-: SJC-12887, Commonwealth versus Jose Lora.
-: Attorney McDonough, whenever you're ready,
-: Your Honor.
Good morning, your Honors, may it please the court.
My name is Jillise McDonough and I represent Mr. Jose Lora.
Ultimately, whether we review the errors in this case
as substantive errors
or ineffective assistance of counsel,
we reach the same result.
Mr. Lora did not receive a fair trial
due to a substantial risk of miscarriage of justice.
-: Can we start with the jury instructions?
You're saying that he should have gotten
certain instructions, but he didn't ask for them, right?
-: Yes, your Honor.
The instruction as to whether Kevin Parker's
prior instances of violence should be considered
was briefly discussed during the charge conference.
Counsel may have withdrawn the request,
but as far as whether it should have been given,
I think the request was withdrawn
because Mr. Lora testified that he did not know
that Mr. Parker shot him.
But there was other evidence in the record
that Kevin Parker had prior instances of violence
directed at Mr. Lora that could have been considered
by the jury in determining whether Mr. Lora
reasonably apprehended death or serious bodily injury.
-: Can you explain that though?
If your client testified he had no knowledge of it,
and I think he really doubled down on that,
and was asked multiple times,
and said, "I didn't know," how is that relevant?
-: Your Honor, I think it was relevant
because that would've come down to a question of fact
for the jury.
There are at least three other witnesses
who testified that Mr. Parker did shoot Jose Lora.
Mr. Parker himself admitted that he had shot Jose
and two of the witnesses who were in the vehicle
with Mr. Lora, Ms. Delossantos
and Mr. Taylor both testified that there were rumors
that Kevin Parker had shot Mr. Lora.
So I think under Commonwealth versus Clemente,
it would've been a question of fact
as to whether Mr. Parker did in fact shoot Mr. Lora,
and the Commonwealth argued extensively in closing
that the jury shouldn't credit any of Mr. Lora's testimony.
So the jury could have found that Mr. Parker shot Mr. Lora,
Mr. Lora knew, and that this was relevant
to whether Mr. Lora was in reasonable apprehension
of serious death or serious bodily injury.
But other than that, even if we don't base it on that.
-: I'm sorry to stop you, go ahead.
-: Sorry, I gotta stop you there though,
because you're glossing over the threshold question
of whether or not the judge,
in the absence of a specific request from the defendant,
was to look at, as you say, the totality of this evidence
and give the instructions to respond to it.
That's not our law, is it?
-: I'm not sure that it's, there is one case
that does address it, which I outlined in my brief.
We still look to whether there's a substantial risk
of miscarriage of justice,
and I think it was based on, counsel withdrew the request
based on the faulty premise that the only evidence
was whether Mr. Lora was shot by Kevin Parker,
but there was also this other evidence of Mr. Parker
admitting that they had other violent occasions
between them.
-: Answer this one question.
-: Yes, your Honor.
-: Was it error for the judge to not give an instruction
that the defense did not ask for?
-: I think it was error,
and even if not, then it was ineffective assistance.
And I think the case that I cite in my brief
addresses it in both ways.
One, whether the court should have sua sponte
given the instruction, and in the alternative,
if it was not, whether counsel was ineffective
for not pushing the issue
as to whether Mr. Lora should have received the instruction.
And it's both analyzed under a substantial risk
of miscarriage of justice,
whether we look at it from an ineffective standpoint
or whether it was error.
-: Let me follow up with you on that point then.
So if you're saying that irrespective
of the initial framework, we still get to the same question.
So the defense in this case pursued this defense
that it was PTSD based and hypervigilance,
and that's why it was proactive as opposed to reactive.
So that being said,
you had testimony from the clinician
about Mr. Lora's alleged PTSD and the reasons for that.
And the judge also gave an appropriate
instruction to the jury that they can consider
all of the testimony, all of the evidence
that bears on the defendant's state of mind
when it comes to this issue
of reasonable apprehension.
So tell us how it is that you meet the standard,
a substantial miscarriage of justice
in the event that you say,
it doesn't matter whether he gave it or didn't?
-: I believe that he's prejudiced either way,
because of the fact that his entire defense was premised
on this mental impairment defense,
and the jury was never specifically instructed
that they could consider mental impairment.
We have a specific instruction for that purpose.
That's a part of the self-defense instruction
that specifically says the jury is able to consider
credible evidence of the defendant's mental condition
at the time of the killing.
So I think this.
-: They have testimony about that.
They were free to reject or accept it.
-: They were, but they weren't specifically instructed
that they may consider the defendant's mental condition
specifically bearing on the issue of whether Mr. Lora
actually believed he was in danger.
And they were instructed, you can consider all evidence,
but I think we have this specific instruction
so that the jury knows they are to consider
directly on that point
whether there was a mental condition
that could have affected
whether he reasonably apprehended death
or serious bodily harm.
-: Counsel, one of the things that Commonwealth points out
about the argument that you're currently making
is that the rest of that instruction
talks about whether a reasonable person
in those circumstances would've believed
he was in immediate danger.
Can you address that part of the instruction?
-: Yes, your Honor.
-: And why wouldn't it have been reasonable for counsel
to make a strategic decision to say, you know,
I can't fit that unless we look at the PTSD
of this particular subjective defendant.
-: Your Honor, I think as far as the strategic decision,
counsel's entire defense was premised on the PTSD.
So I think to say that he would've called an expert,
had another police officer come in
and specifically testify about this incident
where Mr. Lora was standing next to a friend
when he was shot.
All this went to the defense's entire defense.
-: But that's his subjective feeling.
My question is about the Commonwealth's argument that,
in addition, that instruction,
the second half of the instruction
that you're requesting now,
requires that a reasonable person have reacted the same way.
-: Your Honor, I think taking that portion of the instruction
as it interplays with the portion of the instruction
that talks about mistaken belief,
I think taken together could have demonstrated that,
because mistaken belief does not apply
to kind of the subjective component.
So the jury was also instructed,
a person may use deadly force to defend himself,
even if he had a mistaken belief
that he was in immediate danger of serious bodily injury.
So I think taking everything, all of the instructions,
if he was to also receive the instruction
on mental impairment with the evidence,
the jury could have concluded
that there was a mistaken belief
and a reasonable person maybe could have had
the same mistake and belief given all of the circumstances.
So the fact that it's a rival gang member
in the other vehicle, the fact that Mr. Lora was shot
on two prior occasions,
the fact that there was a number of witnesses
who say they saw.
-: Shot on two prior?
-: Well, so he was shot five days before,
and then he was standing next to his friend
who was shot at eight months before.
And then the other witnesses who testified
that they saw Mr. Parker reaching for something,
and based on the look in his eye,
it didn't seem like it was something innocent.
It seemed nefarious.
So I think taking all of those together,
if the jury was properly instructed.
-: Actually, can I just press you on one?
You used the plural of other witnesses.
Wasn't there only one, Mr. Taylor,
that was the only testimony that arguably could be viewed,
I guess in the light most favorable to you,
that Mr. Parker was reaching for something?
-: Ms. Delossantos,
who was the passenger in the front seat,
she had also testified that she saw Mr. Parker
reach down for something.
She did admit that she didn't say that
before the grand jury, but she did testify to it at trial.
So there was both Ms. Delossantos and Mr. Taylor,
Ms. Forget said that she was driving,
so she was more focused on what was ahead of her
than the other car.
But there were two witnesses who did say that.
-: So I'm not saying this in isolation,
because I'm gonna relate it back to what you just said.
So if we could focus on Mr. Taylor,
because I do think Mr. Taylor's testimony
is also bearing on the issue of reasonableness.
So you say that the substantial likelihood is met here,
because if you take all of the stuff
that's in the instruction he didn't get
coupled with the evidence that the jury
likely could have come back with that.
But Mr. Taylor says something different
that undermines that.
Mr. Taylor's letter to Ms. Delossantos, I think it was.
McDonough: Yes.
-: During the course of his testimony,
a jury reasonably could have inferred
that this had nothing to do with reasonable apprehension,
that this was a retaliation,
that Mr. Lora knew they were going to be there,
used a ruse to get a ride to the cemetery,
and that this was a retaliatory shooting
for the shootings and the deaths that have happened
with his rival gang members.
So again, in the context of all of the evidence,
you still say that he meets the substantial likelihood
without this?
-: Yes, your Honor, and I would make a couple of points
as to the Fred Taylor letter.
The Fred Taylor letter, the Commonwealth now argues,
only came in for impeachment,
to contradict Mr. Taylor's testimony
that it was kind of a happenstance encounter.
And the trial court actually specifically found
that it wouldn't have left the impression with the jury
that Mr. Taylor actually believed this.
He was reciting hearsay that he had,
apparently it seemed that he had been informed,
during his interview with police,
which defense counsel tried to probe that
a little bit more in cross exam or redirect,
but was unable to.
But that information only came in for impeachment.
So there was no direct evidence that Mr. Lora
allegedly planned this incident
and came to the cemetery
in knowing that Mr. Taylor would be there.
-: I wasn't suggesting that it came in substantively.
What I was suggesting was that that is evidence
that bears on your client's state of mind.
So that it's not coming in for its truth,
but on the issue of whether it bears on his state of mind
that he's reasonably apprehensive of Mr. Parker
and that they could use that evidence
on the issue of the state of mind
to not believe that to be the case.
-: Well, yes, your Honor.
But I would go back to my point
that it wasn't substantive evidence.
So while it would've impeached Mr. Taylor,
the overwhelming evidence
was that this was not a planned encounter by Mr. Lora.
That he showed up and looked over
and suddenly Kevin Parker
was sitting in the car next to him.
And so our position is that the information
in Mr. Taylor's letter shouldn't even have come in.
Because it was double hearsay at that point,
but that it really didn't undermine
any reasonable apprehension,
because the overwhelming evidence was that
it was a happenstance encounter.
-: And you know this record better than I,
but just I wanna make sure,
was there a limiting instruction
when Mr. Taylor's testimony about the letter came in?
-: There was not, your Honor,
and the Commonwealth actually improperly used it
as substantive evidence in closing.
Instead of using as impeachment,
the Commonwealth directly argued
Fred Taylor said it best in his letter.
-: Did defense counsel argue for limiting instruction?
-: He did not request limiting instruction.
He did try to, it seemed, try to correct it on redirect,
but his questions were objected to
by the Commonwealth and sustained.
-: Okay, so just again, for our analysis going forward,
I'm sure we will look into this,
but if there isn't any limiting instruction,
that it was ostensibly supposed to be offered in
for limited use, but there's no limiting instruction,
don't we have case law that says
that it comes in for all purposes?
-: We do, and that would go back to my argument
that it shouldn't have come in for all purposes.
And the Commonwealth now argues
that it was only for its impeachment value,
but I would just point out for the court
that the Commonwealth used it substantively
in closing, and that it was error.
It shouldn't have come in substantively, if at all,
because of the double hearsay nature of the letter.
-: Thank you.
-: Now, if I could return to the errors at trial,
I would like to address whether Mr. Lora was prejudiced
by the errors.
So I think there were three overarching errors in this case.
So the prosecutorial misconduct,
which occurred with the delayed disclosure of evidence,
the improper cross-examination of Mr. Lora,
and the improper appeals to jury sympathy,
both during the testimony and during closing argument.
Whether the gang.
-: Can you just focus on the prosecutorial misconduct
that you allege.
So the disclosure happened,
it just wasn't as quick as the defense would like.
How was the defendant prejudiced by the time lag
in the disclosure?
How would the defense have been different?
-: Yes, your Honor.
So as to the delayed disclosure,
so there were the Facebook posts,
and then there was the information as to the Obeng shooting,
which was the shooting eight months prior.
So as to the Facebook information,
counsel could have filed a motion in limine
as to the statements that were allegedly made on Facebook,
so about earning your stripes.
And then also, "I don't fear my enemies, I fear my friends."
-: Would that motion have been successful?
-: I believe it would've been successful, your Honor,
because it did imply other prior bad acts,
and the court's recent decision as to the rap lyrics
within the last year.
-: But that's different,
because the case you're talking about,
we were discussing that
within the framework of character evidence.
This is very different,
because your entire defense
is based on this reasonable apprehension.
And so the state of mind is something
that you are putting into your defense,
and that's the central rudder of what you're saying.
So these issues, the Facebook posts
go to that very issue of your client's state of mind.
And I also add one other thing
before you finish answering Justice Wendlandt's question
as well, the delayed disclosure.
I wonder, what are we to make of the fact
that we have this affidavit from the trial prosecutor,
that this was one, your client's own Facebook post,
and secondly that, so you ostensibly should have
or could have been aware of them.
But the central point is,
the state of mind is what's at issue
as to the reasonable apprehension.
How would you have kept it out on relevancy grounds?
-: Yeah, your Honor.
As to it being Mr. Loras Facebook post,
I will have to pull the citation,
but I believe there's a case out of this court
that says that counsel is not to expect that his client
may share all information with him.
So if counsel could have filed a motion in limine,
then I think it's relevant.
The Commonwealth's responsible for turning over
statements of the defendant that they plan to use.
Arguably any statement that the defendant's made
is known to him, but it's still under Rule 14 as information
that the Commonwealth is required to disclose.
Georges: I'll give you that.
-: And then as to your second point,
this is directly relevant to state of mind.
I believe the defendant also raised a self-defense claim
in the recent rap lyrics case,
and it did go directly to his state of mind.
Here we're talking about statements,
"I earned my stripes, I did too much to get them."
The Commonwealth claimed that Mr. Lora
was already a gang member
at the time of this shooting.
So arguably that any statement of,
"I already earned my stripes"
would've implied prior bad acts
that potentially occurred well before this shooting.
-: Well, it's not, "I earned my stripes."
-: "I'll never drop my stripes.
I earned too much to get them."
-: Right, and so isn't that different?
-: I don't think it is, your Honor,
because I think the Commonwealth tried to imply.
-: What earning your stripes might suggest would be,
you know, maybe entrance into a gang.
I don't know about these things,
but it seems to be what you're suggesting.
Keeping them.
"I will never drop my stripes.
I did too much to get them." seems different.
-: Well, the Commonwealth attempted to imply,
the prosecutor actually did directly argue in closing that,
what did Mr. Lora do to earn the stripes?
He shot an unarmed gang member
who was sitting in the vehicle.
-: Right, so I understand the argument.
My question to you had been, and still is,
why would this motion in limine be successful?
Because it seems relevant.
-: But I think they imply prior bad acts.
Because if the Commonwealth's claiming that Mr. Lora
already had stripes at the time of this shooting,
because he was already a gang member.
-: But these posts post-date the shooting at issue here.
-: They do.
But if the Commonwealth is arguing
that Mr. Lora earned his stripes by this incident,
in order to undermine that,
he would have to suggest prior bad acts.
-: Right, that's why it's not earning, it's about dropping.
-: I understand that, your Honor.
But I think, viewing the totality,
I think there was so much other gang evidence
that they did little to add to the Commonwealth's case.
-: But that's my question for you then.
Given that there was all of this gang background,
how are you prejudiced?
-: I think in Commonwealth versus Wadsworth,
this court cautioned against cumulative gang evidence
and said that they have the potential
to sway the jury with emotions,
and taking that evidence
along with all the other gang evidence
that went beyond what this court allows in Wadsworth,
it all created prejudice.
So we have the statements from his Facebook post,
but then we also have other cumulative gang evidence
that was improper.
So we have the prosecutor
actually pointing to the spectators and saying,
are these gang members?
Implying for the jury that Mr. Lora
still associates with gang members.
It was stricken.
But I think it's one of those things that's so prejudicial
that the bell can't be un-rung.
We also have the prosecutor
admitting photographs of Mr. Lora saying,
"Don't you brag about being a gang member on Facebook?"
We have the prosecutor asking Mr. Lora
about whether gang.
-: Counsel, I guess it sounds like
you only want one half of this equation.
Because it sounds like Mr. Lora is saying
the apprehension that he had was so great
that he had to prospectively act
because of this rivalry between these gangs.
So how can you have your cake and eat it, too?
Because that's the central component
to why you say he's so hypervigilant
about his safety in the world
because of this underlying issue between the gangs.
-: I concede that the gang information was relevant.
It was relevant both to the Commonwealth's case
on motive and intent.
It was relevant to Mr. Lora's defense.
But I think it went beyond that,
as far as painting. Mr. Lora as this person
who's still associated with gang members
at the time of trial,
who was involved in drug activity
because of his gang involvement,
which we also couch in the context of opening the door
to his prior drug conviction.
We have Officer Roberge,
who actually testified as to an improper opinion testimony
revolving around the gang evidence.
So gang members don't carry guns 24/7,
they only carry them if they have the intent to use them.
Mr. Lora had a gun on June 26th.
So all of these pieces, while they are gang evidence,
and the gang evidence was relevant to the trial,
they went beyond what the court says is permissible,
and went more into the field of playing the jury's fears
and emotions surrounding gang evidence,
rather than sticking to the issues
of whether Mr. Lora was shooting due to the gang rivalry
and whether there was this feud between the two,
and kind of swaying the jury's emotions
and being fearful of gangs.
Rather than just deciding whether this was a component
of the intent and motive.
-: Okay, thank you.
-: Thank you, your Honor.
-: Okay, attorney Beaudoin,
-: Good morning, your honors.
May it please the court,
Nathaniel Beaudoin for the Commonwealth.
Excuse me, before I get into my argument,
I do wanna acknowledge that the family of the victim
is present in the courtroom today.
Your Honor, as I would ask this court
to affirm the defendant's conviction
for first degree murder,
because of the overwhelming evidence that was presented
that he acted with deliberate premeditation.
Evidence which significantly undermined
the defendant's testimony and his self-defense claim.
-: How are the jury to know
how to use Dr. Brown's testimony?
-: As was discussed, there was an instruction given
by the judge that said the jury could consider
all circumstances surrounding the defendant's
state of mind when deliberating.
And I think it's also important to note
that when you look at,
that I think the primary defense here was self-defense
and the PTSD was sort of a secondary periphery defense.
And Dr. Brown.
-: I thought it was part and partial of the same.
-: Well, reason why I say that, your Honor,
is because Dr. Brown was the last witness
to testify at trial.
Then you had the defense closing argument.
The defense attorney did not even mention PTSD
in that closing.
He actually did refer to Dr. Brown.
He said something along the lines of,
well, you heard Dr. Brown,
but you know what, just use your common sense.
This was an individual who was shot at near his friend
eight months before
and was shot five days before by Kevin Parker.
So just use your common sense
and think about that.
He was stressed and he was paranoid.
And I think the defense attorney argued that
because the self-defense,
because the PTSD claim was weak,
and I think the prosecutor did a good job
attacking that defense,
attacking the credentials of Dr. Brown,
but also pointing out.
-: Attacking the credentials?
I didn't see that part.
-: He pointed out that Dr. Brown did not list PTSD
as an area of expertise on his CV,
that he had no published articles about PTSD,
that he mainly published about asthma,
and there was some discussion about the significance
of the factors that led to the PTSD diagnosis,
where it was on a scale of zero to 90.
When you reach a level of 65,
that's when it becomes significant.
And he testified that the defendant had scores of 66 and 67.
But in addition to that, the defendant.
-: But you don't think this was
an effective assistance of counsel?
You think it was a wise strategic decision
in light of the way Dr. Brown's testimony
had actually entered?
-: Yes.
In addition to the fact that the defense was,
he's hypervigilant, he's paranoid,
he doesn't want to be out in public,
yet there was testimony about the defendant's activities
during this time.
The day before the murder,
he wants to go see his friend.
He asks for a ride, he gets a ride to his friend's house.
On the day of the murder,
he wants to go see his friend again.
He gets a ride and he goes there.
After the murder, he goes to a public park
to help warn his fellow gang members
about possible retaliation.
He flees to the Dominican Republic
in the aftermath of the murder,
posting pictures of himself on a beach.
Not the actions of someone that was hypervigilant, paranoid,
or had PTSD.
So I think it was not error for counsel
to request that instruction, because it was a weak defense,
and it was not error because they had that instruction
that they could consider everything
relevant to the defendant's state of mind at the time.
And when I said earlier,
that the evidence here was overwhelming
in terms of deliberate premeditation,
I'm referring to the fact this defendant testified
that he obtained a gun a few days before this murder.
He obtained that gun
after the intended victim of this murder shot him.
That when he first sees Kevin Parker,
that intended victim in the cemetery,
his first reaction is to exclaim "F them, F them."
And then, with deliberate premeditation,
he takes out his gun, he leans,
or hangs out of the window,
which was testimony by several witnesses,
clocks that gun back,
and pulls the trigger six times.
It only takes a matter of seconds to form an intent to kill.
And when you take a look at all those factors together,
that was deliberate premeditation by the defendant.
And the defendant's actions in the aftermath of the crime
also suggest deliberate premeditation.
Literally, while they're still in the cemetery,
he orders his associate at gunpoint
to get rid of the murder weapon.
And he goes, that was Mr. Taylor,
he went and hid the gun wrapped in a t-shirt
in the cemetery.
He goes to a friend's house, wipes down the car,
cleans the car, smashes his cell phone,
and then goes to a public park
to warn his gang members about retaliation.
And then, as I mentioned,
he flees to the Dominican Republic.
And I think the case law is pretty clear
that flight is classic evidence of consciousness of guilt.
So considering the overwhelming evidence
of deliberate premed, yeah.
-: Photographs of him on a beach in the Dominican Republic
reflective of consciousness of guilt.
-: The photographs in the Dominican Republic
were proper consciousness of guilt evidence.
-: Why, yeah, that's my question.
-: Oh, yeah.
Okay.
-: You can't answer the question by saying it is.
-: Yes, it was proper consciousness of guilt,
for what I said, this was a defendant fleeing the country.
-: The flight is consciousness of guilt.
Beaudoin: Consciousness of guilt.
-: Yeah, so explain to me how the photographs
of him on a beach.
-: Again, he's on a beach,
this is a few weeks after the murder.
This goes to the defendant's whole theory of PTSD.
I'm paranoid, I'm avoiding other people, I'm staying inside.
-: So it goes to that,
it doesn't go to consciousness of guilt.
-: I think it's relevant to both.
I think the fact that.
-: Explain the consciousness of guilt relevancy.
-: So yes, there was testimony that the defendant
went to Dominican Republic.
And I think it was important for the Commonwealth's case
to also show, not only is he there,
he's not only posting pictures of himself on the beach,
it was coupled with those Facebook posts.
The prosecutor brought those up around the same time
during the cross-examination.
So he's posting the pictures,
but he is also posting these messages that,
"God protected me from my friends,
'cause I can take care of my enemies."
"I'll never drop my stripes,
'cause I earned too much to get them."
So all of that, both of those,
so, I guess what I'm trying to argue
is it was relevant to the consciousness of guilt,
because the Commonwealth could actually show
he's in the Dominican Republic and look,
he doesn't seem to be too paranoid about being out.
-: He's sort of flaunting it
-: Exactly, exactly.
And in terms of the delayed disclosure that was discussed,
I'll just say that the motion judge in this case
found there was no bad faith
on the part of the Commonwealth.
And it's interesting because he came to that conclusion,
essentially using the arguments
that the Commonwealth made in the lower court
of why this was actually not late disclosure.
So, and because of that,
because there was actually.
-: Explain that?
-: Of course.
So when it came to,
so the Fred Taylor letter.
-: Right, that was disclosed
as part of the grand jury minutes or?
-: Yeah, the contents of the letter were discussed
during the grand jury testimony
of Janesh Lee Delossantos.
The letter was introduced as an exhibit at that,
at the grand jury.
Wendlandt: What about the Facebook posts?
-: No, that's a separate,
I'll discuss the Facebook post.
So do you rather me to discuss the Facebook post?
-: Yes, because I think I understand the Taylor letter.
-: Okay, so the Facebook post,
as the prosecutor stated in his affidavit,
were obtained prior to the defendant being charged,
prior to any indictment.
There was a search warrant for his Facebook account.
The prosecutor stated in his affidavit
that he turned over all the Facebook material
to the defendant's first attorney.
And that he didn't know whether that first attorney
turned over the entire file to the second attorney.
And I would argue, as I did in the lower court,
there was evidence that those posts were turned over
because counsel at trial said, oh, I have the photos,
I just don't have the posts.
The posts and the photos came
as a result of that search warrant that was conducted
before the defendant was charged.
So I think, well of course I would've liked the motion judge
to have found that those Facebook posts
were turned over because it was clear
counsel had some evidence related to the Facebook account.
But instead he used that to say, well, pointing to that,
I don't find bad faith on the part of the Commonwealth.
-: Moving away from the question of bad faith
and just the question of improper failure to disclose
is the fact that the contents of the letter
were discussed in the grand jury minutes.
Does that excuse the Commonwealth's
not turning over the letter, pursuant to Rule 14?
-: Again, I maintain that it was turned over,
but I think it sort of goes to the defendant's claim,
and what defense counsel said in his affidavit.
He said he was blindsided by the letter.
And I think looking at that statement from counsel,
the motion judge could have actually discredited
everything he said about the Facebook account,
because it was clear he wasn't blindsided.
He had the grand jury minutes
which discussed the contents of the letter
and he had the grand jury minutes where he knew
that the letter was introduced to the exhibit.
-: But as I read your brief, you do not claim in your brief
that a copy of the letter was turned over.
Is that correct?
-: This is why the motion judge decided it,
found late disclosure because of this.
In the Commonwealth's first notice of discovery,
he listed several grand jury minutes,
and he also included in that list the exhibits
from those grand jury minutes.
However, in the second notice of discovery,
where these grand jury minutes at issue,
where the letter was discussed,
the prosecutor only put the minutes
and did not also specify that the exhibits were turned over.
Obviously I wish he had specified that it was turned over,
but considering that he turned over
all the exhibits in the first notice of discovery,
I think the judge could have found
that letter was turned over.
But he couldn't point to anything
that the Commonwealth actually did that.
-: Can I ask you to address
the delayed disclosure of the defendant's statement
to officers that he was not a gang member?
-: Yes, so that was, so the prosecutor was familiar
with that case.
So we had some knowledge of that.
-: This prosecutor knows of information
that is gonna be used to impeach the defendant.
Why is it not?
-: Oh, no, I'm suggesting that he knew about the Obeng case.
And look, the question about whether or not
he was a gang member, and the prosecutor's use
of that prior inconsistent statement to impeach him.
I mean, quite honestly,
I don't think it did much for the Commonwealth's case.
The defendant testified he was a gang member.
-: So your position on that is that no prejudice
by the delayed disclosure?
-: Correct.
Wendlandt: Okay.
-: And that rule, yeah, yes.
And if there are no further questions, your honors,
the Commonwealth can rest on its brief.