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SJC-13321.
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Commonwealth versus Rigoberto B. Escobar.
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Okay, attorney Baler, whenever you're ready.
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Morning, may it please the court,
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Jeffrey Baler for Rigoberto Escobar.
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First off here, we contend that Mr. Escobar's motion
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to suppress his statement to police
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should have been allowed.
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We contend that it can't be said here,
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that based on the police tactics
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and the other factors present here
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that Mr. Escobar was not deprived
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of an autonomous decision to confess.
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And without showing that beyond a reasonable doubt,
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then the motion to suppress should have been allowed.
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First off, the police used several tactics
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that ended up overwhelming Mr. Escobar.
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Well, can I ask you about that
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last little bit of your conclusion 'cause this,
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the motion judge decided that that was not true.
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That those tactics, while improper,
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did not actually overwhelm the defendant here,
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he was able to resist them,
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continued to deny his involvement beyond a fist fight,
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and it wasn't until they truthfully told him,
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"Oh, we found the gun," that his demeanor changed
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and he issued the statement.
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Right, well, we contend that it was
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building, building, building through this whole
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three-hour interrogation,
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and that the gun was just one factor.
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In fact, after he was told about the gun,
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that the police still said,
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"As we've been telling you all along,"
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it's sort of a mistranslation here.
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They said, "It's bigger if you tell us the truth now,"
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meaning it's better you tell us the truth.
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And then finally, he just adopted what they said.
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"You were together, you went down the street,
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you pulled out the gun,"
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and he just said, "Yes, yes, yes."
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So, we contend that, I mean,
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it has to be beyond a reasonable doubt.
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So, there's all these things building, building, building
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and then he is finally given the gun
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and he is already prepared to, you know,
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to think that this is gonna be his best option,
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so that he was overwhelmed.
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For example, they repeatedly told him
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that this is his only chance to speak.
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They didn't do the,
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"You're not gonna get to tell the jury.
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This is basically your only time
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to speak to us essentially."
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Yeah, they never said it's-
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They're close to that, right?
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They're careful.
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They don't walk into the, you're not gonna get to
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tell a jury another story.
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They're couching it in their interactions
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with them, aren't they?
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I don't feel that that's so.
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I mean, they just keep repeating saying,
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"This is your only chance to speak.
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This is your only time you're gonna be able to
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tell your story."
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They never say to us.
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And what's the implication if they're not saying to us,
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but meaning this is the only time forever,
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meaning court or any time.
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And even at one point they say, they do say,
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"If you don't talk to us right now,
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the judge is not gonna hear your side of the story."
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So, I think it's pretty clear that
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they're not talking about this is your only time
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to talk to us.
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Like, in the Novo case that's cited
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in both our briefs, I believe, they're saying, they do say,
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"This is your only chance to talk to us."
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And that's different though than what they're saying here.
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They're saying, "This is your only chance to talk."
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And then at one point they related that
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the judge is not gonna hear.
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So, clearly, they're not talking about us,
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they're talking about ever.
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They're talking about going to the jury,
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going to trial, or ever.
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Also, they keep saying that they can't help him
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unless he talks.
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And over and over again, "We wanna help you,
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but we can't help you unless you tell us
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what happened, now."
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And again, this relates to leniency or I mean,
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what would be the implication of someone saying,
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"We could help you," other than a lesser sentence
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or a lesser offense.
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If we agreed with you
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and the confession should be not considered,
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would there still be enough evidence of his guilt?
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I mean, I think this is by far the strongest evidence.
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There is other evidence, but not a huge amount.
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There's people saw them fighting and leaving the scene
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and him being shot.
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But he testified at trial that he was there
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but he went home, but he left the gun in the house.
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So, the implication could have been
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that someone else from the house took the gun.
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But his fingerprint was on the gun, right?
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His fingerprint was on the gun.
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I mean, that's a-
There was evidence
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that he had asked somebody to leave the back door open.
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Yes, there was.
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That he returned at 2:00 a.m.,
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around the time of the shooting?
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Yes, so, there was other evidence.
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And that person was testifying under a grant of immunity.
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And that person, you know, of course, had lived in the house
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and had access to the gun.
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So, it would've certainly been a lot less believable.
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I mean, cases from this court say that
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the statement of the defendant
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is the most powerful evidence.
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So, I think it would make a huge difference
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if it was suppressed.
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And beyond those saying, "It's your only time to talk,"
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and "We wanna help you."
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Oh, also they related the "We wanna help you,"
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to "You're going to be in jail for a long time.
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If you don't talk now, we can't help you."
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And third, they misrepresented that they were searching
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his apartment at the time,
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and that they were gonna find evidence
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that was gonna convict him.
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Is that the microscopic evidence?
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Yes. Yes.
Okay.
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And finally, they repeated, I know that it isn't
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necessarily wrong, but they were constantly saying to him,
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"We know you're lying.
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We have all the evidence already.
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We know you're lying.
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You have to talk."
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So, they were really aggressively on him.
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And then finally, you know, so he, first he starts out,
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"I wasn't there."
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And then he starts out, "All right, I was there."
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So, they're like, moving him along and moving him along.
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And then they introduced the gun and there he goes.
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He thinks this is my best option.
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They said it's better if I talk, so, he talks.
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So, we can't say that beyond a reasonable doubt
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that this was an autonomous confession.
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And additionally, there's the circumstances
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of this whole night.
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They were coercive towards him.
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They went to his apartment with guns drawn, seven officers.
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The motion judge found that he acceded to police coercion
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in going to the station and that then he was at the station
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for three hours without the interrogation beginning.
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And the motion judge found that if a person
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felt they were free to leave,
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they wouldn't have stayed there for the three hours.
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And then they had this lengthy interrogation.
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He's not an English speaker.
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There was an interpreter who was an officer
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and two other officers in the room.
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As you can see the translation of the Miranda warnings,
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the person who translated what occurred
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at the interrogation wrote, it was awkward Spanish.
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Without going through every detail of it,
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there was a lotta words that were just wrong.
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Like, they called it the defensive rights saw.
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So, all of this was this building, building, building,
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and then finally, he adopts their statement thinking,
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"I can't speak English.
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These Miranda warnings were vague
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and the police are pressuring me,
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telling me it's gonna be best for me if I just admit it."
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So he thinks, "Well, what am I gonna do?"
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Whether you know, he did it or not.
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It's his best option,
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[Justice Wendlandt] Which part of Miranda was missing?
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There's just like misstatements throughout.
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I can't say that like, let's see.
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For example, instead of having, you can say
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you have a right to a lawyer.
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It says you can have present.
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But there's right to lawyer
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in the sentence before it, right?
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Yes, and then it just says you can have present.
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And then it says, "if you cannot hire a lawyer
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and wants one."
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And then there's these two words, voir dire
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and contester-
Well, that's just a problem
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with ar versus er verbs.
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I think a native Spanish speaker would've understood those.
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Okay, I didn't personally understand.
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And for some reason they weren't translated.
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Well, because there are ar verbs and they were said in er.
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But I don't think that would've caused a trip up on the...
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Okay, so, I mean, I think the point is that
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all this is going on and-
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So, tell me about the prompt arraignment.
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I mean, I know that was not preserved,
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but it does seem here that there was more than six hours
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before the (indistinct)-
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Yes, there was.
The defendant confessed.
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He didn't confess until after the six hours were up,
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if you start counting from the 9:30
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when they went to his apartment with guns drawn
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and took him to the station.
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This also falls in with the right
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to a telephone call argument too.
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He was not told that he had a right to a call
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until the time of booking after this whole thing was over.
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And even though the telephone rights
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were written on the Miranda warnings that were read to him,
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they weren't read to him.
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And he was told not to read that part.
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So, do we count differently based upon
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not free to leave for Miranda custodial purposes
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and formal arrest, when the clock starts?
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Do we count different for the-
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When does the clock start?
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Does it start when you're not free to leave
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for custodial purposes?
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Versus you are now formally under arrest
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after you confessed.
Yeah, I mean,
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in the Hampton case side of my brief,
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the court cites a three-part test.
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Actual or constructive seizure or detention of the person.
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Two, with intention to affect an arrest.
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Three, so understood by the person detained.
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So, it's not saying it's booking,
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it's when these things come into play.
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Otherwise, (indistinct) formal arrest. Right?
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There is a difference between custodial interrogation
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and formal arrest?
There is.
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But that's the standard for a formal arrest.
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So, it's not like really you're under arrest,
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you're formally arrest,
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but when these conditions are satisfied,
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then a formal arrest occurs.
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I mean, otherwise police could always put off-
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It was condition two where we have Officer Cashman,
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I think, believing that it was not his intent
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to arrest the defendant until he had the confession.
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And the motion judge crediting that.
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I don't recall the motion judge crediting that,
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but I believe you,
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It's not as much, I mean, you have look at,
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I objectively looked at the circumstances
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of what was happening and was there an affect to arrest.
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I mean, the police will always say,
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"We weren't gonna arrest him,
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so, we didn't need to give him his phone rights
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or prompt arraignment."
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But you have to look at the circumstances here.
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They came to his apartment,
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seven officers with their guns drawn.
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And so, at 9:30?
At 9:30.
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Was that when you're saying there was the formal arrest?
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Yes. Yes.
Okay.
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00:12:58.980 --> 00:12:59.813
And then they took him-
264
00:12:59.813 --> 00:13:01.530
At that point they expressly tell him
265
00:13:01.530 --> 00:13:03.230
he doesn't have to come with them.
266
00:13:07.306 --> 00:13:09.638
Right, but if we look at the findings of the motion judge,
267
00:13:09.638 --> 00:13:11.805
the motion judge said that
268
00:13:13.748 --> 00:13:16.267
"He was acting subject to police coercion
269
00:13:16.267 --> 00:13:18.807
and he acquiesced to police authority."
270
00:13:19.680 --> 00:13:22.650
So, they might have said something, but it was like,
271
00:13:22.650 --> 00:13:24.660
we're saying this but you're coming with us.
272
00:13:24.660 --> 00:13:26.640
I mean, all through the interrogation,
273
00:13:26.640 --> 00:13:30.000
they kept saying, "We know what happened, just tell us."
274
00:13:30.000 --> 00:13:31.410
Well, if they knew what happened,
275
00:13:31.410 --> 00:13:33.390
they were gonna arrest him.
276
00:13:33.390 --> 00:13:34.293
They weren't gonna just let him go.
277
00:13:34.293 --> 00:13:36.750
Once they had the gun they knew what happened.
278
00:13:36.750 --> 00:13:38.460
Maybe not before the gun.
279
00:13:38.460 --> 00:13:41.193
But they said it repeatedly before the gun.
280
00:13:42.060 --> 00:13:47.060
Again, trickery, it's not usually enough. Right?
281
00:13:48.000 --> 00:13:50.581
But I'm just, I mean, what I'm saying is that
282
00:13:50.581 --> 00:13:53.670
if they knew what happened, I mean,
283
00:13:53.670 --> 00:13:54.780
he was gonna be arrested.
Before we lose you
284
00:13:54.780 --> 00:13:58.470
could you address, look, tell me in the light most favorable
285
00:13:58.470 --> 00:14:01.680
to you, which is the standard, why you do get
286
00:14:01.680 --> 00:14:03.750
the voluntary manslaughter instruction?
287
00:14:03.750 --> 00:14:07.530
Yeah, based on his statement to the police.
288
00:14:07.530 --> 00:14:09.480
Right.
And other witnesses
289
00:14:09.480 --> 00:14:14.280
have testified at trial that this fight occurred,
290
00:14:14.280 --> 00:14:17.550
starting in the house, going outside.
291
00:14:17.550 --> 00:14:19.977
Some of the witnesses said that the decedent
292
00:14:19.977 --> 00:14:24.060
was the first one to throw a punch.
293
00:14:24.060 --> 00:14:26.250
Yeah, but if there's a break in the action,
294
00:14:26.250 --> 00:14:29.460
it loses the suddenness on provocation.
295
00:14:29.460 --> 00:14:30.780
Isn't there a break in the action?
296
00:14:30.780 --> 00:14:32.370
No, no.
297
00:14:32.370 --> 00:14:34.170
In the light most favorable to the defendant,
298
00:14:34.170 --> 00:14:35.910
there was no break.
299
00:14:35.910 --> 00:14:37.920
And I don't know if, I mean, I don't know if there was
300
00:14:37.920 --> 00:14:41.820
any break, regardless of how you look at the evidence.
301
00:14:41.820 --> 00:14:45.840
From his statement, they talk about this fight occurring,
302
00:14:45.840 --> 00:14:47.430
they're drunk, they're falling down,
303
00:14:47.430 --> 00:14:49.080
they're kicking, they're punching.
304
00:14:49.080 --> 00:14:51.630
Then they both go off together.
305
00:14:51.630 --> 00:14:55.890
And in my client's statement, he says they continue to fight
306
00:14:55.890 --> 00:14:57.240
and then at some point he-
307
00:14:57.240 --> 00:14:59.940
They go off together then they reconnect, right?
308
00:14:59.940 --> 00:15:03.363
Well, they weren't separated according to his statement.
309
00:15:04.320 --> 00:15:05.393
They just walked together.
310
00:15:05.393 --> 00:15:08.940
So, the best case scenario comes from his statement?
311
00:15:08.940 --> 00:15:10.680
Right, and that's the standard.
312
00:15:10.680 --> 00:15:12.403
It has to be in the light most favorable
313
00:15:12.403 --> 00:15:13.236
to the defendant.
Can I ask?
314
00:15:13.236 --> 00:15:15.750
The Commonwealth seems to be weaving together
315
00:15:15.750 --> 00:15:20.750
his statement to the police with the testimony at trial.
316
00:15:22.800 --> 00:15:23.633
Yes.
317
00:15:23.633 --> 00:15:26.700
And saying that we have to read them together.
318
00:15:26.700 --> 00:15:28.650
Right.
We just look at
319
00:15:28.650 --> 00:15:30.090
your client's testimony essentially.
320
00:15:30.090 --> 00:15:31.050
Right, right.
321
00:15:31.050 --> 00:15:33.720
I brought this up in my reply brief.
322
00:15:33.720 --> 00:15:36.870
Even in cases where there was an alibi,
323
00:15:36.870 --> 00:15:41.179
if there was evidence to support the instruction,
324
00:15:41.179 --> 00:15:43.650
it had to be-
But you have two people
325
00:15:43.650 --> 00:15:46.630
who are in a fist fight and your client says,
326
00:15:46.630 --> 00:15:49.740
"I don't know, I went crazy and I shot him," basically.
327
00:15:49.740 --> 00:15:50.573
Right.
328
00:15:50.573 --> 00:15:55.020
Yeah, so, there was no like, the decedent went away
329
00:15:55.020 --> 00:15:56.370
and my guy...
330
00:15:56.370 --> 00:15:59.280
There was something when he was adopting
331
00:15:59.280 --> 00:16:01.350
what the police were saying-
What'd your client say
332
00:16:01.350 --> 00:16:03.813
about possession of the gun at that point?
333
00:16:04.650 --> 00:16:07.950
He said he got the gun because he wanted
334
00:16:07.950 --> 00:16:09.904
to show his friends.
But he had it on him?
335
00:16:09.904 --> 00:16:10.867
He had it on him, yes.
336
00:16:10.867 --> 00:16:13.050
Yes.
So, he had it on him
337
00:16:13.050 --> 00:16:16.980
according to him, before the fight broke out.
338
00:16:16.980 --> 00:16:21.540
Fight breaks out and in the rash decision he shoots.
339
00:16:21.540 --> 00:16:23.130
Right, yes.
Okay.
340
00:16:23.130 --> 00:16:24.600
There's also some, the Commonwealth,
341
00:16:24.600 --> 00:16:26.040
again, I had a little trouble understanding
342
00:16:26.040 --> 00:16:26.910
what the Commonwealth's doing.
343
00:16:26.910 --> 00:16:28.410
But the Commonwealth's saying,
344
00:16:29.760 --> 00:16:32.680
his knuckles are only slightly grazed
345
00:16:33.630 --> 00:16:38.630
and we've got three shots, one to the head,
346
00:16:39.000 --> 00:16:42.480
then two, one at close range to the head, and then two.
347
00:16:42.480 --> 00:16:44.190
So, somehow that undermines
348
00:16:44.190 --> 00:16:47.370
the voluntary manslaughter instruction.
349
00:16:47.370 --> 00:16:49.977
I'm not sure I understand that, but I'll ask him that.
350
00:16:49.977 --> 00:16:51.870
But why don't you address their arguments?
351
00:16:51.870 --> 00:16:53.220
'Cause they're trying to...
352
00:16:53.220 --> 00:16:55.770
I think they brought up some cases where like,
353
00:16:55.770 --> 00:17:00.360
an elderly person fought back and was killed
354
00:17:00.360 --> 00:17:04.050
and the court said, no, you know, that's not good enough
355
00:17:04.050 --> 00:17:05.820
for a manslaughter instruction.
356
00:17:05.820 --> 00:17:08.340
But it seems like on these facts, this is just,
357
00:17:08.340 --> 00:17:10.830
that's what manslaughter is, is a fight.
358
00:17:10.830 --> 00:17:13.353
In the Peters case that I cited in my brief-
359
00:17:13.353 --> 00:17:15.360
Well, I mean, it's hard to argue
360
00:17:15.360 --> 00:17:20.040
that's an unintentional act when you shoot someone
361
00:17:20.040 --> 00:17:22.500
twice in the back of the head and once in the eye.
362
00:17:22.500 --> 00:17:24.540
I get that argument that they're making-
363
00:17:24.540 --> 00:17:26.310
For involuntary.
For involuntary.
364
00:17:26.310 --> 00:17:29.280
Voluntary, I think, is a harder issue for government.
365
00:17:29.280 --> 00:17:31.800
It is, but, you know, it was requested
366
00:17:31.800 --> 00:17:36.180
and if he was shooting wildly, you know, there's cases
367
00:17:36.180 --> 00:17:39.960
where someone shot through a window wildly, and-
368
00:17:39.960 --> 00:17:41.520
There's a window case with the shades down.
369
00:17:41.520 --> 00:17:44.370
All right, so, it should have been left to the jury even-
370
00:17:44.370 --> 00:17:47.590
Yeah, but this is two guys within feet of each other.
371
00:17:47.590 --> 00:17:48.526
Okay. All right.
When you shoot somebody
372
00:17:48.526 --> 00:17:50.786
in the back and head and the eye, it doesn't seem
373
00:17:50.786 --> 00:17:52.530
all that accidental to me.
374
00:17:52.530 --> 00:17:54.720
Okay, so, at least it could be voluntary.
375
00:17:54.720 --> 00:17:56.910
No, I'll give you, that's a better argument for you.
376
00:17:56.910 --> 00:17:58.830
Okay, I'm not conceding,
377
00:17:58.830 --> 00:18:00.720
but I'll say it is a better argument.
378
00:18:00.720 --> 00:18:03.370
Might wanna concede the other one, but that's okay.
379
00:18:04.470 --> 00:18:07.290
But yeah, but on provocation, we'll look to see
380
00:18:07.290 --> 00:18:08.830
exactly what your client said
381
00:18:10.230 --> 00:18:12.660
taking out the police statements.
382
00:18:12.660 --> 00:18:14.490
Exactly, yeah.
383
00:18:14.490 --> 00:18:19.490
I just was pointing out when the police are questioning him
384
00:18:19.710 --> 00:18:22.597
and he was adopting what they're saying, at first they said,
385
00:18:22.597 --> 00:18:25.590
"And you followed him down the street," and he said, "Yes."
386
00:18:25.590 --> 00:18:28.980
Which maybe from that you could say there was a separation.
387
00:18:28.980 --> 00:18:31.620
But later on when he starts actually talking
388
00:18:31.620 --> 00:18:34.920
and saying what happens, he says they were walking together.
389
00:18:34.920 --> 00:18:37.290
He doesn't say that he followed him.
390
00:18:37.290 --> 00:18:40.620
And on motion for new trial, the judge just says,
391
00:18:40.620 --> 00:18:43.803
rejects that claim of provocation. Right?
392
00:18:44.952 --> 00:18:46.020
Said there was no evidence of it?
393
00:18:46.020 --> 00:18:49.430
Yeah.
I don't know. I don't know.
394
00:18:50.580 --> 00:18:52.997
Right, you mean for the manslaughter instruction?
395
00:18:52.997 --> 00:18:54.450
Right.
Right, yes.
396
00:18:54.450 --> 00:18:55.623
Yes, that's true.
397
00:18:57.060 --> 00:18:59.700
And what does the motion judge say on that?
398
00:18:59.700 --> 00:19:02.160
Why does the motion judge come to that conclusion?
399
00:19:02.160 --> 00:19:04.470
You know, he just really says,
400
00:19:04.470 --> 00:19:05.453
I don't see the evidence for it.
401
00:19:05.453 --> 00:19:09.300
I don't think he ever really, sorry, she.
402
00:19:09.300 --> 00:19:11.850
I don't think she ever really explains why-
403
00:19:11.850 --> 00:19:13.770
Is this the same as the, is she the trial judge?
404
00:19:13.770 --> 00:19:15.000
Is this Fahey or is this someone?
405
00:19:15.000 --> 00:19:15.860
Fahey was the trial judge
406
00:19:15.860 --> 00:19:18.333
and Tuttman was the motion judge.
407
00:19:19.740 --> 00:19:24.740
Yeah, so, it's unclear why it wasn't given.
408
00:19:27.540 --> 00:19:30.870
In fact, the trial judge was much more interested
409
00:19:30.870 --> 00:19:33.780
in giving an involuntary manslaughter instruction
410
00:19:33.780 --> 00:19:38.160
based on the actions and the intoxication of my client.
411
00:19:38.160 --> 00:19:43.160
And sort of just dismissed the voluntary murder instruction
412
00:19:44.130 --> 00:19:48.660
as being, you know, as being not supported.
413
00:19:48.660 --> 00:19:52.260
I'm confused though, is the motion judge just dealing
414
00:19:52.260 --> 00:19:53.850
with the involuntary or is she dealing
415
00:19:53.850 --> 00:19:55.770
with the voluntary as well?
416
00:19:55.770 --> 00:19:59.047
'Cause I'm just looking at page 18 in her decision,
417
00:19:59.047 --> 00:20:00.567
"is involuntary."
418
00:20:01.560 --> 00:20:03.540
Excuse me, I'm reading the wrong part, sorry.
419
00:20:03.540 --> 00:20:04.710
But she deals with both?
420
00:20:04.710 --> 00:20:06.450
I just can't find the second part.
421
00:20:06.450 --> 00:20:09.780
Yeah, well there was, there was written requests for both.
422
00:20:09.780 --> 00:20:14.640
And at some point she says there's no voluntary.
423
00:20:14.640 --> 00:20:17.040
And then she's saying, "but I think it would be
424
00:20:17.040 --> 00:20:18.907
reversible error," in fact, she says,
425
00:20:18.907 --> 00:20:20.820
"If I don't give the involuntary."
426
00:20:20.820 --> 00:20:23.103
Can I ask you just to separate the two out.
427
00:20:24.060 --> 00:20:26.700
You argue both parts of provocation.
428
00:20:26.700 --> 00:20:30.660
Is it both heat of passion and sudden combat?
429
00:20:30.660 --> 00:20:31.680
I don't-
I think that-
430
00:20:31.680 --> 00:20:32.550
There is a difference.
431
00:20:32.550 --> 00:20:34.890
The Howard case describes there's a difference.
432
00:20:34.890 --> 00:20:36.120
What's your best case?
I think they're
433
00:20:36.120 --> 00:20:39.030
very entwined, and I think that Peter's case
434
00:20:39.030 --> 00:20:43.470
that I cite in the brief, that's a case where
435
00:20:43.470 --> 00:20:46.800
there was a fight and in fact Peters was the aggressor.
436
00:20:46.800 --> 00:20:49.830
Then there was a break, he went to his car, he got a gun
437
00:20:49.830 --> 00:20:51.540
and he came back and shot the guy.
438
00:20:51.540 --> 00:20:54.030
I mean, I think this case is even better
439
00:20:54.030 --> 00:20:57.270
for an involuntary manslaughter than the Peter's case.
440
00:20:57.270 --> 00:20:59.310
You mean voluntary?
Voluntary.
441
00:20:59.310 --> 00:21:00.143
Right.
Yes.
442
00:21:00.143 --> 00:21:01.860
Right, on which grounds,
443
00:21:01.860 --> 00:21:05.280
the passion or sudden combat?
444
00:21:05.280 --> 00:21:06.930
I think they're very intertwined.
445
00:21:06.930 --> 00:21:09.480
I think sudden combat is sort of
446
00:21:09.480 --> 00:21:12.900
part of the heat of passion, but definitely sudden combat.
447
00:21:12.900 --> 00:21:16.020
So, it seems like to me like, the definition of it.
448
00:21:16.020 --> 00:21:17.970
Okay.
Okay.
449
00:21:17.970 --> 00:21:20.010
I'm sorry, I just wanna clarify.
450
00:21:20.010 --> 00:21:24.630
Tuttman issues a decision on voluntary, involuntary
451
00:21:24.630 --> 00:21:26.370
or does she just deal with the motion to suppress?
452
00:21:26.370 --> 00:21:27.780
She just dealt with the motion to suppress.
453
00:21:27.780 --> 00:21:30.990
So, we don't have anybody but Fahey, the trial judge,
454
00:21:30.990 --> 00:21:34.410
analyzing the voluntary manslaughter instructions?
455
00:21:34.410 --> 00:21:35.520
Right.
Okay.
456
00:21:35.520 --> 00:21:36.960
That's what I thought.
457
00:21:36.960 --> 00:21:38.340
Okay, I see my time's up.
458
00:21:38.340 --> 00:21:40.530
If there's nothing further?
459
00:21:40.530 --> 00:21:41.830
Thank you.
Thank you.
460
00:21:44.040 --> 00:21:45.090
Okay, attorney Lee,
461
00:21:50.160 --> 00:21:52.200
Madam Chief Justice and may it please the court.
462
00:21:52.200 --> 00:21:53.790
ADA Chia Chi Lee for Middlesex
463
00:21:53.790 --> 00:21:55.290
on behalf of the Commonwealth.
464
00:21:55.290 --> 00:21:57.420
The defendant's conviction of murder in the first degree
465
00:21:57.420 --> 00:21:58.860
should be affirmed.
466
00:21:58.860 --> 00:22:02.280
In the early morning hours on January 17th, 2015,
467
00:22:02.280 --> 00:22:05.220
the defendant shot and killed the victim, Magno Sosa.
468
00:22:05.220 --> 00:22:07.290
When was the defendant formally arrested
469
00:22:07.290 --> 00:22:09.930
for purposes of the prompt arraignment
470
00:22:09.930 --> 00:22:11.400
and or the telephone rights?
471
00:22:11.400 --> 00:22:12.233
Formally arrested?
472
00:22:12.233 --> 00:22:13.890
The defendant was formally arrested
473
00:22:13.890 --> 00:22:16.350
after the interview when he was booked.
474
00:22:16.350 --> 00:22:18.270
There's a difference between someone in custody
475
00:22:18.270 --> 00:22:20.310
for Miranda purpose, when someone is under
476
00:22:20.310 --> 00:22:23.550
constructive arrest, which is the three-prong test,
477
00:22:23.550 --> 00:22:26.190
and when someone is formally arrested,
478
00:22:26.190 --> 00:22:28.380
when the police announce arrest.
479
00:22:28.380 --> 00:22:31.470
In this case, the defendant was formally arrested
480
00:22:31.470 --> 00:22:33.150
after he was interviewed and booked.
481
00:22:33.150 --> 00:22:34.680
I agree with counsel-
482
00:22:34.680 --> 00:22:36.843
So, after interviewing and booked,
483
00:22:40.440 --> 00:22:41.940
not when the interview starts,
484
00:22:41.940 --> 00:22:46.830
but when he's actually taken away and at the very end.
485
00:22:46.830 --> 00:22:47.663
Is that what you're saying?
Correct.
486
00:22:47.663 --> 00:22:48.720
That's the formal arrest.
487
00:22:48.720 --> 00:22:52.230
But if this court were to interpret Rosario
488
00:22:52.230 --> 00:22:55.470
to trigger the time of an arrest and constructive arrest,
489
00:22:55.470 --> 00:22:58.410
the time could happen earlier when the defendant admitted
490
00:22:58.410 --> 00:23:00.360
that he shot the victim.
491
00:23:00.360 --> 00:23:02.130
And then, I think that's one question
492
00:23:02.130 --> 00:23:03.630
this court might want to resolve,
493
00:23:03.630 --> 00:23:05.940
is when exactly is Rosario triggered?
494
00:23:05.940 --> 00:23:09.090
Yeah, what have we said in our Rosario jurisprudence?
495
00:23:09.090 --> 00:23:11.790
So, Rosario jurisprudence in a way is fairly vague.
496
00:23:11.790 --> 00:23:14.940
In Martinez, this court cited cases talk about
497
00:23:14.940 --> 00:23:15.780
the three-prong test.
498
00:23:15.780 --> 00:23:17.820
But in Martinez, this court also hinted,
499
00:23:17.820 --> 00:23:19.770
or using the term formal arrest.
500
00:23:19.770 --> 00:23:21.690
And the same thing with Ventura case.
501
00:23:21.690 --> 00:23:25.020
So, this court has used both sides one way or the other.
502
00:23:25.020 --> 00:23:26.640
This court has also in Arborshaw
503
00:23:26.640 --> 00:23:29.400
using the custody arrest standard before.
504
00:23:29.400 --> 00:23:32.400
So, at this point we have really three different things.
505
00:23:32.400 --> 00:23:35.070
We have Arborshaw using the Miranda custody standard.
506
00:23:35.070 --> 00:23:39.630
We have generally the constructive arrest, Martinez cited.
507
00:23:39.630 --> 00:23:42.570
And we have Martinez itself using the term formal arrest.
508
00:23:42.570 --> 00:23:45.360
Bottom line is this court should adopt Rosario
509
00:23:45.360 --> 00:23:48.930
to consider a trigger either at the time of arrest,
510
00:23:48.930 --> 00:23:50.880
constructive arrest, three-prong test,
511
00:23:50.880 --> 00:23:53.370
or the formal arrest when the defendant is arrested
512
00:23:53.370 --> 00:23:56.760
under the formal announcement under the police arrest.
513
00:23:56.760 --> 00:23:58.890
So, either way-
So, you're saying,
514
00:23:58.890 --> 00:24:01.320
just to clarify, you're saying right now,
515
00:24:01.320 --> 00:24:03.450
if you read our three decisions,
516
00:24:03.450 --> 00:24:06.630
we're not consistent about whether formal arrest
517
00:24:06.630 --> 00:24:09.480
is the statement, "you're under arrest,"
518
00:24:09.480 --> 00:24:12.930
versus this kind of constructive formal arrest. Is that-
519
00:24:12.930 --> 00:24:15.420
Correct, but I do think in the modern trend,
520
00:24:15.420 --> 00:24:17.730
the court seems to use the term formal arrest
521
00:24:17.730 --> 00:24:19.220
more than just citing the (indistinct)
522
00:24:19.220 --> 00:24:21.750
to the three-prong arrest standard.
523
00:24:21.750 --> 00:24:26.340
And either it's a constructive arrest or a formal arrest,
524
00:24:26.340 --> 00:24:29.430
it does not bar the admission
525
00:24:29.430 --> 00:24:31.440
of the defendant's testimony here.
526
00:24:31.440 --> 00:24:35.310
Because even if the defendant was transformed into arrest
527
00:24:35.310 --> 00:24:36.450
at some point during the interview,
528
00:24:36.450 --> 00:24:38.760
the interview only lasts about three and a half hours,
529
00:24:38.760 --> 00:24:41.820
when the defendant was taken into the,
530
00:24:41.820 --> 00:24:44.820
asked and voluntary went to the police station,
531
00:24:44.820 --> 00:24:46.810
he was not arrested even though he was on the-
532
00:24:46.810 --> 00:24:49.620
Yeah, that's a hard argument for you to make.
533
00:24:49.620 --> 00:24:53.730
You know, I'm in bed at 9:30, and I'm being folksy here,
534
00:24:53.730 --> 00:24:58.730
at 9:30 and seven police officers come in guns a-blazing
535
00:24:59.190 --> 00:25:01.410
and say, "Hey, do you wanna come with us for questioning?"
536
00:25:01.410 --> 00:25:04.800
You're suggesting that he voluntarily went?
537
00:25:04.800 --> 00:25:07.320
I agree with the motion judge that he was-
538
00:25:07.320 --> 00:25:08.610
In custody.
Correct.
539
00:25:08.610 --> 00:25:10.200
Right.
But the problem is
540
00:25:10.200 --> 00:25:12.420
if we use the constructive arrest test,
541
00:25:12.420 --> 00:25:14.700
the second and third prong, or at least the second prong
542
00:25:14.700 --> 00:25:18.360
would not be met, which is the the officer has to
543
00:25:18.360 --> 00:25:21.030
have the intent.
But custody
544
00:25:21.030 --> 00:25:22.680
is different from formal arrest.
545
00:25:22.680 --> 00:25:24.360
That case law is clear, right?
546
00:25:24.360 --> 00:25:26.940
Correct.
So it's not,
547
00:25:26.940 --> 00:25:29.430
the voluntariness issue is a whole separate matter.
548
00:25:29.430 --> 00:25:31.830
Whether he could not come to the station or not
549
00:25:31.830 --> 00:25:34.470
is different from whether he is under arrest.
550
00:25:34.470 --> 00:25:36.327
Correct, so, if this court were to adopt
551
00:25:36.327 --> 00:25:38.910
the three-prong test to trigger Miranda,
552
00:25:38.910 --> 00:25:40.560
which is the three-prong arrest test,
553
00:25:40.560 --> 00:25:42.390
the key issue here is the second prong,
554
00:25:42.390 --> 00:25:45.120
whether the officer took the defendant in custody
555
00:25:45.120 --> 00:25:46.560
for the purpose of effecting the arrest.
556
00:25:46.560 --> 00:25:49.440
And I'll argue that based on the record we have so far,
557
00:25:49.440 --> 00:25:50.273
it is not.
558
00:25:50.273 --> 00:25:52.320
And this court in Willis in 1993
559
00:25:52.320 --> 00:25:54.480
found that the defendant was not under arrest
560
00:25:54.480 --> 00:25:57.780
when the police used force to stop the defendant.
561
00:25:57.780 --> 00:25:59.790
The police outnumbered the defendant
562
00:25:59.790 --> 00:26:02.940
and then drew guns at the defendant for their own safety.
563
00:26:02.940 --> 00:26:04.800
This case is more similar to Willis,
564
00:26:04.800 --> 00:26:07.410
where the police went into the house,
565
00:26:07.410 --> 00:26:09.840
draw their guns for safety and outnumbered the defendant,
566
00:26:09.840 --> 00:26:13.080
but asked him to voluntarily go to the police station.
567
00:26:13.080 --> 00:26:13.913
The defendant agreed.
568
00:26:13.913 --> 00:26:17.280
So, whichever standard you adopt in this case,
569
00:26:17.280 --> 00:26:20.130
either a three-prong test or a formal arrest,
570
00:26:20.130 --> 00:26:22.800
Rosario would not apply in this case.
571
00:26:22.800 --> 00:26:25.170
Can you address the voluntary manslaughter
572
00:26:25.170 --> 00:26:26.970
in the light most favorable to the defendant,
573
00:26:26.970 --> 00:26:29.490
i.e. his own testimony?
574
00:26:29.490 --> 00:26:31.830
Absolutely, there are really two questions
575
00:26:31.830 --> 00:26:33.090
from the Commonwealth's perspective.
576
00:26:33.090 --> 00:26:35.280
The first question is, what evidence to use?
577
00:26:35.280 --> 00:26:37.297
Understand this court has say,
578
00:26:37.297 --> 00:26:38.910
"in the light most favorable to the defendant,"
579
00:26:38.910 --> 00:26:40.828
but in Miranda this court also said-
580
00:26:40.828 --> 00:26:42.330
We've said that about a thousand times, didn't we?
581
00:26:42.330 --> 00:26:44.280
Yes, and I think that's the tricky part,
582
00:26:44.280 --> 00:26:46.950
and it's confusing for all litigants, especially prosecutors
583
00:26:46.950 --> 00:26:49.320
when we're trying to advise police officers
584
00:26:49.320 --> 00:26:52.260
or trial prosecutors, what instruction to give.
585
00:26:52.260 --> 00:26:53.640
This court in Miranda has say,
586
00:26:53.640 --> 00:26:54.990
if the defendant testifies,
587
00:26:54.990 --> 00:26:56.820
we have to presume that to be true.
588
00:26:56.820 --> 00:26:58.980
And the defendant testified in this case.
589
00:26:58.980 --> 00:27:00.510
That's why the Commonwealth's position is
590
00:27:00.510 --> 00:27:02.910
when the defendant exercise his right to testify
591
00:27:02.910 --> 00:27:05.850
and right to present a defense under the Constitution
592
00:27:05.850 --> 00:27:08.580
this court should take that testimony as true
593
00:27:08.580 --> 00:27:12.000
and use that to review the instruction purpose.
594
00:27:12.000 --> 00:27:14.550
Because if this court were to avoid that-
595
00:27:14.550 --> 00:27:18.600
I think we agree with you. So, now using that standard,
596
00:27:18.600 --> 00:27:23.490
apply Mr. Escobar's statements
597
00:27:23.490 --> 00:27:25.190
Yes.
that he made to the jury
598
00:27:26.070 --> 00:27:27.390
as to whether or not he deserved
599
00:27:27.390 --> 00:27:29.340
the voluntary manslaughter instruction.
600
00:27:30.270 --> 00:27:33.060
So, if we take the defendant's testimony as true
601
00:27:33.060 --> 00:27:36.930
and he at trial denounced all his statements to the police,
602
00:27:36.930 --> 00:27:38.970
that means he went home to sleep.
603
00:27:38.970 --> 00:27:41.520
He did not shoot the victim in this case.
604
00:27:41.520 --> 00:27:43.350
That means the defendant is not entitled
605
00:27:43.350 --> 00:27:45.630
to the voluntary manslaughter instruction.
606
00:27:45.630 --> 00:27:48.930
I thought he testified that he went crazy and shot him?
607
00:27:48.930 --> 00:27:51.780
No, that was the statement to the police.
608
00:27:51.780 --> 00:27:54.780
He testified at trial that after the fight
609
00:27:54.780 --> 00:27:55.800
he went home to sleep.
610
00:27:55.800 --> 00:27:57.420
I might be hopelessly confused.
611
00:27:57.420 --> 00:27:58.920
I'll look at it again.
612
00:27:58.920 --> 00:28:01.020
So, let's go over that.
613
00:28:01.020 --> 00:28:03.003
Make sure we understand that.
614
00:28:03.930 --> 00:28:06.840
I thought he testifies at trial,
615
00:28:06.840 --> 00:28:09.660
he testifies at trial there's a fight. Right?
616
00:28:09.660 --> 00:28:11.370
Yes, there was a fight out side of Johnny's house.
617
00:28:11.370 --> 00:28:13.143
That I consider is the first fight.
618
00:28:14.832 --> 00:28:18.370
So, his trial testimony doesn't describe
619
00:28:19.290 --> 00:28:21.840
a situation where they're back and forth
620
00:28:21.840 --> 00:28:23.193
and punching each other.
621
00:28:25.590 --> 00:28:27.360
So, he describes a fight,
622
00:28:27.360 --> 00:28:29.640
but it's not a fight that ends in bullets.
623
00:28:29.640 --> 00:28:31.140
Is that-
That's correct.
624
00:28:31.140 --> 00:28:34.020
So, in his testimony, he was really claiming innocence.
625
00:28:34.020 --> 00:28:36.330
He said nothing happened, he went home to sleep.
626
00:28:36.330 --> 00:28:37.800
And if we take that as true,
627
00:28:37.800 --> 00:28:39.660
there's no voluntary manslaughter instruction.
628
00:28:39.660 --> 00:28:40.800
I guess the problem is that,
629
00:28:40.800 --> 00:28:44.553
and I was confused before, but hopefully I'm not now,
630
00:28:45.900 --> 00:28:50.550
but we still have into evidence his statement to the police
631
00:28:50.550 --> 00:28:53.490
that "we were fighting, there was no break in the action
632
00:28:53.490 --> 00:28:54.900
and I went crazy."
633
00:28:54.900 --> 00:28:56.910
So, if we have two conflicting testimonies-
634
00:28:56.910 --> 00:28:58.297
Correct.
His trial testimony,
635
00:28:58.297 --> 00:28:59.610
"I didn't do it."
636
00:28:59.610 --> 00:29:01.807
And then the statement to the police,
637
00:29:01.807 --> 00:29:03.990
"I did do it, but we were in a fight and I went crazy.
638
00:29:03.990 --> 00:29:05.580
I don't know what happened."
639
00:29:05.580 --> 00:29:08.250
In a light most favorable to the defendant for purposes
640
00:29:08.250 --> 00:29:12.060
of receiving a voluntary manslaughter instruction,
641
00:29:12.060 --> 00:29:15.210
we take his, "we were fighting, I went crazy" statement.
642
00:29:15.210 --> 00:29:18.210
One response, which is, the Commonwealth's position is
643
00:29:18.210 --> 00:29:19.740
if you take the defendant's testimony,
644
00:29:19.740 --> 00:29:22.950
which he disregard all of his statement to the police,
645
00:29:22.950 --> 00:29:25.170
then that means all, for the instruction purpose,
646
00:29:25.170 --> 00:29:27.990
the statement to the police should be kept out
647
00:29:27.990 --> 00:29:29.610
for reviewing the instruction purpose.
648
00:29:29.610 --> 00:29:31.440
Do it the other way though.
649
00:29:31.440 --> 00:29:33.000
Take his-
No, I think the key point is
650
00:29:33.000 --> 00:29:35.010
the defendant here exercised his constitutional right
651
00:29:35.010 --> 00:29:37.980
and he decided that-
What case says that we view,
652
00:29:37.980 --> 00:29:41.640
you know, if the defendant decides to take the stand
653
00:29:41.640 --> 00:29:46.323
and deny, as he did here, any involvement in the shooting,
654
00:29:47.670 --> 00:29:49.440
what case law are you relying on that says
655
00:29:49.440 --> 00:29:52.740
that that's what he sticks to in terms of measuring
656
00:29:52.740 --> 00:29:55.170
the ability to get the instruction?
657
00:29:55.170 --> 00:29:56.130
I could not find a case
658
00:29:56.130 --> 00:29:57.300
that this court has done it before.
659
00:29:57.300 --> 00:29:58.890
I also could not find a case-
But there are
660
00:29:58.890 --> 00:30:01.710
cases upon cases that say we view the evidence
661
00:30:01.710 --> 00:30:06.710
in the light most favorable to the defendant
662
00:30:07.350 --> 00:30:08.610
for the instruction.
663
00:30:08.610 --> 00:30:09.990
And in this case that would've been
664
00:30:09.990 --> 00:30:11.430
his police station statement.
665
00:30:11.430 --> 00:30:14.040
Correct, but in those cases, it was not a situation
666
00:30:14.040 --> 00:30:16.080
where the defendant's statement to the police
667
00:30:16.080 --> 00:30:18.420
say something happened and then testified at trial
668
00:30:18.420 --> 00:30:19.260
saying nothing happened.
669
00:30:19.260 --> 00:30:20.850
Yeah, but we.
Usually it's the opposite.
670
00:30:20.850 --> 00:30:23.190
But the legal standard is viewing it
671
00:30:23.190 --> 00:30:25.050
in the light most favorable to the defendant.
672
00:30:25.050 --> 00:30:27.210
And there's nothing, in our case law at least,
673
00:30:27.210 --> 00:30:31.710
to suggest but if you testify.
Correct.
674
00:30:31.710 --> 00:30:33.480
So, this is a new rule you're advocating for?
675
00:30:33.480 --> 00:30:34.980
Yes, and it will be a limited rule-
676
00:30:34.980 --> 00:30:37.650
That may be punitive to the defendant
677
00:30:37.650 --> 00:30:39.030
in terms of getting the instruction
678
00:30:39.030 --> 00:30:41.190
if he exercises his constitutional right.
679
00:30:41.190 --> 00:30:43.410
No, I think in a lot of cases it's like,
680
00:30:43.410 --> 00:30:46.230
the Walden case my brother's citing in reply brief,
681
00:30:46.230 --> 00:30:49.233
the defendant did testify at trial, say it was alibi.
682
00:30:50.190 --> 00:30:53.970
But that was going against a Commonwealth separate witness,
683
00:30:53.970 --> 00:30:55.417
not a defendant himself.
684
00:30:55.417 --> 00:30:57.630
I've had cases as a trial judge
685
00:30:57.630 --> 00:30:59.640
where a defendant gives a statement to the police
686
00:30:59.640 --> 00:31:01.950
where there's an issue of self-defense.
687
00:31:01.950 --> 00:31:04.505
He gets on the stand saying "I wasn't there.
688
00:31:04.505 --> 00:31:06.540
I was in Toledo."
689
00:31:06.540 --> 00:31:08.677
And then you say to the defendant,
690
00:31:08.677 --> 00:31:10.350
"I'm gonna instruct on self-defense
691
00:31:10.350 --> 00:31:11.850
because it's raised by the evidence."
692
00:31:11.850 --> 00:31:15.604
And then you ask the defendant, "Do you want it?"
693
00:31:15.604 --> 00:31:17.670
And the defendant says, "No, don't do it, judge,
694
00:31:17.670 --> 00:31:22.020
because you're gonna ruin my, I didn't do it defense."
695
00:31:22.020 --> 00:31:24.300
So, I think,
But properly,
696
00:31:24.300 --> 00:31:25.800
if a defendant said, "Yeah,"
697
00:31:25.800 --> 00:31:28.290
even though he testifies to an alibi,
698
00:31:28.290 --> 00:31:30.420
you still give a self-defense instruction.
699
00:31:30.420 --> 00:31:31.380
You would still give him
700
00:31:31.380 --> 00:31:33.300
a voluntary manslaughter instruction
701
00:31:33.300 --> 00:31:35.010
because it was raised by the evidence
702
00:31:35.010 --> 00:31:38.280
and you consider it a light most favorable to the defendant.
703
00:31:38.280 --> 00:31:40.710
And you want us to change that law?
704
00:31:40.710 --> 00:31:42.960
No, I'm asking this court to clarify,
705
00:31:42.960 --> 00:31:45.480
especially this language is grounded in Miranda,
706
00:31:45.480 --> 00:31:48.213
this quote reiterated in 2020
707
00:31:48.213 --> 00:31:50.868
that the defendant's testimony must be taken as true.
708
00:31:50.868 --> 00:31:54.750
But when he requests that instruction,
709
00:31:54.750 --> 00:31:59.610
he's you know, having alternative defenses. Right?
710
00:31:59.610 --> 00:32:01.350
Which is his right.
Yeah.
711
00:32:01.350 --> 00:32:02.730
Correct, but just read
712
00:32:02.730 --> 00:32:04.170
two brief response to this.
713
00:32:04.170 --> 00:32:06.600
First thing is, if this court were to adopt
714
00:32:06.600 --> 00:32:09.660
the defendant's statement to the police
715
00:32:09.660 --> 00:32:11.457
for instruction purpose, then this court has to find
716
00:32:11.457 --> 00:32:13.830
the defendant actually perjured himself on the stand
717
00:32:13.830 --> 00:32:15.390
because it's inconsistent.
718
00:32:15.390 --> 00:32:16.867
It's the light most favorable, the jury can say,
719
00:32:16.867 --> 00:32:20.670
"I believe what he said to the police," or "I believe him."
720
00:32:20.670 --> 00:32:22.110
It's not-
We're not making
721
00:32:22.110 --> 00:32:23.730
any findings about credibility.
722
00:32:23.730 --> 00:32:25.740
Right, but I think that's-
We're just suggesting
723
00:32:25.740 --> 00:32:28.050
that the case law is in light
724
00:32:28.050 --> 00:32:29.400
most favorable to the defendant.
725
00:32:29.400 --> 00:32:31.920
And in that case, it turns out his police station statement
726
00:32:31.920 --> 00:32:32.753
is the most favorable.
727
00:32:32.753 --> 00:32:33.840
Can I ask you a question?
Yes.
728
00:32:33.840 --> 00:32:37.200
If it was a mistake not to give
729
00:32:37.200 --> 00:32:40.113
the voluntary manslaughter instruction, then what?
730
00:32:42.630 --> 00:32:47.040
If this is a mistake, it is a tough case.
731
00:32:47.040 --> 00:32:48.657
Commonwealth would acknowledge that.
732
00:32:48.657 --> 00:32:50.610
So, we have to overturn it?
733
00:32:50.610 --> 00:32:52.440
Can I ask, before you go there,
734
00:32:52.440 --> 00:32:54.510
can I ask one back-up question?
735
00:32:54.510 --> 00:32:57.000
The defendant's statement to the police
736
00:32:57.000 --> 00:33:00.044
also is inconsistent with itself, right?
737
00:33:00.044 --> 00:33:01.794
Correct.
At one point he says,
738
00:33:03.727 --> 00:33:06.780
"I followed him," or "we broke off."
739
00:33:06.780 --> 00:33:11.780
So, you may have a better argument that his own testimony
740
00:33:11.940 --> 00:33:14.433
in the light most favorable to him,
741
00:33:15.540 --> 00:33:18.810
still includes a break in the action.
742
00:33:18.810 --> 00:33:21.180
Why don't you try to develop that point for a second
743
00:33:21.180 --> 00:33:22.980
if that's a fair reading of what he did.
744
00:33:22.980 --> 00:33:24.589
Of course, so, that really goes to-
745
00:33:24.589 --> 00:33:26.370
Are there any cases like that
746
00:33:26.370 --> 00:33:30.630
that you've gotta take the statement as a whole?
747
00:33:30.630 --> 00:33:33.270
Correct, and this court never ignore evidence
748
00:33:33.270 --> 00:33:35.970
in terms of prejudice instruction purpose,
749
00:33:35.970 --> 00:33:37.650
simply because it does not help the defendant.
750
00:33:37.650 --> 00:33:39.780
Because the question is whether the evidence
751
00:33:39.780 --> 00:33:42.090
raised reasonable doubt the defendant acted reasonable.
752
00:33:42.090 --> 00:33:44.550
Bear with me again, 'cause it's more complicated.
753
00:33:44.550 --> 00:33:46.950
The testimony is in the light most favorable to him,
754
00:33:46.950 --> 00:33:49.140
but it's his testimony
Correct.
755
00:33:49.140 --> 00:33:52.620
that's creating this potential gap.
756
00:33:52.620 --> 00:33:57.510
Do we have cases talking about that situation?
757
00:33:57.510 --> 00:33:59.880
I could not find a case addressing that specifically.
758
00:33:59.880 --> 00:34:02.880
So, we have conflicting testimony within his own statement
759
00:34:02.880 --> 00:34:05.370
and also conflicted by his testimony.
760
00:34:05.370 --> 00:34:06.351
Correct, so, there are three-
761
00:34:06.351 --> 00:34:07.184
We have to figure out what the light most favorable
762
00:34:07.184 --> 00:34:10.290
to the defendant is with all those moving parts.
763
00:34:10.290 --> 00:34:11.217
Yes. And there's really three-
764
00:34:11.217 --> 00:34:15.270
But wouldn't you tell the trial attorneys
765
00:34:15.270 --> 00:34:16.680
when they ask you,
766
00:34:16.680 --> 00:34:19.440
just look to see what's best for the defendant
767
00:34:19.440 --> 00:34:21.210
and acquiesce to an instruction?
768
00:34:21.210 --> 00:34:24.240
That certainly would be the most prudent advice.
769
00:34:24.240 --> 00:34:25.590
That might be the takeaway, right?
770
00:34:25.590 --> 00:34:27.780
Yes, Your Honor, I agree with that.
771
00:34:27.780 --> 00:34:32.003
Did the prosecution, did the judge do this on her own
772
00:34:32.003 --> 00:34:33.860
or does the prosecution object
773
00:34:33.860 --> 00:34:35.640
to the voluntary manslaughter instruction?
774
00:34:35.640 --> 00:34:36.540
Not specifically.
775
00:34:36.540 --> 00:34:39.120
So, at the time of the trial when there was discussing
776
00:34:39.120 --> 00:34:40.320
voluntary manslaughter instruction,
777
00:34:40.320 --> 00:34:42.210
it was just read a passing mention from the judge,
778
00:34:42.210 --> 00:34:44.370
Judge Fahey, that she did not see the evidence
779
00:34:44.370 --> 00:34:46.260
presenting heat of passion.
780
00:34:46.260 --> 00:34:49.290
And there's reason why voluntary manslaughter instruction
781
00:34:49.290 --> 00:34:51.103
was not given as reason why there was no specific-
782
00:34:51.103 --> 00:34:53.880
She at one point says, "I think I gotta do this."
783
00:34:53.880 --> 00:34:57.090
Does the Commonwealth then object to her
784
00:34:57.090 --> 00:34:58.410
giving the voluntary manslaughter
785
00:34:58.410 --> 00:35:00.303
or do they just sort of let her make this call by herself?
786
00:35:00.303 --> 00:35:02.640
That was involuntary manslaughter instruction.
787
00:35:02.640 --> 00:35:04.470
She was commenting on she believed she should give it
788
00:35:04.470 --> 00:35:05.667
based on the case law she understood at the time.
789
00:35:05.667 --> 00:35:08.280
But she didn't do this on the voluntary manslaughter
790
00:35:08.280 --> 00:35:09.630
as well?
No, she did not.
791
00:35:09.630 --> 00:35:10.860
What was the Commonwealth's position
792
00:35:10.860 --> 00:35:12.180
on involuntary manslaughter?
793
00:35:12.180 --> 00:35:14.070
On voluntary manslaughter, I'm sorry, misspoke.
794
00:35:14.070 --> 00:35:15.270
The Commonwealth did not take a position
795
00:35:15.270 --> 00:35:17.040
at the time of the hearing.
Okay.
796
00:35:17.040 --> 00:35:21.510
The judge sua sponte decided not to give
797
00:35:21.510 --> 00:35:23.613
the voluntary manslaughter instruction.
798
00:35:23.613 --> 00:35:24.446
Yes, based on the evidence.
799
00:35:24.446 --> 00:35:26.850
Voluntary if the defendant requested it.
800
00:35:26.850 --> 00:35:28.890
He did request it, but she did not engage
801
00:35:28.890 --> 00:35:31.260
further discussion and she made the decision on her own
802
00:35:31.260 --> 00:35:32.760
based on her view of the evidence.
803
00:35:32.760 --> 00:35:34.560
But even if you take all the evidence,
804
00:35:34.560 --> 00:35:37.020
you'll see that the defendant still is not entitled
805
00:35:37.020 --> 00:35:38.400
to voluntary manslaughter instruction.
806
00:35:38.400 --> 00:35:40.500
I understand there's a discussion
807
00:35:40.500 --> 00:35:41.460
whether there's a break or not,
808
00:35:41.460 --> 00:35:44.010
based on which version of the story we are taking.
809
00:35:44.010 --> 00:35:47.310
You used the version that helps him the most, right?
810
00:35:47.310 --> 00:35:50.670
So, two people were involved in a fight.
811
00:35:50.670 --> 00:35:53.460
One is losing the fight, pulls out a gun
812
00:35:53.460 --> 00:35:55.260
and shoots the other.
Correct.
813
00:35:55.260 --> 00:35:57.660
Is that provocation, heat of passion,
814
00:35:57.660 --> 00:35:59.520
and/or sudden combat?
815
00:35:59.520 --> 00:36:00.750
So, this court has repeatedly said,
816
00:36:00.750 --> 00:36:03.950
even if the victim has first drew the (indistinct)
817
00:36:03.950 --> 00:36:05.580
it is not necessarily enough.
818
00:36:05.580 --> 00:36:09.270
And this court has say in Parker
819
00:36:09.270 --> 00:36:13.350
where the defendant choke an elderly, disabled man
820
00:36:13.350 --> 00:36:14.680
that this court's found it's not enough.
821
00:36:14.680 --> 00:36:19.503
Yeah, but those cases are domestic violence cases.
822
00:36:20.850 --> 00:36:21.812
Right, but this court-
823
00:36:21.812 --> 00:36:24.633
I know the Parker case well, I think I prosecuted it.
824
00:36:26.760 --> 00:36:31.320
That's a guy who was just an old man who two thugs beat up.
825
00:36:31.320 --> 00:36:34.320
Right, and in Browning 1982-
So, if you have a victim
826
00:36:34.320 --> 00:36:38.080
who just basically tries to protect themselves
827
00:36:39.630 --> 00:36:42.570
with an assailant, we say, that's not a fight.
828
00:36:42.570 --> 00:36:44.490
Right, but if you look at the physical evidence,
829
00:36:44.490 --> 00:36:46.650
the defendant only had injuries to his knuckle,
830
00:36:46.650 --> 00:36:50.100
but the victim had injuries on his arms, abrasions-
831
00:36:50.100 --> 00:36:52.889
Right, and that's what you argue to the jury.
832
00:36:52.889 --> 00:36:56.310
That's exactly what you would say in closing.
833
00:36:56.310 --> 00:36:58.350
No, but this is-
Not voluntary manslaughter
834
00:36:58.350 --> 00:37:02.910
because, and then you go on.
It goes shows to the extent
835
00:37:02.910 --> 00:37:04.830
what exactly happened to the fight.
836
00:37:04.830 --> 00:37:07.230
The one term the defendant used
837
00:37:07.230 --> 00:37:08.760
in his statement to the police,
838
00:37:08.760 --> 00:37:10.890
he told the police it was a fight.
839
00:37:10.890 --> 00:37:12.870
There was no description of what happened.
840
00:37:12.870 --> 00:37:14.700
And what we know what happened was the defendant had
841
00:37:14.700 --> 00:37:16.530
injuries to his knuckles consistent with him
842
00:37:16.530 --> 00:37:17.610
punching the victim.
843
00:37:17.610 --> 00:37:19.590
The victim had no injuries to his hands.
844
00:37:19.590 --> 00:37:21.600
The victim had injuries on his arms.
845
00:37:21.600 --> 00:37:23.670
That the victim was shot one time in the right eye,
846
00:37:23.670 --> 00:37:25.680
penetrating the eyeball, two shots in the back,
847
00:37:25.680 --> 00:37:28.740
thus suggested that the defendant changed positions
848
00:37:28.740 --> 00:37:30.480
when he was shooting the victim.
849
00:37:30.480 --> 00:37:33.030
The victim also, when he was found,
850
00:37:33.030 --> 00:37:35.760
the victim's hands were covering his own face.
851
00:37:35.760 --> 00:37:40.050
And it also shows that these ferocious attacks
852
00:37:40.050 --> 00:37:43.440
cannot be provoked by one single word, fight.
853
00:37:43.440 --> 00:37:45.150
And this court has said in Parker-
854
00:37:45.150 --> 00:37:48.210
But these guys, just remind me about these two guys.
855
00:37:48.210 --> 00:37:52.670
'Cause they're in a back and forth that goes on for...
856
00:37:53.730 --> 00:37:56.400
They're drinking, they're, tell me,
857
00:37:56.400 --> 00:37:58.920
give the whole background a little bit on the...
858
00:37:58.920 --> 00:38:00.750
They're fighting multiple times.
859
00:38:00.750 --> 00:38:02.600
Or they're arguing and then fighting.
860
00:38:04.318 --> 00:38:05.580
"In the light most favorable."
861
00:38:05.580 --> 00:38:08.730
'Cause you're doing a very good job trying to save this
862
00:38:08.730 --> 00:38:09.960
but you've gotta look at this
863
00:38:09.960 --> 00:38:11.880
in the light most favorable to the defendant.
864
00:38:11.880 --> 00:38:12.713
Understood, Your Honor.
865
00:38:12.713 --> 00:38:17.310
After they left the bar at 1:00 a.m. on January 17th,
866
00:38:17.310 --> 00:38:18.870
they went back to Johnny's house
867
00:38:18.870 --> 00:38:20.460
and they started have verbal argument.
868
00:38:20.460 --> 00:38:22.290
They were asked to go outside.
869
00:38:22.290 --> 00:38:24.060
According to the defendant,
870
00:38:24.060 --> 00:38:25.680
the victim started the fight first.
871
00:38:25.680 --> 00:38:28.002
And then they starting fighting back and forth.
872
00:38:28.002 --> 00:38:30.900
Do we have any indication on the size of these two?
873
00:38:30.900 --> 00:38:34.560
Are they, do we have anything about that?
874
00:38:34.560 --> 00:38:37.380
Are these guys similar?
So, the jury had photos
875
00:38:37.380 --> 00:38:38.580
of the victim.
876
00:38:38.580 --> 00:38:39.810
I can't tell how big they are.
877
00:38:39.810 --> 00:38:42.205
I can look as big as Justice Gaziano in a photo.
878
00:38:42.205 --> 00:38:45.210
Right, so, you can only gauge based on their size
879
00:38:45.210 --> 00:38:47.250
of the photos, because the defendant interview
880
00:38:47.250 --> 00:38:48.270
was also in evidence.
881
00:38:48.270 --> 00:38:51.480
So, the judge could look at based on the photo
882
00:38:51.480 --> 00:38:52.830
and the video what are the size.
883
00:38:52.830 --> 00:38:55.548
They were fairly similar.
We don't know whether one
884
00:38:55.548 --> 00:38:57.713
was 6'3" and the other was 5'6", or anything like that?
885
00:38:57.713 --> 00:38:59.250
No, and based on what I perceived
886
00:38:59.250 --> 00:39:00.993
their sizes are fairly similar.
887
00:39:02.283 --> 00:39:07.050
And the other witnesses' descriptions of the fighting
888
00:39:07.050 --> 00:39:08.280
are what, sorry?
889
00:39:08.280 --> 00:39:10.620
So, they were punching each other
890
00:39:10.620 --> 00:39:13.023
and at some point the victim was on the ground.
891
00:39:15.196 --> 00:39:16.650
And there's also this guy?
892
00:39:16.650 --> 00:39:18.690
Other guy enters the fight, right?
893
00:39:18.690 --> 00:39:20.790
Correct.
What is he doing?
894
00:39:20.790 --> 00:39:22.800
So, Oscar was trying to break them up
895
00:39:22.800 --> 00:39:23.970
and while trying to break them up,
896
00:39:23.970 --> 00:39:25.710
Oscar also hit the victim.
897
00:39:25.710 --> 00:39:28.290
That's why he was immunized at the time of trial.
898
00:39:28.290 --> 00:39:30.000
One last thing I would say about this case
899
00:39:30.000 --> 00:39:31.710
is this case is not like Acevedo.
900
00:39:31.710 --> 00:39:33.480
It's a 2006 case from this court,
901
00:39:33.480 --> 00:39:35.550
where this court found evidence was sufficient
902
00:39:35.550 --> 00:39:36.870
to warrant provocation.
903
00:39:36.870 --> 00:39:40.770
In that case, the defendant was surrounded by the victim
904
00:39:40.770 --> 00:39:43.380
and his friends who repeatedly did punch him in the head.
905
00:39:43.380 --> 00:39:44.790
The defendant was knocked to the ground
906
00:39:44.790 --> 00:39:46.020
and feared for his life.
907
00:39:46.020 --> 00:39:47.730
This is not that situation.
908
00:39:47.730 --> 00:39:49.020
Based on the evidence we have,
909
00:39:49.020 --> 00:39:51.720
and the injuries to the defendant and to the victim,
910
00:39:51.720 --> 00:39:53.130
which mostly to the victim,
911
00:39:53.130 --> 00:39:55.200
the defendant only had injuries to his knuckles,
912
00:39:55.200 --> 00:39:57.090
that shows that the defendant's action
913
00:39:57.090 --> 00:39:59.700
was not objectively reasonable.
914
00:39:59.700 --> 00:40:01.890
The evidence does not raise reasonable doubt
915
00:40:01.890 --> 00:40:04.640
to entitle him to a voluntary manslaughter instruction.
916
00:40:05.940 --> 00:40:07.200
If there are no further questions?
917
00:40:07.200 --> 00:40:09.360
I had one question on the prompt arraignment.
918
00:40:09.360 --> 00:40:10.193
Yes.
919
00:40:10.193 --> 00:40:11.580
When, did the clock start for that?
920
00:40:11.580 --> 00:40:13.330
You're saying at the formal arrest?
921
00:40:14.670 --> 00:40:19.380
I would say either formal arrest or constructive arrest.
922
00:40:19.380 --> 00:40:21.330
I don't think there's a lot of difference.
923
00:40:21.330 --> 00:40:23.760
Obviously, formal arrest is more favorable
924
00:40:23.760 --> 00:40:25.890
to the Commonwealth because it's the latest point.
925
00:40:25.890 --> 00:40:28.410
Also understand-
But wouldn't that give
926
00:40:28.410 --> 00:40:31.140
the Commonwealth a perverse incentive or the-
927
00:40:31.140 --> 00:40:32.170
Exactly, that's why I don't think it-
928
00:40:32.170 --> 00:40:34.410
Let's just say we might reject that one.
929
00:40:34.410 --> 00:40:36.780
Right, then constructive arrest would be the one
930
00:40:36.780 --> 00:40:38.620
because you cannot adopt a custody arrest.
931
00:40:38.620 --> 00:40:39.960
And that's also that three-pronged test.
932
00:40:39.960 --> 00:40:40.793
Correct.
Okay.
933
00:40:40.793 --> 00:40:43.470
Can you make the six hours if you do constructive arrest?
934
00:40:43.470 --> 00:40:44.910
Correct, because even if the defendant
935
00:40:44.910 --> 00:40:46.980
was constructive arrested during the interview
936
00:40:46.980 --> 00:40:51.000
and likely happened when he admitted to the police
937
00:40:51.000 --> 00:40:53.910
what happened, that's when the custody
938
00:40:53.910 --> 00:40:55.080
transformed into arrest.
939
00:40:55.080 --> 00:40:58.380
If that ever happened, then Rosario will not trigger
940
00:40:58.380 --> 00:41:01.230
because the interview only lasted three and a half hours.
941
00:41:02.400 --> 00:41:03.360
If there no further questions,
942
00:41:03.360 --> 00:41:05.160
the Commonwealth rests on its brief.