WEBVTT

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<v ->SJC-12912.</v>

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Commonwealth v Julio C. Baez.

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<v ->[Chief Justice Budd] Okay, Attorney Scapicchio.</v>

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<v ->Thank you.</v>

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Good morning, Your Honors.

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May it please the court,

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my name is Rosemary Scapicchio and I represent Julio Baez.

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There are two issues from my brief

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that I'd like to discuss today with the court.

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The first is the required finding argument,

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and the second is the juror issue.

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So jumping directly to the required finding argument,

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for the purposes of this hearing,

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I'm going to assume but not concede

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that Julio Baez was the driver.

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Because I think the real question is

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if he's the driver, was there enough

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to get over the rail for a required finding?

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And I think what's missing from the Commonwealth's case

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is that there was no knowledge, there was no lethal intent,

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and there was no evidence in any way

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that demonstrated that he inherently had any lethal intent.

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And so in this case, I would suggest

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that the Commonwealth's evidence rests

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almost entirely on the fact that

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if you believe he was driving,

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then he maneuvered his car.

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And that's it.

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I think this case actually is even stronger

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than your decision in Baxter.

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Because in Baxter, the evidence was that

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the driver of that car, Mr. Baxter,

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had the shooters in his car prior to,

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was actually following the victim in the car,

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had pulled over.

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At least one of the witnesses had claimed...

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<v ->Can you walk us through</v>

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just the vehicle movement in this case?

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<v ->Sure.</v>

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<v ->Assuming he's the driver and that the shots go off,</v>

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just walk us through just what's happening

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and your explanation of that

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and how that shows there's not lethal intent.

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<v ->Right, so first of all, there's no evidence that...</v>

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<v ->A little softer too.</v>
<v ->I'm sorry.</v>

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It's because I come from a large family,

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and I was in the middle.

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I had to be heard.

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But in any event, I would say that in this case,

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there's no evidence that the shooters alighted

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from Mr. Baez's car.

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So the evidence is that Mr. Baez's car is on a side street,

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that the shots are fired,

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that there's a situation where he backs up,

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and that according to the evidence,

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the two people who the Commonwealth says are the shooters

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jump in his car.

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That's what the evidence was.

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Now, the Commonwealth claims that those were both

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the Soto people who were both found not guilty at trial.

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But that's the evidence,

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that that's the maneuver that he made.

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And there were witnesses who claimed that...

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<v ->And he moves towards the shots?</v>

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Just describe the detail of that.

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<v ->So the maneuver is that it was actually forward first</v>

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and then backed up.

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And according to at least one witness,

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one witness thought that during that time period,

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a car was hit.

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His car hit another car on that street.

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And there was some evidence of paint

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that we're challenging as well.

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But the maneuver is driving forward and then driving back.

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That's the maneuver.

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And the driving forward was, you're right,

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towards what happened.

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And then the driving back was,

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according to the Commonwealth,

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in order for the shooters to get in the car.

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<v ->Excuse me, Counsel.</v>

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Was that like on a corner or something?

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<v ->Yes.</v>

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<v ->Can you just talk us physically through it?</v>

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This is the rare occasion where it would be useful

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to have like a picture?
<v ->Yes.</v>

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<v ->Can you just talk?</v>

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Can you draw the picture for us with words?

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<v ->Sure, sure.</v>

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So the way that the car is positioned

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is away from where the shooting takes place.

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So there's no evidence at all that

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because Baez was in the car,

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let's assume he was in the car,

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he couldn't see what was going on.

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<v ->It was down a hill, right?</v>
<v ->It was down a hill.</v>

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So there's no way that he could see what was going on.

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So whatever happens down the hill,

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he doesn't have any eyesight to that.

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What happens is, the shooting happens.

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The car goes forward, the car goes back.

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The two other people

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who the Commonwealth say are the shooters jump in,

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one in the front car, one in the back car.

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But the maneuvering of the car itself,

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let's just assume that's the focus of this court,

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that's all they have.

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And because this case is so different

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from every other case that

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I think we have a required finding issue on.

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Because there isn't that conversation beforehand,

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<v ->But just even abstracting</v>

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away from the intent aspect here,

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but just literally logistically what happened.

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<v ->[Attorney Scapicchio] Yes.</v>

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<v ->You said it has to do with a corner?</v>

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<v ->[Attorney Scapicchio] Yes.</v>

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<v ->So there's like a T.</v>
<v ->Yes, like this.</v>

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<v ->And then, does the maneuvering,</v>

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is there any testimony based on what the witnesses said

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that suggests like the maneuvering

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is 'cause the car is trying to turn the corner?

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<v ->No, the car turns the corner</v>

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after the two shooters jump in.

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That's when the car turns the corner, not before.

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<v ->So it's approaching the corner.</v>

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<v ->Yes, then backs up.</v>

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The two shooters jump in, and then it takes the right.

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That's how the evidence comes out at trial.

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That's where it was.

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But that alone, let's assume they were the shooters.

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Okay.

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Let's assume that they get in the car.

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Where is Mr. Baez's lethal intent?

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This isn't a situation where the shooters

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alight from his car.

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This isn't a situation where he provides...

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<v ->Isn't that a reasonable assumption</v>

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that the shooters alight from the car

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if he's picking them up?

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<v ->No.</v>
<v ->Really?</v>

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<v ->[Attorney Scapicchio] Not at all.</v>

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<v ->So the gun goes off, and he runs over there.</v>

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But he's not the guy who dropped them off?

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<v ->Right.</v>
<v ->Really?</v>

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<v ->Well, 'cause you need some evidence for that.</v>

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So the Commonwealth had presented no evidence

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that he dropped them off.

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And you can't infer that from anything.

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The evidence was that the two shooters

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were sitting on the steps.

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<v ->What do you infer then from them picking up?</v>

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Just he had some plan of picking people up around there

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and guns go off?

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<v ->Best case scenario is that...</v>

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<v ->Because again, this is in the light</v>

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most favorable to the Commonwealth.

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<v ->Right, in the light most favorable to the Commonwealth.</v>

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Where is the lethal intent?

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Where is the evidence of lethal intent?

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<v ->I'm trying to get to the fact that you say that</v>

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you can't reasonably infer that he dropped off

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the people who he picks up.

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That's tough for me.

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I just wanna make sure I understand the logic of that.

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<v ->Right, and so the logic is</v>

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who knows how they got there?

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We don't know how they got there.

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All we know is the evidence that the Commonwealth presented

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is that the two shooters were sitting on a stoop.

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They got up, they pulled their hoodies

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over their head tight,

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and they went and conducted the shooting.

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That's what we know.

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And we know after that, they fled in the direction

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of where Mr. Baez's car was.

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Absolutely, without question.

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But that doesn't mean that Mr. Baez dropped them off.

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That doesn't mean anything.

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<v ->[Justice Wendlandt] Excuse me.</v>

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<v ->Even if you wanna believe Mr. Baez dropped them off,</v>

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there's still no lethal intent.

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Because there's no indication

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that there's any conversations with the shooters.

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What if they went there to beat these people up?

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What if that was their intent?

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That's not a lethal intent.

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And that's what's wrong

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with the denial of the required finding.

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Because you can't infer a lethal intent

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from no evidence whatsoever.

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Even if you take it as far as you wanna take it-

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<v ->Counsel, Counsel, can you address what happened</v>

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after the shooting,

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you know, and how that informs or doesn't

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a jury's ability to find lethal intent?

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<v ->Well, I would suggest it doesn't</v>

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because the Commonwealth-

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<v ->But what was the evidence that, just to reflect,</v>

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and then we can deal with the legal-

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<v ->So the evidence after the shooting</v>

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was that the keys for the car get given to someone

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who gives them to my client's mother.

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The police end up taking the keys at that point.

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There is a conversation, according to the Commonwealth,

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between my client and a friend where he says,

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"I was the driver, but I didn't have anything

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"to do with the shooting."

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That's the evidence.

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<v ->And was there a police interview?</v>

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<v ->In this case?</v>
<v ->Yeah.</v>

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<v ->No, I don't believe so.</v>
<v ->Okay, okay, great.</v>

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Okay, so now why can't any inferences be drawn

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based on that?

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<v ->On the fact that he said he was the driver?</v>

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<v ->And he gave the keys to Figueroa?</v>

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<v ->Right, so the inference you could draw</v>

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under those circumstances is that there was a shooting

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that he may have been involved in.

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But still you're missing the knowledge

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and the lethal intent.

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And those are the two elements that are required

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in order for this court to determine that

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the denial of the required finding was reasonable

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under the circumstances.

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And I would suggest that, that's the key here

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is, you know, did the Commonwealth sustain

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a reasonable inference beyond a reasonable doubt

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that Baez had the lethal intent?

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And I would suggest, even if you add in the fact

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that there's no evidence of that,

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but I'll give you the fact that

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he might've drove them there.

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And I don't think you should find that

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because I don't think there's any evidence.

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But even if you give them that, there's no conversations,

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there's no supplying a weapon.

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There's no indication at all that he knows

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that they're gonna go and try to kill someone.

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There's nothing.

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And there isn't even a situation here where

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after the shooting, there's weapons displayed

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while they're jumping in the car.

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Nothing like that.

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At best, they have an accessory after.

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At best, that's what they have.

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<v ->Well, wasn't their testimony though</v>

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from one of the eyewitnesses, multiple eyewitnesses,

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that one of the shooters was, you know,

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openly carrying a gun as they ran up the hill?

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<v ->But not in the line sight of Baez.</v>

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That's the problem.

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The evidence was,

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by the time the two shooters got to the car,

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both of them had their hands in their pockets

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and they jumped in the car.

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That's the evidence.

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00:08:50.520 --> 00:08:53.280
<v ->So the neighbors from the window at the top of the hill,</v>

259
00:08:53.280 --> 00:08:54.750
none of them saw the weapon?

260
00:08:54.750 --> 00:08:56.160
<v ->No, none of them saw the weapon.</v>

261
00:08:56.160 --> 00:08:57.840
But even if you wanna believe there was a weapon,

262
00:08:57.840 --> 00:09:00.480
the weapon is displayed on the hill.

263
00:09:00.480 --> 00:09:02.700
There's no indication that there's a weapon at the time

264
00:09:02.700 --> 00:09:04.740
that either of these two shooters get in the car.

265
00:09:04.740 --> 00:09:06.180
The evidence, in fact, is the opposite.

266
00:09:06.180 --> 00:09:08.040
The evidence is, both of them had their hands

267
00:09:08.040 --> 00:09:09.960
in their pockets as they got in the car.

268
00:09:09.960 --> 00:09:11.460
<v ->How far were they from?</v>

269
00:09:11.460 --> 00:09:13.426
How far was the shooting from?

270
00:09:13.426 --> 00:09:14.873
<v ->[Attorney Scapicchio] About a block away,</v>

271
00:09:16.980 --> 00:09:17.813
up a hill.

272
00:09:17.813 --> 00:09:19.680
<v ->There's an inference that he heard the shots, right?</v>

273
00:09:19.680 --> 00:09:20.580
<v ->Right, and there's an inference,</v>

274
00:09:20.580 --> 00:09:21.840
certainly, he heard shots.

275
00:09:21.840 --> 00:09:23.190
And if he heard shots

276
00:09:23.190 --> 00:09:25.830
and he moved as a result of those shots,

277
00:09:25.830 --> 00:09:27.559
you know, there's a lot of times that people hear shots

278
00:09:27.559 --> 00:09:28.950
and wanna get out of the area.

279
00:09:28.950 --> 00:09:32.220
I don't think that that alone displays any lethal intent.

280
00:09:32.220 --> 00:09:34.830
And again, when we talk about lethal intent,

281
00:09:34.830 --> 00:09:39.150
we have to talk about the idea that in this case,

282
00:09:39.150 --> 00:09:40.950
there's just no evidence to suggest

283
00:09:40.950 --> 00:09:42.510
that he knew what was going on.

284
00:09:42.510 --> 00:09:44.730
Even if you put the other two defendants

285
00:09:44.730 --> 00:09:46.560
in the car at the time-

286
00:09:46.560 --> 00:09:49.050
<v ->So when the two people with the hoodies</v>

287
00:09:49.050 --> 00:09:50.583
are walking up the street,

288
00:09:51.720 --> 00:09:54.478
their hands are in their pockets, right?

289
00:09:54.478 --> 00:09:56.850
And one of the people in one of the stores

290
00:09:56.850 --> 00:09:58.683
gets frightened by them.

291
00:09:58.683 --> 00:10:01.721
Does he see a bulge in their pockets?

292
00:10:01.721 --> 00:10:02.970
What frightens him?

293
00:10:02.970 --> 00:10:03.803
<v ->It doesn't say.</v>

294
00:10:03.803 --> 00:10:05.490
There's no evidence developed as to what frightens him.

295
00:10:05.490 --> 00:10:06.840
As a matter of fact, one of the issues,

296
00:10:06.840 --> 00:10:08.455
I think there's a footnote in my brief-

297
00:10:08.455 --> 00:10:09.690
<v ->How does he describe the way they look</v>

298
00:10:09.690 --> 00:10:10.590
when they're walking?

299
00:10:10.590 --> 00:10:12.656
<v ->He says that they're scary, that they're-</v>

300
00:10:12.656 --> 00:10:14.190
<v ->Their hoods are tight around their face.</v>

301
00:10:14.190 --> 00:10:15.957
<v ->Hoodies are tight and they're walking in.</v>

302
00:10:15.957 --> 00:10:17.707
And this individual got, I think he said-

303
00:10:17.707 --> 00:10:19.380
<v ->And their hands are in their pockets.</v>

304
00:10:19.380 --> 00:10:20.397
Their hands are in their pockets.

305
00:10:20.397 --> 00:10:21.600
<v ->Yes, yes.</v>

306
00:10:21.600 --> 00:10:23.370
<v ->And nothing more about the pockets?</v>

307
00:10:23.370 --> 00:10:26.370
<v ->No, but even if you wanna focus on that,</v>

308
00:10:26.370 --> 00:10:28.350
that's not something Baez can see

309
00:10:28.350 --> 00:10:29.940
all the way at the top of the hill.

310
00:10:29.940 --> 00:10:30.773
You can't see it.

311
00:10:30.773 --> 00:10:33.270
<v ->But the question is, if they can see them,</v>

312
00:10:33.270 --> 00:10:36.840
if some guy who's sitting in a store can see a bulge,

313
00:10:36.840 --> 00:10:38.310
now I'm not saying he can,

314
00:10:38.310 --> 00:10:43.310
but if he is the driver to the place

315
00:10:43.920 --> 00:10:45.630
and he sees them come back,

316
00:10:45.630 --> 00:10:49.080
but if he saw them leaving and he could see the bulge,

317
00:10:49.080 --> 00:10:51.030
that would be relevant, wouldn't it?

318
00:10:51.030 --> 00:10:53.550
<v ->It would, but that would be a gigantic inference</v>

319
00:10:53.550 --> 00:10:54.450
not supported by the evidence.

320
00:10:54.450 --> 00:10:57.180
<v ->I'm just trying to make reasonable inferences</v>

321
00:10:57.180 --> 00:10:58.166
and figure out which-

322
00:10:58.166 --> 00:11:00.000
<v ->But I don't think it's reasonable to suggest that.</v>

323
00:11:00.000 --> 00:11:00.930
Because the evidence,

324
00:11:00.930 --> 00:11:02.130
I think there's a footnote in my brief,

325
00:11:02.130 --> 00:11:03.900
I can't remember which page off the top of my head,

326
00:11:03.900 --> 00:11:06.810
that says that one of the things that happened in this case

327
00:11:06.810 --> 00:11:09.277
is that nobody went back and asked that individual,

328
00:11:09.277 --> 00:11:11.437
"Why did you feel like they looked scary?

329
00:11:11.437 --> 00:11:12.510
"What happened?"

330
00:11:12.510 --> 00:11:14.670
That's part of the evidence that's missing.

331
00:11:14.670 --> 00:11:18.000
'Cause I agree, if they said the pockets were bulging,

332
00:11:18.000 --> 00:11:19.950
you know, something about I knew them

333
00:11:19.950 --> 00:11:21.300
and I thought they might be shooters,

334
00:11:21.300 --> 00:11:22.200
anything like that.

335
00:11:22.200 --> 00:11:23.610
But that's not the evidence.

336
00:11:23.610 --> 00:11:26.970
In fact, that was one of the issues on cross-examination

337
00:11:26.970 --> 00:11:29.220
about whether or not there was any follow up

338
00:11:29.220 --> 00:11:32.470
to this person who said they looked scary.

339
00:11:32.470 --> 00:11:33.303
And there was none.

340
00:11:33.303 --> 00:11:34.740
There was no interview, there was nothing

341
00:11:34.740 --> 00:11:37.260
that suggested what caused that individual

342
00:11:37.260 --> 00:11:39.720
to claim that these two looked scary.

343
00:11:39.720 --> 00:11:41.580
That's it; all we have is someone decided

344
00:11:41.580 --> 00:11:43.890
two young Black kids looked scary

345
00:11:43.890 --> 00:11:46.020
in an all White neighborhood.

346
00:11:46.020 --> 00:11:47.190
And now, here we are.

347
00:11:47.190 --> 00:11:48.210
That's not enough.

348
00:11:48.210 --> 00:11:50.280
It's just not enough under the circumstances

349
00:11:50.280 --> 00:11:51.810
to prove lethal intent.

350
00:11:51.810 --> 00:11:53.790
And especially when you add that to the fact

351
00:11:53.790 --> 00:11:55.383
that in this case,

352
00:11:56.400 --> 00:11:59.130
there's no evidence that Baez participated in a plan.

353
00:11:59.130 --> 00:12:00.540
And what the Commonwealth wants to say is,

354
00:12:00.540 --> 00:12:02.190
because the car moved back and forth

355
00:12:02.190 --> 00:12:03.147
and because he was waiting there

356
00:12:03.147 --> 00:12:06.180
and the shooters jump in it, there must have been a plan.

357
00:12:06.180 --> 00:12:08.460
And that's just pure speculation.

358
00:12:08.460 --> 00:12:11.493
<v ->But there was certainly a plan to pick them up, right?</v>

359
00:12:12.990 --> 00:12:14.799
<v ->I'm talking about a plan to murder.</v>

360
00:12:14.799 --> 00:12:15.913
<v ->I'm not talking about a plan.</v>

361
00:12:15.913 --> 00:12:17.121
I get that, that's accessory after the fact.

362
00:12:17.121 --> 00:12:18.030
<v ->There's a plan of some sort.</v>

363
00:12:18.030 --> 00:12:19.950
The question is, was there a plan...

364
00:12:19.950 --> 00:12:24.060
Is he involved in a plan to shoot the victim

365
00:12:24.060 --> 00:12:27.930
as opposed to a plan to do something to the victim.

366
00:12:27.930 --> 00:12:29.850
<v ->Right, and that's the whole point.</v>

367
00:12:29.850 --> 00:12:32.460
The whole point of the missing link of lethal intent

368
00:12:32.460 --> 00:12:34.350
is that we don't know what the plan is.

369
00:12:34.350 --> 00:12:36.690
Typically, we would have conversations,

370
00:12:36.690 --> 00:12:38.850
text messages, a witness testifying

371
00:12:38.850 --> 00:12:40.020
that he said this, that and the other thing.

372
00:12:40.020 --> 00:12:41.790
We don't have any of that in this case,

373
00:12:41.790 --> 00:12:43.860
not a single indication of a plan

374
00:12:43.860 --> 00:12:45.660
other than the moving of the car

375
00:12:45.660 --> 00:12:47.070
and that the shooters get in.

376
00:12:47.070 --> 00:12:49.350
And I agree, there's a plan for something.

377
00:12:49.350 --> 00:12:50.430
At the best, there's a plan

378
00:12:50.430 --> 00:12:52.770
that he was picking them up from something.

379
00:12:52.770 --> 00:12:54.000
But the question is,

380
00:12:54.000 --> 00:12:56.490
what did the Commonwealth prove that something was?

381
00:12:56.490 --> 00:12:58.860
And I would suggest that the Commonwealth failed to prove

382
00:12:58.860 --> 00:13:02.460
that that something was a lethal intent at all,

383
00:13:02.460 --> 00:13:03.960
or even an intent to do any more.

384
00:13:03.960 --> 00:13:05.100
What if they were just gonna go there

385
00:13:05.100 --> 00:13:07.290
and have a conversation, and get into a fight?

386
00:13:07.290 --> 00:13:09.300
We don't know if that happened in this case.

387
00:13:09.300 --> 00:13:12.420
Because when the evidence came out the way that it did,

388
00:13:12.420 --> 00:13:14.070
and when the defendant-

389
00:13:14.070 --> 00:13:16.349
<v ->When he drives off in a rush-</v>

390
00:13:16.349 --> 00:13:17.520
<v ->[Attorney Scapicchio] Yes, it's not a rush.</v>

391
00:13:17.520 --> 00:13:18.990
<v ->Well, he smacks the other car</v>

392
00:13:18.990 --> 00:13:21.510
and doesn't stop and give his license, right? (chuckles)

393
00:13:21.510 --> 00:13:22.830
<v ->Well, the evidence is,</v>

394
00:13:22.830 --> 00:13:24.960
initially, the witness who was watching

395
00:13:24.960 --> 00:13:28.920
from the apartment building said on direct examination

396
00:13:28.920 --> 00:13:30.240
that the car sped off.

397
00:13:30.240 --> 00:13:32.250
On cross examination, what the witness said-

398
00:13:32.250 --> 00:13:34.920
<v ->Well, the car hit a car and didn't stop</v>

399
00:13:34.920 --> 00:13:37.470
and give his license, you know,

400
00:13:37.470 --> 00:13:38.549
do all the things you're supposed to do.

401
00:13:38.549 --> 00:13:40.393
<v ->If you believe the car was hit</v>

402
00:13:40.393 --> 00:13:43.590
in the light most favorable to the Commonwealth.

403
00:13:43.590 --> 00:13:45.715
<v ->We clearly have to.</v>
<v ->Absolutely, Judge.</v>

404
00:13:45.715 --> 00:13:49.650
<v ->So okay, so he does drive off, hears shots, he drives...</v>

405
00:13:49.650 --> 00:13:50.970
I'm not saying it's proven,

406
00:13:50.970 --> 00:13:53.190
but I'm just trying to take all the facts as opposed to-

407
00:13:53.190 --> 00:13:55.320
<v ->I understand, but here's the problem with that</v>

408
00:13:55.320 --> 00:13:59.010
is that when it comes down to exactly the minutiae

409
00:13:59.010 --> 00:14:01.650
of what he did, the car was what,

410
00:14:01.650 --> 00:14:03.930
was going about 5 or 10 miles an hour.

411
00:14:03.930 --> 00:14:05.700
That's not speeding off.

412
00:14:05.700 --> 00:14:07.440
That's not 20 miles an hour.

413
00:14:07.440 --> 00:14:10.020
5 or 10 miles an hour is not speeding.

414
00:14:10.020 --> 00:14:13.530
<v ->Two guys shoot somebody and jump into your car.</v>

415
00:14:13.530 --> 00:14:15.750
You hit somebody, you're going away.

416
00:14:15.750 --> 00:14:17.880
<v ->Right, accessory after the fact.</v>

417
00:14:17.880 --> 00:14:18.960
I'll give you that any day of the week.

418
00:14:18.960 --> 00:14:21.360
But it's not a lethal intent.

419
00:14:21.360 --> 00:14:23.310
And it's not proof that there was knowledge

420
00:14:23.310 --> 00:14:26.790
of what was to happen before the shooting took place.

421
00:14:26.790 --> 00:14:29.010
And to answer your question, 'cause I didn't get there,

422
00:14:29.010 --> 00:14:33.805
in terms of what happened after that would infer anything,

423
00:14:33.805 --> 00:14:35.850
the Commonwealth at trial tried to suggest,

424
00:14:35.850 --> 00:14:36.960
and on appeal suggest,

425
00:14:36.960 --> 00:14:39.660
that there was a consciousness of guilt.

426
00:14:39.660 --> 00:14:41.820
And therefore, the consciousness of guilt should be added.

427
00:14:41.820 --> 00:14:43.380
But this court has already said,

428
00:14:43.380 --> 00:14:44.700
even if you agree with the consciousness of guilt,

429
00:14:44.700 --> 00:14:46.440
it doesn't go to the intent

430
00:14:46.440 --> 00:14:48.450
at the time that the crime was committed.

431
00:14:48.450 --> 00:14:49.560
So even if you wanna believe

432
00:14:49.560 --> 00:14:50.880
there was a consciousness of guilt,

433
00:14:50.880 --> 00:14:52.290
there was a flight from the scene,

434
00:14:52.290 --> 00:14:54.330
there was a hitting of the cars,

435
00:14:54.330 --> 00:14:55.860
if you wanna believe all of that,

436
00:14:55.860 --> 00:14:58.230
it still doesn't go to the lethal intent.

437
00:14:58.230 --> 00:15:00.000
And again, that's what's missing in this case

438
00:15:00.000 --> 00:15:01.230
is the lethal intent.

439
00:15:01.230 --> 00:15:03.570
And that's why if you look at this case

440
00:15:03.570 --> 00:15:05.040
as compared to Baxter,

441
00:15:05.040 --> 00:15:08.340
if you look at this case as compared to Gonzalez,

442
00:15:08.340 --> 00:15:11.730
the facts I think in this case are even weaker

443
00:15:11.730 --> 00:15:12.960
than in those two cases.

444
00:15:12.960 --> 00:15:14.310
There is no motive here

445
00:15:14.310 --> 00:15:17.850
for Mr. Baez to have engaged in anything.

446
00:15:17.850 --> 00:15:19.620
There's no explanation other than

447
00:15:19.620 --> 00:15:21.420
he was in the company of the two Soto brothers

448
00:15:21.420 --> 00:15:24.780
prior to leaving the party

449
00:15:24.780 --> 00:15:28.020
where they were smoking and drinking for a period of time

450
00:15:28.020 --> 00:15:29.610
and then came back two hours later.

451
00:15:29.610 --> 00:15:31.770
That's the evidence.

452
00:15:31.770 --> 00:15:32.820
And if you put him in the car

453
00:15:32.820 --> 00:15:34.320
and he's sitting at the top of the hill

454
00:15:34.320 --> 00:15:36.120
and the shooters jump in the car,

455
00:15:36.120 --> 00:15:39.000
all of that still fails to prove knowledge

456
00:15:39.000 --> 00:15:40.350
and lethal intent.

457
00:15:40.350 --> 00:15:42.990
And the inferences that the Commonwealth

458
00:15:42.990 --> 00:15:44.040
is asking this court to draw

459
00:15:44.040 --> 00:15:46.950
I would suggest are not reasonable based on the evidence.

460
00:15:46.950 --> 00:15:49.590
And even if we get to the point where we say,

461
00:15:49.590 --> 00:15:50.850
he must have dropped them off,

462
00:15:50.850 --> 00:15:52.620
even though there's no evidence to that effect,

463
00:15:52.620 --> 00:15:53.910
even if you get there,

464
00:15:53.910 --> 00:15:55.950
I would suggest under the circumstances,

465
00:15:55.950 --> 00:15:58.290
there's still not a lethal intent

466
00:15:58.290 --> 00:16:00.210
and there's no evidence of knowledge.

467
00:16:00.210 --> 00:16:01.620
<v ->Counsel, can I ask you to address</v>

468
00:16:01.620 --> 00:16:03.460
the jury selection issue?

469
00:16:03.460 --> 00:16:06.330
<v ->Sure, so the jury selection issue in this case</v>

470
00:16:06.330 --> 00:16:10.230
is that all three defendants were Hispanic males,

471
00:16:10.230 --> 00:16:11.910
young Hispanic males.

472
00:16:11.910 --> 00:16:14.760
So the challenge in this case by the Commonwealth,

473
00:16:14.760 --> 00:16:17.400
Juror 177 was a Northeastern student

474
00:16:17.400 --> 00:16:19.290
who happened to be Hispanic.

475
00:16:19.290 --> 00:16:22.050
Even though he was a student,

476
00:16:22.050 --> 00:16:24.090
he indicated that he was a very good student,

477
00:16:24.090 --> 00:16:25.380
he could keep up with his classes.

478
00:16:25.380 --> 00:16:27.270
He wanted to serve.

479
00:16:27.270 --> 00:16:28.980
The Commonwealth challenged him.

480
00:16:28.980 --> 00:16:32.040
And at that point, there was an issue

481
00:16:32.040 --> 00:16:34.260
about whether or not that was a proper challenge.

482
00:16:34.260 --> 00:16:35.880
The judge decided at that point

483
00:16:35.880 --> 00:16:39.120
that there was no abuse of discretion, there was no pattern.

484
00:16:39.120 --> 00:16:41.070
The second juror on day 4 gets challenged.

485
00:16:41.070 --> 00:16:44.610
That's Juror 18, also a Hispanic male.

486
00:16:44.610 --> 00:16:47.580
And at that point, there is a comment

487
00:16:47.580 --> 00:16:49.447
by one of the defense attorneys that says,

488
00:16:49.447 --> 00:16:51.420
"It's beginning to look like a pattern."

489
00:16:51.420 --> 00:16:53.347
And what essentially the judge did is said,

490
00:16:53.347 --> 00:16:54.697
"No, it's not a pattern.

491
00:16:54.697 --> 00:16:58.392
"Because we have one Hispanic female from Columbia

492
00:16:58.392 --> 00:17:00.487
"on the panel already.

493
00:17:00.487 --> 00:17:04.020
"And we have an African American person on the panel."

494
00:17:04.020 --> 00:17:07.620
Neither of them are what was challenged here.

495
00:17:07.620 --> 00:17:08.790
<v ->But she doesn't say that, right.</v>

496
00:17:08.790 --> 00:17:12.480
She says that the jury appears diverse, right?

497
00:17:12.480 --> 00:17:13.650
<v ->No, there is evidence.</v>

498
00:17:13.650 --> 00:17:15.840
Not just diverse, she does say the words

499
00:17:15.840 --> 00:17:18.900
that there is an African American and a Colombian.

500
00:17:18.900 --> 00:17:22.140
<v ->But she's walking through what she thinks</v>

501
00:17:22.140 --> 00:17:24.360
is on the jury at this point, right?

502
00:17:24.360 --> 00:17:25.522
<v ->Yes.</v>

503
00:17:25.522 --> 00:17:28.500
And the issue with that is that that's only one factor

504
00:17:28.500 --> 00:17:30.330
that the court should have considered

505
00:17:30.330 --> 00:17:31.920
when considering whether or not the challenge

506
00:17:31.920 --> 00:17:32.753
was racially based.

507
00:17:32.753 --> 00:17:33.660
<v ->Well, but we don't know whether</v>

508
00:17:33.660 --> 00:17:35.634
she was considering other factors too.

509
00:17:35.634 --> 00:17:36.510
<v ->[Attorney Scapicchio] Well, there's no evidence she was.</v>

510
00:17:36.510 --> 00:17:37.787
So I think-

511
00:17:37.787 --> 00:17:39.737
<v ->Well, the fact that they're students.</v>

512
00:17:41.010 --> 00:17:43.590
No other students had been seated, right?

513
00:17:43.590 --> 00:17:44.590
<v ->Not at that point.</v>

514
00:17:47.040 --> 00:17:48.210
No, I take that back.

515
00:17:48.210 --> 00:17:51.180
There was an Indian, an Indian younger person.

516
00:17:51.180 --> 00:17:52.013
<v ->He wasn't seated, right?</v>

517
00:17:52.013 --> 00:17:53.243
You challenged him, or your co-counsel.

518
00:17:54.777 --> 00:17:56.940
<v ->I didn't but yes, the defense challenged him, absolutely.</v>

519
00:17:56.940 --> 00:18:00.600
But the Commonwealth did pass on that

520
00:18:00.600 --> 00:18:03.599
suggesting that it wasn't young people

521
00:18:03.599 --> 00:18:05.080
that they were concerned with

522
00:18:06.160 --> 00:18:07.410
or students they were concerned with.

523
00:18:07.410 --> 00:18:08.550
<v ->There's a pattern.</v>

524
00:18:08.550 --> 00:18:11.310
<v ->But here the pattern is that race,</v>

525
00:18:11.310 --> 00:18:13.830
it's a challenge to race and gender.

526
00:18:13.830 --> 00:18:16.180
So the challenge was that

527
00:18:17.036 --> 00:18:19.080
the two people that were challenged by the Commonwealth

528
00:18:19.080 --> 00:18:22.890
were both Hispanic males.

529
00:18:22.890 --> 00:18:24.570
So it's not just race, it's not just gender.

530
00:18:24.570 --> 00:18:26.790
It's both, it's race and gender.

531
00:18:26.790 --> 00:18:29.460
And the suggestion in this case is that

532
00:18:29.460 --> 00:18:32.310
the court didn't take into consideration the factors

533
00:18:32.310 --> 00:18:34.440
that the court should have taken into consideration

534
00:18:34.440 --> 00:18:38.340
in determining whether or not the defendant met its burden

535
00:18:38.340 --> 00:18:40.590
of proving that there was a race-based challenge

536
00:18:40.590 --> 00:18:41.423
in this case.

537
00:18:42.480 --> 00:18:44.790
Because we never even get to the first step.

538
00:18:44.790 --> 00:18:47.070
We never get to, was there a pattern?

539
00:18:47.070 --> 00:18:49.230
Because what the trial judge did in this case

540
00:18:49.230 --> 00:18:51.150
is determine by looking at the jury

541
00:18:51.150 --> 00:18:54.600
that because the jury appeared diverse to her

542
00:18:54.600 --> 00:18:57.210
that there was no need to go further than that.

543
00:18:57.210 --> 00:19:00.660
<v ->Counsel, it seems like it's a fair inference</v>

544
00:19:00.660 --> 00:19:02.880
that if you had gotten to step one

545
00:19:02.880 --> 00:19:05.580
and if the judge had asked the prosecutor,

546
00:19:05.580 --> 00:19:06.517
you know, "What's your reason

547
00:19:06.517 --> 00:19:08.100
"for challenging these students?"

548
00:19:08.100 --> 00:19:10.177
That the prosecutor probably would've said,

549
00:19:10.177 --> 00:19:12.030
"They're students."

550
00:19:12.030 --> 00:19:14.100
And so, what is your response to that?

551
00:19:14.100 --> 00:19:16.350
<v ->Except for the Indian person.</v>

552
00:19:16.350 --> 00:19:17.520
Except for the Indian person,

553
00:19:17.520 --> 00:19:19.350
the Commonwealth didn't challenge in this case.

554
00:19:19.350 --> 00:19:21.603
So in terms of challenging students,

555
00:19:22.440 --> 00:19:24.300
you know, the first time, first of all,

556
00:19:24.300 --> 00:19:25.800
the Commonwealth brings up the fact

557
00:19:25.800 --> 00:19:27.090
that the reason for challenging

558
00:19:27.090 --> 00:19:29.850
was that they were students is in the appeal.

559
00:19:29.850 --> 00:19:30.960
Never happened at trial.

560
00:19:30.960 --> 00:19:32.220
Never part of the record.

561
00:19:32.220 --> 00:19:33.053
Never indicated-

562
00:19:33.053 --> 00:19:34.140
<v ->I thought that there were comments</v>

563
00:19:34.140 --> 00:19:36.667
from one of the prosecutors in the record that quote,

564
00:19:36.667 --> 00:19:38.610
"There are lots of reasons I don't like students."

565
00:19:38.610 --> 00:19:41.220
And that the prosecutor actually had specifically

566
00:19:41.220 --> 00:19:43.410
said he didn't like seating student jurors.

567
00:19:43.410 --> 00:19:44.520
<v ->Yes, that's true.</v>

568
00:19:44.520 --> 00:19:47.310
But there's a part of our argument as well that says,

569
00:19:47.310 --> 00:19:49.530
and I know I've argued this before before this court,

570
00:19:49.530 --> 00:19:52.743
that if the reason was age-based challenge,

571
00:19:53.640 --> 00:19:56.580
then we're saying that that was also improper.

572
00:19:56.580 --> 00:19:58.371
So even if it was based on age-

573
00:19:58.371 --> 00:20:00.600
<v ->You've lost that one a few times.</v>

574
00:20:00.600 --> 00:20:02.000
<v ->I have, but I'm not done.</v>

575
00:20:02.000 --> 00:20:02.833
<v ->You're not done, I know.</v>

576
00:20:02.833 --> 00:20:04.350
<v ->I'm not done arguing.</v>

577
00:20:04.350 --> 00:20:06.360
Losing that issue is not gonna stop me

578
00:20:06.360 --> 00:20:07.897
from continuing to bring it up.

579
00:20:07.897 --> 00:20:08.730
<v Justice Kafker>You keep going.</v>

580
00:20:08.730 --> 00:20:11.370
<v ->Because at some point, I think the racist nature</v>

581
00:20:11.370 --> 00:20:14.394
of challenging these students is gonna come to-

582
00:20:14.394 --> 00:20:16.020
<v ->Can I ask one further question?</v>

583
00:20:16.020 --> 00:20:17.310
Is it clear, and I apologize

584
00:20:17.310 --> 00:20:18.630
'cause I probably could have figured this out.

585
00:20:18.630 --> 00:20:21.450
But is it clear that the Commonwealth

586
00:20:21.450 --> 00:20:26.450
forwent challenging the student who was of Indian ancestry,

587
00:20:27.450 --> 00:20:30.210
right, or did the defense exercise its peremptory?

588
00:20:30.210 --> 00:20:33.030
It's very clear that they passed on challenging.

589
00:20:33.030 --> 00:20:34.800
<v ->It's clear the Commonwealth passed.</v>

590
00:20:34.800 --> 00:20:35.640
They didn't challenge.

591
00:20:35.640 --> 00:20:39.450
And one of the defendants exercised a peremptory challenge

592
00:20:39.450 --> 00:20:40.680
to this particular juror.

593
00:20:40.680 --> 00:20:42.930
And I think the record was that this juror

594
00:20:42.930 --> 00:20:46.320
had some police officers in their family.

595
00:20:46.320 --> 00:20:47.370
And there was one other reason.

596
00:20:47.370 --> 00:20:48.600
I know it's in my brief.

597
00:20:48.600 --> 00:20:50.430
I can't remember off the top of my head

598
00:20:50.430 --> 00:20:52.560
the reasons that the defendant indicated that

599
00:20:52.560 --> 00:20:54.030
they were challenging this particular juror

600
00:20:54.030 --> 00:20:56.130
after the Commonwealth had passed on the juror.

601
00:20:56.130 --> 00:20:58.410
But I believe it was the fact that the juror

602
00:20:58.410 --> 00:20:59.460
had some family connections.

603
00:20:59.460 --> 00:21:00.960
And I can't remember the other issue.

604
00:21:00.960 --> 00:21:02.670
<v ->But is that just tactical?</v>

605
00:21:02.670 --> 00:21:03.770
The Commonwealth knows

606
00:21:06.000 --> 00:21:08.520
the defense counsel is gonna exercise a peremptory,

607
00:21:08.520 --> 00:21:09.900
so it doesn't need to do anything.

608
00:21:09.900 --> 00:21:11.133
It's sitting tight.

609
00:21:13.560 --> 00:21:16.657
I mean realistically, "Oh, we've got somebody

610
00:21:16.657 --> 00:21:19.057
"who's related to police officers.

611
00:21:19.057 --> 00:21:21.292
"I don't need to exercise my peremptory

612
00:21:21.292 --> 00:21:23.670
"'cause I know what the defense is gonna do."

613
00:21:23.670 --> 00:21:24.670
Right, that happens.

614
00:21:25.579 --> 00:21:26.412
That happens a lot, right?

615
00:21:26.412 --> 00:21:27.420
<v ->I'm not gonna say it doesn't.</v>

616
00:21:27.420 --> 00:21:30.270
It's certainly probably a strategic reason.

617
00:21:30.270 --> 00:21:34.080
But it doesn't cure the fact that even if one juror

618
00:21:34.080 --> 00:21:39.080
was excused based on race and gender, that it's improper.

619
00:21:39.150 --> 00:21:42.480
And from this record, you can't determine that it was.

620
00:21:42.480 --> 00:21:44.550
Because the trial judge didn't follow the steps

621
00:21:44.550 --> 00:21:46.740
that this court said should be in place

622
00:21:46.740 --> 00:21:50.640
at the time that somebody makes a Batson-Soares challenge.

623
00:21:50.640 --> 00:21:52.950
And that's the problem with the record here

624
00:21:52.950 --> 00:21:56.880
is the record suggests that of Hispanic males,

625
00:21:56.880 --> 00:21:58.770
they challenged 100%.

626
00:21:58.770 --> 00:22:01.590
Both Hispanic males that were cleared by the court

627
00:22:01.590 --> 00:22:04.230
were challenged by the Commonwealth 100%.

628
00:22:04.230 --> 00:22:05.700
And that's unacceptable.

629
00:22:05.700 --> 00:22:07.650
And even if you wanna take it out of males

630
00:22:07.650 --> 00:22:11.640
and just focus on race alone, it's 66%.

631
00:22:11.640 --> 00:22:12.840
Because they challenged everyone

632
00:22:12.840 --> 00:22:14.550
except for the Colombian woman

633
00:22:14.550 --> 00:22:15.960
who ended up sitting on the jury.

634
00:22:15.960 --> 00:22:17.627
And in this case-

635
00:22:17.627 --> 00:22:19.200
<v ->We don't lump, right?</v>

636
00:22:19.200 --> 00:22:20.033
<v ->We do not lump.</v>

637
00:22:20.033 --> 00:22:21.290
They lumped, but we don't lump.

638
00:22:22.170 --> 00:22:23.460
That's the other thing that the trial judge did

639
00:22:23.460 --> 00:22:24.390
is she lumped together.

640
00:22:24.390 --> 00:22:25.380
<v ->We don't lump.</v>

641
00:22:25.380 --> 00:22:27.300
<v ->I understand that but the trial judge did.</v>

642
00:22:27.300 --> 00:22:28.410
And so you have to look at whether or not

643
00:22:28.410 --> 00:22:29.640
what she did was erroneous.

644
00:22:29.640 --> 00:22:33.960
And so if she lumped in race and gender altogether

645
00:22:33.960 --> 00:22:35.100
and made her determination

646
00:22:35.100 --> 00:22:37.320
based on the makeup of the jury, then that was wrong.

647
00:22:37.320 --> 00:22:39.480
And once here, Mr. Baez had to prove.

648
00:22:39.480 --> 00:22:42.480
And I believe that he made the limited showing necessary

649
00:22:42.480 --> 00:22:45.390
to make a prima facie case of racist discrimination

650
00:22:45.390 --> 00:22:48.360
with respect to the Commonwealth's challenges

651
00:22:48.360 --> 00:22:50.340
against Hispanic jurors.

652
00:22:50.340 --> 00:22:53.250
And I'm asking this court to reverse Baez's conviction

653
00:22:53.250 --> 00:22:54.083
based on that.

654
00:22:54.083 --> 00:22:55.350
And if there are no further questions,

655
00:22:55.350 --> 00:22:56.640
I'll rest on my brief.

656
00:22:56.640 --> 00:22:57.744
<v ->Okay.</v>
<v ->Thank you.</v>

657
00:22:57.744 --> 00:22:59.103
<v ->Thank you.</v>

658
00:23:01.260 --> 00:23:02.093
Attorney Linn.

659
00:23:11.070 --> 00:23:12.120
<v ->Good morning, Your Honors.</v>

660
00:23:12.120 --> 00:23:15.390
May it please the court, Paul Linn for the Commonwealth.

661
00:23:15.390 --> 00:23:18.060
I would like to start with the peremptory challenge issue-

662
00:23:18.060 --> 00:23:20.700
<v ->Actually yeah, let's start with that.</v>

663
00:23:20.700 --> 00:23:22.950
<v ->I mean, can you start with Baxter and distinguish-</v>

664
00:23:22.950 --> 00:23:24.540
<v ->Oh, absolutely, yes.</v>

665
00:23:24.540 --> 00:23:26.970
The court is interested in that.

666
00:23:26.970 --> 00:23:29.730
<v ->Yeah, we're interested 'cause it's gonna be hard.</v>

667
00:23:29.730 --> 00:23:30.960
So help us out here.

668
00:23:30.960 --> 00:23:33.750
And you didn't have a lot in your brief on this,

669
00:23:33.750 --> 00:23:35.643
and this is tricky, right?

670
00:23:36.951 --> 00:23:38.790
It's awfully close to the other case.

671
00:23:38.790 --> 00:23:42.180
So help us out here very specifically.

672
00:23:42.180 --> 00:23:45.480
<v ->The distinguishing factor here is that</v>

673
00:23:45.480 --> 00:23:50.340
the defendant has no reason, no reason whatsoever

674
00:23:50.340 --> 00:23:53.830
to believe that these gunshots have anything to do with him

675
00:23:54.720 --> 00:23:59.550
unless he knows that his companions

676
00:23:59.550 --> 00:24:00.630
are committing the shooting,

677
00:24:00.630 --> 00:24:01.980
are going to commit the shooting

678
00:24:01.980 --> 00:24:04.203
and have indeed committed the shooting.

679
00:24:05.302 --> 00:24:07.620
This is a case where actually the lack of evidence

680
00:24:07.620 --> 00:24:10.020
that he dropped the defendants off and saw the shooting

681
00:24:10.020 --> 00:24:12.450
is actually in the Commonwealth's favor.

682
00:24:12.450 --> 00:24:14.700
It is essentially the curious incident

683
00:24:14.700 --> 00:24:15.840
of the dog in the nighttime.

684
00:24:15.840 --> 00:24:19.110
It is the negative evidence that actually,

685
00:24:19.110 --> 00:24:20.220
the evidence of a negative

686
00:24:20.220 --> 00:24:22.649
that actually proves the positive.

687
00:24:22.649 --> 00:24:23.910
<v ->But I don't understand that at all.</v>

688
00:24:23.910 --> 00:24:25.980
Can you walk us through that a little bit?

689
00:24:25.980 --> 00:24:28.200
Because it seems to me that this case

690
00:24:28.200 --> 00:24:33.200
is actually stronger than Baxter in terms of the defendant,

691
00:24:33.480 --> 00:24:36.360
if you can assume it's the defendant in the car,

692
00:24:36.360 --> 00:24:38.220
being just the getaway driver

693
00:24:38.220 --> 00:24:43.220
and not knowing that there is a plan to kill the victim.

694
00:24:47.430 --> 00:24:51.813
<v ->Because if there is no plan to shoot,</v>

695
00:24:52.740 --> 00:24:54.120
he has no reason to believe

696
00:24:54.120 --> 00:24:55.590
that the shooting has anything to do with him.

697
00:24:55.590 --> 00:24:56.580
And yet, he knows that.

698
00:24:56.580 --> 00:24:59.070
We know he knows that because he pulls forward

699
00:24:59.070 --> 00:25:00.060
as soon as hears the shooting.

700
00:25:00.060 --> 00:25:01.680
Everyone goes to their windows.

701
00:25:01.680 --> 00:25:05.253
Kay Pancheri, Benjamin Kresser I believe it is,

702
00:25:06.690 --> 00:25:08.517
Ms. Margot, they all go to their windows.

703
00:25:08.517 --> 00:25:10.260
And I should add that Margot

704
00:25:10.260 --> 00:25:12.570
actually does see one of the men,

705
00:25:12.570 --> 00:25:14.310
I believe it was the man in the light hoodie,

706
00:25:14.310 --> 00:25:15.180
carrying a gun.

707
00:25:15.180 --> 00:25:17.160
By the time they get up to the top of the hill

708
00:25:17.160 --> 00:25:20.790
and Kay Pancheri and Benjamin Kresser see them,

709
00:25:20.790 --> 00:25:25.530
it's apparent that they put their hands in their pockets.

710
00:25:25.530 --> 00:25:27.900
But yes, he is running with the gun.

711
00:25:27.900 --> 00:25:29.669
Also, Mrs.-

712
00:25:29.669 --> 00:25:31.710
<v ->Let's do this chronologically.</v>

713
00:25:31.710 --> 00:25:32.970
Help us out here a little bit

714
00:25:32.970 --> 00:25:36.410
'cause I'm a little confused about...

715
00:25:38.430 --> 00:25:41.130
Do we have direct testimony that what triggers him

716
00:25:41.130 --> 00:25:43.830
to move the car is the gunshot?

717
00:25:43.830 --> 00:25:45.690
<v ->Yes, everyone goes to the window</v>

718
00:25:45.690 --> 00:25:46.800
when they hear the gunshots.

719
00:25:46.800 --> 00:25:49.770
<v ->And he immediately starts driving towards the gunshots.</v>

720
00:25:49.770 --> 00:25:50.603
Is that what you're saying?

721
00:25:50.603 --> 00:25:51.570
<v ->Yes, as soon as they get to the window,</v>

722
00:25:51.570 --> 00:25:56.570
Kresser and Pancheri see the car moving forward,

723
00:25:58.080 --> 00:26:00.750
starting to take that turn to the right.

724
00:26:00.750 --> 00:26:01.890
Before I get too far into this,

725
00:26:01.890 --> 00:26:03.330
I do want to describe the intersection.

726
00:26:03.330 --> 00:26:05.520
'Cause it is important and we could use a map here.

727
00:26:05.520 --> 00:26:08.640
<v ->But can I just ask you to pause there though?</v>

728
00:26:08.640 --> 00:26:13.640
Do the witnesses see him parked, gunshot, then move?

729
00:26:14.850 --> 00:26:17.910
Or do they all run to the window after the gunshots

730
00:26:17.910 --> 00:26:19.623
and the car is already moving?

731
00:26:21.570 --> 00:26:22.403
<v ->It's the latter.</v>

732
00:26:22.403 --> 00:26:24.000
They hear the gunshots, they go to the window

733
00:26:24.000 --> 00:26:26.283
and they see the car moving.

734
00:26:27.420 --> 00:26:28.710
The car goes forward, starts...

735
00:26:28.710 --> 00:26:31.230
Well again, this intersection,

736
00:26:31.230 --> 00:26:34.080
it's the corner of Salem Street and I believe High Street.

737
00:26:34.080 --> 00:26:35.850
And High Street is the T.

738
00:26:35.850 --> 00:26:40.850
But just a slight zigzag to the right is Pearl Street,

739
00:26:42.120 --> 00:26:43.290
I believe is the name.

740
00:26:43.290 --> 00:26:45.360
And that's testified to at trial.

741
00:26:45.360 --> 00:26:46.560
So you make a quick right.

742
00:26:46.560 --> 00:26:48.690
And then you immediately go straight on Pearl Street.

743
00:26:48.690 --> 00:26:49.770
And that leads away.

744
00:26:49.770 --> 00:26:51.810
That is pretty much the only street

745
00:26:51.810 --> 00:26:54.210
in that warren of streets on Beacon Hill

746
00:26:54.210 --> 00:26:56.040
that goes to the other side of the hill

747
00:26:56.040 --> 00:26:57.600
as opposed to bringing you back around

748
00:26:57.600 --> 00:26:58.833
and down to Main Street.

749
00:27:00.510 --> 00:27:02.160
And there is evidence to that effect too.

750
00:27:02.160 --> 00:27:04.320
So the positioning of the car is also relevant.

751
00:27:04.320 --> 00:27:06.750
He is in a position to get away quickly

752
00:27:06.750 --> 00:27:08.820
and not have to return to Main Street.

753
00:27:08.820 --> 00:27:11.553
<v ->Right, but I get a lot of that.</v>

754
00:27:15.900 --> 00:27:19.200
And I'll give you that I don't find it compelling

755
00:27:19.200 --> 00:27:21.480
that he's not dropping them off.

756
00:27:21.480 --> 00:27:26.480
But how does his moving towards the gunshot,

757
00:27:27.810 --> 00:27:29.700
couldn't the gunshots...

758
00:27:29.700 --> 00:27:32.580
He may be moving towards them to rescue them.

759
00:27:32.580 --> 00:27:36.780
You know, how does he know that they fired the shots

760
00:27:36.780 --> 00:27:37.870
because of that?

761
00:27:37.870 --> 00:27:40.140
<v ->Well, he doesn't have any reason</v>

762
00:27:40.140 --> 00:27:41.580
to believe they're being shot at

763
00:27:41.580 --> 00:27:43.830
unless he believes that there's gonna be a gun fight,

764
00:27:43.830 --> 00:27:45.379
there was going to be a gun fight.

765
00:27:45.379 --> 00:27:46.466
<v ->But he heard the shots.</v>

766
00:27:46.466 --> 00:27:48.360
So that's when he realized that-

767
00:27:48.360 --> 00:27:50.010
<v ->There's a gunshot.</v>

768
00:27:50.010 --> 00:27:51.960
There's a gunfight when he hears the gunshots.

769
00:27:51.960 --> 00:27:54.270
<v ->Right, but how does he know that has to do</v>

770
00:27:54.270 --> 00:27:56.490
with his companions?

771
00:27:56.490 --> 00:27:58.720
The only reason he knows that is because

772
00:27:59.760 --> 00:28:01.410
he knows they were gonna get into a gun fight.

773
00:28:01.410 --> 00:28:03.480
<v ->Because he hears the gunshots</v>

774
00:28:03.480 --> 00:28:05.910
and moves towards his companions,

775
00:28:05.910 --> 00:28:08.460
I'm just asking, we draw the inference

776
00:28:08.460 --> 00:28:10.263
that he knew they were gonna shoot.

777
00:28:11.198 --> 00:28:13.410
And that's the trigger for him to drive towards them.

778
00:28:13.410 --> 00:28:15.420
<v ->Exactly, that's what the prosecutor argued in closing.</v>

779
00:28:15.420 --> 00:28:17.280
That's what the Commonwealth is arguing here.

780
00:28:17.280 --> 00:28:18.113
And he moves forward.

781
00:28:18.113 --> 00:28:19.710
He doesn't flee.

782
00:28:19.710 --> 00:28:22.380
He moves forward and then pulls back

783
00:28:22.380 --> 00:28:24.840
so he's in the perfect position.

784
00:28:24.840 --> 00:28:26.580
And he does it, you know, quickly enough

785
00:28:26.580 --> 00:28:27.417
that he hits this other car.

786
00:28:27.417 --> 00:28:30.030
And I think the evidence is clear from the fact

787
00:28:30.030 --> 00:28:33.030
that the owner of the Jetta,

788
00:28:33.030 --> 00:28:34.410
which is the car that's hit,

789
00:28:34.410 --> 00:28:36.960
testifies that that damage wasn't there earlier in the day.

790
00:28:36.960 --> 00:28:38.760
<v ->So now help me on...</v>

791
00:28:38.760 --> 00:28:42.913
You say that some people observed the two other people,

792
00:28:45.150 --> 00:28:46.713
their guns are out.

793
00:28:46.713 --> 00:28:50.280
Are their guns out before the gunshots

794
00:28:50.280 --> 00:28:51.360
or after the gunshots?

795
00:28:51.360 --> 00:28:52.193
<v ->After.</v>

796
00:28:53.730 --> 00:28:54.780
<v ->Again, I'm wondering.</v>

797
00:28:54.780 --> 00:28:56.880
Is there any evidence that should suggest

798
00:28:56.880 --> 00:28:58.470
that when they leave,

799
00:28:58.470 --> 00:29:00.390
again, I take it as a reasonable inference,

800
00:29:00.390 --> 00:29:02.130
he's dropped them off,

801
00:29:02.130 --> 00:29:05.760
that anyone sees them walking with their hands out

802
00:29:05.760 --> 00:29:09.300
or bulges in their pockets or anything that indicates

803
00:29:09.300 --> 00:29:12.300
that someone observing them would know they're armed?

804
00:29:12.300 --> 00:29:16.440
<v ->No, but Aiden Newhall does testify</v>

805
00:29:16.440 --> 00:29:18.750
that when he sees them walking past the car,

806
00:29:18.750 --> 00:29:20.580
their hoodies are cinched up

807
00:29:20.580 --> 00:29:25.020
so there's only a little bit of their faces showing.

808
00:29:25.020 --> 00:29:26.430
'Cause one of them is walking funny

809
00:29:26.430 --> 00:29:27.840
although the Commonwealth concedes

810
00:29:27.840 --> 00:29:31.383
that one of the Sotos had a limp.

811
00:29:32.370 --> 00:29:36.330
And they're, you know, engaging in conduct

812
00:29:36.330 --> 00:29:38.520
which could very reasonably be inferred

813
00:29:38.520 --> 00:29:41.553
to be casing the store, to see who's there.

814
00:29:42.870 --> 00:29:46.470
So it's not just that they're Black kids or Hispanic kids.

815
00:29:46.470 --> 00:29:47.303
<v ->Why is that?</v>

816
00:29:47.303 --> 00:29:48.240
I'm confused by that.

817
00:29:48.240 --> 00:29:50.340
<v ->Because they go past the store,</v>

818
00:29:50.340 --> 00:29:51.173
then they go up the hill.

819
00:29:51.173 --> 00:29:53.220
Then they come back and go past the store again.

820
00:29:53.220 --> 00:29:55.860
<v ->Right, but there's no Baez evidence</v>

821
00:29:55.860 --> 00:29:57.450
related to that at all.

822
00:29:57.450 --> 00:30:01.770
There's nothing suggesting or tying the defendant

823
00:30:01.770 --> 00:30:04.807
in this case to that casing, the hoodies, nothing.

824
00:30:04.807 --> 00:30:07.437
<v ->Correct, correct.</v>

825
00:30:07.437 --> 00:30:09.960
<v ->But we know for a fact</v>

826
00:30:09.960 --> 00:30:12.990
that they weren't there for a meeting.

827
00:30:12.990 --> 00:30:14.070
They weren't there for a rumble.

828
00:30:14.070 --> 00:30:15.870
They were there to shoot people.

829
00:30:15.870 --> 00:30:16.703
'Cause that's what they do.

830
00:30:16.703 --> 00:30:19.620
They suddenly turn around and without any provocation

831
00:30:19.620 --> 00:30:20.763
shoot the victims.

832
00:30:22.530 --> 00:30:24.570
<v ->They were seen sitting on a stoop</v>

833
00:30:24.570 --> 00:30:26.433
for a period of time before this.

834
00:30:27.270 --> 00:30:29.113
<v ->There's some question as to whether or not</v>

835
00:30:29.113 --> 00:30:31.020
those are the same people.

836
00:30:31.020 --> 00:30:33.270
They're not in the correct place.

837
00:30:33.270 --> 00:30:36.363
The prosecutor did not rely on that in closing.

838
00:30:38.520 --> 00:30:40.863
That testimony was there for what it's worth.

839
00:30:43.770 --> 00:30:45.510
But yeah, it's clear to everyone-

840
00:30:45.510 --> 00:30:47.820
<v ->Sorry, the jury acquitted the two co-defendants?</v>

841
00:30:47.820 --> 00:30:49.170
<v ->Correct, that is correct.</v>

842
00:30:50.610 --> 00:30:55.320
<v ->Help us out explaining why the Baxter is...</v>

843
00:30:55.320 --> 00:30:58.050
What is different from Baxter here?

844
00:30:58.050 --> 00:31:00.720
Just summarize why these facts.

845
00:31:00.720 --> 00:31:03.707
'Cause Baxter, we come to the opposite conclusion, right?

846
00:31:03.707 --> 00:31:06.990
<v ->Right, and I anticipated that question, Your Honor.</v>

847
00:31:06.990 --> 00:31:09.090
<v ->Yeah, I'm sure you did.</v>

848
00:31:09.090 --> 00:31:10.830
<v ->But I think the difference is</v>

849
00:31:10.830 --> 00:31:13.230
you have the circumstances of that case.

850
00:31:13.230 --> 00:31:16.320
Because the defendant drives the shooter to the scene,

851
00:31:16.320 --> 00:31:19.818
lets him off, and then just parks off to the side.

852
00:31:19.818 --> 00:31:21.467
<v ->After following the victim in the car.</v>

853
00:31:21.467 --> 00:31:23.380
<v ->Yes, after clearly</v>

854
00:31:24.990 --> 00:31:27.900
stalking I think would be a good word for that.

855
00:31:27.900 --> 00:31:30.900
He pulls off, under those circumstances

856
00:31:30.900 --> 00:31:32.880
and then the guy just runs to the car.

857
00:31:32.880 --> 00:31:35.010
So in those circumstances, you clearly have evidence

858
00:31:35.010 --> 00:31:38.820
that the defendant knows that his companion

859
00:31:38.820 --> 00:31:39.653
is up to no good.

860
00:31:39.653 --> 00:31:41.520
But what this court ruled is that

861
00:31:41.520 --> 00:31:43.020
there's not enough evidence.

862
00:31:43.020 --> 00:31:43.853
Certainly enough evidence

863
00:31:43.853 --> 00:31:44.880
to convict the defendant of assault

864
00:31:44.880 --> 00:31:47.940
but not enough evidence to convict him of murder.

865
00:31:47.940 --> 00:31:50.520
<v ->And that's where I get confused a little bit here.</v>

866
00:31:50.520 --> 00:31:52.650
'Cause I get you.

867
00:31:52.650 --> 00:31:55.800
The defendant here knows these guys are up to no good.

868
00:31:55.800 --> 00:31:58.350
But does he know they're up to no good

869
00:31:58.350 --> 00:32:02.490
in a different way than in Baxter?

870
00:32:02.490 --> 00:32:05.340
<v ->Yes, and we have that evidence here.</v>

871
00:32:05.340 --> 00:32:07.170
<v ->It's the gunshots.</v>
<v ->It's the gunshots.</v>

872
00:32:07.170 --> 00:32:09.840
It's the fact that the gunshots are what motivates

873
00:32:09.840 --> 00:32:12.600
the defendant to act.

874
00:32:12.600 --> 00:32:15.480
And that's almost inescapable.

875
00:32:15.480 --> 00:32:17.121
It doesn't have to be inescapable-

876
00:32:17.121 --> 00:32:18.660
<v ->In Baxter, there were no gunshots?</v>

877
00:32:18.660 --> 00:32:20.730
<v ->There were gunshots, there's no question.</v>

878
00:32:20.730 --> 00:32:24.730
But the difference is that

879
00:32:25.920 --> 00:32:28.530
what the defendant did in that case was

880
00:32:28.530 --> 00:32:30.720
it was the evidence before what happened

881
00:32:30.720 --> 00:32:33.120
that determined the case.

882
00:32:33.120 --> 00:32:35.250
<v ->In Baxter, did the defendant flee</v>

883
00:32:35.250 --> 00:32:36.750
once the two co-defendants-

884
00:32:36.750 --> 00:32:37.583
<v ->Yes, yes, absolutely.</v>

885
00:32:37.583 --> 00:32:41.880
Took the car, took the shooter, fled the scene.

886
00:32:41.880 --> 00:32:42.870
<v ->Can I ask you to go back to something</v>

887
00:32:42.870 --> 00:32:43.703
you said a few minutes ago,

888
00:32:43.703 --> 00:32:45.360
which was that this maneuver,

889
00:32:45.360 --> 00:32:49.290
which, you know, your entire argument is really resting on.

890
00:32:49.290 --> 00:32:52.830
I think you said quote, "left him in the perfect position."

891
00:32:52.830 --> 00:32:55.230
Can you elaborate on what you mean by that?

892
00:32:55.230 --> 00:32:57.140
<v ->It means he's out in the street.</v>

893
00:32:57.140 --> 00:33:01.740
So he is presumably parked because he's coming out

894
00:33:01.740 --> 00:33:05.550
from in front of that car, the Jetta.

895
00:33:05.550 --> 00:33:07.620
And he pulls forward and then he pulls back.

896
00:33:07.620 --> 00:33:12.510
So now both of his doors, both sides of his car

897
00:33:12.510 --> 00:33:14.250
are in the middle of the street.

898
00:33:14.250 --> 00:33:17.520
So that means that these two men can run up the hill

899
00:33:17.520 --> 00:33:19.410
and immediately get in the car from both sides,

900
00:33:19.410 --> 00:33:20.243
which is what they do.

901
00:33:20.243 --> 00:33:22.480
<v ->But why would he go forward in the first place?</v>

902
00:33:22.480 --> 00:33:25.260
<v ->Yeah, so he has room to back up.</v>

903
00:33:25.260 --> 00:33:27.270
He has to go forward or he can't back up.

904
00:33:27.270 --> 00:33:28.770
A car is there.

905
00:33:28.770 --> 00:33:30.420
That's the problem, that's the Jetta.

906
00:33:30.420 --> 00:33:33.780
The Jetta is in the way if he doesn't move forward.

907
00:33:33.780 --> 00:33:36.330
<v ->So he's in the middle of the street,</v>

908
00:33:36.330 --> 00:33:39.911
pulls up past the Jetta, pulls back, hits the Jetta.

909
00:33:39.911 --> 00:33:42.437
<v ->No, he's in front of the Jetta.</v>

910
00:33:42.437 --> 00:33:44.910
And he pulls up and then pulls back.

911
00:33:44.910 --> 00:33:45.840
And as he's pulling back,

912
00:33:45.840 --> 00:33:47.070
he doesn't give himself enough room.

913
00:33:47.070 --> 00:33:48.963
And that's why he hits the Jetta.

914
00:33:49.800 --> 00:33:51.600
<v ->But he didn't turn the corner at that time?</v>

915
00:33:51.600 --> 00:33:52.740
<v ->No, he did not turn the corner.</v>

916
00:33:52.740 --> 00:33:54.060
He approached it.

917
00:33:54.060 --> 00:33:55.890
<v ->So I'm still not understanding.</v>

918
00:33:55.890 --> 00:33:56.723
I'm so sorry.

919
00:33:56.723 --> 00:34:00.180
But why couldn't he just have in the first instance,

920
00:34:00.180 --> 00:34:04.620
why doesn't the car just go straight into the spot?

921
00:34:04.620 --> 00:34:05.607
He's driving down the middle of the road.

922
00:34:05.607 --> 00:34:07.770
<v ->No, no, he's not.</v>

923
00:34:07.770 --> 00:34:08.790
It doesn't start out

924
00:34:08.790 --> 00:34:11.490
with him driving down the middle of the road.

925
00:34:11.490 --> 00:34:12.900
<v ->Where is he when it starts?</v>

926
00:34:12.900 --> 00:34:14.553
<v ->Right, he's over slightly.</v>

927
00:34:15.712 --> 00:34:16.545
<v ->Sorry?</v>

928
00:34:16.545 --> 00:34:17.700
<v ->He's over more towards the edge.</v>

929
00:34:17.700 --> 00:34:20.610
'Cause of course, he can't sit there and block traffic

930
00:34:20.610 --> 00:34:23.670
for however long it's going to be.

931
00:34:23.670 --> 00:34:24.780
So he's out of the way.

932
00:34:24.780 --> 00:34:27.690
And that's why he has to move forward and pull back.

933
00:34:27.690 --> 00:34:30.210
<v ->What is the difference in terms of</v>

934
00:34:30.210 --> 00:34:33.990
reacting to shots in Baxter versus here?

935
00:34:33.990 --> 00:34:38.430
Why is this more directly connected to the shots

936
00:34:38.430 --> 00:34:41.253
than the driver in Baxter?

937
00:34:42.090 --> 00:34:45.240
<v ->Because in this case, the defendant has no reason</v>

938
00:34:45.240 --> 00:34:50.240
to believe that the gunshots are related to him

939
00:34:53.340 --> 00:34:57.600
unless he knows that his colleagues are armed

940
00:34:57.600 --> 00:34:58.500
and intend to shoot.

941
00:34:58.500 --> 00:34:59.977
Because otherwise, it's like,

942
00:34:59.977 --> 00:35:01.627
"Oh my God, there's a shooting.

943
00:35:01.627 --> 00:35:02.940
"I'm getting out of here."

944
00:35:02.940 --> 00:35:06.810
<v ->But his friends are by the shooting.</v>

945
00:35:06.810 --> 00:35:08.550
I mean, why wouldn't he...

946
00:35:08.550 --> 00:35:12.300
Isn't it just as likely

947
00:35:12.300 --> 00:35:15.270
that he wants to make sure his friends are okay?

948
00:35:15.270 --> 00:35:16.579
There's shots fired.

949
00:35:16.579 --> 00:35:18.507
<v ->It's not just as likely.</v>
<v ->Why?</v>

950
00:35:18.507 --> 00:35:20.850
<v ->And the evidence is in the light most favorable,</v>

951
00:35:20.850 --> 00:35:22.860
all reasonable inferences must be drawn

952
00:35:22.860 --> 00:35:23.693
in light of the Commonwealth.

953
00:35:23.693 --> 00:35:26.310
And the idea is, what would make him believe

954
00:35:26.310 --> 00:35:28.980
that they're being shot at unless he believes

955
00:35:28.980 --> 00:35:31.230
that they're gonna be involved in a gunfight?

956
00:35:32.610 --> 00:35:34.740
<v ->I get that, but I'm trying to understand why</v>

957
00:35:34.740 --> 00:35:38.310
that doesn't apply equally in Baxter.

958
00:35:38.310 --> 00:35:40.620
<v ->I would argue that it very well might</v>

959
00:35:40.620 --> 00:35:44.370
apply equally in Baxter to that extent.

960
00:35:44.370 --> 00:35:47.100
<v ->So you want us to backtrack from Baxter?</v>

961
00:35:47.100 --> 00:35:48.690
<v ->Yes, I think it would be; yes, exactly.</v>

962
00:35:48.690 --> 00:35:51.813
<v ->And so you'd then also backtrack from Gonzalez?</v>

963
00:35:52.980 --> 00:35:53.820
Is that your suggestion?

964
00:35:53.820 --> 00:35:56.280
Would you sort of reverse this whole jurisprudence?

965
00:35:56.280 --> 00:35:57.113
<v ->Hmm?</v>

966
00:35:57.113 --> 00:35:58.830
<v ->We should reverse this entire jurisprudence?</v>

967
00:35:58.830 --> 00:35:59.850
<v ->I don't think you need to reverse</v>

968
00:35:59.850 --> 00:36:00.870
the entire jurisprudence.

969
00:36:00.870 --> 00:36:03.300
<v ->So tell me how this is different from Gonzalez</v>

970
00:36:03.300 --> 00:36:04.960
where there's actually a motive

971
00:36:09.540 --> 00:36:11.760
attributed to the defendant.

972
00:36:11.760 --> 00:36:15.300
And here, we don't know any reason why

973
00:36:15.300 --> 00:36:18.090
this defendant would've had a beef with the victims.

974
00:36:18.090 --> 00:36:21.360
<v ->I think you have to look at the facts of all three cases</v>

975
00:36:21.360 --> 00:36:22.770
and say, you know,

976
00:36:22.770 --> 00:36:24.750
in this case, there's a reasonable inference.

977
00:36:24.750 --> 00:36:26.790
Whether or not this court was correct

978
00:36:26.790 --> 00:36:30.180
in saying there was not a reasonable inference in Gonzalez

979
00:36:30.180 --> 00:36:33.510
and Baxter is immaterial.

980
00:36:33.510 --> 00:36:34.590
The bottom line is-

981
00:36:34.590 --> 00:36:35.850
<v ->But we have to distinguish</v>

982
00:36:35.850 --> 00:36:39.630
if you would like the court to affirm this.

983
00:36:39.630 --> 00:36:44.073
Absent reversal of Gonzalez and then Baxter,

984
00:36:45.030 --> 00:36:46.560
you have to distinguish it.

985
00:36:46.560 --> 00:36:48.330
Not us, you do.
<v ->Correct.</v>

986
00:36:48.330 --> 00:36:49.230
<v ->Yes, and so how are you distinguishing it?</v>

987
00:36:49.230 --> 00:36:53.857
<v ->You would simply say, "Under the facts of this case,</v>

988
00:36:53.857 --> 00:36:55.297
"the only reasonable inference,

989
00:36:55.297 --> 00:36:57.967
"and certainly a reasonable inference

990
00:36:57.967 --> 00:36:59.617
"in the light most favorable of the Commonwealth,

991
00:36:59.617 --> 00:37:03.487
"is the fact that the defendant reacts to the gunshots

992
00:37:03.487 --> 00:37:06.097
"can only be explained by his knowledge

993
00:37:06.097 --> 00:37:07.350
"that his colleagues are armed-"

994
00:37:07.350 --> 00:37:08.820
<v ->Is there a case?</v>

995
00:37:08.820 --> 00:37:13.590
So Ms. Scapicchio is relying on Baxter

996
00:37:13.590 --> 00:37:15.300
as being the closest analogy.

997
00:37:15.300 --> 00:37:20.080
What's the best getaway driver case from your perspective

998
00:37:21.990 --> 00:37:25.020
that we should look at where we actually affirm these

999
00:37:25.020 --> 00:37:26.520
for lethal intent?

1000
00:37:26.520 --> 00:37:28.590
<v ->Well, I think the Watson case,</v>

1001
00:37:28.590 --> 00:37:31.263
which I found while I was researching,

1002
00:37:32.580 --> 00:37:34.200
it's a little different but I think it's,

1003
00:37:34.200 --> 00:37:37.440
I will have to get the site to this court, if I may,

1004
00:37:37.440 --> 00:37:38.273
is a decent case.

1005
00:37:38.273 --> 00:37:40.170
But really, the Commonwealth is relying simply

1006
00:37:40.170 --> 00:37:44.430
on Lattimore in this case, that this-

1007
00:37:44.430 --> 00:37:45.900
<v ->Tell me about Watson.</v>

1008
00:37:45.900 --> 00:37:46.733
<v ->Hmm?</v>

1009
00:37:47.850 --> 00:37:50.280
Watson is a case where the defendant, again,

1010
00:37:50.280 --> 00:37:52.860
drove the shooters to the scene.

1011
00:37:52.860 --> 00:37:55.530
Now there was a little more evidence than that.

1012
00:37:55.530 --> 00:37:57.060
But certainly, this court in that case

1013
00:37:57.060 --> 00:37:58.950
found that under the circumstances,

1014
00:37:58.950 --> 00:38:00.595
there was sufficient evidence.

1015
00:38:00.595 --> 00:38:02.190
<v ->What was the little more evidence?</v>

1016
00:38:02.190 --> 00:38:04.860
<v ->I would have to go back and review that further.</v>

1017
00:38:04.860 --> 00:38:05.693
I'm sorry.

1018
00:38:05.693 --> 00:38:08.040
<v ->No, that's okay; I'll do it.</v>

1019
00:38:08.040 --> 00:38:10.950
<v ->I mean, we tend to rely on the cases</v>

1020
00:38:10.950 --> 00:38:12.480
where they've seen the guns

1021
00:38:12.480 --> 00:38:14.850
or they've talked about the guns.

1022
00:38:14.850 --> 00:38:19.200
So is Baxter and Gonzalez the only sort of cases

1023
00:38:19.200 --> 00:38:23.223
where we don't have any evidence of anyone seeing the gun?

1024
00:38:24.660 --> 00:38:26.853
And is that the dispositive factor?

1025
00:38:28.290 --> 00:38:29.580
<v ->I don't think it's dispositive.</v>

1026
00:38:29.580 --> 00:38:31.230
I think you look at the facts of this case,

1027
00:38:31.230 --> 00:38:33.180
you look at the circumstances of the case.

1028
00:38:33.180 --> 00:38:38.180
You see that this clearly was an execution.

1029
00:38:38.332 --> 00:38:39.940
This was not a feud, this was not a-

1030
00:38:44.310 --> 00:38:46.620
<v ->But again, that goes to the two shooters.</v>

1031
00:38:46.620 --> 00:38:49.170
I'm wondering why that should go.

1032
00:38:49.170 --> 00:38:52.020
And I think the case law requires you to show

1033
00:38:52.020 --> 00:38:54.390
that that intent of the shooters

1034
00:38:54.390 --> 00:38:57.540
is joined in by this driver.

1035
00:38:57.540 --> 00:38:58.620
<v ->Of course, Your Honor.</v>
<v ->Right?</v>

1036
00:38:58.620 --> 00:39:00.953
<v ->That is absolutely the Commonwealth's burden.</v>

1037
00:39:02.589 --> 00:39:04.702
<v ->Was Baxter an execution case too?</v>

1038
00:39:04.702 --> 00:39:05.535
<v ->[Justice Wendlandt] Yes.</v>

1039
00:39:05.535 --> 00:39:07.110
<v ->They certainly came up behind him and shot him, yes.</v>

1040
00:39:07.110 --> 00:39:11.163
<v ->Yeah, so that can't be the dispositive factor then.</v>

1041
00:39:12.570 --> 00:39:13.403
It's hard.

1042
00:39:13.403 --> 00:39:16.980
<v ->It's a close case, but I think if you look at everything,</v>

1043
00:39:16.980 --> 00:39:21.671
you look at just the simple fact in this case

1044
00:39:21.671 --> 00:39:22.710
and the fact that we know.

1045
00:39:22.710 --> 00:39:24.240
We may now know whether he dropped them off,

1046
00:39:24.240 --> 00:39:26.310
but it's even more inculpatory if he didn't.

1047
00:39:26.310 --> 00:39:30.480
Because we know he has an arrangement with these two men

1048
00:39:30.480 --> 00:39:32.550
to pick them up and drive them away.

1049
00:39:32.550 --> 00:39:34.200
That's clear beyond any doubt.

1050
00:39:34.200 --> 00:39:36.780
<v ->But Counsel, the plan could have been for them</v>

1051
00:39:36.780 --> 00:39:38.708
to steal something from the store, right?

1052
00:39:38.708 --> 00:39:41.130
We don't know what the plan was.

1053
00:39:41.130 --> 00:39:44.970
Like I totally concede that there's clearly a...

1054
00:39:44.970 --> 00:39:47.100
It's very clear he's waiting to meet them, right?

1055
00:39:47.100 --> 00:39:48.840
Like that is very clear.

1056
00:39:48.840 --> 00:39:53.840
But the Commonwealth has to have some evidence

1057
00:39:54.120 --> 00:39:56.703
of a plan.
<v ->Right.</v>

1058
00:39:57.866 --> 00:40:00.660
<v ->And the plan can't be just to pick them up.</v>

1059
00:40:00.660 --> 00:40:02.880
And it can't be just to pick them up

1060
00:40:02.880 --> 00:40:05.250
in circumstances when they may wanna depart quickly

1061
00:40:05.250 --> 00:40:06.660
because they've been up to no good,

1062
00:40:06.660 --> 00:40:08.370
to use my colleague's expression.

1063
00:40:08.370 --> 00:40:10.830
So what precisely?

1064
00:40:10.830 --> 00:40:12.847
And then you're saying that the evidence is,

1065
00:40:12.847 --> 00:40:17.847
"Well, there were gunshots fired that he could hear.

1066
00:40:18.727 --> 00:40:22.227
"So therefore, it was a plan to kill people."

1067
00:40:23.700 --> 00:40:25.170
<v ->Yeah, I mean otherwise, he has no reason</v>

1068
00:40:25.170 --> 00:40:27.000
to believe this involves him.

1069
00:40:27.000 --> 00:40:28.260
<v ->But we don't know.</v>

1070
00:40:28.260 --> 00:40:29.850
How do we know that he knows

1071
00:40:29.850 --> 00:40:33.180
that the gunshots involved him in some way?

1072
00:40:33.180 --> 00:40:35.280
He knows that he's picking up his friends

1073
00:40:35.280 --> 00:40:37.110
from this location and he hears gunshots.

1074
00:40:37.110 --> 00:40:39.300
And that would presumably be very alarming to anyone

1075
00:40:39.300 --> 00:40:41.010
who's waiting to pick up their friends.

1076
00:40:41.010 --> 00:40:44.460
<v ->Right, but, you know, at that point,</v>

1077
00:40:44.460 --> 00:40:45.590
he doesn't have to...

1078
00:40:47.280 --> 00:40:48.750
There's just no reason he has to...

1079
00:40:48.750 --> 00:40:51.250
Obviously, even if these are just random gunshots,

1080
00:40:55.501 --> 00:40:56.910
that's not his cue to move.

1081
00:40:56.910 --> 00:40:58.923
It's like his cue to get out of there.

1082
00:40:59.760 --> 00:41:01.740
<v ->Well, not if he has a plan to pick up his friends.</v>

1083
00:41:01.740 --> 00:41:06.740
<v ->True, but the idea is, if these are random gunshots,</v>

1084
00:41:07.080 --> 00:41:08.070
he doesn't have to do anything.

1085
00:41:08.070 --> 00:41:10.770
He just needs to get these guys out of there.

1086
00:41:10.770 --> 00:41:13.500
And there's just no reason for him to believe

1087
00:41:13.500 --> 00:41:16.323
these gunshots are anything but related to him.

1088
00:41:17.280 --> 00:41:18.660
The only way he can believe these gunshots

1089
00:41:18.660 --> 00:41:21.030
are related to him is if he knows

1090
00:41:21.030 --> 00:41:22.257
that they're his colleagues' gunshots.

1091
00:41:22.257 --> 00:41:23.716
<v ->Can I ask about Gonzalez for a second?</v>

1092
00:41:23.716 --> 00:41:24.549
<v ->Yes.</v>

1093
00:41:24.549 --> 00:41:27.180
<v ->Was Gonzales another execution case,</v>

1094
00:41:27.180 --> 00:41:29.790
or was it a botched robbery or something else?

1095
00:41:29.790 --> 00:41:33.600
There's clearly a plan to assault somebody here

1096
00:41:33.600 --> 00:41:34.890
or do something to them.

1097
00:41:34.890 --> 00:41:37.740
'Cause we're not dealing with a robbery

1098
00:41:37.740 --> 00:41:40.200
or a plan to steal something.

1099
00:41:40.200 --> 00:41:41.450
We're dealing with...

1100
00:41:44.070 --> 00:41:46.980
There's no evidence that this is a botched anything,

1101
00:41:46.980 --> 00:41:48.270
but it's an execution.

1102
00:41:48.270 --> 00:41:50.370
<v ->Right?</v>
<v ->Right.</v>

1103
00:41:50.370 --> 00:41:55.050
<v ->Was Gonzalez different and more like a botched robbery?</v>

1104
00:41:55.050 --> 00:41:56.760
<v ->I concentrated my preparation on Baxter.</v>

1105
00:41:56.760 --> 00:41:58.120
I will have to look at Gonzalez again.

1106
00:41:58.120 --> 00:42:00.153
<v ->Okay, we can read Gonzales ourselves.</v>

1107
00:42:00.990 --> 00:42:03.090
<v ->I do wanna turn very briefly</v>

1108
00:42:03.090 --> 00:42:06.600
to the peremptory challenge issue

1109
00:42:06.600 --> 00:42:08.460
because there are a couple of points I wanna make.

1110
00:42:08.460 --> 00:42:11.490
The first is, the defense at trial

1111
00:42:11.490 --> 00:42:14.253
never challenged Hispanic men.

1112
00:42:15.210 --> 00:42:16.893
Regarding the first challenge,

1113
00:42:17.940 --> 00:42:20.197
the defense counsel just said,

1114
00:42:20.197 --> 00:42:21.217
"I wanna put on the record

1115
00:42:21.217 --> 00:42:23.647
"that this is a young Hispanic male juror

1116
00:42:23.647 --> 00:42:28.154
"for purposes of the Batson-Soares analysis."

1117
00:42:28.154 --> 00:42:29.954
He does not object to the challenge.

1118
00:42:30.870 --> 00:42:33.303
And then regarding the second man,

1119
00:42:34.680 --> 00:42:37.560
Attorney Sack, who represented one of the co-defendants,

1120
00:42:37.560 --> 00:42:41.587
says, "I object to this peremptory challenge

1121
00:42:41.587 --> 00:42:42.817
"because this would've been

1122
00:42:42.817 --> 00:42:44.910
"the first Hispanic juror we've seated."

1123
00:42:44.910 --> 00:42:47.220
And he says juror, not man.

1124
00:42:47.220 --> 00:42:48.967
And the prosecutor says, "That's not true.

1125
00:42:48.967 --> 00:42:50.880
"We have that woman from Columbia."

1126
00:42:50.880 --> 00:42:53.010
Attorney Sack says, "Oh, okay."

1127
00:42:53.010 --> 00:42:54.090
And that's the last of it.

1128
00:42:54.090 --> 00:42:55.893
He never says anything about men.

1129
00:42:57.150 --> 00:43:01.410
I also wanna point out that the Juror number 18 on day 4

1130
00:43:01.410 --> 00:43:05.070
was not the second Hispanic man to be found impartial.

1131
00:43:05.070 --> 00:43:07.740
Juror number 38 on day 2 was a Mr. Martinez.

1132
00:43:07.740 --> 00:43:10.020
He was also found to be impartial.

1133
00:43:10.020 --> 00:43:11.760
The prosecutor did not challenge him

1134
00:43:11.760 --> 00:43:13.080
and he was stricken by the defense.

1135
00:43:13.080 --> 00:43:16.860
That's at 2A, Pages 110 to 121.

1136
00:43:16.860 --> 00:43:19.020
<v ->Sorry, was this before or after the second?</v>

1137
00:43:19.020 --> 00:43:21.857
<v ->Before, so day 2 in the morning.</v>

1138
00:43:22.912 --> 00:43:24.930
<v ->So Martinez is accepted</v>

1139
00:43:24.930 --> 00:43:28.890
before the challenge to the second juror.

1140
00:43:28.890 --> 00:43:29.723
<v ->Correct.</v>

1141
00:43:29.723 --> 00:43:31.470
And regarding the Indian juror,

1142
00:43:31.470 --> 00:43:34.470
the dispositive factor isn't that he's Indian,

1143
00:43:34.470 --> 00:43:37.050
although that certainly is some evidence of lack of bias.

1144
00:43:37.050 --> 00:43:39.060
The dispositive factor is that

1145
00:43:39.060 --> 00:43:40.810
Attorney Amabile for the defendant

1146
00:43:43.620 --> 00:43:46.410
questions him extensively about a statement he made

1147
00:43:46.410 --> 00:43:49.327
where he said, "I think Hispanics are statistically

1148
00:43:49.327 --> 00:43:51.900
"more likely to commit crimes than other people."

1149
00:43:51.900 --> 00:43:53.857
And then Mr. Amabile says,

1150
00:43:53.857 --> 00:43:57.000
"I want this juror stricken for cause."

1151
00:43:57.000 --> 00:43:59.877
Also, of course, the grandfather who was a police officer

1152
00:43:59.877 --> 00:44:02.280
and a very important police officer in India.

1153
00:44:02.280 --> 00:44:04.567
And the judge says, "No, I think he just meant

1154
00:44:04.567 --> 00:44:05.970
"that was a statistical fact,"

1155
00:44:05.970 --> 00:44:08.003
that he wouldn't hold it against the defendant.

1156
00:44:08.940 --> 00:44:11.647
So it's at that point that the prosecutor says,

1157
00:44:11.647 --> 00:44:12.990
"I don't need to challenge this juror."

1158
00:44:12.990 --> 00:44:14.970
And of course, Attorney Sack then

1159
00:44:14.970 --> 00:44:16.920
does in fact challenge the Indian juror.

1160
00:44:16.920 --> 00:44:21.920
So those are my points on the peremptory issue.

1161
00:44:22.050 --> 00:44:22.893
Are there further questions on-

1162
00:44:22.893 --> 00:44:24.060
<v ->Just one last question.</v>

1163
00:44:24.060 --> 00:44:25.950
So the consequence.

1164
00:44:25.950 --> 00:44:28.440
So in your brief, you talk about this being

1165
00:44:28.440 --> 00:44:29.730
a second degree murder.

1166
00:44:29.730 --> 00:44:33.510
But if we think this is a Baxter case,

1167
00:44:33.510 --> 00:44:35.253
this is an acquittal, right?

1168
00:44:36.366 --> 00:44:39.090
'Cause there was no accessory after the fact charge here.

1169
00:44:39.090 --> 00:44:39.930
Right?
<v ->No, there was not.</v>

1170
00:44:39.930 --> 00:44:41.910
<v ->And that's not a lesser included.</v>

1171
00:44:41.910 --> 00:44:44.520
So we're dealing with all or nothing here.

1172
00:44:44.520 --> 00:44:47.133
<v ->Right; at most, you could say assault.</v>

1173
00:44:48.780 --> 00:44:50.700
Unless you find that he knew that they were armed

1174
00:44:50.700 --> 00:44:52.530
and he knew that they intended to commit a shooting,

1175
00:44:52.530 --> 00:44:55.080
yes, it's a required finding of not guilty.

1176
00:44:55.080 --> 00:44:57.540
But again, based on the facts set out on the brief

1177
00:44:57.540 --> 00:44:58.740
and the facts that I've mentioned here,

1178
00:44:58.740 --> 00:45:01.833
I urge this court to affirm the judgements.