-: SJC-13279, Commonwealth v. Nyasani Watt.
-: Great, okay.
Justice Budd: attorney Doherty.
-: Good morning, may it please the court.
Not long after this court affirmed
Mr. Watt's convictions in June of 2020,
Nyasani Watt filed a motion for a new trial
based on corroboration that had been accumulated
that showed that his trial counsel had slept
during critical stages or critical portions of his trial.
A trial is presumptively unfair and presumptively-
-: Can I ask you, though, before you get,
how do you know those are critical stages,
or they were important parts of the witness testimony?
It's not really clear that we can pinpoint exactly
what happened in the record, is it?
-: Well, from the affiance that testified,
a critical stage of the trial has been identified
certainly as when evidence is taken at trial.
And the affiance testified that trial counsel,
they noticed trial counsel asleep, or dozing,
or nodding off during particular witnesses.
Some of the affiance are able
to identify specific witnesses,
some of the affiance
don't just say
it happened at a particular,
they observed it,
but aren't able to identify a particular time.
-: Any time evidence is being taken
it's a critical stage?
Any cases say that?
-: The cases,
to be fair,
chronic does not define what a critical stage is,
but cases define it in a couple of ways.
Presentation of evidence against the defendant are,
some of the cases say that,
but presentation of
evidence at all.
Some of the cases also--
-: Can you identify which cases,
say presentation
of evidence against the defendant,
or any--
-: I believe that Brewer versus Williams
Green versus Arn,
which is a sixth circuit case,
says,
of course presentation of evidence is a critical stage.
-: Well let me ask you,
when you review transcripts,
as an appellate lawyer,
and you've got five pages
of the
Commonwealth's fingerprint
expert talking about ACE-V
right?
And you're reading that,
if the lawyer was nodding off when he went from A to E in
the ACE-V, is that a critical stage?
-: Absolutely. And that's why, I mean, you know.
-: I get when the informants testifying.
I get when the rape victim's testifying.
But like when he's talking about how I,
we look at the same routine information.
So you're basically saying anytime a witness is testifying,
it's structural error.
-: Yes.
According to chronic,
it's a critical stage of the trial.
-: Well, chronic doesn't say
that's a critical stage.
Chronic talks about a critical,
if you're asleep but during a critical stage,
that's a problem.
-: Critical in, in fact, that's correct.
Chronic does not provide specificity as to what a
critical stage is.
But a number of Supreme Court cases talk about
when the defendant's interests are at issue,
when there is again,
when evidence is being presented against them.
I mean sort of backing up from this,
so getting back to your question, Justice Gaziano,
looking through the transcript where it's a sleeping lawyer
and not a temporary absence,
which are some of the cases discussed at,
and that's much easier to determine what happened.
-: Yeah, I'm with you as far as,
if it's a critical stage, then we don't get to prejudice,
but if it's not a critical stage,
then we get to prejudice.
There's a divide that makes sense to me.
And I'm just trying to run,
figure out what your rule is,
how we make that that distinction between
critical and non-critical.
-: Well,
Maine versus Molten,
which is another Supreme Court,
can be construed to say that
the entire trial is, is that, and in fact,
when I was thinking about, because--
-: If it's the entire trial under Maine as you suggest,
then why would chronic say critical?
What would critical mean if it's the entire trial?
-: Well, I think that the sort of,
the definition that I like is one that comes from Tippens
where they talk about the interest
of the defendant are at stake.
And so
in this,
based on the affiance
record or their attestations,
there are a number of individuals that,
where it would be evidence that was against the defendant.
Mr. Watt identifies
the fellow who lives on Rosetta Street,
which would be James Coston,
which that was very inculpatory testimony.
Kaivon Martin,
Kaivon Blake. -: By the way,
did Coston testify against both defendants?
Because we do have two,
we have three defense lawyers in this case.
-: [attorney Doherty] We do.
-: Two who've, two for the co-defendant,
one for Mr. Davis, for the plaintiff,
I mean for the, for your client.
-: [attorney Doherty] Yes.
-: And their defenses are aligned.
When Mr.Coston is testifying,
is he talking just about your client
or is he talking about all three?
I mean all two of them.
-: I believe there was,
I believe it was more as to my client if I recall,
but I think that there was probably
some that implicated Mr. Mattis,
but that's, two things on that,
one,
I know the trial judge,
the motion judge rather,
indicated that the defense was aligned,
and so the fact that there were other lawyers there,
those lawyers were not protecting my clients,
his interests.
-: That's fair enough.
But the fact that if it were a joint defense,
that if we get to prejudice, that's a factor.
-: It was really not a joint defense.
And I would also point out that
in,
I believe it's Reagan, how it's pronounced.
That was also a joint trial.
And they, and in fact,
two of the lawyers who testified about Mackey,
who was the lawyer who was sleeping,
represented the other defendant,
in addition Commonwealth,
not Commonwealth U.S. versus Russell,
which I cited in both in the reply brief
and my principal brief
says that it,
it just says that that's not allowed.
-: How about the fact that the judge,
the judge doesn't notice ever right?
We've got nothing from the judge indicating that the
counsel's asleep right?
Absolutely zero right?
-: The judge didn't decide the motion in this case,
which was a surprise to me.
-: No, no, I'm talking about at trial.
-: [attorney Doherty] Yes.
-: You know, at trial we have
a couple of times where
the prosecutor,
who's now a judge,
says he's, he had to kick the chair once,
but the judge,
the judge is completely absent on this issue,
meaning the judge and the judge sees a lawyer asleep,
he or she's gonna wake him up.
-: You would think, Your Honor.
But I,
we don't have any,
we don't have anything in the transcript to be sure.
We don't have any, but we don't,
we didn't have anything that came out in,
the evidentiary hearing because
there wasn't an evidentiary hearing,
but also it wasn't heard by the trial judge.
So I don't really have any answer for that.
-: So we, we are basically making our
decision based upon the affidavits,
the unrebutted affidavits
of the three lawyers.
-: The trial judge did not weigh in on this.
-: But let me ask you a different question.
That being waiver,
which is a big issue and that you've spent a lot of time
addressing this,
I wanna give you the opportunity to,
to tell us your thoughts on that.
We have here, and I'll give you my concerns,
we have here that the defendant told predecessor appellate
counsel
of the issue.
Wasn't raised on appeal.
You raised his age, but by the time it gets to
an appeal,
he's 20 years old and 24 years old by the time it's argued.
So even if we agree with you that the age is relevant,
how isn't it not waived when the appellate attorney knows?
-: Well, so I'll back up a little bit.
-: Multiply question you can.
-: With respect to the age of the defendant at the time,
the affidavit,
my affidavit recounts my conversations
with prior appellate council,
which is the evidence that we have,
does not,
to be fair, does not indicate when that took place.
It doesn't,
I mean there,
as I recounted my affidavit going through the trial,
the the case file record, there was no indication of that.
But I think we have to assume, and I,
well,
I think we need to infer,
and I think it's a reasonable inference,
that that conversation would have taken place
at the beginning of the representation.
And the record shows that prior appellate counsel
was
appointed in December of 2013.
At that time, the defendant would've been 21.
Still within the range of a late adolescent.
-: What does that have to do
with letting the council know?
-: 'Cause the point I'm puzzled about is,
we have a defendant who tells his lawyer,
"hey my lawyer was asleep",
"trial counsel was asleep."
And then you talk about his diminished age, et cetera.
But
what standard do we have where
we don't expect any defendant to say,
other than tell the lawyer the facts
and let the lawyer marshal the facts?
Because I don't expect any defendant to say,
well, you didn't raise that in the brief.
What about my sixth amendment rights? What about chronic?
Who does that?
-: I think still that at that time
his age can be seen as an impediment, as a deficit.
In not pressing that issue.
-: What else do we have a defendant do other than tell the
lawyer who's trained in the law the facts?
-: Well, I mean, I think again, that,
that he would have pressed it more enthusiastically,
more
had he been--
-: I don't know if that does a realistic standard because
if the lawyer decides whatever and
he's weighing what to raise and what not to raise,
I guess he could have filed a Moffitt brief,
but I don't understand how his age has anything to do,
with not communicating his displeasure over this issue.
-: Well, I think as given
the response that was told to me by prior appellate counsel,
that he said that this wouldn't lead to a claim of
ineffective assistance of counsel,
which in fact was the wrong constitutional
deprivation of right in this case.
Once he was given that,
my client, was given that information, he dropped it.
And in fact,
didn't bring it up again, didn't press--
-: Do you think if he was 30,
he would've pressed it?
-: I think there's a more reasonable expectation that someone
who was
was older,
had more experience.
-: So we should generally see an increase in
anxiety volume and in emphasis
as people age and legal acumen.
Right?
-: Well, yes, I think so.
I think an experience and what not.
-: Council, could you go backwards
for a minute though,
because you make these arguments based on Dean Chenko and
Miller and all these other cases that talk about the
developments in adolescent brains,
but where have you ever seen
those developments applied to procedural
aspects like waiver?
I mean the context that they come up
are things like criminal responsibility and sentencing.
When has that ever been applied
the way you are suggesting we should apply it here?
-: Well, I think that I'm not asking for,
I'm not asking for there to be a rule
in each case where you consider waiver or the newness
requirement for 33-E,
it's case specific.
It looks at the circumstances.
And I think that this is a circumstance that can be
considered on,
as to whether there is waiver.
-: But how would that look?
I mean say it was a public trial,
you're looking at whether or not people were
excluded during impanelment,
is there a doctrinal framework that that ebbs and flows
depending on the age of the defendant?
-: Well,
and I'm gonna going to sort of get into something and if I
don't answer your question, please let me know.
But I think that
it's very clear,
and this court has carved out sort of exceptions for
different types of structural errors.
In Francis,
they made a great distinction between the public trial
right,
and other rights.
This particular right,
this deprivation denial of counsel,
is one that in each case.
-: That was your lead argument.
I think we,
I at least I think I agree with you that obviously if we say
this was a critical,
if we have a lawyer who's sleeping during a critical phase
of a trial structural error,
no prejudice, you win.
Right?
-: Wonderful. -: Right.
(group laughter)
-: You're going with your strongest argument
when Justice Lowy asked you about
what do we do with this issue of waiver and age?
So.
-: Well as I say,
getting back to what Justice George's question,
I think it's a circumstance that can be considered.
I don't think the court looks at,
I don't think they identify it as fault,
but there is, in each sort of waiver case,
there's sort of an underlying notion of like,
were they at fault for this?
-: So counsel,
who is the first attorney who should have raised this issue?
-: Well,
I suppose that the prior appellate counsel should have.
-: And you don't bring an ineffective
assistance claim against Tim right?
-: I did not.
And I expected that question would be asked today.
I think that in look in, in pursuing a structure,
ineffective assistance of counsel against appellate council,
I think it still brings us back to whether--
-: That relates to waiver though.
That an important factor in waiver.
And you brought up Francis and Francis was an example where
the fact that it sat around for a long time
strengthened the waiver argument.
And here the defendant does what he's supposed to do,
he brings it to the appellate council,
but the appellate council doesn't do anything
'cause he thinks it's kind of silly.
And now you're not saying he was ineffective,
but now you're saying we should,
it wasn't silly.
I don't know what we're supposed to do with all of that.
-: Well, I mean also
analyzed as a claim of,
ineffective assistance of counsel
of prior appellate counsel
tends to be sort of outcome determinative in a way that,
is difficult for this case.
And I would also suggest--
-: I don't understand that 'cause,
can you,
I wouldn't gloss over that
because this waiver is complicated.
The motion judge finds there is waiver.
The first appellate counsel doesn't bring the claim,
you don't claim ineffective assistance on his part.
Why then should we decide that
waiver was inappropriate here?
-: Because I think that waiver in like cases is,
tends to be personal to the defendant.
And I think if you look at the defendant's circumstances--
-: But like in Francis we made that point that Francis,
you couldn't blame the defendant the first time around
because he wasn't there when counsel sort of
basically skipped him.
But here,
I don't know, it just seems different.
-: How so?
-: Well, I mean, you, you've said, you're saying that,
I mean you're relying on the youth of the defendant.
The defendant actually brings this up to appellate counsel,
then appellate counsel doesn't do anything with it.
And you're saying that's okay, it wasn't ineffective,
but now you're saying it, we should not find waiver.
I just don't know what we do with all of that.
-: I'm not necessarily saying that it wasn't ineffective,
I'm saying that it should not be considered as waived when
you look at the actions or the
what can be expected of the defendant.
And I think that in addition to the nature of this
structural error--
-: Oh wait, wait, wait.
Wouldn't we then have to apply a standard to
defense attorneys of their effectiveness
would depend on how effective their clients were?
I don't understand how that's gonna work.
-: I'm not sure I understand.
-: I was just, nevermind.
-: Are there any other questions?
Okay. Thank you very much.
-: Okay, thank you.
-: Attorney Martino.
-: Good morning Your Honors.
May I please the court?
Elizabeth Martino on behalf of the Commonwealth.
I'd like if I may,
to quickly just go through the frame,
the legal framework here, because I think it's important.
First, there's the gatekeeper petition issue,
which if the court agrees to look at the merits,
the merits are that the one overarching legal issue,
which is whether the motion judge properly denied the
defendant's motion for new trial,
whether he abused his discretion in denying
the motion for new trial.
Within that our full--
-: I appreciate that because I'd like to ask you one question
about the first issue.
So there wasn't an evidentiary hearing in this case?
-: There was not.
-: Okay so,
is this properly something we can decide?
Because just take the issue about the critical stage.
Let's assume for the sake of argument that I buy your
sister's argument that it depends on
whether it was a critical stage or a non-critical stage
for purposes of whether or not he was sleeping
and something ought to be done as a result of that.
In the affidavit,
her client says specifically and identifies specifically
that these were critical stages that
I said my lawyer was sleeping.
None of the affidavits that were filed
support that or corroborate that.
But yet the motion judge doesn't say,
or give some indication that
I just don't credit this because
the affidavit from the client says these are critical
moments and he was sleeping.
I've got affidavits from the mother from the other counsel
that don't corroborate there.
So therefore, I do not find that he's met his burden.
So is this a decision we should decide or is this something
we should remand?
-: It's something you should decide.
The four sort of issues,
the first that is very important and I'll go into that why,
because of the standard of review, but are the waiver issue.
The next is whether the motion judge abused his discretion
in articulating a legal standard for assessing whether
there's structural error in the context of
a sleeping attorney.
And then whether he properly found based on the submitted
affidavits,
whether the defendant made a
sufficient showing
that
a structural error occurred here and whether he properly
found that it did not.
And then finally whether he properly analyzed and concluded
that there was no substantial risk of a
miscarriage of justice.
The Commonwealth's contention of course is that all four of
those things were done properly by the motion judge.
-: So break them down though, 'cause I,
I have the same question that Justice Georges has.
How do we do this without a remand when we can't tell when
he's sleeping or not?
So the waiver,
the defendant actually brings it up to
appellate counsel, right?
-: Yes.
-: So it's different from some other,
it makes it a little harder to find waiver, right?
He's brought it up and his lawyers let him down.
-: Well, I think it's sort of muddying
the waters a little bit
between procedural waiver and the waiver of
substantive rights.
This is a case of procedural waiver where it's the court
doesn't look into the specific defendant and
what he knew or didn't know,
or his specific characteristics.
The court looks at was there a contemporaneous
objection at the time of trial
or,
and was there,
was this raised in the direct appeal or in the first motion
for new trial?
If none of those are met,
it's procedurally waived and in,
excuse me,
I'll find the case.
But the court, this court has gone through.
-: Closest case is Francis.
It's a, and there
if we weren't,
I mean I'm not sure this meets the,
the waiver standard in Francis one,
it's close, it wasn't,
sat around for 30 years.
And two,
it may be a critical stage.
I mean Francis draws a distinction between
certain things that you don't have to establish prejudice
and some you do.
This may fall into the first category as Justice Gaziano
said, if, if he's sleeping during
a momentous part, moment at trial,
that's a real problem, right?
But we don't know when he's asleep or when he's not.
-: Right. So turning to the first issue, which is waiver,
it's important because it will establish
the standard of review.
So if the defendant waived,
because you can waive a structural error,
waive the issue,
which he did hear because it was a procedural waiver,
it was not raised at the time of trial or in the direct
appeal or in the first motion for new trial and the case I
was looking for is Commonwealth versus Robinson,
which is cited in both briefs,
four 80 mass 146.
But in the first footnote,
this court said "procedural waiver is different from the
"waiver of substantive rights."
And procedural waiver is
basically just a forfeiture of standard--
-: Robinson's a public trial case, right?
-: [attorney Martino] Yes.
-: So again though,
we drew to some distinctions between in structural
error.
There's certain kinds of things that you just like
you don't give beyond a reasonable doubt instruction,
you lose.
We gotta do it over again.
-: But you can still waive a structural.
-: We were pretty, we--
-: Well in Francis, which was a sixth amendment case,
the court said you can still waive it.
And that in fact the defendant there did waive it.
And although he--
-: We drew again a distinction in Francis,
which I'm familiar with,
we drew a distinction between,
they're the case the lawyer Rons is a good lawyer,
and it's harder to evaluate
the issue was the client to get,
didn't get to choose his lawyer there.
-: [attorney Martino] Right.
-: We dealt with that differently than a case for example,
if you didn't give the beyond a reasonable doubt instruction
or if the juror was prejudiced.
There was,
so we've,
we've been careful to do just what
Justice Gaziano talked about,
there's certain kinds of structural error that just you
don't have to show prejudice on,
even if there's waiver, I think.
-: I believe that the at least from Francis,
which was a sixth amendment deprivation of the right to
counsel right.
And the closed courtroom cases,
all of which are structural error,
they can still be waived procedurally,
if they are waived,
the court still looks at whether there was a substantial
risk of a miscarriage of justice from the,
resulting from the error.
So here the defendant can still waive his right,
which he did here procedurally because he didn't raise it.
And as in Francis,
where this court excused that it wasn't a
contemporaneous trial objection,
because the defendant was completely
absent during arraignment.
-: Look, there's no way for him to have known.
-: Right?
-: Possible.
-: Well again, yes,
he didn't know and he wasn't at arraignment.
And so this court excused that it,
there wasn't the contemporaneous objection at arraignment,
but still at the first possible moment that he knew when he
received the trial transcripts and he saw what happened at
arraignment,
he should have and could have brought the claim, but didn't.
And he didn't from 1989 when he received the transcripts,
until 2015 when he brought it in his subsequent motion for
new trial.
And this court said in all those times,
he could have brought it up and didn't.
And it was procedurally waived and he forfeited
the standard of review for structural error.
The same is true here.
The defendant knew all of the facts and circumstances.
He knew that his attorney,
he believed had been sleeping during his trial.
He brought it up to his lawyer,
his lawyer did not choose to pursue.
-: Say we buy your argument on waiver,
we still don't know whether he was sleeping.
Again, there are these monotonous
parts of trial where if he's asleep it's hard to,
as Justice Gaziano pointed out,
it's hard to make it that be prejudiced,
but there are also these momentous moments at a trial where
he can't be asleep.
-: Yes, Your Honor.
-: And we don't know if like Rodriguez right?
He's the key witness.
We don't know if he was sleeping during Rodriguez's
testimony or the other person with a similar name right?
It's how do we do this without an evidentiary hearing?
-: So I first wanna note again,
I think waiver is unassailable here.
I think that this is procedurally waived.
Going with that,
the only standard to review here is under a substantial risk
of a miscarriage of justice.
And I think that that matters,
because the,
what you're looking at is prejudice,
what stages,
what evidence,
attorney Davis may have fell asleep through
and how it influenced the defendant's case
and as the judge in the motion for new trial said,
this is already undergone plenary
review under 33-E,
where ineffective assistance of counsel
was alleged on different grounds.
-: How, but I mean you give us too much credit.
I mean how
could
anybody on 33-E
review this issue when we didn't know
the attorney was asleep?
-: Well, just to quickly note,
reviewed the issue of the effectiveness of counsel and found
that counsel vigorously,
vigorously defended his client.
-: While he was awake.
-: While he was awake, yes.
So let me move on.
Wait, how much of a percentage of the trial
would someone have to be asleep
before you would concede it was a critical error?
-: Right.
So just putting it,
so I do wanna say substantial risk of a
miscarriage of justice.
This court has looked at it and found that there was none.
So under that standard, I think even
there was no
substantial risk.
Moving on to whether the motion judge here--
-: Well you can't,
don't broom that 'cause
that's where the rubber hits the road here right?
-: [Attorney Martino] Well--
-: So how do we, I mean look,
when Mr. Davis was awake, he was a great lawyer.
So how do we know that it
wouldn't have made a difference.
He doesn't stand up an object.
We can't see that from a cold transcript.
-: Right. But let me go to, so the motion,
the court has to determine whether the motion judge abuses
discretion in identifying a legal standard here and applying
that legal standard.
So the motion judge followed federal precedent,
which was the US Supreme Court chronic case,
as well as the circuit courts who have interpreted chronic
to say that the standard should be that there's only a
structural error where the attorney,
and it's where the defendant can show that the attorney
slept through a substantial portion of the trial.
What chronic says and what the other circuit cases say that
interpret chronic,
is that it's not only in the trial,
but also other critical proceedings
that are relevant to the trial.
So perhaps the other motions in limine or jury selection,
things that may not be considered the
trial is in taking of evidence, but other critical stages.
So that is the critical stage that's referred to in chronic
and in the courts that--.
-: I mean that's just not right, right?
I mean the chronic,
we have to figure out parts of a trial have gotta be
critical stages, right?
I mean the--
-: Trial itself is critical right?
And so in its entirety,
the trial and then there are other critical stages that are
not the trial that are also important.
-: So if the trial itself is critical,
and you're saying there are other stages that are critical?
Are you talking about pretrials?
-: [Attorney Martino] Yes.
-: So we have pre-trial critical stages,
And then all of the trial being critical stage.
-: And all of the trial and then
so what this court has to look at is whether the attorney
was sleeping through a substantial portion of any of that.
-: But that's the question.
And, and so this is,
I guess I'm having the same issue that Justice Georges is
having.
Let's just say that appellate,
first appellate attorney,
he looks at the transcript,
No, I'm not going with that one.
These are my best issues.
It's unequivocal that there's procedural waiver.
The case isn't that that doesn't end things.
So, how do we,
I'm just asking the same question in a different way.
Okay so now how do we
evaluate substantial risk with
no factual findings,
no record.
How do we do that?
-: Well, first
you look at whether the defendant made a proper showing
here,
which the motion judge found that he didn't because even
taking all the affidavits is true,
the motion judge found that the attorney was not sleeping
through a substantial portion of the trial.
-: Well, but if he's sleeping through,
for example, Rodriguez is a key witness, right?
-: Yes.
-: He doesn't have to sleep through the whole trial.
If he slept all through Rodriguez's testimony,
would we be here?
That's a, that would be a critical stage, right?
-: Right.
And it's not established that he slept through the whole of
his testimony.
And attorney Davis did a thorough cross-examination
of the witness so.
-: Did he object at any point when Rodriguez's testimony, or?
-: I'd have to look back at the record,
but the motion judge found that he was effective all through
that portion of the testimony.
And in fact what was raised,
and this is all fleshed out in the briefs,
but quickly what was raised is that during
by the affidavits during a nine day trial,
only the defendants identify like specific instances
when attorney Davis slept.
And really it was only during either Jeremiah Rodriguez or
Shawanda Rodriguez and they couldn't remember.
And then the co-defendant Mattis,
said he slept during the
testimony of an EMT and Kavon Blake,
which was not inculpatory against this defendant.
Now what's important,
is that there were four experienced attorneys here.
There were two prosecutors
and there were two defense attorneys.
They, of those four, one of the trial attorneys,
Greg Henning, did not observe attorney Davis sleeping.
Lauer said he saw him with his eyes closed,
but didn't know if he was sleeping,
which again is not uncommon.
Porges said she saw attorney Davis sleeping once,
and former ADA,
Now Judge Halal said he saw a few occasions when he saw
attorney Davis dozing off,
but he only specified one occasion where he said,
"I had to cough when I was showing him an exhibit."
And I think what's very important is that of all these four
experienced--
-: Showing a defense attorney an exhibit
is a critical thing in a trial?
-: But he woke him up so he wasn't sleeping during it.
And what is important is that all four attorneys,
which I mean again,
we cannot fault,
trials are long and a quick closing of the eyes
is not a substantial portion.
So he was woken up and that--
-: But I still have this issue though,
because when you have, whether it's attorney Lauer,
attorney Porges, or attorney Halal,
they've got their own issues to pay attention to.
So the idea that they give an affidavit that doesn't
necessarily align with what the defendant says,
I notice my client,
my attorney sleeping.
Doesn't this warrant having a hearing
here because just on the affidavits, I mean,
I think you were starting to say it's a long trial so that
every once in a while it's okay to shut your eyes,
which I would vehemently disagree with you, okay?
You're supposed to be paying attention.
It's your clients that's on the line. Pay attention.
So assume for the sake of argument that that's what they're
doing for their clients and their sides.
They're not looking at attorney Davis during however long
multiple weeks that this thing's going on.
So how do we do this without an evidentiary hearing?
-: Yes, Your Honor.
Well, I think what's very important too
is that what the motion,
we're looking at whether the motion judge
abuses discretion and finding,
that these affidavits did not raise a substantial issue.
And I think in looking at these four experienced attorneys,
who of course had their own things going on,
but they saw very little of any sleeping, if at all.
And none of them brought it to the trial judge's attention.
And if, and this was an inference
that the motion judge found,
if they had seen something worrisome
about attorney Davis sleeping,
there is an inference for sure that he would've brought it.
-: Are there cases,
because to me your better argument is that there are two
other lawyers there and the judge,
the judge who's actually looking at the lawyers,
a much more easily than the defense counsel
never does anything.
Are there cases that give us comfort based on those?
-: There are, Your Honor.
And I would also note that,
that appellate counsel reached out to all of the jurors who
are looking at the parties,
and none of them wrote back on this issue except for one who
said he or she,
I am sorry I didn't see attorney Davis sleeping
and I would note yes.
And so just to look at the federal cases that discuss this
issue, which are cited in the briefs at length,
which are Reagan and Roy,
all of the cases.
-: Does the fact that they're co-counsel,
that there's a co-defendant and alert counsel for the
co-defendants,
do any of the cases point that out?
It is odd that we're relying on someone else's lawyer.
-: Right.
Well, I don't actually think that that is
dispositive at all.
I think really what's more important is that the federal
cases that flush this out, the substantial portion
that the council is sleeping through is
much greater than here.
-: How do we know?
-: Much greater.
Justice Kafker: How do we know?
-: Because there's a showing from the defendant, right?
-: An evidentiary hearing.
-: Well, no,
I think here there need not be because the motion judge did
not abuse his discretion in finding that there were four
attorneys who gave affidavits and that he--
-: Each of them corroborated some part
of something that the defense counsel
is sleeping through.
And the the client is saying,
"yeah, he slept through jury selection."
And through another witness
who may or may not be the key witness.
-: Again, I would disagree with that characterization
because of the four.
Two said they did not see attorney Davis sleeping at all.
But be that as it may,
I know this is something that the court will go back and
look at,
but I would note that
I think that the motion judge's findings here,
that the defendant did not make a correct showing,
or excuse me,
a sufficient showing based on the affidavits provided
and that because it was attorneys
who provided the affidavits--
-: Can I ask, but the standard,
the standard for us,
this is a documentary case, right?
He wasn't the trial judge.
so we're in exact same position that he was in right?
Do we even owe him any deference on this?
I'm just trying to,
it's a pure document issue.
-: Well, I mean the standard of review
is whether he abused his discretion, right?
And so in determining whether he
properly considered the affidavits and found that no
evidentiary hearing was necessary.
-: But that's the issue though, isn't it?
It's like is there any reason
not to have had an evidentiary hearing
where you could have called witnesses and cross-examined
them, including the judge?
-: Yes. And that is because the standard,
the legal standard of whether there's a structural error was
articulated correctly.
-: That's not the standard for an evidentiary hearing.
-: Well that's--
-: That's just a really small standard to get over.
-: No absolutely.
Sorry, but if I just can can finish the point.
So he correctly identified the legal standard,
which is that the attorney has to be sleeping through a
substantial portion of the trial.
And then he determined that based on the affidavits,
there was not a sufficient showing,
even taking all the affidavits as true that the attorney
slept through a substantial portion.
-: So a substantial portion of the trial could translate to,
a small critical stage as not
a substantial portion of the trial.
It's just a sliver of the critical stage.
So it's not a substantial portion?
-: No.
As the cases bear out,
the substantial portion is that the lawyer is sleeping
through most of the trial.
And again,
I'm not saying that that should necessarily be the standard,
but I don't think the court has to articulate the exact
contours today.
But it is, as you look through the cases,
it's that they were sleeping 10 minutes at a time.
They were sleeping at various junctures throughout the trial
for significant periods of the time.
That they woke up and were like,
"oh, what's going on?"
So I mean the facts fair out much greater.
-: So its really a quantitative standard
is what you're articulating versus
a qualitative standard.
-: It can be both, of course.
I mean the court can look at, well was it
substantial and was it during the key witness?
That's not what happened here.
But certainly if it was alleged that
the defense attorney had a
complete sleeping episode during the critical
witness and didn't do a good cross examination,
yes, of course just that sleeping episode could probably be
enough.
But again, the contours and the exact
standard don't have to be fleshed out in this case,
because all the courts that have interpreted chronic,
that are all laid out in the briefs,
the substantial episodes are
much, much, much greater than even
taking the affidavits as true here
alleged.
And so the motion judge did not abuse this discretion in
finding that attorney Davis did not sleep through a
substantial portion of the trial,
that the affidavits did not sufficiently support the claim
and that an evidentiary hearing was not required.
And keeping in mind that
waiver I think is unassailable here.
And that even structural errors can be waived.
So at the most,
we're looking at a substantial risk of a
miscarriage of justice.
-: So let me ask you this on the last point,
assuming procedural waiver,
what we're really doing is we're looking at the affidavits
and if everything in the affidavits were true,
is that clearly,
is not a substantial risk of miscarriage justice.
If that's the case,
and we've got corroboration as has been said
to some extent of the defendant's affidavit,
but the affidavit doesn't lay out
how much of potentially
Rodriguez's testimony he was asleep.
Is that enough of a reason for a remand?
Because if we take the affidavits, don't we have a question?
How do we resolve that?
-: Well, I think the affidavit is just maybe Shawanda,
maybe Jeremiah Rodriguez's testimony.
I don't remember which.
And so that is not a sufficient showing and we can put the
onus on the defendant,
especially where the claim is raised years later,
it's waived and he's bringing forth these affidavits,
which even interlocking and taken as true,
don't show that attorney Davis
slept through a substantial portion.
And when you're looking at, again,
the Commonwealth's contention is that
there's no error here, right?
Because it was not a substantial portion.
And then we look at substantial risk and which is all the
things what was he able to,
was attorney Davis still able to do a cross-examination?
-: Substantial portion is the federal standard, right?
We've always, our standard is critical stage, right?
-: This court hasn't addressed it.
But in Commonwealth versus Valentin,
which is cited in the Commonwealth's brief,
which was an issue of substitute counsel,
this court said there had to be a, let me just, I'm sorry.
Like a total absence of an attorney during a critical stage.
So momentary dozing, I don't think would rise to that level.
-: Sorry, Valentin is our case?
-: Yes. It's out of this case court.
And is, I'm sorry it's stated in the commonwealth's brief.
I don't have the citation right here, but.
-: So you're saying that if we agree with you that
if the substantial,
critical stages the whole trial,
and we're looking at whether
there was a substantial portion of that,
then that we come out the way you're coming out then.
But if we
think that
it's more important to know
whether the lawyer
was sleeping during
an important or
critical stage of the trial,
then we would have to remand.
If we decided that it's not
enough to know that the lawyer,
whether or not the lawyer slept through a substantial
portion of the trial,
we need to know what part of the trial we're talking about.
-: I think that the most that the court can do in this case
is remand for an evidentiary hearing.
If the court finds against my positions in multiple stages,
then of course
the court can remand and for an evidentiary hearing to try
to suss out better exactly when attorney Davis
was sleeping and which portions,
but again, under the standard of--
-: I understand yours, and then if we did remand it,
and so then it would be up to the motion judge to see if he
or she can figure out whether attorney Davis was sleeping
during a critical stage of the trial right?
And then what?
What if the judge can't make heads or tails
out of what they have in front of them
even after hearing,
after an evidentiary hearing,
where they pretty much say what
it is that they've said in their affidavits?
-: Yeah.
Well, I the answer there, Your Honor,
would be that motion judge would have in their discretion to
find that there was a structural error because even after
evidentiary hearing, they couldn't figure out exactly when,
the defense counsel was sleeping
and there was a structural error.
But here the defendant waived it and so he does not get
automatic reversal,
and so we still look at whether there was a substantial risk
of a miscarriage of justice from the error.
So it's almost like looking at an ineffective assistance of
counsel claim.
So the court would have to,
the motion judge would have to assess
what was counsel's ultimate
performance,
his closing argument,
all the things that the motion judge here did already,
and that this court did already in its 33-E plenary review.
So even if a structural error occurred here
because of the waiver, which is unassailable,
the standard of review is a substantial risk of a
miscarriage of justice.
Another defendant may fare better if they raised the claim
at the first possible moment.
Justice Budd: Okay. Thank you very much.
-: Thank you Your Honors.