-: SJC 13131, Commonwealth versus Angel Acevedo.
(papers rustling)
-: Great.
Attorney Alkalay?
-: Yes, good morning, may I please the court.
Ira Alkalay for Angel Acevedo.
It's our position that Angel Acevedo
was deprived of his constitutional right
to present a complete defense
because the drugs and knives that were found
in the vehicle at the hospital,
directly after the shooting,
were evidence that there may have been something else
going on that evening.
-: But there was a finding,
that the amount of drugs was equivalent to personal use,
rather than distribution or dealing.
-: That was with regards to the marijuana.
But there was also a quantity of heroin
that was found in the pocket.
-: But I thought that was included
in that finding though, no?
-: It was packaged separately.
I believe each gram was packaged separately,
which would certainly show
that this was not for personal use, it was for distribution.
What happened here is that at the hospital,
not only were the drugs found in the car at some point,
but people began to gather from the south end
and some of them were known to the police,
some of the people who came to the hospital right away,
and some weren't.
At one point, one of the witnesses
or one of the individuals, rather,
was Watkins, who was the driver of the car,
was signaling to one of the other individuals,
not to answer the police's questions.
So they wanted to know what happened,
and the answer was don't talk.
And what happened directly after that,
was that there was sort of a call to retaliate
right there in front of several police officers.
Let's go.
It was very obvious.
And off they go.
There's no evidence whatsoever what happened next,
because the police apparently did nothing,
at least as far as the evidence goes.
They just watched them take off in their car,
off to retaliate,
And the defendant, Acevedo,
was actually around the city that evening
for at least a few hours.
He went to Shaw's to get juice with his girlfriend,
he went to his girlfriend's mother's house.
They were there till pretty much the middle of the night
on New Year's Eve.
So who did they go and retaliate against
if they knew that it was Acevedo,
which is supposed to be the inference.
What we argue,
is that there was another potentially relevant inference
that the jury could have plausibly found
that something else was going on that evening
and they were deprived of that opportunity to do that.
-: Can you help bridge
what might appear to be an analytical gap
between the knives and the guns
and a third party culprit defense?
-: Yes, so if I can just go through the process
of how it got there, first of all.
So the Commonwealth filed three separate motions.
One was to exclude third party culprit evidence.
One was to exclude the knives
and one was to exclude the drugs.
I should add that they rightly point out in their brief
that the opposition to the third party culprit evidence
does not appear to have been docketed,
although it was certainly argued pretrial.
And I believe the Commonwealth concedes
that it doesn't affect the standard of review,
which is constitutional in any case, as we argue.
But what happened is,
with the third party culprit evidence,
there was no opportunity to show
that anything else had happened
because the police did nothing.
With the knives,
the defense counsel argued
that the knives and the drugs should come in.
I'm not sure if that,
your question is how does this relate to third party versus?
-: I guess I'm asking you a very basic relevance question.
-: How are the knives relevant?
-: And the gun?
And drugs, how are they relevant
to a sort of undefined third party culprit defense
or even a Bowden defense?
-: Because all together,
taken as one piece of evidence,
if it were to be looked at that way,
there was not an opportunity
to develop that relevance at trial
because the police didn't do anything
as far as the evidence shows.
The knives didn't come in
and the drugs didn't come in.
And so the jury wasn't able to hear anything
that could have been developed by the defendant
to flesh out what else had possibly been, you know,
evidence of an alternative theory for the defense.
-: But what would it have been?
What's the materiality?
If the trial's going on right now
and you're at the sidebar
and you are seeking to offer
what's found in the victim's car,
what's your argument of the probativeness
for it to be admitted?
-: The probativeness of that,
is that here we have a bunch of guys
who are up to no good say that evening.
It's New Year's Eve, they're found with drugs
that show that some kind of drug sale
either had gone on or was going to go on.
They're from one part of New Bedford,
they're going to another part of New Bedford.
And there were plenty of people,
as was argued pre-trial by defense counsel
that were after them.
Some evidence did come in.
-: Was that specific as to this drug dispute
that they were being hunted by somebody?
-: Well, there was, I believe it's Lewis class
was held for on murder charges,
not long after all of this.
And there's.
-: That's the guy in the car, right?
-: Yes.
-: All right, so these drug dealers
that were after the people in the car,
do we know who they were?
-: No, because we were never allowed
to pursue that in any way.
We don't know who they were,
but at trial, but, but.
-: Okay, so, so let me finish.
Ira: Sorry.
-: So in every case where there's personal use
to a little bit more than personal use,
the judge tells the defense attorney,
go ahead and argue the drug dealers did it
as third party culprit.
-: I hear you, Your Honor.
But what I think, is my point.
-: I thought there was a case
that says that's not admissible.
-: But what's happening here, your Honor,
is not just that it is some, you know,
invisible third party.
What happened here is that the entire theory of defense
could have been different.
There was an alternative theory
that the jury could have found clause.
-: Defense attorney to show a nexus
between a threat to a victim and a third party.
-: There.
-: And other than speculation, essentially.
-: Well, I'm arguing
that it wouldn't have been entirely speculative
or it wouldn't have been speculative at all
because while there wasn't an an obvious third party,
there doesn't necessarily have to be,
this isn't what we're talking about.
We're talking about the entire defense
that there was something else going on that evening.
-: But don't you have to at least come forward
with some link between this hypothetical rival drug dealer,
I guess is what you're arguing
and the evidence that you're trying to bring in.
-: I think that the link is that,
there was a murder that took place not long afterwards
that in the Commonwealth's proffer anyway,
was said to be probably retaliatory
for the murder of Aaron Gant,
which is the victim in this case
and that all three of the other individuals
were indited for, were actually serving sentences, sorry.
-: So are you arguing that it was this teenager
who Class killed,
who is the third party?
I'm just trying to articulate,
get you to articulate some sort of proffer
as to the relevancy of this evidence.
-: Again, I think that.
-: And I think that's the Commonwealth's point is that,
the defendant never did.
-: The defendant never did?
-: Articulate a proffer as to the relevancy of this evidence.
-: The proffer that was articulated was at the argument,
which is in volume one, I think page 86, 96, around there.
That these were known to the police
and it was became obvious at trial
that the police did know all of these individuals,
or almost all of them,
that Rashaun Lewis,
who was said to be sort of at the heart
of the Commonwealth's case in one way or another,
although all of the testimony around him was very vague,
might have been at the hospital that night.
His name came up over and over and over and over
throughout the trial,
through Lorena Rivera's testimony in particular,
and through the jailhouse phone call as well.
We don't know anything else about him
because that's where it stopped.
That's where that whole line of defense stopped.
And the defense was unable to explore that at all
because none of that evidence was allowed to come in.
-: But isn't that your job,
the trial counsel's job to get discovery
and to marshal this evidence and convince the judge?
Other than what speculations, speculative evidence?
-: This is what I would argue,
that this is what he was trying to do at that point.
There was no other evidence forthcoming
for the Commonwealth,
and in particular about the fact
that the police didn't pursue anybody
that night at the hospital
as they were loudly calling for retaliation.
So we don't know.
-: That's the Bowden issue, which is I think
-: Correct. -: More generous to you
certainly than the third party corporate evidence.
-: Yes.
And again, but it does tie into the entire scenario
that night at the hospital.
-: Let me ask you the question again then,
just focused on Bowden, because you know,
I'm trying to, but I'm not getting the probativeness
of what's found in the victim's car
to a true third party culprit defense.
I think there's a conditional relevance
that it may not be missing,
but I'm not hearing or getting it.
Same question though.
What is the relevance,
that you've lost an opportunity,
that you keep on talking lost an opportunity
to present a defense
because what was found in the victim's car
wasn't admitted as it relates to Bowden.
-: Again, because of what happened in that entire scene.
So the drugs and the knives were not admitted.
More so, the fact that you have a real crowd of individuals,
most of them known to the police
announcing that they're about to commit a crime,
that would be the inference.
Let's go get them, let's go.
What are we waiting for?
-: Is that consistent with the government's theory
that there's this rival gang war going on?
-: And yet Mr. Acevedo is not hiding.
He's around all night
and they seem to know who they're after.
The defense should at least have an opportunity
to see if there was anything else to that.
-: But wouldn't there have been a private investigator hired
by the defense who could do that investigation also?
-: There wasn't a private investigator at that time.
And that would've been helpful.
But we have the facts that we have
and this is what happened.
-: We do.
And I guess even assuming you'd gotten that evidence in,
what difference would it have made in the scope of the case
or the law of homicide,
if we know, okay, there they're drug dealers
or there's a rival, so what?
-: Because in this case,
every piece of circumstantial evidence
had to do with anything but that.
So we have these videos
that purportedly show a white car
driving in different parts of New Bedford.
We have phone calls that happen
and phone calls that don't happen.
We have evidence going all the way back to high school
and the school resource officer
saying that Angel Acevedo was a bad kid
and caused fights at New Bedford High School
and therefore he was, you know,
enemies with all of these people and on and on and on.
So the only thing that was left for the defense
was to sort of go with the Commonwealth Siri
and try to pick it apart piece by piece,
when there was potentially other evidence
that the jury could have considered
and were not allowed to consider.
-: Did the jury hear about Class?
-: Yes.
-: And did they hear about Watkins arrest
with the Martha's Vineyard?
-: Yes, yes and so, they heard.
-: Did they hear about the other associates of the victim
coming to the hospital and saying, let's go?
-: Yes, they did.
-: [Justice Wendlandt] Okay. -: They did.
I think that with that, again,
there are two ways to look at it.
And the way that I think,
well the way that we look at it,
is that yes, there was evidence
that these guys were, you know, bad characters,
but there was no evidence of what they were doing that night
at the time of the shooting.
And that would've been very helpful,
especially given their call to retaliation
basically minutes later.
And then what didn't happen to Mr. Acevedo
who was just going around town all evening.
-: And you think the guns and the drugs
were critical to that ability
to make the argument under Bowden?
-: Yes because well, two things.
The drugs and the knives
and the fact that the police did not follow up
after hearing this announcement
of a crime about to be committed
by a bunch of people that they knew were drug dealers.
With that, I'll go to the second issue.
-: [Justice Wendlandt] Okay. -: Thank you.
So with the second issue, what we're discussing is
Mr. Bookman, the co-defendant,
had moved to Florida with his girlfriend, Alicia Ryder,
about eight months before the homicide
and they had been living there for a couple of months.
She saw him lift his shirt
or shirtless at a cookout,
very briefly glimpsed a gun in his waistband.
This gun, which she could barely describe.
It was really like.
-: The spiny thing could be a revolver, a revolver was used.
-: That's what the Commonwealth has argued.
Now, she first of all,
could barely describe the spiny thing.
It was really, those were the prosecutor's words.
-: Well, we're getting into the judge's discretion here.
Ira: Right, right? -: So we have a spiny thing,
a cowboy looking gun, a revolver is used,
and that's just within the judge's discretion at this point.
-: Well, first of all,
it was the remoteness of the time and place.
So the judge has to assume that this gun
has traveled 1500 miles, you know, one way or another.
And over half a year later,
this is a gun that's used, you know,
in this shooting.
Now, first of all, it's not an unusual gun.
Maybe if it was an unusual or rare type of weapon,
there might have been some heft to that argument.
But here you have actually, presumably, or arguably
from the Commonwealth's point of view, a revolver,
which is extremely common
as are the projectiles that are found in various places.
So to somehow connect that gun to Mr. Acevedo
versus just even arguably Mr. Bookman,
he's not holding the gun.
-: He has access to a revolver and a revolver was used.
-: That's the Commonwealth's argument.
And yet we have this,
this gun, there's no other evidence of the gun whatsoever
except for Alicia Ryder's momentary glance.
And she says herself in the testimony,
I don't know anything about guns.
The way that the prosecutor
got her to describe it was,
isn't it like the ones in the Cowboy and Indian movies,
which is, you know,
not likely that she even knew what those were
given her age and given the age of movies like that,
or how they're referenced.
-: She might be John Wayne fan, we don't know.
(laughing)
-: It's possible, but.
-: Didn't we also have Officer Morissette
showing her a photo?
-: Yes, he met with her and he showed her a photo.
I believe the evidence
was that the gun that he showed her was silver.
And she said that the gun that she saw was black.
Again, this is pretty vague.
This isn't, this is exactly like the gun I saw
in my boyfriend's waistband, that's it.
It was really again, just like the prosecutor's description
of her as he was examining her at trial,
very, very vague.
She said that the gun had a spiny thing.
Well, again, these were the prosecutor's words,
and every revolver has a spiny thing
and revolvers are quite common.
So there's nothing about this particular gun
that at that temporal distance, distance in time,
distance in the many, many months that had gone by
and that it was not seen with Acevedo.
So in a lot of the cases
where this type of evidence does come in,
there seems to be some other factor for its admissibility,
whether it's the defendant was the one with a gun,
there was other evidence of the defendant
committing the crime in some way.
The Andrade case, for example,
where the defendant is seen to be starting a shootout
that then leads,
well to the case that he's charged for, to that murder.
Here, we have none of those additional factors.
There's no eyewitness,
there's no testimony whatsoever
about my client with a gun at any time,
anywhere in his life.
And there is only this testimony
that is so far away and so long ago
that his co-defendant had a gun.
I don't think that this is enough
for that to have been admissible against my client.
And there were no limiting instructions of course.
Which is is also part of the problem.
Justice Gaziano: Was there a request?
-: There was a request,
the final instructions didn't go into this either.
So it's, there was no way for the jury to.
-: The counsel asked, I want a limited instruction
and what the judge say?
-: The judge declined to give limiting instructions, so.
If there's nothing further,
Could I go into the 33 E issue?
-: Yeah, we're gonna. -: Okay.
-: Rely on your brief. -: Okay.
-: Thank you. -: Thank you.
Thank you.
-: [Chief Justice Budd] Okay, Attorney Lee.
-: Good morning, may I please the court?
Mary Lee, Assistant District Attorney
from the Bristol District for the Commonwealth.
This is a first degree murder conviction
based on a theory of deliberate premeditation,
that was the only theory given to the jury.
And the judge correctly instructed
that it required a finding of intent to kill for malice
and no other, regarding deliberate premeditation,
which is correct.
Because there's plenary review,
I will try to answer questions on any topic
and otherwise I will follow the order of the briefs.
I'd like to make a correction
to something that was said in the previous argument
regarding Lewis class.
Certainly the jury heard Lewis Class
was one of the passengers in the victim's car,
but the jury did not hear
that he was currently incarcerated,
awaiting trial on a murder charge,
which was subsequent to the matter in this case,
that was discussed in pretrial matters.
Defense counsel was aware of it,
but that was not offered at trial.
The jury did hear,
through the phone call
between Mr. Acevedo and his friend Mr. Conrad,
it was a jail call.
The jury did hear that Aaron Watkins,
who was the driver of the victim's vehicle,
and Desmond Rodericks, who was in the victim's vehicle,
had been convicted on a large drug bust on Martha's Vineyard
and that they had been convicted and sentenced.
And during that phone call,
Mr. Acevedo and Mr. Conrad
were saying this was a subsequent offense
and that they were disappointed in the,
or expressed disappointment in the sentence they had gotten
on the subsequent offense
because there had been a prior,
they were saying he got more on the prior.
So the jury knew that two of the four people in the car
had been convicted on a big drug bust
and it wasn't their first conviction.
Also, I wanna make clear,
there were no guns in the victim's car.
What's in the victim's car is two knives,
in the folded position, one's in the car,
one's on the ground near the car, at the hospital.
There's 1.02 ounce of marijuana.
Lewis Class had been arrested for possession for that,
the jury did not hear
that Lewis Class had been arrested
for the possession of that.
And they didn't hear
that there was that amount of marijuana in the car.
And then the victim's pocket is 10 grams,
just over 10 grams of suspected heroin.
And so the jury didn't hear about the knives,
the marijuana or the heroin,
but they did hear about Watkins and Rodericks
having been convicted at a large drug bust
on the vineyard and that it wasn't their first time.
They also heard about a compatriot
or someone in the neighborhood of the South Side,
which is the victim's side,
that's Rashaun Lewis, he's the person Lorena Rivera,
Mr. Acevedo's girlfriend said had,
was responsible for shooting Mr. Acevedo in the face
and Ms. Rivera in the leg
and shooting up Mr. Acevedo's car
so it could no longer be used.
That's the person, Rashaun Lewis is the person,
she suspected of that.
And so the jury heard that Rashaun Lewis
had had some convictions and that was actually argued
in Mr. Acevedo's closing argument,
about Rashaun Lewis.
But in the closing argument,
Mr. Acevedo did not raise the convictions,
the drug convictions,
for Mr. Watkins and Mr. Rodericks.
-: So your argument sort of combines
the lack of relevance on Bowden.
And even if it weren't relevant,
why there wouldn't have been any prejudice.
You sort of combined those two things
in your presentation.
But the part about the impact of the exclusion,
'cause there's this other evidence,
actually helps the defendant's argument on relevance
because the knives and the drugs
would augment everything that you say
didn't cause prejudice.
So with that too long preparatory comment,
my question is,
why isn't it probative, for all the reasons
that you've just given,
that there's knives and drugs in the car
to suggest in this atmosphere and hospital
and the nature of the entire motive
of the Commonwealth,
that the police should have investigated
whether somebody else had a motive to commit this killing?
-: So the first problem for the defendant
is that the third party culprit defense was waived
and they had the evidence there
that they could have readdressed,
they had the convictions of Rodericks and Watkins
as well as the Rashaun Lewis, who wasn't in the car,
but is part of that group.
They had those materials to argue if they wanted
and if they had wanted to re-raise or reopen the issue
of third party culprit, they could have.
But when asked about third party culprit,
because of the Commonwealth's motion in limine,
Mr. Acevedo's attorney asserted,
"I don't intend on offering
any third party culprit evidence."
And that's a transcript, 110.
Similarly, the co-defendant said,
"I can't imagine," which is 110 to 111.
Mr. Acevedo did argue Bowden in his closing argument.
He noted that the police did all this investigation
and just came up with irrelevant evidence.
He noted that Rashaun Lewis was in jail on gun charges,
and that's at transcript 17,
pages seven to eight and then 18.
He could have pointed out Watkins and Rodericks
and didn't do that.
He could have asked the judge,
"Hey, can we redress readdress that?"
-: All right, it's a completely fair point
to address my question and say,
"See, look, it doesn't matter.
There's no substantial likelihood."
But I'm one step before,
which is understanding the standard of review.
Is the defendant correct
that the knives and the drugs
would have been probative of the Bowden defense?
-: And I would suggest no,
because the knives haven't shown to be relevant at all.
This is a car pulling up behind Watkins car, in traffic,
on the street where Class and Watkins lived
and firing into the back of the car
and the victim's killed instantly.
There's no waving of knives, there's no drug deal,
there's no evidence of anybody else even in the area.
And under Commonwealth versus Andrade
on third party culprit, that doesn't help,
But you can't raise a third party culprit
just saying maybe there are rival drug dealers out there,
that's not sufficient.
And in terms of Bowden,
the police did collect all this evidence,
but there's nothing to link it up to the crime.
As to the knives, Mr. Acevedo's attorney was asked,
you know, what's the connection?
And he said, "My only argument
is that if the victim's car was searched,
there should be just, you know,
what was in the car when it was searched?"
That's said transcript three, page 253.
Co-counsel said, "I don't know how it's connected."
And then in terms of the drugs,
the argument is and again, somebody has a car,
if they have a quantity of drugs in that car,
the Commonwealth is saying
that they're being killed for some neighborhood affiliation.
You have a car, that car contains drugs,
the victim has drugs on them, that's a matter of fact.
There's no reason to keep it out.
That's not any kind of,
I mean, it's not a bad act, it's what they find.
And that's at transcript 196.
He's not linking it up.
So the judge says, "I'm allowing that
until such time as counsel can show relation to the murder."
And that's the defendant's record appendix page 24.
That's how it comes out on the docket.
This is allowing the Commonwealth's motion
without prejudice, the defendant has to link it up
and that doesn't link it up.
Their argument at trial is,
we think you should admit it because it was there.
Just being there is sufficient, according to the defendant.
And that's not correct for third party culprit
under Acevedo, I'm sorry, under Andrade.
And that's not correct for Bowden because what does it show?
They couldn't even enunciate it in their pretrial proffer,
which they're required to do.
The same with the knives.
And so I would suggest that the trial judge was correct
in making those findings
and gave counsel plenty of time to make the proffer.
And there's cumulative evidence
showing there are drug dealers in the car.
It has made no difference whatsoever.
Whether you review this on that it is waived,
that it's substantial likelihood
or whether you take the defendant's argument
that I've just read to you as preserving this issue
and you're looking at under wardsworth,
that's not going to have any effect on the jury
because the jury heard evidence.
There are two drug dealers in the car,
which is far more probative than 1.02 ounce of marijuana
after the 2008 deregulation,
at a trial in 2018,
which is after the 2016 legalization of one ounce.
It is New Year's Eve with four friends in the car,
the same with 10 grams of heroin in the victim's pocket.
You have to show, it's like a separate trial.
The defendant would have to show that gives rise
to an inference of distribution
when you're sitting in a car with four friends
on New Year's Eve and 10 grams in the pocket.
10 grams is less than half an ounce.
I'm sorry, this is just over 10 grams,
but it's less than half an ounce.
That's not trafficking weight.
Trafficking weight is 18 grams.
That evidence that's in the car
doesn't show that people are drug dealing.
You might draw an inference of that,
but that's gonna cause a trial within a trial.
And the judge in her discretion
doesn't have to let that happen.
She gave them an opportunity to present their case on this
and their only argument at trial was because it was there.
Nobody stopped them from arguing Bowden as I said,
counsel did so,
and I would suggest to the court
that the defendant's proffer was insufficient.
This very experienced judge, I think I've already said,
Judge DePuis carefully considered these things.
She correctly stated the law on it.
She knew she had discretion in some areas
and so she properly made her judgements
and those are correct judgements.
I'm happy to take any more questions
regarding the drugs and knives in and around the car,
on the victim's person,
otherwise I'll move to Bookman's revolver.
So this is a joint venture case.
Mr. Acevedo had been subject of two serious shootings.
In June of 2015, he had been shot in the leg
while he was in his girlfriend's car
and he gave various stories about it,
but it appears that it was a drive-by shooting,
surprise from behind, he gets shot in the leg.
Meanwhile, June 2014, Bookman's girlfriend's house
had been shot up while he was there.
In October, 2015, her house gets shot up again.
That's Alicia Ryder, the girl with the revolver description.
And in October 2015,
Mr. Acevedo has a far more serious drive-by shooting
also from behind.
Also, while he is in a car, this time it's his car,
his car is destroyed.
His girlfriend, I think a relative
said he couldn't use it anymore.
His girlfriend's shot in the leg, he gets shot in the face,
his jaw has to be wired shut
and it's wired shut for some time.
At the hospital, he says, "I know who did it,
but I'm not going to the police."
He tells the medical personnel that,
which is consistent with this senseless neighborhood war
in New Bedford, which is very,
testimony is a very small area,
but it has three distinct neighborhoods,
two of which have had long going disputes since the 1990s,
which nobody can really point to how it began, it just is.
And Mr. Acevedo and Mr. Bookman live on the West Side
and now Mr. Bookman also was experiencing being tracked
or stared down.
He was in a restaurant
and the victim himself came into the restaurant,
stared them down.
He's like, don't pay any attention.
He's with his girlfriend.
And then their car is driving by the house,
the girlfriend's house,
which has been shot up twice
and the car is driving near where she works.
And when they're walking down the street,
the car slows down next to him
and sometimes it's the victim's driving.
And so that's what's going on with Bookman.
Mr. Bookman, I'm sorry.
Mr. Acevedo has the first shooting in June,
October 2015, the more serious shooting.
He feels very badly, he thinks he's the target
and that his girlfriend got hurt because of him,
because of the position he put her in.
She's the one who says it was Rashaun Lewis.
But when she's testifying,
she said that she couldn't remember
or didn't think she'd ever told Mr. Acevedo
that it was Rashaun Lewis.
Rashaun Lewis, like the victim, like Aaron Watkins,
like the group that was staring down, Mr. Bookman,
are all from the South Side.
And Mr. Acevedo and Mr. Bookman are from the West Side.
In addition to that, Mr. Acevedo has a longstanding dispute
with Aaron Watkins.
Aaron Watkins is the driver of the maroon Mercedes SUV
that the victim is sitting in when he gets shot to death.
So that's the background of it.
And what we have here is this joint venture
where Mr. Acevedo goes and rents a car
from his sister's boyfriend in Maine.
And it's the white Ford Fusion.
It's distinctive for its sunroof
and it's aftermarket black rims on the wheels,
which is unfortunate for him
because it makes it far easier to track it on security video
throughout the city after the murder.
So he gets that car on Christmas Eve
and a week later this incident happens.
And what we have for the evidence
is that he's with his girlfriend's family
celebrating New Year's Eve
and he says he has to get a haircut.
And right after the haircut he calls Bookman,
5:21, 5:26, by 6:55, they're together.
Bookman's in the passenger seat,
Acevedo's in the driver's seat.
From the ballistics evidence,
it looks like the passenger is the shooter,
that's what the Commonwealth argued in its closing,
because there's gunshot residue
on the A pillar passenger side near the mirror,
which is in reach of the passenger.
And then they drive south.
They both have parties to be at,
they're supposed to both be in the west end at the parties,
but they stop at Silva's, which is in the west end.
And then the security video maps out their chart
as they go straight down into the city.
A police officer drove that route from 7:02 to 7:18,
Silva's, the suspected route,
to the area where the shooting is
and it's about 40 miles an hour,
not leaving a lot of room for stops.
Nor do we see the car stop anywhere
on the security video we have.
So what we have is Acevedo has the car,
makes the call, is together with Bookman,
Bookman's got a gun, they drive straight into, you know,
for lack of a better word, enemy territory.
-: Well, I guess I-
-: So he picked up the gunman,
is why it's irrelevant against him.
-: I understand then.
And your very careful description
of the evidence through joint venture
probably makes my question easy enough to recognize,
why it probably wouldn't have made a difference.
And of course nothing's easier
than quarterbacking on Monday morning.
But wouldn't it have been better
for the judge to have given a instruction that if you find,
because the jury does have to independently find
joint venture in certain circumstances.
If you find there's a joint venture,
you can consider the gun against this defendant.
In a perfect world,
that would've been the instruction, right?
-: Sure.
So yeah, I agree.
We can look back and say,
oh hey, here's a better instruction
that could have been done.
But that's-
-: There wasn't, I mean it's not that that one's better,
it's just that the gun came in against the defendant
without eliminating instruction.
-: So this is true.
I would state this,
the defendant is correct that the issue is preserved
on the request for an instruction
that it not be used at all against Mr. Acevedo.
And that would've been incorrect
to give the instruction for it to be used
against Acevedo because it's a joint venture.
The evidence shows Acevedo planned this out,
he went and got the car,
then he goes and picks up the gunman and the gunman fires.
So it can be used against him.
And yes, she did give a joint venture instruction.
And yes, that would've been helpful
to have that instruction.
However, the issue is not preserved on propensity.
This judge gave many instructions on propensity
so that Acevedo's history could not be used against him.
And she gave many instructions for Mr. Bookman,
that Acevedo's statements
could not be used against Mr. Bookman.
She was very open to giving those instructions.
And when this came up, she specifically asked,
you know, do you want an instruction?
And the defendant said, no.
I said, I want an instruction on,
that this can't be used against Acevedo.
And she says a joint venture, I'm not gonna do that.
I'll entertain any other instructions.
And he did not make a request for that instruction
at that time, that's transcript 12 pages 142 to 144.
And then after the judge's instructions,
there's no objection of any kind
for the instruction you're suggesting
or the instruction on propensity.
-: And this isn't the type of case
where knowledge of a firearm
has to be separately instructed as well, correct?
-: No, because it's murder.
The judge did give that instruction
because it's unlawful possession of a firearm charge.
So she gave that, she said,
"When you have to prove the person knows about the firearm,
then you have to have that and that."
-: And as to Acevedo, the-
-: It was for both of them.
They both had unlawful possession of firearm
and the jury could not have convicted them
for unlawful possession of a firearm
based on the Florida incident
because her instruction on that ground
required them to make a finding
that the possession was in a car,
it's in a vehicle throughout,
the Florida incident was at a cookout and at home
and not in a car at all, so they couldn't have used.
-: You'll excuse this fastball down the middle.
But you can see it's not manifestly unreasonable
at that point if the gun's coming in
to not request instruction.
Well, before you consider this gun,
think about whether or not there's a joint venture
and really sort of tying in tightly
its relevance to the theory.
I mean that that could be a reasonable defense
not to request it in that context.
-: It could be,
but we don't have any post-conviction motions
talking about what the strategy was on this.
I would note under Commonwealth versus McGee,
when the gun is a means to commit the crime,
the propensity instruction for firearm isn't required.
And in this case, Alicia Ryder's testimony
makes it look like it's a revolver.
She's not a gun expert by any sense,
but she testified in a manner that's consistent with that.
And the evidence, the ballistics evidence
suggested very strongly that a revolver
was used in this case.
And so this could be the means to commit the crime.
And so we do see evidence of deliberate premeditation
that Mr. Acevedo went and got the car,
went and got the gunman, drove down the road
right into enemy territory and fired from behind
in the same manner that he had been fired on from behind
on two different occasions.
If there are no further questions,
I would ask this court to affirm the convictions
in this case, thank you.