-: S-J-C, 1-3-2-2-5
Commonwealth versus Lazaro Miranda.
-: Attorney Kelly, whenever you're ready.
Take your time.
[Att. Kelly] I was actually held by the train, I--
I don't know how much I enjoyed that.
(man laughing) (woman laughing)
(Att. Kelly murmuring)
(papers shuffling)
-: Good morning Your Honors, if it pleases the court.
My name is Att. Kelly. I'm representing the defendant,
appellant Lazaro Miranda.
Justice Lowy: Mr. Kelly, what do you do
with all the cases that say that if there's no contact,
there's no sudden combat?
I'm thinking specifically of Curtis.
I'm looking at Groome--
but many other cases as well.
Att. Kelly: My suggestion--
I would suggest to the court, Your Honor,
that, in fact, there's a--
the case cited by the Commonwealth and Bury was Lugo,
and then also, Curtis and Ruez. But--
in this particular case, you're--
I wholeheartedly agree.
There was no contact. He did not get hit with--
if we are to believe, of course, your Honor,
and taken that this is correct,
that he were to be swung at with a machete,
he did not get hit with the machete.
I would call the court's attention
to the language in that Lugo case,
which says, "generally a victim must either initiate
or strike the first blow."
And I would suggest that the court
in this particular case,
whereas, some of the other cases like Ruez and Curtis,
which were cited by the Commonwealth
in its opposition that those cases--
or someone was hit somebody,
somebody slapped somebody, someone one wanted--
jumped on someone's back.
This is a machete!
(stammers) It's--
I would suggest to the court that
if someone swings a machete at you and barely misses you
it still would raise the same amount of--
sudden combat-- -: Well was it sheathed
when she swore it--
when she swung it? Was it in its covering?
-: Your Honor, that's the--
there is evidence that it was still in the--
I'm only going with--
Justice Cypher: Bedroom right behind the door
or something? -: Yeah, I mean,
there was, there were--
Justice Cypher: Where was she killed?
-: She was-- (clears throat)
she was initially laying down in her bed
after coming home from work
and I guess some time after work, her eyes closed.
The discussion started, "What's going on?"
Supposedly her braids--
Justice Cypher: Was she killed in her bed?
Att. Kelly: I'm sorry?
-: She was killed in her bed? -: No, your Honor--
As I understand that the facts that--
there was an altercation, they--
I think she did get out of the bed.
She was actually killed in the stairway.
Justice Lowy: Right. She was stabbed thirty-
She was stabbed 33 times and killed.
Att. Kelly: Yep. Yes, exactly, your Honor.
Justice Cypher: It's a bit more
than you need for self-defense.
Att. Kelly: Oh, your Honor, we're not--
Justice Cypher: Not self-defense,
but sudden provocations? A little bit much.
-: Well, in the particular case there,
I would suggest that it's, you know,
he (stammering) testified, oh--
spoke to the expert, Ebert, saying, he just "snapped".
Justice Kafker: Can I ask--
just before you leave it, so the facts are...
I understand that the--
her machete is found in a sheath.
But we're looking at the facts and the light
most favorable to your client, right?
He testifies that she swung the machete at him.
Att. Kelly: She actually says she--
and it's, again, this is also unclear, your Honor.
Justice Kafker: Right.
Att. Kelly: He says, "She moved for, or swung,"
and it was never differentiated. No one ever--
I don't believe anybody ever asked that.
I would suggest that a move for
is not as, as threatening as a swinging of a machete.
But again, those are the--
the facts that we are told.
Justice Kafker: Well, it's a little better.
You get a little bit better,
when we talk to Ebert, I think?
-: Right. -: Yes.
Justice Kafker: Talk to Ebert is a little better
for your client.
Att. Kelly: Oh, yeah. And again,
but this is the one that obviously was--
we don't have him actually.
We have his report, but we don't have his...
Justice Kafker: But his report. His report says,
I'm just trying to-- (coughing)
again, I understand there's no contact.
Att. Kelly: Right.
Justice Kafker: But I am troubled a little bit.
If someone's swinging a machete at me,
you know, and they're right in front of me,
I don't know if that's enough for sudden combat.
But is there a separation though,
because she's killed down the stairs? I don't--
Do we know where--
Att. Kelly: we would contend
that it's not a matter of just a knee-jerk reaction.
You swing at me. I swung at you. And oops--
I mean, obviously she was struck 30 some odd times.
Justice Kafker: Right. No, that's clearly
excessive force.
Att. Kelly: Clearly that's not--
that's not the situation.
But in that particular case,
he (stammering)
I think they chased each other around.
He chased her or whatever it was.
But in addition to, Your Honor,
saying as someone swings a machete at you--
there was evidence that he told
at least Ebert and I believe Detective Keeler,
that she had done that before,
and actually had previously struck him.
Justice Kafker: Right.
-: Which I would say puts a little extra emphasis
on the provocation, if you will, if somebody hit me.
Justice Lowy: Well, if Justice Kafker is right,
and that swing of machete is different in kind.
Att. Kelly: Right. -: Will this be the first case,
where we have ever said, you can have sudden combat
without contact?
Att. Kelly: The only thing I can, I could not-- (sighs)
Justice Lowy: I couldn't find one.
Att. Kelly: Well, again, the only thing--
the only thing I have to go on, your Honor, to support
that contention was again, the Lugo case,
which just said, "generally".
It doesn't say exclusively, always--
It just said, "Generally, a victim must initiate
or strike the first blow."
Justice Lowy: I don't know if you looked
at Commonwealth versus Brown.
Att. Kelly: Yes, your Honor.
-: So Commonwealth versus Brown
is where the victim choked the defendant with a shirt.
And that was insufficient for sudden combat
where the defendant stabbed the victim
six less times than the stabbing here.
27 times in that case. And it--
that wasn't enough a sudden combat to choke him.
Att. Kelly: Yeah, I mean, I agree with your Honor
with this as far as, this says--
this could possibly be this, the only thing I have to,
to go on in, in response to that would be the fact
that there's just a, "generally"
it does not say "exclusively".
And I would say that-- -: One other thing to go on,
and it goes to another issue
you have about the record.
Att. Kelly: Yes.
-: And, and that's said,
that doesn't seem to be, from what I can tell,
any request for a limiting instruction
on either side is to what the defendant
told doctors in this case.
So that evidently came in for its truth.
And we don't have all that testimony.
Att. Kelly: No, your Honor.
We have nothing from Dr. Ebert.
We have actually nothing as far as the jury charges actual--
Justice Lowy: So you've got an issue
that the stipulation is not enough.
-: (stammers) well, it's kind of
a conditional argument, your Honor.
And the reason I did is, in fact,
this is the only time that I've been in front
of any appellate court when I can actually say what the--
the attorney in the lower court did,
'cause I actually jumped into this case
and was involved in the reconstruction of this
with Judge Locke.
Justice Lowy: He was very complimentary of--
Att. Kelly: He was phenomenal.
And I have to say, in total difference--
in deference to everyone, attorney for
the Commonwealth, Ella Saxis, who unfortunately,
is not with us--
did a phenomenal job.
Everyone did a great job as far as putting
that thing together as best they could.
And the only reason that I actually raised the issue,
and I actually raised it after we saw--
had the stipulation ready to go
was, it was still on the table!
I had put out a motion for a new trial back in 2012,
and it never was addressed. The judge just said,
"Reconstruct it." And we did.
(stammers) the judge says, "Jump." I say, "How high?"
So he says, you know, he said, "We're gonna reconstruct it."
We reconstructed it. And I just wanted to make sure
we had everything done. We--
the judge was nice enough to allow us all--
to meet with all counsel at the same time.
That way, we could could say,
"What do you say? What do you say? What do you say?"
Which we can't do on a stand. And they--
he allowed us to do that.
And we all agreed to as much as we could agree. And my--
the point was that if, and I still think
that it's because we're dealing with jury charges
and jury instructions, and things like that--
that can get very difficult to reconstruct.
And (stammers) the Judge Locke asked me specifically,
"Give me a nutshell." And I basically said the nutshell,
(stammers) as these written instructions were requested.
They were either denied or ignored.
And it was an objection to it.
Counsel for the Commonwealth
said, "Yes, that's true."
And I said, "Okay, if that's the case,
then we're fine."
But I still would like a--
I still would like something on the record,
because I did file a motion for a new trial.
And by the way, I do concede the fact
that it was not the Commonwealth's fault.
(stammers) There was an issue
that I had put in there that the--
it was because it was lost by
the clerk and the court. That is not the (mumbles)
That is not true. It was not the defendant's fault,
but it certainly was not the Commonwealth's fault.
I concede that point.
But if I may, your Honors,
I would like to address this second issue
as far as the--
the request for the instruction
on mental impairment and intoxication.
And I asked that the--
the Commonwealth, I felt put together
an incredibly fair brief, in response to my brief.
But in doing so,
they did not seem to...
pick up too much on the portion of my argument.
That was, I had put it together on a couple of pages there,
citing a lot of language from the McDermott case.
And I called this to the court
in case I was not eloquent enough to have emphasized
that since we don't know what was actually given,
we can stipulate that it was given
according to the model jury rules, or--
but we don't know.
And all we have to do is if--
and in the record appendix, if you want--
once you do take a look at it,
you'll see where they went to the
motions for jury instructions.
You'll see check marks all along the way
and the little notes in the side.
And the only thing we have to go on
is what got checked off, what didn't get checked off.
And that was the only thing that trial counsel
could give us for an explanation, as to how it went.
The reason I bring this up is--
part of my brief, and maybe I did not emphasize it as much--
Justice Kafker: But I thought you--
I thought Judge Sperlock consistently gives
the model instructions in this case, right? It--
Att. Kelly: Yes.
-: We're pretty comfortable that he's just tracking--
Att. Kelly: That's true.
And the Commonwealth very nicely gave us a--
gave us that copy of that.
Well, what I'm saying is,
in taking a look at the McDermott case,
in those, what I'm saying is,
if we take a look at either, the model jury instructions,
which are actually cited for us, the 1999 ones,
they're cited for us in--
in the Commonwealth's brief
at page 42.
And if we take a look at,
and I call the court's attention to
specifically, record appendix, page 317--
in which, they, the Commonwealth, had asked for--
what they wanted for murder instructions.
And what they basically did, what you--
hopefully, you will see
is that from both the model jury instructions
and what was requested
by the commonwealth, as far as their instructions,
which got the check mark on it, they got a check mark--
and as opposed to--
but no check marks for what the defendant requested
at record appendix 299 and 300.
And those are articles, paragraphs 53 through 56.
The...
all of those instructions talk about
mental impairment and intoxication, okay?
As it comes to deliberate premeditation.
There are none that talk about it with extreme atrocity.
And the point that I'm trying to make, your Honor,
is that there, in fact, there are other cases.
I did not cite them because they came up after the fact,
but I give them to the court
for your own edification. Just--
I mean, I could make the argument, but I think
it's much stronger, if at least
someone from the SJC made the argument.
But the Commonwealth versus Rutkowski?
It's 459 mass
794 in 2011 case and Gonzalez,
469 mass 410,
the...
2014 case.
They mostly said, in positions where the instruction
specifically talks about both
mental impairment and intoxication
as it comes to deliberate premeditation.
And Nuffs doesn't mention that at all
when it comes to extreme atrocity.
A jury could very well find that--
that they're being instructed that intoxication
and mental impairment have nothing to do
with the extreme atrocity.
And what the point is that,
when either, you talk about deliberate premeditation
which is always intent and knowledge
or what's brought into question,
as far as the defendant's state of mind.
In this case,
he was not convicted of deliberate premeditation.
It was extreme atrocity. And as I--
I believe it was the Gonzalez case, actually says,
extreme atrocity talks about conduct.
And those cases that were cited
in my brief, that were all called,
kind of summarized in the McDermott case--
but starting with Gould, Perry, Breeze and Doucette,
which are all in the brief--
they all talk about--
basically, the culmination of intoxication
and mental impairment as pertaining
to extreme atrocity or cruelty.
And the argument that-- (stammers)
Again, we don't know, we still don't--
I mean, I can't tell you--
Justice Lowy: Tell us-- -: what was actually said.
But if we take that as--
I'm sorry, I didn't mean to interrupt, your Honor.
Justice Lowy: No. I interrupted you, I'm sorry.
Assume you're right. And that it didn't--
get included as it relates to extreme atrocity of cruelty
and talk about the implications of that because it should!
Att. Kelly: Yes.
-: But the kinneen factors
really have, arguably one,
but very few subjective
components of them.
So (stammers) where's the impact?
Att. Kelly: The impact, your honor, comes--
well again, first off, as far as any prejudicial effect,
I would say of course, because there was no--
(stammers) that the guilt was--
the murder guilt was on extreme atrocity and cruelty.
But-- Justice Lowy: But it was--
this was preserved, right? They--
there was a request to do both and explain the--
Att. Kelly: Yes, your Honor.
-: The logistic effect of the two together?
Att. Kelly: Yes, your honor.
Everything in this case was preserved.
There were all requests, motions, everything was denied.
Everything was objected to immediately.
Even I objected to my claimant judge.
Justice Lowy: But so the issue is the prejudice
with extreme atrocity, with 33 stab wounds.
Att. Kelly: Right. Right. And--
Justice Kafker: Also limited evidence
of alcohol here, right? I mean, this is--
this is a case where he, the defendant,
is apprehended immediately, right? And--
Att. Kelly: Well, actually, I don't believe so.
I believe the murder, or the killing--
I'm trying to say, voluntary manslaughter,
but the killing happened sometime around
between seven and eight PM.
He was not actually apprehended until close to midnight
as he was walking down the street
to his karate studio with the machete in hand.
Justice Kafker: But there's also evidence
that he spoke to some other people
between then, right? And none of them
remark that he appeared to be very drunk or anything.
Att. Kelly: Well (stammers) your honor,
the stepfather did mention the smell of alcohol.
Justice Lowy: Right.
-: Okay. And he did mention alcohol to--
again, this is his own self-serving statement,
but he did mention that. And I would just,
again, call the court's attention,
if I can find the thing--
I believe it's the Doucette case--
basically it says, when, you know,
the two things as far as
(stammers) the instruction for
extreme atrocity and cruelty and it related as one--
you no longer need to have extreme...
intoxication. Possible intoxication is what-- (stammers)
Justice Kafker: No, I understand that.
My point's a little different -: And--
Justice Kafker: And maybe I'm misreading the law, but...
we have 33 machete wounds, right?
Att. Kelly: Yep.
-: And we have--
you're saying, well, they should be
taking into account the alcohol in terms
of the extreme atrocity, but (scoffs)
he's not extremely drunk. So he's, you know, he's able to--
he seems completely lucid in answering questions.
So does that figure into the fact
that we have limited evidence of alcohol.
Att. Kelly: (stammers)
I would agree with you, of course--
that there is limited...
I'm not gonna stand here and say no.
-: Mm-hmm. -: But again,
there was still a four to five hour window
between when that happened and when this happened.
How much the alcohol--
and again, there also is evidence
as to the mental impairment that he had,
(stammers) as Dr. Ebert had stated.
And how much the intertwining of the alcohol
and the
mental impairment--
one playing off the other one. 'Cause I--
I'm not a doctor,
I wouldn't know, but I would suggest that, your Honor,
that we're not just dealing with intoxication only.
(coughing)
We're, we're dealing with both
in the intoxication and the mental impairment.
And as I said, as far, because this is a case
which the-- (sniffling)
Oh! And I'm sorry,
Justice Lowy, I believe you, you asked me, and I had it--
I did have it written down here
that as far as the kinneen factor goes,
there are cases, and I--
if you need it in a 17-8 brief--
17 el--
16 el brief, sorry--
I get nervous.
That I could provide that to the court.
But essentially there was--
the general instruction that you can take all the evidence
in determining whether someone is
active with extreme atrocity is not--
you need to be able to tell them
that the alcohol and the mental impairment
that has the effect on the extreme.
It's almost like a combination of all.
You can't just say, and because of everything else,
he was, you know, you can take anything you want
into a factor of that.
You'd have to explicitly say,
you can take mental impairment and intoxication
if you find that--
in as a factor to find out extreme atrocity.
Justice Lowy: Of course, of course. And--
but your point is that the error
was that the judge didn't really explain
you should take into effect the interaction,
that, and the sort of synergistic effect of the two.
Att. Kelly: Right. Right. Your Honor, it's like--
and because that's as the cases say that, you know,
extreme atrocity or cruelty is conduct
not intent and knowledge.
If the court has no further questions,
I would rest on my brief.
-: [Ch. Justice Budd] Thank you.
Att. Kelly: Thank you for your time, your Honors.
-: [Ch. Justice Budd] Okay. Attorney Martino.
Att. Martino: Good morning, your Honors.
May it please the court, Elisabeth Martino,
on behalf of the Commonwealth.
The Commonwealth is asking that the court
affirmed the defendant's conviction
for first degree murder. And I would start
with the reconstruction issue, if I may, just quickly,
because I think it's sort of threshold
and then dovetails well
with the substantive issues that the defendant raises.
(clears throat) I want to just quickly point out
that in footnote 17 of my brief at page 52,
I argue that the, you know,
court reporter and clerk's office are not a party,
in terms of figuring out fault.
And that's probably wrong.
There was a case out of this court
Compety versus Commonwealth 4-17 mass 4-54,
where the court said, delay in a transcript
can be attributable to the Commonwealth.
So I just wanted to note that.
I realized that that can be--
but as defense counsel has said, you know,
fault isn't really the issue here
because the fault is sort of spread around
among the parties in the delay of the transcript.
And there was a reconstruction effort by both parties
as is required by Harris.
And there was a stipulation that resulted,
which both parties agreed to.
So, you know, fault isn't really an issue, I think.
Justice Lowy: Assume that part of the stipulation
didn't address, whether or not, what the defendant
told Dr. Ebert was admitted only to--
as a basis to the opinion and not for its truth, right?
Att. Martino: (clearing throat) I believe that's correct.
And that is something that I just thought of as (stammers)
defense counsel was arguing. I believe that's correct.
I don't know that, whether or not,
eliminating instruction was given is addressed.
-: That means a universe of facts for
sudden combat is the defendant's statement to
Sergeant Keeler, and the defendant's statements
to Dr. Ebert, right?
Is there anything else?
-: No, there's nothing else. I just--
I don't know whether in the absence of a--
of an agreement in the stipulation about whether the--
or there was a limiting instruction or not,
that we presume that there was no limiting instruction?
And that the statements came in substantively
when the rule of evidence really is that these statements
made to a doctor only come in, you know,
for the purposes of--
Justice Lowy: But for just in case,
why don't you argue why,
looking at the statements to both,
your position, that it's not a sudden combat?
Att. Martino: Yes.
So assuming that there was no limiting instruction--
there's still no sudden combat instruction required here,
because the sudden combat cases are
where there is a sudden attack
by the victim on the defendant such that the
defendant is in a heat of passion, and--
and cannot, sort of, control his actions,
and acts outta that heat of passion.
Justice Lowy: If this isn't raised in your brief, so--
and I may be wrong about this,
but the fact that the jury was instructed
on reasonable provocation, heat of passion,
and they found, beyond a reasonable doubt,
that it didn't exist, does that talk anything about--
about reasonable provocation in this instance,
where there was no strike to the...
To the defendant?
Att. Martino: I believe that it does, your Honor.
I think first, you know--
so based on the verdict, we can surmise that the jury
did find that the defendant was not acting
out of heat of passion
that eclipsed his self-control, right?
Because they were instructed on the heat of passion--
reasonable provocation by heat of passion.
And they did not find voluntary manslaughter.
Reasonable provocation by sudden combat
also requires that--
you know, eclipsing of self-control,
which the jury did not find.
In addition to that, I believe
that there was no sudden combat,
because there was no physical attack
by the victim on the defendant.
Justice Kafker: How do we--
that's the part that it gets tricky for me.
'Cause again--
and you and Justice Lowy know these cases
better than I do, but so somebody's--
Let, let me change the facts a little bit.
You know, we've got two guys, you know (scoffs)
carrying machetes and they start yelling
at each other and the victim starts--
swings first. And he comes right in front of him,
he takes this big knife and almost cuts off his nose.
And then the other guy, swings back and cuts off his head.
No sudden combat there?
Att. Martino: (smacking lips) No, your honor.
And there's three different--
Justice Kafker: Really? (scoffs)
-: Yeah, there's-- -: Wow.
-: [Elisabeth Martino] Well that factual scenario
I think, is a self-defense case
or voluntary manslaughter by excessive self-defense.
And there are, you know, factual scenarios that--
Justice Kafker: Forget about self-defense.
I'm just trying to understand, if I'm the victim,
I'm carrying my machete and I initiate
the swinging of that machete, and I just barely miss.
And the guy who's carrying his own machete
says just, "Oh." Cuts off his head.
Yeah. Really? No sudden combat there?
You gotta, you gotta--
our cases say, you actually need to make contact.
Att. Martino: They do, your honor.
And they contemplate, you know, a physical fight.
-: Well-- -: As opposed to--
Justice Kafker: My, I'm talking about a physical--
in my scenario, 'cause I'm just trying to understand
my scenario may not apply here, but you know,
just because it's a man and a woman doesn't mean we don't
have two drawn machetes at each other, you know,
in a domestic dispute. So I'm just trying to get a sense,
but again, under my hypothetical,
still no sudden combat instruction?
Att. Martino: No, your honor.
And I would point out, that there is still a avenue
for a defendant to argue
for a voluntary manslaughter conviction,
as opposed to a murder conviction under your--
factual scenario--
Justice Lowy: It might even be. First of all,
excessive force, self-defense, but it--
Justice Kafker's description
might be reasonable provocation heat of passion
when you have that machete coming close to you.
But (stammers) do we have a case
in Massachusetts, has SJC ever, in a case, said,
where the defendant wasn't touched at all
that there's sudden combat?
Att. Martino: I didn't find one, your Honor.
And also if you look at the model jury instructions,
they say that sudden--
and I'm reading from the instruction,
"Sudden combat involves a sudden assault
by the person killed, and the defendant,
and upon each other in sudden combat, physical contact,
even a single blow may amount to reasonable provocation,
whether the contact is sufficient will depend on whether a
reasonable person-" and blah, blah, blah, blah.
So the whole thing is about contact fighting. Physical--
Justice Lowy: Well, the word assault is--
the word assault does--
is the opposite, right?
Assault is without contact.
Att. Martino: It--
Justice Lowy: That's why we have
assault and battery, right?
Att. Martino: Yes, but it says,
"A sudden assault, in sudden combat, physical contact,
and whether the contact is sufficient."
So I think, you know, the--
again, there are, under your factual scenario,
certainly the defendant can still argue
for a voluntary manslaughter conviction.
It's just not involuntary manslaughter
conviction by sudden combat.
So it's by excessive force, possibly by heat of passion.
Certainly, they can argue for an acquittal--
acquittal by self-defense, but--
Justice Kafker: I just find it--
I mean, I guess I always find it odd
that the provocation one,
you know, again, we have your honor is questioned.
So we've been allowing these, you know,
these silly defenses, you know--
You think your significant other's having an affair,
so you're so provocated that, you know--
but at the same time, the physical contact is required.
So, it just seems there's a--
it's easier to get the provocation
in these old fashioned cases,
than it is the sudden combat part of it.
Att. Martino: Well, yeah. And I would note
that the heat of passion, you know--
I think has been applied to cases
where there's been like, a history of anger
between the parties and not just domestic situations, but--
Justice Kafker: And again, it doesn't matter
that again, we have evidence here,
that she struck him with the machete, previously?
Att. Martino: Um... (clears throat)
There's a statement to the doctor,
"She had hit me before," I think. But not--
again, you know, there was nothing in his statement
to Sergeant Detective Keeler about that--
Justice Cypher: That statement indicated he'd--
she'd hit him with the machete before?
Att. Martino: Um--
Justice Cypher: Or just that she'd hit him before?
Justice Kafker: That was--
Att. Martino: It was in the context of talking
about her machete, so I think it can be construed that way.
But I would note also, that the-- (smacks lips)
the statements about the victim's conduct
here don't get nearly as close to,
like, "She swung very close to me and it just missed,
and it almost hit-" Do you know what I mean?
It was, it was not--
Justice Kafker: I figure out in the light
most favorable to the defendant. The--
'cause again, she's murdered down the stairs,
she's in bed when this starts. I just can't--
I'm trying to do the right most favorable to the defendant
and see whether there's a break in the action.
I just can't decide that yet.
I haven't read the whole transcript.
Att. Martino: Yes, um, yes--
And that is a good point, your Honor, too.
That there isn't anything here
that I think would show that the defendant
had been provoked to act out of emotion, rather than reason
reflection, especially where, you know, the--
the conflict starts where the victim
is lying on the bed, kind of with her eyes closed
and the defendant starts badgering her about,
"Where have you been? What have you done?
Where have you been?"
And then they start fighting, you know, she
according to the defendant, pulls out the machete
and swings it. And then they--
they run down the stairs.
And it is down the stairs,
where the defendant attacks
and stabs her 33 times.
So there's a break, sort of, in the action--
in the action there.
And again, the jury did not find--
because they were instructed,
unreasonable provocation by heat of passion,
which requires that same acting out of
you know, eclipsing self-control.
And the jury did not find that
because they convicted him of first degree murder.
So I think we are sort of bound by that here,
in terms of, a prejudice argument.
Sorry, are there any other questions on sudden combat?
No? And then...
I think moving to--
Justice Kafker: What's this McDermott argument?
'Cause it--
'cause that gets--
it gets tricky. (stammers) I have a lot of trouble
translating this to extreme atrocity and cruelty,
but we have apparently done it, right?
Att. Martino: Right. So... (smacks lips)
I don't think that I addressed in my brief
as completely as I could have. I thought
the claim was more about that the--
intersection and of the mental impairment
and the intoxication. And that--
that was the error being claimed.
In terms of, that it wasn't explicitly,
the mental impairment instruction wasn't explicitly
about the extreme atrocity--
I would argue that the intent required
for first degree murder by extreme atrocity
is not a specific intent.
It's the, you know, three prongs of malice
and then it's the conduct, the extreme atrocity,
whether it was also, you know,
an extremely atrocious murder.
But there's not a specific intent
as to the extreme atrocity. So here, where there was--
Justice Lowy: Doesn't have to be, though.
It's more complicated than that,
because you could have no premeditation,
but you could have an intent to kill
and not have murder one on premeditation.
But you could consider the intent to kill
is one of the three ways of having intent
on extreme atrocity of cruelty.
It doesn't have to be the other two intents
other than intent to kill.
Att. Martino: Right.
Justice Lowy: So, it's theoretically possible
that there is an intent
in a extreme atrocity of cruelty being considered?
Att. Martino: Yes. And I think
that was addressed by the judge's instruction,
which is, in the stipulation at--
at the defendant's appendix page 317,
where the judge instructed--
and this is a quote, "In determining whether
the Commonwealth has proven beyond
a reasonable doubt that the defendant acted
with deliberate premeditation,
and that he specifically intended to kill-"
Justice Lowy: Okay.
Att. Martino: "-Lisa McLester, you should
consider all the credible evidence
relevant to deliberate premeditation and intent to kill,
including any credible evidence
of the defendant's alleged mental impairment."
Justice Lowy: But isn't that the instruction
that was found deficient in McDermott?
(Att. Martino smacking lips)
Att. Martino: That I don't know the answer to.
Justice Lowy: Because you have to let the jury know
anytime that there's an intent and--
grievous bodily harm has to be an intent.
Even plain, extreme, strong likelihood of death
has an intent component. So it was error, not--
if it wasn't given on extreme atrocity of cruelty,
that was error.
(Att. Martino smacking lips)
It's the, (stammers) what's the prejudice from it?
Att. Martino: Right. Well, right. Okay.
So, yes. So then--
I, again, as the court was asking,
the defense counsel, I think that prejudice
is just not apparent on this record, right? Because the--
there were 33 stab wounds by the defendant.
The evidence of intoxication was--
was slight here, if any.
And...
(typing)
Yeah. I think that, you know,
those are really the, the facts that support
that there was no--
there was no prejudice, you know, here.
Yeah.
I don't know if the court has any other questions on that.
You know, I think that that is really the argument here
and that the stipulation as it was agreed to
by defense counsel, and by the prosecutor
did specifically say that the judge
gave all the model jury instructions
as to, you know, each of the instruction that was agreed
that was given, including the intoxication
and the mental impairment.
Justice Kafker: But again, the McDermott
instruction is not a stant model instruction, right?
It's a supplementary...
Att. Martino: Yeah. -: Kind of instruction.
-: [Elisabeth Martino] Yeah, yeah.
So then the question is, yeah--
the prejudice. But here, I think given the facts
of the case, you know, there's just none on this record.
And that the, you know, the conviction
for first degree murder...
Is proper.
I don't know if the court has any other
questions? And if not, the Commonwealth
rests on this brief, thank you.