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<v ->SJC-13260.</v>

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Commonwealth versus Carlos Colina.

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<v ->Okay, Attorney Billowitz.</v>

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<v ->Good morning. May it please the court.</v>

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Elizabeth Billowitz for Mr. Colina and with me

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at counsel table is Jack Cunha,

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Mr. Colina's trial counsel.

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Mr. Colina was convicted of premeditated murder

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and improper disposal of human remains.

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He conceded guilt on that second charge,

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and he admitted to dismembering

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the victim's body postmortem.

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However, his trial featured inflammatory rap lyrics

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written years earlier that mentioned

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dismemberment and other violent acts.

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The admission of these lyrics was squarely prohibited

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by this court's recent decision in Correia,

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which held that rap lyrics need to have a strong nexus

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to the issues to be decided in the case.

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That includes both a temporal nexus

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and nexus to the details of the alleged offense.

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<v ->So, as to the details, I mean, they're pretty spot on,</v>

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so I'm assuming you're conceding that or...

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<v ->Absolutely not.</v>
<v ->No. Why not?</v>

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I mean, it's about using a saw and the choke hold

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and all of the elements of what transpired here

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according to your client's own testimony.

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<v ->I absolutely would contest that there is a strong nexus</v>

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to the factual details of the events.

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<v Wendlandt>Right, but why?</v>
<v ->So the lyrics</v>

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don't even approach the kind of unmistakable factual

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connection found in the cases where nexus was affirmed.

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An example is in the Holmes case.

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The lyrics described tearing a necklace

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from a victim's neck, going through their pockets

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in a parking lot while wearing a ski mask.

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<v Gaziano>Well, what about Veiovis?</v>

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<v Billowitz>I'm sorry?</v>
<v ->What about Veiovis,</v>

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as far as the dismemberment fixation?

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There's a lot stronger evidence in this case,

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'cause Veiovis was drawings.

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This is him saying stuff.

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<v ->And I wanna get to the fascination in Veiovis.</v>

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Is it okay if I first-

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<v ->I'm sorry, I don't don't know</v>

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if you finished-
<v Billowitz>Answer in full-</v>

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<v ->Justice Wendlandt's question. I'm sorry.</v>

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<v Billowitz>Because I-</v>
<v ->But here, let me</v>

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just cut to the chase.

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I mean, some of the words here,

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and I excuse the audience who's watching,

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but it's, "I decapitated and dismembered his arms and legs."

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Isn't that what happened?
<v ->It is what happened.</v>

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<v ->I sawed off the neck from the head.</v>

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Isn't that what happened?

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<v Billowitz>Yes.</v>
<v ->Okay, and then,</v>

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"I strangled you in a choke hold," speaking to Johnny.

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Right? Isn't that what happened?

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But let's move on to the temporal nexus. Why is that?

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And you know, I'm sorry,

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Justice Gaziano.
<v Gaziano>No, please.</v>

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<v ->Why is the temporal nexus a problem?</v>

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<v ->It's undisputed that these lyrics were written at least</v>

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three to four years before the offense.

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<v ->Well, let's take one at a time.</v>

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What's the date of the demo CD?

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<v ->The demo CD did not itself have a date on it.</v>

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<v ->Okay, so how do we know it's,</v>

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what did you say, four to 12 years?

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<v ->Yes, so-</v>
<v ->Okay.</v>

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So how do we know that?
<v ->Mr. Colina himself testified</v>

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that he wrote it in 2002.

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The state trooper who introduced the songs testified

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that that was written in 2011 or 2012.

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<v ->And how does the state trooper know that?</v>

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<v ->I am not sure, honestly, what his basis</v>

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of knowledge is.
<v ->So we have your client</v>

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saying it was 2002.

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It was found during the search warrant.

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I guess I'm struggling to find the abuse of discretion

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in allowing this in.

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<v ->So there was certainly no evidence showing that</v>

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that was written more recently than three to four years ago.

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It was consistent with the other-

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<v ->Isn't a demo...</v>

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I thought it was downloaded again,

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more recently.
<v ->Yes.</v>

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<v ->Okay, so that's-</v>

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<v ->So, well, there's two things, right?</v>

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Like the...

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I'm sorry to talk over, but I just wanted to get

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the temporal nexus questions answered.

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As to the CD, it was a physical object, right?

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So that was not downloaded, right?

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That was just found during the first search warrant

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as undated.
<v ->That's correct.</v>

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<v ->Okay, but what was downloaded was the second file, right?</v>

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"The Cavias the Virus," right?

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And that was the choke hold language

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and was downloaded within three weeks of the murder, right?

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<v ->It was not...</v>

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I'm not sure downloaded is the correct term.

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There is no dispute that those lyrics were written

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four years earlier because there was a dated

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handwritten lyric sheet.

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And what the digital expert testified

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to was that that file-

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<v Wendlandt>Was saved.</v>
<v ->Was last edited</v>

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in January of 2012.

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It was copied, unchanged, unedited-

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<v Wendlandt>Three weeks before the murder.</v>

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<v ->Three weeks before, so-</v>

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<v ->But why is that not significant that it's copied?</v>

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I mean, I understand that we don't tend

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to resurrect things unless there's a reason, right?

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I guess it's copied in the context

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of a larger copying exercise, right?

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<v ->He added it to other music that was contained</v>

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on his desktop computer.

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So even if we assume that those lyrics were an expression

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of his state of mind when he wrote them,

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the simple act of copying them unchanged-

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<v ->Why wouldn't we assume for the benefit of argument</v>

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that they were part of his state of mind

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when he copied them?
<v ->I think that is-</v>

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<v Wendlandt>Unreasonable.</v>
<v ->Speculative.</v>

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Well, if I wrote a novel and kept it in my home office,

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and years later I took it to the living room

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and put it on a bookshelf-

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<v ->What about if Veiovis puts pictures</v>

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of dismemberment on his wall?

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And we don't know how long they've been there,

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but there they are.

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<v ->Well, having something visibly on one's wall,</v>

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I would argue is different

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from adding something to a collection

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among hundreds of other-

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<v ->But now we're getting into abuse of discretion.</v>

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That's the problem?

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<v ->Yes, abuse of discretion is the standard.</v>

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I do wanna point out though,

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if we look at the cases in jurisdictions applying

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the strong nexus test,

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I could not find a single case

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finding a sufficient temporal nexus

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when lyrics were written before the offense

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much less years before.

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<v ->And I wanted to ask you about that exact point,</v>

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because it strikes me that it is

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and should be much more difficult to introduce rap lyrics

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or any kind of lyrics that are written

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way before a crime as opposed to the kinds

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of cases you were talking about,

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where afterwards someone describes in music

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what they did and the details match up.

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Obviously, you know, no one is contending here

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that these were written after the fact

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describing what did occur.

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So when do you think a court could

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find sufficient nexus in the specific context

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of before the fact lyrics?

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<v ->Well, this court in Correia mentioned a couple</v>

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of federal cases that were used to show indirect nexus,

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familiarity with certain language.

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So there, if you're using, I think in those cases,

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there was drug lingo that was used in lyrics

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that were written beforehand.

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It was just used to show familiarity

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with the drug trade, so-

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<v ->But they have to prove premeditation too?</v>

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That's one of the...

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So before is much more relevant than afterwards

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in proving intent, right?

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<v ->That is what the Commonwealth sought to do.</v>

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I do want to just speak

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for another moment about the nexus to the factual details.

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Violence is ubiquitous in rap music.

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Even decapitation is not,

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or dismemberment is not unusual.

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In fact, the brother of the victim in this case,

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who was himself an aspiring rap artist,

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his lyrics included references to decapitation.

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And the details that are in these lyrics

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don't have any connection to the specifics of the offense.

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The demo CD track is a fiction.

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<v ->That's gotta be an overstatement.</v>

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I mean, it's just, I mean,

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it may be too far on the spectrum,

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but it's pretty close, you know?

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<v ->Not the words decapitation and dismemberment, I agree.</v>

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But they are situated in a-

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<v ->Choking, dismemberment, decapitation.</v>

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This isn't a shooting, you know? This is a little different.

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<v ->But the song that mentioned decapitation</v>

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and dismemberment was a narrative about a shooting.

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It told a story about gunshots

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whizzing across someone's nose

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and then taking revenge on the shooter

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along with the companion.

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None of those details have anything

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to do with this case.

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So it's a fictional narrative.

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The other song, which Justice Wendlandt brought up

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at the beginning, "The Virus," he says at the beginning,

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"Johnny, it was the fucking computer."

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That was a reference to problems they were having

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with their recording software.

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There wasn't anything about a computer

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in the offense years later.

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He then talks about the Bermuda Triangle,

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and then he says, "I strangle you in a choke hold."

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These are not the kinds

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of unmistakable factual connections

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to the lyrics.

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I wanna make sure I get to Veiovis,

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which Justice Gaziano raised.

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The Commonwealth is arguing here that the lyrics

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were probative of state of mind and intent

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because they showed a fascination with dismemberment,

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which was also something that

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came up in Veiovis.

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And the lyrics could of course, only show his state

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of mind at the time that he wrote them

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years before the offense.

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And Veiovis doesn't control here.

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That case didn't, of course, involve rap lyrics,

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the unique risk of prejudice,

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and wasn't applying a strong nexus test.

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<v ->Whoa, whoa, do you think it was more prejudicial</v>

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to have the rap lyrics in than to have the diagrams

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of dismemberment in Veiovis?

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<v Billowitz>Far more prejudicial.</v>

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<v ->I guess Justice Waller would probably agree with you,</v>

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(justice laughing)
but he didn't win

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the day in Veiovis.

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<v ->That was an ill-timed retirement</v>

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from my perspective.
(judges laughing)

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But I would say that the evidence also in Veiovis

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was introduced for purposes that weren't at issue here.

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It was introduced primarily to show identity.

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That was not at issue.

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Motive was not, it wasn't posited here.

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And, you know, I would agree with Justice Lowy to say

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00:11:49.830 --> 00:11:52.716
that Colina was fascinated by dismemberment

245
00:11:52.716 --> 00:11:57.716
and later acted in conformity with that fascination.

246
00:11:57.960 --> 00:12:01.023
Not just by dismembering the victim, but by killing him.

247
00:12:01.890 --> 00:12:05.883
That is quintessential propensity evidence.

248
00:12:06.870 --> 00:12:09.106
In order to link a fascination

249
00:12:09.106 --> 00:12:12.234
with dismemberment to a premeditated murder,

250
00:12:12.234 --> 00:12:14.550
you need a series of inferences.

251
00:12:14.550 --> 00:12:17.220
And I would say that none of these is adequately supported.

252
00:12:17.220 --> 00:12:19.500
You have to infer

253
00:12:19.500 --> 00:12:22.020
that he was expressing a literal fascination

254
00:12:22.020 --> 00:12:23.850
with dismemberment in the lyrics.

255
00:12:23.850 --> 00:12:27.823
Not just a fictional storyline or rap tropes.

256
00:12:27.823 --> 00:12:32.370
<v ->But that presumes a purpose</v>

257
00:12:32.370 --> 00:12:35.463
for which it's being offered that it wasn't being offered.

258
00:12:37.260 --> 00:12:39.990
What you are arguing and what you're setting up is

259
00:12:39.990 --> 00:12:43.380
if it were being offered on the issue of propensity.

260
00:12:43.380 --> 00:12:46.110
It wasn't being offered for that purpose.

261
00:12:46.110 --> 00:12:50.730
So to the extent that the Commonwealth had to prove intent

262
00:12:50.730 --> 00:12:54.120
in the state of mind of Mr. Colina,

263
00:12:54.120 --> 00:12:57.120
it's not being offered to show that he's just a bad guy

264
00:12:57.120 --> 00:12:58.740
that does bad things.

265
00:12:58.740 --> 00:13:01.860
It's being offered specifically on that issue.

266
00:13:01.860 --> 00:13:04.020
And again, so going back to the issue

267
00:13:04.020 --> 00:13:06.504
of the abuse of discretion,

268
00:13:06.504 --> 00:13:10.740
how is it not relevant to that issue?

269
00:13:10.740 --> 00:13:14.590
<v ->Because there is not a sufficiently strong nexus</v>

270
00:13:15.450 --> 00:13:18.810
under this court's recent jurisprudence in Correia.

271
00:13:18.810 --> 00:13:21.780
Not a strong enough factual nexus,

272
00:13:21.780 --> 00:13:23.910
not a strong enough temporal nexus.

273
00:13:23.910 --> 00:13:27.540
And so without that probative value,

274
00:13:27.540 --> 00:13:29.700
there isn't a legitimate purpose

275
00:13:29.700 --> 00:13:33.210
for these lyrics to be here.

276
00:13:33.210 --> 00:13:36.630
<v ->I suppose, but is that an advocate's gloss,</v>

277
00:13:36.630 --> 00:13:41.430
or is that the trial judge's abuse of discretion?

278
00:13:41.430 --> 00:13:43.770
Because as Justice Wendlandt went through,

279
00:13:43.770 --> 00:13:47.362
not only the rap lyrics, but again, you may disagree,

280
00:13:47.362 --> 00:13:52.362
but the fact that it was accessed in the weeks prior to,

281
00:13:53.010 --> 00:13:55.470
you can make the argument that the temporal is there.

282
00:13:55.470 --> 00:13:58.650
And even though you might say there's a larger narrative

283
00:13:58.650 --> 00:14:01.710
as to where those lyrics that Justice Wendlandt

284
00:14:01.710 --> 00:14:04.170
talked about, there's a larger story there.

285
00:14:04.170 --> 00:14:08.677
But nevertheless, in that rap song, they talk about,

286
00:14:08.677 --> 00:14:10.590
"I'm cutting your head off, I'm dismembering you."

287
00:14:10.590 --> 00:14:12.240
And that's exactly what happened

288
00:14:12.240 --> 00:14:15.003
to this poor man.

289
00:14:16.920 --> 00:14:20.700
<v ->In that song, it was the singer</v>

290
00:14:20.700 --> 00:14:24.374
and a another person dismembering someone.

291
00:14:24.374 --> 00:14:26.890
None of this was addressed

292
00:14:27.810 --> 00:14:30.543
to the victim in this case.

293
00:14:33.690 --> 00:14:36.843
You know, your point is taken.

294
00:14:38.550 --> 00:14:42.971
Even if we were to assume that these did have

295
00:14:42.971 --> 00:14:46.023
some relevance to his state of mind,

296
00:14:46.980 --> 00:14:51.120
the next problem is that these were more prejudicial

297
00:14:51.120 --> 00:14:52.683
than probative.
<v ->Can I...</v>

298
00:14:52.683 --> 00:14:56.190
I would like, I actually find your sudden combat

299
00:14:56.190 --> 00:14:58.680
and provocation argument

300
00:14:58.680 --> 00:15:00.930
more compelling maybe than this one.

301
00:15:00.930 --> 00:15:03.030
Could you devote some time to that

302
00:15:03.030 --> 00:15:05.444
before you stop?
<v ->Absolutely.</v>

303
00:15:05.444 --> 00:15:08.310
So the trial judge here refused

304
00:15:08.310 --> 00:15:10.140
to give manslaughter instructions based

305
00:15:10.140 --> 00:15:13.050
on provocation and sudden combat.

306
00:15:13.050 --> 00:15:17.673
Here, the provocation was a hard blow to Colina's face.

307
00:15:18.510 --> 00:15:20.640
And according to the model jury instructions

308
00:15:20.640 --> 00:15:23.907
for both provocation and sudden combat, physical contact,

309
00:15:23.907 --> 00:15:26.580
even a single blow can suffice.

310
00:15:26.580 --> 00:15:28.800
So we take-
<v ->There's testimony</v>

311
00:15:28.800 --> 00:15:30.030
from the defendant, right,

312
00:15:30.030 --> 00:15:34.770
that he had been beaten up before by the victim, right?

313
00:15:34.770 --> 00:15:35.603
<v Billowitz>That's correct.</v>

314
00:15:35.603 --> 00:15:37.590
<v ->So he gets smacked in the face.</v>

315
00:15:37.590 --> 00:15:40.582
And this guy, even though he's much tinier than he is,

316
00:15:40.582 --> 00:15:45.030
he's very tough and he's beaten him up in the past.

317
00:15:45.030 --> 00:15:47.223
Was this presented to the judge?

318
00:15:48.628 --> 00:15:50.172
I'm just, I'm a little confused

319
00:15:50.172 --> 00:15:52.530
of why the judge didn't give this instruction.

320
00:15:52.530 --> 00:15:54.660
I'm just trying to understand what was...

321
00:15:54.660 --> 00:15:56.040
I haven't read the record on this yet.

322
00:15:56.040 --> 00:15:59.845
<v ->So the judge, when this came up</v>

323
00:15:59.845 --> 00:16:04.140
in the charge conference, she said

324
00:16:04.140 --> 00:16:06.810
that those instructions weren't warranted,

325
00:16:06.810 --> 00:16:11.810
because there was no injury to Mr. Colina.

326
00:16:12.330 --> 00:16:15.450
And when it was pointed out

327
00:16:15.450 --> 00:16:20.130
that in fact, there was injury

328
00:16:20.130 --> 00:16:23.343
and provocation actually doesn't require injury,

329
00:16:24.630 --> 00:16:26.280
she said the injury wasn't sufficient.

330
00:16:26.280 --> 00:16:29.272
So, you know, I do think that that misses the point here

331
00:16:29.272 --> 00:16:32.160
because of course, we're taking the evidence in the light

332
00:16:32.160 --> 00:16:34.033
most favorable to Colina.
<v Justice>I think you have</v>

333
00:16:34.033 --> 00:16:36.780
a question from Justice Gaziano.

334
00:16:36.780 --> 00:16:39.093
<v ->Some of the cases, you know, fully,</v>

335
00:16:40.350 --> 00:16:43.320
some of the domestic violence cases have that type

336
00:16:43.320 --> 00:16:47.280
of, Bianchi, have that type of concern.

337
00:16:47.280 --> 00:16:49.279
As I see it, the light most favorable

338
00:16:49.279 --> 00:16:52.425
is that there was an argument about rap,

339
00:16:52.425 --> 00:16:57.425
the victim slaps the defendant backhanded in the mouth

340
00:16:57.810 --> 00:17:01.260
and he says very hard, there's an exchange of blows.

341
00:17:01.260 --> 00:17:04.140
There's a wrestling match, a headlock and unconsciousness.

342
00:17:04.140 --> 00:17:07.140
That's a light most favorable to your client?

343
00:17:07.140 --> 00:17:08.490
Do I have that right?

344
00:17:08.490 --> 00:17:09.990
<v ->Yes, and again, with the context-</v>

345
00:17:09.990 --> 00:17:12.510
<v ->And that he'd been beaten up by him in the past, right?</v>

346
00:17:12.510 --> 00:17:16.380
<v ->Yes, and that the victim was the alpha male</v>

347
00:17:16.380 --> 00:17:19.170
in their relationship, that there had been fist fights

348
00:17:19.170 --> 00:17:21.150
in the past.
<v ->And your client</v>

349
00:17:21.150 --> 00:17:24.630
was a much bigger person.
<v ->He was much larger,</v>

350
00:17:24.630 --> 00:17:26.607
but this was not, like, you know,

351
00:17:26.607 --> 00:17:29.460
the domestic violence cases where there was, you know-

352
00:17:29.460 --> 00:17:30.930
<v ->275 pounds, right?</v>

353
00:17:30.930 --> 00:17:33.930
And he's a really big guy. He's, like, 6'3", 275.

354
00:17:33.930 --> 00:17:36.480
This guy's, like, 5'9" something, like-

355
00:17:36.480 --> 00:17:38.010
<v Billowitz>Yes, they were.</v>
<v ->He's really a tiny...</v>

356
00:17:38.010 --> 00:17:39.984
There's a big mismatch in size.

357
00:17:39.984 --> 00:17:44.984
<v ->There is a mismatch. However, the victim was strong.</v>

358
00:17:45.060 --> 00:17:47.640
He worked as a baggage handler at Logan.

359
00:17:47.640 --> 00:17:51.153
He was fit. They were both intoxicated.

360
00:17:52.050 --> 00:17:55.620
So I don't think that that issue is dispositive the same way

361
00:17:55.620 --> 00:17:57.570
as in some domestic violence cases

362
00:17:57.570 --> 00:18:01.800
or situations where it was an elderly or disabled person.

363
00:18:01.800 --> 00:18:05.530
<v ->Can you distinguish Feliz and Escobar as far as reversal</v>

364
00:18:06.570 --> 00:18:08.120
if you have those cases on you?

365
00:18:09.540 --> 00:18:12.030
<v ->And is that about the prejudice</v>

366
00:18:12.030 --> 00:18:14.160
when there is premeditation?

367
00:18:14.160 --> 00:18:14.993
<v ->Heck, I forgot to...</v>

368
00:18:14.993 --> 00:18:16.860
I don't mean to give a quiz,

369
00:18:16.860 --> 00:18:17.693
but yeah.
<v Billowitz>No, no, no-</v>

370
00:18:17.693 --> 00:18:19.187
<v ->If you could do that, please.</v>

371
00:18:19.187 --> 00:18:20.646
<v Billowitz>Well, glad I passed. (laughs)</v>

372
00:18:20.646 --> 00:18:22.055
<v ->Why is it reversible error?</v>

373
00:18:22.055 --> 00:18:24.712
<v ->So the jury's premeditation finding</v>

374
00:18:24.712 --> 00:18:29.400
doesn't preclude prejudice on these specific facts.

375
00:18:29.400 --> 00:18:32.520
And this court said

376
00:18:32.520 --> 00:18:35.610
in a Commonwealth versus Sirois,

377
00:18:35.610 --> 00:18:37.320
I think is how it's pronounced,

378
00:18:37.320 --> 00:18:39.960
because deliberate premeditation can occur

379
00:18:39.960 --> 00:18:41.370
in a matter of seconds,

380
00:18:41.370 --> 00:18:43.530
a finding of deliberate premeditation

381
00:18:43.530 --> 00:18:46.290
is not necessarily inconsistent.

382
00:18:46.290 --> 00:18:47.520
<v ->But what about the strangulation cases?</v>

383
00:18:47.520 --> 00:18:48.930
We've been different in those.

384
00:18:48.930 --> 00:18:53.310
<v ->Yes, so and Felix, I think,</v>

385
00:18:53.310 --> 00:18:54.780
is the leading case on that.

386
00:18:54.780 --> 00:18:56.172
So-
<v ->That's why I was looking</v>

387
00:18:56.172 --> 00:18:57.375
at Felix for that proposition.

388
00:18:57.375 --> 00:19:00.661
<v ->So the medical evidence in Felix</v>

389
00:19:00.661 --> 00:19:04.440
was a lot more extensive and precise.

390
00:19:04.440 --> 00:19:08.204
And there, the victim died from ligature strangulation,

391
00:19:08.204 --> 00:19:11.430
which would've needed application of a certain amount

392
00:19:11.430 --> 00:19:15.090
of pressure for three to five minutes.

393
00:19:15.090 --> 00:19:16.890
There also-
<v ->Was that also</v>

394
00:19:16.890 --> 00:19:17.940
a domestic violence?

395
00:19:17.940 --> 00:19:19.201
I can't remember.
<v ->I'm sorry.</v>

396
00:19:19.201 --> 00:19:21.813
And here we have manual strangulation, right?

397
00:19:23.850 --> 00:19:26.890
<v ->There was not a conclusive</v>

398
00:19:28.440 --> 00:19:31.020
cause of death here.
<v ->Oh, yeah.</v>

399
00:19:31.020 --> 00:19:32.160
For obvious reasons.
<v ->Yeah. Yeah.</v>

400
00:19:32.160 --> 00:19:36.052
So asphyxiation was ruled in as a possibility.

401
00:19:36.052 --> 00:19:39.471
But all that the medical examiner testified

402
00:19:39.471 --> 00:19:41.972
to was that that would be a matter of minutes

403
00:19:41.972 --> 00:19:43.830
rather than seconds.

404
00:19:43.830 --> 00:19:47.100
Here, everything, the sequence of events-

405
00:19:47.100 --> 00:19:48.510
<v ->I guess the point I'm trying to make is that</v>

406
00:19:48.510 --> 00:19:51.184
ligature strangulation would probably take less time

407
00:19:51.184 --> 00:19:53.820
than manual strangulation.

408
00:19:53.820 --> 00:19:56.670
<v ->There was not anything to that effect in the record.</v>

409
00:19:56.670 --> 00:19:58.890
And I also think that the context

410
00:19:58.890 --> 00:20:01.260
of the asphyxiation here is critical,

411
00:20:01.260 --> 00:20:05.220
because what happened was that Mr. Colina

412
00:20:05.220 --> 00:20:09.158
was trying to disable this attack on him

413
00:20:09.158 --> 00:20:14.158
and render him unconscious in this headlock,

414
00:20:14.580 --> 00:20:16.020
because he felt under threat.

415
00:20:16.020 --> 00:20:19.080
That was the testimony that he gave.

416
00:20:19.080 --> 00:20:21.748
And there's no evidence here that

417
00:20:21.748 --> 00:20:26.168
he would've had to continue to hold him

418
00:20:26.168 --> 00:20:28.178
in order to cause his death

419
00:20:28.178 --> 00:20:32.910
after disabling him by rendering him unconscious.

420
00:20:32.910 --> 00:20:35.367
So this wasn't a situation like Felix,

421
00:20:35.367 --> 00:20:39.000
where the length of time for, you know,

422
00:20:39.000 --> 00:20:40.830
to cause the strangulation

423
00:20:40.830 --> 00:20:43.697
was inconsistent with provocation-

424
00:20:43.697 --> 00:20:45.480
<v Kafker>Can I-</v>
<v ->Like, that sort of</v>

425
00:20:45.480 --> 00:20:48.090
allowed a cool down time

426
00:20:48.090 --> 00:20:50.097
that just wasn't present here.

427
00:20:50.097 --> 00:20:52.055
<v ->Can I ask one other related question?</v>

428
00:20:52.055 --> 00:20:55.620
This, in the lyrics,

429
00:20:55.620 --> 00:20:58.020
back to the lyrics on strangulation,

430
00:20:58.020 --> 00:21:01.320
this wrestler who does this to people

431
00:21:01.320 --> 00:21:02.730
that is referenced,

432
00:21:02.730 --> 00:21:06.270
doesn't that make that more relevant again?

433
00:21:06.270 --> 00:21:08.400
Doesn't this wrestler, doesn't he put people

434
00:21:08.400 --> 00:21:10.650
in that hold and shut them down?

435
00:21:10.650 --> 00:21:12.900
That exact same hold we're dealing with here?

436
00:21:12.900 --> 00:21:15.330
<v ->Yeah, there was a reference to a professional wrestler.</v>

437
00:21:15.330 --> 00:21:17.790
The trooper testified that he was famous

438
00:21:17.790 --> 00:21:19.971
for his choke holds.
<v Kafker>Strangle holds.</v>

439
00:21:19.971 --> 00:21:24.971
<v ->That does not seem to be supported.</v>

440
00:21:25.122 --> 00:21:29.430
But you know, again, there's a line

441
00:21:29.430 --> 00:21:30.810
about the Bermuda Triangle.

442
00:21:30.810 --> 00:21:33.540
Like, it rhymes-
<v ->I get this stuff</v>

443
00:21:33.540 --> 00:21:34.373
that's not relevant.

444
00:21:34.373 --> 00:21:36.690
I'm just trying to focus on the stuff that is relevant.

445
00:21:36.690 --> 00:21:38.310
<v ->Well, I think that's the problem here</v>

446
00:21:38.310 --> 00:21:42.513
is that we can't retrospectively cherry pick the lyrics

447
00:21:42.513 --> 00:21:46.114
that seem to have some connection

448
00:21:46.114 --> 00:21:51.011
years after the fact and-

449
00:21:51.011 --> 00:21:53.213
<v ->Counsel, there's one other thing with that.</v>

450
00:21:53.213 --> 00:21:56.430
Before you got rerouted to the manslaughter thing,

451
00:21:56.430 --> 00:21:57.930
I'm glad we're back to the rap lyrics,

452
00:21:57.930 --> 00:22:00.297
as you started to make the issue

453
00:22:00.297 --> 00:22:04.560
or raise the issue about the prejudicial effect

454
00:22:04.560 --> 00:22:06.450
versus the probative value.

455
00:22:06.450 --> 00:22:09.270
And in a lot of times when we are looking

456
00:22:09.270 --> 00:22:11.835
at the abuse of discretion standard,

457
00:22:11.835 --> 00:22:15.480
one of the things that we look to is whether or not

458
00:22:15.480 --> 00:22:17.160
you got a limiting instruction.

459
00:22:17.160 --> 00:22:20.070
And that helps us to analyze

460
00:22:20.070 --> 00:22:22.740
the abuse of discretion standard.

461
00:22:22.740 --> 00:22:25.710
And in this case, after it was introduced,

462
00:22:25.710 --> 00:22:27.720
you got the limiting instruction right?

463
00:22:27.720 --> 00:22:30.692
And the trial judge said very specifically to the jury

464
00:22:30.692 --> 00:22:35.141
the only way that they were to use this evidence, right?

465
00:22:35.141 --> 00:22:37.023
<v ->That's correct.</v>

466
00:22:38.220 --> 00:22:41.820
Our position is because there was insufficient nexus here,

467
00:22:41.820 --> 00:22:44.070
there wasn't any proper purpose for the jury

468
00:22:44.070 --> 00:22:45.360
to consider these lyrics.

469
00:22:45.360 --> 00:22:46.815
And so the limiting instruction,

470
00:22:46.815 --> 00:22:51.150
it can't make irrelevant evidence admissible.

471
00:22:51.150 --> 00:22:53.478
So there was no proper purpose

472
00:22:53.478 --> 00:22:56.310
to direct the jury towards.

473
00:22:56.310 --> 00:22:57.600
<v ->That's a different analysis.</v>

474
00:22:57.600 --> 00:23:01.770
That's losing on the relevant evidentiary issue.

475
00:23:01.770 --> 00:23:03.240
Now you're downstream from that,

476
00:23:03.240 --> 00:23:06.030
and now you are as the person objecting to it,

477
00:23:06.030 --> 00:23:08.970
saying you're arguing the 403 analysis,

478
00:23:08.970 --> 00:23:10.590
and then you lose that,

479
00:23:10.590 --> 00:23:12.510
and now you get the limiting instruction.

480
00:23:12.510 --> 00:23:16.440
So this, we're downstream from whether or not

481
00:23:16.440 --> 00:23:18.780
it should come in for a proper purpose.

482
00:23:18.780 --> 00:23:22.230
So in terms of the 403 analysis,

483
00:23:22.230 --> 00:23:23.880
probative versus prejudicial,

484
00:23:23.880 --> 00:23:25.560
you got the limiting instruction.

485
00:23:25.560 --> 00:23:29.520
So how do we still now find an abuse of discretion?

486
00:23:29.520 --> 00:23:32.130
<v ->Well, what we got was an over-broad</v>

487
00:23:32.130 --> 00:23:33.960
and confusing limiting instruction,

488
00:23:33.960 --> 00:23:37.155
because it mentioned some of the purposes that it mentioned

489
00:23:37.155 --> 00:23:40.260
were not even at issue here.

490
00:23:40.260 --> 00:23:41.100
That could have only-

491
00:23:41.100 --> 00:23:43.680
<v ->It's state of mind and it's something else.</v>

492
00:23:43.680 --> 00:23:44.700
What's the other part of it?

493
00:23:44.700 --> 00:23:47.250
State of mind and modus operandi, isn't it?

494
00:23:47.250 --> 00:23:49.983
<v ->It wasn't modus operandi, it was,</v>

495
00:23:50.866 --> 00:23:53.880
I wanna be precise about this.

496
00:23:53.880 --> 00:23:57.060
It was identity or identification,

497
00:23:57.060 --> 00:23:59.670
which was not at issue here.

498
00:23:59.670 --> 00:24:01.440
Knowledge, which is not at issue here.

499
00:24:01.440 --> 00:24:03.480
The lyrics didn't evidence any particular,

500
00:24:03.480 --> 00:24:05.640
you know, knowledge of the act.

501
00:24:05.640 --> 00:24:08.580
So I would say that those were insufficient

502
00:24:08.580 --> 00:24:11.580
to mitigate the error.

503
00:24:11.580 --> 00:24:13.530
And you know, there are certainly cases

504
00:24:13.530 --> 00:24:15.110
where even when you have a limiting instruction,

505
00:24:15.110 --> 00:24:19.406
the prejudice is powerful enough

506
00:24:19.406 --> 00:24:21.870
that it overcomes that.

507
00:24:21.870 --> 00:24:23.670
<v Justice>Thank you.</v>
<v ->All right.</v>

508
00:24:24.600 --> 00:24:25.500
<v ->Thank you for your time.</v>

509
00:24:25.500 --> 00:24:27.100
<v Justice>Thank you very much.</v>

510
00:24:30.060 --> 00:24:31.173
Okay, Attorney Walsh.

511
00:24:32.670 --> 00:24:33.990
<v ->Good morning. May it please the court.</v>

512
00:24:33.990 --> 00:24:34.920
My name is Emily Walsh.

513
00:24:34.920 --> 00:24:37.084
I'm an assistant district attorney from Middlesex

514
00:24:37.084 --> 00:24:38.703
appearing for the Commonwealth.

515
00:24:39.690 --> 00:24:41.820
The lyrics were properly admitted in this case,

516
00:24:41.820 --> 00:24:43.800
because they had a strong nexus to the issues.

517
00:24:43.800 --> 00:24:45.780
And as noted, limiting instructions

518
00:24:45.780 --> 00:24:47.400
were repeatedly given to the jury.

519
00:24:47.400 --> 00:24:50.730
They were given four times as each of the Commonwealth sets

520
00:24:50.730 --> 00:24:52.860
of lyrics came in during final instructions,

521
00:24:52.860 --> 00:24:55.612
and also the defendant admitted his own song

522
00:24:55.612 --> 00:24:58.318
and limiting instruction was given again.

523
00:24:58.318 --> 00:25:01.470
The lyrics themselves were also carefully limited.

524
00:25:01.470 --> 00:25:04.980
From the CD, Cavi's demo, 19 lines were introduced

525
00:25:04.980 --> 00:25:06.960
by the Commonwealth as discussed.

526
00:25:06.960 --> 00:25:10.200
Those lyrics have a very direct nexus to the facts

527
00:25:10.200 --> 00:25:11.287
of the case that there,

528
00:25:11.287 --> 00:25:14.340
"I decapitated and dismembered his arms and legs,

529
00:25:14.340 --> 00:25:16.891
sawed the neck off from the head."

530
00:25:16.891 --> 00:25:20.284
<v ->Can I ask you to address the temporal nexus problem</v>

531
00:25:20.284 --> 00:25:22.980
with the undated CD?

532
00:25:22.980 --> 00:25:25.260
<v ->Sure, well, as said, the CD is undated.</v>

533
00:25:25.260 --> 00:25:28.186
To address the question asked of my sister,

534
00:25:28.186 --> 00:25:31.440
how did the trooper know the date of the CD,

535
00:25:31.440 --> 00:25:32.610
my reading of that transcript,

536
00:25:32.610 --> 00:25:35.818
They had just been talking about the computer file.

537
00:25:35.818 --> 00:25:39.180
I think he may have been thinking of that when he-

538
00:25:39.180 --> 00:25:41.156
<v ->Right, yeah, so I agree he can't possibly have known</v>

539
00:25:41.156 --> 00:25:43.710
the date of the undated CD.

540
00:25:43.710 --> 00:25:45.270
<v Walsh>Correct.</v>
<v ->But how do we know</v>

541
00:25:45.270 --> 00:25:49.890
that it is within some reasonable timeframe of the murder?

542
00:25:49.890 --> 00:25:53.070
<v ->So the remoteness and time really is not just positive</v>

543
00:25:53.070 --> 00:25:54.540
of whether the evidence should be admitted.

544
00:25:54.540 --> 00:25:56.400
<v ->So you'll concede that we just don't know</v>

545
00:25:56.400 --> 00:25:57.390
the temporal nexus.

546
00:25:57.390 --> 00:26:00.420
But in the totality of what the judge could have considered,

547
00:26:00.420 --> 00:26:03.480
there was no abuse of discretion in allowing this in,

548
00:26:03.480 --> 00:26:05.432
even if it was written in, like, 1980.

549
00:26:05.432 --> 00:26:06.265
<v ->We have no...</v>

550
00:26:06.265 --> 00:26:07.830
It was a audio CD.

551
00:26:07.830 --> 00:26:10.602
We just, well, I'm not sure he was alive in 1980, but-

552
00:26:10.602 --> 00:26:11.554
<v ->Whatever the...</v>

553
00:26:11.554 --> 00:26:14.460
Sorry, betraying my own age.

554
00:26:14.460 --> 00:26:16.052
<v Walsh>I think he was fairly young.</v>

555
00:26:16.052 --> 00:26:17.156
<v ->But let's say it was 19 or 2000.</v>

556
00:26:17.156 --> 00:26:20.460
<v ->It was not clear what the date was.</v>

557
00:26:20.460 --> 00:26:24.180
However, Correia instructs that rap lyrics are supposed

558
00:26:24.180 --> 00:26:27.870
to be interpreted as, or analyzed as prior bad acts.

559
00:26:27.870 --> 00:26:29.850
So considering these as prior bad acts,

560
00:26:29.850 --> 00:26:31.950
remoteness and time is not dispositive

561
00:26:31.950 --> 00:26:34.290
of whether the evidence should be admitted.

562
00:26:34.290 --> 00:26:36.900
But rather cases like Peno make clear that

563
00:26:36.900 --> 00:26:39.780
a reviewing court focuses on the logical relationship

564
00:26:39.780 --> 00:26:42.450
between the bad act evidence and the crime.

565
00:26:42.450 --> 00:26:46.860
Here, the logical relationship and the nexus is very strong.

566
00:26:46.860 --> 00:26:51.300
Similar to Veiovis, it was evidence that shows

567
00:26:51.300 --> 00:26:53.070
the defendant's apparent fascination

568
00:26:53.070 --> 00:26:55.410
with amputation and human dismemberment,

569
00:26:55.410 --> 00:26:58.140
offers an explanation to what would otherwise

570
00:26:58.140 --> 00:26:59.130
be inexplicable.

571
00:26:59.130 --> 00:27:01.080
And those drawings didn't have dates.

572
00:27:01.080 --> 00:27:03.210
The CD here didn't have a date.

573
00:27:03.210 --> 00:27:07.194
The focus is on the nexus between the bad act

574
00:27:07.194 --> 00:27:09.123
and the crime at issue.

575
00:27:10.350 --> 00:27:12.480
<v ->Can I ask you about the lesser included offense</v>

576
00:27:12.480 --> 00:27:17.400
in whether you or not, you conceded it was error

577
00:27:17.400 --> 00:27:19.260
not to give the instruction?

578
00:27:19.260 --> 00:27:21.668
<v ->Oh, on provocation?</v>
<v ->A provocation</v>

579
00:27:21.668 --> 00:27:23.280
in sudden combat.

580
00:27:23.280 --> 00:27:25.140
<v ->So no, we do not concede</v>

581
00:27:25.140 --> 00:27:27.120
that there was any error there.

582
00:27:27.120 --> 00:27:27.953
The-
<v ->All right,</v>

583
00:27:27.953 --> 00:27:29.618
help me understand this.
<v ->Sure.</v>

584
00:27:29.618 --> 00:27:32.282
A theory of reasonable provocation requires an objective

585
00:27:32.282 --> 00:27:35.010
showing that the precipitating event would've provoked

586
00:27:35.010 --> 00:27:37.050
heat of passion in the ordinary-

587
00:27:37.050 --> 00:27:41.520
<v ->Okay, as I laid out earlier, as I see it,</v>

588
00:27:41.520 --> 00:27:42.660
they had passed arguments.

589
00:27:42.660 --> 00:27:45.030
But anyway, there was an argument about music.

590
00:27:45.030 --> 00:27:47.670
The victim slaps the defendant on the back of the hand

591
00:27:47.670 --> 00:27:50.430
with the mouth, gives him back hand in the mouth.

592
00:27:50.430 --> 00:27:51.930
It's very hard.

593
00:27:51.930 --> 00:27:53.522
There's an exchange of blows

594
00:27:53.522 --> 00:27:56.763
and they engage in a wrestling match, right?

595
00:27:57.720 --> 00:27:59.040
<v ->Correct, I think this-</v>

596
00:27:59.040 --> 00:28:00.420
<v ->You're saying that's insufficient</v>

597
00:28:00.420 --> 00:28:03.450
to constitute loss of self-control?

598
00:28:03.450 --> 00:28:06.780
<v ->Yes, I think this case is fairly similar to Felix.</v>

599
00:28:06.780 --> 00:28:09.780
In that case, the victim lunged

600
00:28:09.780 --> 00:28:11.670
at and punched the defendant.

601
00:28:11.670 --> 00:28:14.700
The court described that as a very weak provocation.

602
00:28:14.700 --> 00:28:16.693
But what-
<v ->But that was error.</v>

603
00:28:16.693 --> 00:28:17.751
<v Walsh>I understand.</v>
<v ->That was error in Felix.</v>

604
00:28:17.751 --> 00:28:18.952
That's why I asked you to,

605
00:28:18.952 --> 00:28:20.400
whether or not you're gonna concede error.

606
00:28:20.400 --> 00:28:21.660
<v ->Respectfully, I do not think it was</v>

607
00:28:21.660 --> 00:28:23.130
actually found to be error.

608
00:28:23.130 --> 00:28:25.500
Rather the court skipped that question and said-

609
00:28:25.500 --> 00:28:27.776
<v ->So yeah, even if. Yeah.</v>
<v Walsh>Correct.</v>

610
00:28:27.776 --> 00:28:29.982
So, again.
<v ->Let's not skip it.</v>

611
00:28:29.982 --> 00:28:31.348
Tell me if it was error.

612
00:28:31.348 --> 00:28:35.130
<v ->So I do think that the provocation,</v>

613
00:28:35.130 --> 00:28:37.860
the precipitating event was insufficient.

614
00:28:37.860 --> 00:28:39.840
He slapped me, backhanded me in the mouth.

615
00:28:39.840 --> 00:28:41.460
So we have a slap to the face,

616
00:28:41.460 --> 00:28:42.293
and then the defendant says,

617
00:28:42.293 --> 00:28:44.017
"I got up angrily," this is on page 82.

618
00:28:44.017 --> 00:28:45.846
"I got up angrily and defended myself.

619
00:28:45.846 --> 00:28:48.390
He threw a blow at me." So it was a slap.

620
00:28:48.390 --> 00:28:49.620
And then the defendant did something

621
00:28:49.620 --> 00:28:51.780
to defend himself and then there was a blow.

622
00:28:51.780 --> 00:28:54.000
I do not think the physical confrontation

623
00:28:54.000 --> 00:28:55.680
started by the victim standing alone

624
00:28:55.680 --> 00:28:57.120
is not enough for reasonable crime.

625
00:28:57.120 --> 00:28:58.440
<v ->I'm confused by that though,</v>

626
00:28:58.440 --> 00:29:01.380
'cause isn't this the classic sudden combat?

627
00:29:01.380 --> 00:29:03.690
These guys are friends.

628
00:29:03.690 --> 00:29:06.333
They're arguing about music.

629
00:29:07.320 --> 00:29:10.020
The one guy, even though one guy's much bigger

630
00:29:10.020 --> 00:29:12.111
than the other, this isn't really a domestic violence

631
00:29:12.111 --> 00:29:14.610
type of situation, 'cause he says he's...

632
00:29:14.610 --> 00:29:15.510
We also have evidence

633
00:29:15.510 --> 00:29:19.050
that he's beaten up the defendant previously.

634
00:29:19.050 --> 00:29:21.178
I just, I don't get why this isn't-

635
00:29:21.178 --> 00:29:24.990
<v Walsh>As to sudden-</v>
<v ->Why it doesn't sort of...</v>

636
00:29:24.990 --> 00:29:27.750
Isn't this, like, typical of one of these things?

637
00:29:27.750 --> 00:29:29.881
<v ->As to sudden combat specifically</v>

638
00:29:29.881 --> 00:29:31.920
for that not just provocation,

639
00:29:31.920 --> 00:29:34.710
for sudden combat specifically it requires

640
00:29:34.710 --> 00:29:37.620
that the victim pose a real risk of serious harm

641
00:29:37.620 --> 00:29:38.453
to the defendant.

642
00:29:38.453 --> 00:29:40.380
<v ->He says he got beat up by the guy previously.</v>

643
00:29:40.380 --> 00:29:43.110
<v ->Well, Benson and some other case law instructs</v>

644
00:29:43.110 --> 00:29:46.080
that that's actually not a relevant consideration.

645
00:29:46.080 --> 00:29:48.937
Benson was a stalking case where the defendant said,

646
00:29:48.937 --> 00:29:50.250
"You know, I was so scared of him."

647
00:29:50.250 --> 00:29:53.550
<v ->Now leave out the domestic violence cases for-</v>

648
00:29:53.550 --> 00:29:55.012
<v ->It's not a domestic violence case.</v>

649
00:29:55.012 --> 00:29:57.084
Benson was not a domestic violence case.

650
00:29:57.084 --> 00:29:58.197
<v ->Okay, go ahead.</v>

651
00:29:58.197 --> 00:30:01.530
<v ->And Benson instructs that in even ignoring</v>

652
00:30:01.530 --> 00:30:03.540
the precipitating event just for the moment,

653
00:30:03.540 --> 00:30:05.880
Benson instructs that the question of whether there was

654
00:30:05.880 --> 00:30:10.560
sufficient provocation to warrant a manslaughter instruction

655
00:30:10.560 --> 00:30:12.690
depends on a number of timing issues.

656
00:30:12.690 --> 00:30:15.120
First the sudden loss of control by the defendant.

657
00:30:15.120 --> 00:30:20.120
Second, considering the victim's last overt act only.

658
00:30:20.250 --> 00:30:22.770
The court there saw that this stalking relationship

659
00:30:22.770 --> 00:30:24.438
that left, and it was not domestic.

660
00:30:24.438 --> 00:30:27.180
It was, well, actually,

661
00:30:27.180 --> 00:30:30.030
the conflict itself there was a new boyfriend,

662
00:30:30.030 --> 00:30:32.520
and the new boyfriend was giving the husband a hard time.

663
00:30:32.520 --> 00:30:35.793
But it wasn't a conflict between domestic partners.

664
00:30:36.851 --> 00:30:39.810
One of the involved men

665
00:30:39.810 --> 00:30:43.740
testified that the other involved man was stalking him.

666
00:30:43.740 --> 00:30:46.865
And the court did not take into account that relationship

667
00:30:46.865 --> 00:30:49.110
the stalking incident.

668
00:30:49.110 --> 00:30:50.520
It said the last overt act.

669
00:30:50.520 --> 00:30:52.667
What did he do when he came to your house that time?

670
00:30:52.667 --> 00:30:55.590
And then finally and critically,

671
00:30:55.590 --> 00:30:57.600
the third element discussed by Benson,

672
00:30:57.600 --> 00:30:59.580
for there to be provocation,

673
00:30:59.580 --> 00:31:02.430
the killing must occur before there was sufficient time

674
00:31:02.430 --> 00:31:03.780
for the defendant to cool off.

675
00:31:03.780 --> 00:31:06.663
And the case law is clear that manual strangulation

676
00:31:06.663 --> 00:31:10.650
requires sustained force over a prolonged period of time.

677
00:31:10.650 --> 00:31:12.390
<v ->Let me, just, it's similar</v>

678
00:31:12.390 --> 00:31:14.970
to Justice Gaziano's thing earlier,

679
00:31:14.970 --> 00:31:17.250
which is, okay, I'm in a fight,

680
00:31:17.250 --> 00:31:19.140
and this guy has the way of...

681
00:31:19.140 --> 00:31:21.570
He's fighting this guy who's a tough guy

682
00:31:21.570 --> 00:31:23.940
and his way of shutting him down is putting him

683
00:31:23.940 --> 00:31:26.130
in that choke hold that we tell cops not

684
00:31:26.130 --> 00:31:27.543
to use anymore either.

685
00:31:29.310 --> 00:31:31.814
And he does that because the guy is angry

686
00:31:31.814 --> 00:31:36.303
and a real fighter or whatever the term he uses.

687
00:31:37.170 --> 00:31:40.200
That doesn't get you those instructions?

688
00:31:40.200 --> 00:31:43.830
In our cases, I'm gonna go back and I have to read all these

689
00:31:43.830 --> 00:31:45.933
drunken brawl cases we got.

690
00:31:47.160 --> 00:31:50.837
But don't we usually get this instruction in that context?

691
00:31:50.837 --> 00:31:55.075
<v ->Reading Felix and Benson together, especially considering</v>

692
00:31:55.075 --> 00:31:59.610
the nature of the strangulation,

693
00:31:59.610 --> 00:32:03.188
those cases show that the killing has to occur

694
00:32:03.188 --> 00:32:04.860
before there's sufficient time

695
00:32:04.860 --> 00:32:06.060
for the defendant to cool off.

696
00:32:06.060 --> 00:32:07.560
And that's to get the instruction.

697
00:32:07.560 --> 00:32:08.950
That's not just considering the sufficiency

698
00:32:08.950 --> 00:32:10.140
of the evidence.

699
00:32:10.140 --> 00:32:12.540
It says that in the court-
<v ->What is the opportunity</v>

700
00:32:12.540 --> 00:32:14.820
to cool off when they're engaged in a fight?

701
00:32:14.820 --> 00:32:17.190
<v ->Because the-</v>
<v ->I could see we've had breaks</v>

702
00:32:17.190 --> 00:32:19.980
in the action in the, you know, where we have a cool off.

703
00:32:19.980 --> 00:32:21.387
Someone walks away or...

704
00:32:21.387 --> 00:32:24.164
<v ->The instruction-</v>
<v ->But here is one fight.</v>

705
00:32:24.164 --> 00:32:26.280
I don't get the cooled off part.

706
00:32:26.280 --> 00:32:28.320
<v ->Well, I mean it wasn't really one fight, right?</v>

707
00:32:28.320 --> 00:32:31.950
Like, it was a slap and then some action by the defendant

708
00:32:31.950 --> 00:32:33.930
and then a punch and then this.

709
00:32:33.930 --> 00:32:35.130
<v ->I don't know if I agree with that,</v>

710
00:32:35.130 --> 00:32:36.840
but it's a sequence of events.

711
00:32:36.840 --> 00:32:39.077
<v Walsh>It was-</v>
<v ->There's the physical.</v>

712
00:32:39.077 --> 00:32:41.457
<v Walsh>The defendant-</v>
<v ->There's an an argument,</v>

713
00:32:41.457 --> 00:32:43.410
a slap, wrestling.

714
00:32:43.410 --> 00:32:44.525
That seems to me

715
00:32:44.525 --> 00:32:45.630
to be one event.
<v ->So it was on page 82</v>

716
00:32:45.630 --> 00:32:46.463
of the transcript.

717
00:32:46.463 --> 00:32:49.374
The defendant on cross examination is very clear

718
00:32:49.374 --> 00:32:52.890
each element of the fight and how it progressed.

719
00:32:52.890 --> 00:32:56.554
He slapped me, backhanded me in the mouth very, very hard,

720
00:32:56.554 --> 00:33:00.474
and then I got up angrily and I defended myself.

721
00:33:00.474 --> 00:33:02.100
He threw a blow at me.

722
00:33:02.100 --> 00:33:04.860
We started exchanging blows, and then he-

723
00:33:04.860 --> 00:33:06.120
<v ->That isn't a classic fight?</v>

724
00:33:06.120 --> 00:33:06.953
That sound...

725
00:33:06.953 --> 00:33:07.786
I mean, I'm not a brawler,

726
00:33:07.786 --> 00:33:10.257
but that seems like a regular fight.

727
00:33:10.257 --> 00:33:12.660
<v ->The issue is really not whether it's a classic fight.</v>

728
00:33:12.660 --> 00:33:15.176
The issue is whether there was a reasonable person

729
00:33:15.176 --> 00:33:17.779
in the defendant's position would've lost control

730
00:33:17.779 --> 00:33:20.062
in the heat of passion to warrant-

731
00:33:20.062 --> 00:33:22.620
<v ->I thought your argument was more about it took so long</v>

732
00:33:22.620 --> 00:33:25.770
to actually strangulate him that he could have...

733
00:33:25.770 --> 00:33:28.050
That was when he had time to cool off.

734
00:33:28.050 --> 00:33:29.162
<v ->That is also...</v>

735
00:33:29.162 --> 00:33:30.210
I think that that is-

736
00:33:30.210 --> 00:33:31.560
<v ->That might be your better argument.</v>

737
00:33:31.560 --> 00:33:33.030
<v Walsh>That is the-</v>
<v ->The idea of that</v>

738
00:33:33.030 --> 00:33:35.931
the defendant narrated this as a sequence of events

739
00:33:35.931 --> 00:33:39.057
means that there was time to cool off seems uncredible.

740
00:33:39.057 --> 00:33:40.083
<v ->No, I'm sorry.</v>

741
00:33:41.190 --> 00:33:45.960
I am arguing based on Benson and Felix that for two...

742
00:33:45.960 --> 00:33:48.240
And Benson makes it clear, 'cause Felix is sort

743
00:33:48.240 --> 00:33:50.194
of resolved on prejudice, skipping the issue.

744
00:33:50.194 --> 00:33:53.767
But Benson, it discusses it as whether it is sufficient

745
00:33:53.767 --> 00:33:56.580
to warrant the instruction itself depends

746
00:33:56.580 --> 00:33:59.100
on the timing factor of whether there was sufficient time

747
00:33:59.100 --> 00:34:01.260
to cool off.
<v ->And here, the testimony</v>

748
00:34:01.260 --> 00:34:03.960
just remind me on the medical examiners

749
00:34:03.960 --> 00:34:06.540
for how long did it take to hold a minute choke hold?

750
00:34:06.540 --> 00:34:08.940
<v ->So the medical examiner, Dr. Welton,</v>

751
00:34:08.940 --> 00:34:11.670
testified that asphyxiation takes minutes, not seconds.

752
00:34:11.670 --> 00:34:13.140
So he wasn't terribly specific,

753
00:34:13.140 --> 00:34:15.948
but certainly minutes is more than enough time to cool off.

754
00:34:15.948 --> 00:34:18.768
<v ->Can he tell, I mean, you know the record better.</v>

755
00:34:18.768 --> 00:34:21.270
Does he describe that he keeps him in this hold

756
00:34:21.270 --> 00:34:23.115
because he's still resisting?

757
00:34:23.115 --> 00:34:25.620
'Cause if that's the case-
<v Walsh>No.</v>

758
00:34:25.620 --> 00:34:28.307
<v ->Then he's got him frozen like that,</v>

759
00:34:28.307 --> 00:34:31.587
'cause he doesn't want him to get out of that hold.

760
00:34:31.587 --> 00:34:34.550
<v ->The defendant says that he quickly got the upper hand,</v>

761
00:34:34.550 --> 00:34:37.680
had his arm around his neck, leaned into him

762
00:34:37.680 --> 00:34:39.595
with all his body weight until he was restrained

763
00:34:39.595 --> 00:34:40.952
and no longer moving,

764
00:34:40.952 --> 00:34:43.560
and he says the fight lasted 40 to 50 seconds.

765
00:34:43.560 --> 00:34:46.230
And if I may, on cross-examination,

766
00:34:46.230 --> 00:34:48.810
he also admitted that his goal,

767
00:34:48.810 --> 00:34:52.170
he put him in the choke hold to win the fight.

768
00:34:52.170 --> 00:34:54.180
He did not say that he was doing it

769
00:34:54.180 --> 00:34:56.130
because, he had on direct I'm sure,

770
00:34:56.130 --> 00:34:57.735
says he did it 'cause he was scared,

771
00:34:57.735 --> 00:35:00.420
but on cross, which again, it's a reasonable person-

772
00:35:00.420 --> 00:35:03.121
<v ->Win the fight. Does that cut both ways?</v>

773
00:35:03.121 --> 00:35:06.360
Because it's just otherwise,

774
00:35:06.360 --> 00:35:09.720
he's going to lose the fight and-

775
00:35:09.720 --> 00:35:11.580
<v ->Well, he quickly gained the upper hand in the fight</v>

776
00:35:11.580 --> 00:35:12.672
and he could have let go.

777
00:35:12.672 --> 00:35:15.900
I'd also draw your attention to the fact-

778
00:35:15.900 --> 00:35:18.420
<v ->But for the instruction we have to view it</v>

779
00:35:18.420 --> 00:35:20.460
in the light most favorable to the defendant.

780
00:35:20.460 --> 00:35:21.840
I mean, that's certainly open

781
00:35:21.840 --> 00:35:24.584
to the prosecution to argue, but the instruction-

782
00:35:24.584 --> 00:35:26.910
<v ->The defendant's own testimony established</v>

783
00:35:26.910 --> 00:35:30.510
that during the fight it is not crystal clear

784
00:35:30.510 --> 00:35:32.730
whether this was before this choke hold or after,

785
00:35:32.730 --> 00:35:35.730
but before the victim was dead,

786
00:35:35.730 --> 00:35:37.290
the defendant testified

787
00:35:37.290 --> 00:35:39.330
that he could have left his apartment.

788
00:35:39.330 --> 00:35:40.818
He said on cross examine-

789
00:35:40.818 --> 00:35:41.651
<v ->But that's your self-defense case,</v>

790
00:35:41.651 --> 00:35:44.051
which you want.
<v ->But it also shows</v>

791
00:35:44.051 --> 00:35:46.680
that the defendant was putting the victim

792
00:35:46.680 --> 00:35:47.980
in a headlock and leaning his weight in.

793
00:35:47.980 --> 00:35:49.451
<v Gaziano>Okay, lemme ask you-</v>

794
00:35:49.451 --> 00:35:51.011
<v Walsh>I'm sorry.</v>
<v ->Are you saying as a matter</v>

795
00:35:51.011 --> 00:35:54.518
of law that sudden combat is unavailable

796
00:35:54.518 --> 00:35:57.480
in a case of manual strangulation?

797
00:35:57.480 --> 00:35:59.083
<v ->No, I'm saying that sudden combat is...</v>

798
00:35:59.083 --> 00:36:02.610
Oh, I think it's rarely available.

799
00:36:02.610 --> 00:36:05.460
I think that, well, sudden combat, risk of serious harm,

800
00:36:05.460 --> 00:36:06.990
I'm really talking more about provocation.

801
00:36:06.990 --> 00:36:09.660
I think that that's sudden combat.

802
00:36:09.660 --> 00:36:10.493
<v ->Well, sudden combat's</v>

803
00:36:10.493 --> 00:36:12.972
a subset of provocation.
<v ->Of course.</v>

804
00:36:12.972 --> 00:36:14.400
I'm not saying that...

805
00:36:14.400 --> 00:36:16.170
There's no case that explicitly says,

806
00:36:16.170 --> 00:36:18.289
but they're at odds.

807
00:36:18.289 --> 00:36:20.910
The amount of time that it takes somebody

808
00:36:20.910 --> 00:36:23.279
to kill somebody by asphyxiation-

809
00:36:23.279 --> 00:36:26.058
<v ->To me, this all goes to whether or not there's prejudice</v>

810
00:36:26.058 --> 00:36:29.970
to get a new trial is the hub of, as we said,

811
00:36:29.970 --> 00:36:32.430
the feebleness of that.
<v ->I do understand that,</v>

812
00:36:32.430 --> 00:36:34.560
and I certainly see Your Honor's point.

813
00:36:34.560 --> 00:36:36.270
It's just that I would draw your attention to Benson

814
00:36:36.270 --> 00:36:38.340
where it does say that that is relevant consideration,

815
00:36:38.340 --> 00:36:40.920
not just for prejudice in terms of getting the instruction,

816
00:36:40.920 --> 00:36:42.314
but that it should be considered-

817
00:36:42.314 --> 00:36:45.540
<v ->This is awful close, you know-</v>

818
00:36:45.540 --> 00:36:46.890
<v ->I respectfully disagree with you.</v>

819
00:36:46.890 --> 00:36:48.960
Looking at the case law with Felix and Benson-

820
00:36:48.960 --> 00:36:50.688
<v ->You wouldn't tell one of your trial attorneys</v>

821
00:36:50.688 --> 00:36:54.180
to fight a sudden combat instruction, would you, on this?

822
00:36:54.180 --> 00:36:55.498
These facts?
<v ->Oh, not sudden combat.</v>

823
00:36:55.498 --> 00:36:57.450
<v Justice>Not after today.</v>
<v ->I would fight sudden combat.</v>

824
00:36:57.450 --> 00:37:01.200
I mean, the defendant here I would suggest

825
00:37:01.200 --> 00:37:04.044
got more than he even was entitled to.

826
00:37:04.044 --> 00:37:07.080
The self-defense instruction was really not even required,

827
00:37:07.080 --> 00:37:08.928
because the defendant himself testified

828
00:37:08.928 --> 00:37:12.030
that he had the ability to leave the fight,

829
00:37:12.030 --> 00:37:13.860
and the right to self-defense arises

830
00:37:13.860 --> 00:37:16.110
only in circumstance.
<v ->Can you help us?</v>

831
00:37:16.110 --> 00:37:17.910
Say you was...

832
00:37:17.910 --> 00:37:20.370
Tell me why there's not prejudice here.

833
00:37:20.370 --> 00:37:21.660
<v Walsh>Well, Felix makes it-</v>

834
00:37:21.660 --> 00:37:24.930
<v ->Say you was, say we think a judge</v>

835
00:37:24.930 --> 00:37:26.580
should give this instruction,

836
00:37:26.580 --> 00:37:31.503
because it's damn close if not required.

837
00:37:32.340 --> 00:37:33.720
Why is there no prejudice here?

838
00:37:33.720 --> 00:37:36.300
<v ->Felix squarely addresses that with going</v>

839
00:37:36.300 --> 00:37:38.205
to what Justice Gaziano has repeatedly said

840
00:37:38.205 --> 00:37:39.877
that it goes to prejudice.

841
00:37:39.877 --> 00:37:42.107
Felix said as this court found,

842
00:37:42.107 --> 00:37:47.040
even if we were to assume that there was lack of error

843
00:37:47.040 --> 00:37:49.080
in the lack of provocation instruction,

844
00:37:49.080 --> 00:37:51.090
the error was not likely to have influenced

845
00:37:51.090 --> 00:37:54.510
the jury's conclusion because the time required

846
00:37:54.510 --> 00:37:56.310
to strangle the victim with a ligature,

847
00:37:56.310 --> 00:37:58.470
and again, here's manual strangulation,

848
00:37:58.470 --> 00:38:00.955
required a finding of deliberate premeditation

849
00:38:00.955 --> 00:38:04.320
inconsistent with sudden provocation.

850
00:38:04.320 --> 00:38:08.117
<v ->Are there any choke hold cases that support that?</v>

851
00:38:08.117 --> 00:38:10.590
'Cause I understand again,

852
00:38:10.590 --> 00:38:12.172
and Justice Gaziano is more familiar,

853
00:38:12.172 --> 00:38:15.300
was Felix the case where the the person was using

854
00:38:15.300 --> 00:38:17.850
the halter top to choke the victim?

855
00:38:17.850 --> 00:38:20.400
<v ->I think-</v>
<v ->And, you know,</v>

856
00:38:20.400 --> 00:38:22.201
if the woman-
<v ->I'm not sure</v>

857
00:38:22.201 --> 00:38:23.034
what tool was used.

858
00:38:23.034 --> 00:38:24.840
It was a domestic case where-

859
00:38:24.840 --> 00:38:27.475
<v ->I thought he took her shirt and he was choking her.</v>

860
00:38:27.475 --> 00:38:29.373
<v ->I think that may be Felix.</v>

861
00:38:32.390 --> 00:38:33.564
<v ->Can I then, tell me-</v>

862
00:38:33.564 --> 00:38:34.397
<v Walsh>That may be Steeves.</v>

863
00:38:34.397 --> 00:38:35.550
I'm not-
<v ->Are there any of these-</v>

864
00:38:35.550 --> 00:38:37.110
<v ->That might have been Bianchi, but that's-</v>

865
00:38:37.110 --> 00:38:39.677
<v ->Okay, are there any choke hold cases, literally?</v>

866
00:38:39.677 --> 00:38:42.570
'Cause you know, at one point we had all these people

867
00:38:42.570 --> 00:38:44.773
using this, the cops were using this choke hold

868
00:38:44.773 --> 00:38:46.950
to shut people down.

869
00:38:46.950 --> 00:38:50.550
And are there any choke hold cases

870
00:38:50.550 --> 00:38:52.290
where we make the same point as opposed

871
00:38:52.290 --> 00:38:55.550
to these ligature cases which are more classic?

872
00:38:55.550 --> 00:38:57.780
<v ->I'm not...</v>

873
00:38:57.780 --> 00:38:59.790
I didn't really make that distinction in my research

874
00:38:59.790 --> 00:39:01.860
between ligature and manual.

875
00:39:01.860 --> 00:39:04.260
But Felix, Steeves, Benson,

876
00:39:04.260 --> 00:39:07.170
all of the cases basically asphyxiation,

877
00:39:07.170 --> 00:39:09.737
however it's effectuated, takes time

878
00:39:09.737 --> 00:39:13.101
that is inconsistent with provocation.

879
00:39:13.101 --> 00:39:15.210
So they don't really...

880
00:39:15.210 --> 00:39:17.430
The fact whether it's manual strangulation

881
00:39:17.430 --> 00:39:19.680
or a ligature, the point is, it's time.

882
00:39:19.680 --> 00:39:22.191
It takes time to asphyxiate someone.

883
00:39:22.191 --> 00:39:23.420
And they're-
<v ->It also takes time</v>

884
00:39:23.420 --> 00:39:25.500
in that choke hold to shut them down,

885
00:39:25.500 --> 00:39:27.693
'cause it stops the fight.

886
00:39:28.620 --> 00:39:30.390
<v ->It stops the fight, but you could end the fight</v>

887
00:39:30.390 --> 00:39:31.830
by letting him breathe again.

888
00:39:31.830 --> 00:39:33.840
And instead the defendant testified that he spent

889
00:39:33.840 --> 00:39:35.783
40 to 50 seconds leaning his body weight into him.

890
00:39:35.783 --> 00:39:36.900
<v ->Is that the answer?</v>

891
00:39:36.900 --> 00:39:40.230
That because of the way this choke hold works,

892
00:39:40.230 --> 00:39:41.940
although I assume we don't have expert testimony,

893
00:39:41.940 --> 00:39:44.946
at some point he's incapacitated and wiped out,

894
00:39:44.946 --> 00:39:48.420
and he could stop without continuing to kill him.

895
00:39:48.420 --> 00:39:49.860
Is that-
<v Walsh>Of course.</v>

896
00:39:49.860 --> 00:39:51.180
I mean, we didn't have-
<v ->Is there anything</v>

897
00:39:51.180 --> 00:39:52.830
in this record that supports that?

898
00:39:52.830 --> 00:39:55.650
I'm just, you know, again, 'cause-

899
00:39:55.650 --> 00:39:56.670
<v ->I don't know.</v>

900
00:39:56.670 --> 00:39:58.845
There was not expert testimony on the specifics

901
00:39:58.845 --> 00:40:02.377
of how asphyxiation worked beyond Dr. Welton testifying

902
00:40:02.377 --> 00:40:04.415
to the amount of time that it takes.

903
00:40:04.415 --> 00:40:07.839
But the judge in, well, going to your question

904
00:40:07.839 --> 00:40:10.560
about whether you need to reverse,

905
00:40:10.560 --> 00:40:13.770
and the answer lies squarely in Felix that you don't.

906
00:40:13.770 --> 00:40:18.243
It addresses pretty much precisely that question.

907
00:40:18.243 --> 00:40:21.573
It doesn't raise that issue of expert.

908
00:40:22.710 --> 00:40:24.000
Are there further questions on this

909
00:40:24.000 --> 00:40:27.210
or should I move on to the lyrics?

910
00:40:27.210 --> 00:40:28.403
<v Justice>You can move on.</v>

911
00:40:30.270 --> 00:40:32.280
<v ->We discussed remote listen in time.</v>

912
00:40:32.280 --> 00:40:33.930
One thing that I would like to stress

913
00:40:33.930 --> 00:40:35.670
that I'm not sure was really in the brief

914
00:40:35.670 --> 00:40:38.040
in terms of prejudice with these lyrics,

915
00:40:38.040 --> 00:40:40.301
in addition to the repeated limiting instruction

916
00:40:40.301 --> 00:40:43.290
and the judge limiting the evidence

917
00:40:43.290 --> 00:40:45.060
the Commonwealth was allowed to admit,

918
00:40:45.060 --> 00:40:46.470
this really was not a theme

919
00:40:46.470 --> 00:40:48.780
of the Commonwealth's case at trial.

920
00:40:48.780 --> 00:40:51.120
The Commonwealth's opening refer...

921
00:40:51.120 --> 00:40:53.100
It was 23 pages of transcript.

922
00:40:53.100 --> 00:40:55.860
It refers to wrap in nine lines.

923
00:40:55.860 --> 00:40:57.540
The cross of the defendant is lengthy.

924
00:40:57.540 --> 00:41:00.300
It's about 125 transcripts.
<v ->I thought it's important</v>

925
00:41:00.300 --> 00:41:04.950
to the premeditation argument because from what I remember

926
00:41:04.950 --> 00:41:08.763
of this record is he can't get the person into the bag.

927
00:41:08.763 --> 00:41:13.380
So he dismembers him to get him

928
00:41:13.380 --> 00:41:18.319
into this container he has.

929
00:41:18.319 --> 00:41:22.380
But you're using the rap music to prove premeditation,

930
00:41:22.380 --> 00:41:25.260
that he has a fascination with dismemberment.

931
00:41:25.260 --> 00:41:27.992
<v Walsh>Correct.</v>
<v ->As opposed to I choked him,</v>

932
00:41:27.992 --> 00:41:32.250
which gets into the manslaughter issues.

933
00:41:32.250 --> 00:41:34.950
He died, I'm surprised, and then I had to, like,

934
00:41:34.950 --> 00:41:36.840
conceal my crime by...

935
00:41:36.840 --> 00:41:38.333
I thought you used the lyrics

936
00:41:38.333 --> 00:41:41.400
to prove your first degree murder point.

937
00:41:41.400 --> 00:41:43.620
<v ->Correct. So there were two sets of lyrics.</v>

938
00:41:43.620 --> 00:41:46.290
One discusses dismemberment and decapitation

939
00:41:46.290 --> 00:41:48.805
and one discusses strangulation.

940
00:41:48.805 --> 00:41:50.490
Both were admitted.

941
00:41:50.490 --> 00:41:52.500
Of course, walking in to the trial,

942
00:41:52.500 --> 00:41:54.270
we didn't know whether the defendant would testify.

943
00:41:54.270 --> 00:41:56.520
We didn't know any of this would come out.

944
00:41:56.520 --> 00:41:58.590
So the Commonwealth's theory of the case was supported

945
00:41:58.590 --> 00:42:01.890
by the evidence that he was fascinated by decapitation,

946
00:42:01.890 --> 00:42:03.810
dismemberment and asphyxiation.

947
00:42:03.810 --> 00:42:06.000
<v ->So it is an important part of the case then.</v>

948
00:42:06.000 --> 00:42:08.310
<v ->It was minimally used by the Commonwealth.</v>

949
00:42:08.310 --> 00:42:10.140
The defendant-
<v ->Well, what's the proof</v>

950
00:42:10.140 --> 00:42:11.130
of premeditation?

951
00:42:11.130 --> 00:42:14.259
These guys are friends. They're arguing about rap music.

952
00:42:14.259 --> 00:42:17.490
They get into a fight, it gets outta control.

953
00:42:17.490 --> 00:42:19.987
And the defense is,

954
00:42:19.987 --> 00:42:24.420
"I panicked and I couldn't dispose of the body."

955
00:42:24.420 --> 00:42:26.557
<v ->So the evidence of premeditation argued at trial</v>

956
00:42:26.557 --> 00:42:29.366
was the coverup, the fact that the defendant

957
00:42:29.366 --> 00:42:33.180
very thoroughly cleaned the house, the room,

958
00:42:33.180 --> 00:42:37.530
and did not take any action to get help for the victim.

959
00:42:37.530 --> 00:42:39.420
And also, the Commonwealth highlighted

960
00:42:39.420 --> 00:42:41.414
the defendant's own testimony that he could have left,

961
00:42:41.414 --> 00:42:42.660
and he did not.

962
00:42:42.660 --> 00:42:44.910
That he admitted on cross-examination

963
00:42:44.910 --> 00:42:46.290
that he could have left, did not,

964
00:42:46.290 --> 00:42:47.490
because he was in his own house

965
00:42:47.490 --> 00:42:50.700
and he wanted to defend himself in his own home,

966
00:42:50.700 --> 00:42:53.010
and that he wanted to, "Win the fight."

967
00:42:53.010 --> 00:42:56.014
So that was most of the evidence of premeditation.

968
00:42:56.014 --> 00:42:59.877
<v ->Isn't the most important evidence of premeditation</v>

969
00:42:59.877 --> 00:43:02.970
the rap music?
<v ->I would say it is not.</v>

970
00:43:02.970 --> 00:43:05.310
But before the defendant testified,

971
00:43:05.310 --> 00:43:07.440
we didn't have his statements.

972
00:43:07.440 --> 00:43:11.310
And so that was part of what the Commonwealth planned to use

973
00:43:11.310 --> 00:43:15.510
to show premeditation was this fascination.

974
00:43:15.510 --> 00:43:18.990
<v ->And the timing, the nexus</v>

975
00:43:18.990 --> 00:43:22.890
is much more provable on the strangulation

976
00:43:22.890 --> 00:43:24.870
than it is on the dismemberment, right?

977
00:43:24.870 --> 00:43:27.389
<v ->Correct, because we have the date</v>

978
00:43:27.389 --> 00:43:29.760
that that would-
<v ->Then we have the copying</v>

979
00:43:29.760 --> 00:43:32.340
of the strangulation rap music-

980
00:43:32.340 --> 00:43:33.513
<v Walsh>Correct.</v>

981
00:43:33.513 --> 00:43:34.575
That it was-
<v ->As opposed to the other one,</v>

982
00:43:34.575 --> 00:43:35.408
we have nothing.

983
00:43:35.408 --> 00:43:36.660
The other one's really old.

984
00:43:36.660 --> 00:43:38.656
The dismemberment stuff is-

985
00:43:38.656 --> 00:43:39.489
<v ->Well, we have no way to know.</v>

986
00:43:39.489 --> 00:43:40.740
It was an undated CD.

987
00:43:40.740 --> 00:43:41.730
It could have been a week before.

988
00:43:41.730 --> 00:43:43.093
It could have been five years before.

989
00:43:43.093 --> 00:43:44.340
We don't know. It was old.

990
00:43:44.340 --> 00:43:45.600
<v Wendlandt>Where was it found?</v>

991
00:43:45.600 --> 00:43:46.800
<v Walsh>The CD?</v>
<v ->Yes.</v>

992
00:43:46.800 --> 00:43:49.470
<v ->In the closet, but this is a 400 square foot apartment.</v>

993
00:43:49.470 --> 00:43:51.876
I mean, I don't know that being in the closet-

994
00:43:51.876 --> 00:43:53.340
<v Wendlandt>I'm just curious.</v>

995
00:43:53.340 --> 00:43:54.570
<v ->Versus under the bed.</v>

996
00:43:54.570 --> 00:43:57.570
I mean, there's only so many places things can be.

997
00:43:57.570 --> 00:43:59.187
But yes, it was found in the closet.

998
00:43:59.187 --> 00:44:03.237
<v ->Doesn't the defendant testify about how old the CD is?</v>

999
00:44:03.237 --> 00:44:06.360
<v ->The defendant does testify that it's older,</v>

1000
00:44:06.360 --> 00:44:08.430
but that was not known to the judge at the time

1001
00:44:08.430 --> 00:44:10.290
she made the decision to admit it.

1002
00:44:10.290 --> 00:44:12.030
And I would also argue that

1003
00:44:12.030 --> 00:44:13.950
it's of very little consequence.

1004
00:44:13.950 --> 00:44:18.000
The drawings in Veiovis, we have no idea how old they were

1005
00:44:18.000 --> 00:44:19.343
or when the defendant made the decision.

1006
00:44:19.343 --> 00:44:22.350
<v ->Weren't they up in his house when he was arrested?</v>

1007
00:44:22.350 --> 00:44:25.050
<v ->There was a collage hanging on the wall.</v>

1008
00:44:25.050 --> 00:44:26.850
<v ->What about the issue that was raised</v>

1009
00:44:26.850 --> 00:44:29.917
by counsel about the shapelessness

1010
00:44:29.917 --> 00:44:31.991
of the limiting instruction?

1011
00:44:31.991 --> 00:44:33.960
Because the judge in this case

1012
00:44:33.960 --> 00:44:37.155
does what we've told judges a million times to stop doing,

1013
00:44:37.155 --> 00:44:40.600
and stop giving all the reasons why we say you can

1014
00:44:41.790 --> 00:44:45.090
introduce what would be otherwise propensity evidence

1015
00:44:45.090 --> 00:44:48.060
to localize it to what's at issue in this case.

1016
00:44:48.060 --> 00:44:50.525
And in this case, according to counsel,

1017
00:44:50.525 --> 00:44:52.450
and you know the record a little bit better than I,

1018
00:44:52.450 --> 00:44:54.470
when the limiting instruction comes in,

1019
00:44:54.470 --> 00:44:56.490
is it just the litany of all of this stuff

1020
00:44:56.490 --> 00:44:59.790
under that it could be relevant to,

1021
00:44:59.790 --> 00:45:02.353
but not necessarily relevant to this case?

1022
00:45:02.353 --> 00:45:03.510
<v ->I respectfully disagree.</v>

1023
00:45:03.510 --> 00:45:05.700
I do not think it was a litany of categories. It was four.

1024
00:45:05.700 --> 00:45:07.470
She gave the same limiting instruction four times,

1025
00:45:07.470 --> 00:45:08.880
and it was state of mind identity

1026
00:45:08.880 --> 00:45:10.841
and intent, plan and knowledge.

1027
00:45:10.841 --> 00:45:13.896
And I think that those are all valid considerations.

1028
00:45:13.896 --> 00:45:16.140
<v ->Identity?</v>
<v ->Prior to the defendant</v>

1029
00:45:16.140 --> 00:45:18.584
testifying, we didn't know that he would admit

1030
00:45:18.584 --> 00:45:20.250
that he was there.

1031
00:45:20.250 --> 00:45:23.010
I mean, I think it does tend to...

1032
00:45:23.010 --> 00:45:24.720
Yes, of course he was in his apartment,

1033
00:45:24.720 --> 00:45:26.250
but I don't think that

1034
00:45:26.250 --> 00:45:28.290
that was completely unnecessary.

1035
00:45:28.290 --> 00:45:29.460
I think that that was

1036
00:45:29.460 --> 00:45:31.140
within her discretion to give that one.

1037
00:45:31.140 --> 00:45:32.880
And she did not give everything.

1038
00:45:32.880 --> 00:45:35.610
She gave four specific categories and repeatedly gave them,

1039
00:45:35.610 --> 00:45:37.860
and they are similar to what was given in Veiovis,

1040
00:45:37.860 --> 00:45:39.710
which I believe had three categories.

1041
00:45:40.634 --> 00:45:42.060
And there was one that wasn't given in Veiovis.

1042
00:45:42.060 --> 00:45:44.860
I see my time is up, if there are any further questions.