-: SJC-12870 Commonwealth v. Cheng Sun.
-: Okay, Attorney Kenneally.
-: Good morning, your honors.
May it please the court.
My name is Joseph Kenneally.
-: Hold on one second.
We're gonna see if we can pump up the volume a bit.
-: Certainly.
-: Okay, we're ready.
-: Thank you, your honors.
I apologize for if any of that difficulty was on my end.
May it please the court.
My name is Joseph Kenneally
and I represent Mr. Sun for purposes of his appeal.
Mr. Sun was convicted of first
degree murder on two theories.
He was additionally convicted of stealing by confining
and putting in fear an arm assault
with intent to rob.
Now, before I get to the substance
of the defendant's argument,
I want to first address the Commonwealth's position that
there's no purpose in evaluating the sufficiency claim
as to the first degree murder theory
under extreme atrocity and cruelty.
I submit that there are indeed reasons for this court to
consider the evidence as to that charge.
First, this court knows the defendant
has raised a number of issues in his brief,
in support of the notion that he's entitled to a new trial.
And in the event that this court concludes
that a new trial is warranted,
of finding that the evidence is insufficient
to support a guilty verdict on theory,
any theory regarding malice would,
I submit, prohibit retrial in those theories,
either as a principle or as a joint venturer.
-: Well, wouldn't we reach that, Mr. Kenneally,
wouldn't we reach that if we found
there was error in the other issues?
-: Yes, your honor.
-: And if we find there are no error in the issues,
in the other issues raised, the trial errors,
and we also believe that the sufficient evidence
under 33 E of felony murder...
I think Mr. Steinfield is right and wrong because
there are instances where we've gone ahead
and looked at the theory raised by defendant
and then dropped a footnote and said,
we don't have to do this.
And then there are other instances,
I think it's Barboza where we basically said,
we're not gonna do it,
so we've done both. -: You're right.
I mean, I think Commonwealth versus Smith as well,
473 Mass. 798 is-
-: As well as the co-defendant in this case.
-: Yes, well, I mean, what happened in, for example
in the Smith case is where there was reversible error found
on an issue not involving sufficiency,
but the court found that based on the insufficient evidence
of extreme atrocity and cruelty,
during retrial he'd be prohibited from bringing that claim.
The Commonwealth would be prohibited from
retrying that claim at the retrial.
I think that that would apply in these instances as well.
And I think that based on that,
that this is an issue that this court ought to explore.
I think obviously there's another consideration as
you referenced Justice Gaziano,
and that is a review of this evidence is important in the
context of this court's responsibility to look at the
entirety of the record and to determine whether or the court
should direct entry of a lower verdict
in the interest of justice.
Now, to that extent,
I think it's important to look at the facts
of the case here a little bit.
This was a lengthy case.
There's dozens of witnesses and hundreds of exhibits,
but I would submit that the
vast majority of the information,
the evidence was undisputed at trial,
and that was that Mr. Lin and Sifa Lee and the defendant
all went into the restaurant and inside the restaurant,
there was a killing that occurred
when Mr. Woo was found sleeping.
These matters were not contested at trial,
that the three men were in the restaurant and that they
thereafter left the restaurant and fled to Connecticut.
The principle issue in Sun's case is
what happened inside the restaurant.
And I'd submit that the only witness
who provided that evidence was Mr. Lin,
one of the three men who entered and testified for the
Commonwealth pursuant to a plea agreement.
I think when evaluating the evidence in this case,
review of Sun's testimony is important.
He testified that he, Mr. Sun and Mr. Lee,
showed up at the restaurant in early morning hours,
obviously anticipating that the restaurant would be empty.
This was not a plan involving encountering anybody
who's supposed to be-
-: Let me cut to the chase because
the facts are really long and we're gonna dispense
with your time if you just go through them.
-: We have here the defendant, Mr. Sun
is armed with a knife, correct?
-: Yes, he is.
-: He holds the victim down at some point?
-: Yes, he does.
-: And we don't know whether or not he stabbed
the victim but in the light
most favorable to the Commonwealth,
it could be he stabbed the victim, correct?
-: I don't necessarily agree, your honor.
I think that there's testimony from Mr. Lin,
the only witness,
that Mr. Sun did not stab the victim.
I also think that if you look at the testimony,
it portrays Lin and Sun as two individuals who from
the very outset of Lee's attack on Mr. Woo,
were taking efforts to at least conflict with
Mr. Sifa Lee and to prevent him from attacking Mr. Woo.
-: Did Sun tie up the victim?
-: Sun did not tie up the victim.
Mr. Lin attempted to tie up the victim,
but that job was ultimately taken over by Mr. Lee.
-: Are you arguing withdrawal in this case?
-: I'm not arguing withdrawal, your honor.
That was not raised.
I think it would've been an issue
if the trial judge did not instruct
the jury on the issue of withdrawal,
because I think that he was entitled
to withdrawal instruction in light most favorable,
if the evidence was viewed in the light most favorable
to the defendant but in fact he was not.
The instructions-
-: Doesn't Mr. Sun hold a knife up to his neck at one point?
-: He does, your honor.
-: And, I mean, Mr. Steinfield's gonna get up and say,
Mr. Lee is outta control,
and he's gonna kill the guy before they get the safe open.
And your client has got a knife to his neck,
but wants to keep him alive so that
he can at least get the information outta him.
It's not like he's fighting Mr. Lee off.
He's just got a different strategy
for getting the safe open, right?
-: Well, I think that can be parsed out, your honor.
I think that what happens here is these three men entered
this restaurant in order to commit
a theft and they happened upon Mr. Woo,
and at that point, Mr. Sun was restraining Mr. Woo
with a knife in an attempt, I would suppose,
to get him to open the safe.
-: But isn't this a classic felony murder?
-: Your honor, I think a classic felony murder
would be more like the Bonner case where
you have a situation where people plan to
go out and kill somebody, go out to shoot someone.
And in the process of doing that-
-: No, no, no, this is...
The intent is to rob and steal by confinement in this case.
We have people who go through a hole in the ceiling,
like Tom cruise or one of those movies, right?
And then they go in there.
-: Yes, I mean, this was intended to be a robbery, a theft.
Turned into a robbery upon the happening upon Mr. Woo.
The defendant's claim here is that
he did not intend to kill Mr. Woo,
to do grievous bodily harm or to do anything,
either as a joint venture.
As to felony murder, it's a difficult case.
And it's, you know-
-: It might be a more difficult case on atrocity cruelty.
With respect with Mr. Lee it's easy as we found.
But with your client, you may be right.
It's a more problematic case on atrocity cruelty.
But to me, it seems like an
overwhelming case of felony murder.
-: Well, I mean, your honor, I suppose that brings you to
the whole issue of whether or not this conviction,
this sentence was, and the punishment imposed was just
because what you got.
-: Can I ask a question before you get to that?
Did the victim's body have a knife,
a wound consistent with a knife?
-: The victim's body had two stab wounds in the back.
-: Okay and did anybody else,
was there any evidence that anybody else had a knife?
-: There was not evidence that another
individual was holding the knife.
The knife, a knife was recovered and
there was blood on the knife but none of the,
there was no blood from anybody
I believe other than Mr. Woo.
Now there was testimony that Mr. Sun's hands
were bleeding and as a result of,
and that was fairly clearly a result of his using his hands
to block Mr. Lee's attack on Mr. Woo.
And his hands were injured in that case because
his injuries were the front, the tops of his hands.
The Commonwealth argues that the injuries to his hands were
consistent with perhaps the use of a knife against Mr. Woo.
But I would submit that'd be inconsistent
with exactly the nature of the injuries.
But he did-
-: That's the light most favorable argument, correct, though?
-: Well, your honor, I mean,
I don't think that if you look at the whole,
the entire picture here,
if you look at the injuries on the top of Mr. Sun's hands,
you look at the lack of any evidence of DNA,
of his DNA or any blood on the knife,
and you look at the fact that throughout this case
from the time that this attack on Mr. Woo took place,
Sun and Lin did everything that
they could to prevent this attack or to,
they didn't do- -: Oh, I wouldn't.
I wouldn't, I wouldn't.
Maybe I'd quibble with that.
-: No, I didn't-
-: That they did everything they could.
-: But the minute this attack started,
they pleaded with him to stop.
And in fact, that worked.
I mean, Lin and Sun,
Sun said, "What are you crazy?
"Why are you doing this?"
And Lin said, "Stop."
I'm paraphrasing, but he essentially said,
"Here's the deal.
"We need him to get the safe open."
And as a result of that, Mr. Lee stopped his attack.
And at that point, Mr. was brought in front of the safe.
At that point, Mr. Sifa Lee, Mr. Lee,
resumed his attack and apparently skeptical
that Mr. Woo was going to open the safe,
and both men moved to protect Mr. Woo.
That's transcript page 17...
volume 17, page 30 and 31.
Mr. Lin testified that they both moved to protect him.
Now I submit that you have a situation here where one person
throughout the entire length of
the episode was attacking Mr. Woo.
There's no question.
He attacked him.
He was talked out of it at first.
And when the attack resumed,
these two men moved to protect Mr. Woo's head.
Unfortunately, it was far from enough to save the man.
There's no question about that.
But if you look at the tenor of the events,
it would be difficult at that point to infer from that,
that while no one's looking,
while Lin did not know what was going on,
Mr. Sun was doing precisely the act
that he was protecting Mr. Woo from in terms of Sifa Lee.
-: Can I ask you about the plea agreement?
The unredacted plea agreement?
-: Yes.
-: The defense attorney introduced that, correct?
-: He did introduce that, your honor.
-: Because normally when we have these champa situations
they come in and then we have the
instruction about the truth telling,
but here we have defense attorney
moves to introduce it, gets it into evidence,
and I think the trial judge even
gave a champa instruction, correct?
-: He did give a champa instruction.
I would submit that in terms of the
admission of the plea agreements,
that is just part of the package of what I would consider to
be evidence that was ultimately
prejudicial to the defendant,
to the extent that, you know,
here you have attorneys signatures basically saying,
we agree that this man's going to
tell the truth in return for his testimony.
-: But what do we make out of it
where an experienced defense attorney decided
to introduce it and the government didn't?
-: Well, I would just suggest that
that was probably something that the trial judge
should have just redacted in any event.
I don't think that the instructional,
that the (deep breath)
-: I thought we have a case,
I thought we had a case that says that
if the defense attorney moves to put it in,
the redactions don't matter.
It's only when the prosecutor puts it in.
-: There is your honor.
I mean, ultimately, I don't wanna press
the issue of the champa case that much,
particularly when there are other issues that in fact,
I think, are more telling, including-
-: No, I think you raised some really good points,
particularly the opening statement and closing argument
on the biographical information.
This seemed a little over the top in this case.
-: Yeah, your honor, and you know, the thing was,
the Commonwealth spent the first third
of his opening extolling the virtues of the victim.
In fact, the Commonwealth suggested that
this man came to this country,
he became a citizen, he honored his traditions.
This entire third of the opening statement
was based on the notion that
the jury should understand what a great man this was.
And then they moved to actually putting the,
asking the jury to picture the victim's family settling in
for the night on the night that they,
on the night that the defendants committed the act.
And in her direct examination on the first witness,
Adam Woo, she elicits essentially the victim's biography
replete with his immigration story.
-: Well, I mean, Mr. Woo, the son,
would testify for legitimate reasons,
not just identify, not that that's not legitimate,
but he testified for legitimate reasons
as far as timeline goes, correct?
-: He did testify for some legitimate reason.
-: So, but I get it.
The whole issue about cooking steak
and that was over the top.
-: Well, right. And I mean, this court has said in
Commonwealth versus Santiago,
that the prosecutor's entitled to tell the jury something of
the person's life who've been lost.
It's been referred to invariably
as humanizing the proceedings.
Now this court has never really defined
what it means to humanize the proceedings.
It seems like an intuitively compassionate thing to do,
but I would suggest that this evidence
that was introduced, the steak, his life,
the claims made in the opening statements,
none of this is relevant.
I mean, the Rules of Evidence 402,
the Massachusetts Guide of Evidence say that
evidence is relevant, if it tends to prove an issue
that's material to the case.
Now none of this is and it's difficult to see how-
-: I assume the judge gave the standard instructions
about, you know, prejudice and sympathy
because obviously Mr. Woo was a very sympathetic figure
and he's deserving of sympathy.
But did the judge give those instructions?
-: He did give the instructions.
I believe in his final instructions to the jury.
I don't think that there were any instructions
after this opening statement about that
to direct their attention to him.
And to draw up this point-
-: And I should know this.
I apologize.
Was any of it, it was objected to, correct?
-: It was not objected to, your honor.
And you know, one of the things
that happened here was defense counsel
was put in a position where he had to get up
and essentially respond to this.
He had to say, basically, we know he was a great man
and we know his life was lost,
and I would think that when it comes
to objecting to these sort of things,
you're putting defense counsel in a situation where he'd
have to be the guy to stand up and say, look,
we need to stop to about how nice
this man was and how sorry we were for the family.
I would suggest to do something like
that would seriously alienate the,
would further alienate the jury from the defendant.
-: That's a fair point.
-: It's a tough thing to do.
I mean, even if he went in limine,
there'd be all this conversation and all of a sudden
he'd need to bring that to a screeching halt.
So this is one of those weird kind of cases where
it seems like an objection might
do more harm than good in the context of
how this whole thing plays out.
And I think the other element of this is the Commonwealth
suggests that this was not emphasized.
These facts were not emphasized.
I would submit that when they say that in their brief,
and I don't have the page number in front of me,
but I would, I'd suggest that when they say that,
I think what they're referring to is it was not emphasized
in closing argument, which is fair, it was not.
However, this entire story about Mr. Woo and his family
was the first chapter of the story that the court,
that the Commonwealth was going to give the jury.
Before the jury knew anything else,
they heard this man came and built a life
for himself and his family, honored his community,
and did profoundly great work in society,
his charitable endeavors and so forth.
And in the context of that,
that's how the jury got the rest of this evidence.
And when Mr. Adam Woo, his son, was called to testify,
it just started right back up again.
And it ended with what was a frankly heartbreaking story
about Mr. Woo's last meal with his son.
None of it was relevant.
Hard to say, you know, to put the brakes
on that if your defense counsel,
but it's the sort of thing that there should be some sort
of more precise definition of the length,
the extent to which a juror,
the Commonwealth could be entitled to humanize the juror.
And, you know, frankly with the little
bit of time that I have left,
I just wanna address a couple issues
regarding the closing argument.
The first issue is a portion of the Commonwealth summation
where she sort of obliquely cautioned the jury
not to consider the possibility that
other co-defendants may not get what they deserve.
The quote was "The fact that others
"who are equally guilty may have been more vicious,
"more violent, may have been equally culpable,
"may deserve worse than they get
"should not distract you."
Now, the Commonwealth argues in their brief,
this claim was made in response to defense counsel's claim
that Lin's credibility was suspect
because he was testifying for a plea deal.
This is just not true.
The prosecutor here was clearly talking
about both Lin and Sifa Lee.
And she was particularly talking about Sifa Lee
when she refers to someone who may have been more violent
and may have been more vicious.
That was clearly Lee.
And in arguing, and it's briefed that
this was simply referenced to Lin,
the Commonwealth on page 61 of its brief omits
the portions of the quotes that referred to Lee.
This argument wasn't just about Lin.
It was about Lee at least as much.
And Lee hadn't gone to trial yet.
And we knew that Lin was getting a deal.
And a reminder that he was taking a plea deal,
and who knows what the future held for Lee?
-: Is it permissible for the prosecutor to say,
let's focus on this defendant because we have two
co-defendants at extreme opposites ends of the pole.
We have the more culpable Sifa Lee,
and we have the cooperating witness Mr. Lin,
and Mr. Sun is kind of in the middle, correct?
-: Well, I mean, if that were strictly the case, your honor,
and I don't think that she would refer to that those were
more violent and vicious may not get what they deserve.
I mean, that one's strictly to Sifa Lee,
and it suggested to the jury that
it was a call to duty to the jury.
I would submit it was a fairly obvious invitation
to consider the consequence of its verdict.
I would suggest that it was an error.
I see that my time is up. If there are any other questions.
-: Okay, we're all set, thank you.
Kenneth Steinfield.
-: Thank you very much.
May it please the court.
Kenneth Steinfield for the Commonwealth.
Good morning.
I'd like to focus the court's attention
on what I think was the key moments of this trial.
That is the evidence from Jun Di Lin,
that when he went from the kitchen back to the bedroom,
the first thing he saw was Cheng Sun holding,
pressing a knife on Mr. Woo's neck,
while holding him down on the cot.
Lin made a demonstration in court of how he did this,
how with his left hand,
he was holding his head down on the bed and his right hand,
he had the knife pressed up against his throat.
He also in that demonstration,
as the prosecutor mentioned in her closing argument,
used his leg or knee to gain leverage
to make sure that he stayed down on that bed
for a significant period of time,
during which to his immediate left,
Sifa Lee was savagely,
repeatedly beating the victim in the abdomen,
vital organs and the upper leg with a crowbar.
And I don't see how...
I think that Justice Gaziano is accurate that
this is a classic felony murder case.
I also think while perhaps not
a classic extreme atrocity case,
the jury there was certainly a basis based on that,
plus a lot of other evidence that he had at the very least
the state of mind of third prong malice at that time.
It's hard to get around that conduct.
The fact that he then tried to stave off blows.
All that means is it,
is that he didn't want it to hit him in the face so that
he'd be able to open the safe,
but that doesn't eradicate what he had already done.
And what he later did.
-: Have you figured out when it is that
we go head and say the evidence was sufficient
on the claim that wasn't raised.
And then when we go, when we do it in a footnote.
-: Well, I said that this court need not decide
because there are certain cases in which the court has not.
But I think the court's correct that
if the court finds error, finds reversible error,
then it should go and examine both
and see if there is sufficient evidence on both.
And then of course, remand for retrial only on those
as to which there was sufficient evidence.
I'm not sure if that answers your question.
-: No, it does.
Let me ask you a different question.
Steinfield: Sure.
How much is enough on this humanizing evidence?
And did this go over the top?
-: It-
-: I think in your brief you said
some of it was better left unsaid.
-: Yes, and I certainly-
-: How much is enough?
-: I certainly with, well,
when there's an objection and when there's not an objection
and how it's used as trial,
I think are both elements that inform the answer to that.
-: You think a defense attorney in an opening statement,
I mean, Mr. Woo is incredibly sympathetic,
as are a lot of murder victims, all murder victims.
But he's incredibly sympathetic.
You think a defense attorney can stand up
in opening statement and object when
the prosecutor's talking about
this great American success story.
-: I think there's two things. I think that yes, he can.
And I cite a case in a footnote in which
a defense lawyer objected five times during opening.
-: What do you think that jury
thought of that defense attorney?
-: Well, but if you follow through with that argument,
that would basically abolish the waiver doctrine.
If a lawyer said, well, I was afraid to object
because then the jury would look at me,
so that's why I didn't object,
he could have done it at side bar afterwards.
He also, but this is also very important.
Before trial at the hearing on the motion in limine,
(indistinct) moved to admit just the photographs.
And the parties had a discussion with Judge Lowy about it,
about what could be offered and what may not be offered.
And Judge Lowy said to the prosecutor,
do you intend to call a witness solely
for the purpose of touting his virtues?
And the prosecutor said, no, of course not.
But I do intend to call Adam Woo
and ask him certain questions.
So defense counsel was on notice right then and there,
well before the jury were impaneled,
that this issue might come up.
So to say that he was blindsided by the opening statement,
I don't think it's faithful.
-: So itemize for me,
which ones were the problematic statements
you think were better left unsaid?
-: Oh, I think a great deal of them.
I'll certainly admit that, well,
had they been objected to,
there's no case that even approaches this
in terms of how much of the evidence was admitted.
I will readily acknowledge that.
I can't find one.
-: But isn't it also problematic?
Excuse me, Justice Gaziano.
-: No, please.
-: Isn't it also problematic that this was
the first thing the jury heard?
-: Well, no, because it was on the first day
and it was only then and there that they heard that.
-: Yeah, I know.
I understand your argument about
the dissipation of memory over time,
but one of the things I always remember is
the first thing somebody says at oral argument, you know?
I might get blurry somewhere in the middle,
but the very first thing coming out
of the prosecutor's mouth is this
extensive history of how great this victim was,
and that the last meal he served his son,
as his son was saying, you know,
I'm not gonna be taking over the restaurant business, dad,
is this steak and his son can never have a better steak.
Isn't that...
This is of marginal relevance to begin with.
And to focus that much time right at the onset.
I think that's just a tough thing for you to get over.
-: Well, I think that, as I say,
all of the cases that have reversed
and almost all of the cases that discussed
is do so in the context of a closing argument,
not an opening statement.
And I think that's very important.
-: But, I think Justice Wendlandt is referring to
the whole concept as, you know as a prosecutor,
of primacy and recency, right?
Steinfield: Yes, of course.
-: It's the first thing and the last thing.
This is the first thing. -: Right.
But I think that the way that the defense counsel
was able to use the evidence to his benefit,
it played straight into his defense
that his client realizes that this was a person
and he had no intent to harm that person,
he had no intent to injure that person,
and that he went in just to steal,
and that he withdrew as soon as-
-: So if you're telling us that this was over the top-
-: Well- -: Well, not reversible.
-: I'm sorry, judge.
Not the phrase that I would use,
but I agree that it is more than this case.
-: More than, okay. -: Yeah.
-: What is the rule that comes out of this?
What do we say to prosecutors then
as far as enough is enough?
-: Well, again, when there's no objection,
but I think that the law was fairly clear
beforehand that there's a small amount that,
a photograph certainly,
something about his community and family and background,
but not a whole lot more than that.
I think that the cases are already pretty clear.
But here I also think that the ground rules
were known to everybody about what was going to happen.
So it didn't come as a surprise to defense counsel.
I would also note,
although I don't press the point that far,
but in the Sifa Lee case where there was very,
very similar evidence from all of the witnesses,
the exact same testimony came from Adam Woo
and the exact same things were,
virtually very similar things were said by the prosecutor,
by the same prosecutor in her closing argument.
No objection was made at that trial.
No claim was made on appeal from that conviction.
And this court on its 33 E review of Lee,
which had the same, you know,
the same evidence in front of it,
did not say anything about that evidence being problematic.
I'm not saying of course,
that somehow stops or should preclude this court
from now examining it afresh.
I'm just saying that is-
-: I think we've had cases on the omnipotence of 33 E review.
-: Yes, yes, of course.
Absolutely not saying that, but I think-
-: As the one who did it, I can testify to that.
(Steinfield chuckles)
-: I don't doubt. -: (mumbles) omnipotence.
-: But as I say, the fact that in that case,
it was not even mentioned just is,
as is quite often says about the lack
of an objection is some evidence.
I'm not saying much or a great,
that it was not prejudicial or harmful,
or certainly perceived to be harmful by the defendant.
-: And here, I mean, you frankly had an overwhelming case.
There was no need for this.
-: Need for it, perhaps not,
but I don't think that it prejudiced the defendant
largely because of that overwhelming evidence.
To say that the prosecutor should not have gone as far,
I'd agree with that but I don't think
that she did so intentionally as part of
a calculated scheme or a concerted effort.
What the defendant to say that on
the very first day of evidence,
after nine days of impanelment,
her opening statement plus the testimony from
her first witness set the jury in stone
as prejudiced against the defendant,
that right there the die was cast and
that no matter what the evidence-
-: It is significant that it was
not repeated in closing argument.
-: Oh, I think it's huge.
And it also was never referred to again,
in any of the other testimony.
All that happened that he complains about occurs
on the first day evidence.
The first day of evidence,
which was a month before the verdict.
So, I don't think that it is safe,
I'm sorry, or it's fair to say
that nothing that happened after that first day
mattered because of the damage as he says in his reply brief
was already done on that very day.
I don't think that's consistent with the law.
And I don't think that it's logical
in light of the, excuse me.
In light of this court saying frequently
that the problem with this sort of testimony
is not the testimony itself but its emphasis.
The Commonwealth should refrain
when it's not relevant from emphasizing it.
And in every case, that's what it says.
And that emphasizing must mean in closing argument.
It's not in the open.
There's no case that even talks about that
or that finds error in these kinds of statements in an open.
If there are no further questions on that issue,
I'd like to go back to the first one if I could.
And that is the evidence of
extreme atrocity or cruelty and of felony murder.
Defense counsel says over and over
that Lin testified that Sun never stabbed Mr. Woo.
This is not correct.
Lin said he never saw Sun stab Mr. Woo.
And there is a huge difference between that.
There were many opportunities
for Sun himself to stab Mr. Woo.
Both when Lin was not in the room and frankly,
when Lin was in the room,
when Lin was off looking for the cord.
Justice Gaziano: Had stab wounds in his back?
-: Yes, he had stab wounds to his lower back.
-: And, I think as Justice Wendlandt pointed out,
the only person that had a knife.
-: The only person who had a knife.
-: Is Mr. Sun. -: Right.
-: But then the knife is found in the kitchen.
And I think it was a kitchen knife too, correct?
-: No, the knife is found by the safe.
-: Okay.
-: It's on the floor by the safe and is bloody,
and it is a kitchen knife or a paring knife.
It is serrated and there are photographs of it.
Justice Gaziano: Did it come from the restaurant?
-: There's no evidence one way or another.
No one was asked was this from the restaurant?
Do you recognize this?
But there's no evidence that it was from the restaurant.
It is certainly possible that Sun took it from the kitchen.
I mean, we don't know when he first obtained it,
whether it was in the bag or in the kitchen,
but his possession of a knife regardless of its source was,
and that he was the only one who had it.
And I think that the case I cite, Galletan or something,
I'm sure that's not the name,
but it begins with a G is...
This case is a much stronger case for a finding that Sun
himself stabbed him based on his being the only one
who had a knife and the fact that he was at his head.
And the defense talks about, well,
he was on his back this whole time,
so how could he have stabbed him on the back?
And of course, we don't know what
happened before Lin came in because
there was a period of time in which Lin was
standing in the kitchen when Mr. Woo was screaming in pain,
and Sun might have stabbed him.
He may have been on his stomach at the time
and he might have stabbed him in the back.
-: What do we make of the half-hearted
or the protective conduct as far as his intent goes?
-: Well...
-: We don't know where that happens
in relation to the stabbing, correct?
Because...
-: That's right.
But I think that is more likely than not
that the stabbing occurred prior to that.
He may have, as soon as they went in,
have stabbed him just to get his attention
and to wake him up and show him we mean business.
But the fact that he later tried to stop him,
it was clear that that was from selfish motives to get him
to open the safe, not out of any concern.
-: Where do we go with the prongs of malice?
Where does that take us then if he's trying to protect him?
Even if it's for bad reasons?
-: Well, it's already happened.
Third prong malice says to commit an act or acts,
which the defendant in the circumstance as known to him,
a reasonable person would believe would create
a plain and substantial likelihood of death.
He's already committed those acts or acts before that.
He has possibly stabbed him.
He has certainly held him down brutally
while he's being beaten.
So the fact that he later might no longer
have had the intent to kill him,
he certainly at a relevant point in time had that intent.
And I don't think that it has to carry
throughout the entire enterprise.
I think if you have it, you have it
because of the words in third prong malice, an act or acts.
And I think we have plenty of those here.
So the fact that he later, that his sort of...
The pursuit of a criminal enterprise with a slightly lower
level of enthusiasm than before
is not the stuff of withdrawal and is not-
-: And this is personal liability
as opposed to joint venture, correct?
-: As to the stabbing-
-: No, as to the extreme atrocity cruelty murder.
-: I'm sorry, could you ask that question again, please?
-: Right, was it proceeded as a joint venture?
I know it was for the felony murder,
but was it a joint venture-
-: Yes. Yes, it was. -: Theory.
-: As to the atrocity cruelty?
-: Yes, but in the instructions,
the judge made plain that if they found
that he committed the stabbing,
then they did not have to find that a joint, I'm sorry.
If they found that his conduct caused the death,
they did not have to find that
he was a joint venture at the time.
But the tenor of the case and the instructions
was almost exclusively joint venture.
Justice Gaziano: Were any of the stab wounds fatal?
-: The M.E. said that they might
have contributed to his death because
his death was caused by a number of factors,
which included loss of blood.
And he certainly lost blood from the stab wounds.
He had just not the stab wounds to the back,
but he had puncture wounds on his shoulder and on his back.
So there's not just those two stab wounds,
these puncture wounds,
which might have been caused by the knife.
So we can't say that it caused it,
but it might have been a contributing factor.
-: And there's no evidence Mr. Lee had a knife?
Steinfield: None at all.
-: He had the crowbar.
-: And no evidence Lin had a knife.
It's always Sun and there are no fingerprints on it
because he wore gloves all the time.
He said that he had his own gloves that he brought in.
I'm sorry, Lin said that both Lee and Sun
had gloves on during the time.
So there's no reason to think that
there would've been footprints on it.
I'm sorry, fingerprints on it in the first place.
I just like to say, there's one thing I said in my brief,
that's not completely accurate.
I say that they cut the power lines,
the phone and the power lines.
They didn't cut the power to the restaurant.
They cut the power to the meter box.
So there was still power going on in
the restaurant while they were inside it.
And I apologize for that slight mischaracterization.
If the members of the court have no further questions,
I'd be happy to rest on my brief.
Justice Budd: Thank you.