-: SJC 13134 Commonwealth versus Glenn Armstrong.
-: Attorney Smith, whenever you're ready.
-: Good morning.
-: [Chief Justice Budd] Good morning.
-: May it please the court,
my name is Sean Smith and I represent Mr. Glenn Armstrong.
For this murder appeal, I have three issues
I'd like to discuss.
Each issue I believe is important in itself,
but I think given the unique nature of this case,
I think greater importance for each issue is earned.
In particular, this is a alleged murder
of a father by his son,
where there is no percipient witness, no credible motive,
and far from overwhelming evidence.
The first issue I'd like to discuss is the impairment issue,
the issue of jury instruction on mental impairment.
This, at the end of the evidence the defense moved
for an instruction on mental impairment.
The judge denied it.
-: But there's absolutely no expert evidence submitted.
And also there's a motion in limine by defense counsel
to preclude mental health evidence,
right at the beginning of the trial.
And we've got no ineffective assistance claim here.
I'm confused of what you're doing.
-: Well, let me address all of that.
I agree with you wholeheartedly this issue is a uniquely,
it's in a unique posture for sure.
And this is a situation where a strategic decision was made
by defense counsel not to go forward
with a mental health claim.
-: Can I ask on that?
'Cause the record is slim here.
I only have the motion in limine,
which doesn't explain the basis for it.
Can we discern from this record
whether the defendant himself decided not to introduce
his mental health into the case?
-: Well, I can tell you in the-
-: I'm interested what the record shows.
-: The record that was provided,
if you look to the motion to suppress,
there is some discussion prior to the actual hearing itself
where defense counsel suggests he has two possible theories
that he may be advancing for trial,
one of which is the criminal responsibility issue.
He says, however, in that statement,
or in his discussion with the court,
his client, he believes, the defendant, he believes,
does not wish him to do so.
There's not much beyond that.
I can tell, Your Honor, I've investigated this issue
in part of my preparation for this case.
But I believe it was a strategic decision
based on the situation given to trial counsel
that he needed to go forward, he could not go forward with
that type of case. -: Which is the
defendant's option. -: Hmm?
-: It's the defendant's option. -: I believe that is true.
-: And case law says that. -: Exactly.
So, trial counsel's hindered by that.
Trial counsel clearly came to an agreement-
-: And that's what you investigated and came up short on.
-: Exactly.
Trial counsel made an effort to exclude mental health issues
as you rightly note with Commonwealth.
And Commonwealth was rightly surprised
by the end of the evidence, we had an agreement.
We didn't put forward any evidence of mental health crisis
or anything that could be used in that case.
That was brought to the judge's attention
and I think influenced the trial judge's decision.
However, I can tell you that I do believe
there was substantial evidence, significant evidence
of mental health crisis in large part
beyond the photographs, video, but the testimony
of the New Jersey officers.
-: I mean we have the New Jersey's officers, you know,
one, the motion to suppress is based on the caretaking.
Right? And, you know, he's acting quite strangely.
I just don't know if you can have it both ways here. Right?
'Cause the officers get to testify what he was doing
and why they came there at the request of the hotel manager
and what he's up to.
But if defense counsel has moved to exclude
any evidence on mental health,
I just don't know how it can possibly be an error
not to give it based on that limited amount of testimony
from the police officers.
-: Well, just to be clear, from my perspective,
the error is in the trial judge's decision based on
that the issue is not a live issue
and that there is no expert opinion.
The case law I believe is not that.
The case law says that the evidence must be significant
and it must be critical to the defense.
-: Was it a misstatement of law when the judge said,
there's no expert testimony? -: Exactly.
-: 'Cause lay testimony can't support the instruction.
-: Right. -: Just as it would NGI, right?
-: Exactly.
And that's my position why there is an error.
-: So, when the trial judge said, I'm not giving it
because of the lack of expert testimony, that was an error.
-: Exactly.
That the issue was not a live issue
and there was no expert-
-: The definition is a live issue but the saying
it's preclusive because of the lack of expert
it was in error? -: Exactly.
-: Does he go that far?
Does the trial judge say that exactly?
-: Yes.
He says exactly that.
He says exactly that, "There's no expert opinion."
He also says about the live issue,
it's not clear what live issue means.
-: But we could look at it and see whether or not
there was a sufficient, whether the evidence was sufficient,
substantial enough to raise an issue of mitigation.
-: Right.
Because this is a prejudicial error standard,
because there was an objection,
I would say there is clear error in the judge's decision
at that point using that as the rule.
The question then becomes one of prejudice.
-: But that whether or not it was a live issue
or whether or not you need expert testimony, which?
Attorney Smith: I would say both.
-: Well, the expert testimony, I think case law will show,
is clearly erroneous.
It was an improper basis
for which not to allow the instruction.
But if it's not really a live issue
and in fact there was a motion in limine
to exclude such evidence,
why would that be prejudicial to the defendant?
-: Part of it is my confusion over the understanding
of what it means to be a live issue.
My take on what a live issue would be
is whether or not it's in debate.
Whether both sides are fighting about whether there is
evidence of mental impairment.
In this case, I don't believe that's the standard.
I think the standard is whether
there's evidence significant of it.
I think both parties, both the Commonwealth
and the defense counsel-
-: All right, so really it's to Justice Gaziano's point
whether or not these officers from New,
was it New Jersey? -: Yes.
-: Gave sufficient to raise an issue.
-: Right. -: I won't say live issue.
An issue as to whether the defendant was mentally impaired
at the time of the murder.
-: I think that's right. I think that's the issue.
I mean, whether or not it's crucial to the defense
as rightly noted, this is an issue that had been
worked out beforehand to perhaps exclude
this type of evidence.
-: Yeah, I mean you can see what the judge is doing
because the Commonwealth had they known,
would've hired their own expert, right?
So, he's basically saying, you set the parameters here,
now you're basically asking for an instruction
and you hamstrung the Commonwealth
'cause you didn't raise it in this fashion.
But be that as it may, is it basically a situation
where the Commonwealth can't have its cake and eat it.
So, they can't say that the New Jersey evidence
was so bizarre to us it invoked the caretaking function
and then say that same evidence wasn't evidence
of behavior suggesting mental illness.
-: I mean there's a justice issue for both sides.
Both in terms of the defense counsel saying,
I'd like to have this restricted
and then the Commonwealth having its cake and eating it too.
I would- -: And we have to look at
the entirety of the record no matter what
side deals are made, essentially.
-: But, you know, in a case where there's no credible motive,
where there isn't overwhelming evidence
against an individual-
Justice Kafker: There's a lot of evidence here.
-: But not as to the murder itself.
The fingerprint, which I'm happy to get to,
is by far the most compelling.
-: Oh, he's in the house.
He's run off with his dad's truck
and his dad doesn't let him drive the truck.
He doesn't let anybody drive the truck in the family.
They have a history of strained relationships.
He's runaway to Virginia right after the murder.
There's a lot here.
I mean, sufficiency I'm not sure
is gonna be your best bet here.
-: Well, I understand that point.
I do think, and I believe-
-: Before you leave mental health though, can I go back?
'Cause what I worry about, based on what you submitted
in the motion for new trial or whoever did the motion
for new trial, we've got all this evidence
that he's schizophrenic, he's been hospitalized five times.
And you've also got a 33E issue here.
Can we decide whether he was competent enough
to make the choice not to introduce his mental health
or do we have to send that back?
-: I think that is a very challenging question
and in investigating the question
of ineffective assistance of counsel-
-: Well, you don't raise ineffective assistance here.
-: That's right, I don't.
And in large part is it's the culmination
of my own investigation into this case.
I believe what had been mentioned earlier
with Justice Gaziano's point that the case law has it
where the defendant ultimately has to make
some type of determination and I agree with you, competency.
-: If he can make the determination.
-: If he can.
I agree with you.
This is a sticky situation for me.
I am not sure the answer to that.
I mean, ultimately competency's such a fluid situation,
it can appear and disappear-
-: But you're asking- -: But were you talking
about competency or mental impairment for the homicide?
-: Well, separately, I think just in terms of the competency,
whether or not he could make a decision,
an informed and knowledgeable decision
whether or not to go forward on a mental
and a criminal responsibility defense.
I think that's a very challenging situation.
But in terms of the mental impairment,
I believe the fluid nature of that...
I mean, maybe I misunderstand the question.
-: Well, you were answering, I think you were answering
Justice Kafker and I just was wondering
what specifically you were focused on.
Whether you were focused on competency to go to trial
or whether you were, but you're saying it's competency
to make that determination, that single determination.
Is that a standard that we use,
competency to make one determination?
Justice Gaziano: It's the stuff before us though, right?
-: It's not before you. -: Okay.
-: It is the competency issue in investigating
whether or not he was in a position
to make that determination.
I believe that trial counsel acted correctly
in making the determination.
So, trial counsel, I think is ultimately
in the best position to be able to make the determination
whether or not defendant's able to act
in a competent manner.
I believe that trial counsel determined based on that,
that a decision had been made and they moved forward with it
in the way they did.
-: Okay. -: But we still have this
on a 33E basis as far as- -: Yes.
-: your argument about his mental health history,
which is open to us on 33E. -: Yes.
And I think there, if I get to that, I mean,
this is a person with an extremely long history.
Clearly this has been the preference of trial counsel
to move forward with it on this case
because of his prior history.
He's an individual who has,
and this floods the entire case in terms of the atmosphere
of the case, the nature of the crime, the 20 years lost
where the father and son had not seen each other,
the recent comeback, the death of the mother.
All of this comes into play with his own mental illness
and clearly this is somebody who's troubled.
-: Can I ask you about the fingerprint issue-
-: Yes, please. -: Before you have to depart?
-: We recently in Cauliffe versus Ronkey talked about
this level of certainty and what magic words are required,
and in Ronkey not required.
-: How does that play into your objection
to the scientific certainty in this case?
-: I don't think it's a question of magic words.
In fact, you'll see in the transcript,
he uses the word opinion.
And I think that's what we want the fingerprint expert to do
is talk about it in terms of a fingerprint.
Robertson there's the standard with the fingerprint science.
-: Because the only case we've ever mandated language
is the firearm case.
And we did that because it was very controversial.
-: Right. -: It was kind of
a middle ground that we took.
But we've never said when an expert proffers an opinion
what the words the expert has to say.
We actually held that in Ronkey.
-: No, and I agree with that.
The Robertson case in terms of not being retroactive,
I fully accept all of that.
The issue though is it's not the magic words,
it's the nature in which he described his science.
And I put this in a couple different places,
but most importantly on, and if I could,
volume three of page 127, where he talks about
it's the ACE-V leads to an objective conclusion
based on 120 years worth of fingerprint science.
-: Isn't that a matter of cross-examination
at that point though?
-: This is part of the cross-examination.
So, this is elicited during the cross-examination.
-: Right, I mean, teasing this out about whether or not
it's a science or more subjective than than we would like.
-: No, I agree,
but I think because of the nature of fingerprint science
and the extreme prejudice that these two fingerprints
on the bag on the head have for this case,
the fact that it was able to come in as this very solid,
beyond solid, this is 120 years
worth of scientific experience, individualized.
There's such a debate between both
the defense counsel's expert and his expert
about whether you can even get to the level of comparison.
There's no question that the National Academy of Science,
the Gambora case, they talk about it's ACE and V,
all levels of the analysis of fingerprint science.
They're all positions of infallibility.
But the way the evidence comes in,
and is allowed to come in at this case
is that once you're able to get to the level of comparison,
you have enough information to make comparison,
at that point it's an objective conclusion.
At that point it's 120 years worth of science coming at it.
And at that point it's basically infallible.
-: And there was no objection here?
-: There's no objection.
So the standard is more difficult for defense.
If there's no further questions on fingerprint,
I'll just quickly jump to the caretaker function.
This was a...I'm sorry.
-: So, the 33E review you're asking us to do,
okay, this is a case...
So, we've got the mental health evidence in
through the motion for a new trial and there's a lot of it.
Other than that, what else do we have to drop this?
We would be doing a 33E reduction here based on
really exclusively on the mental health evidence
that your client didn't want included in the trial. Right?
-: That's 100% correct, yeah, okay.
-: I'm just trying to get a sense 'cause that's,
that's gonna be interesting.
-: I understand the challenge of that.
I would also point Your Honor to the evidence
that came in at trial about the relationships,
the 20 years separation, the mother's passing.
a seeming reconnection.
And I understand that the motive is
he wanted to take the truck, but the level of violence
and the nature of the crime itself,
it just makes that motive, something else is going on.
And I would put to your honors that that's where I'm trying
to address that issue beyond is in the 33E.
I'll just quickly jump to the caretaker function.
This is a matter where his motion to suppress
denied by the motion judge
and the motion judge wrote a well-reasoned decision
and clearly substantial deference to the motion judge.
And she's correct in the sense that
we want our law enforcement officers
to be able to render assistance.
We want our law officers to be able to,
if they see something that may be of concern
to the individual for their health benefit
or the community at large,
we want them to be able to intervene.
However, at this point, in this situation
at the moment where they told Mr. Armstrong to take a seat,
when they gave him that order,
that strongly persuasive suggestion, he was seized,
and their intent, despite saying that they wanted to perhaps
render some assistance, the actions they took
speak more loudly than words.
There was no call out for crisis center.
There was no call out for EMTs.
There was no call out for a shelter
or any other social service assistance.
This was something where they continued to investigate him.
And given what Officer Levy describes
as the reason for why they came there,
they have a suspicious person-
-: Wasn't there a close-in-time, they tell him to sit down
because he's acting peculiarly.
He's told them he is working for
the Department of Interior for free,
and a lot of other stuff raising, you know,
mental health concerns.
Then they immediately hear that he's a suspect
in the murder, right?
There's like a-
-: My understanding of the way the chain,
and it's a little hard from the motion hearing,
is that they go to the bathroom, they knock on the door,
he comes out after a minute.
He walks himself out to the parking lot.
So, they're following him. -: Hmm.
-: He's objecting himself from the premises.
They're out there, he gets aggressive
when they're pressing him for ID.
They tell him to sit down.
At that point, Officer Levy, who's arrived
just at that moment, starts asking him questions.
At that point, they develop the,
I work for the Department of Interior,
I can't tell you my name, I get paid-
-: Don't they run his plate?
When do they run his plate?
-: So Officer Resigliano, when Officer Levy comes there,
Officer Resigliano then leaves at some point
to go to the vehicle.
It's probably like 10, 15 minutes.
And he's there for about 15 to 20 minutes.
It's when he is gone to the cruiser to get that information,
he runs the plates and finds out there's-
-: What's the entire time span are we talking about?
-: So I- -: How would you put it?
-: Again, it's a little challenging, but I believe it's about
somewhere between 15 to 20 minutes.
-: Between the time they arrive
and the time they run the plate?
-: By the time Officer Levy arrives
and he's sitting on the ground
to the time where Resigliano gets the plate information
and comes back. -: But you were complaining
a minute ago that they weren't calling EMT,
they weren't looking for...
Don't they have to establish who he is
and make sure he's relatively able to manage himself
and obey certain kinds of requests
before they start any of that?
-: I think they could- -: They have to assess
what they're dealing with.
-: Well, they had an initial, I think they quickly assessed
both from the information provided to them
by the Super 8 Hotel and their initial conversation with him
as they're walking out from the bathroom to the scene,
that he was somebody suffering
from some type of mental crisis.
-: So, you're saying that that moment they just should have
called for the EMTs to place him in a medical facility
without doing anything further?
-: Oh, I wouldn't have him placed in a medical facility.
I think having somebody able to,
a medical professional, a social worker to be able to
address whether or not that he has capacity,
whether he's understanding whether-
-: Even before they've identified him-
-: Yes. -: and run that plate?
-: Just if he was suffering from a medical emergency.
I don't think you need to get the identity
before you're able to get medical assistance.
This person is clearly not well based on his appearance,
his behavior, and the statements.
I'm not saying at the critical moment-
-: I guess what I'm confused about is I don't understand
what was unreasonable about what they did?
-: It's not unreasonable to make an initial inquiry.
It's not unreasonable to walk out with him.
What's unreasonable is to have him sit down
and then don't do anything to assess, to assist.
At that point, they're not trying to
assist him or to aid him.
-: You want more caretaking in the-
-: I'd like some more caretaking.
Some type of indicia that they're there to caretake.
-: Okay. -: If there are
no further questions, thank you.
-: Okay, Attorney Borges.
-: Good morning. May it please the court,
Danielle Borgess on behalf of the Commonwealth,
The Commonwealth respectfully requests this court
to affirm the defendant's conviction.
In this case, the trial judge properly declined
to instruct the jury on mental impairment
where there was no notice given to the Commonwealth
of the defendant's intention to raise a mental health issue.
-: Was there legal error here?
-: Excuse me? -: Was there legal error here?
-: In what? -: In the judge saying,
you don't have an expert,
so I'm not going to give you the instruction.
-: So, technically, yes.
It's not just required for the expert evidence.
But in this case, I don't think it was legal error
where there was no evidence whatsoever.
That could have been a misstatement of the standard used
when providing the mental health instruction.
But in this case, the judge was correct to deny it
where there was no notice given, there was no evidence,
lay person testimony, simply none evidence admitted.
And in fact, the motion in limine
to exclude any sort of reference or evidence
warranted the judge's decision.
-: But there is evidence from the New Jersey officers
that the defendant immediately,
presumably immediately after the murder,
was acting suspiciously.
Why is that not enough to give the instruction?
-: So, in that case, the Commonwealth would argue that
that interaction with the Mount Laurel police,
the day after the victim's body was found,
even that interaction alone can't speak
to the defendant's mental health
and potential impairment at the time of the crime.
So- -: Two days later?
-: Excuse me? -: Even though
it's two days later?
-: I think it might have been a day after the body was found.
-: So, if he's acting really peculiarly the day after
you can't sort of think back that that's carried over?
-: The Commonwealth would argue it wouldn't be in this case
because for a whole slew of reasons.
The defendant could have been in that moment reacting
to what had happened previously.
But his actions that moment,
so removed from when the victim was murdered,
can't speak to his mental health.
-: Isn't that just an argument you get to make
in terms of saying there is no mental impairment
to the jury, but here there was no instruction given.
What's the standard for giving the instruction?
Is it the Commonwealth doesn't have arguments against it
or what is the standard?
-: In order to give the instruction?
-: Yeah. -: The Commonwealth would argue
that there has to be some sort of evidence admitted.
And it would be the Commonwealth's position that
that interaction with the Mount Laurel Police Department,
even if that would be considered,
it wouldn't be enough to warrant
that mental health instruction.
-: And what's your best case on that point?
-: I would believe it's, one second.
I would look to the Commonwealth v. Santiago case
that's 485 Mass 416, where this court speaks to
"to be entitled to that instruction on mental impairment,
the defendant must at a minimum introduce evidence
that such an impairment existed
at the time of the conduct in question."
-: And you think a day later is too far removed?
-: The Commonwealth would argue that where there could,
as previously stated, there could be other reasons
why the defendant was acting that way
following what had potentially happened previously.
-: When you first gave your answer you said,
one of the reasons the instruction was not warranted
was because there was no notice given.
What do you mean by that?
-: So under Rule 14(b)2(a),
the Commonwealth has to receive notice
of the defendant's intention
to raise the mental health impairment.
And there was no notice given here,
or that wasn't the theory that trial counsel proceeded on.
-: Was that to get an examination, the notice,
and to start that process?
-: I believe the notice is given just to
put the Commonwealth on-
-: Right, it's Bois Del, it's to get the-
-: Exactly.
-: But when the defendant doesn't use an expert
the Bois Del procedure is not implicated, correct?
-: Correct, but it's the Commonwealth's understanding
that they need to be on notice prior to trial
that the defendant intends to raise
some sort of mental health defense.
And in this case where there was no notice
and where the defense-
-: Did the judge rely on the lack of notice
to deny the instruction?
-: It's not clear on the record that the judge
relied on that, but it is just an additional claim
the Commonwealth had made that on top of
the lack of evidence presented at trial,
there was also additionally no notice,
so that didn't comply with the rules.
-: Yeah, I'm not so sure the rules need to be followed
when there's not an expert examination.
But we'll look at that. -: Okay.
-: The testimony from the officers,
I mean, your best case is that he's weird
in this interaction 'cause we've had this,
weird doesn't get you the mental impairment line
in our case law.
But what is he, besides this Department of Interior thing,
which seems very odd, is there anything else
about his behavior that's sort of out of bounds
indicating a mental health issue?
-: The Commonwealth would argue there was not much else
besides, I mean, the defendant seemed to be
a little aggressive at times.
He didn't wanna initially give his identity to the officers.
I think additionally there was just the fact that
his clothes were a little disheveled.
He was wearing shorts in January.
But I don't think, the Commonwealth would argue
that that's not overwhelming evidence of any sort of-
-: Gotta be, we're sort of walking a fine line, right?
They need the caretaker otherwise,
they're intervening for caretaker purposes,
so something's heightened.
Is it just the fact that he's wearing shorts in the winter
and that he says he works for the Interior for free?
-: So, I believe- -: Is there anything else that
and his hair's standing up.
-: So, I believe when the employee from the motel
called the officers, they explained that the defendant had
kind of been roaming around the property overnight.
He had been coming in and out of the lobby,
making inappropriate comments.
So, when the police responded,
they were executing that community caretaking function.
And as discussed previously, the entire interaction,
it wasn't very long.
They were inside, they were outside.
When the defendant started acting a little bit aggressive,
that's when he was asked to sit down.
But then the officers were still executing
that community caretaking function,
they didn't know who he was.
And so- -: Is that necessary
for the caretaking function to identify who he is?
-: I would say if he was acting more erratically,
like, if he was very seriously acting out,
potentially being violent, if it was something
where they needed to get him assistance immediately,
then no, I would say they don't need to go
through the process of figuring out who he is.
But in this case, where he was just acting
a little bit out of the ordinary
and they felt that they had the time
to go figure out who he was, and again,
this was only 15 to 20 minutes as well.
-: We have zero case law that talks about this, right?
We have either you get a community caretaker function
because someone's passed out in their vehicle
or there's a wellbeing check or you don't.
-: And I would argue that this was.
They were still executing that community caretaking function
when they were still trying to figure out
who the defendant was.
He was just sitting there.
Again, the weird statements,
acting a little bit out of the ordinary.
Their main goal in talking to the defendant
was just to attempt to ascertain
whether he needed their assistance.
-: I mean, it's a weird position that you are in
in that you have to argue there was enough there
of mental disturbance to warrant community caretaking,
but not enough to warrant
an instruction of mental impairment.
-: There's a spectrum, I think.
I think that what entitles a community caretaking function
might not be the same as what entitled
the mental health instruction at trial.
And I think, the officers were properly executing
that community caretaking function
as Judge Frison found in her decision.
-: We're kind of, now we're in the box, right?
We know he's been institutionalized five times.
-: Correct. -: We know he's
got schizophrenia and he thinks he's acting for God
and he's got all kinds of things.
And now what do we do?
I mean, is this really,
and he's killed his father over driving his truck.
Is this a 33E lowering the verdict case
where we know he's got all kinds of mental health issues
and it's really hard for us to separate out the timeframe
the way you're talking about.
-: Mm hmm. -: I mean, are we gonna,
is this really a first degree murder case at this point
given this mess? -: Sure.
So, the Commonwealth would argue
that initially the defendant was found
to be competent for trial.
I believe that was in the end of his 2017 report
that was attached in the appendix,
the second one. -: That's two years
before trial, right? -: Yes, yes, trial
was in 2019. -: Is he reevaluated?
'Cause in 2017, June 2017, we got this very damning
portrait of his mental health, right?
-: Mm hmm.
-: Does anybody do anything two years later?
Is that the last time his mental health is evaluated?
-: It's my understanding that it was,
I could definitely go check
and then provide the court with an update.
But my understanding is that that was
the evaluation pre-trial.
-: Does his counsel make any motion
for a subsequent evaluation?
-: Not to my knowledge, he does not.
And they proceed on, they proceed on the theory,
which at trial was that, you know,
the Commonwealth could not prove identity.
So, in response to your question regarding the 33E power,
the Commonwealth would suggest that the defendant
is able at any time to file a motion for new trial.
Right now we don't have an affidavit from trial counsel
as to why they proceeded on that theory.
Whether it was the defendant's request
that the mental health route not be taken.
-: But we have this information in front of us
and you'd have to satisfy a gatekeeper at this point.
So, we have this information in front of us
and we are allowed under Dowds and some other cases
to look beyond trial record and look as we did in Dowds
at mental health history to see if the defendant
was fairly convicted of first degree murder.
So, given his mental health history, can you tell us why
he was fairly convicted of first degree murder?
-: Sure, the Commonwealth would argue that
that mental health history
doesn't overcome the evidence at trial
that the defendant killed his father
with deliberate premeditation
and extreme atrocity or cruelty.
The jury heard that the defendant
brutally beat his 83-year-old father.
The medical examiner testified
that while the victim was still alive,
the defendant put a trash bag over his head,
tied a belt around his neck, strangling him.
The victim was found dead inside a room,
behind a closed door, in a locked house
that showed no evidence of any forced entrance or exit.
The severity of the beating inflicted upon the victim,
there were multiple bruises to his torso, his face,
lacerations on his face and eyes,
and he suffered from 11 blunt force injuries
on his head and torso and six fractured ribs.
-: Remind me what the mental health,
his mental health is connected to acting violently, right?
-: I do believe in his mental health history eval
there were comments that occasionally,
depending on if he was provoked in certain ways,
he would react aggressively.
-: And does that suggest, sort of following up
on Justice Gaziano's question.
I mean, counsel's walking a fine line,
but do we know whether, unless we satisfy ourselves
that one, this was considered,
don't we have to send this back to evaluate
whether his mental health was evaluated
during those two periods or if it wasn't, why it wasn't?
And make a determination whether he was competent
at the time to make the decision not to raise his mental...
I mean, given what we know now, can we really just uphold
this first degree murder conviction?
I mean, I get it.
You know, there's plenty of evidence
that he killed his father over the truck
and he did it with the plastic bag, et cetera, et cetera,
but we're dealing with his intent at this point.
And there's all kinds of very troubling mental health issues
that haven't been presented to the jury or anyone else,
except for us.
-: And the Commonwealth would argue then in that case,
the defense's, the best option would be
for them to file that motion for new trial,
have an evidentiary hearing,
and flush out those issues that you're-
-: We decide our 33E prior to that.
-: The Commonwealth would argue that there are other cases
where a defendant's mental health history
doesn't overcome the weight of the evidence.
And we would argue that in this case,
the evidence as discussed is strong.
There's overwhelming evidence that I will-
-: Well, there's overwhelming evidence
that a murder was committed and this defendant did it.
What is the evidence that the Commonwealth's relying on
that he did it with the mental state required,
given his extensive medical health history
that we now have here that the jury was not presented with?
-: So, it appears that the defendant took the steps
after he killed his father.
He was aware enough where he immediately fled.
He got in the truck, he started driving to New Jersey.
There's some indication that he knew what he did was wrong,
which I think speaks to that he had the proper intent
to commit the crime and to be found guilty of this.
-: So, the fleeing, anything else?
-: Besides just what was stated before where he, you know,
he kind of- -: Well, no, yeah,
not the details of the crime itself,
but I'm talking about anything else about his mental state.
So, you're relying exclusively on the fact
that the defendant fled?
-: I would say that that is the strongest factor
that would speak to him appreciating.
-: There is something in the record,
and I'll have to go through it, I apologize,
I haven't had a chance to do that yet.
But something about a note left for Staples.
What was that? -: Yeah.
So, Al Staples, which was the defendant's brother-in-law,
he found a note in his truck.
I believe it was the day after.
Forgive me, I'm blanking on the timeline.
It was after the victim's body was found.
A note in the defendant's handwriting that said,
"Dad's in a better mood now," with a smiley face.
That could also speak to the defendant's
being able to appreciate what happened.
But that was the note that was left in the car.
-: Okay, thank you.
-: On the notice issue, you were right.
Justice Cypher points out that to me that it's an or.
You have to give notice of the mental impairment
or if they want an examination.
-: Okay, thank you for that clarification.
If there are no further questions,
the Commonwealth will rest on its brief.