-: SJC-13338 Commonwealth v. Nicholas Desiderio.
-: Okay, Attorney Miles.
-: Good morning, your honors. May it please the court.
Mary Miles for the appellant, Nicholas Desiderio,
who is here with me today.
Instructions to a jury,
that lowers a Commonwealth burden of proof,
is an error of grave constitutional importance.
In this case it is undisputed,
and the Commonwealth concedes,
that the trial court failed to tell the jury
that it was part of the Commonwealth's burden,
under a theory of joint venture to prove
that Mr. Desiderio had knowledge that the perpetrators,
or at least one,
was armed and masked under the charges of
armed and masked robbery and home invasion.
This error created a substantial risk
of a miscarriage of justice,
where the Commonwealth's circumstantial evidence
was not so overwhelming that there was no likelihood
that this error did not materially influence the verdict.
Or put another way,
that the verdict required the jury to ineluctably infer
that the Commonwealth had admitted its burden of proof,
as to the admitted element.
My client's present at the scene of the crime
was highly disputed.
There was no description of the getaway driver.
There was a...
Let alone a description that matched my client.
There were vague and inconsistent descriptions of-
Justice Gaziano: I thought this was more of a
"who done it" than a "what did they do?"
As I read the record, I thought to myself,
this is really a difficult case of circumstantial evidence
as to who the perpetrators were
and not what they did.
And what they did, it was clear that they were both armed.
-: I think as to the principals, absolutely.
There was no identification as to the perpetrators
by any of the victims.
The Commonwealth's evidence,
as to the principals being my client's co-defendant,
Timothy Lavin, was circumstantial.
The question as-
-: I was trying to figure out
why didn't the defense attorney catch this?
And I think probably the focus was on you didn't prove
this is a mistake in identification case,
my guy didn't have anything to do with this case.
-: As well as my client, in addition to my client's,
the alleged participation in my client in the home invasion,
and my client's presence at the scene.
You know, the majority of defense counsel's argument,
closing argument, as well as cross-examination,
had to do with this CSLI evidence that the common put forth.
Justice Gaziano: That he wasn't there.
-: Yes, exactly.
I mean, that was the defense counsel's argument.
You know, the Commonwealth...
The defense counsel at the end of his closing argument
did also mention that the Commonwealth was required to prove
that my client, Mr. Desiderio,
shared the intent and knowledge required of those crimes.
-: So, why is Justice Ditkoff wrong?
-: In terms of why this didn't create a substantial risk
of miscarriage of-
-: Yeah, I mean, we took the case obviously to look at
the harmless error standard.
-: Correct.
-: So why was the majority right and Ditkoff wrong?
-: Well, I think that, so Silvelo was clear that
and this court reaffirmed the standard enunciated in Azar,
and then enunciated again in Bolling,
and kind of held throughout its progeny
that if the jury is not...
In the context of an admission omitted element context,
not the context of a prosecutor's closing argument,
or bad act evidence or, you know, prejudicial evidence,
but in the context of an
the lowering the Commonwealth's burden of proof,
then in that situation, the court has to ask themselves,
"Was the jury required to find in finding the defendant
guilty?
Was the jury required to implicitly find that
the Commonwealth met its burden as to the admitted element?"
-: Is joint venture an element of a crime?
-: No, joint venture itself is not, but-
-: Joint venture's a theory
of accomplice liability, correct?
-: Yes. So, but the, it is required,
and this court as well as the appeals court
has held numerous times,
I believe is pretty well settled,
that the part of the Commonwealth's burden
under a joint venture theory
is that the Commonwealth has to prove
beyond a reasonable doubt
that if the coventurer is not armed or masked himself,
that he was aware and had knowledge,
which is one of the elements of a joint venture,
that he had knowledge that one of those principals
was armed-
-: An element of accomplice liability. Right?
-: Yes, that under, that they proved that he had knowledge
of that underlying,
the intent of that underlying crime, correct.
So in that situation, the way that trial court instructions
had been sent to the jury is
they could have found him guilty
just as a perhaps, if there was...
Which my clients and I strongly disagree with,
if they had presented sufficient evidence
that my client was involved in planning the robbery,
he could have done so from Worcester.
He didn't necessarily need to be present
at the scene of this crime.
He could have given the perpetrators
information of the house,
could have told them about, you know,
the money in the safe, etc.
He didn't necessarily, to find him guilty,
but the Commonwealth doesn't necessarily
have to find him present.
-: Zanetti allows for that though, doesn't it?
Zanetti says that,
"Give the instruction and we'll figure it out on appeal,
essentially, if there's sufficient evidence."
-: Yeah, but sufficient evidence doesn't necessarily mean
that there's a substantial risk
of a miscarriage of justice cannot occur.
I mean this court as well as many other appeals court cases,
as well as this court,
has held that just because a rational jury,
any rational jury could have found that element,
does not mean that the omission of that element,
in the lowering of the Commonwealth's burden of proof
did not cause serious doubt or could not have,
or there was no likelihood,
that that materially influenced the verdict.
-: So I guess there are two issues
and I'll shut up after this. (attorney laughs)
There are two issues.
One is whether this is an element and to invoke the rule,
and then secondly whether the rule makes sense,
and we should have a different standard
for elements of the crime.
-: I would, in terms of the element,
I think to find that the Commonwealth's burden of proof
is not required to say that the defendant
doesn't have knowledge that the perpetrators
are both armed and masked,
I think you would have to overrule quite a lot of case law.
Bolling, Azar, Bolling, Azar, Gorman, Quinones, Palmer.
I mean there's a litany of cases under joint venture theory
that it is part of the Commonwealth's burden of proof
that they have to prove that this knowledge element,
otherwise there's, why instruct in the first place,
why is that instruction required in the first place?
And second, wouldn't he then just be guilty of,
in the terms of armed and masked robbery, unarmed robbery,
if he doesn't have to have that knowledge.
In terms of whether or not the standard is right,
I would argue that the dissent in this case is really,
as the majority said,
truncating these snippets from Bolling, from Spinucci,
from Vacher.
What this court has done
is really just enunciated the same thing
over and over again.
Is there serious doubt in this case?
Is there serious doubt means,
was the evidence so overwhelming that there's no likelihood
that this error materially influenced the verdict?
While I know in the footnote 16, Spinucci-
Justice Kafker: Is that the case 'cause...
I mean, that's the silv...
That's the standard for the missing element.
-: Correct.
-: It's not the standard, the normal standard
for substantial risk of miscarriage of justice, right?
-: No, I agree.
-: Right, so you're saying we did change
the standard of substantial risk for this element,
missing element instruction, right?
-: No, I think this, in all the cases
dealing with a missing element,
this court has been very clear, I believe,
in Azar, whether the dealing with malice instruction,
whether the jury was required to find
that the Commonwealth met its burden of proof
as to the admitted element or ineluctably infer-
-: Azar use the ineluctably infer.
I thought Azar didn't use the ineluctably.
-: Oh, I might have been mistaken.
I think its' progeny had used ineluctably inferred.
-: Yeah, so the question is do we go back to Azar,
or do we continue down the
ineluctably inferred Silvestio line?
-: But then I would point this court's attention
to footnote nine in Silvelo.
Didn't this court make clear that the standard,
the so overwhelming that there's no likelihood
of a materially influenced-
-: Right, I thought the footnote said,
and I guess I promised to shut up. (attorney laughs)
I thought the footnote said something like,
"These are just all semantic rephrasings of Azar."
-: Correct. Yeah.
So I guess that's what I'm trying to say,
is that you're all kind of saying the same thing.
You really, really have to ask ourselves that
did this verdict of guilty,
did the jury have to find that
my client was aware that he had knowledge,
or put another way,
if the jury had been instructed correctly,
that they were required to find
that my client was aware that his,
the principals were armed and masked, would they...
Is there a possibility or a likelihood
that they would've found for not guilty?
And I would argue
that the scanned circumstantial evidence in this case
leaves the doubt as to whether or not
they would've affirmed their conviction,
if they had been convicted correctly.
Justice Kafker: What do you say
to Justice Ditkoff's point that
if this essentially blends, you know,
preserved error with unpreserved error,
that it's exact same standard if we adopt this?
-: I think it's an interesting point.
We preserve an error or we object to jury instructions,
right, so the court can get it correct, right?
So more likely than not,
if defense counsel had told the jury,
"Hey, you're omitting this required instruction
that the jury would find beyond a reasonable doubt
that my client had to have this knowledge,"
the court would've allowed that instruction
more likely than not and we wouldn't be here.
In this circumstance dealing with the nature of the error
it is almost similar to a preserved error.
In this situation-
-: [Justice Wendlandt] And is that because
of the constitutional nature of the error?
-: Absolutely.
In the lowering of the Commonwealth's burden of proof-
-: Because if you don't require
the Commonwealth to prove an element,
that it may not actually be a crime.
-: Yes, exactly.
-: Or a different crime in this case.
-: Yes, and that's what Bolling said. Exactly.
So I think it's an interesting point that Ditkoff points out
that it doesn't seem to be much of a difference
in this situation dealing with an omitted element
between an unpreserved error and a preserved error.
But I think it's important to note
that had the trial court been asked to give that instruction
more likely than not, almost no doubt in my mind,
the court would've given that instruction.
-: [Justice Wendlandt] But does that matter?
Let's just posit a scenario
where the defendant asked for the instruction
and the trial court said no.
Then it's a preserved error.
Attorney Miles: Then it's a preserved error.
-: And I think Judge Ditkoff's point was that,
in that scenario, as unlikely as you think it may be,
preserved error is being treated the same
as an unpreserved error.
-: Well we were look...
In that case, we looked to whether or not
the error was harmless beyond reasonable doubt.
In that situation then we would still look at
whether or not the jury would have convicted,
or whether or not there is any likelihood that the jury
would not have convicted if they had been...
Sorry, there's a lot of negatives.
If they had been instructed correctly.
-: I'll have to listen to that one back on the tape.
(attorney laughs)
-: But I'm just saying that the analysis is rather the same
just because-
-: Ah. And the reason it should be the same perhaps
is because of the constitutional nature of the error.
-: Yes. I mean, as I said before,
we're not talking about an improper closing argument,
as the Alamy case that my brother points to in his brief,
we're not talking about, you know,
prejudicial bad act evidence.
We're not talking about, you know,
improper opening argument, that kind of thing.
I mean this is a really serious grave error
of constitutional importance.
I mean the jury cannot convict...
The jury is not a aware enough to convict a defendant
if they're not know the elements
upon which the Commonwealth is required to prove.
Justice Cypher: I just have a question.
-: Sorry, yes.
-: I was trying to wait for you to finish,
but my question is,
when you look at Justice Sack's opinion,
and you look at Justice Ditkoff's opinion,
they're using...
Justice Ditkoff's saying,
"Well you didn't change all that much really," right?
It's the same standard we've always used,
but Justice Sacks sees a different standard.
Can you articulate for me the difference between
Justice Sacks and Justice Ditkoff
in terms of how they would see and apply the standard?
-: So in the way I read Justice Ditkoff's dissent
was that they were, that he was not agreeing that
the Silvelo standard was a continuation of Azar.
He was, the way I read it was that it was a lowering
of the burden of proof for the omission
of an element error in the jury instructions.
I thought that Justice Sacks was affirming that
the Azar standard, the Silvelo standard, that the-
Justice Gaziano: The Azar standard on steroids.
-: Yeah. That's true. That's true. He did, yes.
And I think he really focused on
this court's footnote number nine in the Silvelo case,
you know, a lot...
The cases that the Justice Ditkoff used in his dissent
really have to do with the words 'strong evidence',
and whether or not evidence is overwhelming,
or whether evidence is strong.
As Justice Sacks pointed out in his...
Is his majority opinion is that that kind of gets us into
the sufficiency of the evidence.
And just because evidence might be sufficient
doesn't necessarily mean that a substantial risk
of a miscarriage of justice can't occur,
especially in the context of this case.
He points to the Spinucci and the Vacher case.
You know, in Spinucci, it was footnote 16,
the evidence in that case was extremely overwhelming.
The defendant's presence was...
Defendant's present wasn't contested.
The defendant himself was armed.
There was conversations between the principals
and the coventurer about the knife and therefore-
Justice Kafker: But a lot of times judges put in,
there's overwhelming evidence,
'cause it simplifies the case, right?
They're not saying it's required,
but it's saying,
"Alright, gimme a break. There's so much evidence here,"
you know, so.
-: Correct. Absolutely, Justice Kafker, absolutely. Yeah.
So in this case, you know,
where the Commonwealth focused its evidence
on this CLI evidence,
and you know, the equivocal testimony of Trooper Curtis,
that the cell phone doesn't necessarily connect
with the strong...
The closest, but the strongest tower.
Given the fact that, you know, there was no identity
of the getaway driver.
There was no vehicle associated with my client,
given that my client was never seen in possession
of the proceeds of robbery.
He was never seen to profit from the robbery.
He was not seen with co-defendants.
Justice Kafker: What does this have to do
with whether he was armed or not?
-: Oh, well it has to do with his presence, right?
It has to do with his involvement and his presence.
So I mean, you know, as opposed to like the Bolling case,
or you know, Gorman and Dusutto, like,
you're not really quite sure his involvement
prior to the case.
Or the Palmer case, the Massachusetts Appeals Court case,
you know, there, there was contents of conversations
with the, you know, coventurer about what was going on
inside the store.
There was physical evidence that put the joint venturer
in the vehicle so that there was,
you could implicitly find,
or the jury would implicitly find that he was aware that
they were armed and masked.
In this case without any of that evidence
you don't really have any evidence to implicitly imply
or implicitly find that he was aware,
if he was involved in planning this robbery,
or an engine involved in this robbery at all.
Justice Kafker: I mean, it's been, I mean,
this is an inside job.
And he's got a lot of inside information.
Now, he may not be the getaway driver,
but that's where the armed becomes an issue,
whether he's the getaway driver,
or he's helping provide the information from afar, right?
That's, it's better for you.
He doesn't, if you're arguing he's not involved,
you got an uphill case, right?
He knows where the safe is.
He knows somebody, two people are there,
he's been living in the house, you know,
but he may be able to do that from afar.
He doesn't need to be the getaway driver,
and if he's not the getaway driver,
he may not know they're armed, right?
That's the best case for you.
-: Yes, correct.
I mean, even if this court did find that the jury
had to have found he was a getaway driver
in order to convict him, you know, in taking, you know,
Justice Sack's analysis, you know,
the conflict he had with the resident, you know,
my client clearly thought Victor was a frail man.
Maybe he didn't need to think
that he needed to overpower him with a crowbar,
or a firearm, or any sort of dangerous weapon.
The evidence that the intruders were in the house
for some 15, 20 minutes or so
before they went up to his daughter's room,
there's is, you know,
can imply that they were looking for the safe
and didn't really want to interact with the residents,
the fact that everything was carried out in a pillow case,
they could have put the weapons in there,
so the getaway driver wasn't aware of them.
There's no content in the conversation with my client
and the alleged principals of involving a weapon,
or, you know, being masked.
So I would say even if this court did find that they had,
the jury had to find him as the getaway driver,
I don't necessarily know that that would defeat my argument.
-: [Justice Wendlandt] If there's a missing
elementary instruction,
and the defendant's theory of the case
doesn't challenge that element,
what do we do then?
Is the substantial risk of a miscarriage of justice analysis
different than how Justice Sacks articulates it?
-: Well, yes, for there to be a substantial risk,
or any sort of prejudice, right?
It has to relate to some aspect of the case, right?
You can't just say, you know,
"Well, the error of the case, the theme of the case was that
the, my, the defendant was, you know,
couldn't have the, you know, mental capability
to have the crime,
but the improper closing arguments
had to deal with the sympathy for the victim."
That doesn't create a substantial risk.
However, in this case, defense counsel did challenge
my client's presence at the scene,
did challenge that he had the shared intent
and knowledge with the coventurers.
So his-
-: [Justice Wendlandt] Implicitly, he was challenging
the knowledge of the firearm and crowbar.
-: Correct.
He wasn't challen...
He didn't say that, "Oh, this was in...,"
I don't know what a theory he could have used, but you know,
this was under duress or something like that.
You know, he challenged the sufficiency
of his presence at that scene.
Justice Cypher: Counsel, this is, remember when,
when the Cunneen factors were a big deal,
and we were kind of, all, everybody was sorting those out.
Those weren't elements, those were evidentiary factors,
I think is how they ended up,
what they ended up calling it.
Attorney Miles: Okay.
Justice Gaziano: That you have to prove them
beyond a reasonable doubt.
-: You have to prove 'em beyond a reasonable doubt,
but they were evidentiary factors.
They weren't elements.
If one of those had been missing,
would we have the same result?
I mean, is this similar to that or?
-: I mean, if the Commonwealth,
I think if the Commonwealth has to prove anything
beyond a reasonable doubt,
that is the Commonwealth's burden of proof.
Justice Cypher: Right.
-: So here, the Commonwealth has to prove
beyond a reasonable doubt that he,
that they're armed,
and that he has knowledge they're armed and masked.
If you omit that from the jury instructions,
whether you call them essential elements or not,
that lowers the Commonwealth's burden of proof.
By lowering the Commonwealth's burden of proof,
you were holding them to a lesser standard
than they would be.
At that point, you know, if you-
Justice Gaziano: As Justice Cypher said,
you could call them elements,
you can call them Mary Jane, it doesn't matter.
-: It's the same...
It's the Commonwealth's burden of proof
beyond a reasonable doubt.
Okay. If you have no other questions, I rest in my brief.
Thank you, your honors.
-: [Chief Justice Budd] And counsel, would you help me
with your last name?
-: Yes, your honor. Beaudoin.
-: Beaudoin. Thank you.
-: So good morning, your honors.
May it please the court.
Nathaniel Beaudoin for the Commonwealth.
I believe this court unintentionally changes the standard
for evaluating substantial risk in the Silvelo case.
And I say it's unintentional-
-: You say that 'cause Lowy's not here.
(Beaudoin laughs)
-: That helps.
Justice Kafker: He's listening though.
-: Well, Justice Lowy, I say that because of footnote nine
that was discussed earlier,
that it stated that
we're not trying to change the standard here,
but I'll tell you why I think this does change the standard.
So for two decades under Azar,
the question was whether this error created serious doubt
that the trial might have been different
had the error not been made.
And then courts evaluate four factors.
One of those factors
is the strength of the Commonwealth's case.
When you read Silvelo
after considering the serious doubt standard,
Silvelo says now you need to look at
whether this evidence is so overwhelming
that there is no likelihood, no possibility,
no chance at all, that the result would've been different.
And I think using that type of language
and changing the standard in this context
encourages courts to engage in theoretical possibilities,
which courts aren't supposed to do when they're assessing
whether a substantial risk occurs.
And I think that's what happened in this case
when it came to whether this defendant knew his coventurers
were armed and masked.
When you look in the majority opinion,
the court questions whether the intruders
planned on using weapons when they entered the home,
'cause perhaps, perhaps, they may have just brought
that crowbar in to open up the safe.
And that completely ignores the fact that
there were zip ties brought with them,
which showed that they did expect
to encounter residents of the home.
The court also questions the fact perhaps Mr. Desiderio,
the defendant, didn't think weapons were needed
because one of the residents of the home
was over 70 years old,
and apparently had a hip replacement surgery
at some time beforehand.
But that ignores the fact that this,
they expected at least two people to be there,
whether they had, you know,
their original hips or not, I guess.
They also questioned the fact that this footlong crowbar,
perhaps maybe there might be this possibility
that that footlong crowbar
was obscured by one of the pillow cases
that the intruders used to put-
Justice Kafker: I'm not sure where we took the case
for the factual distinctions.
We're trying to sort through when you have a,
I mean again, I defer to Justice Gaziano's
description of the elements,
but if it is a missing element,
does that change the substantial risk
of a miscarriage of justice standard,
and should it, I guess is the question?
-: No, it should not change the-
-: To not have an element in an instruction,
if it is an element.
-: I don't believe it should change the standard
because the standard has been,
courts will look at the strength of the Commonwealth's case.
So a court can decide whether the ev...
Whether they want to call it, excuse me,
overwhelming evidence,
whether they want to call it abundant evidence,
whether they want to call it,
as they did in Spinucci, strong-
Justice Kafker: I've done 10,000 SRMJ cases.
So I get that part of it.
What I don't get though is when you have a missing element,
I mean the jury has to find the facts, right?
We don't, so if they're not,
if they're not instructed on the fact,
it just, it seems like it is a...
There's some difference there.
I don't know if it's a meaningful difference, but it's,
it does seem different than other kinds
of unpreserved errors.
-: I guess what I'm arguing, your Honor,
is the standard should stay the same
as it was stated in Azar-
Justice Kafker: Well I know you, I know your position.
I'm just trying to understand is that correct
when there's a missing element?
Or is a missing element somehow different
and then we do have to get into this ineluctable.
-: Well I think the standard is the same,
but it's applied differently in this context,
and that factor,
the strength of a Commonwealth's case would be applied
differently when there is a missing element
in the instruction.
But I don't think,
I don't think that courts should now start with the fact,
well the, unless this evidence is so overwhelming,
there's, excuse me,
no chance that the verdict would've been different.
I think, and the reason why I was trying to talk about
the facts of this case, 'cause I think that it,
those words, "so overwhelming, no likelihood,"
encourage courts to engage in these
theoretical possibilities,
which is not supposed to occur.
And as-
-: [Justice Wendlandt] But even in Azar,
I mean Azar says you look at these factors,
the nature of the error here
is one of constitutional dimension,
the significance of the error
in the context of the whole trial,
and the possibility that the absence of an objection
was a reasonable tactical decision.
That's Azar on a jury missing element instruction.
So I guess...
And Azar also is the case that introduces the,
and I can't say this word ineluctably infer,
so I don't understand the Commonwealth's position because
it seems that Justice Sacks was positing
these other potential universes of realities
because he was trying to answer the question,
"Was it required for the jury to find this element?"
-: Well I think,
and I have the same problem saying that word.
I think the, I think it's important to note that that-
-: [Justice Wendlandt] Confused.
Together: Overwhelming. (all laughing)
-: [Attorney Beaudoin] Perhaps, your honor.
I think that it's important to note
that that phrase ineluctably inferred,
originated in the Vizcarrondo case,
which was, which was a murder case,
I believe it was, it was a murder case,
I forget whether it was first or second degree,
but the issue there was a definition of malice
in the instruction.
So when that case, the defend...
The standard wasn't substantial risk
of a miscarriage of justice,
it was a substantial likelihood of a miscarriage of justice,
a standard which is going to be
more favorable to a defendant.
So I think it's more appropriate in that instance
to use phrases like overwhelming,
like ineluctably inferred,
like the phrase the evidence required this to happen.
And as was discussed-
Justice Gaziano: We don't get to speculation
until we get to preserved error,
'cause that says, would this have been different?
What's, in the hypothetical jury.
-: Maybe I missed the question,
but you're asking about the sort of
the blending the standards between
preserved and unpreserved.
-: Right. -: Correct?
So in a case like this one
where the error was not preserved,
a defendant is supposed to have a higher burden,
a higher hurdle to overcome.
But what Silvelo says
is that there is essentially no difference
between when an error is preserved or unpreserved.
We're going to look instead at whether the evidence
is overwhelming.
And I did not include this case in the brief,
but I did find it when I was preparing.
There is an appeals court case, McCray,
and the site to that is 93 Mass. App. Ct. 835,
it's a 2/2018 case.
There was a question in that case of whether the error
dealing with an omitted element
was preserved or unpreserved.
So the appeals court sort of analyzed it both ways
and they said they used, they said, well,
if the evidence is overwhelming in this context,
then the error is not harmless.
Well then what's the difference?
You're essentially creating a standard that's the same,
but when an error is preserved
and when an error is not preserved.
Justice Cypher: Is there any chance
they were referring to the constitutional dimension
of the error with regard to it being not harmless?
-: Yes, because having an...
Yeah, it is constitutional in nature
when an element is omitted from an instruction.
So they are talking about that.
-: Right.
And so what's the standard then,
if it's constitutional in nature,
not just a evidentiary error?
-: For an omitted element?
-: Does it matter if it's preserved or unpreserved?
-: I think what I'm...
That case simply said,
let's say this defendant preserved the error
is not gonna matter
because the evidence is overwhelming if they preserved it.
So essentially there's no difference.
-: It'd still be harmlessness beyond a reasonable doubt, or?
-: Oh, they said the error would not be harmless
because the evidence was overwhelming.
Took me a second to get there.
Unknown Female: Would be harmless.
-: Those were the main points I wanted to make
in terms of why I believe the standard is wrong
though it was unintentional.
I think it causes courts to engage
in theoretical possibilities,
which they're not supposed to do.
And now we have a blending
of the unpreserved and preserved error
in terms of the standard.
If there are no further questions, your Honors,
I can rest in my brief.