-: SJC-13045, Commonwealth versus Michael A. Noguera.
-: Attorney Sultan.
-: Good morning, Madam Chief Justice,
and may I please the court.
Defendant Michael Noguera shot and killed Daniel Smith
in a wooded area of Easton on November 8th, 2016.
Noguera and Smith were friends and traveling companions,
but it was an abusive relationship.
Smith took away Noguera's cell phone,
he threw away his medication, he pointed a gun at him,
and in the days just preceding the killing,
he repeatedly threatened Noguera and Noguera's family.
Noguera went to trial in 2020,
after the trial had been continued
due to concerns about Noguera's mental health.
And the filing of the court-ordered 15A report,
which chronicled Noguera's long history of mental illness
and mental health treatment.
Noguera testified in his own defense at trial.
He described his history of mental illness
and Smith's abuse.
He testified that he killed Smith in self-defense.
On cross-examination of Noguera,
the prosecutor challenged the defendant's claim
of mental illness based upon the absence
of any records corroborating that claim.
-: Mr. Sultan, can we jump right into that?
Because this does seem a little bit different
than Solankis and the appeals court case that you cited.
Certainly different than Commonwealth versus Gardner
when there was cross-examination on manslaughter.
The difference, the first difference,
is that your client took the witness stand.
And the second difference is in the Solankis,
in the appeals court case, the name is escaping me,
they were the victim's records,
not the defendant's own records.
So if you take those trilogy of cases,
how do you reconcile those with the circumstances here
where your client made a decision to take the stand,
schizoaffective disorder was a key to the case,
and yet he didn't have those records.
How does that implicate improper cross-examination?
-: Well, I agree with Your Honor
that under this court's cases
and Ivy and appeals court cases,
it's a much closer question.
And because he did take the stand,
and I think it is somewhat analogous to situations
where somebody decides to talk to the police
and answer some questions and not others.
So, frankly, that is not one of my two principal arguments.
You know, I'm not waiving that argument,
but I recognize especially where it wasn't objected
to a trial where cross-examination obviously
is within discretion of the trial judge.
I'm not resting principally on that argument.
But I think that that,
it does jive with what are the two principle arguments,
which are related,
which we raise on this consolidated appeal,
which are first that trial counsel was ineffective
and deprived Noguera of a substantial defense
by not obtaining and using at least four specific
sets of records that would've blunted that argument.
-: Let me ask you on that score, Mr. Sultan.
As far as the judge's findings on the motion for new trial
go in the record,
what you didn't address in your brief
was the examination by Dr. Selah, and then,
the investigation that Mr. Kamera did with Selah and Brown,
which used some of the records, not all of them.
Could you please address or take the opportunity to address
how those pretrial examinations and investigations
by attorney Kamara would not be ineffective?
-: I don't think that those are particularly germane,
Your Honor, because defense counsel didn't call
either of those experts at trial.
-: But we have lots of case law that says when you,
as obviously a very experienced defense attorney,
the obligation
is to look at the mental health when raised.
And do an investigation of it,
and we don't have an obligation to go down rabbit holes
or raise spurious defenses.
So at bottom, Kamera called two experts,
had him examined and then said, we're not going there.
So how does that jive with ineffective assistance?
-: Well, Your Honor, it's because because the obligation
is to make a reasonable investigation.
And a reasonable investigation.
I mean, to me, the case that's most directly on point
is Alvarez, where, I mean, the defense in that case
put on an expert, but the defense didn't obtain
the full set of records that would've corroborated
the defense, the NGI defense.
And so what this court said is there was no strategic reason
not to get those records.
There was no strategic reason not to review those records.
Those records would have assisted
the presentation of the defense.
So here, I mean, doesn't, I mean, frankly,
if those experts opined without even seeing those records,
I mean, what kind of an opinion is that?
It's a standard part of what a lawyer's job
is to get the records. -: Can we challenge
that point, though?
-: I'm sorry, Your Honor?
-: Can we just challenge that point for a minute?
-: Sure.
-: That the expert didn't review those records.
I think you might be referring to Dr. Brown.
Because there is a suggestion that the Suffolk jail records
were reviewed, there's a suggestion that
the Social Security Administration records
were part of the Hackensack University Hospital records,
and that those records were reviewed.
Now, I don't know, I haven't taken the big dive in yet
to know, but that's the suggestion that no, wait a minute,
you said, and there was no review of those records.
There's a suggestion from the Commonwealth
that indeed a good enough amount of those records
were reviewed to say, stop, don't go there,
because this is going to step on your longstanding
mental health schizo disorder defense.
-: Well, let me address that, Your Honor.
Well, first of all, as this court has said,
going back decades,
doing the investigation, including getting records,
does not in any way create a discovery obligation.
It doesn't require you to use those records.
It's just part of the pretrial investigation.
So let's talk about the four sets of records.
So first, the military records,
where the defendant made a serious suicide attempt,
and the records also document earlier suicide attempts
and a medical discharge.
Trial counsel concedes, he never got those records.
There was no request in the file.
So the experts couldn't have them either.
He never got them.
The Social Security disability records.
The man had been on Social Security disability.
The disability dated back from 1989 to 2014,
when he didn't submit updated records,
so they took him off.
So that's 25 years. He never obtained those records.
The Commonwealth suggests, well, some of those records
might have been someplace else,
but the complete set of records,
which documented a long disability,
including a mental health disability,
defense counsel never got those records,
he had conceded he never did it.
And so the experts never could have seen those records.
So the third set, the Hackensack Medical Center,
University Medical Center,
emergency psychiatric hospitalization in 2010,
which directly corroborates Noguera's testimony at trial.
He was asked by the prosecutor,
"When were you last hospitalized?"
And he said, "Six to eight years ago."
And that was six or eight years before the killing.
Well, 2010 was six years before the killing.
I mean, that exactly fits his testimony.
Those records were never obtained.
There's no suggestion that those Hackensack records
were part of any other record.
Now, during the evidentiary hearing, in his affidavit,
trial counsel says,
"I never sought or obtained those records."
In his testimony, he said,
"Well, I might have gotten those records."
He had no recollection of ever reviewing them.
So there's no reason to believe it.
-: Just to be clear, Mr. Sultan,
by those records you're referring to Hackensack.
-: The Hackensack records, Your Honor,
and then the fourth set, so the jail records.
Upon his entry into the Suffolk County Jail
in the summer of 2018, Noguera was evaluated.
If you look at page 515 of the impounded appendix,
the impression is schizoaffective,
he's put on psychiatric meds.
I mean, those records were important that,
yes, just like in Alvarez, in Alvarez,
the complete set were summonsed in
at the prosecution's instigation,
but the defense never looked at them.
There's no evidence that Dr. Brown
ever looked at those records.
His 15A report came out like,
two days after those records were summoned in.
There's nothing in his report that refers to those records.
There's no reason to believe
he ever bothered to go to the clerk's office
and looked at the records.
And trial counsel admitted he never looked at the records.
He didn't look at them. He didn't have them.
He was not in a position to offer them a trial.
That's negligence, Your Honor.
I mean, that's...
I understand that lawyers can't do everything,
they can't go down every rabbit hole.
This wasn't a rabbit hole.
Noguera sent his lawyer a specific list of pages
of all of the places he had been hospitalized,
all the medication he'd been on.
The material was there. It's hard to do.
I respect that.
-: Records seem important.
I know the DA's gonna make the point that it's,
obviously after the homicide.
I appreciate they're gonna make that point.
But the records are important,
because that's where you have a potential diagnosis,
schizo diagnosis.
So they are important records.
Is there any resolution in the factual findings,
or anything that we can look to as to whether or not
Dr. Brown did review those records?
-: Well, there isn't, Your Honor, because,
the trial counsel didn't keep a record
of what he had sent to Dr. Brown.
He didn't keep a copy of what he sent to Dr. Brown.
And Dr. Brown reported during my investigation
that he had destroyed the records when he moved offices.
So there's really no way of knowing what he looked at.
What we do know is that what about there's no reason
to believe that counsel had them at trial.
-: What does the record reveal, Mr. Sultan about,
the records reviewed, if any, by Selah?
-: There's no evidence anywhere about what Dr. Selah
saw or didn't see.
He was retained very early in the case,
and there's really no information about what he did,
what he saw, what he didn't see.
-: There's no transmittal letters or anything.
-: Nothing of any kind of the record.
And so I can't, we don't really know anything about, but...
But he couldn't have seen records that defense counsel
never sought and obtained.
And that's what we're talking about here.
And so to me, the issue is really,
I mean, to me it's a clear case of negligence.
And the issue really is the issue of prejudice.
To me, that's really where the rubber should meet the road
in this case.
Because I think any lawyer has an obligation,
where he's told, he was told by Noguera,
"Get my Social Security disability records.
They're really important."
He never did that. So to me, the issue is prejudice.
And on the issue of prejudice to me,
where the trial judge said that counsel made
a reasonable strategic decision not to use these records.
And I don't see how you can make
a reasonable strategic decision whether to use or not use
something that you don't have, that you've never looked at.
It's not a strategic decision. It just isn't.
And so I think that that finding is clearly erroneous.
I mean, whether or not he decides to use them is obviously,
that is a strategic decision.
But you have to be able to see them to make the choice.
-: Is that coupled with the decision to put his client
on the stand to talk about his mental illness,
and then without the cooperation?
-: I think that's a really good point, Your Honor.
It is because you're putting him up there, basically,
you're hanging him out to dry.
-: So if one of your clients had another defense,
"I didn't do it," right, and they'd ride that horse.
That's a different story of a prejudice.
-: Well, and here he puts on, I mean,
what I would frankly submit was a rather lame
self-defense claim where the decedent was shot
in the back of the head.
I mean, and he argued, I mean,
his mental health was a important issue at trial,
it wasn't just his testimony.
Veronica Suarez, his longtime girlfriend,
testified about his hallucinations,
his symptoms.
Ed Jacobs, an important witness,
testified that he was acting erratically,
that he'd lost it after Smith
kicked him out of their hotel room.
The defense counsel argued mental illness
in his closing argument.
The judge instructed the jury that they could consider
credible evidence of mental illness.
So this was not some throw-in, this was an important,
and the prosecutor argued in closing,
that he's fabricating this, this is self-serving.
There's no documents to back it up.
So if you don't, you shouldn't believe this.
And by inference, you shouldn't believe anything he says.
-: At one point, you were saying that you're not relying
as much on the cross,
you're relying on two different things,
and the first one you've addressed.
And the second one, I'm not sure if you're gonna address
33 or the closing as it relates to it.
-: It's 33, your Honor, because I think,
to me, these two things go together.
This was a man with a serious longstanding mental illness.
He was a victim of abuse.
And he killed.
And to me, the combination of his lawyer
not presenting the records that would corroborate
his mental illness to give the jury a fair chance
to assess it, combined with just the fact that those,
the combination of mental illness and abuse
is kind of a combination.
And I know every case is different.
But this court in the past, in cases like Colleran
and Barry and other cases have looked at that and said,
"Look, you know,
maybe there should be some mitigation here."
-: Well let's see where it goes to though,
because it's not a criminal responsibility case.
So is it, does it go to diminished capacity?
Does it go to the lack of capacity
to formulate the requisite intent?
-: I think that's right, your Honor.
I think it's diminished capacity.
I think that it's acting,
that it's acting impulsively based on his, you know,
messed up, mentally ill mind,
combined with a feeling of paranoia and fear,
based on all of these threats that are laid out
in the text messages that are quoted in the brief.
He's gonna hurt him, he's gonna hurt his family,
he's gonna hurt his son, he knows where they live.
All of that stuff combined to operate on this man's
distorted, diseased mind to result in this tragedy.
-: So the layers you're asking us to reach are,
it's ineffective assistance of counsel.
There's clear negligence, there's prejudice, new trial.
If we don't go there, 33, mitigation.
-: I think that's right, Your Honor.
But I think,
and I think Your Honor really kind of put a gloss on it
that I didn't do as effectively as Your Honor did,
which is he really did hang Noguera out to dry.
By putting him on the stand to testify
about his mental illness without anything,
anything to back it up,
even though these records were available.
I got these records.
I mean, it wasn't that difficult to get them,
without ever bothering to read the Suffolk County records.
It is like Alvarez.
Just like in Alvarez, the records didn't
correlate perfectly with the defendant's testimony.
I agree with the Commonwealth when they point that out.
In Alvarez, the defendant had told the defense expert
that she was in a coma for months
and had a steel plate in her head
as a result of an accident.
There was nothing in the records about a steel plate.
In fact, she was in a coma
for maybe several weeks, not months.
But this court said those details don't matter.
The records still would've corroborated the overall picture
that this was somebody who had severe repercussions
as a result of that accident.
Similarly here, even though they don't correlate perfectly
with his testimony, the records would have corroborated,
this was a man with a longstanding history
of mental illness and treatment,
and they would've at least seriously blunted
the prosecution's extremely effective attack
on his credibility based on the absence
of any records at all.
-: How does his cocaine use or drug use come into play?
-: I'm not sure, Your Honor.
I mean there was really,
there was no testimony about drug use
around the time of the killing.
Many mentally ill people self-medicate with drugs.
That's not an excuse, but that's what happens.
I don't really think it particularly enters into it.
This was not an intoxication defense.
There was no evidence he had been drinking
or using drugs within 24 hours of the killing,
so while that certainly is part of who he was,
I don't believe that's directly relevant
to the arguments that I'm making in this appeal.
If there are no further questions,
I thank the court for its time.
-: Thank you.
Okay, Attorney Lee.
-: Good morning.
May it please the court, Mary Lee,
assistant district attorney
from the Bristol District for the Commonwealth.
Because this is 33, I'm happy to attempt to answer
any questions that you have on any topic.
But if you don't have immediate questions,
I'd like to go back to a couple of questions
my brother asked.
-: I have an immediate question.
On Mr. Sultan's point, which is,
how can it something be strategic
if it hasn't been reviewed?
-: Right, so...
From that, the answer is no.
If you haven't reviewed anything, it can't be strategic.
And the Commonwealth's position is the defense counsel here
did review things, and he did talk to two experts,
and therefore did make a strategic decision,
but you're correct.
If he didn't review anything,
and these records were helpful to the defendant,
then that can't be a strategic decision.
But here, we don't have that.
-: I don't wanna step on Justice Lowy's question,
but could you go through the four categories of records?
The...
I'm sorry, the first set of records,
I can't read my own handwriting.
I'm sorry, military, that's what that word says, I'm sorry.
The military records, the SSI records,
the Hackensack records and the Joe records.
And what, in your view, the evidence shows
about review of those?
-: Yes.
So the Fort Dix record,
and the only records that date back 30 years,
the defendant claimed not just that he had a mental illness,
but that he had a 30 year diagnosis
of schizoaffective disorder,
and a 30 year diagnosis of bipolar disorder.
And he testified about that in his direct examination.
And the defense on appeal claims, the Fort Dix records,
which show that, you know, that he was discharged
because there was a suicide attempt.
But those records don't show
that he had schizoaffective disorder.
They don't show that he had bipolar disorder,
they actually have a different diagnosis
of borderline personality disorder.
And so those contradict his claim.
-: I'm sorry, no dispute, he didn't get the military records.
-: He did not get those records.
He attempted to, his notes show that he made attempts
to get those records.
There was communication with the military,
but he did not achieve those records.
He did not review those records.
And so the Commonwealth's claim here
is that they don't help the defense at all
because they contradict the defendant's claim.
They do show that he had mental illness back then.
-: Because it's really important
to go through these four different categories.
Mary Lee: Right, yes.
Each one stands on its own, yes.
-: And then we look at the whole thing.
-: So going back to Fort Dix and the army.
And Mr. Sultan's point about Alvarez, well, yeah,
it's not a perfect fit,
but at least he gets to go to the witness stand with records
that says this is longstanding.
-: Right, so one, it cannot go to his mental health
at the time of the crime,
because they predate the crime by 30 years,
and that's Commonwealth versus Sprae.
But also these records, as I said,
here, you can see the prosecutor going right to the point,
you know, when those were the first questions
that she asked on cross-examination,
if these records were presented to the jury,
the prosecutor would be going at them saying,
"Where's the schizoaffective disorder?
Where's the bipolar disorder?
Where's the mental health treatment?
He was in the Army. He had a suicide attempt.
They reviewed him, made a medical diagnosis,
and he went on his way."
This does not show a 30 year history of treatment records,
which is what her point was in her cross-examination.
Where is this history of treatment records?
So this doesn't disprove the prosecutor's point,
and it contradicts the defendant's testimony.
Now, if we look at what the trial strategy of counsel was,
and this is in his testimony at the motion for new trial,
he was concerned after speaking to the two experts
and reviewing some records that the defendant
was embellishing his mental illness,
that he was overstating it for the purposes of his defense.
And I would suggest the Fort Dix records
are exactly the problem
that defense counsel was worried about.
The defense counsel didn't want it to look
like he was embellishing his claims
in order to get rid of this murder charge.
And Fort Dix goes to that,
because he didn't have a 30 year history
of schizoaffective disorder.
He didn't have a 30 year history of bipolar disorder.
And so defense counsel was steering clear of that.
The absence of those records
is consistent with the strategy, I'm sorry, your Honor.
-: Yeah, it's tough to be strategic when he doesn't know.
But let's go to the next category, the SSI records.
-: So, I agree, the defendant specifically asked
his attorney to get the Social Security
administration records.
It's in his letter to counsel.
And he said, "That is where you'll see my,
the most comprehensive list of my treatment records."
And counsel went to get every list
of every set of treatment records that were in that list.
So he never got the SSI, never attempted to get
the Social Security administration records.
And so he should have done that.
His client asked him to do it, he should have done that.
So our argument on this one is prejudice.
There's no prejudice here,
because counsel did get the two sets of treatment records
that are within the Social Security Administration records.
Dr. Danishmond and Lahai, which are medical records.
And he asked for 2013 to 14 for Dr, Danishmond.
The Social Security Administration records had 2011 to 2014.
Both sets of those records
from Social Security Administration
show a diagnosis of bipolar disorder beginning in 2011,
so it's not a 30 year history.
It does corroborate bipolar disorder,
but nothing about schizoaffective disorder.
So I would suggest one,
and this is one of the points that I had originally
wanted to make when my brother was arguing.
Justice Lowy, I believe said that SSA
was part of Hackensack.
I think what you meant to say is that
the Social Security Administration included
the Danishmond records, not the Hackensack records.
So the psychological treatment records
that are within the Social Security Administration records.
In fact, trial counsel had those,
they're the Dr. Danishmond records.
We have the letters to Dr. Danishmond.
The defendant is not claiming he didn't get those.
And those would be records that were sent to Dr. Brown
and were later destroyed.
And they would show a bipolar diagnosis,
but not dating back 30 years.
I would also just like to point out,
this goes to a question that was earlier asked by
Justice Gaziano, which was,
how do we know what Dr. Zale and what what Dr. Brown saw?
The Commonwealth in its original response
to the motion for new trial,
specifically asked for discovery
about Dr. Brown and Dr. Zale.
We wanted to call them as witnesses
at the motion for new trial.
That was preliminarily denied.
After the Commonwealth's request by the trial judge,
we presented the evidentiary hearing,
and those witnesses were not called.
And at the end of the hearing,
I renewed my request to ask,
to call Dr. Zale and Dr. Brown,
so we could know exactly the answer to the question
that Justice Gaziano has just asked.
What records did you get? What advice did you get?
What was the big danger in these records
that you gave this advice to counsel and then he acted on it
and made this strategy?
And we could even ask Dr. Brown,
do you have any recollection of what records you received?
Did you get Hackensack, did you get Dr. Danishmond,
did you get, you know, any of the other records?
Did you look at Suffolk?
But we don't know the answer to that question
because defense objected to the Commonwealth
getting to that point,
and the judge didn't permit the Commonwealth
to call those witnesses.
And so if the hole in the evidence is there,
that is the defendant's burden to show.
If this court isn't satisfied,
then that remedy would be a remand for a hearing,
so we could call those witnesses
and get right to that point.
My point is, the defendant,
by blocking us from getting that evidence,
by not calling those witnesses,
has not answered the question
of exactly what information trial counsel had,
and what information was given to him
by Dr. Zale and Dr. Brown.
And the Commonwealth was blocked by that ruling,
and we objected at the hearing.
So I would suggest that's not a reason
to allow the defendant's motion
that there is a hole in that evidence.
-: It relates to the defendant's burden
on the motion for new trial.
-: Yes. He has to show justice has not been done.
That's a heavy burden after a conviction by a jury.
Additionally, the big problem
with the Social Security records.
-: Can you remind me, counsel,
what was the basis of the denial
of the Commonwealth's request?
Privilege?
-: My brother stated that that wasn't the point of his motion
and that it was part of the defense privilege.
And they have privilege to keep stuff away from us,
but they can't then use it to say,
too bad you don't know this information. (laughs)
It's their burden,
You waive your privilege in order to meet your burden
when you're claiming ineffective assistance of counsel,
and I was blocked after two requests and an objection.
Judge: The Hackensack records?
-: Could I make one more point
about the social security records?
Judge: Certainly.
-: The Social Security records
then actually make the Commonwealth's point.
In 2014, the defendant asked for benefits.
He claimed he had schizoaffective disorder.
He has never, in the Social Security records
have a finding of schizoaffective disorder
all the way up to 2014.
But in 2014, the Social Security Administration
said you're losing your benefits because you haven't
provided record information that supports your claim
of any mental illness including bipolar disorder,
and his benefits were cut off in January,
his last benefits were January, 2015.
The murder is in November, 2016.
So that exactly shows the prosecutor's point.
You're claiming you have all these mental illnesses.
Give us the proof of it. He didn't.
That was the prosecutor's cross-examination.
-: I dunno what to do with this comment.
But sometimes people with mental illnesses
don't have the ability to get what they need to get
to affirm their mental illness
because they have mental illness.
-: And if you wanted to present that,
you would have to call an expert on that.
That's not a matter of common knowledge.
I agree with you.
My experience as a prosecutor, I've seen that,
that people don't go and get the help they need
and they are blockaded from getting the help they need.
We don't have that evidence about this defendant
from an expert in this case,
and that's not something that we can just presume
from the record in this case,
particularly where the experts were not called.
The Hackensack records.
The Commonwealth maintains that the defense attorney
requested the Hackensack records,
the letters are in the record appendix,
and that his notes marked that they were received.
Because we couldn't call Dr. Brown,
we couldn't substantiate that Dr. Brown actually saw them.
But we have a finding from the judge
that the Hackensack records were received.
That's a 2010 hospitalization.
Now, the defendant had testified
he had a 30 year history of hospitalizations.
This is the only record that shows a hospitalization.
He did say the last time he had a hospitalization
was in that time period,
so it would've corroborated him on that.
But what's the problem with the Hackensack records?
It's exactly what we've been talking about.
There's no reference to schizoaffective disorder,
only bipolar disorder and borderline personality disorder.
Those records show the exact problem
that the defendant is exaggerating his symptoms,
and he's doing it for the purposes of this case.
And trial counsel would've been perfectly within his,
under Commonwealth versus Dawn,
trial counsel's strategic decisions are given deference.
Under Commonwealth versus Tevlin,
We consider that the defendant's trial strategy.
So the record as it stands,
he requested the Hackensack records,
he got the Hackensack records, he showed them to an expert.
He talked to the expert more than once,
and he made a decision to stay away from it
because he didn't feel it would help.
-: That was a psychiatric hospitalization, correct?
-: Yes.
-: All right, so when this cross-examination
of you have no records of psychiatric hospitalization,
and the defense attorney says, "Aha, I do."
-: I could have gone and got Hackensack, but he didn't.
-: But he doesn't raise that as an issue.
He doesn't raise that in rebuttal, correct?
-: He does not.
And he didn't ask for continuance to go get them.
He didn't ask for a continuance to call Dr. Brown,
or to see if Dr. Brown still had the records.
It would appear the records probably existed
at that time period from Dr. Brown's email,
which is part of this record,
it looks like he was moving his office
during Covid lockdown.
This was one of the last trials
in our county before lockdown.
It was in February, 2020.
So those records may have even existed
at Dr. Brown's office at the time.
But trial counsel's strategy was to stay away from that.
He felt that it hurt the defendant's case after-
-: That's sort of the question.
So the cross is over, now it's redirect.
If the Hackensack records were at your fingertips,
then you make a craft of advocacy determination
of whether to redirect.
Oh no, actually there you go.
Or, you don't know, you haven't looked at 'em,
and it's not strategic because you can't make
a craft decision about what you haven't seen,
so which one is it?
-: So he received them and he said that he's not a doctor,
he relies on experts.
So he sent them what records he received to Dr. Brown
and then talked to Dr. Brown about it,
and I think that's perfectly reasonable.
My reading of Hackensack
is not an expert reading of Hackensack,
as well as this courts, regardless of, you know,
how experienced you are,
you're not psychiatric experts in this case
to look at those records.
And so I think it was smart of him to send them to an expert
and he made a decision and stuck with it.
-: But what may not be smart
is if you're being cross-examined and grilled and saying,
if you were hospitalized in a mental institution,
we'd know it, we'd have records
And then you sit on your hands and say,
oh, well I guess Hackensack, but maybe not,
so I say nothing?
-: So he said he anticipated the question
from the prosecutor.
He thought that the defendant testified well.
There's no objection on the record at that point.
Then the prosecutor makes a statement.
She did not say, my brother said,
she said he was fabricating, she did not say fabricating.
She said, again, I think I quoted it, but she said,
"Now first of all, with respect to his mental condition,
all we have ladies and gentlemen are the defendants
self-serving statements that for 30 years
he suffered from schizoaffective disorder
and from bipolar disorder.
Same from his girlfriend Veronica Suarez.
Yet he was unable to produce one single record
to support the proposition that he was in fact suffering
from any type of mental illness,"
that's at transcript 17, 57 to 58,
so she didn't use the word lie or fabricate.
But, she points out that one sentence.
That's all she says about it. And what does counsel do?
Because that was evidence, she's allowed to comment on it.
He objects, he gets that essentially stricken.
The trial judge then says, defendant's under no burden.
He doesn't have to produce any records.
So her point is then undermined.
And counsel said that he felt, on cross,
in the motion for new trial hearing,
he said he felt that that was sufficient
to remedy the defendant's rights.
And then he didn't have to open the door to these records
and this expert evidence that he thought was so harmful
after investigation to the defendant.
-: That was in the closing argument.
Mary Lee: That's the closing argument.
-: Right, but the question
had been asked in cross though, right?
-: There's three questions on cross
that's at transcript 15, 208 to 209.
"And do you have any of these records supporting a claim
that you have been hospitalized multiple times
over a 30 year period?"
Hackensack wouldn't address that.
-: That's what Justice Lowy was intimating,
that could have been redirect, if in...
If he had them in his trial bag, and he just didn't.
-: It could have been if that was his strategy.
The other one-
-: Question, you know, what comes first?
Because it's fine not to redirect on that
as a strategic decision.
What's not fine is not to have the option
because you didn't investigate.
-: Right.
I don't think that applies to Hackensack respectfully,
because the record shows he got Hackensack, looked at them,
sent them to Dr. Brown, talked about all the records he sent
to Dr. Brown with Dr. Brown,
and then anticipated this question,
and then used the strategy
to undercut the prosecutor's closing argument.
-: And before you conclude,
not to rush you off in your two minutes,
but the Suffolk County records.
-: Right, so the Suffolk County records are post-crime.
So they are difficult for the defendant,
because he's already got his motive to create a record.
His diagnosis was based on his statements to the counselor.
And those records were,
half of those records up to April, 2018
were summonsed into the court records
for the purposes of Dr. Brown to be able to review,
it was the judge, Judge McGuire, who summons them in.
And the docket shows that those
were psychiatric records that came in.
And in that time period
it has schizoaffective disorder, it has
the medications he was prescribed.
And Dr. Brown, I understand my brother is saying,
"Well, we don't know that Dr. Brown
reviewed them or didn't,"
aside from the fact that I couldn't
call Dr. Brown to determine that.
Dr. Brown's preliminary report, which is part of the record,
does note schizoaffective disorder
and does note his prescriptions,
so I would suggest that preliminary report would indicate
that he was familiar with these records
that had been summoned in for the purposes
of him to look at them.
-: What was the purported strategic reason
for keeping these out?
Can you just articulate that for me?
-: Strategic reason for keeping out the Suffolk records?
-: Why would you not bring in the Hackensack record
or the military or the social security?
What would be the...
-: Counsel felt that the records showed
would support the defendant embellishing his statements,
about his mental illness, and that it would hurt-
-: Because they said bipolar and not schizoaffective,
or because it was X number of years, and it goes to 30.
-: He didn't give the reasons, he said there were things
he didn't want the Commonwealth to see.
I tried to be very careful of the defendant's privilege
regarding that thought process when I was questioning him,
but he said there's stuff in there
he didn't want the Commonwealth to see.
He thought it would hurt his client.
And so...
So we know that counsel saw Dr. Brown's preliminary report,
which does...
I didn't look at that right before argument,
but I'm very confident that it showed
that there was a diagnosis,
a long-term diagnosis written in the preliminary report.
I don't know where Dr. Brown got that from.
I can't prove that Dr. Brown read the Suffolk records.
-: PTSD, anxiety, paranoia, disassociation.
-: Oh, it doesn't have schizoaffective in it.
-: No, I think it's depression and hallucinations.
Oh, and bipolar.
-: Bipolar.
Well, and then that we'll cut-
-: Oh, I'm sorry, and schizoaffective.
-: Yeah, schizoaffective disorder, okay.
-: Let's get everything in there.
-: I was worried about my memory there.
I'm sorry I'm running outta time.
My point is, we know counsel
had Dr. Brown's preliminary report,
so we know he knew about those diagnoses.
And those records were brought in
specifically for Dr. Brown.
I can't tell you that Dr. Brown looked at them
because we didn't get to call Dr. Brown.
My time is up. I apologize for going over.
I would ask this court to affirm the defendant's conviction
except for the firearm charge because of Gordata.