-: SJC-13043 Commonwealth versus Peter Raunchy.
Okay, Attorney Fishman.
Good morning.
-: Good morning.
May it please the court.
Before I begin,
I'd like to note the presence of defendant's children,
Steven and Lizette in the courtroom.
May it please the court.
My name is Neil Fishman.
I'm here for the defendant, Peter Raunchy.
This is an appeal, excuse me,
from two first degree murder convictions.
One is based on extremely cruel and atrocious killing.
Regarding, that is, excuse me, deliberately premeditated
killing regarding his pregnant girlfriend
who was nine months pregnant at the time.
The other is regarding the fetus, and that is
a deliberately premeditated first degree murder conviction.
I will begin with some of the new, handle things a bit
differently from I handled them in the brief.
I'll begin with some of the new trial issues,
of which there are many.
In looking back, it seemed to me that some of the,
they're all quite strong in my view,
but some of the stronger ones were actually unpreserved.
For example, during closing argument,
the Commonwealth told the jury that mere words
could not satisfy a manslaughter conviction.
That was an incorrect statement of law.
And indeed that was the whole ball game.
That was defendant's defense, of course,
which was that he received word orally
of the decedent's infidelity,
and the fact that of his lack of paternity.
The commonwealth actually went even further in their closing
argument and actually tied that proposition of law,
which is false, to the facts of the case.
The Commonwealth said.
-: Did the judge draw the distinction between mere words
and mere words that inform in the jury instructions.
-: In the jury instructions, Your Honor,
the court handled the topic appropriately.
They were consistent with the.
-: And did the judge instruct the jury
that you get the law from me, not the lawyers?
-: There was the standard instructions, Your Honor.
Nevertheless, the.
-: Did the prosecutor actually call upon the jury
to listen to what the judge is saying right
before talking about the mere words?
-: I don't recall if that's in the prosecutor's closing.
-: The prosecutor says,
I suggest to you when you listen
to the judge's instructions.
That's the preface to the mere words.
-: Yes, Your Honor.
I would still say, Your Honor,
that to that false statement of law,
particularly when the prosecutor tied it directly
to the facts, was a very significant error,
and it created a substantial risk of miscarriage of justice,
particularly when we tie it to some of the other errors.
And I will go.
-: But don't we tell prosecutors that you can't just argue,
you can't just state the law.
It has to be tied to the facts, so that including the
evidence that came in would be proper, I would think.
-: Well, that's why this error is doubly harmful,
because not only was it a misstatement of law,
but the prosecutor directly tied it to the facts.
I would like to get that across the court
with the exact quote.
So the prosecutor told the jury,
when Ms. Galperina says to Mr. Raunchy,
it's not your body, baby, excuse me,
The Commonwealth will say to you,
mere words are not enough.
This is not so.
-: And then goes on to say,
the judge will instruct you that
it's a reasonable person standard.
-: Yes, Your Honor.
Yes, Your Honor.
And again, I would submit that this error,
when you take it into the totality of circumstances
alongside the other errors, merits a new trial.
Another big error in my view, again, it was not objected to,
and again, it comes from the prosecutor's closing argument
and from, I would encourage this court to look at it
in a 33 E review at the prosecutor's closing argument,
and the way the prosecutor handled the cross examination of
the defendant and the defendant's brother
is this sort of what I would characterize
as a character assassination.
The prosecutor painted the defendant as narcissistic jerk.
The prosecutor made hay outta the fact
that the defendant was independently wealthy,
that he visited Galperina at night,
presumably when she was more available for sex,
that he was friendly with another woman.
There was a hint, hint, a wink, wink in that,
that he was having a friendship with that woman
while Galperina was pregnant,
and that he was generous with his ex-wife
and comparatively less generous with Galperina.
I don't see any, I don't think this evidence
was brought in good faith.
Even if there was some sort of distant good faith in showing
motive, I would submit that this was,
that such evidence was, the probative value substantially,
very substantially outweighed for its unfair
prejudice to defendant.
It basically, it was a character assassination, as I said.
Moving on to some of the preserved errors, what the,
the party saw it, that the party saw this issue
as the most important one in the case,
and I certainly agree it was very important,
is the exclusion of the testimony of a prior boyfriend who
Galperina had told, no dispute here, had told,
the baby's not yours.
Now, he said in his (indistinct) testimony,
well, she was joking,
but I would argue to this court that
this testimony was crucial.
The fact that she may or may not have been joking,
went to the weight the evidence.
This was a, by the way, this witness
who testified (indistinct)
he was clearly sympathetic to Galperina,
obviously having had a relationship with her.
-: Isn't this a judgment call by the judge
as far as whether or not this pattern evidence comes in?
-: Well, Your Honor, I would say yes and no.
So obviously it's a, there's a, of course,
that you're a court, Your Honor, is well aware
the garden variety rule is we don't allow
prior bad act evidence. Right.
-: (indistinct)
-: Yes, well, actually, I was gonna get there, Your Honor,
would you like me to address that?
I do argue for an extension of (indistinct)
-: I think that's where you were going anyway.
Because to get this bad act evidence by a victim,
we'd have to extend (indistinct).
-: Yes, so, and I don't think it's much of an extension,
actually, Your Honor.
So as Your Honor knows that when you have,
you can prove mitigating circumstances
when there are two people in the room
and one is the defendant and one is the decedent.
We don't have any percipient witness to the crime.
We can under (indistinct), you can have,
you can establish mitigating circumstances by proving that
the decedent had a reputation for violence.
Here, I'm trying, the defense was precluded
from showing mitigating circumstances
by showing that the decedent had told previous lovers
that she, that the baby wasn't theirs.
Judge: Just one.
-: Just one, Your Honor, but given that this was the whole.
Judge: Is that an act of violence?
-: No, Your Honor, it is not, of course not.
-: Isn't this a slippery slope, what you're arguing, really,
we're just gonna allow in all sorts of prior bad act
evidence, not tethered to any issue as to who was
the first aggressor, you know, just any,
anything including one other time
the victim has done anything.
-: The jury, of course, could weigh the evidence
and its credibility, but I would submit in this case
where the whole ball game, again,
was whether the jury believed what the defendant was telling
the jury that, she said this to me, and I snapped.
-: So women's, the language of that, of his, of the mother
of the baby, the language was enough to provoke him.
-: Your Honor, under the law now, and at the time of trial,
yes, the language is enough to provoke him,
but there was much more, right.
The defendant here was suffered from pretty,
very serious mental health issues.
He was under enormous stress.
And as your, if Your Honor rereads his testimony,
there's the argument, the build up to the point
where he snaps is quite a thing.
I would like to, before I lose track,
go through some of the other new trial issues,
which is again, another very big issue in the case was this,
the defendant was trying to establish that
he snapped, that this was more akin to manslaughter
than murder through a mental health expert.
A mental health expert, Dr. Dieters, testified
that the defendant had some very serious mental health
issues which directly impacted what happened
at the moment of the homicide
and leading up to the homicide.
But his testimony is, and I, again,
I encourage the court to go through it
in its 33 E review, is torture.
-: Did the judge follow Commonwealth versus Heaney?
-: If that's the law on how to how to handle this area.
-: (indistinct) versus juvenile
and Commonwealth versus Heaney.
Did the judge follow those rules?
-: Yes and no.
-: And we said recently in (indistinct) that that's good law.
Lawyer: Yes, Your Honor.
-: Okay, so why does it change the law?
-: Well, let me say two things about it, Your Honor.
First of all, if you look at Dr. Dieter's testimony,
and I encourage you, I'm trying to, this is a bit mixed,
33 E with a direct appellate argument.
But what I would encourage you.
-: If you could do the appellate argument first, just to
tell me whether or not the the trial judge followed the law,
then you could start 33 E.
-: From the defendant's view, Dr. Dieter's
testimony was over-policed.
The only thing he was allowed to testify to was anything
he directly observed, otherwise, it was all went
through this crazy formality,
which is very difficult for even an attorney to follow,
for a jury to follow.
-: But Heaney requires, right?
-: I don't know if Heaney requires that it can be only what
the mental health expert.
-: What's been admitted into evidence.
-: Right, Right.
And what I'm saying, Your Honor, is I believe, if you
particularly if you took a close look at his testimony,
which goes on for a good 100 pages or more,
is you'll see that it wasn't, the stuff that was excluded
wasn't only, excuse me, the stuff, he was only permitted
to testify to stuff that.
-: And that's a what's good for the goose,
good for the gander rule because it applies to Commonwealth
experts as well, right, all experts?
-: It does, Your Honor, it does.
I would be remiss if I didn't press here for the court
to loosen the reins there for the reasons
that I describe in the brief.
I believe again, it.
-: So you want us to adopt the federal rule?
-: I do, I think the federal rule.
Judge: Federal 3?
-: That's right, Your Honor.
Without getting into the weeds on that,
I make the argument in the brief that it's
just too difficult for a jury to hear the nuts and bolts
of what the experts saying through
the artifice of the hypotheticals.
I would.
-: Can you just articulate for me what was excluded?
I understand that you're complaining about
the hypotheticals and how that needed to be presented
under the current law.
But what did, what was omitted from the bases
of the expert's testimony?
-: I believe anything that he learned.
-: But what was that?
I understand the (indistinct), but what was.
-: The brother was a very important person.
Whatever the brother told him.
I believe he interviewed the ex-wife.
Judge: Didn't they testify?
-: They did, Your Honor.
But, but of course we don't know from their testimony
if it was exactly what they had told
the mental health expert.
Again, what was difficult about this area as a practitioner
was there was so much, this is a hundred or so pages
of testimony, and I was wrestling with other issues as well.
Again, another very big issue is the dismissal of the juror.
Now, the discharge of the juror, I have to submit
at the outset that the defendant consented to this.
So review would be for substantial risk
of miscarriage of justice.
-: And there's a colloquy too, right.
-: There is a colloquy, although I argue in my papers.
-: That attorney agrees and wants it, and the judge
does a colloquy with the defendant.
-: I don't recall if there's a colloquy with the defendant,
but that does ring a bell,
I think that is correct, Your Honor.
I would say, having said all that, still, the way
this discharge happened was not in an accordance
with Connor, and it mattered,
and it created a substantial risk of miscarriage of justice
because this juror by all accounts was,
well, she's not someone you would invite over for tea.
She's a difficult person and who held
a dissenting view of the case.
This is exactly what Connor is about.
You can't discharge difficult people
who have dissenting views of the case.
That's a way our system is built.
A difficult person with a dissenting view of the case
needs to stay on the jury, needs to be heard, in fact.
And if that results in a miscarriage, excuse me,
in a mistrial, so be it.
That's the.
-: But the trial judge should have said
to the defense attorney, you're wrong, this juror
is staying, this juror is staying?
-: No, Your Honor, I have to acknowledge that.
-: He would have a different problem
if the trial judge said to the defendant, you're wrong.
Your objections overruled.
The juror is staying and was convicted, right?
What are we supposed to tell the trial judges?
-: Your Honor, don't have an intelligent response to that,
but what I would say is that this was the type of,
what happened here was directly against Connor,
where the juror was supposed to be asked
if there was a, she could only be discharged
if she had a problem personal to her having nothing
to do with a relationship with the other jurors
or her view of the case, and she was discharged.
-: I haven't read Connor in a while, but does Connor say
that that's taking into account the defendant's
acquiescence at all?
-: I don't recall either, Your Honor.
Finally, I would like to.
-: Just before you leave Connor, can you tell me
what it is that the judge did wrong?
-: The judge?
-: Vis a vis Connor?
-: Yes, Vis a vis Connor, the rule in Connor
is you're supposed to ask the juror whether,
the court's supposed to ask whether she has
a problem personal to her that has nothing to do
with her relationship with the other jurors
or her view of the case.
And this juror said right at the outset,
they don't like me because I'm dissenting.
Now, of course, she wasn't all that likable.
-: That inquiry with the juror is fraught, correct?
Lawyer: It is very tricky, yeah.
-: But instead of having that tricky inquiry,
the judge had both sides saying, we want her gone.
-: Only at the very end, both sides said we want her gone.
And that's why I have to admit that the standard review
is a substantial risk of miscarriage of justice.
I would like to make my 33 E argument here.
I did look for other cases like this,
and there aren't any that I could find.
-: That's not really surprising, is it?
Lawyer: Well, this is quite a heinous crime, Your Honor.
And it's very very.
-: But there are other cases in other states, right,
on this sort of killing?
-: That may be, Your Honor, I don't know if I saw that,
but I will say that, I would urge this court to consider
some of the errors that I think occurred during the trial.
Consider the state of defendant's mental health,
consider his testimony, consider the fact that
there was corroborative proof that this had happened before.
-: What do you say to the continued use of the doctrine of
provocation when there's knowledge of infidelity?
Lawyer: I.
-: We've questioned it in two cases.
What should we do with that?
-: I'm aware of that, Your Honor.
Of course, I'm here arguing under the state of law
as it is now, and at the time of trial,
and, at the time of trial.
-: This gives us an opportunity to write on that,
so I just want your view on.
-: Well, obviously if you're, what I would say
in the interest of my client is that if your court,
if this court changes the law on that,
it can't be retroactive to this case of course,
there would be due process concerns,
but I'll just rest on what I have in the brief about that.
I think the question, although I respect it,
Your Honor, is entirely academic
to the result here for my client.
-: And I think you, what you said in brief
was this is different because there
was infidelity plus paternity.
-: That's right, Your Honor.
It's quite, it's an unusual situation to say the least.
He learns two incredibly shocking things at once.
Judge: Although don't they go together?
-: Of course, of course, of course.
Judge: Okay, thank you very much.
-: Thank you.
Bailiff: Attorney Moriarty.
-: Good morning.
May it please the court.
Marina Moriarty on behalf of the Commonwealth.
Your Honor, the claims related to the fetus
were never raised below.
And even if they had been where the conviction is supported
by the law, the facts and consummate with justice,
the arguments are without merit.
With respect to Commonwealth V Cass,
the defendant has set forth no solid rationale
for overturning 38 years of precedence,
which was most recently upheld in 2000 in Crawford
and noted favorably in 2012 in Pugh, P U G H.
-: Is that the majority rule or minority rule, if you know?
-: [Attorney Moriarty] With respect to the states?
-: Yeah.
-: I am not sure, Your Honor.
I don't know.
I did not research that.
With respect to the conviction for deliberate premeditated
murder of the fetus that was based
on sufficient evidence of intent.
The jury could have found that the defendant intended the
murder days, weeks, even months leading up to
the stabbing of the victim, the pregnant woman,
or the defendant could have formed the intent
as he was in the apartment just prior to the stabbing.
Next, Judge Lowy correctly instructed
with respect to the charge of the murder of the fetus,
in accordance with Crawford, using the reasonable likelihood
standard, which he was instructed to explicitly by Crawford.
Turning to the issue of whether the defendant was required
as a matter of law to be found guilty of only manslaughter
based on reasonable provocation,
the Commonwealth does urge this court to retire the
antiquated theory of reasonable provocation upon sudden
revelation of infidelity as suggested in Richards,
which was published in 2020, and most recently in Steves,
which was published in 2022,
just after the Commonwealth filed its brief.
-: And did you have an opportunity to look
at other jurisdictions on that issue?
-: I have not, Your Honor.
I have not, but I would suggest that this court
has been intimating that society no longer would find
a reason or excuse to justify a killing
based on these words alone.
-: And can I ask you to address your opposing counsel's
statement that this involved not only a sudden revelation
of infidelity, but also of lack of paternity?
-: Your Honor, it simply doesn't matter.
The standard rule is with respect to provocation
is that mere words are not enough.
This court for decades has carved out this very small area,
which said that sudden revelation of spousal infidelity
is an exception to that cardinal rule
with respect to reasonable provocation.
It has had to expand that rule with respect to relationships
that are outside of the marital realm.
I do not think that society should expect
that words are sufficient provocation.
In fact, the Commonwealth objected to the manslaughter
instruction being provided with respect to both
the victim and her fetus.
It was clear that Judge Lowy felt constrained
by the case law and provided the manslaughter instruction,
which the jury did not accept.
Judge Lowy only indicated he only provided the instruction
based on the defendant's self-serving statements
that he felt that he and the victim
were spiritually connected.
The Commonwealth's position, as it was at trial,
perhaps Judge Lowy's decision was, or is, correct
at the time, however, going forward, the case law
should be now that mere words are not enough, period.
-: Did the prosecutor make a mistake
in arguing transferred intent?
-: Your Honor, I think she could have suggested better words.
I think transferred intent to lawyers and judges
has a very specific meaning.
However, the jury was never instructed
about transferred intent.
They never heard those words.
I think what she was going for was the more colloquial
dual intents, or that the defendant could have had
two things in his mind as he was stabbing
his pregnant girlfriend 15 times.
That it's simply incomprehensible to think
that the fetus inside the woman he was stabbing
was not on his mind, when in fact,
even according to the defendant's own statements,
the whole argument.
-: And it has to be intent to kill
because it's premeditation, correct?
-: Yes, that the intent, that there's only one intent.
When you intend to kill a pregnant woman,
there is one intent, that, it's common sense,
that the fetus inside her will also die.
So as he's intending to kill Galperina,
he's also intending to kill the fetus.
In fact, there's no claim that he didn't know
that she was pregnant.
The Commonwealth's not arguing on
strict liability standard here.
He obviously knew she was pregnant.
She was clothed in her underwear.
She was had a nine month pregnant stomach.
The fight itself was about the baby,
was about how they're going to raise the baby,
how they're going to raise the baby together,
or not raise the baby together.
So the idea that there's some lack of intent to kill
the fetus is simply not borne out by either
the defendant's own statements, which were also corroborated
by the Commonwealth evidence.
Briefly on the discharge of the juror issue,
the defense attorney kind of drove the bus with respect to
what he wanted to do with this juror.
Judge Lowy was flummoxed, he was concerned.
He said in the end that it was one of the most difficult
decisions that he'd ever encountered as a judge.
The defense attorney asked for the (indistinct)
of the foreperson who brought forward the juror slip.
The defense attorney asked for the (indistinct)
of the juror in question.
The defense attorney said at this point,
I ask that the juror would be dismissed.
The Commonwealth meanwhile was taking a much more reluctant
approach, the prosecutor said she was consulting
with the Appeals Division and didn't really take
a position until the very end.
And finally Judge Lowy, once he got the consent
of all the parties, he said he will do a colloque
with the defendant.
He engaged in the colloque with the defendant specifically,
and the defendant specifically said that he agreed
with his attorney's advice and wanted the discharged juror.
-: There's no ineffective assistance claim
related to this, right?
-: Your Honor, I don't think so.
The only thing that Connors requires that arguably
Judge Lowy didn't get to is that one line inquiring
of the juror that you can only be discharged
if you're, if it's something unrelated to your position
as a delivery.
-: I understand the Connor issue.
The defense counsel wanting the person off is a little odd.
-: Potentially, Your Honor.
But that's the point, and that's the point that Judge Lowy
was trying to make on the record,
is that none of us were there.
He said on a naked record,
it's difficult to explain how disturbed this juror seems.
Her negative and hostile interactions with the court
and the court employees.
There was discussion about how she was mentally unstable.
So I don't, with all of that said, I don't see how
a defense attorney would want a mentally unstable person
on the jury.
-: But in terms of the law that we've sort of come up with
on this, did the judge err by saying,
if everybody agrees she shouldn't be on the jury,
was it actually an error not to go through
the figuring out whether she's got issues personal to her?
-: I do not think so, Your Honor, but I don't think so
because he couldn't get there.
Her responses to him were so non-responsive and hostile
that Judge Lowy simply couldn't get to the point
where he could have a, not even intelligent,
just a normal conversation with this juror about her issues
on the jury without delving into the deliberations itself.
He had to tread obviously very, very carefully.
And I think he did.
So I think that this, and there's no indication,
this was on the second day of deliberations.
There's no indication that the jury was at a deadlock.
There's no indication that this was a hold up juror.
The only indication is that this juror was damaged,
mentally unstable, hostile, and unable to work
with anyone in the courthouse, so I don't think.
-: So I'm just thinking about, for trial judges
who have a very difficult person who obviously has issues,
but the issues may be both outside and inside the jury room,
and everybody agrees she should go,
is there a problem with that, or?
-: I think if defense counsel consents,
then if there's any error raised,
it would be a substantial risk or substantial likelihood
of a miscarriage of justice.
They would have to prove some sort of prejudice,
which I think it's, and I also think, Your Honor,
that there's significant deference according
to trial judges in these particular cases.
So I think actually the standard is that you have to prove
that Judge Lowy in his decision, it was a palpable error.
And I just don't think that on this record that is evident.
Unless the court has any further questions.
-: I did have one question.
Why not adopt the federal 703 evidentiary rule
on expert testimonies?
What's the Commonwealth's position on that?
-: Your Honor, just with respect to this case,
Yes, the expert's testimony was very lengthy and long.
However, this particular constraint that was arguably put
on the expert only lasted for three transcript pages.
So it wasn't like the expert was forced into this, you know,
for hours, into this potentially unnatural testimony.
He gave the jurors all the information they needed
about the defendant's mental health deficits
and in various particular, in a very particular way,
was required to opine on the facts of this case.
I don't think that it's unreasonable to require an expert
to opine in this way because the, arguably the expert
is getting into, has information that is beyond
what the jury has.
So I think there's a very, a difficult line
that has to be drawn and that's why the information
the defendant, that the expert relies on
is only permitted in, on cross.
So I think that the way that our rules require experts
to testify is most consummate with the Commonwealth's
common law rules about.
Judge: It's a hearsay dump, right?
-: Essentially, essentially, yes, right.
And it's a way around the hearsay rule.
-: Right, but the federal courts do it all the time.
Why shouldn't we allow here?
Why have experts testify in what you concede as sort of an
abnormal way, albeit only for three transcript pages here?
-: Well, first of all, I think it is within the judge's
discretion to allow an expert, and in this case,
the judge did allow the expert to testify more naturally,
so that the, I think it's better to allow the trial judge
discretion with respect to how to manage
the expert's testimony.