-: SJC-13324, Commonwealth versus Louise Gomez.
-: Heard it, Donna?
-: Good, your Honor.
-: Good morning, your Honors.
May it please the court.
My name is Jillise McDonough,
and I represent Mr. Luis Gomez.
Almost the entirety of the evidence presented at trial
was video evidence,
and the sole issue before the jury
was whether the person depicted on the grainy, unclear video
shooting at Mr. Flores was Mr. Gomez.
The video was too unclear for the jury to determine
beyond a reasonable doubt that the shooter was Mr. Gomez,
and the Commonwealth usurped the role of the jury
through both its argument and testimony,
and essentially took that issue away from the jury.
-: Well, that's not all they had.
They also had the statement of Mr. Nieves
where he identified the shooter in the Commonwealth
cobbled together and said, here's the video
and Mr. Nieves's statement that here's the guy.
They have similar clothing to the video surveillance
of who you at trial,
at least conceded was Mr. Gomez inside the club.
So there's more evidence of identity.
You may not like it, but there was more than just the video.
-: So Mr. Nieves does identify
on the actual video of the shooter
who the shooter was in the video.
He doesn't ever identify who that person is.
So he's shown-
-: I'm saying that, but there are inferences,
and there are different facts
that the jury could put together
and say that's who beyond a reasonable doubt shot Mr. Gomez.
-: Well, Mr. Nieves does, is shown an actual photograph
of Mr. Gomez in the club
who the defense concedes as Mr. Gomez,
and he's unable to make an identification
of the person who they believe is Mr. Gomez as the shooter.
Mr. Nieves describes the shooter
as wearing a gray sweatshirt,
which undercuts the Commonwealth's argument
that the person was Mr. Gomez,
who is clearly wearing a blue sweatshirt within the club.
And they do use pieces of video to try and piece together
that this is Mr. Gomez in the club.
But our contention is that
it doesn't get them to that point.
The first clip that they used,
there's essentially three clips that they piece together.
So they have the arrival video,
they have the video inside the club,
and then they have the actual video of the shooting.
Even the initial video of the arrival,
that's never even established that that's Mr. Gomez.
And they use portions of that video
to compare to the shooter to try and argue that
that's Mr. Gomez.
So the white sneakers,
you cannot see the white sneakers inside the club,
or at least the sole of the shoe.
So, and even to get to the point
of piecing together these three separate clips of video,
you have to pile inference upon inference,
and you have to speculate that the initial person
is in fact, Mr. Gomez.
And the Commonwealth kind of recast our argument
as we're saying that
this court doesn't have to draw all reasonable inferences
in support of the Commonwealth.
But the point we're trying to make is there's one clip
inside the video, inside the club by Mr. Creswell
that shows portions of the club.
At least seven or eight people are wearing
the exact same items of clothing
that the Commonwealth asks the jury to compare
to conclude that it's Mr. Gomez.
So it's-
-: All seven or eight with the other gentleman
with the distinctive clothing?
-: They are, they're all standing in a line.
So they're all standing in a line watching the performers.
There's at least six or seven.
And then the performers themselves
also are wearing the same items,
but it's the hat with the emblem,
with the reflective sticker in a sweatshirt.
The distinctive items that are on Mr. Gomez
are the giant owl tattoo, the emblem on the side of the hat,
and the strings.
None of those three items can be seen on the shooter.
So-
-: The shooter is seen next to the gentleman
with the red, white, and blue?
-: So he is seen next to him.
But I think for one, this court has said time and time again
that mere association does not establish
proof beyond a reasonable doubt.
That he's with this other person doesn't establish
that it's him.
There's three people who arrive at the club together,
one of which is the guy in the red and white jacket,
another which also has a sweatshirt on
and a hat with an emblem.
And also the video that shows the shooting, it cuts off.
It shows just the kind of going down the street,
and then the shooting itself.
The whole front of the club, you cannot see.
And then you see people disperse after.
So it's clear there's more than one person there.
And Mr. Nieves himself says it's kind of a chaotic scene.
There's a lot of people outside.
So I think just the-
-: May I ask?
Wasn't there also testimony that Mr. Gomez was left-handed?
-: There was testimony that he was left-handed,
and the shooter used their right hand
when they were firing the weapon.
-: But the gun was also testimony,
at least from Mr. Nieves's statement,
that the shooter racked the glove,
the gun with the left hand.
-: There was, but I think a fair inference,
and would be that the person would use
their dominant hand to shoot, not necessarily rack,
you have to use one hand to do one and one in the other.
But I think typically people shoot with their dominant hand,
don't rack with their dominant hand.
So I think that was the point counsel was trying to make
in eliciting that Mr. Gomez is a left-handed individual.
And so I would like to move to the next point.
In addition to the insufficiency,
given that we do have a case where
the main issue before the jury is whether this one person
on the video is the shooter,
the Commonwealth usurp that role
through both its argument and the testimony.
And just at the outset, I would acknowledge
Mr. Riggins did not specifically say the shooter,
it's my opinion, the shooter is Mr. Gomez.
He didn't even go as far as to say,
this piece of clothing matches this piece of clothing.
Justice: Which is different from Wadsworth, correct?
-: It is different.
I think it's a little closer to maybe Robertson.
He did say right hand, left hand in Robertson.
But I think taking everything in combination,
we go past that line that this court said,
and Robertson was very close to the line.
So we do have, at the outset,
the Commonwealth opens by saying the Springfield police,
through Riggins pieced together all of this video.
He took items of clothing.
He went through each item of clothing,
the hat, the emblem, the strings, the sneakers,
and then said that we pieced together the video
from beginning to end,
and it led us to Mr. Gomez in the club
with the owl neck tattoo.
Then we have Mr. Riggins who gets up.
And I would just point out this point.
There was another problematic part of the testimony.
Throughout the prosecutor says they.
He pieces together.
He combines essentially Riggins with the Springfield police.
He says they pieced together the video.
They did all this.
The Springfield police
through their good detective work did this.
And then Riggins says, we did this.
And taking this in combination with
Detective Krogan's testimony makes it even more problematic.
So we have Riggins saying, I took these little pieces,
I matched the clothing,
and I pieced together all of the video.
He puts circles around who we were watching,
and then he says that they together
to figure out who the shooter is.
And then we go to Detective Krogan who says that
they received a description from Mr. Flores
of a blue sweatshirt, which was incorrect.
It was actually a blue shirt, which was corrected,
but it was before the jury.
Blue shirt, blue hat.
Then we piece together and looked back
and found who we were focused on.
And then in closing, the prosecutor again says
the Springfield police, detective Mr. Riggins
pieced together all of this video.
They matched clothing,
and he went through each piece of clothing.
So we have not only just Mr. Riggins saying
he put this video together,
but we essentially have the Commonwealth saying that
the Springfield police,
they got this description from Flores,
which was not even really substantive evidence.
We've targeted a person,
and then we pieced together the evidence
to come to the shooting.
So all of this taken together was essentially an opinion
that all these clothing items matched,
that this person was Mr. Gomez,
that they received a description of a blue shirt,
a blue hat, and-
Georges: And you're tethering this to the
compilation video?
Jillise: Yes.
-: An admission of the compilation video?
Jillise: Yes, your Honor.
-: Okay, but can you also,
when you're going through this though,
grapple with the fact that Judge Wilkins
gave a really strong limiting instruction to the jury,
and where he said, you don't have to accept any of this.
It's still ultimately your decision.
-: I agree that he did give a very strong
limiting instruction,
but I would ask, Your Honor, to also look at the instruction
that he gave during Detective Krogan's testimony.
When Detective Krogan testified that Mr. Flores
said that the shooter was wearing a blue shirt
and a blue hat, he then instructed the jury
that they could use this evidence
to determine why the police took certain steps.
So now we have him instructing
that Detective Krogan took all these steps because of-
Georges: That's to another issue.
-: I think, I agree with you, your Honor,
but I think when we take it in its totality,
I think it undercuts the argument,
the instruction that he had given,
that they should make their own determination.
Because now we have-
Justice: This goes to why the police
pursued a particular angle.
It's Bowden.
Georges: This is your Bowden issue.
-: It is, but I think-
-: Wait, hold on.
-: You're asking us to take something
that Judge Wilkins allowed the Commonwealth to introduce
as a result of something the defense did
on cross-examination with the-
Jillise: The opening.
-: No, no, because there was also the testimony,
the cross-examination of Detective Krogan.
So it wasn't just opening statement.
There was another reason why
that the judge allowed the Commonwealth to introduce that
statement from Mr. Gomez.
But irrespective of whether it was the cross-examination
or the opening statement, it was Judge Wilkins' response
to what he perceived the Commonwealth opened the door to.
So now we're gonna have to take that allowable response
to that issue and meld it to the other issue
of the (indistinct)
-: Well, I can make two points.
I think the point I'm trying to make is that
it couldn't have been undone by Judge Wilkins' instruction
because we have a case where
the evidence wasn't overwhelming.
We have the video is the sole evidence
that the jury has to look at to determine
whether it's Mr. Gomez,
and then all of these prejudicial points
as to opinion evidence, as to openings and closings,
and Riggins and Krogan all taking together
didn't overcome Judge Wilkins' instruction to the jury.
And then as to your point-
Justice: But you agree that Judge Wilkins' instruction
was proper?
-: Yes, it was.
And as to the second point
with Detective Krogan's cross-examination,
that occurred after Judge Wilkins already made his ruling
that the court, the defense had opened the door
during opening statements.
So on the seventh day of trial,
the Commonwealth came forward.
They lost on the dying declaration rationale,
and they said, well, now we're offering
that the defense opening opened the door.
So now we wanna use it in rebuttal to Bowden.
Judge Wilkins agreed.
So at this point, defense counsel said,
well, I didn't question any of these witnesses
as to a Bowden defense.
I didn't question Officer Rufflette
even about the dying declaration.
So now it's coming before through two layers of hearsay.
And then Judge Wilkins did also point to the fact that
defense counsel put in the photograph.
Georges: But it wasn't hearsay.
It didn't come in for its truth.
-: It didn't come in for its truth.
But I misspoke.
He didn't get to question
the person who actually received the statement
from Mr. Flores to anyway undermine it.
But at that point,
he had not asked one witness any questions
that bore on a Bowden defense.
It wasn't until after Judge Wilkins
then determined that it opened the door.
Detective Krogan testified on direct that
Mr. Flores gave this description of a person in a blue hat
and a blue sweatshirt that he then went on to ask
some questions both about that statement,
and then a few questions about the investigation
that I would submit weren't even really that strong.
It was about cigarette butts that were allegedly found,
whether they tested the cigarette butts.
And a couple of other questions that bore on
whether they, what they did.
-: You may, I'm sure you know the record much better than I,
but even in your presentation here,
you made reference to the fact that
the clothing that Mr. Gomez was wearing that night was gray.
But what is the judge to do
when they make that same opening statement
in reference, the fact that, hey, they're chasing somebody,
or they're chasing our guy,
and our guy's not even wearing the same clothing.
What is the judge to do with that?
How is that not opening the door?
-: Well, our alternate argument,
if this court finds that it did open the door,
was that counsel was ineffective
in attacking the investigation, a wholesale attack,
when he could have simply just noted for the jury that,
you know, we have this description given by the witness
of a gray sweatshirt, and we have Mr. Gomez.
You can see what he's wearing here.
Justice: There was no motion for new trial
on that ground.
-: There is not,
but I think we can assume that it was a strategic decision,
which is, I think is what we would-
-: You know a case law about the impact of a allegation
of ineffective assistance without a motion for new trial?
-: I do, your Honor,
but I think the case law is clear
that the main issue we have to determine
typically in a motion for new trial
is whether the decision was strategic.
I think Commonwealth versus Wright also says that
the standard for ineffective,
and whether the court made a proper ruling
would the same at this level.
So if we were to assume that the decision was strategic,
that he wanted to emphasize for the jury that
the one eye witness described a gray sweatshirt,
and then Mr. Gomez was clearly wearing blue.
I think it's apparent from the record that that's the point
he was trying to get across.
There was no, the decision to then do a wholesale attack
on the investigation was not reasonable.
Where he could have achieved the same point
without opening the door to the one piece of evidence,
even though it was for,
only for the steps in the investigation.
But the one piece of evidence where
someone said the shooter was wearing a blue shirt
and a blue hat,
which is exactly what Mr. Gomez was wearing in the club,
which is exactly what the defense counsel even conceded was
Mr. Gomez in the club.
And the other individuals, I'll note, that were standing,
that had the sweatshirt and the hat were all wearing red.
So the gray scale video, yes,
it could have been any one of these individuals,
but now we have one statement where they're claiming that
the person was actually wearing a blue hat and a blue shirt.
Kafker: Can I- -: And while there was a-
-: Can I turn you to the thing
that actually is giving me the most heartburn,
which is the lowering of the verdict?
Is there any case like this?
What's the best case that justifies
the lowering of a verdict?
Say we, you don't win on,
and you've done a very good job
of presenting the evidentiary issues,
but the sufficiency issues,
but what if you don't win here?
I just don't see how the judge
could possibly lower the verdict here,
given the conduct here.
So help me out
and tell me what cases I should look at that supports this.
-: I think that the strongest case
for our position would be Commonwealth versus Ghee,
G-H-E-E, which I cite in my reply brief.
This court found that there was slim evidence
of deliberate premeditation,
even where the defendant shot his girlfriend
in their apartment with a sawed-off shotgun
and he had beaten her up three weeks prior.
So there was this evidence that she was shot.
'Cause the Commonwealth's argument is essentially
premised on this court basically finding
there's a conclusive presumption of
first degree murder if someone uses a firearm
and shoots at someone.
And I don't think the case law supports that.
I think this court said-
-: But this is still in the,
when you think about what the theory was,
that's in the light most favorable to you.
The Commonwealth's theory is there is this beef
with Mr. Gomez-
Pardon me, Mr-
I forget, unfortunately, the decedent.
Jillise: Mr. Flores.
-: Mr. Flores,
and whether it is with Mr. Gomez or his friend,
that Mr. Gomez then goes to the-
And this is what the compilation video underscores.
Mr. Gomez goes, gets a gun, and comes back,
and essentially brings a gun to a knife fight.
And Mr. Nieves adds color to what happens in his statement,
that this fellow's trying to diffuse,
back to Justice Kafker's point.
We get to see the video too.
And I looked at the video,
and I'm stunned at how,
I'm really stunned at how Judge Wilkins
can make these conclusions with what's on that video.
That video shows in that as Mr. Nieves walks us through
the interview with the police.
He testifies,
or at least gives a statement that the decedent
is trying to diffuse the situation.
At one point, Mr. Nieves puts his hands on the decedent,
tries to pull him away.
And he then says, the shooter racks the gun,
and I back away.
And then you look at the video at whether the compilation
or the independent video from the police.
That gun is pulled out.
And when that gun is pulled out,
the decedent backs up, has his hand up,
and you can count six or seven seconds
before there's a fire to his abdomen.
How is it that you can say the jury could not find
an intent to kill?
-: So, your Honor, I think
that's applying the Latimore standard,
which this court has said the Latimore standard is-
-: I'm having an abuse of discretion standard
at to lowering the culpability here.
Jillise: Yes, your Honor.
-: That's what I'm looking at.
How is it that you could say that on those facts
that somehow the jury could not find an intent to kill?
-: I don't think the standard is that they could not find.
I think that's the Latimore standard,
which this court has said does not apply
to a reduction in verdict. Georges: Sure.
-: For a reduction in verdict,
the standard is whether the evidence, even if sufficient,
the reduction of the verdict is more consonant with justice.
Georges: That's what I-
-: And the factors that he looks to,
and he does, he doesn't explicitly cite Colleran
but he does touch on the factors
that this court has said are relevant under Colleran.
He looks to the fact that the shooter had
a sort of unmitigated rage.
He had had this altercation in the club.
Georges: Okay, hold on. -: He came out-
-: Hold on for a second.
But how is it that Judge Wilkins
gets to make that determination,
that there's unmitigated rage?
'Cause we can see the video.
This isn't just a shooter just spraying
seven or eight shots.
This is a gun gets pulled out, racked.
There's an amount of time that goes by, a few seconds,
which is probably a few hours in that circumstance.
Mr. Nieves backs away,
and then there is a shot directly at the decedent
in his midsection.
Where's this, that Judge Wilkins gets to say,
here's what I think is going on?
-: So I think if I can make two points to that.
Mr. Nieves does say that the shooter is enraged,
which supports, I think, Judge Wilkins finding
that there was sort of this unmitigated rage.
There's also inside the club,
you can see that there's an altercation that occurs.
-: Cliff says that the shooter was bugging out.
He was angry.
He was angry at somebody in there.
Okay, there's no, there's nothing that supports
this unmitigated rage.
-: I think there is, your Honor.
I think there's this fight inside the club.
The individual comes out of the club.
Mr. Nieves says that the person's enraged, he's angry.
He's asking, where's your car?
Where, do you have a car here?
He's yelling at him.
And as far as the pause between when the firearm is racked
and when Mr. Flores holds his stomach,
I think it's clear from the video that
that wasn't the first shot, the shot to the abdomen.
There's also, he was also hit in the knee,
and there's a number of casings
that are found on the ground.
Georges: Sure.
-: I think the inference,
given that he holds his abdomen and turns,
is that that's the last shot.
So-
-: How is that a reasonable inference
that the jury had to have made?
They couldn't have just said, that's an intent to kill.
This is a really outstanding decision in my view
for that Judge Wilkins does here.
-: Well, your Honor, I would emphasize again
that it's not whether in the light
most favorable to the Commonwealth
there's evidence that can support
a first degree murder conviction.
It's whether the evidence, even if sufficient,
the trial judge who saw the witnesses,
who viewed the testimony determines that a lower verdict
is more consonant with justice.
Gaziano: It has to do with the premeditation component.
-: Yes, your Honor.
-: But I think Justice Georges is asking you,
what's the limited factor if a trial judge can say,
well, I don't think there's enough premeditation?
It's not consonant with justice.
And we don't say that premeditation is based upon,
you know, assassinations.
And I get your point.
Some of the case law that talks about these brawls,
nonsensical brawls might, with rage,
may not rise to premeditation.
But here we have a person who's upset at the doorman
and empties a clip into him.
So where's the, how's that not consonant with justice?
-: So the points that Judge Wilkins relies on
are the fact that the shooter was extremely angry,
didn't seem to have any direction towards Flores,
was trying to just get him out of his way
to deal with the people inside
that he did have a fight with.
He also points to the fact that
even though the Commonwealth speculates
that the person went and retrieved a firearm from the van,
that that was to get back at the people who were inside.
And he became enraged with Mr. Flores.
Which there is, Mr. Nieves did say that,
that Mr. Flores was attempting to stop the shooter
from going into the building.
He became enraged.
That he shot downward towards the individual's feet.
It wasn't kind of a shot to kill on the upper extremities.
-: That seems nonsensical to me that we're gonna
count ballistics marksmanship on premeditation.
That if, unless it's a tight grouping by a Navy seal,
it's not premeditation.
That seems absurd to me.
-: Well, I don't think we also,
I don't think we have to exclusive,
conclusively establish that
just because someone uses a firearm
and shoots in someone's direction,
that it's automatically deliberate premeditation
or intent to kill.
I think he took all of these factors into account.
That the person did seem enraged.
You know, the commonwealth suggests
there's no evidence of alcohol.
I think there was actually,
if you take that the person who arrived was Mr. Gomez
and the person in the club is Mr. Gomez,
he's seen drinking throughout the night.
Georges: We don't know what was in that cup.
The only-
-: Well, there's a beer in the-
-: The only statement that talked about drinking
was Mr. Nieves saying, "Hey, I'm not gonna lie.
We were drinking."
But again, I just don't know how this all fits
in premeditation that somehow
this seems exactly what we say you don't use this rule for,
that it's to be used sparingly.
And this is not a substitute of judgment standard.
And it seems like that's what's going on here.
-: I don't think it was a substitute judgment.
I think Mr. Wil, or Judge Wilkins looked at the testimony.
This was obviously something that was concerned him.
He was the one who issued the order
indicating that he was retiring
and was soliciting that if you're gonna file this,
I'm retiring.
So obviously it had given him pause
even at the time of trial.
And Mr. Flores, he died during surgery.
He didn't die as a result,
at least, you know, initially,
as a result of the gunshot wounds.
He was in surgery.
He lived for 10 days, and then passed away.
(Justice coughs)
-: Ask you one thing,
because it melds two different issues that I wanna-
You were talking about strategic decisions
by defense counsel.
So one of the things that the Commonwealth quibbles with,
and you say the judge is not doing on the 25B component, is
essentially trying the defendant's case saying that,
hey, they didn't put in evidence
because the defense's entire theory was
he didn't do it, right?
But the defense could have argued in the alternative,
couldn't they?
They could have argued, hey, my guy didn't do it.
And even if you think he did it,
he certainly didn't do this.
It's not first degree murder, right?
They could of done that.
Jillise: I'm sure he could have done that,
but I think that-
-: That's important for me to say that,
for you to concede that though,
because you say the Commonwealth is wrong,
that Judge Wilkins is using the 25B tool
and importing other things outside of the,
essentially the record.
And isn't that doing that?
Saying, hey, they tried a-
If they had tried a different case,
they might have induced different evidence.
Isn't that exactly what he's doing?
-: I think I would take the position that was more of
kind of dicta in his decision.
I don't think it was the gravamen
of why he reached the conclusion
that the reduction was more consonant with justice.
I think he more so relied on the fact that,
of the other factors in Colleran
as to why he felt it pointed more
towards second degree murder.
And he does say that, it may be under the case law.
It's sufficient to find first degree murder.
But in my position as the trial judge viewing everything,
I believe that second degree murder
was the stronger determination.
So he does mention that defense counsel
didn't pursue a second,
but I don't think his decision in any way rested on it
where it would be considered an abuse of discretion.
And I think that he acknowledges Tejeda,
he acknowledges all of these cases that say,
you can find that there's deliberate premeditation.
You can find a lethal intent if someone shoots and kills.
But I'm not required to say that,
or a jury's not required to say
that that's a conclusive presumption.
And all of these factors,
the fact that he didn't pursue the victim,
he was shooting down, he seemed to be enraged,
all, I believe, point to a lower verdict.
And we would find that you,
we would ask that you use the strong deference
towards the trial judge and uphold that decision.
-: Does he, is he owed any deference here
when we have the video ourselves,
and we could see for ourselves?
-: There is one case that says that
the trial judge is in a better position,
and deference should be owed to the trial judge.
I cite it in my reply brief, your Honor.
-: Thank you, counsel.
-: Okay, thank you very much.
-: Attorney Lynch.
-: Morning, may it please the court.
Travis Lynch on behalf of the Commonwealth
asking the court to reinstate the
jury's verdict of first degree murder
with deliberate premeditation,
and otherwise they're asking the court
to affirm the balance of the judgment.
Starting with, just to address briefly
the defendant's issues on appeal.
Just on the sufficiency of the evidence,
clearly the same person
in the light most favorable to the commonwealth, I'd point,
you can see at various stages in the video
outside of the club, you can see the sticker on the hat
that's in the same place that you can see
that there's a sticker on the defendant's hat
when he's inside of the club.
I'd also note that again, we have Mr. Nieves identify,
or pointing out the shooter in the video
that he's watching in his statement.
We also have testimony that says
the defendant is not at the club
when the police do a sweep afterwards.
So he's gone afterwards.
So it's not simply, the case,
I mean, the video is exceptionally important,
but that's, I don't think it's quite right to say
that that's the only evidence here.
-: Counsel, just one thing on the identity.
We also have the testimony of the woman
who the decedent came up to and said, "Help, help."
Because wasn't there testimony that
the white van came up the street and hit her car?
Travis: That's right, there's also that.
-: Okay.
Travis: So that would all,
I mean, again, it's not just the video,
but your point's well taken.
On the-
-: Alright counsel, can I back you up a second?
Because there are so many stickers visible
in the footage from inside the club.
Travis: Right.
-: Are you arguing and was there any,
I guess there wasn't discussion that's below,
but are you arguing that the sticker is distinctive
in any particular way,
or that the sticker is different from the other stickers
that are visible,
or that has a particular shape that's different?
Was any of that, I don't remember any of that
being argued in closing.
-: No, I think it's, I mean, the sticker's on the same
part of the brim of the hat.
I think that's- Dewar: The top of the hat
where all the other stickers were.
-: Well, when you look at the video,
it looks like it's at the same location between the-
When you compare the exterior video
and the interior video,
the sticker appears to be in the same location.
There's also the yelling guy with the windbreaker who's,
that's clearly the same person in the gray scale
and in the interior video.
So it's not guilt by association.
It's just he seems to be with this other fellow.
And Nieves does identify the yelling guy
as wearing the red, white, and blue windbreaker.
There are other clothing items that I think you can see
at various points in the video
that's not immediately apparent from the still shots
of the surveillance that defense has put in their brief.
-: Yeah, on the-
Is there anything you wanna say
about the part of the video?
I've watched the videos.
Any part of, anything you wanna say
about the part of the video that ostensibly shows
the sort of fight inside or the altercation inside the club?
'Cause I found that really hard to understand.
-: I also found that,
I think I agree that was difficult to understand,
but-
I don't know.
I don't know what else to say other-
-: I mean, the most that possibly can be said is that
it's clear that there was some sort of activity in there.
Travis: Yes, and then- -: That was happening.
But I don't know.
Do you argue that there's anything more than can be said
that there's movement of people?
-: You can see the defendant leaving
with the windbreaker guy,
but other than, I don't think you-
If there was a fight, who knows?
I have no idea what happened,
but there was some sort of disagreement
that causes this movement,
and then the defendant goes outside.
But other than that, I don't particularly recall.
-: I think if I may,
because I had the same question that Justice Dewar.
Because one of the reasons why it was important to me,
or at least I was trying to figure out was,
Judge Wilkins makes a determination that
the defendant could have been bringing the gun back
to address an altercation
with another individual in the club.
And it just seemed to me that that was all congregated
by the front door where the decedent was the doorman.
Travis: That's right.
-: So how could you, I just was trying to figure out
how could you conclude that
you're going back to address some other unrelated person
where it could very well have been?
I just don't know.
-: I think there's, I think part of that comes from
Nieves' statement.
Georges: Yeah.
-: Because Nieves gives you that
there's some sort of disagreement.
-: It's inside, but he doesn't say
it wasn't with the doorman is what I'm getting at.
Travis: Oh no, I don't-
-: That's what I'm getting at.
-: Right, I don't think that,
I don't think that the defendant's problem
originally was with Flores.
I think Flores just got in his way.
Georges: Okay.
Dewar: But that's based on the Nieves testimony,
not the video.
-: Right.
-: So the Judge Wilkins is right to emphasize
that he doesn't go back to get the gun to shoot the victim,
but rather to get the gun for the fight with the other guy.
-: So our point is, I don't,
it doesn't make any sense to give the defendant
a discount here because he killed someone
on his way to go get into a fight with someone else.
It doesn't particularly-
I mean, the doorman is doing his job
to prevent people from getting back into the club
without being frisked.
There's testimony about that.
So he's there for security.
The fact that he then decides to
fight with a security person and shoot him to death
doesn't mean that he lacks deliberate premeditation
and intend to kill at vis-a-vis our victim.
We don't really know who he had a beef with
inside of the club.
It doesn't matter.
The fact is he leaves, he wants to shoot someone,
and then he comes back, and then he shoots Mr. Flores
for no, because he's mad
because he won't let him back into the club.
That's deliberate premeditation,
and Justice George was saying it very well earlier.
When he's standing there for several seconds.
He has come back to his van, he gets a gun,
he encounters an obstacle, he racks the slide.
-: How do you reconcile that with a case law
that says basically if you have an inexplicable brawl
with no prior relationship between the victim
and the defendant,
and the defendant is essentially a hothead
and shoots someone,
don't we have case law that says that that's
in the interest of justice reducible to second degree?
-: Occasionally,
But you'd be like a minor controversy exploding
into the killing of the human being.
Even in some cases, like I believe I said Fernandez,
even in a case where that is present,
it's not necessarily a reason to reduce the verdict.
It can be a factor to consider, but-
-: This has to do with whether or not
there was an abuse of discretion by a trial judge, right?
Travis: Right.
-: And whether or not the trial judge erred
in saying this was not consonant with justice.
-: Right, but I'm not sure that that was really what,
like he doesn't articulate it quite in those terms.
He seems to be concerned with,
I mean, a large part of our argument on appeal
is that the judge doesn't seem to agree with the inference
or with the law that shooting a human being at close range
is powerful evidence of intent to kill.
He doesn't seem to have believed that.
-: Well, intent to kill is,
I mean, obviously you have a,
from the use of a deadly weapon,
there's an inference of intent to kill.
Travis: Right.
-: I don't think intent to kill is really the issue here.
The issue is premeditation.
If it was an intent to kill-
-: But he says that he doesn't agree with that
as to intend to kill.
And in the same breath, he basically, he practically says,
and I also think that the fact
that he's shooting wildly goes,
undermines deliberate premeditation.
But like you just said,
there's no poor marksmanship discount here.
He's shooting at Flores.
He means to kill him.
And as he racks the slide
and unleashes a magazine full of bullets here.
And it's not just that we have Nieves saying
he racks the slide.
I think you could see it in the video,
but you can also, there's also a live round
of the same caliber, 40 caliber, that's on the ground.
So he's consciously making sure.
-: Could be that he, it could be that it was loaded.
When he racked it, he ejected the-
Travis: I think that's the inference,
-: The live round.
-: Right, so he's checking to see,
like maybe he doesn't remember
that there's a bullet in the chamber.
There was probably a bullet in the chamber.
But the point is he's consciously going out of his way
to place his gun, to make his gun ready to kill someone.
And then he kills the doorman.
That's deliberate premeditation.
It's not against the way-
-: Well, in fairness of the defendant's argument
and Judge Wilkins's rulings,
then he shoots definitely at a downward angle
and hits the guy in the knee from very close.
You agree that they're very,
it's clear from the video, they're very close to each other.
Correct? Travis: They're very close.
That's true.
-: So it doesn't take much of a marksman at that distance
to just lift your arm and hit someone in the chest,
correct, or the head?
I just wanna be fair to the judge below
and the defense here.
This is not a situation where he was far away at all.
Travis: No, he's standing right next to him.
You're right. -: Standing right next to him.
Travis: You're right.
-: So it to me like this is a little different.
It's a little different from,
we don't have a case exactly on point like this
in either direction, right?
We don't have a case where, unless you can tell us one,
where someone is so close to someone
that someone with no experience with a weapon
could probably hit them in the chest,
but yet the wounds are at the knee.
And then this strange thing that's harder to, you know,
a harder, I think the stomach one
is much harder for the defendant.
-: I would agree that I can't point you to a specific case
where someone was an extremely poor marksman
and only hit someone twice when they shot eight times.
I agree, there's no case that's quite like that.
But at the same time that I'm aware of where
reduction of the verdict was even an issue, but-
-: I'm sorry, I wanna go back.
I don't think that we, I don't think it's,
I think that marksman is just a complete
red herring here, right?
Like this is not about whether, that's not the issue.
The issue is that the argument being made
is that there was not premeditation to kill this person
because he was extremely close,
and the gun was not shot straight at him.
That's the argument.
So we have all these cases saying
in the opposite direction, going against defendants,
and saying, well clearly there's premeditation
because they were super close.
And if you shoot someone super close,
you clearly intend and you've made a choice to shoot them
like in the head or in the chest.
We have all these cases actually using against defendants
and saying, this is really good evidence of premeditation
to kill that you raised your gun,
you took the seconds to load the gun, you raised it,
you shot them in the chest.
So this case is different from those
because they are very close,
and yet the shots aren't in the place
that would be expected if the defendant intended to kill.
-: Well the second shot's in the stomach, right?
-: Right, he hits him in a vital area.
That itself is intent to kill without, you know.
-: I think that that is much harder for the defendant.
As I said, if this was only the knee,
I think it would be a different case.
But I don't even think we have a case on point
about the knee.
Is that correct?
-: Respectfully, if the defendant
had only shot him in the knee,
this wouldn't be a homicide case.
So we wouldn't really, as a practical matter, yeah.
We wouldn't be talking about a 25B issue.
This would be like ABDW, SBI, or something like that.
Gaziano: Did he, did he empty the round, the clip?
-: Sorry?
-: Did he empty the clip?
He shot eight times, right?
Did we, the firearm, did he empty the magazine?
-: That's not clear.
We don't have the gun.
The gun wasn't recovered.
That might be why he stopped shooting,
but that doesn't help the defendant.
He was just, he just kept on shooting.
That's intent to kill.
It's premeditation.
And the judge, like I said,
the judge doesn't agree with this law,
that he doesn't agree with Tejeda.
That's an abuse of discretion.
And I don't think that you can,
I don't think you can save the judge's decision here
because it's clearly,
it's clearly infected with disagreement
with this court's precedent.
And the matter about not presenting
the second degree defense,
the case that he cites is not at all similar to this case.
That case doesn't stand for the proposition that
arguing in the alternative, a lesser degree of culpability,
or sorry, failing to argue that is a means by itself
to reduce the verdict.
That lawyer was ineffective in Salazar.
And also the defense in that case
was voluntary intoxication,
the defense that wasn't fully presented,
which actually is a reason to say, oh, it's just second.
But this is not,
this fact pattern is a first degree all day every day.
That's what this case is.
He racked the slide,
and he shot an innocent person to death because he was mad.
That's first degree.
That's deliberate premeditation.
So-
-: Counsel, you haven't hit the other issue
about the compilation.
If you could just make sure you hit that.
-: Yeah, yes, I'll briefly address those points.
So this is not a Wordsworth error case.
It's not Wordsworth.
No, the police aren't pointing to the video
and said that's him.
That's the defendant.
It's not Wordsworth.
I think we all agree it's not Wordsworth.
When we're talking about the,
the prosecutor referenced
what he expected Riggins to testify to.
Riggins didn't end up testifying specifically
to the piece of clothing that he actually used
to make points of comparison.
Because in the midst of trial,
the defense filed a motion to say
Riggins shouldn't be allowed to testify to that.
So, but I think at the time that the prosecutor said that
the opening statement is on August 20th.
The motion in limine that causes the judge
to limit the testimony is filed on August 27th.
So when the prosecutor said that, this wasn't an issue yet.
It becomes an issue in the middle of trial.
We comply with the judge's order,
the witness does not identify the defendant from the video.
I don't think that it's really fair to say that
I made a compilation is the practical equivalent
of pointing at someone in the video and saying "That's him."
And the prosecutor was permitted in closing
to marshal the evidence.
And I don't, it's not opinion testimony to say
we have all this evidence, draw some inferences here
because it's the same person.
That's opinion testimony.
It's not evidence.
The jury are told it's not evidence.
So, and then the other point, I'm sorry,
the other point is Judge Wilkins's
model limiting instruction on volume seven, page 52.
He basically says, don't,
you know, don't defer to Riggins at all.
It's up to you the jury to make this determination.
Now on the Bowden issue,
whether or not the door is opened in the opening
doesn't really matter because the testimony that
Mr. Brown was referring to came in.
It was Nieves' statement.
So Nieves' statement, the shooter's wearing gray,
is in evidence by the time the trial judge decides
to let the Flores statement in.
And also by that time the defense attorney
has already cross-examined Nieves about certain topics.
The judge actually gives the defendant a better standard
on admissibility of the anti-Bowden evidence
that he's entitled to
because he gives him basically the other bad act standard.
He says the probative value is not outweighed.
The standard really is whether the probative value
is substantial outweighed.
Whatever, it doesn't really make much of a difference.
The judge said it's fair to allow the Commonwealth
to rebut the defense,
what the defense is definitely gonna argue now,
which is the police are unfairly persecuting my client
because I don't know why,
but they've botched their investigation.
They're focusing on someone wearing blue
where their only evidence
were where they have significant evidence
that the shooter's wearing gray.
And the evidence didn't come in substantively.
There was a limiting instruction.
We must presume that the jury followed their instruction.
And it's, I don't think that you can successfully raise
an ineffective claim in this posture on direct appeal
because it's clearly a tactical decision.
But we don't favor ineffective claims
being raised in this posture.
Unless there's any additional questions,
I'd ask that you reinstate the jury's first degree verdict
and otherwise affirm the conviction.