannot consider
the lack of testing evidence here.
You can only consider the affirmative evidence you've heard.
The judge does not give an instruction like that here.
If he doesn't say, no, you cannot consider lack of motive.
She just says, I have to prove it.
-: Do you think going forward,
if a judge is gonna instruct motives is not an element
that they should also instruct
that you can consider motive on the issue
of a reasonable doubt.
-: If it's warranted by the evidence, yes.
I don't see any problem with that at all,
-: But you've got a bigger, I mean,
it's a little trickier than this throw in.
Cause I'm really proud.
You're right.
It begins with him talking about absence of voter.
But then they have a colloquy.
Somebody is crackling.
Justice Lenk can you click your mute button.
-: Thank you, so what I said
was they haven't established a motive
and that in fact can be reasonable doubt, then clarified.
Are you going to say what the jury can use
absence of motive for it, does it?
It's a factor in the evidence to establish whether or not
the Commonwealth has proven the case.
A lack of motive can be basis for reasonable doubt.
So this defense counsel is very sharp here
in drawing that distinction.
And she doesn't give him that.
I don't know motive is really in dispute here
and that may make this nonprejudicial,
but the defense lawyer sort of knew the law
and the judge didn't.
-: There's no question that the judge makes a statement
during that colloquy sidebar
that's incorrect as a matter of law,
but she doesn't share that with the jury.
-: Right?
So, and I think as, as you pointed out there is,
although the prosecutor doesn't affirmatively argue motive,
he does argue that the, after the argument, the bar,
and this is supported by Wendy Palouse testimony.
After the argument in the bar, he says, wait, here.
I don't think the prosecutor actually mentions
the weight here evidence.
But when you parallel testified that after this argument
in the bar, the defendant said, wait here and left.
And then we have the video evidence that he leaves
and he goes to his car and comes back
and then you have the shooting.
So there certainly was evidence
that the motive for the shooting,
there was a motive for the shooting.
And that motive was that he was angry
because of the insult and argument inside the bar.
So I don't think it's prejudicial, I don't think.
And also the other reason it's conditional is.
-: So when the judge,
when she gives the instruction that we're talking about,
she goes members of the jury,
you've heard referenced by defense counsel to Commonwealth,
not proving motive.
I'm going to be instructing you shortly
on what they have to do to prove beyond a reasonable doubt.
You will clearly be instructed in that regard,
but it, when it comes to the issue of motive,
the Commonwealth does not have
to prove motive in any criminal case.
Do you feel when she gives her reasonable doubt instruction,
I take it she doesn't come back to this stuff, right?
-: Oh, she just gives the standard elements of murder.
Which of course is accurate.
But I think the other issue here is,
you have, in this case, you have two eye witnesses,
one eye witness who identifies the defendant as the shooter,
you have another eyewitnesses who identify
as this person in the gray sweatshirt and tan pants
as the shooter.
you have the video evidence showing that the defendant
who was wearing a gray sweatshirt and tan pants
is right there at the scene.
And can see on exhibit 14,
the sort of long shot toward the door of the bar
is you see the defendant make a sudden move
toward the victim.
You can't see a gun, you can't see a muzzle flash.
You can't see him anything
that says, yes, that was a gunshot.
but he does make a move towards the victim.
That's that's not deniable.
And I think when you put together that evidence combined
with the fact judge's instruction was correct
as a matter of law
that you don't have any prejudice here at all.
-: Can I return you to the evidence issue?
And I will turn over to the professor of evidence surely.
But is there any doubt
that this is computer generated information?
I'm confused by the argument that somehow somebody is typing
this back into the Sabre system.
So is there a basis for concluding that here?
-: Let me put it this way.
It's very confusing and it's not entirely clear,
but what happens of course,
is that the defendant or his agent types,
his personal information,
the flight information and his government ID information
into the computer.
That's a statement of the defendant either personally
or by his agent.
What Sabre then does or whatever company it is.
I mean, the problem with the federal court
is it's usually Sabre.
Is this information gets formatted
into a format that the government computers can read?
Now whether that's downloaded or typed,
I would be extraordinarily surprised
if this information were typed.
There are literally thousands of flights
in the United States every day.
And the idea of people sitting there typing in information
that's already exists, seems very unlikely.
But in any way, whether or not
it's typed in or whether or not it's downloaded,
it's still the same information
that the defendant has provided,
that is that the flight passenger has provided
just put into a new format.
And then when you show up at the airport,
you just put your boarding pass down on that scanner.
You hear the beep and the flight attendant says,
or the desk agent says, have a nice flight, sir.
I think this is all simply computer generated information
based on information provided by the passenger
who is in this case, the defendant, the party opponent.
So I think there's no question
that this information is non hearsay.
I want to emphasize that regardless,
this evidence is totally nonprejudicial
because there is so much evidence
that the defendant leaves the country
and is out of the country for six and a half years
until he's extradited from the Dominican Republic.
Again, apparel low his girlfriend testified
that she sees him only once before Halloween.
And that he goes to the Dominican Republic,
but she didn't know he was going so soon
because thought he was going in December.
And then detective Callahan.
I think it is says he interviews the defendant's mother.
And by that time, which was November 8th, he's already gone.
And in closing argument,
defense counsel says that they waited
until the defendant was out of the country
to search his house, which took place on November 10th.
So the information you have here is.
-: Justice Gaziano is Justice Lenk still with us
or she'd gone again.
-: Justice Gaziano you may be muted.
-: Muted,
I apologize.
She has, she's gone again.
I missed it while we stopped the clock with Mr Lowy
I'm getting another message.
I was just, hold on and give her a second
to call back in, please.
Great, good to have you back.
-: Thank you,
-: Mr Lenn you you already answered
some evidence questions, continue, please.
-: I think I was done with my answer.
I was talking about the fact that the passenger list
was cumulative of a wealth of evidence
that the defendant left the country within 18 days
of the, of the shooting.
And didn't come back for six and a half years
until he was extradited from the Dominican Republic.
So it really doesn't matter.
It's not prejudicial all that,
whether he left on the 31st or the 8th or the 10th.
The fact is he leaves within 18 days
and he doesn't come back for six and a half years.
That's the consciousness of guilt information.
So to the extent, if any,
that there was any error and admitting this hearsay,
it is entirely cumulative of a wealth of evidence
that he fled the country because of the shooting.
-: Other questions? -: Can you hear me?
-: Yes we can.
-: Okay good.
-: I got lost before I got myself disconnected,
but anyway, I apologize for this by the way.
Anyway, my question has to do with, I understand Mr. Lenk
this doesn't matter,
but still I Was wondering if the Commonwealth
had any obligation to lay a foundation for the evidence.
And what the foundation was laid for before doing it.
-: Yes, there was a discussion.
Well, there was testimony that the detective
had been an agent prior to being a detective
and knew how the system worked
and explained that the prosecutor explained
that it was an automatic system.
There was no testimony about the details.
My sister's right.
There was really no testimony about Sabre.
There was no testimony
about how boarding passes are collected, things like that.
But there was some foundation and the prosecutor did say,
I couldn't, he spoke, he supposedly said,
and I believe I will double check this,
but I believe the detective said also
that he wasn't able to print it out.
And there's no real explanation of that.
And then the prosecutor said that he did tried to get it
from the department of justice with no with no luck.
How hard are you searched again not on the record,
but it's the ultimate finding
was that he didn't have it at the time of trial,
he had made good faith efforts to get it.
And that was the basis of the judge's finding
that it was that the best evidence rule had been satisfied.
-: Okay thanks.
-: So if it's computer generated,
the foundation would have had to be laid
in front of the jury, not in front of the judge.
-: That depends on the objection, I believe.
I don't think the defendant could have not contested
this entirely as you've pointed out.
He doesn't really make a best evidence argument here.
But again, I just, I turned back regardless
of what foundation was laid, whether this is hearsay,
it's all completely nonprejudicial.
I would like to say, if they're not afraid of the questions,
I'll ask you just a short thing
about the prosecutor's argument about the view.
This court has been has said, of course,
that the view is technically not the gathering of evidence,
but they they've also said,
you've also said are in cases like chorus,
which I sat in my brief on page 39,
that this is something that the jury can consider.
This is information that not only can be considered
by the jury, but in the case of...
-: Why would we would we send them on a view
if it made no sense?
-: Right, and I think what happens here is
regardless of what this is,
it's a form of court proceeding
all the jurors are present.
The judge was present, defense counsel was present.
The prosecutor was present.
This is in court evidence.
-: If I could ask you Mr Lynn along a 33e,
because the issue wasn't raised the views part of the trial.
But you're not supposed to take the jurors
and put them into the situation.
For instance, you can't say to one juror,
look at the jury next to you
see how far away he or she is from you.
That's how far away the defendant was from the witness.
It can't put the jury into the trial like that.
And here what's happening the prosecutor
is having the jury become in effect
testing memory through an experiment.
So I think that the view, objection, doesn't work at all.
But on the 33e it just can't put the jurors
into the case like that.
We have a lot of closing argument issues
that we've addressed that way.
-: You certainly can't ask the jury
to have to put themselves in the place of the victim
for purposes of simple things like that.
I don't think that.
-: Identification or in the person remembering identification
that's the problem with the argument.
Not that it's a view.
-: Yeah, but the bottom line is
what he's asking them to do is just verify
what's a common sense, common knowledge principle
that is that something that's been born out
from every major historical event in American history,
from Lexington Green to Kenosha.
And that is when people see an event,
they see different things.
They don't remember specific details.
They get things wrong, they put things in the wrong place.
-: That's all absolutely okay.
I'm just saying,
I don't know what the implications are at all,
considering everything, but I'm just saying,
when you make that argument,
you can't then send the jury out,
become do an experiment
to test the wrong number
that we don't allow that in closing.
-: I think certainly in terms of 33e,
and then in terms of prejudicial error,
cause the defendant did,
I wouldn't say ejected the entire view, but he objected,
certainly objected to the part you're talking about.
That's when he made the objection is when the prosecutor
asked for this experiment.
But for either under either purpose,
this is just a common sense principle.
He's just saying
the witnesses are not gonna remember everything perfectly.
And that's just common sense.
So I don't think this is good.
-: I'm sorry, can I interrupt for a moment?
Would you say attorney Lynn, that it's really just using,
he could have done the same thing by referring to something
in the courtroom the day before?
It's Just drawing on some kind of common knowledge?
-: Exactly, what was the guy
in the first row wearing something like,
yesterday in the courtroom, exactly.
-: What is not unique to a view necessarily correct?
-: Absolutely, correct, it's update.
What did we do yesterday for lunch?
I mean, that probably would be more extraneous.
That would be worse.
But that, again, that's worse than what happened here.
And I think under any, any standard,
this doesn't create a substantial likelihood
of a miscarriage of justice or prejudice.
That's the defendant did of Jack.
I see my time is up are there any further questions?
-: Thank you Mr Lynn.
-: Thank you very much, your honor.
-: The court will adjourn for the day.