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SJC-12836, Commonwealth versus Terrence Tyler.
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Okay, Attorney Reidy.
Morning, your honors.
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May I please the court, my name is James Reidy,
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and I represent the defendant, Terrence Tyler.
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Mr. Tyler participated in an attempted unarmed robbery
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that led to the shooting death of Wilner Parisse.
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As Tyler was not the shooter
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and there was no evidence presented of malice,
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the Commonwealth proceeded under felony murder theory.
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The central question at trial was whether Tyler acted
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with a conscious disregard for the risk to human life.
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In other words, the question was whether the robbery
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was planned in a way that ignored the likelihood
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that death would result.
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You didn't bring an insufficiency
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of evidence claim on that.
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I did not because I think clearly,
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the jury could have made that conclusion.
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However, given the jury instruction on conscious disregard,
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which provided the jury both an option to convict Mr. Tyler
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under a theory that only satisfies involuntary manslaughter
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as well as satisfies the conscious disregard standard,
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I don't think this court can draw anything
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from the jury's conclusion that he acted
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with a conscious disregard.
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Well, you obviously fault the model instruction.
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The judge followed the model instruction.
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Correct.
on conscious disregard,
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and one thing that permeates your appeal
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is kind of a blurring of the lines
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between the necessity of an involuntary manslaughter
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and the applicability of involuntary manslaughter
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in a felony murder case and this jury instruction.
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Aren't these separate inquiries?
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Well, so they are,
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but I think that they have certainly overlapping themes
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and overlapping questions, right?
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For the model jury instruction,
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if it allowed the jury to make a conclusion
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that conscious disregard is satisfied
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by an act that's only dangerous to life,
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that could satisfy the involuntary manslaughter standard,
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which describes dangerous to life
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in the sense of a substantial risk of death.
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Now, obviously-
And we distinguish
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between them by degrees of harm, correct?
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Correct. The risk is the distinguishing.
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Substantial risk of death would be involuntary manslaughter.
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Likelihood of death would be conscious disregard.
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Given the facts of the case, given what the plan was,
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and there wasn't much of a question about what the plan was-
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That's why I opened with sufficiency, right?
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And that was what basically was argued,
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and the lawyer obviously did a good job
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because convinced them that he didn't have knowledge
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of the firearm.
Correct.
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Right, so yeah, to me, it was a close case, frankly,
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I think-
Actually,
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it's a very close case.
It's a very close case,
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but I think it would be, frankly,
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a little disingenuous to argue that there wasn't sufficiency
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of the evidence in the sense that I think that the jury
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could have had a conclusion based on, I think,
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what the Commonwealth lays out in its brief
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that the plan is involved a drug dealer, et cetera.
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But the jury also could've reached the opposite conclusion,
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and so that's why it's not a sufficiency
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of the evidence argument.
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It's more that the jury instruction didn't provide the jury
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with enough of a narrowing to ensure
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that jury what came to the same conclusion.
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What would a better jury instruction say?
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Dangerous to life and a likelihood to cause death.
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Dangerous to life.
It's the likelihood of death
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that is the distinguishing factor.
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The fact that the court uses the word or,
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the model jury instruction uses the word or signals
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to the jury that that dangerous to life is something
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that is less than a likelihood of death.
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Dangerous to life, likely to cause death is-
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Dangerous to life and likely to cause death.
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And.
And.
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That's exactly what the court said in Matchett.
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It's what came from Serne, which is that English case,
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which is sort of the modern foundation of felony murder,
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which said that it has to be dangerous to life
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and likely in itself to cause death.
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If that's what it said in Matchett,
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did you know how that came to be in the jury instructions?
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I don't.
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There's no footnote in the jury instruction
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that says we're getting the language from here.
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It is simply says likely dangerous to life
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or likely to cause death.
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And in my research, I couldn't find,
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there's no really discussion of it,
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and I'd suggest that that is probably because,
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anecdotally, most felony murder cases involve armed robbery
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or a handgun or an act that is inherently dangerous,
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and where an act is inherently dangerous,
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conscious disregard is presumed.
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It's not a question really for the jury. It's by law.
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There's a conscious disregard.
So post-Matchett,
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you tried to track this down as to how this went.
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I did, and I couldn't find anything.
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I didn't see anything
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in the model homicide instructions prior to 2013.
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The model jury instructions
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after 2013 tracked that language.
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And they only cite Matchett, I assume.
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There's no citation at all in the,
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at least in 2013, I didn't find anything in,
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at least off the top of my head
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'cause I think it would've gone
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down that rabbit hole if I did, and I did not.
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I couldn't track where that came from.
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Can I ask you about the involuntary manslaughter?
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Of course.
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The general rule as you recognize
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is that you don't get involuntary manslaughter
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in a felony murder case, period.
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Correct.
Then there's Donovan
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and Campbell, which are the only exceptions, correct?
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Correct.
In your reply brief,
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you circled back to the inherently dangerous language.
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Correct.
But I don't think that's
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appropriate because you have to deal
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with constructive malice in felony murder,
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and when I read Donovan and Campbell,
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they're all instances where the felonious intent
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could be something different.
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In this case,
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you agree that the felonious intent was to steal, correct?
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Yes, based upon the fact
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that defense counsel took that position.
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Well, it'd be hard not to.
It'd be hard not to. Agreed.
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Given it was his idea.
Agreed, agreed.
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So how do you get around the fact
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that you have a felonious intent
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and the only felonious intent in this case
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that matches the predicate felony,
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and in Campbell and in Donovan,
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there was evidence of different intent?
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Well, let's go back to what Donovan was about.
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So when Donovan, the defendant was charged
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under two theories, was charged under felony murder
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and was charged under conscious disregard,
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and it proceeded to trial under both of those theories.
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The court, upon a motion of the defendant,
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directed out the deliberate premeditation theory.
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So it only went forward under a felony murder theory.
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However, prior to directing that out,
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defense counsel had asked
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for an involuntary manslaughter instruction
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under the theory of voluntary manslaughter,
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which was denied, and didn't matter at the time
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when it came to appeal
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because the deliberate premeditation was directed out.
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The defendant specifically argued
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that involuntary manslaughter
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is a lesser included offense of felony murder,
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and that's what the court decided.
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The court said specifically,
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"We are deciding this as a lesser included offense,"
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which is why they
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applied the substantial likelihood standard
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because it wasn't a preserved error
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because counsel at trial only asked
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for the involuntary manslaughter
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as a voluntary manslaughter
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under the voluntary manslaughter theory.
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It then said that where there is a question
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of whether the defendant acted with a conscious disregard,
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involuntary manslaughter can be a lesser included offense
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of felony murder.
No.
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It says (chuckles) when the defendant acted without malice,
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and what they should've said is constructive malice,
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but he acts with wanton and reckless disregard.
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You're reading in unfairly, I think,
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the conscious disregard standard.
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The facts in that case
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could have shown the defendant punched the victim.
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The defendant didn't know the juvenile defendant was armed,
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which is your case, basically, but then importantly,
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the defendant didn't know of robbery plans,
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and the defendant didn't participate in a robbery.
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That's not your case.
Agreed, that's not my case.
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However, I think that there is still a question of-
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On these facts,
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he could have been acquitted of felony murder
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because he did not share the co-defendant's intent
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to rob and could've been convicted.
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That's what the court held.
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So the felonious intent on the facts
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could have been different as opposed to these facts.
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But if we decide that,
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it's the felonious intent that matters,
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and if you have a felonious intent
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and a death occurs during the commission
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of that felonious intent, it is automatically felony murder.
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Correct. No, that's why you don't get the instruction.
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That's the general rule.
Well-
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You're trying to read out the general rule,
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and then to think it cites Campbell.
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Campbell, you've read Campbell.
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Campbell's like crazy, the factual, you know,
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and they said, "Hey, as unbelievable as the defendant is,
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you take him at his word,"
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and the guy gets on the witness stand and says,
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"Oh, I didn't rape her.
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You know, she was yelling.
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I put my hand on her throat, my hand slipped,
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and next thing, she wasn't moving,
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and then we undressed her and dumped her."
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So they said, "With a predicate is assault
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with intent to rape," he gives this farfetched,
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but his story that it wasn't a rape.
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It was actually this accident.
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The court says,
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"Well, his intent could have been this crazy thing,
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so he gets involuntary manslaughter."
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Again, no felonious intent.
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But if we have a felonious intent,
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we're essentially saying there's a bright line rule that,
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if there's a felonious intent and a death occurs-
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Yeah, the felonious intent being the predicate,
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importantly the predicate felony for felony murder.
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Correct, but there there is also a recognition
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that someone can have a felonious intent but not be involved
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in a plan that is likely to result in death
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because we have the-
But that's a separate thing
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the government has to prove.
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So the issue is whether you get involuntary manslaughter,
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the whole purpose, which obviously post-Brown doesn't-
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Right, it doesn't.
Right, right.
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It's an academic, well not for Mr. Tyler, but-
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Not for Mr. Tyler. Exactly, exactly.
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The point of felony murder pre-Brown
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was that constructive malice takes you out of malice, right?
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Right.
Any of the prongs.
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So therefore, we're only dealing
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with what did this defendant intend
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with respect to the charge felony, nothing else.
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Well, except-
An involuntary manslaughter,
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any manslaughter negates the three prongs of malice
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'cause you don't have an intent to kill, et cetera.
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You have this wanton and reckless conduct.
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Agreed.
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In order to prove felony murder,
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the Commonwealth must still prove conscious disregard,
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obviously.
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They must still prove that as I phrase a dangerous life-
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What Matchett says is if we have someone
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who's a pickpocket and they're running away
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and they kill someone, we're not gonna do this.
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And you're absolutely true, right,
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that 90% of these cases, it's not an issue.
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And that might be low.
Yeah, it might be low.
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You're right.
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That's why-
But frankly-
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That's why I go to A, either sufficiency, or B, 33E.
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00:12:11.790 --> 00:12:14.580
Again, all those who said it's Mr. Tyler,
263
00:12:14.580 --> 00:12:16.320
it's more of an academic question,
264
00:12:16.320 --> 00:12:19.870
but I find it difficult to fathom
265
00:12:25.665 --> 00:12:28.931
that there is not a lesser included of felony murder
266
00:12:28.931 --> 00:12:30.710
in the sense that a death still occurs
267
00:12:30.710 --> 00:12:31.763
during the commission of a felony,
268
00:12:32.992 --> 00:12:35.662
but if that felony was wanton and reckless,
269
00:12:35.662 --> 00:12:36.886
there was a substantial risk of death
270
00:12:36.886 --> 00:12:37.883
but not a likelihood of death,
271
00:12:38.850 --> 00:12:40.750
that without that likelihood of death,
272
00:12:42.095 --> 00:12:43.495
the act is still unpunished,
273
00:12:44.508 --> 00:12:48.030
and that's where frankly that I think Donovan
274
00:12:48.030 --> 00:12:49.353
was trying to get to.
275
00:12:50.734 --> 00:12:52.137
I understand the court's reading,
276
00:12:52.137 --> 00:12:53.880
and I certainly don't think
277
00:12:53.880 --> 00:12:56.409
that that's an inaccurate reading,
278
00:12:56.409 --> 00:12:57.242
but I do think there's another-
279
00:12:57.242 --> 00:12:59.378
The Commonwealth read it that way, too.
280
00:12:59.378 --> 00:13:02.970
They did, but I think that-
Your way.
281
00:13:02.970 --> 00:13:04.770
I do think that there's another possibility
282
00:13:04.770 --> 00:13:05.970
that there is something,
283
00:13:08.048 --> 00:13:10.275
there can be an act that results in death
284
00:13:10.275 --> 00:13:11.890
that doesn't involve a conscious disregard-
285
00:13:11.890 --> 00:13:16.394
I do agree if it wasn't the charge predicate felony,
286
00:13:16.394 --> 00:13:17.963
if it wasn't a qualifying felony.
287
00:13:20.430 --> 00:13:22.583
I mean, any felony is a qualifying felony.
288
00:13:23.493 --> 00:13:24.618
Well-
289
00:13:24.618 --> 00:13:26.467
It's either first degree or second degree,
290
00:13:26.467 --> 00:13:27.999
and it depends on sentence.
You're right,
291
00:13:27.999 --> 00:13:30.023
and the jury, of course, rejected the B&E.
292
00:13:31.259 --> 00:13:32.360
Can you address?
Well,
293
00:13:32.360 --> 00:13:33.413
maybe they didn't even reach the B&E.
294
00:13:34.736 --> 00:13:35.708
Well, they had-
295
00:13:35.708 --> 00:13:37.063
'Cause it came back first degree.
296
00:13:37.063 --> 00:13:39.060
Right, they had it as an option. They didn't pick it.
297
00:13:39.060 --> 00:13:40.440
Well, because the defense counsel told the jury
298
00:13:40.440 --> 00:13:42.740
that he committed and attempted armed robbery,
299
00:13:43.682 --> 00:13:46.182
I think, which is a fairly significant concession.
300
00:13:47.192 --> 00:13:48.210
Yeah, I think he was putting his eggs
301
00:13:48.210 --> 00:13:50.913
in the sufficiency basket, and it didn't work out.
302
00:13:52.393 --> 00:13:54.191
So I disagree with that.
303
00:13:54.191 --> 00:13:55.530
I don't think he asked for second-degree murder
304
00:13:55.530 --> 00:13:56.843
if he's putting his eggs in a sufficiency basket.
305
00:13:58.000 --> 00:13:59.346
He asked for straight second-degree murder,
306
00:13:59.346 --> 00:14:00.283
not second-degree felony murder,
307
00:14:00.283 --> 00:14:01.116
straight second-degree murder,
308
00:14:02.032 --> 00:14:05.070
and that, to me, doesn't speak of a defense attorney
309
00:14:05.070 --> 00:14:08.043
who has a coherent strategy that, "I'm going for it all.
310
00:14:08.877 --> 00:14:10.740
I'm going for an insufficiency,
311
00:14:10.740 --> 00:14:12.572
but I'm asking for a second degree."
312
00:14:12.572 --> 00:14:14.810
Can you help me out as far as 33E goes?
313
00:14:14.810 --> 00:14:17.640
Sure.
How would we analyze this
314
00:14:17.640 --> 00:14:22.473
under our 33E standard to get to a second degree?
315
00:14:24.578 --> 00:14:25.793
I don't think you get to a second degree.
316
00:14:30.208 --> 00:14:31.041
If involuntary manslaughter's
317
00:14:31.041 --> 00:14:32.600
not a less included felony murder.
318
00:14:34.054 --> 00:14:35.821
Right, assume that.
319
00:14:35.821 --> 00:14:39.896
Then I guess you're going all for nothing, so right?
320
00:14:39.896 --> 00:14:42.213
So that argument is based on the-
321
00:14:44.252 --> 00:14:46.631
It's a constant with justice standard.
322
00:14:46.631 --> 00:14:47.850
Correct.
Right?
323
00:14:47.850 --> 00:14:52.270
But assume for sake of argument that I don't agree with you
324
00:14:53.525 --> 00:14:56.373
that involuntary manslaughter isn't at play.
325
00:14:57.723 --> 00:15:00.621
How do I get to a second-degree constant with justice
326
00:15:00.621 --> 00:15:02.213
where this was a very close case?
327
00:15:09.150 --> 00:15:11.740
Well, I think assuming also that the court
328
00:15:13.770 --> 00:15:17.217
doesn't make a decision that the jury instruction
329
00:15:17.217 --> 00:15:18.803
created an issue that required a remand,
330
00:15:22.942 --> 00:15:26.146
given the fact that the, and I know it's different,
331
00:15:26.146 --> 00:15:27.507
but given the fact that the trial court found
332
00:15:27.507 --> 00:15:29.303
that there's no second or third prong malice,
333
00:15:30.377 --> 00:15:34.073
given the fact that there was no evidence
334
00:15:34.073 --> 00:15:37.526
from one can even find malice,
335
00:15:37.526 --> 00:15:38.820
at least as far as malice murder is concerned
336
00:15:38.820 --> 00:15:40.220
under second or third prong,
337
00:15:42.342 --> 00:15:43.950
and also given what this court has said
338
00:15:45.025 --> 00:15:46.576
in Dawson about the validity
339
00:15:46.576 --> 00:15:49.182
of an involuntary manslaughter instruction when it comes
340
00:15:49.182 --> 00:15:52.030
to a death that occurs during the commission of a felony
341
00:15:53.377 --> 00:15:55.618
and drawing a distinction between felony murder
342
00:15:55.618 --> 00:15:57.418
and involuntary manslaughter, again,
343
00:16:01.437 --> 00:16:03.060
assuming that the court comes out the Commonwealth's way
344
00:16:04.275 --> 00:16:05.108
on the first argument,
345
00:16:08.820 --> 00:16:13.820
the evidence of this case speaks of just a dumb decision
346
00:16:15.633 --> 00:16:17.220
but not one that was either intended
347
00:16:17.220 --> 00:16:19.795
or reasonably, could be concluded,
348
00:16:19.795 --> 00:16:21.248
would've resulted in a death.
349
00:16:21.248 --> 00:16:23.370
They were going into a house. It was a snatch and grab.
350
00:16:23.370 --> 00:16:24.873
They were expecting him to be,
351
00:16:26.195 --> 00:16:28.770
for lack of a better term, distracted and in a position
352
00:16:28.770 --> 00:16:31.353
that he would not be able to physically react.
353
00:16:32.531 --> 00:16:33.590
There's two people involved.
354
00:16:33.590 --> 00:16:34.800
One grabs the marijuana, one grabs the cash,
355
00:16:34.800 --> 00:16:37.410
and they're out.
There was no evidence
356
00:16:37.410 --> 00:16:39.683
that they thought he was armed as well.
357
00:16:39.683 --> 00:16:41.460
There's no evidence that they thought he was armed.
358
00:16:41.460 --> 00:16:43.440
The Commonwealth makes a lot of the fact
359
00:16:43.440 --> 00:16:46.680
that he had two pit bulls, but in one,
360
00:16:46.680 --> 00:16:48.283
there's not really evidence
361
00:16:48.283 --> 00:16:49.230
that the defendant knew they had pit bulls.
362
00:16:49.230 --> 00:16:53.247
Secondly, I think that really depends
363
00:16:53.247 --> 00:16:54.947
on the perception of what pit bulls
364
00:16:54.947 --> 00:16:55.780
And the jury-
are.
365
00:16:55.780 --> 00:16:58.075
And the jury was told the pit bulls were kept
366
00:16:58.075 --> 00:17:00.686
in the room by the defense roommate said,
367
00:17:00.686 --> 00:17:01.519
"We kept those pit bulls in the room
368
00:17:01.519 --> 00:17:03.270
because they would be all over people when they came in
369
00:17:03.270 --> 00:17:05.580
in the sense of they would be overly friendly
370
00:17:05.580 --> 00:17:07.350
and really kind of annoying,"
371
00:17:07.350 --> 00:17:09.545
and that's why they kept them locked up,
372
00:17:09.545 --> 00:17:11.365
not because they were attack dogs.
373
00:17:11.365 --> 00:17:13.290
And jury rejects the firearm knowledge.
374
00:17:13.290 --> 00:17:15.323
The jury rejects the firearm ultimately.
375
00:17:16.542 --> 00:17:17.375
There was no evidence
376
00:17:17.375 --> 00:17:18.369
that he would've known there was a firearm.
377
00:17:18.369 --> 00:17:20.629
The Commonwealth tried to make a trial to say,
378
00:17:20.629 --> 00:17:23.139
"Well, look at the way that Mr. Shepherd is walking,
379
00:17:23.139 --> 00:17:24.870
and that Mr. Tyler would've seen that."
380
00:17:24.870 --> 00:17:27.250
Even in the video, there's no evidence that he saw it.
381
00:17:27.250 --> 00:17:28.913
They're moving sort of separately. It's dark.
382
00:17:30.750 --> 00:17:32.400
There is nothing in this case that speaks of
383
00:17:32.400 --> 00:17:34.800
that Mr. Tyler would've had a reasonable perception-
384
00:17:34.800 --> 00:17:36.090
We don't have Brown obviously
385
00:17:36.090 --> 00:17:37.990
'cause he was there and he planned it.
386
00:17:40.315 --> 00:17:41.993
He's not in the outer fringes of a conspiracy.
387
00:17:43.230 --> 00:17:45.030
He's not in the outer fringes of the conspiracy,
388
00:17:45.030 --> 00:17:47.857
and when I had the portion of the brief talking
389
00:17:47.857 --> 00:17:49.080
about the retroactivity of Brown,
390
00:17:49.080 --> 00:17:49.913
I was coming from the perspective
391
00:17:49.913 --> 00:17:54.750
of give the defendant an opportunity
392
00:17:54.750 --> 00:17:57.532
to demonstrate there is no malice,
393
00:17:57.532 --> 00:17:58.950
not that there was no malice at trial
394
00:17:58.950 --> 00:18:00.300
because I do think that balancing
395
00:18:00.300 --> 00:18:02.220
of how the Commonwealth would've proceeded
396
00:18:02.220 --> 00:18:05.910
is obviously important, but there couldn't have been.
397
00:18:05.910 --> 00:18:07.906
There was no evidence of malice,
398
00:18:07.906 --> 00:18:09.780
regardless of how this case proceeded based
399
00:18:09.780 --> 00:18:11.280
on what the Commonwealth knew.
400
00:18:12.840 --> 00:18:14.940
The basic position, I think,
401
00:18:14.940 --> 00:18:18.716
on 33E is it's just unfair for him
402
00:18:18.716 --> 00:18:20.231
to do life without parole
It is.
403
00:18:20.231 --> 00:18:21.748
on these facts.
It is.
404
00:18:21.748 --> 00:18:22.921
I mean, is that the bottom line?
405
00:18:22.921 --> 00:18:24.784
That's the bottom line, that, on these facts,
406
00:18:24.784 --> 00:18:27.686
given what he knew, given how the plan was supposed to go,
407
00:18:27.686 --> 00:18:32.686
given the lack of any evidence that the victim had a weapon
408
00:18:33.690 --> 00:18:37.263
or that he was not supposed to be able to react,
409
00:18:38.180 --> 00:18:39.540
that this wasn't supposed to involve any sort
410
00:18:39.540 --> 00:18:41.013
of confrontation whatsoever.
411
00:18:41.959 --> 00:18:44.553
And while we may think that it's not the best plan,
412
00:18:45.960 --> 00:18:46.860
it doesn't mean that it was a plan designed
413
00:18:46.860 --> 00:18:50.013
or even would've hinted at death,
414
00:18:50.889 --> 00:18:54.070
and it's fundamentally unfair for Mr. Tyler
415
00:18:55.530 --> 00:18:57.210
to spend life in prison despite the fact
416
00:18:57.210 --> 00:18:59.370
that Mr. Parisse tragically lost his life,
417
00:18:59.370 --> 00:19:01.260
for him to spend life in prison,
418
00:19:01.260 --> 00:19:03.003
to never leave those walls.
419
00:19:04.020 --> 00:19:05.160
I should know the answer to this,
420
00:19:05.160 --> 00:19:07.823
but can you tell me what happened with the co-defendant?
421
00:19:08.829 --> 00:19:12.220
So Mr. Shepherd was surprisingly also convicted
422
00:19:13.216 --> 00:19:16.100
of a felony murder with unarmed robbery
423
00:19:16.100 --> 00:19:17.793
as the predicate felony.
424
00:19:18.690 --> 00:19:20.487
In a separate trial, correct?
425
00:19:20.487 --> 00:19:22.048
Separate trials, and that suggests,
426
00:19:22.048 --> 00:19:24.882
and those courts already heard Mr. Shepherd's appeal.
427
00:19:24.882 --> 00:19:26.894
I would suggest that that part of that has to do
428
00:19:26.894 --> 00:19:27.727
with the defense at the second trial.
429
00:19:27.727 --> 00:19:30.150
The defense at the second trial really focused on the idea
430
00:19:30.150 --> 00:19:32.250
that Ms. Jones could be the shooter,
431
00:19:32.250 --> 00:19:33.990
the way she was the person seen leaving.
432
00:19:33.990 --> 00:19:35.940
There was a woman who screamed, et cetera.
433
00:19:35.940 --> 00:19:38.220
And I'd suggest that that jury's conclusion
434
00:19:38.220 --> 00:19:41.250
about Mr. Shepherd was we don't know
435
00:19:41.250 --> 00:19:44.636
if it was Mr. Shepherd or Ms. Jones that was the shooter,
436
00:19:44.636 --> 00:19:46.860
but regardless, they both participated
437
00:19:46.860 --> 00:19:49.238
in an attempted unarmed robbery
438
00:19:49.238 --> 00:19:52.189
that resulted in a death along with Mr. Tyler,
439
00:19:52.189 --> 00:19:53.580
and there was no question whether Mr. Tyler was the shooter.
440
00:19:53.580 --> 00:19:55.323
We resolved Mr. Shepherd's case?
441
00:19:56.487 --> 00:19:58.019
No, you heard Mr. Shepherd's case
442
00:19:58.019 --> 00:20:00.450
approximately six weeks ago.
Okay.
443
00:20:00.450 --> 00:20:03.150
Mostly that had to do with the application
444
00:20:03.150 --> 00:20:07.506
of the felony murder rule and systemic racial injustice.
445
00:20:07.506 --> 00:20:10.443
Okay, all right.
446
00:20:10.443 --> 00:20:11.679
It was tried very differently.
447
00:20:11.679 --> 00:20:13.500
It was tried with the idea that it's not necessarily
448
00:20:13.500 --> 00:20:14.610
that Mr. Shepherd was the shooter.
449
00:20:14.610 --> 00:20:17.235
There was also evidence that Ms. Jones was the shooter,
450
00:20:17.235 --> 00:20:18.600
and it suggests that's why the jury came back
451
00:20:21.797 --> 00:20:24.173
with the same verdict, but they were tried very differently.
452
00:20:25.560 --> 00:20:27.000
And if there are no further questions from the court,
453
00:20:27.000 --> 00:20:29.883
I'd rest on the remainder of my arguments on my brief.
454
00:20:30.933 --> 00:20:31.766
Thank you.
Thank you.
455
00:20:34.515 --> 00:20:35.640
Okay, Attorney Janssen.
Good morning.
456
00:20:35.640 --> 00:20:36.750
May it please the court,
457
00:20:36.750 --> 00:20:38.600
Kathryn Janssen for the Commonwealth.
458
00:20:39.510 --> 00:20:40.500
I'd first like to address the jury instruction
459
00:20:40.500 --> 00:20:41.943
on conscious disregard,
460
00:20:42.789 --> 00:20:43.622
and I think it's important to look
461
00:20:43.622 --> 00:20:45.030
at what the actual standards are.
462
00:20:45.030 --> 00:20:47.040
For involuntary manslaughter,
463
00:20:47.040 --> 00:20:51.697
wanton and reckless conduct is a likelihood,
464
00:20:51.697 --> 00:20:53.620
a high degree of likelihood a substantial harm
465
00:20:53.620 --> 00:20:56.250
will result to another whereas conscious disregard
466
00:20:56.250 --> 00:20:59.493
is the risk of loss of life, so-
467
00:21:01.284 --> 00:21:04.084
You know how we got the or versus the and in Matchett?
468
00:21:06.313 --> 00:21:08.366
I'm not totally sure.
469
00:21:08.366 --> 00:21:10.366
I think in Matchett, it was just citing,
470
00:21:11.498 --> 00:21:15.180
(coughs) excuse me, the principle from England
471
00:21:15.180 --> 00:21:18.060
about what's necessary for conscious disregard.
472
00:21:18.060 --> 00:21:20.813
I don't think it's wedded to the and language,
473
00:21:20.813 --> 00:21:22.722
and I think the case law as it's developed
474
00:21:22.722 --> 00:21:25.523
from Matchett talks about it being dangerous to life
475
00:21:25.523 --> 00:21:27.918
and a foreseeable risk of loss of life,
476
00:21:27.918 --> 00:21:31.507
and I would cite Cook 419 Mass 195 at 205 through 207.
477
00:21:32.884 --> 00:21:34.484
It's a 1994 case, and that's,
478
00:21:34.484 --> 00:21:36.083
again, just articulating the standard.
479
00:21:38.418 --> 00:21:40.099
I think what the defense essentially trying to argue
480
00:21:40.099 --> 00:21:41.588
is saying a likelihood of death.
481
00:21:41.588 --> 00:21:43.131
That's essentially a third prong malice,
482
00:21:43.131 --> 00:21:44.577
which is a plaintiff's substantial likelihood
483
00:21:44.577 --> 00:21:45.855
of death will result.
484
00:21:45.855 --> 00:21:47.905
So the degrees of risk are all different,
485
00:21:49.290 --> 00:21:52.518
and this case in this court discuss that in Sneed,
486
00:21:52.518 --> 00:21:54.069
Commonwealth v. Sneed.
487
00:21:54.069 --> 00:21:55.898
And so I would suggest that jury instruction
488
00:21:55.898 --> 00:21:58.111
with the or was appropriate.
489
00:21:58.111 --> 00:22:01.263
It was this court's instruction that told judges to use.
490
00:22:02.138 --> 00:22:04.610
It would've been reversible error to not use that,
491
00:22:04.610 --> 00:22:06.918
and, of course, the defense attorney below
492
00:22:06.918 --> 00:22:10.160
did not object to that language at all.
493
00:22:10.160 --> 00:22:12.880
And I think where you have the dangerous to life
494
00:22:13.775 --> 00:22:15.180
or likely to cause death,
495
00:22:15.180 --> 00:22:17.220
the likely to cause death is more consistent
496
00:22:17.220 --> 00:22:20.130
with the third prong malice, but dangerous to life
497
00:22:20.130 --> 00:22:23.712
is another way of saying foreseeable risk of loss of life,
498
00:22:23.712 --> 00:22:27.106
and therefore, I think it adequately informs the jury
499
00:22:27.106 --> 00:22:29.913
of the amount of risk necessary for conscious disregard,
500
00:22:30.903 --> 00:22:32.513
and it's different from wanton reckless conduct.
501
00:22:36.880 --> 00:22:39.850
Why did your office agree in the motion for new trial
502
00:22:41.564 --> 00:22:43.943
on the involuntary manslaughter lesser included?
503
00:22:45.510 --> 00:22:49.293
Well, I think this area of law is admittedly complicated,
504
00:22:50.220 --> 00:22:53.860
and I think that the Commonwealth's position on appeal
505
00:22:54.859 --> 00:22:57.113
is the correct one under reading of Campbell and Donovan,
506
00:22:58.099 --> 00:23:00.672
and, of course, this court under 33E is not bound.
507
00:23:00.672 --> 00:23:02.723
It has to review the whole record. It's not bound obviously
508
00:23:02.723 --> 00:23:05.190
by the Commonwealth's prior concessions,
509
00:23:05.190 --> 00:23:06.243
I guess I would say.
510
00:23:07.776 --> 00:23:08.790
And I think you hit the nail on the head
511
00:23:08.790 --> 00:23:11.026
under reading of Campbell and Donovan.
512
00:23:11.026 --> 00:23:12.570
There, there was evidence on the record
513
00:23:12.570 --> 00:23:14.720
that the defendant intended to do something
514
00:23:15.632 --> 00:23:18.277
other than a felony, and when you look at Donovan,
515
00:23:18.277 --> 00:23:21.190
the language you cited, it was that the jury
516
00:23:22.142 --> 00:23:23.066
could find the defendant
517
00:23:23.066 --> 00:23:24.647
didn't share the requisite felonious intent,
518
00:23:24.647 --> 00:23:26.109
and I think that's what we're looking at
519
00:23:26.109 --> 00:23:28.215
whether involuntary manslaughter is required
520
00:23:28.215 --> 00:23:30.243
or not as an instruction.
521
00:23:31.778 --> 00:23:34.228
Tell me why this is a life without parole case.
522
00:23:35.605 --> 00:23:36.438
Sure.
523
00:23:36.438 --> 00:23:39.048
So first of all, I would argue that,
524
00:23:39.048 --> 00:23:41.047
because the jury was instructed
525
00:23:41.047 --> 00:23:44.021
on conscious disregard appropriately,
526
00:23:44.021 --> 00:23:46.323
and I think these facts support that in that,
527
00:23:47.172 --> 00:23:49.530
well, and I understand the jury did not come back
528
00:23:49.530 --> 00:23:51.990
with armed robbery or armed home invasion,
529
00:23:51.990 --> 00:23:54.281
but that just suggests maybe they
530
00:23:54.281 --> 00:23:55.457
didn't find actual knowledge,
531
00:23:55.457 --> 00:23:56.940
but it doesn't mean that they didn't find
532
00:23:56.940 --> 00:24:00.208
that there was a reasonable possibility or probability
533
00:24:00.208 --> 00:24:01.950
that he was aware that Shepherd was armed,
534
00:24:01.950 --> 00:24:03.600
and I think the fact that-
535
00:24:03.600 --> 00:24:08.600
Wait, wait, we got a complete rejection of that theory.
536
00:24:10.754 --> 00:24:12.533
Well, no, complete rejection of the theory
537
00:24:12.533 --> 00:24:13.637
of actual knowledge,
538
00:24:13.637 --> 00:24:14.880
which is what the Commonwealth was required to prove
539
00:24:14.880 --> 00:24:18.276
for the armed home invasion and armed robberies predicate.
540
00:24:18.276 --> 00:24:20.076
I think you have an uphill battle,
541
00:24:21.247 --> 00:24:22.080
at least it convinced me
542
00:24:22.996 --> 00:24:23.829
(chuckles) Understood, your Honor.
543
00:24:23.829 --> 00:24:26.199
that he knew a firearm was involved.
544
00:24:26.199 --> 00:24:31.199
So what I have is this foolish plan to distract him.
545
00:24:32.731 --> 00:24:35.823
They go in trying to get weed and money,
546
00:24:37.089 --> 00:24:40.110
and then bad things happen with a guy
547
00:24:40.110 --> 00:24:43.353
who thinks it's an unarmed robbery,
548
00:24:44.646 --> 00:24:47.733
and if I look at people who do life without parole,
549
00:24:50.538 --> 00:24:51.923
(chuckles) this doesn't match up well.
550
00:24:53.851 --> 00:24:55.323
Well, I think when you look at the fact
551
00:24:55.323 --> 00:24:56.343
that this was going to be,
552
00:24:56.343 --> 00:24:59.485
you're going into a drug dealer's home late at night,
553
00:24:59.485 --> 00:25:03.033
and the case law is clear that you can,
554
00:25:04.733 --> 00:25:07.669
I don't wanna say assume, but there's a high likelihood
555
00:25:07.669 --> 00:25:09.187
that you're gonna be met with violent resistance
556
00:25:09.187 --> 00:25:12.156
in somebody's home, especially when drug dealing
557
00:25:12.156 --> 00:25:13.708
is involved, and that,
558
00:25:13.708 --> 00:25:17.340
although I will admit there was no evidence, I believe,
559
00:25:17.340 --> 00:25:21.600
from Jones' testimony that he definitely is armed or-
560
00:25:21.600 --> 00:25:26.070
Yeah, I mean, in Brown, these are two tough guys, right?
561
00:25:26.070 --> 00:25:27.783
They both worked as bouncers,
562
00:25:29.049 --> 00:25:31.343
and there's a necessity to be armed
563
00:25:31.343 --> 00:25:33.873
to confront these two tough guys,
564
00:25:35.055 --> 00:25:37.555
but we don't have any of that in this case, right?
565
00:25:40.273 --> 00:25:42.143
I know-
We have him as drug dealer.
566
00:25:43.580 --> 00:25:44.695
I think give him as drug dealer.
567
00:25:44.695 --> 00:25:47.742
I do think the fact that he has pit bulls
568
00:25:47.742 --> 00:25:49.069
and say what you want about them,
569
00:25:49.069 --> 00:25:51.995
I think a reasonable person and from society
570
00:25:51.995 --> 00:25:54.363
might view pit bulls having a certain, almost-
571
00:25:55.370 --> 00:25:57.934
The dog in "The Little Rascals" was a pit bull,
572
00:25:57.934 --> 00:25:59.416
but that might be dating myself.
573
00:25:59.416 --> 00:26:02.235
(everyone laughs)
574
00:26:02.235 --> 00:26:05.135
But also I think you can't divorce the fact that,
575
00:26:05.135 --> 00:26:07.035
and I would point to Commonwealth v. Netto,
576
00:26:07.035 --> 00:26:07.868
and, of course, that was an armed robbery,
577
00:26:07.868 --> 00:26:10.503
but the court also talked about unarmed robbery.
578
00:26:11.410 --> 00:26:13.440
And if the defendant had gone in
579
00:26:13.440 --> 00:26:15.283
with the belief that it was gonna be unarmed,
580
00:26:15.283 --> 00:26:17.045
that there was more than enough
581
00:26:17.045 --> 00:26:18.030
to warrant conscious disregard there,
582
00:26:18.030 --> 00:26:20.310
that you're going into somebody's house late at night
583
00:26:20.310 --> 00:26:22.410
and that they weren't welcome there.
584
00:26:22.410 --> 00:26:24.660
I think here the fact that the defendant knew
585
00:26:24.660 --> 00:26:26.820
that the plan wasn't going according to plan,
586
00:26:26.820 --> 00:26:28.110
that he wasn't indisposed-
587
00:26:28.110 --> 00:26:32.490
Aren't all the things that you're talking about now go
588
00:26:32.490 --> 00:26:36.753
to whether or not a firearm would be involved?
589
00:26:38.139 --> 00:26:43.139
Well, and I still do think, and I'm willing to say
590
00:26:43.500 --> 00:26:45.030
that the jury rejected actual knowledge,
591
00:26:45.030 --> 00:26:48.330
but I still think that they may have found,
592
00:26:48.330 --> 00:26:51.840
based on the video evidence from 8 Carlton Street,
593
00:26:51.840 --> 00:26:53.100
I can't remember the exhibit number
594
00:26:53.100 --> 00:26:54.570
'cause they were different between the two trials,
595
00:26:54.570 --> 00:26:59.570
I apologize, but you can see Shepherd manipulating something
596
00:27:00.720 --> 00:27:02.255
in his waistband,
597
00:27:02.255 --> 00:27:03.088
and you can see
Oh wait, I'm sorry.
598
00:27:03.088 --> 00:27:04.746
Tyler looking at him.
Right.
599
00:27:04.746 --> 00:27:06.543
So say we don't agree that the,
600
00:27:07.744 --> 00:27:09.640
because the jury did not find
601
00:27:11.128 --> 00:27:13.329
that he knew about the firearm,
602
00:27:13.329 --> 00:27:15.000
say we don't agree with you.
603
00:27:15.000 --> 00:27:17.680
Is there anything else that you can point to
604
00:27:18.711 --> 00:27:22.113
that would suggest that he should get life without parole?
605
00:27:23.361 --> 00:27:24.194
Well, I feel like the fact
606
00:27:24.194 --> 00:27:25.713
that he brought another person with him,
607
00:27:26.597 --> 00:27:29.764
even if, say, doesn't know about the firearm with Shepherd,
608
00:27:29.764 --> 00:27:30.893
the fact that he brought another person, Shepherd,
609
00:27:32.505 --> 00:27:34.515
the only reason why you would bring him
610
00:27:34.515 --> 00:27:36.063
is to help meet resistance,
611
00:27:38.264 --> 00:27:40.050
and I think the fact that you're, again,
612
00:27:40.050 --> 00:27:42.183
going in late at night, a drug dealer,
613
00:27:45.084 --> 00:27:47.670
you could assume that it might turn violent.
614
00:27:47.670 --> 00:27:52.670
And I think also the fact that he or he knew that the victim
615
00:27:53.140 --> 00:27:55.420
wasn't indisposed and he went in anyway
616
00:27:56.322 --> 00:27:57.919
because there's evidence he was talking to Jones,
617
00:27:57.919 --> 00:27:59.821
and Jones was saying, "Wait, you know,
618
00:27:59.821 --> 00:28:00.660
the plan's not going according to the plan,"
619
00:28:00.660 --> 00:28:03.254
and he went in anyway.
620
00:28:03.254 --> 00:28:05.833
So I think those are important facts, and, again,
621
00:28:09.420 --> 00:28:12.311
I understand the court's position about the firearm,
622
00:28:12.311 --> 00:28:13.710
but I would say there's a distinguishing fact
623
00:28:13.710 --> 00:28:15.592
about actual knowledge
624
00:28:15.592 --> 00:28:16.860
and what the jury rejected actual knowledge
625
00:28:16.860 --> 00:28:20.955
and maybe that they thought that he thought there
626
00:28:20.955 --> 00:28:22.955
was a possibility that Shepherd might've been armed,
627
00:28:22.955 --> 00:28:23.788
but I understand the court's position on that,
628
00:28:23.788 --> 00:28:25.530
but that would be the Commonwealth's reading
629
00:28:25.530 --> 00:28:27.993
and why that would be appropriate in this case.
630
00:28:29.683 --> 00:28:30.516
Head downstairs.
631
00:28:33.351 --> 00:28:34.850
(people speak indistinctly)
632
00:28:34.850 --> 00:28:36.240
Commonwealth is happy to answer any additional questions
633
00:28:36.240 --> 00:28:38.760
or rest on its brief if there are none.