-: SJC-12912.
Commonwealth v Julio C. Baez.
-: [Chief Justice Budd] Okay, Attorney Scapicchio.
-: Thank you.
Good morning, Your Honors.
May it please the court,
my name is Rosemary Scapicchio and I represent Julio Baez.
There are two issues from my brief
that I'd like to discuss today with the court.
The first is the required finding argument,
and the second is the juror issue.
So jumping directly to the required finding argument,
for the purposes of this hearing,
I'm going to assume but not concede
that Julio Baez was the driver.
Because I think the real question is
if he's the driver, was there enough
to get over the rail for a required finding?
And I think what's missing from the Commonwealth's case
is that there was no knowledge, there was no lethal intent,
and there was no evidence in any way
that demonstrated that he inherently had any lethal intent.
And so in this case, I would suggest
that the Commonwealth's evidence rests
almost entirely on the fact that
if you believe he was driving,
then he maneuvered his car.
And that's it.
I think this case actually is even stronger
than your decision in Baxter.
Because in Baxter, the evidence was that
the driver of that car, Mr. Baxter,
had the shooters in his car prior to,
was actually following the victim in the car,
had pulled over.
At least one of the witnesses had claimed...
-: Can you walk us through
just the vehicle movement in this case?
-: Sure.
-: Assuming he's the driver and that the shots go off,
just walk us through just what's happening
and your explanation of that
and how that shows there's not lethal intent.
-: Right, so first of all, there's no evidence that...
-: A little softer too. -: I'm sorry.
It's because I come from a large family,
and I was in the middle.
I had to be heard.
But in any event, I would say that in this case,
there's no evidence that the shooters alighted
from Mr. Baez's car.
So the evidence is that Mr. Baez's car is on a side street,
that the shots are fired,
that there's a situation where he backs up,
and that according to the evidence,
the two people who the Commonwealth says are the shooters
jump in his car.
That's what the evidence was.
Now, the Commonwealth claims that those were both
the Soto people who were both found not guilty at trial.
But that's the evidence,
that that's the maneuver that he made.
And there were witnesses who claimed that...
-: And he moves towards the shots?
Just describe the detail of that.
-: So the maneuver is that it was actually forward first
and then backed up.
And according to at least one witness,
one witness thought that during that time period,
a car was hit.
His car hit another car on that street.
And there was some evidence of paint
that we're challenging as well.
But the maneuver is driving forward and then driving back.
That's the maneuver.
And the driving forward was, you're right,
towards what happened.
And then the driving back was,
according to the Commonwealth,
in order for the shooters to get in the car.
-: Excuse me, Counsel.
Was that like on a corner or something?
-: Yes.
-: Can you just talk us physically through it?
This is the rare occasion where it would be useful
to have like a picture? -: Yes.
-: Can you just talk?
Can you draw the picture for us with words?
-: Sure, sure.
So the way that the car is positioned
is away from where the shooting takes place.
So there's no evidence at all that
because Baez was in the car,
let's assume he was in the car,
he couldn't see what was going on.
-: It was down a hill, right? -: It was down a hill.
So there's no way that he could see what was going on.
So whatever happens down the hill,
he doesn't have any eyesight to that.
What happens is, the shooting happens.
The car goes forward, the car goes back.
The two other people
who the Commonwealth say are the shooters jump in,
one in the front car, one in the back car.
But the maneuvering of the car itself,
let's just assume that's the focus of this court,
that's all they have.
And because this case is so different
from every other case that
I think we have a required finding issue on.
Because there isn't that conversation beforehand,
-: But just even abstracting
away from the intent aspect here,
but just literally logistically what happened.
-: [Attorney Scapicchio] Yes.
-: You said it has to do with a corner?
-: [Attorney Scapicchio] Yes.
-: So there's like a T. -: Yes, like this.
-: And then, does the maneuvering,
is there any testimony based on what the witnesses said
that suggests like the maneuvering
is 'cause the car is trying to turn the corner?
-: No, the car turns the corner
after the two shooters jump in.
That's when the car turns the corner, not before.
-: So it's approaching the corner.
-: Yes, then backs up.
The two shooters jump in, and then it takes the right.
That's how the evidence comes out at trial.
That's where it was.
But that alone, let's assume they were the shooters.
Okay.
Let's assume that they get in the car.
Where is Mr. Baez's lethal intent?
This isn't a situation where the shooters
alight from his car.
This isn't a situation where he provides...
-: Isn't that a reasonable assumption
that the shooters alight from the car
if he's picking them up?
-: No. -: Really?
-: [Attorney Scapicchio] Not at all.
-: So the gun goes off, and he runs over there.
But he's not the guy who dropped them off?
-: Right. -: Really?
-: Well, 'cause you need some evidence for that.
So the Commonwealth had presented no evidence
that he dropped them off.
And you can't infer that from anything.
The evidence was that the two shooters
were sitting on the steps.
-: What do you infer then from them picking up?
Just he had some plan of picking people up around there
and guns go off?
-: Best case scenario is that...
-: Because again, this is in the light
most favorable to the Commonwealth.
-: Right, in the light most favorable to the Commonwealth.
Where is the lethal intent?
Where is the evidence of lethal intent?
-: I'm trying to get to the fact that you say that
you can't reasonably infer that he dropped off
the people who he picks up.
That's tough for me.
I just wanna make sure I understand the logic of that.
-: Right, and so the logic is
who knows how they got there?
We don't know how they got there.
All we know is the evidence that the Commonwealth presented
is that the two shooters were sitting on a stoop.
They got up, they pulled their hoodies
over their head tight,
and they went and conducted the shooting.
That's what we know.
And we know after that, they fled in the direction
of where Mr. Baez's car was.
Absolutely, without question.
But that doesn't mean that Mr. Baez dropped them off.
That doesn't mean anything.
-: [Justice Wendlandt] Excuse me.
-: Even if you wanna believe Mr. Baez dropped them off,
there's still no lethal intent.
Because there's no indication
that there's any conversations with the shooters.
What if they went there to beat these people up?
What if that was their intent?
That's not a lethal intent.
And that's what's wrong
with the denial of the required finding.
Because you can't infer a lethal intent
from no evidence whatsoever.
Even if you take it as far as you wanna take it-
-: Counsel, Counsel, can you address what happened
after the shooting,
you know, and how that informs or doesn't
a jury's ability to find lethal intent?
-: Well, I would suggest it doesn't
because the Commonwealth-
-: But what was the evidence that, just to reflect,
and then we can deal with the legal-
-: So the evidence after the shooting
was that the keys for the car get given to someone
who gives them to my client's mother.
The police end up taking the keys at that point.
There is a conversation, according to the Commonwealth,
between my client and a friend where he says,
"I was the driver, but I didn't have anything
"to do with the shooting."
That's the evidence.
-: And was there a police interview?
-: In this case? -: Yeah.
-: No, I don't believe so. -: Okay, okay, great.
Okay, so now why can't any inferences be drawn
based on that?
-: On the fact that he said he was the driver?
-: And he gave the keys to Figueroa?
-: Right, so the inference you could draw
under those circumstances is that there was a shooting
that he may have been involved in.
But still you're missing the knowledge
and the lethal intent.
And those are the two elements that are required
in order for this court to determine that
the denial of the required finding was reasonable
under the circumstances.
And I would suggest that, that's the key here
is, you know, did the Commonwealth sustain
a reasonable inference beyond a reasonable doubt
that Baez had the lethal intent?
And I would suggest, even if you add in the fact
that there's no evidence of that,
but I'll give you the fact that
he might've drove them there.
And I don't think you should find that
because I don't think there's any evidence.
But even if you give them that, there's no conversations,
there's no supplying a weapon.
There's no indication at all that he knows
that they're gonna go and try to kill someone.
There's nothing.
And there isn't even a situation here where
after the shooting, there's weapons displayed
while they're jumping in the car.
Nothing like that.
At best, they have an accessory after.
At best, that's what they have.
-: Well, wasn't their testimony though
from one of the eyewitnesses, multiple eyewitnesses,
that one of the shooters was, you know,
openly carrying a gun as they ran up the hill?
-: But not in the line sight of Baez.
That's the problem.
The evidence was,
by the time the two shooters got to the car,
both of them had their hands in their pockets
and they jumped in the car.
That's the evidence.
-: So the neighbors from the window at the top of the hill,
none of them saw the weapon?
-: No, none of them saw the weapon.
But even if you wanna believe there was a weapon,
the weapon is displayed on the hill.
There's no indication that there's a weapon at the time
that either of these two shooters get in the car.
The evidence, in fact, is the opposite.
The evidence is, both of them had their hands
in their pockets as they got in the car.
-: How far were they from?
How far was the shooting from?
-: [Attorney Scapicchio] About a block away,
up a hill.
-: There's an inference that he heard the shots, right?
-: Right, and there's an inference,
certainly, he heard shots.
And if he heard shots
and he moved as a result of those shots,
you know, there's a lot of times that people hear shots
and wanna get out of the area.
I don't think that that alone displays any lethal intent.
And again, when we talk about lethal intent,
we have to talk about the idea that in this case,
there's just no evidence to suggest
that he knew what was going on.
Even if you put the other two defendants
in the car at the time-
-: So when the two people with the hoodies
are walking up the street,
their hands are in their pockets, right?
And one of the people in one of the stores
gets frightened by them.
Does he see a bulge in their pockets?
What frightens him?
-: It doesn't say.
There's no evidence developed as to what frightens him.
As a matter of fact, one of the issues,
I think there's a footnote in my brief-
-: How does he describe the way they look
when they're walking?
-: He says that they're scary, that they're-
-: Their hoods are tight around their face.
-: Hoodies are tight and they're walking in.
And this individual got, I think he said-
-: And their hands are in their pockets.
Their hands are in their pockets.
-: Yes, yes.
-: And nothing more about the pockets?
-: No, but even if you wanna focus on that,
that's not something Baez can see
all the way at the top of the hill.
You can't see it.
-: But the question is, if they can see them,
if some guy who's sitting in a store can see a bulge,
now I'm not saying he can,
but if he is the driver to the place
and he sees them come back,
but if he saw them leaving and he could see the bulge,
that would be relevant, wouldn't it?
-: It would, but that would be a gigantic inference
not supported by the evidence.
-: I'm just trying to make reasonable inferences
and figure out which-
-: But I don't think it's reasonable to suggest that.
Because the evidence,
I think there's a footnote in my brief,
I can't remember which page off the top of my head,
that says that one of the things that happened in this case
is that nobody went back and asked that individual,
"Why did you feel like they looked scary?
"What happened?"
That's part of the evidence that's missing.
'Cause I agree, if they said the pockets were bulging,
you know, something about I knew them
and I thought they might be shooters,
anything like that.
But that's not the evidence.
In fact, that was one of the issues on cross-examination
about whether or not there was any follow up
to this person who said they looked scary.
And there was none.
There was no interview, there was nothing
that suggested what caused that individual
to claim that these two looked scary.
That's it; all we have is someone decided
two young Black kids looked scary
in an all White neighborhood.
And now, here we are.
That's not enough.
It's just not enough under the circumstances
to prove lethal intent.
And especially when you add that to the fact
that in this case,
there's no evidence that Baez participated in a plan.
And what the Commonwealth wants to say is,
because the car moved back and forth
and because he was waiting there
and the shooters jump in it, there must have been a plan.
And that's just pure speculation.
-: But there was certainly a plan to pick them up, right?
-: I'm talking about a plan to murder.
-: I'm not talking about a plan.
I get that, that's accessory after the fact.
-: There's a plan of some sort.
The question is, was there a plan...
Is he involved in a plan to shoot the victim
as opposed to a plan to do something to the victim.
-: Right, and that's the whole point.
The whole point of the missing link of lethal intent
is that we don't know what the plan is.
Typically, we would have conversations,
text messages, a witness testifying
that he said this, that and the other thing.
We don't have any of that in this case,
not a single indication of a plan
other than the moving of the car
and that the shooters get in.
And I agree, there's a plan for something.
At the best, there's a plan
that he was picking them up from something.
But the question is,
what did the Commonwealth prove that something was?
And I would suggest that the Commonwealth failed to prove
that that something was a lethal intent at all,
or even an intent to do any more.
What if they were just gonna go there
and have a conversation, and get into a fight?
We don't know if that happened in this case.
Because when the evidence came out the way that it did,
and when the defendant-
-: When he drives off in a rush-
-: [Attorney Scapicchio] Yes, it's not a rush.
-: Well, he smacks the other car
and doesn't stop and give his license, right? (chuckles)
-: Well, the evidence is,
initially, the witness who was watching
from the apartment building said on direct examination
that the car sped off.
On cross examination, what the witness said-
-: Well, the car hit a car and didn't stop
and give his license, you know,
do all the things you're supposed to do.
-: If you believe the car was hit
in the light most favorable to the Commonwealth.
-: We clearly have to. -: Absolutely, Judge.
-: So okay, so he does drive off, hears shots, he drives...
I'm not saying it's proven,
but I'm just trying to take all the facts as opposed to-
-: I understand, but here's the problem with that
is that when it comes down to exactly the minutiae
of what he did, the car was what,
was going about 5 or 10 miles an hour.
That's not speeding off.
That's not 20 miles an hour.
5 or 10 miles an hour is not speeding.
-: Two guys shoot somebody and jump into your car.
You hit somebody, you're going away.
-: Right, accessory after the fact.
I'll give you that any day of the week.
But it's not a lethal intent.
And it's not proof that there was knowledge
of what was to happen before the shooting took place.
And to answer your question, 'cause I didn't get there,
in terms of what happened after that would infer anything,
the Commonwealth at trial tried to suggest,
and on appeal suggest,
that there was a consciousness of guilt.
And therefore, the consciousness of guilt should be added.
But this court has already said,
even if you agree with the consciousness of guilt,
it doesn't go to the intent
at the time that the crime was committed.
So even if you wanna believe
there was a consciousness of guilt,
there was a flight from the scene,
there was a hitting of the cars,
if you wanna believe all of that,
it still doesn't go to the lethal intent.
And again, that's what's missing in this case
is the lethal intent.
And that's why if you look at this case
as compared to Baxter,
if you look at this case as compared to Gonzalez,
the facts I think in this case are even weaker
than in those two cases.
There is no motive here
for Mr. Baez to have engaged in anything.
There's no explanation other than
he was in the company of the two Soto brothers
prior to leaving the party
where they were smoking and drinking for a period of time
and then came back two hours later.
That's the evidence.
And if you put him in the car
and he's sitting at the top of the hill
and the shooters jump in the car,
all of that still fails to prove knowledge
and lethal intent.
And the inferences that the Commonwealth
is asking this court to draw
I would suggest are not reasonable based on the evidence.
And even if we get to the point where we say,
he must have dropped them off,
even though there's no evidence to that effect,
even if you get there,
I would suggest under the circumstances,
there's still not a lethal intent
and there's no evidence of knowledge.
-: Counsel, can I ask you to address
the jury selection issue?
-: Sure, so the jury selection issue in this case
is that all three defendants were Hispanic males,
young Hispanic males.
So the challenge in this case by the Commonwealth,
Juror 177 was a Northeastern student
who happened to be Hispanic.
Even though he was a student,
he indicated that he was a very good student,
he could keep up with his classes.
He wanted to serve.
The Commonwealth challenged him.
And at that point, there was an issue
about whether or not that was a proper challenge.
The judge decided at that point
that there was no abuse of discretion, there was no pattern.
The second juror on day 4 gets challenged.
That's Juror 18, also a Hispanic male.
And at that point, there is a comment
by one of the defense attorneys that says,
"It's beginning to look like a pattern."
And what essentially the judge did is said,
"No, it's not a pattern.
"Because we have one Hispanic female from Columbia
"on the panel already.
"And we have an African American person on the panel."
Neither of them are what was challenged here.
-: But she doesn't say that, right.
She says that the jury appears diverse, right?
-: No, there is evidence.
Not just diverse, she does say the words
that there is an African American and a Colombian.
-: But she's walking through what she thinks
is on the jury at this point, right?
-: Yes.
And the issue with that is that that's only one factor
that the court should have considered
when considering whether or not the challenge
was racially based.
-: Well, but we don't know whether
she was considering other factors too.
-: [Attorney Scapicchio] Well, there's no evidence she was.
So I think-
-: Well, the fact that they're students.
No other students had been seated, right?
-: Not at that point.
No, I take that back.
There was an Indian, an Indian younger person.
-: He wasn't seated, right?
You challenged him, or your co-counsel.
-: I didn't but yes, the defense challenged him, absolutely.
But the Commonwealth did pass on that
suggesting that it wasn't young people
that they were concerned with
or students they were concerned with.
-: There's a pattern.
-: But here the pattern is that race,
it's a challenge to race and gender.
So the challenge was that
the two people that were challenged by the Commonwealth
were both Hispanic males.
So it's not just race, it's not just gender.
It's both, it's race and gender.
And the suggestion in this case is that
the court didn't take into consideration the factors
that the court should have taken into consideration
in determining whether or not the defendant met its burden
of proving that there was a race-based challenge
in this case.
Because we never even get to the first step.
We never get to, was there a pattern?
Because what the trial judge did in this case
is determine by looking at the jury
that because the jury appeared diverse to her
that there was no need to go further than that.
-: Counsel, it seems like it's a fair inference
that if you had gotten to step one
and if the judge had asked the prosecutor,
you know, "What's your reason
"for challenging these students?"
That the prosecutor probably would've said,
"They're students."
And so, what is your response to that?
-: Except for the Indian person.
Except for the Indian person,
the Commonwealth didn't challenge in this case.
So in terms of challenging students,
you know, the first time, first of all,
the Commonwealth brings up the fact
that the reason for challenging
was that they were students is in the appeal.
Never happened at trial.
Never part of the record.
Never indicated-
-: I thought that there were comments
from one of the prosecutors in the record that quote,
"There are lots of reasons I don't like students."
And that the prosecutor actually had specifically
said he didn't like seating student jurors.
-: Yes, that's true.
But there's a part of our argument as well that says,
and I know I've argued this before before this court,
that if the reason was age-based challenge,
then we're saying that that was also improper.
So even if it was based on age-
-: You've lost that one a few times.
-: I have, but I'm not done.
-: You're not done, I know.
-: I'm not done arguing.
Losing that issue is not gonna stop me
from continuing to bring it up.
Justice Kafker: You keep going.
-: Because at some point, I think the racist nature
of challenging these students is gonna come to-
-: Can I ask one further question?
Is it clear, and I apologize
'cause I probably could have figured this out.
But is it clear that the Commonwealth
forwent challenging the student who was of Indian ancestry,
right, or did the defense exercise its peremptory?
It's very clear that they passed on challenging.
-: It's clear the Commonwealth passed.
They didn't challenge.
And one of the defendants exercised a peremptory challenge
to this particular juror.
And I think the record was that this juror
had some police officers in their family.
And there was one other reason.
I know it's in my brief.
I can't remember off the top of my head
the reasons that the defendant indicated that
they were challenging this particular juror
after the Commonwealth had passed on the juror.
But I believe it was the fact that the juror
had some family connections.
And I can't remember the other issue.
-: But is that just tactical?
The Commonwealth knows
the defense counsel is gonna exercise a peremptory,
so it doesn't need to do anything.
It's sitting tight.
I mean realistically, "Oh, we've got somebody
"who's related to police officers.
"I don't need to exercise my peremptory
"'cause I know what the defense is gonna do."
Right, that happens.
That happens a lot, right?
-: I'm not gonna say it doesn't.
It's certainly probably a strategic reason.
But it doesn't cure the fact that even if one juror
was excused based on race and gender, that it's improper.
And from this record, you can't determine that it was.
Because the trial judge didn't follow the steps
that this court said should be in place
at the time that somebody makes a Batson-Soares challenge.
And that's the problem with the record here
is the record suggests that of Hispanic males,
they challenged 100%.
Both Hispanic males that were cleared by the court
were challenged by the Commonwealth 100%.
And that's unacceptable.
And even if you wanna take it out of males
and just focus on race alone, it's 66%.
Because they challenged everyone
except for the Colombian woman
who ended up sitting on the jury.
And in this case-
-: We don't lump, right?
-: We do not lump.
They lumped, but we don't lump.
That's the other thing that the trial judge did
is she lumped together.
-: We don't lump.
-: I understand that but the trial judge did.
And so you have to look at whether or not
what she did was erroneous.
And so if she lumped in race and gender altogether
and made her determination
based on the makeup of the jury, then that was wrong.
And once here, Mr. Baez had to prove.
And I believe that he made the limited showing necessary
to make a prima facie case of racist discrimination
with respect to the Commonwealth's challenges
against Hispanic jurors.
And I'm asking this court to reverse Baez's conviction
based on that.
And if there are no further questions,
I'll rest on my brief.
-: Okay. -: Thank you.
Attorney Linn.
-: Good morning, Your Honors.
May it please the court, Paul Linn for the Commonwealth.
I would like to start with the peremptory challenge issue-
-: Actually yeah, let's start with that.
-: I mean, can you start with Baxter and distinguish-
-: Oh, absolutely, yes.
The court is interested in that.
-: Yeah, we're interested 'cause it's gonna be hard.
So help us out here.
And you didn't have a lot in your brief on this,
and this is tricky, right?
It's awfully close to the other case.
So help us out here very specifically.
-: The distinguishing factor here is that
the defendant has no reason, no reason whatsoever
to believe that these gunshots have anything to do with him
unless he knows that his companions
are committing the shooting,
are going to commit the shooting
and have indeed committed the shooting.
This is a case where actually the lack of evidence
that he dropped the defendants off and saw the shooting
is actually in the Commonwealth's favor.
It is essentially the curious incident
of the dog in the nighttime.
It is the negative evidence that actually,
the evidence of a negative
that actually proves the positive.
-: But I don't understand that at all.
Can you walk us through that a little bit?
Because it seems to me that this case
is actually stronger than Baxter in terms of the defendant,
if you can assume it's the defendant in the car,
being just the getaway driver
and not knowing that there is a plan to kill the victim.
-: Because if there is no plan to shoot,
he has no reason to believe
that the shooting has anything to do with him.
And yet, he knows that.
We know he knows that because he pulls forward
as soon as hears the shooting.
Everyone goes to their windows.
Kay Pancheri, Benjamin Kresser I believe it is,
Ms. Margot, they all go to their windows.
And I should add that Margot
actually does see one of the men,
I believe it was the man in the light hoodie,
carrying a gun.
By the time they get up to the top of the hill
and Kay Pancheri and Benjamin Kresser see them,
it's apparent that they put their hands in their pockets.
But yes, he is running with the gun.
Also, Mrs.-
-: Let's do this chronologically.
Help us out here a little bit
'cause I'm a little confused about...
Do we have direct testimony that what triggers him
to move the car is the gunshot?
-: Yes, everyone goes to the window
when they hear the gunshots.
-: And he immediately starts driving towards the gunshots.
Is that what you're saying?
-: Yes, as soon as they get to the window,
Kresser and Pancheri see the car moving forward,
starting to take that turn to the right.
Before I get too far into this,
I do want to describe the intersection.
'Cause it is important and we could use a map here.
-: But can I just ask you to pause there though?
Do the witnesses see him parked, gunshot, then move?
Or do they all run to the window after the gunshots
and the car is already moving?
-: It's the latter.
They hear the gunshots, they go to the window
and they see the car moving.
The car goes forward, starts...
Well again, this intersection,
it's the corner of Salem Street and I believe High Street.
And High Street is the T.
But just a slight zigzag to the right is Pearl Street,
I believe is the name.
And that's testified to at trial.
So you make a quick right.
And then you immediately go straight on Pearl Street.
And that leads away.
That is pretty much the only street
in that warren of streets on Beacon Hill
that goes to the other side of the hill
as opposed to bringing you back around
and down to Main Street.
And there is evidence to that effect too.
So the positioning of the car is also relevant.
He is in a position to get away quickly
and not have to return to Main Street.
-: Right, but I get a lot of that.
And I'll give you that I don't find it compelling
that he's not dropping them off.
But how does his moving towards the gunshot,
couldn't the gunshots...
He may be moving towards them to rescue them.
You know, how does he know that they fired the shots
because of that?
-: Well, he doesn't have any reason
to believe they're being shot at
unless he believes that there's gonna be a gun fight,
there was going to be a gun fight.
-: But he heard the shots.
So that's when he realized that-
-: There's a gunshot.
There's a gunfight when he hears the gunshots.
-: Right, but how does he know that has to do
with his companions?
The only reason he knows that is because
he knows they were gonna get into a gun fight.
-: Because he hears the gunshots
and moves towards his companions,
I'm just asking, we draw the inference
that he knew they were gonna shoot.
And that's the trigger for him to drive towards them.
-: Exactly, that's what the prosecutor argued in closing.
That's what the Commonwealth is arguing here.
And he moves forward.
He doesn't flee.
He moves forward and then pulls back
so he's in the perfect position.
And he does it, you know, quickly enough
that he hits this other car.
And I think the evidence is clear from the fact
that the owner of the Jetta,
which is the car that's hit,
testifies that that damage wasn't there earlier in the day.
-: So now help me on...
You say that some people observed the two other people,
their guns are out.
Are their guns out before the gunshots
or after the gunshots?
-: After.
-: Again, I'm wondering.
Is there any evidence that should suggest
that when they leave,
again, I take it as a reasonable inference,
he's dropped them off,
that anyone sees them walking with their hands out
or bulges in their pockets or anything that indicates
that someone observing them would know they're armed?
-: No, but Aiden Newhall does testify
that when he sees them walking past the car,
their hoodies are cinched up
so there's only a little bit of their faces showing.
'Cause one of them is walking funny
although the Commonwealth concedes
that one of the Sotos had a limp.
And they're, you know, engaging in conduct
which could very reasonably be inferred
to be casing the store, to see who's there.
So it's not just that they're Black kids or Hispanic kids.
-: Why is that?
I'm confused by that.
-: Because they go past the store,
then they go up the hill.
Then they come back and go past the store again.
-: Right, but there's no Baez evidence
related to that at all.
There's nothing suggesting or tying the defendant
in this case to that casing, the hoodies, nothing.
-: Correct, correct.
-: But we know for a fact
that they weren't there for a meeting.
They weren't there for a rumble.
They were there to shoot people.
'Cause that's what they do.
They suddenly turn around and without any provocation
shoot the victims.
-: They were seen sitting on a stoop
for a period of time before this.
-: There's some question as to whether or not
those are the same people.
They're not in the correct place.
The prosecutor did not rely on that in closing.
That testimony was there for what it's worth.
But yeah, it's clear to everyone-
-: Sorry, the jury acquitted the two co-defendants?
-: Correct, that is correct.
-: Help us out explaining why the Baxter is...
What is different from Baxter here?
Just summarize why these facts.
'Cause Baxter, we come to the opposite conclusion, right?
-: Right, and I anticipated that question, Your Honor.
-: Yeah, I'm sure you did.
-: But I think the difference is
you have the circumstances of that case.
Because the defendant drives the shooter to the scene,
lets him off, and then just parks off to the side.
-: After following the victim in the car.
-: Yes, after clearly
stalking I think would be a good word for that.
He pulls off, under those circumstances
and then the guy just runs to the car.
So in those circumstances, you clearly have evidence
that the defendant knows that his companion
is up to no good.
But what this court ruled is that
there's not enough evidence.
Certainly enough evidence
to convict the defendant of assault
but not enough evidence to convict him of murder.
-: And that's where I get confused a little bit here.
'Cause I get you.
The defendant here knows these guys are up to no good.
But does he know they're up to no good
in a different way than in Baxter?
-: Yes, and we have that evidence here.
-: It's the gunshots. -: It's the gunshots.
It's the fact that the gunshots are what motivates
the defendant to act.
And that's almost inescapable.
It doesn't have to be inescapable-
-: In Baxter, there were no gunshots?
-: There were gunshots, there's no question.
But the difference is that
what the defendant did in that case was
it was the evidence before what happened
that determined the case.
-: In Baxter, did the defendant flee
once the two co-defendants-
-: Yes, yes, absolutely.
Took the car, took the shooter, fled the scene.
-: Can I ask you to go back to something
you said a few minutes ago,
which was that this maneuver,
which, you know, your entire argument is really resting on.
I think you said quote, "left him in the perfect position."
Can you elaborate on what you mean by that?
-: It means he's out in the street.
So he is presumably parked because he's coming out
from in front of that car, the Jetta.
And he pulls forward and then he pulls back.
So now both of his doors, both sides of his car
are in the middle of the street.
So that means that these two men can run up the hill
and immediately get in the car from both sides,
which is what they do.
-: But why would he go forward in the first place?
-: Yeah, so he has room to back up.
He has to go forward or he can't back up.
A car is there.
That's the problem, that's the Jetta.
The Jetta is in the way if he doesn't move forward.
-: So he's in the middle of the street,
pulls up past the Jetta, pulls back, hits the Jetta.
-: No, he's in front of the Jetta.
And he pulls up and then pulls back.
And as he's pulling back,
he doesn't give himself enough room.
And that's why he hits the Jetta.
-: But he didn't turn the corner at that time?
-: No, he did not turn the corner.
He approached it.
-: So I'm still not understanding.
I'm so sorry.
But why couldn't he just have in the first instance,
why doesn't the car just go straight into the spot?
He's driving down the middle of the road.
-: No, no, he's not.
It doesn't start out
with him driving down the middle of the road.
-: Where is he when it starts?
-: Right, he's over slightly.
-: Sorry?
-: He's over more towards the edge.
'Cause of course, he can't sit there and block traffic
for however long it's going to be.
So he's out of the way.
And that's why he has to move forward and pull back.
-: What is the difference in terms of
reacting to shots in Baxter versus here?
Why is this more directly connected to the shots
than the driver in Baxter?
-: Because in this case, the defendant has no reason
to believe that the gunshots are related to him
unless he knows that his colleagues are armed
and intend to shoot.
Because otherwise, it's like,
"Oh my God, there's a shooting.
"I'm getting out of here."
-: But his friends are by the shooting.
I mean, why wouldn't he...
Isn't it just as likely
that he wants to make sure his friends are okay?
There's shots fired.
-: It's not just as likely. -: Why?
-: And the evidence is in the light most favorable,
all reasonable inferences must be drawn
in light of the Commonwealth.
And the idea is, what would make him believe
that they're being shot at unless he believes
that they're gonna be involved in a gunfight?
-: I get that, but I'm trying to understand why
that doesn't apply equally in Baxter.
-: I would argue that it very well might
apply equally in Baxter to that extent.
-: So you want us to backtrack from Baxter?
-: Yes, I think it would be; yes, exactly.
-: And so you'd then also backtrack from Gonzalez?
Is that your suggestion?
Would you sort of reverse this whole jurisprudence?
-: Hmm?
-: We should reverse this entire jurisprudence?
-: I don't think you need to reverse
the entire jurisprudence.
-: So tell me how this is different from Gonzalez
where there's actually a motive
attributed to the defendant.
And here, we don't know any reason why
this defendant would've had a beef with the victims.
-: I think you have to look at the facts of all three cases
and say, you know,
in this case, there's a reasonable inference.
Whether or not this court was correct
in saying there was not a reasonable inference in Gonzalez
and Baxter is immaterial.
The bottom line is-
-: But we have to distinguish
if you would like the court to affirm this.
Absent reversal of Gonzalez and then Baxter,
you have to distinguish it.
Not us, you do. -: Correct.
-: Yes, and so how are you distinguishing it?
-: You would simply say, "Under the facts of this case,
"the only reasonable inference,
"and certainly a reasonable inference
"in the light most favorable of the Commonwealth,
"is the fact that the defendant reacts to the gunshots
"can only be explained by his knowledge
"that his colleagues are armed-"
-: Is there a case?
So Ms. Scapicchio is relying on Baxter
as being the closest analogy.
What's the best getaway driver case from your perspective
that we should look at where we actually affirm these
for lethal intent?
-: Well, I think the Watson case,
which I found while I was researching,
it's a little different but I think it's,
I will have to get the site to this court, if I may,
is a decent case.
But really, the Commonwealth is relying simply
on Lattimore in this case, that this-
-: Tell me about Watson.
-: Hmm?
Watson is a case where the defendant, again,
drove the shooters to the scene.
Now there was a little more evidence than that.
But certainly, this court in that case
found that under the circumstances,
there was sufficient evidence.
-: What was the little more evidence?
-: I would have to go back and review that further.
I'm sorry.
-: No, that's okay; I'll do it.
-: I mean, we tend to rely on the cases
where they've seen the guns
or they've talked about the guns.
So is Baxter and Gonzalez the only sort of cases
where we don't have any evidence of anyone seeing the gun?
And is that the dispositive factor?
-: I don't think it's dispositive.
I think you look at the facts of this case,
you look at the circumstances of the case.
You see that this clearly was an execution.
This was not a feud, this was not a-
-: But again, that goes to the two shooters.
I'm wondering why that should go.
And I think the case law requires you to show
that that intent of the shooters
is joined in by this driver.
-: Of course, Your Honor. -: Right?
-: That is absolutely the Commonwealth's burden.
-: Was Baxter an execution case too?
-: [Justice Wendlandt] Yes.
-: They certainly came up behind him and shot him, yes.
-: Yeah, so that can't be the dispositive factor then.
It's hard.
-: It's a close case, but I think if you look at everything,
you look at just the simple fact in this case
and the fact that we know.
We may now know whether he dropped them off,
but it's even more inculpatory if he didn't.
Because we know he has an arrangement with these two men
to pick them up and drive them away.
That's clear beyond any doubt.
-: But Counsel, the plan could have been for them
to steal something from the store, right?
We don't know what the plan was.
Like I totally concede that there's clearly a...
It's very clear he's waiting to meet them, right?
Like that is very clear.
But the Commonwealth has to have some evidence
of a plan. -: Right.
-: And the plan can't be just to pick them up.
And it can't be just to pick them up
in circumstances when they may wanna depart quickly
because they've been up to no good,
to use my colleague's expression.
So what precisely?
And then you're saying that the evidence is,
"Well, there were gunshots fired that he could hear.
"So therefore, it was a plan to kill people."
-: Yeah, I mean otherwise, he has no reason
to believe this involves him.
-: But we don't know.
How do we know that he knows
that the gunshots involved him in some way?
He knows that he's picking up his friends
from this location and he hears gunshots.
And that would presumably be very alarming to anyone
who's waiting to pick up their friends.
-: Right, but, you know, at that point,
he doesn't have to...
There's just no reason he has to...
Obviously, even if these are just random gunshots,
that's not his cue to move.
It's like his cue to get out of there.
-: Well, not if he has a plan to pick up his friends.
-: True, but the idea is, if these are random gunshots,
he doesn't have to do anything.
He just needs to get these guys out of there.
And there's just no reason for him to believe
these gunshots are anything but related to him.
The only way he can believe these gunshots
are related to him is if he knows
that they're his colleagues' gunshots.
-: Can I ask about Gonzalez for a second?
-: Yes.
-: Was Gonzales another execution case,
or was it a botched robbery or something else?
There's clearly a plan to assault somebody here
or do something to them.
'Cause we're not dealing with a robbery
or a plan to steal something.
We're dealing with...
There's no evidence that this is a botched anything,
but it's an execution.
-: Right? -: Right.
-: Was Gonzalez different and more like a botched robbery?
-: I concentrated my preparation on Baxter.
I will have to look at Gonzalez again.
-: Okay, we can read Gonzales ourselves.
-: I do wanna turn very briefly
to the peremptory challenge issue
because there are a couple of points I wanna make.
The first is, the defense at trial
never challenged Hispanic men.
Regarding the first challenge,
the defense counsel just said,
"I wanna put on the record
"that this is a young Hispanic male juror
"for purposes of the Batson-Soares analysis."
He does not object to the challenge.
And then regarding the second man,
Attorney Sack, who represented one of the co-defendants,
says, "I object to this peremptory challenge
"because this would've been
"the first Hispanic juror we've seated."
And he says juror, not man.
And the prosecutor says, "That's not true.
"We have that woman from Columbia."
Attorney Sack says, "Oh, okay."
And that's the last of it.
He never says anything about men.
I also wanna point out that the Juror number 18 on day 4
was not the second Hispanic man to be found impartial.
Juror number 38 on day 2 was a Mr. Martinez.
He was also found to be impartial.
The prosecutor did not challenge him
and he was stricken by the defense.
That's at 2A, Pages 110 to 121.
-: Sorry, was this before or after the second?
-: Before, so day 2 in the morning.
-: So Martinez is accepted
before the challenge to the second juror.
-: Correct.
And regarding the Indian juror,
the dispositive factor isn't that he's Indian,
although that certainly is some evidence of lack of bias.
The dispositive factor is that
Attorney Amabile for the defendant
questions him extensively about a statement he made
where he said, "I think Hispanics are statistically
"more likely to commit crimes than other people."
And then Mr. Amabile says,
"I want this juror stricken for cause."
Also, of course, the grandfather who was a police officer
and a very important police officer in India.
And the judge says, "No, I think he just meant
"that was a statistical fact,"
that he wouldn't hold it against the defendant.
So it's at that point that the prosecutor says,
"I don't need to challenge this juror."
And of course, Attorney Sack then
does in fact challenge the Indian juror.
So those are my points on the peremptory issue.
Are there further questions on-
-: Just one last question.
So the consequence.
So in your brief, you talk about this being
a second degree murder.
But if we think this is a Baxter case,
this is an acquittal, right?
'Cause there was no accessory after the fact charge here.
Right? -: No, there was not.
-: And that's not a lesser included.
So we're dealing with all or nothing here.
-: Right; at most, you could say assault.
Unless you find that he knew that they were armed
and he knew that they intended to commit a shooting,
yes, it's a required finding of not guilty.
But again, based on the facts set out on the brief
and the facts that I've mentioned here,
I urge this court to affirm the judgements.