-: SJC-13260.
Commonwealth versus Carlos Colina.
-: Okay, Attorney Billowitz.
-: Good morning. May it please the court.
Elizabeth Billowitz for Mr. Colina and with me
at counsel table is Jack Cunha,
Mr. Colina's trial counsel.
Mr. Colina was convicted of premeditated murder
and improper disposal of human remains.
He conceded guilt on that second charge,
and he admitted to dismembering
the victim's body postmortem.
However, his trial featured inflammatory rap lyrics
written years earlier that mentioned
dismemberment and other violent acts.
The admission of these lyrics was squarely prohibited
by this court's recent decision in Correia,
which held that rap lyrics need to have a strong nexus
to the issues to be decided in the case.
That includes both a temporal nexus
and nexus to the details of the alleged offense.
-: So, as to the details, I mean, they're pretty spot on,
so I'm assuming you're conceding that or...
-: Absolutely not. -: No. Why not?
I mean, it's about using a saw and the choke hold
and all of the elements of what transpired here
according to your client's own testimony.
-: I absolutely would contest that there is a strong nexus
to the factual details of the events.
Wendlandt: Right, but why? -: So the lyrics
don't even approach the kind of unmistakable factual
connection found in the cases where nexus was affirmed.
An example is in the Holmes case.
The lyrics described tearing a necklace
from a victim's neck, going through their pockets
in a parking lot while wearing a ski mask.
Gaziano: Well, what about Veiovis?
Billowitz: I'm sorry? -: What about Veiovis,
as far as the dismemberment fixation?
There's a lot stronger evidence in this case,
'cause Veiovis was drawings.
This is him saying stuff.
-: And I wanna get to the fascination in Veiovis.
Is it okay if I first-
-: I'm sorry, I don't don't know
if you finished- Billowitz: Answer in full-
-: Justice Wendlandt's question. I'm sorry.
Billowitz: Because I- -: But here, let me
just cut to the chase.
I mean, some of the words here,
and I excuse the audience who's watching,
but it's, "I decapitated and dismembered his arms and legs."
Isn't that what happened? -: It is what happened.
-: I sawed off the neck from the head.
Isn't that what happened?
Billowitz: Yes. -: Okay, and then,
"I strangled you in a choke hold," speaking to Johnny.
Right? Isn't that what happened?
But let's move on to the temporal nexus. Why is that?
And you know, I'm sorry,
Justice Gaziano. Gaziano: No, please.
-: Why is the temporal nexus a problem?
-: It's undisputed that these lyrics were written at least
three to four years before the offense.
-: Well, let's take one at a time.
What's the date of the demo CD?
-: The demo CD did not itself have a date on it.
-: Okay, so how do we know it's,
what did you say, four to 12 years?
-: Yes, so- -: Okay.
So how do we know that? -: Mr. Colina himself testified
that he wrote it in 2002.
The state trooper who introduced the songs testified
that that was written in 2011 or 2012.
-: And how does the state trooper know that?
-: I am not sure, honestly, what his basis
of knowledge is. -: So we have your client
saying it was 2002.
It was found during the search warrant.
I guess I'm struggling to find the abuse of discretion
in allowing this in.
-: So there was certainly no evidence showing that
that was written more recently than three to four years ago.
It was consistent with the other-
-: Isn't a demo...
I thought it was downloaded again,
more recently. -: Yes.
-: Okay, so that's-
-: So, well, there's two things, right?
Like the...
I'm sorry to talk over, but I just wanted to get
the temporal nexus questions answered.
As to the CD, it was a physical object, right?
So that was not downloaded, right?
That was just found during the first search warrant
as undated. -: That's correct.
-: Okay, but what was downloaded was the second file, right?
"The Cavias the Virus," right?
And that was the choke hold language
and was downloaded within three weeks of the murder, right?
-: It was not...
I'm not sure downloaded is the correct term.
There is no dispute that those lyrics were written
four years earlier because there was a dated
handwritten lyric sheet.
And what the digital expert testified
to was that that file-
Wendlandt: Was saved. -: Was last edited
in January of 2012.
It was copied, unchanged, unedited-
Wendlandt: Three weeks before the murder.
-: Three weeks before, so-
-: But why is that not significant that it's copied?
I mean, I understand that we don't tend
to resurrect things unless there's a reason, right?
I guess it's copied in the context
of a larger copying exercise, right?
-: He added it to other music that was contained
on his desktop computer.
So even if we assume that those lyrics were an expression
of his state of mind when he wrote them,
the simple act of copying them unchanged-
-: Why wouldn't we assume for the benefit of argument
that they were part of his state of mind
when he copied them? -: I think that is-
Wendlandt: Unreasonable. -: Speculative.
Well, if I wrote a novel and kept it in my home office,
and years later I took it to the living room
and put it on a bookshelf-
-: What about if Veiovis puts pictures
of dismemberment on his wall?
And we don't know how long they've been there,
but there they are.
-: Well, having something visibly on one's wall,
I would argue is different
from adding something to a collection
among hundreds of other-
-: But now we're getting into abuse of discretion.
That's the problem?
-: Yes, abuse of discretion is the standard.
I do wanna point out though,
if we look at the cases in jurisdictions applying
the strong nexus test,
I could not find a single case
finding a sufficient temporal nexus
when lyrics were written before the offense
much less years before.
-: And I wanted to ask you about that exact point,
because it strikes me that it is
and should be much more difficult to introduce rap lyrics
or any kind of lyrics that are written
way before a crime as opposed to the kinds
of cases you were talking about,
where afterwards someone describes in music
what they did and the details match up.
Obviously, you know, no one is contending here
that these were written after the fact
describing what did occur.
So when do you think a court could
find sufficient nexus in the specific context
of before the fact lyrics?
-: Well, this court in Correia mentioned a couple
of federal cases that were used to show indirect nexus,
familiarity with certain language.
So there, if you're using, I think in those cases,
there was drug lingo that was used in lyrics
that were written beforehand.
It was just used to show familiarity
with the drug trade, so-
-: But they have to prove premeditation too?
That's one of the...
So before is much more relevant than afterwards
in proving intent, right?
-: That is what the Commonwealth sought to do.
I do want to just speak
for another moment about the nexus to the factual details.
Violence is ubiquitous in rap music.
Even decapitation is not,
or dismemberment is not unusual.
In fact, the brother of the victim in this case,
who was himself an aspiring rap artist,
his lyrics included references to decapitation.
And the details that are in these lyrics
don't have any connection to the specifics of the offense.
The demo CD track is a fiction.
-: That's gotta be an overstatement.
I mean, it's just, I mean,
it may be too far on the spectrum,
but it's pretty close, you know?
-: Not the words decapitation and dismemberment, I agree.
But they are situated in a-
-: Choking, dismemberment, decapitation.
This isn't a shooting, you know? This is a little different.
-: But the song that mentioned decapitation
and dismemberment was a narrative about a shooting.
It told a story about gunshots
whizzing across someone's nose
and then taking revenge on the shooter
along with the companion.
None of those details have anything
to do with this case.
So it's a fictional narrative.
The other song, which Justice Wendlandt brought up
at the beginning, "The Virus," he says at the beginning,
"Johnny, it was the fucking computer."
That was a reference to problems they were having
with their recording software.
There wasn't anything about a computer
in the offense years later.
He then talks about the Bermuda Triangle,
and then he says, "I strangle you in a choke hold."
These are not the kinds
of unmistakable factual connections
to the lyrics.
I wanna make sure I get to Veiovis,
which Justice Gaziano raised.
The Commonwealth is arguing here that the lyrics
were probative of state of mind and intent
because they showed a fascination with dismemberment,
which was also something that
came up in Veiovis.
And the lyrics could of course, only show his state
of mind at the time that he wrote them
years before the offense.
And Veiovis doesn't control here.
That case didn't, of course, involve rap lyrics,
the unique risk of prejudice,
and wasn't applying a strong nexus test.
-: Whoa, whoa, do you think it was more prejudicial
to have the rap lyrics in than to have the diagrams
of dismemberment in Veiovis?
Billowitz: Far more prejudicial.
-: I guess Justice Waller would probably agree with you,
(justice laughing) but he didn't win
the day in Veiovis.
-: That was an ill-timed retirement
from my perspective. (judges laughing)
But I would say that the evidence also in Veiovis
was introduced for purposes that weren't at issue here.
It was introduced primarily to show identity.
That was not at issue.
Motive was not, it wasn't posited here.
And, you know, I would agree with Justice Lowy to say
that Colina was fascinated by dismemberment
and later acted in conformity with that fascination.
Not just by dismembering the victim, but by killing him.
That is quintessential propensity evidence.
In order to link a fascination
with dismemberment to a premeditated murder,
you need a series of inferences.
And I would say that none of these is adequately supported.
You have to infer
that he was expressing a literal fascination
with dismemberment in the lyrics.
Not just a fictional storyline or rap tropes.
-: But that presumes a purpose
for which it's being offered that it wasn't being offered.
What you are arguing and what you're setting up is
if it were being offered on the issue of propensity.
It wasn't being offered for that purpose.
So to the extent that the Commonwealth had to prove intent
in the state of mind of Mr. Colina,
it's not being offered to show that he's just a bad guy
that does bad things.
It's being offered specifically on that issue.
And again, so going back to the issue
of the abuse of discretion,
how is it not relevant to that issue?
-: Because there is not a sufficiently strong nexus
under this court's recent jurisprudence in Correia.
Not a strong enough factual nexus,
not a strong enough temporal nexus.
And so without that probative value,
there isn't a legitimate purpose
for these lyrics to be here.
-: I suppose, but is that an advocate's gloss,
or is that the trial judge's abuse of discretion?
Because as Justice Wendlandt went through,
not only the rap lyrics, but again, you may disagree,
but the fact that it was accessed in the weeks prior to,
you can make the argument that the temporal is there.
And even though you might say there's a larger narrative
as to where those lyrics that Justice Wendlandt
talked about, there's a larger story there.
But nevertheless, in that rap song, they talk about,
"I'm cutting your head off, I'm dismembering you."
And that's exactly what happened
to this poor man.
-: In that song, it was the singer
and a another person dismembering someone.
None of this was addressed
to the victim in this case.
You know, your point is taken.
Even if we were to assume that these did have
some relevance to his state of mind,
the next problem is that these were more prejudicial
than probative. -: Can I...
I would like, I actually find your sudden combat
and provocation argument
more compelling maybe than this one.
Could you devote some time to that
before you stop? -: Absolutely.
So the trial judge here refused
to give manslaughter instructions based
on provocation and sudden combat.
Here, the provocation was a hard blow to Colina's face.
And according to the model jury instructions
for both provocation and sudden combat, physical contact,
even a single blow can suffice.
So we take- -: There's testimony
from the defendant, right,
that he had been beaten up before by the victim, right?
Billowitz: That's correct.
-: So he gets smacked in the face.
And this guy, even though he's much tinier than he is,
he's very tough and he's beaten him up in the past.
Was this presented to the judge?
I'm just, I'm a little confused
of why the judge didn't give this instruction.
I'm just trying to understand what was...
I haven't read the record on this yet.
-: So the judge, when this came up
in the charge conference, she said
that those instructions weren't warranted,
because there was no injury to Mr. Colina.
And when it was pointed out
that in fact, there was injury
and provocation actually doesn't require injury,
she said the injury wasn't sufficient.
So, you know, I do think that that misses the point here
because of course, we're taking the evidence in the light
most favorable to Colina. Justice: I think you have
a question from Justice Gaziano.
-: Some of the cases, you know, fully,
some of the domestic violence cases have that type
of, Bianchi, have that type of concern.
As I see it, the light most favorable
is that there was an argument about rap,
the victim slaps the defendant backhanded in the mouth
and he says very hard, there's an exchange of blows.
There's a wrestling match, a headlock and unconsciousness.
That's a light most favorable to your client?
Do I have that right?
-: Yes, and again, with the context-
-: And that he'd been beaten up by him in the past, right?
-: Yes, and that the victim was the alpha male
in their relationship, that there had been fist fights
in the past. -: And your client
was a much bigger person. -: He was much larger,
but this was not, like, you know,
the domestic violence cases where there was, you know-
-: 275 pounds, right?
And he's a really big guy. He's, like, 6'3", 275.
This guy's, like, 5'9" something, like-
Billowitz: Yes, they were. -: He's really a tiny...
There's a big mismatch in size.
-: There is a mismatch. However, the victim was strong.
He worked as a baggage handler at Logan.
He was fit. They were both intoxicated.
So I don't think that that issue is dispositive the same way
as in some domestic violence cases
or situations where it was an elderly or disabled person.
-: Can you distinguish Feliz and Escobar as far as reversal
if you have those cases on you?
-: And is that about the prejudice
when there is premeditation?
-: Heck, I forgot to...
I don't mean to give a quiz,
but yeah. Billowitz: No, no, no-
-: If you could do that, please.
Billowitz: Well, glad I passed. (laughs)
-: Why is it reversible error?
-: So the jury's premeditation finding
doesn't preclude prejudice on these specific facts.
And this court said
in a Commonwealth versus Sirois,
I think is how it's pronounced,
because deliberate premeditation can occur
in a matter of seconds,
a finding of deliberate premeditation
is not necessarily inconsistent.
-: But what about the strangulation cases?
We've been different in those.
-: Yes, so and Felix, I think,
is the leading case on that.
So- -: That's why I was looking
at Felix for that proposition.
-: So the medical evidence in Felix
was a lot more extensive and precise.
And there, the victim died from ligature strangulation,
which would've needed application of a certain amount
of pressure for three to five minutes.
There also- -: Was that also
a domestic violence?
I can't remember. -: I'm sorry.
And here we have manual strangulation, right?
-: There was not a conclusive
cause of death here. -: Oh, yeah.
For obvious reasons. -: Yeah. Yeah.
So asphyxiation was ruled in as a possibility.
But all that the medical examiner testified
to was that that would be a matter of minutes
rather than seconds.
Here, everything, the sequence of events-
-: I guess the point I'm trying to make is that
ligature strangulation would probably take less time
than manual strangulation.
-: There was not anything to that effect in the record.
And I also think that the context
of the asphyxiation here is critical,
because what happened was that Mr. Colina
was trying to disable this attack on him
and render him unconscious in this headlock,
because he felt under threat.
That was the testimony that he gave.
And there's no evidence here that
he would've had to continue to hold him
in order to cause his death
after disabling him by rendering him unconscious.
So this wasn't a situation like Felix,
where the length of time for, you know,
to cause the strangulation
was inconsistent with provocation-
Kafker: Can I- -: Like, that sort of
allowed a cool down time
that just wasn't present here.
-: Can I ask one other related question?
This, in the lyrics,
back to the lyrics on strangulation,
this wrestler who does this to people
that is referenced,
doesn't that make that more relevant again?
Doesn't this wrestler, doesn't he put people
in that hold and shut them down?
That exact same hold we're dealing with here?
-: Yeah, there was a reference to a professional wrestler.
The trooper testified that he was famous
for his choke holds. Kafker: Strangle holds.
-: That does not seem to be supported.
But you know, again, there's a line
about the Bermuda Triangle.
Like, it rhymes- -: I get this stuff
that's not relevant.
I'm just trying to focus on the stuff that is relevant.
-: Well, I think that's the problem here
is that we can't retrospectively cherry pick the lyrics
that seem to have some connection
years after the fact and-
-: Counsel, there's one other thing with that.
Before you got rerouted to the manslaughter thing,
I'm glad we're back to the rap lyrics,
as you started to make the issue
or raise the issue about the prejudicial effect
versus the probative value.
And in a lot of times when we are looking
at the abuse of discretion standard,
one of the things that we look to is whether or not
you got a limiting instruction.
And that helps us to analyze
the abuse of discretion standard.
And in this case, after it was introduced,
you got the limiting instruction right?
And the trial judge said very specifically to the jury
the only way that they were to use this evidence, right?
-: That's correct.
Our position is because there was insufficient nexus here,
there wasn't any proper purpose for the jury
to consider these lyrics.
And so the limiting instruction,
it can't make irrelevant evidence admissible.
So there was no proper purpose
to direct the jury towards.
-: That's a different analysis.
That's losing on the relevant evidentiary issue.
Now you're downstream from that,
and now you are as the person objecting to it,
saying you're arguing the 403 analysis,
and then you lose that,
and now you get the limiting instruction.
So this, we're downstream from whether or not
it should come in for a proper purpose.
So in terms of the 403 analysis,
probative versus prejudicial,
you got the limiting instruction.
So how do we still now find an abuse of discretion?
-: Well, what we got was an over-broad
and confusing limiting instruction,
because it mentioned some of the purposes that it mentioned
were not even at issue here.
That could have only-
-: It's state of mind and it's something else.
What's the other part of it?
State of mind and modus operandi, isn't it?
-: It wasn't modus operandi, it was,
I wanna be precise about this.
It was identity or identification,
which was not at issue here.
Knowledge, which is not at issue here.
The lyrics didn't evidence any particular,
you know, knowledge of the act.
So I would say that those were insufficient
to mitigate the error.
And you know, there are certainly cases
where even when you have a limiting instruction,
the prejudice is powerful enough
that it overcomes that.
Justice: Thank you. -: All right.
-: Thank you for your time.
Justice: Thank you very much.
Okay, Attorney Walsh.
-: Good morning. May it please the court.
My name is Emily Walsh.
I'm an assistant district attorney from Middlesex
appearing for the Commonwealth.
The lyrics were properly admitted in this case,
because they had a strong nexus to the issues.
And as noted, limiting instructions
were repeatedly given to the jury.
They were given four times as each of the Commonwealth sets
of lyrics came in during final instructions,
and also the defendant admitted his own song
and limiting instruction was given again.
The lyrics themselves were also carefully limited.
From the CD, Cavi's demo, 19 lines were introduced
by the Commonwealth as discussed.
Those lyrics have a very direct nexus to the facts
of the case that there,
"I decapitated and dismembered his arms and legs,
sawed the neck off from the head."
-: Can I ask you to address the temporal nexus problem
with the undated CD?
-: Sure, well, as said, the CD is undated.
To address the question asked of my sister,
how did the trooper know the date of the CD,
my reading of that transcript,
They had just been talking about the computer file.
I think he may have been thinking of that when he-
-: Right, yeah, so I agree he can't possibly have known
the date of the undated CD.
Walsh: Correct. -: But how do we know
that it is within some reasonable timeframe of the murder?
-: So the remoteness and time really is not just positive
of whether the evidence should be admitted.
-: So you'll concede that we just don't know
the temporal nexus.
But in the totality of what the judge could have considered,
there was no abuse of discretion in allowing this in,
even if it was written in, like, 1980.
-: We have no...
It was a audio CD.
We just, well, I'm not sure he was alive in 1980, but-
-: Whatever the...
Sorry, betraying my own age.
Walsh: I think he was fairly young.
-: But let's say it was 19 or 2000.
-: It was not clear what the date was.
However, Correia instructs that rap lyrics are supposed
to be interpreted as, or analyzed as prior bad acts.
So considering these as prior bad acts,
remoteness and time is not dispositive
of whether the evidence should be admitted.
But rather cases like Peno make clear that
a reviewing court focuses on the logical relationship
between the bad act evidence and the crime.
Here, the logical relationship and the nexus is very strong.
Similar to Veiovis, it was evidence that shows
the defendant's apparent fascination
with amputation and human dismemberment,
offers an explanation to what would otherwise
be inexplicable.
And those drawings didn't have dates.
The CD here didn't have a date.
The focus is on the nexus between the bad act
and the crime at issue.
-: Can I ask you about the lesser included offense
in whether you or not, you conceded it was error
not to give the instruction?
-: Oh, on provocation? -: A provocation
in sudden combat.
-: So no, we do not concede
that there was any error there.
The- -: All right,
help me understand this. -: Sure.
A theory of reasonable provocation requires an objective
showing that the precipitating event would've provoked
heat of passion in the ordinary-
-: Okay, as I laid out earlier, as I see it,
they had passed arguments.
But anyway, there was an argument about music.
The victim slaps the defendant on the back of the hand
with the mouth, gives him back hand in the mouth.
It's very hard.
There's an exchange of blows
and they engage in a wrestling match, right?
-: Correct, I think this-
-: You're saying that's insufficient
to constitute loss of self-control?
-: Yes, I think this case is fairly similar to Felix.
In that case, the victim lunged
at and punched the defendant.
The court described that as a very weak provocation.
But what- -: But that was error.
Walsh: I understand. -: That was error in Felix.
That's why I asked you to,
whether or not you're gonna concede error.
-: Respectfully, I do not think it was
actually found to be error.
Rather the court skipped that question and said-
-: So yeah, even if. Yeah. Walsh: Correct.
So, again. -: Let's not skip it.
Tell me if it was error.
-: So I do think that the provocation,
the precipitating event was insufficient.
He slapped me, backhanded me in the mouth.
So we have a slap to the face,
and then the defendant says,
"I got up angrily," this is on page 82.
"I got up angrily and defended myself.
He threw a blow at me." So it was a slap.
And then the defendant did something
to defend himself and then there was a blow.
I do not think the physical confrontation
started by the victim standing alone
is not enough for reasonable crime.
-: I'm confused by that though,
'cause isn't this the classic sudden combat?
These guys are friends.
They're arguing about music.
The one guy, even though one guy's much bigger
than the other, this isn't really a domestic violence
type of situation, 'cause he says he's...
We also have evidence
that he's beaten up the defendant previously.
I just, I don't get why this isn't-
Walsh: As to sudden- -: Why it doesn't sort of...
Isn't this, like, typical of one of these things?
-: As to sudden combat specifically
for that not just provocation,
for sudden combat specifically it requires
that the victim pose a real risk of serious harm
to the defendant.
-: He says he got beat up by the guy previously.
-: Well, Benson and some other case law instructs
that that's actually not a relevant consideration.
Benson was a stalking case where the defendant said,
"You know, I was so scared of him."
-: Now leave out the domestic violence cases for-
-: It's not a domestic violence case.
Benson was not a domestic violence case.
-: Okay, go ahead.
-: And Benson instructs that in even ignoring
the precipitating event just for the moment,
Benson instructs that the question of whether there was
sufficient provocation to warrant a manslaughter instruction
depends on a number of timing issues.
First the sudden loss of control by the defendant.
Second, considering the victim's last overt act only.
The court there saw that this stalking relationship
that left, and it was not domestic.
It was, well, actually,
the conflict itself there was a new boyfriend,
and the new boyfriend was giving the husband a hard time.
But it wasn't a conflict between domestic partners.
One of the involved men
testified that the other involved man was stalking him.
And the court did not take into account that relationship
the stalking incident.
It said the last overt act.
What did he do when he came to your house that time?
And then finally and critically,
the third element discussed by Benson,
for there to be provocation,
the killing must occur before there was sufficient time
for the defendant to cool off.
And the case law is clear that manual strangulation
requires sustained force over a prolonged period of time.
-: Let me, just, it's similar
to Justice Gaziano's thing earlier,
which is, okay, I'm in a fight,
and this guy has the way of...
He's fighting this guy who's a tough guy
and his way of shutting him down is putting him
in that choke hold that we tell cops not
to use anymore either.
And he does that because the guy is angry
and a real fighter or whatever the term he uses.
That doesn't get you those instructions?
In our cases, I'm gonna go back and I have to read all these
drunken brawl cases we got.
But don't we usually get this instruction in that context?
-: Reading Felix and Benson together, especially considering
the nature of the strangulation,
those cases show that the killing has to occur
before there's sufficient time
for the defendant to cool off.
And that's to get the instruction.
That's not just considering the sufficiency
of the evidence.
It says that in the court- -: What is the opportunity
to cool off when they're engaged in a fight?
-: Because the- -: I could see we've had breaks
in the action in the, you know, where we have a cool off.
Someone walks away or...
-: The instruction- -: But here is one fight.
I don't get the cooled off part.
-: Well, I mean it wasn't really one fight, right?
Like, it was a slap and then some action by the defendant
and then a punch and then this.
-: I don't know if I agree with that,
but it's a sequence of events.
Walsh: It was- -: There's the physical.
Walsh: The defendant- -: There's an an argument,
a slap, wrestling.
That seems to me
to be one event. -: So it was on page 82
of the transcript.
The defendant on cross examination is very clear
each element of the fight and how it progressed.
He slapped me, backhanded me in the mouth very, very hard,
and then I got up angrily and I defended myself.
He threw a blow at me.
We started exchanging blows, and then he-
-: That isn't a classic fight?
That sound...
I mean, I'm not a brawler,
but that seems like a regular fight.
-: The issue is really not whether it's a classic fight.
The issue is whether there was a reasonable person
in the defendant's position would've lost control
in the heat of passion to warrant-
-: I thought your argument was more about it took so long
to actually strangulate him that he could have...
That was when he had time to cool off.
-: That is also...
I think that that is-
-: That might be your better argument.
Walsh: That is the- -: The idea of that
the defendant narrated this as a sequence of events
means that there was time to cool off seems uncredible.
-: No, I'm sorry.
I am arguing based on Benson and Felix that for two...
And Benson makes it clear, 'cause Felix is sort
of resolved on prejudice, skipping the issue.
But Benson, it discusses it as whether it is sufficient
to warrant the instruction itself depends
on the timing factor of whether there was sufficient time
to cool off. -: And here, the testimony
just remind me on the medical examiners
for how long did it take to hold a minute choke hold?
-: So the medical examiner, Dr. Welton,
testified that asphyxiation takes minutes, not seconds.
So he wasn't terribly specific,
but certainly minutes is more than enough time to cool off.
-: Can he tell, I mean, you know the record better.
Does he describe that he keeps him in this hold
because he's still resisting?
'Cause if that's the case- Walsh: No.
-: Then he's got him frozen like that,
'cause he doesn't want him to get out of that hold.
-: The defendant says that he quickly got the upper hand,
had his arm around his neck, leaned into him
with all his body weight until he was restrained
and no longer moving,
and he says the fight lasted 40 to 50 seconds.
And if I may, on cross-examination,
he also admitted that his goal,
he put him in the choke hold to win the fight.
He did not say that he was doing it
because, he had on direct I'm sure,
says he did it 'cause he was scared,
but on cross, which again, it's a reasonable person-
-: Win the fight. Does that cut both ways?
Because it's just otherwise,
he's going to lose the fight and-
-: Well, he quickly gained the upper hand in the fight
and he could have let go.
I'd also draw your attention to the fact-
-: But for the instruction we have to view it
in the light most favorable to the defendant.
I mean, that's certainly open
to the prosecution to argue, but the instruction-
-: The defendant's own testimony established
that during the fight it is not crystal clear
whether this was before this choke hold or after,
but before the victim was dead,
the defendant testified
that he could have left his apartment.
He said on cross examine-
-: But that's your self-defense case,
which you want. -: But it also shows
that the defendant was putting the victim
in a headlock and leaning his weight in.
Gaziano: Okay, lemme ask you-
Walsh: I'm sorry. -: Are you saying as a matter
of law that sudden combat is unavailable
in a case of manual strangulation?
-: No, I'm saying that sudden combat is...
Oh, I think it's rarely available.
I think that, well, sudden combat, risk of serious harm,
I'm really talking more about provocation.
I think that that's sudden combat.
-: Well, sudden combat's
a subset of provocation. -: Of course.
I'm not saying that...
There's no case that explicitly says,
but they're at odds.
The amount of time that it takes somebody
to kill somebody by asphyxiation-
-: To me, this all goes to whether or not there's prejudice
to get a new trial is the hub of, as we said,
the feebleness of that. -: I do understand that,
and I certainly see Your Honor's point.
It's just that I would draw your attention to Benson
where it does say that that is relevant consideration,
not just for prejudice in terms of getting the instruction,
but that it should be considered-
-: This is awful close, you know-
-: I respectfully disagree with you.
Looking at the case law with Felix and Benson-
-: You wouldn't tell one of your trial attorneys
to fight a sudden combat instruction, would you, on this?
These facts? -: Oh, not sudden combat.
Justice: Not after today. -: I would fight sudden combat.
I mean, the defendant here I would suggest
got more than he even was entitled to.
The self-defense instruction was really not even required,
because the defendant himself testified
that he had the ability to leave the fight,
and the right to self-defense arises
only in circumstance. -: Can you help us?
Say you was...
Tell me why there's not prejudice here.
Walsh: Well, Felix makes it-
-: Say you was, say we think a judge
should give this instruction,
because it's damn close if not required.
Why is there no prejudice here?
-: Felix squarely addresses that with going
to what Justice Gaziano has repeatedly said
that it goes to prejudice.
Felix said as this court found,
even if we were to assume that there was lack of error
in the lack of provocation instruction,
the error was not likely to have influenced
the jury's conclusion because the time required
to strangle the victim with a ligature,
and again, here's manual strangulation,
required a finding of deliberate premeditation
inconsistent with sudden provocation.
-: Are there any choke hold cases that support that?
'Cause I understand again,
and Justice Gaziano is more familiar,
was Felix the case where the the person was using
the halter top to choke the victim?
-: I think- -: And, you know,
if the woman- -: I'm not sure
what tool was used.
It was a domestic case where-
-: I thought he took her shirt and he was choking her.
-: I think that may be Felix.
-: Can I then, tell me-
Walsh: That may be Steeves.
I'm not- -: Are there any of these-
-: That might have been Bianchi, but that's-
-: Okay, are there any choke hold cases, literally?
'Cause you know, at one point we had all these people
using this, the cops were using this choke hold
to shut people down.
And are there any choke hold cases
where we make the same point as opposed
to these ligature cases which are more classic?
-: I'm not...
I didn't really make that distinction in my research
between ligature and manual.
But Felix, Steeves, Benson,
all of the cases basically asphyxiation,
however it's effectuated, takes time
that is inconsistent with provocation.
So they don't really...
The fact whether it's manual strangulation
or a ligature, the point is, it's time.
It takes time to asphyxiate someone.
And they're- -: It also takes time
in that choke hold to shut them down,
'cause it stops the fight.
-: It stops the fight, but you could end the fight
by letting him breathe again.
And instead the defendant testified that he spent
40 to 50 seconds leaning his body weight into him.
-: Is that the answer?
That because of the way this choke hold works,
although I assume we don't have expert testimony,
at some point he's incapacitated and wiped out,
and he could stop without continuing to kill him.
Is that- Walsh: Of course.
I mean, we didn't have- -: Is there anything
in this record that supports that?
I'm just, you know, again, 'cause-
-: I don't know.
There was not expert testimony on the specifics
of how asphyxiation worked beyond Dr. Welton testifying
to the amount of time that it takes.
But the judge in, well, going to your question
about whether you need to reverse,
and the answer lies squarely in Felix that you don't.
It addresses pretty much precisely that question.
It doesn't raise that issue of expert.
Are there further questions on this
or should I move on to the lyrics?
Justice: You can move on.
-: We discussed remote listen in time.
One thing that I would like to stress
that I'm not sure was really in the brief
in terms of prejudice with these lyrics,
in addition to the repeated limiting instruction
and the judge limiting the evidence
the Commonwealth was allowed to admit,
this really was not a theme
of the Commonwealth's case at trial.
The Commonwealth's opening refer...
It was 23 pages of transcript.
It refers to wrap in nine lines.
The cross of the defendant is lengthy.
It's about 125 transcripts. -: I thought it's important
to the premeditation argument because from what I remember
of this record is he can't get the person into the bag.
So he dismembers him to get him
into this container he has.
But you're using the rap music to prove premeditation,
that he has a fascination with dismemberment.
Walsh: Correct. -: As opposed to I choked him,
which gets into the manslaughter issues.
He died, I'm surprised, and then I had to, like,
conceal my crime by...
I thought you used the lyrics
to prove your first degree murder point.
-: Correct. So there were two sets of lyrics.
One discusses dismemberment and decapitation
and one discusses strangulation.
Both were admitted.
Of course, walking in to the trial,
we didn't know whether the defendant would testify.
We didn't know any of this would come out.
So the Commonwealth's theory of the case was supported
by the evidence that he was fascinated by decapitation,
dismemberment and asphyxiation.
-: So it is an important part of the case then.
-: It was minimally used by the Commonwealth.
The defendant- -: Well, what's the proof
of premeditation?
These guys are friends. They're arguing about rap music.
They get into a fight, it gets outta control.
And the defense is,
"I panicked and I couldn't dispose of the body."
-: So the evidence of premeditation argued at trial
was the coverup, the fact that the defendant
very thoroughly cleaned the house, the room,
and did not take any action to get help for the victim.
And also, the Commonwealth highlighted
the defendant's own testimony that he could have left,
and he did not.
That he admitted on cross-examination
that he could have left, did not,
because he was in his own house
and he wanted to defend himself in his own home,
and that he wanted to, "Win the fight."
So that was most of the evidence of premeditation.
-: Isn't the most important evidence of premeditation
the rap music? -: I would say it is not.
But before the defendant testified,
we didn't have his statements.
And so that was part of what the Commonwealth planned to use
to show premeditation was this fascination.
-: And the timing, the nexus
is much more provable on the strangulation
than it is on the dismemberment, right?
-: Correct, because we have the date
that that would- -: Then we have the copying
of the strangulation rap music-
Walsh: Correct.
That it was- -: As opposed to the other one,
we have nothing.
The other one's really old.
The dismemberment stuff is-
-: Well, we have no way to know.
It was an undated CD.
It could have been a week before.
It could have been five years before.
We don't know. It was old.
Wendlandt: Where was it found?
Walsh: The CD? -: Yes.
-: In the closet, but this is a 400 square foot apartment.
I mean, I don't know that being in the closet-
Wendlandt: I'm just curious.
-: Versus under the bed.
I mean, there's only so many places things can be.
But yes, it was found in the closet.
-: Doesn't the defendant testify about how old the CD is?
-: The defendant does testify that it's older,
but that was not known to the judge at the time
she made the decision to admit it.
And I would also argue that
it's of very little consequence.
The drawings in Veiovis, we have no idea how old they were
or when the defendant made the decision.
-: Weren't they up in his house when he was arrested?
-: There was a collage hanging on the wall.
-: What about the issue that was raised
by counsel about the shapelessness
of the limiting instruction?
Because the judge in this case
does what we've told judges a million times to stop doing,
and stop giving all the reasons why we say you can
introduce what would be otherwise propensity evidence
to localize it to what's at issue in this case.
And in this case, according to counsel,
and you know the record a little bit better than I,
when the limiting instruction comes in,
is it just the litany of all of this stuff
under that it could be relevant to,
but not necessarily relevant to this case?
-: I respectfully disagree.
I do not think it was a litany of categories. It was four.
She gave the same limiting instruction four times,
and it was state of mind identity
and intent, plan and knowledge.
And I think that those are all valid considerations.
-: Identity? -: Prior to the defendant
testifying, we didn't know that he would admit
that he was there.
I mean, I think it does tend to...
Yes, of course he was in his apartment,
but I don't think that
that was completely unnecessary.
I think that that was
within her discretion to give that one.
And she did not give everything.
She gave four specific categories and repeatedly gave them,
and they are similar to what was given in Veiovis,
which I believe had three categories.
And there was one that wasn't given in Veiovis.
I see my time is up, if there are any further questions.