-: SJC-13321.
Commonwealth versus Rigoberto B. Escobar.
-: Okay, attorney Baler, whenever you're ready.
-: Morning, may it please the court,
Jeffrey Baler for Rigoberto Escobar.
First off here, we contend that Mr. Escobar's motion
to suppress his statement to police
should have been allowed.
We contend that it can't be said here,
that based on the police tactics
and the other factors present here
that Mr. Escobar was not deprived
of an autonomous decision to confess.
And without showing that beyond a reasonable doubt,
then the motion to suppress should have been allowed.
First off, the police used several tactics
that ended up overwhelming Mr. Escobar.
-: Well, can I ask you about that
last little bit of your conclusion 'cause this,
the motion judge decided that that was not true.
That those tactics, while improper,
did not actually overwhelm the defendant here,
he was able to resist them,
continued to deny his involvement beyond a fist fight,
and it wasn't until they truthfully told him,
"Oh, we found the gun," that his demeanor changed
and he issued the statement.
-: Right, well, we contend that it was
building, building, building through this whole
three-hour interrogation,
and that the gun was just one factor.
In fact, after he was told about the gun,
that the police still said,
"As we've been telling you all along,"
it's sort of a mistranslation here.
They said, "It's bigger if you tell us the truth now,"
meaning it's better you tell us the truth.
And then finally, he just adopted what they said.
"You were together, you went down the street,
you pulled out the gun,"
and he just said, "Yes, yes, yes."
So, we contend that, I mean,
it has to be beyond a reasonable doubt.
So, there's all these things building, building, building
and then he is finally given the gun
and he is already prepared to, you know,
to think that this is gonna be his best option,
so that he was overwhelmed.
For example, they repeatedly told him
that this is his only chance to speak.
-: They didn't do the,
"You're not gonna get to tell the jury.
This is basically your only time
to speak to us essentially."
-: Yeah, they never said it's-
-: They're close to that, right?
They're careful.
They don't walk into the, you're not gonna get to
tell a jury another story.
They're couching it in their interactions
with them, aren't they?
-: I don't feel that that's so.
I mean, they just keep repeating saying,
"This is your only chance to speak.
This is your only time you're gonna be able to
tell your story."
They never say to us.
And what's the implication if they're not saying to us,
but meaning this is the only time forever,
meaning court or any time.
And even at one point they say, they do say,
"If you don't talk to us right now,
the judge is not gonna hear your side of the story."
So, I think it's pretty clear that
they're not talking about this is your only time
to talk to us.
Like, in the Novo case that's cited
in both our briefs, I believe, they're saying, they do say,
"This is your only chance to talk to us."
And that's different though than what they're saying here.
They're saying, "This is your only chance to talk."
And then at one point they related that
the judge is not gonna hear.
So, clearly, they're not talking about us,
they're talking about ever.
They're talking about going to the jury,
going to trial, or ever.
Also, they keep saying that they can't help him
unless he talks.
And over and over again, "We wanna help you,
but we can't help you unless you tell us
what happened, now."
And again, this relates to leniency or I mean,
what would be the implication of someone saying,
"We could help you," other than a lesser sentence
or a lesser offense.
-: If we agreed with you
and the confession should be not considered,
would there still be enough evidence of his guilt?
-: I mean, I think this is by far the strongest evidence.
There is other evidence, but not a huge amount.
There's people saw them fighting and leaving the scene
and him being shot.
But he testified at trial that he was there
but he went home, but he left the gun in the house.
So, the implication could have been
that someone else from the house took the gun.
-: But his fingerprint was on the gun, right?
-: His fingerprint was on the gun.
I mean, that's a- -: There was evidence
that he had asked somebody to leave the back door open.
-: Yes, there was.
-: That he returned at 2:00 a.m.,
around the time of the shooting?
-: Yes, so, there was other evidence.
And that person was testifying under a grant of immunity.
And that person, you know, of course, had lived in the house
and had access to the gun.
So, it would've certainly been a lot less believable.
I mean, cases from this court say that
the statement of the defendant
is the most powerful evidence.
So, I think it would make a huge difference
if it was suppressed.
And beyond those saying, "It's your only time to talk,"
and "We wanna help you."
Oh, also they related the "We wanna help you,"
to "You're going to be in jail for a long time.
If you don't talk now, we can't help you."
And third, they misrepresented that they were searching
his apartment at the time,
and that they were gonna find evidence
that was gonna convict him.
-: Is that the microscopic evidence?
-: Yes. Yes. -: Okay.
-: And finally, they repeated, I know that it isn't
necessarily wrong, but they were constantly saying to him,
"We know you're lying.
We have all the evidence already.
We know you're lying.
You have to talk."
So, they were really aggressively on him.
And then finally, you know, so he, first he starts out,
"I wasn't there."
And then he starts out, "All right, I was there."
So, they're like, moving him along and moving him along.
And then they introduced the gun and there he goes.
He thinks this is my best option.
They said it's better if I talk, so, he talks.
So, we can't say that beyond a reasonable doubt
that this was an autonomous confession.
And additionally, there's the circumstances
of this whole night.
They were coercive towards him.
They went to his apartment with guns drawn, seven officers.
The motion judge found that he acceded to police coercion
in going to the station and that then he was at the station
for three hours without the interrogation beginning.
And the motion judge found that if a person
felt they were free to leave,
they wouldn't have stayed there for the three hours.
And then they had this lengthy interrogation.
He's not an English speaker.
There was an interpreter who was an officer
and two other officers in the room.
As you can see the translation of the Miranda warnings,
the person who translated what occurred
at the interrogation wrote, it was awkward Spanish.
Without going through every detail of it,
there was a lotta words that were just wrong.
Like, they called it the defensive rights saw.
So, all of this was this building, building, building,
and then finally, he adopts their statement thinking,
"I can't speak English.
These Miranda warnings were vague
and the police are pressuring me,
telling me it's gonna be best for me if I just admit it."
So he thinks, "Well, what am I gonna do?"
Whether you know, he did it or not.
It's his best option,
-: [Justice Wendlandt] Which part of Miranda was missing?
-: There's just like misstatements throughout.
I can't say that like, let's see.
For example, instead of having, you can say
you have a right to a lawyer.
It says you can have present.
-: But there's right to lawyer
in the sentence before it, right?
-: Yes, and then it just says you can have present.
And then it says, "if you cannot hire a lawyer
and wants one."
And then there's these two words, voir dire
and contester- -: Well, that's just a problem
with ar versus er verbs.
I think a native Spanish speaker would've understood those.
-: Okay, I didn't personally understand.
And for some reason they weren't translated.
-: Well, because there are ar verbs and they were said in er.
But I don't think that would've caused a trip up on the...
-: Okay, so, I mean, I think the point is that
all this is going on and-
-: So, tell me about the prompt arraignment.
I mean, I know that was not preserved,
but it does seem here that there was more than six hours
before the (indistinct)-
-: Yes, there was. -: The defendant confessed.
-: He didn't confess until after the six hours were up,
if you start counting from the 9:30
when they went to his apartment with guns drawn
and took him to the station.
This also falls in with the right
to a telephone call argument too.
He was not told that he had a right to a call
until the time of booking after this whole thing was over.
And even though the telephone rights
were written on the Miranda warnings that were read to him,
they weren't read to him.
And he was told not to read that part.
-: So, do we count differently based upon
not free to leave for Miranda custodial purposes
and formal arrest, when the clock starts?
-: Do we count different for the-
-: When does the clock start?
Does it start when you're not free to leave
for custodial purposes?
Versus you are now formally under arrest
after you confessed. -: Yeah, I mean,
in the Hampton case side of my brief,
the court cites a three-part test.
Actual or constructive seizure or detention of the person.
Two, with intention to affect an arrest.
Three, so understood by the person detained.
So, it's not saying it's booking,
it's when these things come into play.
Otherwise, (indistinct) formal arrest. Right?
-: There is a difference between custodial interrogation
and formal arrest? -: There is.
But that's the standard for a formal arrest.
So, it's not like really you're under arrest,
you're formally arrest,
but when these conditions are satisfied,
then a formal arrest occurs.
I mean, otherwise police could always put off-
-: It was condition two where we have Officer Cashman,
I think, believing that it was not his intent
to arrest the defendant until he had the confession.
And the motion judge crediting that.
-: I don't recall the motion judge crediting that,
but I believe you,
It's not as much, I mean, you have look at,
I objectively looked at the circumstances
of what was happening and was there an affect to arrest.
I mean, the police will always say,
"We weren't gonna arrest him,
so, we didn't need to give him his phone rights
or prompt arraignment."
But you have to look at the circumstances here.
They came to his apartment,
seven officers with their guns drawn.
-: And so, at 9:30? -: At 9:30.
-: Was that when you're saying there was the formal arrest?
-: Yes. Yes. -: Okay.
-: And then they took him-
-: At that point they expressly tell him
he doesn't have to come with them.
-: Right, but if we look at the findings of the motion judge,
the motion judge said that
"He was acting subject to police coercion
and he acquiesced to police authority."
So, they might have said something, but it was like,
we're saying this but you're coming with us.
I mean, all through the interrogation,
they kept saying, "We know what happened, just tell us."
Well, if they knew what happened,
they were gonna arrest him.
They weren't gonna just let him go.
-: Once they had the gun they knew what happened.
Maybe not before the gun.
-: But they said it repeatedly before the gun.
-: Again, trickery, it's not usually enough. Right?
-: But I'm just, I mean, what I'm saying is that
if they knew what happened, I mean,
he was gonna be arrested. -: Before we lose you
could you address, look, tell me in the light most favorable
to you, which is the standard, why you do get
the voluntary manslaughter instruction?
-: Yeah, based on his statement to the police.
-: Right. -: And other witnesses
have testified at trial that this fight occurred,
starting in the house, going outside.
Some of the witnesses said that the decedent
was the first one to throw a punch.
-: Yeah, but if there's a break in the action,
it loses the suddenness on provocation.
Isn't there a break in the action?
-: No, no.
In the light most favorable to the defendant,
there was no break.
And I don't know if, I mean, I don't know if there was
any break, regardless of how you look at the evidence.
From his statement, they talk about this fight occurring,
they're drunk, they're falling down,
they're kicking, they're punching.
Then they both go off together.
And in my client's statement, he says they continue to fight
and then at some point he-
-: They go off together then they reconnect, right?
-: Well, they weren't separated according to his statement.
They just walked together.
-: So, the best case scenario comes from his statement?
-: Right, and that's the standard.
It has to be in the light most favorable
to the defendant. -: Can I ask?
The Commonwealth seems to be weaving together
his statement to the police with the testimony at trial.
-: Yes.
-: And saying that we have to read them together.
-: Right. -: We just look at
your client's testimony essentially.
-: Right, right.
I brought this up in my reply brief.
Even in cases where there was an alibi,
if there was evidence to support the instruction,
it had to be- -: But you have two people
who are in a fist fight and your client says,
"I don't know, I went crazy and I shot him," basically.
-: Right.
Yeah, so, there was no like, the decedent went away
and my guy...
There was something when he was adopting
what the police were saying- -: What'd your client say
about possession of the gun at that point?
-: He said he got the gun because he wanted
to show his friends. -: But he had it on him?
-: He had it on him, yes.
-: Yes. -: So, he had it on him
according to him, before the fight broke out.
Fight breaks out and in the rash decision he shoots.
-: Right, yes. -: Okay.
-: There's also some, the Commonwealth,
again, I had a little trouble understanding
what the Commonwealth's doing.
But the Commonwealth's saying,
his knuckles are only slightly grazed
and we've got three shots, one to the head,
then two, one at close range to the head, and then two.
So, somehow that undermines
the voluntary manslaughter instruction.
I'm not sure I understand that, but I'll ask him that.
But why don't you address their arguments?
'Cause they're trying to...
-: I think they brought up some cases where like,
an elderly person fought back and was killed
and the court said, no, you know, that's not good enough
for a manslaughter instruction.
But it seems like on these facts, this is just,
that's what manslaughter is, is a fight.
In the Peters case that I cited in my brief-
-: Well, I mean, it's hard to argue
that's an unintentional act when you shoot someone
twice in the back of the head and once in the eye.
I get that argument that they're making-
-: For involuntary. -: For involuntary.
Voluntary, I think, is a harder issue for government.
-: It is, but, you know, it was requested
and if he was shooting wildly, you know, there's cases
where someone shot through a window wildly, and-
-: There's a window case with the shades down.
-: All right, so, it should have been left to the jury even-
-: Yeah, but this is two guys within feet of each other.
-: Okay. All right. -: When you shoot somebody
in the back and head and the eye, it doesn't seem
all that accidental to me.
-: Okay, so, at least it could be voluntary.
-: No, I'll give you, that's a better argument for you.
-: Okay, I'm not conceding,
but I'll say it is a better argument.
-: Might wanna concede the other one, but that's okay.
-: But yeah, but on provocation, we'll look to see
exactly what your client said
taking out the police statements.
-: Exactly, yeah.
I just was pointing out when the police are questioning him
and he was adopting what they're saying, at first they said,
"And you followed him down the street," and he said, "Yes."
Which maybe from that you could say there was a separation.
But later on when he starts actually talking
and saying what happens, he says they were walking together.
He doesn't say that he followed him.
-: And on motion for new trial, the judge just says,
rejects that claim of provocation. Right?
Said there was no evidence of it?
-: Yeah. -: I don't know. I don't know.
-: Right, you mean for the manslaughter instruction?
-: Right. -: Right, yes.
Yes, that's true.
-: And what does the motion judge say on that?
Why does the motion judge come to that conclusion?
-: You know, he just really says,
I don't see the evidence for it.
I don't think he ever really, sorry, she.
I don't think she ever really explains why-
-: Is this the same as the, is she the trial judge?
Is this Fahey or is this someone?
-: Fahey was the trial judge
and Tuttman was the motion judge.
Yeah, so, it's unclear why it wasn't given.
In fact, the trial judge was much more interested
in giving an involuntary manslaughter instruction
based on the actions and the intoxication of my client.
And sort of just dismissed the voluntary murder instruction
as being, you know, as being not supported.
-: I'm confused though, is the motion judge just dealing
with the involuntary or is she dealing
with the voluntary as well?
'Cause I'm just looking at page 18 in her decision,
"is involuntary."
Excuse me, I'm reading the wrong part, sorry.
But she deals with both?
I just can't find the second part.
-: Yeah, well there was, there was written requests for both.
And at some point she says there's no voluntary.
And then she's saying, "but I think it would be
reversible error," in fact, she says,
"If I don't give the involuntary."
-: Can I ask you just to separate the two out.
You argue both parts of provocation.
Is it both heat of passion and sudden combat?
I don't- -: I think that-
-: There is a difference.
The Howard case describes there's a difference.
What's your best case? -: I think they're
very entwined, and I think that Peter's case
that I cite in the brief, that's a case where
there was a fight and in fact Peters was the aggressor.
Then there was a break, he went to his car, he got a gun
and he came back and shot the guy.
I mean, I think this case is even better
for an involuntary manslaughter than the Peter's case.
-: You mean voluntary? -: Voluntary.
-: Right. -: Yes.
-: Right, on which grounds,
the passion or sudden combat?
-: I think they're very intertwined.
I think sudden combat is sort of
part of the heat of passion, but definitely sudden combat.
So, it seems like to me like, the definition of it.
-: Okay. -: Okay.
-: I'm sorry, I just wanna clarify.
Tuttman issues a decision on voluntary, involuntary
or does she just deal with the motion to suppress?
Jeffrey: She just dealt with the motion to suppress.
-: So, we don't have anybody but Fahey, the trial judge,
analyzing the voluntary manslaughter instructions?
-: Right. -: Okay.
That's what I thought.
-: Okay, I see my time's up.
If there's nothing further?
-: Thank you. -: Thank you.
-: Okay, attorney Lee,
-: Madam Chief Justice and may it please the court.
ADA Chia Chi Lee for Middlesex
on behalf of the Commonwealth.
The defendant's conviction of murder in the first degree
should be affirmed.
In the early morning hours on January 17th, 2015,
the defendant shot and killed the victim, Magno Sosa.
-: When was the defendant formally arrested
for purposes of the prompt arraignment
and or the telephone rights?
-: Formally arrested?
The defendant was formally arrested
after the interview when he was booked.
There's a difference between someone in custody
for Miranda purpose, when someone is under
constructive arrest, which is the three-prong test,
and when someone is formally arrested,
when the police announce arrest.
In this case, the defendant was formally arrested
after he was interviewed and booked.
I agree with counsel-
-: So, after interviewing and booked,
not when the interview starts,
but when he's actually taken away and at the very end.
Is that what you're saying? -: Correct.
That's the formal arrest.
But if this court were to interpret Rosario
to trigger the time of an arrest and constructive arrest,
the time could happen earlier when the defendant admitted
that he shot the victim.
And then, I think that's one question
this court might want to resolve,
is when exactly is Rosario triggered?
-: Yeah, what have we said in our Rosario jurisprudence?
-: So, Rosario jurisprudence in a way is fairly vague.
In Martinez, this court cited cases talk about
the three-prong test.
But in Martinez, this court also hinted,
or using the term formal arrest.
And the same thing with Ventura case.
So, this court has used both sides one way or the other.
This court has also in Arborshaw
using the custody arrest standard before.
So, at this point we have really three different things.
We have Arborshaw using the Miranda custody standard.
We have generally the constructive arrest, Martinez cited.
And we have Martinez itself using the term formal arrest.
Bottom line is this court should adopt Rosario
to consider a trigger either at the time of arrest,
constructive arrest, three-prong test,
or the formal arrest when the defendant is arrested
under the formal announcement under the police arrest.
So, either way- -: So, you're saying,
just to clarify, you're saying right now,
if you read our three decisions,
we're not consistent about whether formal arrest
is the statement, "you're under arrest,"
versus this kind of constructive formal arrest. Is that-
-: Correct, but I do think in the modern trend,
the court seems to use the term formal arrest
more than just citing the (indistinct)
to the three-prong arrest standard.
And either it's a constructive arrest or a formal arrest,
it does not bar the admission
of the defendant's testimony here.
Because even if the defendant was transformed into arrest
at some point during the interview,
the interview only lasts about three and a half hours,
when the defendant was taken into the,
asked and voluntary went to the police station,
he was not arrested even though he was on the-
-: Yeah, that's a hard argument for you to make.
You know, I'm in bed at 9:30, and I'm being folksy here,
at 9:30 and seven police officers come in guns a-blazing
and say, "Hey, do you wanna come with us for questioning?"
You're suggesting that he voluntarily went?
-: I agree with the motion judge that he was-
-: In custody. -: Correct.
-: Right. -: But the problem is
if we use the constructive arrest test,
the second and third prong, or at least the second prong
would not be met, which is the the officer has to
have the intent. -: But custody
is different from formal arrest.
That case law is clear, right?
-: Correct. -: So it's not,
the voluntariness issue is a whole separate matter.
Whether he could not come to the station or not
is different from whether he is under arrest.
-: Correct, so, if this court were to adopt
the three-prong test to trigger Miranda,
which is the three-prong arrest test,
the key issue here is the second prong,
whether the officer took the defendant in custody
for the purpose of effecting the arrest.
And I'll argue that based on the record we have so far,
it is not.
And this court in Willis in 1993
found that the defendant was not under arrest
when the police used force to stop the defendant.
The police outnumbered the defendant
and then drew guns at the defendant for their own safety.
This case is more similar to Willis,
where the police went into the house,
draw their guns for safety and outnumbered the defendant,
but asked him to voluntarily go to the police station.
The defendant agreed.
So, whichever standard you adopt in this case,
either a three-prong test or a formal arrest,
Rosario would not apply in this case.
-: Can you address the voluntary manslaughter
in the light most favorable to the defendant,
i.e. his own testimony?
-: Absolutely, there are really two questions
from the Commonwealth's perspective.
The first question is, what evidence to use?
Understand this court has say,
"in the light most favorable to the defendant,"
but in Miranda this court also said-
-: We've said that about a thousand times, didn't we?
-: Yes, and I think that's the tricky part,
and it's confusing for all litigants, especially prosecutors
when we're trying to advise police officers
or trial prosecutors, what instruction to give.
This court in Miranda has say,
if the defendant testifies,
we have to presume that to be true.
And the defendant testified in this case.
That's why the Commonwealth's position is
when the defendant exercise his right to testify
and right to present a defense under the Constitution
this court should take that testimony as true
and use that to review the instruction purpose.
Because if this court were to avoid that-
-: I think we agree with you. So, now using that standard,
apply Mr. Escobar's statements
-: Yes. -: that he made to the jury
as to whether or not he deserved
the voluntary manslaughter instruction.
-: So, if we take the defendant's testimony as true
and he at trial denounced all his statements to the police,
that means he went home to sleep.
He did not shoot the victim in this case.
That means the defendant is not entitled
to the voluntary manslaughter instruction.
-: I thought he testified that he went crazy and shot him?
-: No, that was the statement to the police.
He testified at trial that after the fight
he went home to sleep.
-: I might be hopelessly confused.
I'll look at it again.
-: So, let's go over that.
Make sure we understand that.
I thought he testifies at trial,
he testifies at trial there's a fight. Right?
-: Yes, there was a fight out side of Johnny's house.
That I consider is the first fight.
-: So, his trial testimony doesn't describe
a situation where they're back and forth
and punching each other.
So, he describes a fight,
but it's not a fight that ends in bullets.
Is that- -: That's correct.
So, in his testimony, he was really claiming innocence.
He said nothing happened, he went home to sleep.
And if we take that as true,
there's no voluntary manslaughter instruction.
-: I guess the problem is that,
and I was confused before, but hopefully I'm not now,
but we still have into evidence his statement to the police
that "we were fighting, there was no break in the action
and I went crazy."
So, if we have two conflicting testimonies-
-: Correct. -: His trial testimony,
"I didn't do it."
And then the statement to the police,
"I did do it, but we were in a fight and I went crazy.
I don't know what happened."
In a light most favorable to the defendant for purposes
of receiving a voluntary manslaughter instruction,
we take his, "we were fighting, I went crazy" statement.
-: One response, which is, the Commonwealth's position is
if you take the defendant's testimony,
which he disregard all of his statement to the police,
then that means all, for the instruction purpose,
the statement to the police should be kept out
for reviewing the instruction purpose.
-: Do it the other way though.
Take his- -: No, I think the key point is
the defendant here exercised his constitutional right
and he decided that- -: What case says that we view,
you know, if the defendant decides to take the stand
and deny, as he did here, any involvement in the shooting,
what case law are you relying on that says
that that's what he sticks to in terms of measuring
the ability to get the instruction?
-: I could not find a case
that this court has done it before.
I also could not find a case- -: But there are
cases upon cases that say we view the evidence
in the light most favorable to the defendant
for the instruction.
And in this case that would've been
his police station statement.
-: Correct, but in those cases, it was not a situation
where the defendant's statement to the police
say something happened and then testified at trial
saying nothing happened.
-: Yeah, but we. -: Usually it's the opposite.
-: But the legal standard is viewing it
in the light most favorable to the defendant.
And there's nothing, in our case law at least,
to suggest but if you testify. -: Correct.
-: So, this is a new rule you're advocating for?
-: Yes, and it will be a limited rule-
-: That may be punitive to the defendant
in terms of getting the instruction
if he exercises his constitutional right.
-: No, I think in a lot of cases it's like,
the Walden case my brother's citing in reply brief,
the defendant did testify at trial, say it was alibi.
But that was going against a Commonwealth separate witness,
not a defendant himself.
-: I've had cases as a trial judge
where a defendant gives a statement to the police
where there's an issue of self-defense.
He gets on the stand saying "I wasn't there.
I was in Toledo."
And then you say to the defendant,
"I'm gonna instruct on self-defense
because it's raised by the evidence."
And then you ask the defendant, "Do you want it?"
And the defendant says, "No, don't do it, judge,
because you're gonna ruin my, I didn't do it defense."
-: So, I think, -: But properly,
if a defendant said, "Yeah,"
even though he testifies to an alibi,
you still give a self-defense instruction.
You would still give him
a voluntary manslaughter instruction
because it was raised by the evidence
and you consider it a light most favorable to the defendant.
And you want us to change that law?
-: No, I'm asking this court to clarify,
especially this language is grounded in Miranda,
this quote reiterated in 2020
that the defendant's testimony must be taken as true.
-: But when he requests that instruction,
he's you know, having alternative defenses. Right?
-: Which is his right. -: Yeah.
-: Correct, but just read
two brief response to this.
First thing is, if this court were to adopt
the defendant's statement to the police
for instruction purpose, then this court has to find
the defendant actually perjured himself on the stand
because it's inconsistent.
-: It's the light most favorable, the jury can say,
"I believe what he said to the police," or "I believe him."
It's not- -: We're not making
any findings about credibility.
-: Right, but I think that's- -: We're just suggesting
that the case law is in light
most favorable to the defendant.
And in that case, it turns out his police station statement
is the most favorable.
Can I ask you a question? -: Yes.
-: If it was a mistake not to give
the voluntary manslaughter instruction, then what?
-: If this is a mistake, it is a tough case.
Commonwealth would acknowledge that.
-: So, we have to overturn it?
-: Can I ask, before you go there,
can I ask one back-up question?
The defendant's statement to the police
also is inconsistent with itself, right?
-: Correct. -: At one point he says,
"I followed him," or "we broke off."
So, you may have a better argument that his own testimony
in the light most favorable to him,
still includes a break in the action.
Why don't you try to develop that point for a second
if that's a fair reading of what he did.
-: Of course, so, that really goes to-
-: Are there any cases like that
that you've gotta take the statement as a whole?
-: Correct, and this court never ignore evidence
in terms of prejudice instruction purpose,
simply because it does not help the defendant.
Because the question is whether the evidence
raised reasonable doubt the defendant acted reasonable.
-: Bear with me again, 'cause it's more complicated.
The testimony is in the light most favorable to him,
but it's his testimony -: Correct.
-: that's creating this potential gap.
Do we have cases talking about that situation?
-: I could not find a case addressing that specifically.
-: So, we have conflicting testimony within his own statement
and also conflicted by his testimony.
-: Correct, so, there are three-
-: We have to figure out what the light most favorable
to the defendant is with all those moving parts.
-: Yes. And there's really three-
-: But wouldn't you tell the trial attorneys
when they ask you,
just look to see what's best for the defendant
and acquiesce to an instruction?
-: That certainly would be the most prudent advice.
-: That might be the takeaway, right?
-: Yes, Your Honor, I agree with that.
-: Did the prosecution, did the judge do this on her own
or does the prosecution object
to the voluntary manslaughter instruction?
-: Not specifically.
So, at the time of the trial when there was discussing
voluntary manslaughter instruction,
it was just read a passing mention from the judge,
Judge Fahey, that she did not see the evidence
presenting heat of passion.
And there's reason why voluntary manslaughter instruction
was not given as reason why there was no specific-
-: She at one point says, "I think I gotta do this."
Does the Commonwealth then object to her
giving the voluntary manslaughter
or do they just sort of let her make this call by herself?
-: That was involuntary manslaughter instruction.
She was commenting on she believed she should give it
based on the case law she understood at the time.
-: But she didn't do this on the voluntary manslaughter
as well? -: No, she did not.
-: What was the Commonwealth's position
on involuntary manslaughter?
On voluntary manslaughter, I'm sorry, misspoke.
-: The Commonwealth did not take a position
at the time of the hearing. -: Okay.
-: The judge sua sponte decided not to give
the voluntary manslaughter instruction.
-: Yes, based on the evidence.
-: Voluntary if the defendant requested it.
-: He did request it, but she did not engage
further discussion and she made the decision on her own
based on her view of the evidence.
But even if you take all the evidence,
you'll see that the defendant still is not entitled
to voluntary manslaughter instruction.
I understand there's a discussion
whether there's a break or not,
based on which version of the story we are taking.
-: You used the version that helps him the most, right?
So, two people were involved in a fight.
One is losing the fight, pulls out a gun
and shoots the other. -: Correct.
-: Is that provocation, heat of passion,
and/or sudden combat?
-: So, this court has repeatedly said,
even if the victim has first drew the (indistinct)
it is not necessarily enough.
And this court has say in Parker
where the defendant choke an elderly, disabled man
that this court's found it's not enough.
-: Yeah, but those cases are domestic violence cases.
-: Right, but this court-
-: I know the Parker case well, I think I prosecuted it.
That's a guy who was just an old man who two thugs beat up.
-: Right, and in Browning 1982- -: So, if you have a victim
who just basically tries to protect themselves
with an assailant, we say, that's not a fight.
-: Right, but if you look at the physical evidence,
the defendant only had injuries to his knuckle,
but the victim had injuries on his arms, abrasions-
-: Right, and that's what you argue to the jury.
That's exactly what you would say in closing.
-: No, but this is- -: Not voluntary manslaughter
because, and then you go on. -: It goes shows to the extent
what exactly happened to the fight.
The one term the defendant used
in his statement to the police,
he told the police it was a fight.
There was no description of what happened.
And what we know what happened was the defendant had
injuries to his knuckles consistent with him
punching the victim.
The victim had no injuries to his hands.
The victim had injuries on his arms.
That the victim was shot one time in the right eye,
penetrating the eyeball, two shots in the back,
thus suggested that the defendant changed positions
when he was shooting the victim.
The victim also, when he was found,
the victim's hands were covering his own face.
And it also shows that these ferocious attacks
cannot be provoked by one single word, fight.
And this court has said in Parker-
-: But these guys, just remind me about these two guys.
'Cause they're in a back and forth that goes on for...
They're drinking, they're, tell me,
give the whole background a little bit on the...
They're fighting multiple times.
Or they're arguing and then fighting.
"In the light most favorable."
'Cause you're doing a very good job trying to save this
but you've gotta look at this
in the light most favorable to the defendant.
-: Understood, Your Honor.
After they left the bar at 1:00 a.m. on January 17th,
they went back to Johnny's house
and they started have verbal argument.
They were asked to go outside.
According to the defendant,
the victim started the fight first.
And then they starting fighting back and forth.
-: Do we have any indication on the size of these two?
Are they, do we have anything about that?
Are these guys similar? -: So, the jury had photos
of the victim.
-: I can't tell how big they are.
I can look as big as Justice Gaziano in a photo.
-: Right, so, you can only gauge based on their size
of the photos, because the defendant interview
was also in evidence.
So, the judge could look at based on the photo
and the video what are the size.
They were fairly similar. -: We don't know whether one
was 6'3" and the other was 5'6", or anything like that?
-: No, and based on what I perceived
their sizes are fairly similar.
-: And the other witnesses' descriptions of the fighting
are what, sorry?
-: So, they were punching each other
and at some point the victim was on the ground.
-: And there's also this guy?
Other guy enters the fight, right?
-: Correct. -: What is he doing?
-: So, Oscar was trying to break them up
and while trying to break them up,
Oscar also hit the victim.
That's why he was immunized at the time of trial.
One last thing I would say about this case
is this case is not like Acevedo.
It's a 2006 case from this court,
where this court found evidence was sufficient
to warrant provocation.
In that case, the defendant was surrounded by the victim
and his friends who repeatedly did punch him in the head.
The defendant was knocked to the ground
and feared for his life.
This is not that situation.
Based on the evidence we have,
and the injuries to the defendant and to the victim,
which mostly to the victim,
the defendant only had injuries to his knuckles,
that shows that the defendant's action
was not objectively reasonable.
The evidence does not raise reasonable doubt
to entitle him to a voluntary manslaughter instruction.
If there are no further questions?
-: I had one question on the prompt arraignment.
-: Yes.
-: When, did the clock start for that?
You're saying at the formal arrest?
-: I would say either formal arrest or constructive arrest.
I don't think there's a lot of difference.
Obviously, formal arrest is more favorable
to the Commonwealth because it's the latest point.
Also understand- -: But wouldn't that give
the Commonwealth a perverse incentive or the-
-: Exactly, that's why I don't think it-
-: Let's just say we might reject that one.
-: Right, then constructive arrest would be the one
because you cannot adopt a custody arrest.
-: And that's also that three-pronged test.
-: Correct. -: Okay.
-: Can you make the six hours if you do constructive arrest?
-: Correct, because even if the defendant
was constructive arrested during the interview
and likely happened when he admitted to the police
what happened, that's when the custody
transformed into arrest.
If that ever happened, then Rosario will not trigger
because the interview only lasted three and a half hours.
If there no further questions,
the Commonwealth rests on its brief.