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SJC-12887, Commonwealth versus Jose Lora.
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Attorney McDonough, whenever you're ready,
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Your Honor.
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Good morning, your Honors, may it please the court.
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My name is Jillise McDonough and I represent Mr. Jose Lora.
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Ultimately, whether we review the errors in this case
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as substantive errors
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or ineffective assistance of counsel,
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we reach the same result.
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Mr. Lora did not receive a fair trial
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due to a substantial risk of miscarriage of justice.
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Can we start with the jury instructions?
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You're saying that he should have gotten
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certain instructions, but he didn't ask for them, right?
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Yes, your Honor.
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The instruction as to whether Kevin Parker's
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prior instances of violence should be considered
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was briefly discussed during the charge conference.
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Counsel may have withdrawn the request,
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but as far as whether it should have been given,
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I think the request was withdrawn
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because Mr. Lora testified that he did not know
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that Mr. Parker shot him.
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But there was other evidence in the record
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that Kevin Parker had prior instances of violence
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directed at Mr. Lora that could have been considered
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by the jury in determining whether Mr. Lora
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reasonably apprehended death or serious bodily injury.
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Can you explain that though?
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If your client testified he had no knowledge of it,
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and I think he really doubled down on that,
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and was asked multiple times,
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and said, "I didn't know," how is that relevant?
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Your Honor, I think it was relevant
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because that would've come down to a question of fact
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for the jury.
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There are at least three other witnesses
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who testified that Mr. Parker did shoot Jose Lora.
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Mr. Parker himself admitted that he had shot Jose
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and two of the witnesses who were in the vehicle
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with Mr. Lora, Ms. Delossantos
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and Mr. Taylor both testified that there were rumors
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that Kevin Parker had shot Mr. Lora.
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So I think under Commonwealth versus Clemente,
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it would've been a question of fact
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as to whether Mr. Parker did in fact shoot Mr. Lora,
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and the Commonwealth argued extensively in closing
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that the jury shouldn't credit any of Mr. Lora's testimony.
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So the jury could have found that Mr. Parker shot Mr. Lora,
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Mr. Lora knew, and that this was relevant
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to whether Mr. Lora was in reasonable apprehension
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of serious death or serious bodily injury.
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But other than that, even if we don't base it on that.
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I'm sorry to stop you, go ahead.
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Sorry, I gotta stop you there though,
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because you're glossing over the threshold question
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of whether or not the judge,
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in the absence of a specific request from the defendant,
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was to look at, as you say, the totality of this evidence
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and give the instructions to respond to it.
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That's not our law, is it?
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I'm not sure that it's, there is one case
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that does address it, which I outlined in my brief.
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We still look to whether there's a substantial risk
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of miscarriage of justice,
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and I think it was based on, counsel withdrew the request
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based on the faulty premise that the only evidence
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was whether Mr. Lora was shot by Kevin Parker,
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but there was also this other evidence of Mr. Parker
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admitting that they had other violent occasions
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between them.
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Answer this one question.
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Yes, your Honor.
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Was it error for the judge to not give an instruction
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that the defense did not ask for?
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I think it was error,
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and even if not, then it was ineffective assistance.
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And I think the case that I cite in my brief
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addresses it in both ways.
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One, whether the court should have sua sponte
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given the instruction, and in the alternative,
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if it was not, whether counsel was ineffective
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for not pushing the issue
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as to whether Mr. Lora should have received the instruction.
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And it's both analyzed under a substantial risk
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of miscarriage of justice,
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whether we look at it from an ineffective standpoint
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or whether it was error.
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Let me follow up with you on that point then.
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So if you're saying that irrespective
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of the initial framework, we still get to the same question.
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So the defense in this case pursued this defense
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that it was PTSD based and hypervigilance,
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and that's why it was proactive as opposed to reactive.
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So that being said,
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you had testimony from the clinician
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about Mr. Lora's alleged PTSD and the reasons for that.
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And the judge also gave an appropriate
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instruction to the jury that they can consider
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all of the testimony, all of the evidence
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that bears on the defendant's state of mind
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when it comes to this issue
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of reasonable apprehension.
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So tell us how it is that you meet the standard,
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a substantial miscarriage of justice
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in the event that you say,
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it doesn't matter whether he gave it or didn't?
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I believe that he's prejudiced either way,
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because of the fact that his entire defense was premised
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on this mental impairment defense,
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and the jury was never specifically instructed
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that they could consider mental impairment.
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We have a specific instruction for that purpose.
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That's a part of the self-defense instruction
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that specifically says the jury is able to consider
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credible evidence of the defendant's mental condition
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at the time of the killing.
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So I think this.
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They have testimony about that.
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They were free to reject or accept it.
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They were, but they weren't specifically instructed
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that they may consider the defendant's mental condition
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specifically bearing on the issue of whether Mr. Lora
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actually believed he was in danger.
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And they were instructed, you can consider all evidence,
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but I think we have this specific instruction
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so that the jury knows they are to consider
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directly on that point
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whether there was a mental condition
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that could have affected
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whether he reasonably apprehended death
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or serious bodily harm.
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Counsel, one of the things that Commonwealth points out
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about the argument that you're currently making
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is that the rest of that instruction
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talks about whether a reasonable person
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in those circumstances would've believed
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he was in immediate danger.
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Can you address that part of the instruction?
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Yes, your Honor.
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And why wouldn't it have been reasonable for counsel
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to make a strategic decision to say, you know,
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I can't fit that unless we look at the PTSD
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of this particular subjective defendant.
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Your Honor, I think as far as the strategic decision,
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counsel's entire defense was premised on the PTSD.
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So I think to say that he would've called an expert,
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had another police officer come in
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and specifically testify about this incident
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where Mr. Lora was standing next to a friend
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when he was shot.
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All this went to the defense's entire defense.
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But that's his subjective feeling.
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My question is about the Commonwealth's argument that,
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in addition, that instruction,
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the second half of the instruction
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that you're requesting now,
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requires that a reasonable person have reacted the same way.
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Your Honor, I think taking that portion of the instruction
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as it interplays with the portion of the instruction
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that talks about mistaken belief,
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I think taken together could have demonstrated that,
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because mistaken belief does not apply
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to kind of the subjective component.
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So the jury was also instructed,
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a person may use deadly force to defend himself,
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even if he had a mistaken belief
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that he was in immediate danger of serious bodily injury.
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So I think taking everything, all of the instructions,
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if he was to also receive the instruction
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on mental impairment with the evidence,
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the jury could have concluded
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that there was a mistaken belief
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and a reasonable person maybe could have had
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the same mistake and belief given all of the circumstances.
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So the fact that it's a rival gang member
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in the other vehicle, the fact that Mr. Lora was shot
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on two prior occasions,
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the fact that there was a number of witnesses
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who say they saw.
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Shot on two prior?
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Well, so he was shot five days before,
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and then he was standing next to his friend
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who was shot at eight months before.
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And then the other witnesses who testified
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that they saw Mr. Parker reaching for something,
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and based on the look in his eye,
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it didn't seem like it was something innocent.
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It seemed nefarious.
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So I think taking all of those together,
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if the jury was properly instructed.
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Actually, can I just press you on one?
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You used the plural of other witnesses.
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Wasn't there only one, Mr. Taylor,
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that was the only testimony that arguably could be viewed,
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I guess in the light most favorable to you,
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that Mr. Parker was reaching for something?
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Ms. Delossantos,
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who was the passenger in the front seat,
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she had also testified that she saw Mr. Parker
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reach down for something.
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She did admit that she didn't say that
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before the grand jury, but she did testify to it at trial.
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So there was both Ms. Delossantos and Mr. Taylor,
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Ms. Forget said that she was driving,
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so she was more focused on what was ahead of her
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than the other car.
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But there were two witnesses who did say that.
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So I'm not saying this in isolation,
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because I'm gonna relate it back to what you just said.
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So if we could focus on Mr. Taylor,
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because I do think Mr. Taylor's testimony
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is also bearing on the issue of reasonableness.
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So you say that the substantial likelihood is met here,
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because if you take all of the stuff
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that's in the instruction he didn't get
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coupled with the evidence that the jury
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likely could have come back with that.
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But Mr. Taylor says something different
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that undermines that.
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Mr. Taylor's letter to Ms. Delossantos, I think it was.
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Yes.
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During the course of his testimony,
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a jury reasonably could have inferred
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that this had nothing to do with reasonable apprehension,
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that this was a retaliation,
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that Mr. Lora knew they were going to be there,
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used a ruse to get a ride to the cemetery,
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and that this was a retaliatory shooting
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for the shootings and the deaths that have happened
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with his rival gang members.
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So again, in the context of all of the evidence,
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you still say that he meets the substantial likelihood
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without this?
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Yes, your Honor, and I would make a couple of points
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as to the Fred Taylor letter.
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The Fred Taylor letter, the Commonwealth now argues,
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only came in for impeachment,
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to contradict Mr. Taylor's testimony
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that it was kind of a happenstance encounter.
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And the trial court actually specifically found
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that it wouldn't have left the impression with the jury
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that Mr. Taylor actually believed this.
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He was reciting hearsay that he had,
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apparently it seemed that he had been informed,
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during his interview with police,
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which defense counsel tried to probe that
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a little bit more in cross exam or redirect,
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but was unable to.
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But that information only came in for impeachment.
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So there was no direct evidence that Mr. Lora
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allegedly planned this incident
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and came to the cemetery
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in knowing that Mr. Taylor would be there.
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I wasn't suggesting that it came in substantively.
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What I was suggesting was that that is evidence
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that bears on your client's state of mind.
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So that it's not coming in for its truth,
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but on the issue of whether it bears on his state of mind
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that he's reasonably apprehensive of Mr. Parker
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and that they could use that evidence
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on the issue of the state of mind
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to not believe that to be the case.
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Well, yes, your Honor.
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But I would go back to my point
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00:11:45.630 --> 00:11:47.730
that it wasn't substantive evidence.
267
00:11:47.730 --> 00:11:51.327
So while it would've impeached Mr. Taylor,
268
00:11:51.327 --> 00:11:53.580
the overwhelming evidence
269
00:11:53.580 --> 00:11:58.261
was that this was not a planned encounter by Mr. Lora.
270
00:11:58.261 --> 00:12:00.930
That he showed up and looked over
271
00:12:00.930 --> 00:12:02.018
and suddenly Kevin Parker
272
00:12:02.018 --> 00:12:05.190
was sitting in the car next to him.
273
00:12:05.190 --> 00:12:07.160
And so our position is that the information
274
00:12:07.160 --> 00:12:09.210
in Mr. Taylor's letter shouldn't even have come in.
275
00:12:09.210 --> 00:12:11.640
Because it was double hearsay at that point,
276
00:12:11.640 --> 00:12:13.290
but that it really didn't undermine
277
00:12:13.290 --> 00:12:15.750
any reasonable apprehension,
278
00:12:15.750 --> 00:12:18.360
because the overwhelming evidence was that
279
00:12:18.360 --> 00:12:20.760
it was a happenstance encounter.
280
00:12:20.760 --> 00:12:23.730
And you know this record better than I,
281
00:12:23.730 --> 00:12:25.110
but just I wanna make sure,
282
00:12:25.110 --> 00:12:26.561
was there a limiting instruction
283
00:12:26.561 --> 00:12:30.840
when Mr. Taylor's testimony about the letter came in?
284
00:12:30.840 --> 00:12:31.917
There was not, your Honor,
285
00:12:31.917 --> 00:12:34.200
and the Commonwealth actually improperly used it
286
00:12:34.200 --> 00:12:35.847
as substantive evidence in closing.
287
00:12:35.847 --> 00:12:38.520
Instead of using as impeachment,
288
00:12:38.520 --> 00:12:39.930
the Commonwealth directly argued
289
00:12:39.930 --> 00:12:42.150
Fred Taylor said it best in his letter.
290
00:12:42.150 --> 00:12:45.150
Did defense counsel argue for limiting instruction?
291
00:12:45.150 --> 00:12:46.830
He did not request limiting instruction.
292
00:12:46.830 --> 00:12:50.580
He did try to, it seemed, try to correct it on redirect,
293
00:12:50.580 --> 00:12:53.100
but his questions were objected to
294
00:12:53.100 --> 00:12:54.600
by the Commonwealth and sustained.
295
00:12:54.600 --> 00:12:56.940
Okay, so just again, for our analysis going forward,
296
00:12:56.940 --> 00:12:58.320
I'm sure we will look into this,
297
00:12:58.320 --> 00:13:00.870
but if there isn't any limiting instruction,
298
00:13:00.870 --> 00:13:03.960
that it was ostensibly supposed to be offered in
299
00:13:03.960 --> 00:13:07.290
for limited use, but there's no limiting instruction,
300
00:13:07.290 --> 00:13:08.730
don't we have case law that says
301
00:13:08.730 --> 00:13:10.650
that it comes in for all purposes?
302
00:13:10.650 --> 00:13:12.420
We do, and that would go back to my argument
303
00:13:12.420 --> 00:13:14.670
that it shouldn't have come in for all purposes.
304
00:13:14.670 --> 00:13:16.680
And the Commonwealth now argues
305
00:13:16.680 --> 00:13:18.899
that it was only for its impeachment value,
306
00:13:18.899 --> 00:13:21.600
but I would just point out for the court
307
00:13:21.600 --> 00:13:23.940
that the Commonwealth used it substantively
308
00:13:23.940 --> 00:13:26.280
in closing, and that it was error.
309
00:13:26.280 --> 00:13:29.250
It shouldn't have come in substantively, if at all,
310
00:13:29.250 --> 00:13:31.830
because of the double hearsay nature of the letter.
311
00:13:31.830 --> 00:13:32.663
Thank you.
312
00:13:38.933 --> 00:13:43.080
Now, if I could return to the errors at trial,
313
00:13:43.080 --> 00:13:47.610
I would like to address whether Mr. Lora was prejudiced
314
00:13:47.610 --> 00:13:48.803
by the errors.
315
00:13:48.803 --> 00:13:53.160
So I think there were three overarching errors in this case.
316
00:13:53.160 --> 00:13:55.110
So the prosecutorial misconduct,
317
00:13:55.110 --> 00:13:58.950
which occurred with the delayed disclosure of evidence,
318
00:13:58.950 --> 00:14:01.800
the improper cross-examination of Mr. Lora,
319
00:14:01.800 --> 00:14:03.648
and the improper appeals to jury sympathy,
320
00:14:03.648 --> 00:14:07.320
both during the testimony and during closing argument.
321
00:14:07.320 --> 00:14:08.730
Whether the gang.
322
00:14:08.730 --> 00:14:11.148
Can you just focus on the prosecutorial misconduct
323
00:14:11.148 --> 00:14:12.603
that you allege.
324
00:14:13.620 --> 00:14:15.420
So the disclosure happened,
325
00:14:15.420 --> 00:14:19.830
it just wasn't as quick as the defense would like.
326
00:14:19.830 --> 00:14:24.830
How was the defendant prejudiced by the time lag
327
00:14:26.280 --> 00:14:27.240
in the disclosure?
328
00:14:27.240 --> 00:14:29.610
How would the defense have been different?
329
00:14:29.610 --> 00:14:30.540
Yes, your Honor.
330
00:14:30.540 --> 00:14:33.600
So as to the delayed disclosure,
331
00:14:33.600 --> 00:14:34.984
so there were the Facebook posts,
332
00:14:34.984 --> 00:14:38.340
and then there was the information as to the Obeng shooting,
333
00:14:38.340 --> 00:14:41.234
which was the shooting eight months prior.
334
00:14:41.234 --> 00:14:43.549
So as to the Facebook information,
335
00:14:43.549 --> 00:14:46.440
counsel could have filed a motion in limine
336
00:14:46.440 --> 00:14:49.200
as to the statements that were allegedly made on Facebook,
337
00:14:49.200 --> 00:14:51.960
so about earning your stripes.
338
00:14:51.960 --> 00:14:54.756
And then also, "I don't fear my enemies, I fear my friends."
339
00:14:54.756 --> 00:14:57.720
Would that motion have been successful?
340
00:14:57.720 --> 00:15:00.057
I believe it would've been successful, your Honor,
341
00:15:00.057 --> 00:15:03.180
because it did imply other prior bad acts,
342
00:15:03.180 --> 00:15:06.515
and the court's recent decision as to the rap lyrics
343
00:15:06.515 --> 00:15:08.583
within the last year.
344
00:15:10.620 --> 00:15:12.300
But that's different,
345
00:15:12.300 --> 00:15:14.936
because the case you're talking about,
346
00:15:14.936 --> 00:15:17.100
we were discussing that
347
00:15:17.100 --> 00:15:19.560
within the framework of character evidence.
348
00:15:19.560 --> 00:15:21.150
This is very different,
349
00:15:21.150 --> 00:15:23.370
because your entire defense
350
00:15:23.370 --> 00:15:27.060
is based on this reasonable apprehension.
351
00:15:27.060 --> 00:15:29.100
And so the state of mind is something
352
00:15:29.100 --> 00:15:31.590
that you are putting into your defense,
353
00:15:31.590 --> 00:15:35.310
and that's the central rudder of what you're saying.
354
00:15:35.310 --> 00:15:38.475
So these issues, the Facebook posts
355
00:15:38.475 --> 00:15:43.050
go to that very issue of your client's state of mind.
356
00:15:43.050 --> 00:15:44.400
And I also add one other thing
357
00:15:44.400 --> 00:15:47.371
before you finish answering Justice Wendlandt's question
358
00:15:47.371 --> 00:15:51.540
as well, the delayed disclosure.
359
00:15:51.540 --> 00:15:53.910
I wonder, what are we to make of the fact
360
00:15:53.910 --> 00:15:57.930
that we have this affidavit from the trial prosecutor,
361
00:15:57.930 --> 00:16:02.820
that this was one, your client's own Facebook post,
362
00:16:02.820 --> 00:16:06.600
and secondly that, so you ostensibly should have
363
00:16:06.600 --> 00:16:08.520
or could have been aware of them.
364
00:16:08.520 --> 00:16:10.603
But the central point is,
365
00:16:10.603 --> 00:16:13.470
the state of mind is what's at issue
366
00:16:13.470 --> 00:16:14.790
as to the reasonable apprehension.
367
00:16:14.790 --> 00:16:18.360
How would you have kept it out on relevancy grounds?
368
00:16:18.360 --> 00:16:19.193
Yeah, your Honor.
369
00:16:19.193 --> 00:16:22.680
As to it being Mr. Loras Facebook post,
370
00:16:22.680 --> 00:16:24.240
I will have to pull the citation,
371
00:16:24.240 --> 00:16:25.980
but I believe there's a case out of this court
372
00:16:25.980 --> 00:16:30.960
that says that counsel is not to expect that his client
373
00:16:30.960 --> 00:16:32.730
may share all information with him.
374
00:16:32.730 --> 00:16:35.430
So if counsel could have filed a motion in limine,
375
00:16:35.430 --> 00:16:36.570
then I think it's relevant.
376
00:16:36.570 --> 00:16:38.850
The Commonwealth's responsible for turning over
377
00:16:38.850 --> 00:16:41.100
statements of the defendant that they plan to use.
378
00:16:41.100 --> 00:16:43.650
Arguably any statement that the defendant's made
379
00:16:43.650 --> 00:16:46.200
is known to him, but it's still under Rule 14 as information
380
00:16:46.200 --> 00:16:47.528
that the Commonwealth is required to disclose.
381
00:16:47.528 --> 00:16:48.840
I'll give you that.
382
00:16:48.840 --> 00:16:52.063
And then as to your second point,
383
00:16:52.063 --> 00:16:54.930
this is directly relevant to state of mind.
384
00:16:54.930 --> 00:16:57.960
I believe the defendant also raised a self-defense claim
385
00:16:57.960 --> 00:16:59.880
in the recent rap lyrics case,
386
00:16:59.880 --> 00:17:02.100
and it did go directly to his state of mind.
387
00:17:02.100 --> 00:17:03.930
Here we're talking about statements,
388
00:17:03.930 --> 00:17:07.650
"I earned my stripes, I did too much to get them."
389
00:17:07.650 --> 00:17:09.720
The Commonwealth claimed that Mr. Lora
390
00:17:09.720 --> 00:17:10.950
was already a gang member
391
00:17:10.950 --> 00:17:12.527
at the time of this shooting.
392
00:17:12.527 --> 00:17:14.778
So arguably that any statement of,
393
00:17:14.778 --> 00:17:16.920
"I already earned my stripes"
394
00:17:16.920 --> 00:17:18.990
would've implied prior bad acts
395
00:17:18.990 --> 00:17:22.320
that potentially occurred well before this shooting.
396
00:17:22.320 --> 00:17:24.104
Well, it's not, "I earned my stripes."
397
00:17:24.104 --> 00:17:26.460
"I'll never drop my stripes.
398
00:17:26.460 --> 00:17:27.810
I earned too much to get them."
399
00:17:27.810 --> 00:17:29.910
Right, and so isn't that different?
400
00:17:29.910 --> 00:17:31.650
I don't think it is, your Honor,
401
00:17:31.650 --> 00:17:33.597
because I think the Commonwealth tried to imply.
402
00:17:33.597 --> 00:17:37.620
What earning your stripes might suggest would be,
403
00:17:37.620 --> 00:17:39.270
you know, maybe entrance into a gang.
404
00:17:39.270 --> 00:17:40.320
I don't know about these things,
405
00:17:40.320 --> 00:17:42.390
but it seems to be what you're suggesting.
406
00:17:42.390 --> 00:17:43.447
Keeping them.
407
00:17:43.447 --> 00:17:45.426
"I will never drop my stripes.
408
00:17:45.426 --> 00:17:49.380
I did too much to get them." seems different.
409
00:17:49.380 --> 00:17:51.930
Well, the Commonwealth attempted to imply,
410
00:17:51.930 --> 00:17:54.521
the prosecutor actually did directly argue in closing that,
411
00:17:54.521 --> 00:17:56.790
what did Mr. Lora do to earn the stripes?
412
00:17:56.790 --> 00:17:58.260
He shot an unarmed gang member
413
00:17:58.260 --> 00:17:59.688
who was sitting in the vehicle.
414
00:17:59.688 --> 00:18:00.810
Right, so I understand the argument.
415
00:18:00.810 --> 00:18:03.810
My question to you had been, and still is,
416
00:18:03.810 --> 00:18:07.072
why would this motion in limine be successful?
417
00:18:07.072 --> 00:18:09.330
Because it seems relevant.
418
00:18:09.330 --> 00:18:13.110
But I think they imply prior bad acts.
419
00:18:13.110 --> 00:18:15.450
Because if the Commonwealth's claiming that Mr. Lora
420
00:18:15.450 --> 00:18:18.660
already had stripes at the time of this shooting,
421
00:18:18.660 --> 00:18:20.370
because he was already a gang member.
422
00:18:20.370 --> 00:18:25.230
But these posts post-date the shooting at issue here.
423
00:18:25.230 --> 00:18:26.480
They do.
424
00:18:26.480 --> 00:18:28.802
But if the Commonwealth is arguing
425
00:18:28.802 --> 00:18:32.983
that Mr. Lora earned his stripes by this incident,
426
00:18:32.983 --> 00:18:34.871
in order to undermine that,
427
00:18:34.871 --> 00:18:37.350
he would have to suggest prior bad acts.
428
00:18:37.350 --> 00:18:40.250
Right, that's why it's not earning, it's about dropping.
429
00:18:41.130 --> 00:18:42.270
I understand that, your Honor.
430
00:18:42.270 --> 00:18:44.820
But I think, viewing the totality,
431
00:18:44.820 --> 00:18:48.780
I think there was so much other gang evidence
432
00:18:48.780 --> 00:18:51.559
that they did little to add to the Commonwealth's case.
433
00:18:51.559 --> 00:18:53.790
But that's my question for you then.
434
00:18:53.790 --> 00:18:57.510
Given that there was all of this gang background,
435
00:18:57.510 --> 00:18:59.130
how are you prejudiced?
436
00:18:59.130 --> 00:19:01.380
I think in Commonwealth versus Wadsworth,
437
00:19:01.380 --> 00:19:04.950
this court cautioned against cumulative gang evidence
438
00:19:04.950 --> 00:19:07.500
and said that they have the potential
439
00:19:07.500 --> 00:19:10.440
to sway the jury with emotions,
440
00:19:10.440 --> 00:19:12.330
and taking that evidence
441
00:19:12.330 --> 00:19:14.310
along with all the other gang evidence
442
00:19:14.310 --> 00:19:16.920
that went beyond what this court allows in Wadsworth,
443
00:19:16.920 --> 00:19:18.600
it all created prejudice.
444
00:19:18.600 --> 00:19:21.480
So we have the statements from his Facebook post,
445
00:19:21.480 --> 00:19:24.210
but then we also have other cumulative gang evidence
446
00:19:24.210 --> 00:19:25.043
that was improper.
447
00:19:25.043 --> 00:19:26.280
So we have the prosecutor
448
00:19:26.280 --> 00:19:28.740
actually pointing to the spectators and saying,
449
00:19:28.740 --> 00:19:29.850
are these gang members?
450
00:19:29.850 --> 00:19:32.310
Implying for the jury that Mr. Lora
451
00:19:32.310 --> 00:19:33.720
still associates with gang members.
452
00:19:33.720 --> 00:19:34.553
It was stricken.
453
00:19:34.553 --> 00:19:36.870
But I think it's one of those things that's so prejudicial
454
00:19:36.870 --> 00:19:38.400
that the bell can't be un-rung.
455
00:19:38.400 --> 00:19:41.940
We also have the prosecutor
456
00:19:41.940 --> 00:19:43.717
admitting photographs of Mr. Lora saying,
457
00:19:43.717 --> 00:19:46.290
"Don't you brag about being a gang member on Facebook?"
458
00:19:46.290 --> 00:19:48.019
We have the prosecutor asking Mr. Lora
459
00:19:48.019 --> 00:19:49.840
about whether gang.
460
00:19:49.840 --> 00:19:52.170
Counsel, I guess it sounds like
461
00:19:52.170 --> 00:19:55.320
you only want one half of this equation.
462
00:19:55.320 --> 00:19:57.840
Because it sounds like Mr. Lora is saying
463
00:19:57.840 --> 00:20:00.690
the apprehension that he had was so great
464
00:20:00.690 --> 00:20:03.865
that he had to prospectively act
465
00:20:03.865 --> 00:20:08.340
because of this rivalry between these gangs.
466
00:20:08.340 --> 00:20:10.739
So how can you have your cake and eat it, too?
467
00:20:10.739 --> 00:20:13.530
Because that's the central component
468
00:20:13.530 --> 00:20:16.309
to why you say he's so hypervigilant
469
00:20:16.309 --> 00:20:19.080
about his safety in the world
470
00:20:19.080 --> 00:20:22.410
because of this underlying issue between the gangs.
471
00:20:22.410 --> 00:20:26.820
I concede that the gang information was relevant.
472
00:20:26.820 --> 00:20:29.010
It was relevant both to the Commonwealth's case
473
00:20:29.010 --> 00:20:30.300
on motive and intent.
474
00:20:30.300 --> 00:20:32.670
It was relevant to Mr. Lora's defense.
475
00:20:32.670 --> 00:20:34.785
But I think it went beyond that,
476
00:20:34.785 --> 00:20:37.500
as far as painting. Mr. Lora as this person
477
00:20:37.500 --> 00:20:39.210
who's still associated with gang members
478
00:20:39.210 --> 00:20:40.441
at the time of trial,
479
00:20:40.441 --> 00:20:43.500
who was involved in drug activity
480
00:20:43.500 --> 00:20:45.353
because of his gang involvement,
481
00:20:45.353 --> 00:20:49.020
which we also couch in the context of opening the door
482
00:20:49.020 --> 00:20:51.240
to his prior drug conviction.
483
00:20:51.240 --> 00:20:52.800
We have Officer Roberge,
484
00:20:52.800 --> 00:20:57.180
who actually testified as to an improper opinion testimony
485
00:20:57.180 --> 00:20:58.710
revolving around the gang evidence.
486
00:20:58.710 --> 00:21:02.010
So gang members don't carry guns 24/7,
487
00:21:02.010 --> 00:21:04.140
they only carry them if they have the intent to use them.
488
00:21:04.140 --> 00:21:06.780
Mr. Lora had a gun on June 26th.
489
00:21:06.780 --> 00:21:09.117
So all of these pieces, while they are gang evidence,
490
00:21:09.117 --> 00:21:11.610
and the gang evidence was relevant to the trial,
491
00:21:11.610 --> 00:21:15.000
they went beyond what the court says is permissible,
492
00:21:15.000 --> 00:21:19.140
and went more into the field of playing the jury's fears
493
00:21:20.130 --> 00:21:22.140
and emotions surrounding gang evidence,
494
00:21:22.140 --> 00:21:23.670
rather than sticking to the issues
495
00:21:23.670 --> 00:21:28.670
of whether Mr. Lora was shooting due to the gang rivalry
496
00:21:31.200 --> 00:21:34.800
and whether there was this feud between the two,
497
00:21:34.800 --> 00:21:36.990
and kind of swaying the jury's emotions
498
00:21:36.990 --> 00:21:38.610
and being fearful of gangs.
499
00:21:38.610 --> 00:21:41.220
Rather than just deciding whether this was a component
500
00:21:41.220 --> 00:21:42.933
of the intent and motive.
501
00:21:45.420 --> 00:21:48.000
Okay, thank you.
502
00:21:48.000 --> 00:21:49.200
Thank you, your Honor.
503
00:21:52.350 --> 00:21:53.673
Okay, attorney Beaudoin,
504
00:21:56.220 --> 00:21:57.180
Good morning, your honors.
505
00:21:57.180 --> 00:21:58.140
May it please the court,
506
00:21:58.140 --> 00:22:00.390
Nathaniel Beaudoin for the Commonwealth.
507
00:22:00.390 --> 00:22:02.160
Excuse me, before I get into my argument,
508
00:22:02.160 --> 00:22:04.410
I do wanna acknowledge that the family of the victim
509
00:22:04.410 --> 00:22:06.483
is present in the courtroom today.
510
00:22:07.410 --> 00:22:08.580
Your Honor, as I would ask this court
511
00:22:08.580 --> 00:22:10.950
to affirm the defendant's conviction
512
00:22:10.950 --> 00:22:11.910
for first degree murder,
513
00:22:11.910 --> 00:22:14.375
because of the overwhelming evidence that was presented
514
00:22:14.375 --> 00:22:17.490
that he acted with deliberate premeditation.
515
00:22:17.490 --> 00:22:19.351
Evidence which significantly undermined
516
00:22:19.351 --> 00:22:22.876
the defendant's testimony and his self-defense claim.
517
00:22:22.876 --> 00:22:27.600
How are the jury to know
518
00:22:27.600 --> 00:22:32.310
how to use Dr. Brown's testimony?
519
00:22:32.310 --> 00:22:35.010
As was discussed, there was an instruction given
520
00:22:35.010 --> 00:22:37.397
by the judge that said the jury could consider
521
00:22:37.397 --> 00:22:41.130
all circumstances surrounding the defendant's
522
00:22:41.130 --> 00:22:43.410
state of mind when deliberating.
523
00:22:43.410 --> 00:22:45.210
And I think it's also important to note
524
00:22:45.210 --> 00:22:47.151
that when you look at,
525
00:22:47.151 --> 00:22:50.970
that I think the primary defense here was self-defense
526
00:22:50.970 --> 00:22:54.750
and the PTSD was sort of a secondary periphery defense.
527
00:22:54.750 --> 00:22:55.994
And Dr. Brown.
528
00:22:55.994 --> 00:22:58.200
I thought it was part and partial of the same.
529
00:22:58.200 --> 00:23:00.150
Well, reason why I say that, your Honor,
530
00:23:00.150 --> 00:23:02.610
is because Dr. Brown was the last witness
531
00:23:02.610 --> 00:23:03.990
to testify at trial.
532
00:23:03.990 --> 00:23:06.450
Then you had the defense closing argument.
533
00:23:06.450 --> 00:23:09.330
The defense attorney did not even mention PTSD
534
00:23:09.330 --> 00:23:10.350
in that closing.
535
00:23:10.350 --> 00:23:12.810
He actually did refer to Dr. Brown.
536
00:23:12.810 --> 00:23:14.640
He said something along the lines of,
537
00:23:14.640 --> 00:23:15.870
well, you heard Dr. Brown,
538
00:23:15.870 --> 00:23:18.270
but you know what, just use your common sense.
539
00:23:18.270 --> 00:23:21.810
This was an individual who was shot at near his friend
540
00:23:21.810 --> 00:23:22.680
eight months before
541
00:23:22.680 --> 00:23:25.530
and was shot five days before by Kevin Parker.
542
00:23:25.530 --> 00:23:26.970
So just use your common sense
543
00:23:26.970 --> 00:23:28.140
and think about that.
544
00:23:28.140 --> 00:23:30.030
He was stressed and he was paranoid.
545
00:23:30.030 --> 00:23:32.400
And I think the defense attorney argued that
546
00:23:32.400 --> 00:23:34.290
because the self-defense,
547
00:23:34.290 --> 00:23:37.560
because the PTSD claim was weak,
548
00:23:37.560 --> 00:23:40.531
and I think the prosecutor did a good job
549
00:23:40.531 --> 00:23:43.260
attacking that defense,
550
00:23:43.260 --> 00:23:46.110
attacking the credentials of Dr. Brown,
551
00:23:46.110 --> 00:23:47.108
but also pointing out.
552
00:23:47.108 --> 00:23:48.480
Attacking the credentials?
553
00:23:48.480 --> 00:23:49.622
I didn't see that part.
554
00:23:49.622 --> 00:23:54.240
He pointed out that Dr. Brown did not list PTSD
555
00:23:54.240 --> 00:23:57.630
as an area of expertise on his CV,
556
00:23:57.630 --> 00:24:00.330
that he had no published articles about PTSD,
557
00:24:00.330 --> 00:24:02.670
that he mainly published about asthma,
558
00:24:02.670 --> 00:24:05.640
and there was some discussion about the significance
559
00:24:05.640 --> 00:24:09.030
of the factors that led to the PTSD diagnosis,
560
00:24:09.030 --> 00:24:11.424
where it was on a scale of zero to 90.
561
00:24:11.424 --> 00:24:14.130
When you reach a level of 65,
562
00:24:14.130 --> 00:24:16.170
that's when it becomes significant.
563
00:24:16.170 --> 00:24:21.170
And he testified that the defendant had scores of 66 and 67.
564
00:24:21.180 --> 00:24:23.580
But in addition to that, the defendant.
565
00:24:23.580 --> 00:24:24.540
But you don't think this was
566
00:24:24.540 --> 00:24:26.220
an effective assistance of counsel?
567
00:24:26.220 --> 00:24:28.380
You think it was a wise strategic decision
568
00:24:28.380 --> 00:24:31.195
in light of the way Dr. Brown's testimony
569
00:24:31.195 --> 00:24:33.415
had actually entered?
570
00:24:33.415 --> 00:24:34.500
Yes.
571
00:24:34.500 --> 00:24:37.560
In addition to the fact that the defense was,
572
00:24:37.560 --> 00:24:39.750
he's hypervigilant, he's paranoid,
573
00:24:39.750 --> 00:24:41.324
he doesn't want to be out in public,
574
00:24:41.324 --> 00:24:45.030
yet there was testimony about the defendant's activities
575
00:24:45.030 --> 00:24:46.200
during this time.
576
00:24:46.200 --> 00:24:47.250
The day before the murder,
577
00:24:47.250 --> 00:24:48.450
he wants to go see his friend.
578
00:24:48.450 --> 00:24:51.090
He asks for a ride, he gets a ride to his friend's house.
579
00:24:51.090 --> 00:24:51.923
On the day of the murder,
580
00:24:51.923 --> 00:24:53.460
he wants to go see his friend again.
581
00:24:53.460 --> 00:24:55.260
He gets a ride and he goes there.
582
00:24:55.260 --> 00:24:57.092
After the murder, he goes to a public park
583
00:24:57.092 --> 00:24:59.280
to help warn his fellow gang members
584
00:24:59.280 --> 00:25:01.140
about possible retaliation.
585
00:25:01.140 --> 00:25:02.610
He flees to the Dominican Republic
586
00:25:02.610 --> 00:25:05.286
in the aftermath of the murder,
587
00:25:05.286 --> 00:25:08.550
posting pictures of himself on a beach.
588
00:25:08.550 --> 00:25:12.240
Not the actions of someone that was hypervigilant, paranoid,
589
00:25:12.240 --> 00:25:13.410
or had PTSD.
590
00:25:13.410 --> 00:25:15.720
So I think it was not error for counsel
591
00:25:15.720 --> 00:25:19.110
to request that instruction, because it was a weak defense,
592
00:25:19.110 --> 00:25:21.390
and it was not error because they had that instruction
593
00:25:21.390 --> 00:25:23.280
that they could consider everything
594
00:25:23.280 --> 00:25:26.730
relevant to the defendant's state of mind at the time.
595
00:25:26.730 --> 00:25:27.690
And when I said earlier,
596
00:25:27.690 --> 00:25:29.520
that the evidence here was overwhelming
597
00:25:29.520 --> 00:25:31.560
in terms of deliberate premeditation,
598
00:25:31.560 --> 00:25:34.170
I'm referring to the fact this defendant testified
599
00:25:34.170 --> 00:25:37.560
that he obtained a gun a few days before this murder.
600
00:25:37.560 --> 00:25:38.790
He obtained that gun
601
00:25:38.790 --> 00:25:42.600
after the intended victim of this murder shot him.
602
00:25:42.600 --> 00:25:44.880
That when he first sees Kevin Parker,
603
00:25:44.880 --> 00:25:46.740
that intended victim in the cemetery,
604
00:25:46.740 --> 00:25:51.000
his first reaction is to exclaim "F them, F them."
605
00:25:51.000 --> 00:25:52.920
And then, with deliberate premeditation,
606
00:25:52.920 --> 00:25:55.170
he takes out his gun, he leans,
607
00:25:55.170 --> 00:25:56.820
or hangs out of the window,
608
00:25:56.820 --> 00:25:59.370
which was testimony by several witnesses,
609
00:25:59.370 --> 00:26:00.630
clocks that gun back,
610
00:26:00.630 --> 00:26:02.760
and pulls the trigger six times.
611
00:26:02.760 --> 00:26:05.850
It only takes a matter of seconds to form an intent to kill.
612
00:26:05.850 --> 00:26:08.109
And when you take a look at all those factors together,
613
00:26:08.109 --> 00:26:12.060
that was deliberate premeditation by the defendant.
614
00:26:12.060 --> 00:26:15.060
And the defendant's actions in the aftermath of the crime
615
00:26:15.060 --> 00:26:18.060
also suggest deliberate premeditation.
616
00:26:18.060 --> 00:26:20.430
Literally, while they're still in the cemetery,
617
00:26:20.430 --> 00:26:22.680
he orders his associate at gunpoint
618
00:26:22.680 --> 00:26:24.210
to get rid of the murder weapon.
619
00:26:24.210 --> 00:26:26.010
And he goes, that was Mr. Taylor,
620
00:26:26.010 --> 00:26:28.140
he went and hid the gun wrapped in a t-shirt
621
00:26:28.140 --> 00:26:29.310
in the cemetery.
622
00:26:29.310 --> 00:26:31.890
He goes to a friend's house, wipes down the car,
623
00:26:31.890 --> 00:26:34.440
cleans the car, smashes his cell phone,
624
00:26:34.440 --> 00:26:36.600
and then goes to a public park
625
00:26:36.600 --> 00:26:39.178
to warn his gang members about retaliation.
626
00:26:39.178 --> 00:26:40.800
And then, as I mentioned,
627
00:26:40.800 --> 00:26:42.780
he flees to the Dominican Republic.
628
00:26:42.780 --> 00:26:44.370
And I think the case law is pretty clear
629
00:26:44.370 --> 00:26:48.300
that flight is classic evidence of consciousness of guilt.
630
00:26:48.300 --> 00:26:52.770
So considering the overwhelming evidence
631
00:26:52.770 --> 00:26:55.140
of deliberate premed, yeah.
632
00:26:55.140 --> 00:26:57.969
Photographs of him on a beach in the Dominican Republic
633
00:26:57.969 --> 00:27:01.533
reflective of consciousness of guilt.
634
00:27:02.790 --> 00:27:05.830
The photographs in the Dominican Republic
635
00:27:09.048 --> 00:27:12.060
were proper consciousness of guilt evidence.
636
00:27:12.060 --> 00:27:12.960
Why, yeah, that's my question.
637
00:27:12.960 --> 00:27:13.793
Oh, yeah.
638
00:27:13.793 --> 00:27:15.013
Okay.
639
00:27:15.013 --> 00:27:17.340
You can't answer the question by saying it is.
640
00:27:17.340 --> 00:27:19.410
Yes, it was proper consciousness of guilt,
641
00:27:19.410 --> 00:27:22.650
for what I said, this was a defendant fleeing the country.
642
00:27:22.650 --> 00:27:25.135
The flight is consciousness of guilt.
643
00:27:25.135 --> 00:27:26.419
Consciousness of guilt.
644
00:27:26.419 --> 00:27:29.310
Yeah, so explain to me how the photographs
645
00:27:29.310 --> 00:27:30.143
of him on a beach.
646
00:27:30.143 --> 00:27:32.250
Again, he's on a beach,
647
00:27:32.250 --> 00:27:33.990
this is a few weeks after the murder.
648
00:27:33.990 --> 00:27:37.620
This goes to the defendant's whole theory of PTSD.
649
00:27:37.620 --> 00:27:41.250
I'm paranoid, I'm avoiding other people, I'm staying inside.
650
00:27:41.250 --> 00:27:42.083
So it goes to that,
651
00:27:42.083 --> 00:27:43.950
it doesn't go to consciousness of guilt.
652
00:27:43.950 --> 00:27:45.720
I think it's relevant to both.
653
00:27:45.720 --> 00:27:46.553
I think the fact that.
654
00:27:46.553 --> 00:27:49.289
Explain the consciousness of guilt relevancy.
655
00:27:49.289 --> 00:27:53.280
So yes, there was testimony that the defendant
656
00:27:53.280 --> 00:27:55.110
went to Dominican Republic.
657
00:27:55.110 --> 00:27:57.600
And I think it was important for the Commonwealth's case
658
00:27:57.600 --> 00:27:59.700
to also show, not only is he there,
659
00:27:59.700 --> 00:28:03.330
he's not only posting pictures of himself on the beach,
660
00:28:03.330 --> 00:28:05.581
it was coupled with those Facebook posts.
661
00:28:05.581 --> 00:28:09.690
The prosecutor brought those up around the same time
662
00:28:09.690 --> 00:28:10.950
during the cross-examination.
663
00:28:10.950 --> 00:28:12.780
So he's posting the pictures,
664
00:28:12.780 --> 00:28:16.023
but he is also posting these messages that,
665
00:28:16.023 --> 00:28:18.900
"God protected me from my friends,
666
00:28:18.900 --> 00:28:21.457
'cause I can take care of my enemies."
667
00:28:21.457 --> 00:28:22.852
"I'll never drop my stripes,
668
00:28:22.852 --> 00:28:24.990
'cause I earned too much to get them."
669
00:28:24.990 --> 00:28:27.175
So all of that, both of those,
670
00:28:27.175 --> 00:28:30.060
so, I guess what I'm trying to argue
671
00:28:30.060 --> 00:28:31.770
is it was relevant to the consciousness of guilt,
672
00:28:31.770 --> 00:28:33.360
because the Commonwealth could actually show
673
00:28:33.360 --> 00:28:35.340
he's in the Dominican Republic and look,
674
00:28:35.340 --> 00:28:37.530
he doesn't seem to be too paranoid about being out.
675
00:28:37.530 --> 00:28:39.000
He's sort of flaunting it
676
00:28:39.000 --> 00:28:40.743
Exactly, exactly.
677
00:28:43.980 --> 00:28:48.360
And in terms of the delayed disclosure that was discussed,
678
00:28:48.360 --> 00:28:51.570
I'll just say that the motion judge in this case
679
00:28:51.570 --> 00:28:52.733
found there was no bad faith
680
00:28:52.733 --> 00:28:54.210
on the part of the Commonwealth.
681
00:28:54.210 --> 00:28:57.540
And it's interesting because he came to that conclusion,
682
00:28:57.540 --> 00:28:59.040
essentially using the arguments
683
00:28:59.040 --> 00:29:01.440
that the Commonwealth made in the lower court
684
00:29:01.440 --> 00:29:04.353
of why this was actually not late disclosure.
685
00:29:05.220 --> 00:29:06.480
So, and because of that,
686
00:29:06.480 --> 00:29:07.620
because there was actually.
687
00:29:07.620 --> 00:29:08.453
Explain that?
688
00:29:08.453 --> 00:29:09.721
Of course.
689
00:29:09.721 --> 00:29:10.754
So when it came to,
690
00:29:10.754 --> 00:29:12.153
so the Fred Taylor letter.
691
00:29:13.137 --> 00:29:14.790
Right, that was disclosed
692
00:29:14.790 --> 00:29:16.560
as part of the grand jury minutes or?
693
00:29:16.560 --> 00:29:19.560
Yeah, the contents of the letter were discussed
694
00:29:19.560 --> 00:29:21.450
during the grand jury testimony
695
00:29:21.450 --> 00:29:23.730
of Janesh Lee Delossantos.
696
00:29:23.730 --> 00:29:26.940
The letter was introduced as an exhibit at that,
697
00:29:26.940 --> 00:29:27.870
at the grand jury.
698
00:29:27.870 --> 00:29:30.060
What about the Facebook posts?
699
00:29:30.060 --> 00:29:31.440
No, that's a separate,
700
00:29:31.440 --> 00:29:33.480
I'll discuss the Facebook post.
701
00:29:33.480 --> 00:29:35.910
So do you rather me to discuss the Facebook post?
702
00:29:35.910 --> 00:29:37.920
Yes, because I think I understand the Taylor letter.
703
00:29:37.920 --> 00:29:40.020
Okay, so the Facebook post,
704
00:29:40.020 --> 00:29:42.060
as the prosecutor stated in his affidavit,
705
00:29:42.060 --> 00:29:44.640
were obtained prior to the defendant being charged,
706
00:29:44.640 --> 00:29:46.470
prior to any indictment.
707
00:29:46.470 --> 00:29:49.140
There was a search warrant for his Facebook account.
708
00:29:49.140 --> 00:29:51.600
The prosecutor stated in his affidavit
709
00:29:51.600 --> 00:29:53.880
that he turned over all the Facebook material
710
00:29:53.880 --> 00:29:55.800
to the defendant's first attorney.
711
00:29:55.800 --> 00:29:57.844
And that he didn't know whether that first attorney
712
00:29:57.844 --> 00:30:01.680
turned over the entire file to the second attorney.
713
00:30:01.680 --> 00:30:05.463
And I would argue, as I did in the lower court,
714
00:30:08.211 --> 00:30:12.750
there was evidence that those posts were turned over
715
00:30:12.750 --> 00:30:15.527
because counsel at trial said, oh, I have the photos,
716
00:30:15.527 --> 00:30:17.117
I just don't have the posts.
717
00:30:17.117 --> 00:30:19.571
The posts and the photos came
718
00:30:19.571 --> 00:30:22.470
as a result of that search warrant that was conducted
719
00:30:22.470 --> 00:30:24.330
before the defendant was charged.
720
00:30:24.330 --> 00:30:27.660
So I think, well of course I would've liked the motion judge
721
00:30:27.660 --> 00:30:29.970
to have found that those Facebook posts
722
00:30:29.970 --> 00:30:31.740
were turned over because it was clear
723
00:30:31.740 --> 00:30:35.190
counsel had some evidence related to the Facebook account.
724
00:30:35.190 --> 00:30:38.460
But instead he used that to say, well, pointing to that,
725
00:30:38.460 --> 00:30:41.210
I don't find bad faith on the part of the Commonwealth.
726
00:30:42.390 --> 00:30:44.910
Moving away from the question of bad faith
727
00:30:44.910 --> 00:30:48.060
and just the question of improper failure to disclose
728
00:30:48.060 --> 00:30:50.162
is the fact that the contents of the letter
729
00:30:50.162 --> 00:30:52.230
were discussed in the grand jury minutes.
730
00:30:52.230 --> 00:30:53.665
Does that excuse the Commonwealth's
731
00:30:53.665 --> 00:30:56.793
not turning over the letter, pursuant to Rule 14?
732
00:30:58.350 --> 00:31:00.300
Again, I maintain that it was turned over,
733
00:31:00.300 --> 00:31:03.990
but I think it sort of goes to the defendant's claim,
734
00:31:03.990 --> 00:31:06.180
and what defense counsel said in his affidavit.
735
00:31:06.180 --> 00:31:09.330
He said he was blindsided by the letter.
736
00:31:09.330 --> 00:31:11.895
And I think looking at that statement from counsel,
737
00:31:11.895 --> 00:31:14.212
the motion judge could have actually discredited
738
00:31:14.212 --> 00:31:17.010
everything he said about the Facebook account,
739
00:31:17.010 --> 00:31:18.960
because it was clear he wasn't blindsided.
740
00:31:18.960 --> 00:31:20.190
He had the grand jury minutes
741
00:31:20.190 --> 00:31:22.410
which discussed the contents of the letter
742
00:31:22.410 --> 00:31:24.630
and he had the grand jury minutes where he knew
743
00:31:24.630 --> 00:31:25.827
that the letter was introduced to the exhibit.
744
00:31:25.827 --> 00:31:29.100
But as I read your brief, you do not claim in your brief
745
00:31:29.100 --> 00:31:31.050
that a copy of the letter was turned over.
746
00:31:31.050 --> 00:31:31.893
Is that correct?
747
00:31:35.400 --> 00:31:37.860
This is why the motion judge decided it,
748
00:31:37.860 --> 00:31:40.740
found late disclosure because of this.
749
00:31:40.740 --> 00:31:42.990
In the Commonwealth's first notice of discovery,
750
00:31:42.990 --> 00:31:45.660
he listed several grand jury minutes,
751
00:31:45.660 --> 00:31:48.660
and he also included in that list the exhibits
752
00:31:48.660 --> 00:31:50.430
from those grand jury minutes.
753
00:31:50.430 --> 00:31:52.920
However, in the second notice of discovery,
754
00:31:52.920 --> 00:31:54.870
where these grand jury minutes at issue,
755
00:31:54.870 --> 00:31:56.340
where the letter was discussed,
756
00:31:56.340 --> 00:31:58.290
the prosecutor only put the minutes
757
00:31:58.290 --> 00:32:01.953
and did not also specify that the exhibits were turned over.
758
00:32:03.030 --> 00:32:04.980
Obviously I wish he had specified that it was turned over,
759
00:32:04.980 --> 00:32:06.780
but considering that he turned over
760
00:32:06.780 --> 00:32:10.200
all the exhibits in the first notice of discovery,
761
00:32:10.200 --> 00:32:11.900
I think the judge could have found
762
00:32:12.819 --> 00:32:14.340
that letter was turned over.
763
00:32:14.340 --> 00:32:16.620
But he couldn't point to anything
764
00:32:16.620 --> 00:32:18.510
that the Commonwealth actually did that.
765
00:32:18.510 --> 00:32:19.350
Can I ask you to address
766
00:32:19.350 --> 00:32:22.950
the delayed disclosure of the defendant's statement
767
00:32:22.950 --> 00:32:26.010
to officers that he was not a gang member?
768
00:32:26.010 --> 00:32:31.010
Yes, so that was, so the prosecutor was familiar
769
00:32:31.770 --> 00:32:33.540
with that case.
770
00:32:33.540 --> 00:32:35.976
So we had some knowledge of that.
771
00:32:35.976 --> 00:32:38.760
This prosecutor knows of information
772
00:32:38.760 --> 00:32:40.950
that is gonna be used to impeach the defendant.
773
00:32:40.950 --> 00:32:42.930
Why is it not?
774
00:32:42.930 --> 00:32:47.430
Oh, no, I'm suggesting that he knew about the Obeng case.
775
00:32:47.430 --> 00:32:49.890
And look, the question about whether or not
776
00:32:49.890 --> 00:32:53.580
he was a gang member, and the prosecutor's use
777
00:32:53.580 --> 00:32:57.060
of that prior inconsistent statement to impeach him.
778
00:32:57.060 --> 00:32:57.893
I mean, quite honestly,
779
00:32:57.893 --> 00:33:01.092
I don't think it did much for the Commonwealth's case.
780
00:33:01.092 --> 00:33:04.400
The defendant testified he was a gang member.
781
00:33:04.400 --> 00:33:06.720
So your position on that is that no prejudice
782
00:33:06.720 --> 00:33:07.830
by the delayed disclosure?
783
00:33:07.830 --> 00:33:08.790
Correct.
784
00:33:08.790 --> 00:33:10.440
Okay.
785
00:33:10.440 --> 00:33:11.790
And that rule, yeah, yes.
786
00:33:15.540 --> 00:33:17.499
And if there are no further questions, your honors,
787
00:33:17.499 --> 00:33:19.713
the Commonwealth can rest on its brief.