Speaker: SJC-13052 Commonwealth v. Tony A. Tinsley.
Chief: Attorney Greenbaum.
-: Good morning.
Thank you, your honor.
May I please the court.
The Commonwealth is here appealing the judge's decision
allowing the defendant's motion for new trial.
This was a sort of horrific violent crime
that the home invasion statute is directed at, and
that the legislature intended to penalize more seriously.
And the evidence the Commonwealth positions
at the evidence in this case was had sufficient
was sufficient to establish all the elements
of armed home invasion.
-: Attorney Greenbaum, how so just given the facts
in this case?
-: So the defendants, I guess the big place to
become material is the notion of the purpose
of the statute and the idea of dwelling place.
Understandably, we're not understandably the defendant
and the judge's position isn't that
since for purposes of burglary statutes, and
as in goal of the garage may be considered part
of the dwelling house.
That in order if someone breaks
into a garage prior to breaking into the home
and only arms himself in the garage, well then
then there's no possibility of armed home invasion.
The Commonwealth's position is that if you look
at the purpose of the home invasion statute,
which is set out in,
in the Antonmarchi whatever,
it was just meant to protect persons rather than property.
And to the extent that the statute uses that different term
dwelling place, rather than dwelling house
Then it would make sense and be more reasonable
to think that, and in particular, the knowledge element
that we're talking about, someone who's armed, who breaks
and enters into a dwelling place, knowing,
knowing or having reason to know that people are inside.
In this case, the defendants who unsuccessfully tried to
break directly into the house in the middle of the night
got into the garage, found a car, found the keys to get in
through the locked door and the garage in the garage.
There was no one in the garage.
This defendant apparently armed himself with the screwdriver
prior to going in.
We can assume that was
in anticipation that they might-
Georges Jr.: Attorney Greenbaum.
Can you answer one question for me?
Cause I don't want to move on too much
without throwing this up.
In your brief,
you mentioned the issue with the trial judge at the hearing.
Is it the Commonwealth's contention that
if a suspect is armed and breaks
into a garage, an attached garage, that they
cannot and encounters a resident in the garage that
that suspect cannot be charged with armed home invasion?
-: No, the judgments, that was,
I don't believe the Commonwealth
in writing or an oral argument said anything
that would be that if all the other elements.
-: I'm asking you directly, I'm asking you directly,
is that the Commonwealth's position?
-: No, that is not.
-: It doesn't that,
council doesn't follow logically from your argument?
-: No, it doesn't follow logically my argument at all.
The Commonwealth's argument is that yes, the garage,
the attached garage in this case can be a dwelling house
for purposes of burglary.
And if prior to entering
that attached garage and the dwelling house,
the defendants are armed and they know
or have reason to know someone is in the garage.
Perhaps because there's music there
perhaps because of what any other factors,
something like it, and they break in
and people are in there and those people are assaulted.
That's armed home invasion
because it is an entry into a dwelling place.
What the Commonwealth is suggesting is
that we should interpret
for the purposes of this particular statute.
Dwelling place should be interpreted
such not that it's limited to the dwelling house totally.
But it could be a dwelling house
or any separate portion
of a dwelling house that is a place of habitation.
That's the key difference there.
Wendlandt: If the defendant entered
into the garage,
didn't encounter anybody didn't arm himself
but then entered into the kitchen and found a knife.
And then went upstairs where people were sleeping
then that would be armed home invasion?
Greenbaum: No.
That wouldn't be an armed invasion because they-
Excuse me.
-: Well, I would say the bedroom
is not a separate portion of the
place of half of the portion of the living quarters
of the house, that other portion.
Wendlandt: Why? How do we draw that line?
-: I think it would be,
that's a difficulty,
but I think that, it's almost a sort of,
your honor, it's almost a story
of a common sense distinction that you have to
draw the line somewhere.
And it may be instances where a bedroom might be
considered a separate portion of a dwelling house.
But in this particular case, I think the line
can be clearly seen.
You've got a garage.
That's not typically part of a dwelling
of where people live.
It might be.
And they might be an instance where it is a home invasion
but you have separate, a separate portion
of this larger concept of dwelling house that we clearly
understand might be a place of habitation.
And in this case, is the place of habitation
and the defendants now have a reason to believe
someone's entering.
If I, as a matter of counter example-
-: Attorney Greenbaum, let me ask you
a quick question before you go on.
I want to sure, I heard you, I think you did say
that the garage generally is part of the dwelling place.
Is that right?
-: Garage is part of the dwelling house
and could be part of the dwelling place.
Yes.
-: The garage could be, but you're saying
that in this particular case, under these facts,
it's not?
-: No, no, I'm not saying it's not.
I'm saying it's not that,
I'm saying, I guess the difficulty the judge had
and the difficulty the courts had with this,
I'm not suggesting that because they,
that the dwelling house is some,
that the garage is all that important.
What's important is did the defendants armed themselves
when that requisite knowledge, the defendant, in this case
before they entered a portion
of the dwelling that they know to be a place of habitation.
That is a separate portion, this place of habitation.
If I could offer an example, can I get there?
If we look back and goes off that case where...
-: Hold on, I think you have a question here, you might
-: I'm sorry. I'm sorry.
-: My memory is, and you'll know
that we have statutes that's, that specifically
address arming themselves therein, correct?
-: That's, this is like a boy, do it?
-: In fact burglary statute that you compare to
discusses that partly.
-: Yes, yeah.
-: It takes just weapons hypothetical into account.
Some of those other statutes where someone grabs a knife
and we penalize those unlike this statute.
Correct? So are we supposed to draw a distinction between
statutes that have specific language and those that do not?
-: What's the issue here
I don't think is the armed they're or not
the issue where I agree that this statute does
not penalize someone who arms themselves
inside the dwelling place of another.
-: Would they should sound like the charge was wrong?
-: How so? No.
I don't believe so.
-: You're running up against a huge amount
of case law that we got interpreting the burglary statute
and even cases like Doucet which
say that the same reasoning should apply
in the armed home invasion context too, right?
And to add to it
by making you are protected.
I mean, we're concerned about the danger
to people when someone invade where they live, right?
And you protect your garage.
If I hear someone in my garage,
I may go out and check, right?
To see if there's a burglar.
Which means I may be exposed to danger that way.
So that is why we broadly interpret the statute
is protecting the whole dwelling area.
Right?
-: And I understand that.
And if you go into that garage
and that you're assaulted in there
and you satisfied the knowledge zones
that would also be armed home.
-: But you can't have it both ways.
Can you?
Because we're saying, Ruiz says that
if you arm yourself within the dwelling, right,
it's not you're not,
you're not, you don't violate the statute, right?
And if the dwelling house includes the garage
and you armed yourself in the garage, so weird case
because it narrows liability rather than broadens it.
-: But let me,
let me suggest,
I don't believe you're stuck in
and it's hard to find a, in other examples, but let me go.
I wanted to mention the gold of situation.
Where this court found that a burglar,
an intruder had gone into an apartment
and then came out into the,
was encountered by the apartment dweller
in the hallway and was assaulted
with the gun that, this court,
what was actively appeals court tell that
the common hallway is deemed to
be part of the dwelling house.
And that's under burglary.
Let me oppose the, and I normally it's this court
that opposes hypotheticals.
As soon that case is turned around
and a thief who's intending to
steal these paintings.
And this defendant's, victim's apartment, first breaks
into the common hallway.
He approaches the apartment that he intends to steal from
hoping no one's there
and he hears music or sound
or light, and has reasonably know if someone's in there.
And out in the common hallway, which is part
of the dwelling house, but isn't the apartment,
grabs a baseball bat and then breaks through the door
with a baseball bat and uses assaults that
why I have to believe the legislature,
I have to believe.
Excuse me?
-: That is our case, but-
-: I have to believe the legislature would have intended
and the language permits this court to interpret
that statute.
Just say that's an armed home invasion.
-: But it's an armed herewith.
Lowy: Why isn't it that they-
Go ahead justice Kafker
Kafker: No, no, no. Go ahead justice Lowy, go ahead.
-: Well, I think the more premise
and this is ultimately going to get that, get to the issue
of what happens that re-sentencing, if we disagree with you.
This is a terrible case chief.
Agostini made it clear at sentencing
with what he had to say, how serious this is.
And your hypothetical is serious.
But as justice Gaziano just mentioned,
this is something to address a serious case.
There's an armed burglary that has a serious maximum penalty
and a mandatory minimum.
And maybe that gets to the sentencing issue.
There is a
statute specifically
available to deal with this very serious situation
so that we do not need to ignore
all of our cases on what constitutes entering a dwelling.
-: I'm not suggesting that this court, again,
I am maybe this is, I'm never going to get
ask this conundrum that everybody seems to deal with it.
Chief: Actually, attorney Greenbaum, I'm going to ask you
to move on cause I think it's, the positions have been laid
out very well.
Yours has, and we've given you our thoughts about that.
Can we move on to the sentencing issue?
Cause I'm wondering if we were to say that
the defendant should be re-sentenced.
What would be your second sentencing recommendation
and why would it not be double jeopardy?
-: Well, I can't speak for my office yet.
I don't think we've discussed this
but let's, for the sake of argument
assume that our sentencing recommendation would be
the same sentence that ultimately came down
from the appellate division
that on one of the two remaining life felonies
either the armed burglary or the strong armed robbery
whichever has considered more serious that
the defendant received that same 30 to 35 year sentence.
And that the remaining sentence stay
at 10 to 15 concurrent.
-: You didn't get that.
He got, he got 15 years for each of the other two offenses.
-: And you got 30 to 35 on armed home invasion.
-: So he's got 30 to 35
on something that if we decide against you,
there's not sufficient evidence for.
Then we have two 15 year sentences
which judge Agostini applied consecutively.
Where we wouldn't have a problem
cause we'd have a 30 year sentence here.
From your perspective I take it.
If judge Agostini's solution were proper
and hadn't been reversed,
we'd have a 30 year sentence right?
-: Yes.
-: We don't, we got the appellate division
decided that was wrong and made them concurrent.
That creates a problem because we're going to either have to
double the sentence and does not run into all our
capping decisions on double jeopardy that would pay out.
-: I don't believe so.
The basic premise, but prior to Scott
and this court's acceptance of that statement and Scott
about where the term of time has expired,
the rule was in terms of in
and I don't think there's a real quarrel here
that this wasn't, the judge's intention was
an interdependent sentencing scheme.
A structure that imposed a serious amount
of time incarcerations of this defendant.
I don't think that's,
certainly that's the possibility
that that was the judge's intention.
And normally the judge under our case law,
where one of those convictions has been removed.
The judges provided the opportunity to
restructure his initial sentencing scheme.
His in this case, to meet his intent,
his original intentions and purposes,
which in this case was a lengthy period
of incarceration, more than 10 to 15 years.
And those cases also-
Lowy: (indistinct) it's been fully served,
even if the sentence has been fully served?
-: There's not until Scott is held.
Well, the sentence,
if it was the judges original disposition,
the sentence wouldn't have been fully served.
It would never been fully served
because they were on and after.
If you accept that sentence full,
the other problem that maybe more go at the bucket,
you get an absurd right.
What Commonwealth says is really an unfair
and almost a perverse result here.
Because the only difference here
between what's happening now,
12 almost 14 years after this trial.
And what might've happened 10 years ago is
that the 15 years on the 10 to 15 has run up.
Let's suppose this defendant had brought the same motion
for new trial five years ago.
And this court made a decision inside
of the home, evidence for home invasion was insufficient.
And then 10 to 15 year sentences,
on the other two life felonies had not expired.
There's nothing in there case law says
that it couldn't go back through the judge
and he could not impose a different sentence there
because the defendant didn't have any expectation.
-: There is case law,
the case law says we can't give a longer sentence
than he got.
Not just that, whether he fulfilled it.
We've said you can't make,
you can't give a longer sentence as well
in that same due process.
-: I'm not aware of a case that says that.
The case is stating aggregate punishment
can't exceed.
The aggregate punishment
is re-sentencing and see. The aggregate punishment-
-: Yeah, but the problem is that, by the way,
none of those cases involving insufficient evidence
conviction that's been thrown out.
That all of those cases deal with community parole, right?
A lifetime community parole.
This we're going to allow you to restructure a
sentence when to make it the length
of the period of time given for the conviction
that we've now found insufficient evidence for.
If that's we do, that would be
that's got to raise some double jeopardy issues.
Doesn't it?
-: Well, I suppose it
you can say it raises double jeopardy issues
but in the Commonwealth's position,
the defendant's only expectation of finality,
other is in the aggregate sentence.
And the court has said, the court has said
when that sentence structure is taken apart
by the move of one sentence,
the judge at least should be given the opportunity.
Let's suppose that at the end of the trial,
this motion had been made
insufficient home invasion evidence.
And the judge had agreed and was left
with those two life felonies.
From all appearances based
upon the judge's comments and the severity of the crime
regardless of the particular crime for which he was
the defendant was convicted.
From all appearances
the judge likely, or there's of any possibility.
And the judge would have sentenced this offender
to the same serious amount of time
on the remaining two life felonies in some form or another.
Chief: Attorney Greenbaum.
-: Yes. -: Thank you.
I understand why you say that it should be this way
and you're giving us hypotheticals of how, you know
it might've been different, but we have to deal
with what we have before us.
Thank you for your argument.
I'm gonna move on to attorney Smith.
-: Good morning.
May it please the court.
My name is Anders Smith
and I represent Mr. Tinsley.
Today, I'm asking this court to affirm judge Agostini's
grant on Mr. Tinsley's motion rule 30 motion.
And regarding the sentencing issue, we're simply asking
that the court affirm what it's already established.
In cases like Perio, Calm and Cole, Sallop and Scott.
And the defendant may not be re-sentenced
not a component sentence that has been completed.
-: Can I ask you a question one?
And I'm not sure we've, this is actually
in this case, but is there any argument
that the regular home invasion statute would be
a lesser included of this?
And that could just be the result
that the case the judge should have reduced the decision,
reduced the charge?
-: That's certainly hasn't been briefed.
-: I didn't think so.
Yeah. I was nevermind.
-: I'm a little, Mr. Smith. I'm troubled by the fact that,
that again the purpose of the burglary statute
and the purpose of the home invasion statutes
are a little different.
The burglary we're protecting property
and we've adopted a broad interpretation
of dwelling house to make sure
that the whole area is protected, right?
Then here, it's going to result
in a broad interpretation, it's going to result in
less protection for the people in the house
which seems sort of strange.
And just walk me through why that makes sense
because by broadly interpreting where you enter
we're now going to weave these people unprotected
from somebody who, you know
when they enter into the core of the house
they've armed themselves, knowing there are people in there.
-: You honor, I'm listening to the Commonwealth's argument.
The flip side to that argument,
the defendant's side to that argument was always suggested
in the first 15 minutes that the Commonwealth overcharged.
The words of the statute are clear.
Ruiz is clear,
if you enter the dwelling place
of another while armed, it's the third element of the crime.
-: So there's some logic to that.
Isn't there in that it demonstrates an intent.
If you go into the home
whether it's the garage that's attached
or any other part of the home that's, you know,
coherent structure.
If you go, if you enter with a weapon
there's a different intent than if you go in
and grab a weapon when you're in there, is that right?
-: That's certainly the rationale behind Ruiz
and the rationale.
Despite the Commonwealth's arguments
about legislative intent, that intent of bringing in weapon
into the garage or into an old house
or into the house at all.
It suggests an intent to harm
that grabbing the screwdriver
in the garage spontaneously may not.
-: I get that.
I get that, but this is different from Ruiz, right?
In Ruiz, you're inside the house.
And then you, you know, you're in a scuffle
and you pick something up and you hit, in that case
uses a crutch to hit the victim.
Here, these guys are piddling around in the garage
and then they get a weapon
and the place that where they're really going
to encounter people most likely.
They're armed when they enter into that.
It just, it is an hour,
I mean, you may be right
but it just doesn't produce a very protective result here.
And when clearly, when they're breaking into the house
the core part of the house
with the screwdriver.
-: Perhaps one point to think
about on this issue is
we're assuming that the screwdriver
was a weapon when it was grabbed
from the, wherever the box in the garage.
We don't know what they thought it was at the time
they grabbed it.
They might have been await open the door.
It may have been-
-: I take it though.
You're out of luck
if they're entering the garage with that screwdriver, right.
-: Under the curtilage, but sure.
I think the case will actually extends past the garage.
Could the curtilage being somewhat outside
of the house.
-: Right.
-: If they're in their car
with screwdrivers and walked down the driveway.
Yes, this is, we're not here right now.
It would not be annoyed.
-: If you're right, as it relates to the home invasion
and we move on to sentencing, then if
there's no re-sentencing, then the intent of judge Agostini
and indeed
the re-sentencing that took place
with the sentencing appeal isn't realized.
So let's say you had a situation where a defendant's
convicted of a rape of a child and indecent assault
and battery on a child.
And the judge imposes a lengthy sentence on the rape
of the child, but probation on the indecent a and b
because they want supervision from
an after the committed sentence.
It's a very serious case.
The rape gets reversed on an issue that has nothing to
do with the indecent a and b.
The judge who may have given an 18 to 20 on the rape,
can't do anything in re sentencing
and the result is a straight probation
on the indecent a and b.
-: If we have the same problem with double jeopardy, yes,
if I understood your question.
-: You understand it.
-: If I do that.
-: The result is a straight probationary sentence.
-: He sentence-
-: You understand the question you're on it.
-: He's sentenced on the rape and have probation afterwards.
-: I'm sorry?
-: I believe he could be re-sentenced on the indecent.
Had he completed the-
-: And what's the difference with this case?
That the sentence wrapped up?
-: Isn't that the sentence wrapped up.
-: So that's the only difference?
That they already wrapped up on that?
-: I refer your honor to the case of Cole.
I mean, there are a number of them in our brief
as well as the Commonwealth's brief.
-: And if they hadn't wrapped up
you say there could be a re-sentencing?
-: Well, I'll say this.
If we had the original sentencing,
the original sentences of judge Agostini,
then-
-: No, no, we're not.
That's just not the sentence.
That's not pertinent.
-: He has not completed his sentence.
He would be,
there would be the possibility of re-sentencing.
Yes.
-: Okay.
Gaziano: So the delay inures to your benefit?
-: If we were games,
if this was games in ship
I would've waited a little longer.
It's cutting it awfully close
but I would just point out one thing.
Judge Agostini was the trial judge on this case.
Which means that we have a trial judge
knowingly overturning
the anchor sentence
of a admittedly very difficult
and brutal case.
Because he understood
the evidence was insufficient.
So I understand it's, it may not be
what he intended when he originally sentenced Mr. Tinsley,
but that's what happens when the Commonwealth overcharges.
That's what happens when cases get overturned.
Now, certainly we're in a situation now where
the judge intended him to be found guilty of,
the judge accepted that he was found guilty
of home invasion and sentenced him accordingly.
So, yeah.
Chief: Can I ask a question about if there wasn't a,
if his sentence hadn't been overturned,
the defendant received 10 to 15
after the armed home invasion, which got taken out
but then was to get 10 to 15
on and after the 10 to 15 on the armed burglary, right?
-: That was the original sentence.
-: He was to get consecutive on each of the
each of those life felonies, right?
-: That's my recollection. Yes.
-: I think that's right.
And so if there hadn't been a re-sentencing,
he'd have just been reverted back
to the 10 to 15 on the armed burglary
and then have to do the consecutive 10 to 15
on the unarmed robbery.
-: As long as the Commonwealth accepted
that he was going to do 30 years instead of 60. Yes.
-: Got it.
-: So you agreed this all turns
on whether he's finished it or not.
Meaning,
meaning they could taken that 15 and converted in
with 30 if he had two days left on his sentence.
-: No, I still, I believe it's an open issue
and we argue it's an open issue.
When a component, well,
is this an interdependent sentencing scheme.
I think it's an open issue.
It's an open issue in footnote legal.
-: Well, that seems to be the weakest
part of your argument that it's not interdependent.
It seems clearly interdependent.
In fact, you know, the trial judge originally did them
as justice, chief justice, but just pointed out consecutive.
Then the appellate division does a concurrent
but they do a concurrent
because they have the other 30 out there
and they don't want to 45 years sentence or 60 years.
It's just, I,
it seems to me, it's clearly interdependent.
The question then is when you have a portion of this,
that cause we've never had a case where we have
insufficient evidence for the longest conviction, do we?
None of the cases involve that, right?
-: That's correct.
And it is my understanding of the case law.
It's an open issue.
So we did not concede this is an interdependent.
And I just, on that point-
-: It's a different,
I'm posing a different question.
I'm assuming it's interdependent.
I'm also assuming
that the trial judge had done two fifteens consecutively.
This isn't a big deal
but because the appellate division reduced
made them consecutive
with the thought in mind that
that's probably fair given that he's already got a 30
for the thing that we've now declared
while we may declare insufficient evidence for.
This gets really, really messy.
And you have this sort
of simple way that, well, he served it
so we're done, but that just seems kind of
not really where we should be focused on
whether he served this opposed to the sentences themselves
because then it becomes a rush
to the courthouse or a delay to the courthouse.
-: Isn't this just what happens when a case gets over
when a charge get over, it gets overturned.
There's always a degree of messiness
especially in a case that's been this long.
As I said earlier about the gamesmanship, my timing is bad.
I would, if I was gaming this, which obviously I didn't
I didn't file the original rule 30 motion.
-: My point is a little different though
both the appellate division and judge Agostini
thought a 30 year,
judge Agostini thought 60 years was appropriate.
The appellate division thought 30 years,
but it didn't think
through the possibility of this getting wiped out
or maybe it did, but now we have a 15 year sentence
when everyone thought 30 was appropriate.
-: Yes. But this gets back
to the issue of didn't they overcharge.
-: Well, no, because even under the other charges
they could've gotten 30 years for any of those, right?
-: Yes. But certainly the home invasion that was the more
the most serious of the three.
That was the lead charge.
If this was a burglary would have brought less time
if it was they believed it to be a burglary.
-: I mean, looking at the facts of what happened,
that's why they charge.
Gaziano: Agostini were given them
60 years on the burglary.
-: Well, it's a hypothetical but,
certainly the idea
that it was a home invasion up to the ante on the sentence.
I'm not sure how that can be denied.
-: We don't have to figure that out.
We have to figure out if
whether acting judge Agostini has an opportunity to
decide what we're wondering about.
And you are saying that as I hear it,
it depends on whether
or not somebody has wrapped up the sentence
upon which the indictments would have a re-sentencing.
-: Well, the double jeopardy clause is an inconvenience.
-: No, I know.
I just want to make sure I understand his decision.
It's a matter of timing.
It's justice Gaziano said. That's his decision.
-: I mean,
I think the premise
of much of the fourth, fifth and sixth
amendments is it's an inconvenience.
So certainly,
if the lead charge gets overturned,
the case law as documented
in our brief is clear about component sentences.
If he served the component sentence it's over.
-: Yeah. And I guess I go back to
my question that I said, well, it's not relevant, nevermind.
But what were they instructed
on a lesser included on the armed home invasion?
They weren't.
-: No,
and it, there are consequences to overcharging
and we're letting you, and unfortunately, attorney Greenbaum
and the Commonwealth is littered with the consequence of it.
But-
Chief: Does anyone have any further questions?
-: No. Thanks chief.
Chief: Thank you very much.
We appreciate it.
-: Thank you enjoy your day.