-: SJC-13357 Commonwealth v. Jeffrey A. Souza.
(papers rustling)
-: Your attorney, Soares, whenever you're ready.
-: Good morning, ma'am...
Chief Justice and Associate Justices,
may I please the court, Matthew Soares for Jeffrey Souza.
I would like to address Issues...
Sorry, Your Honor,
I would like to address Issues 1 and 2,
but of course I'm happy to take any of your questions.
The first issue is that the trial judge erred
when she cut off the testimony of the adjutant witnesses,
as soon as they had testified to the first blow
of the violent incident.
And this arrow went to the heart of the defense
because it prevented the defense
from presenting the truth about the decedent, Kyle Brady.
That is that he was a powerful force
that could not be stopped.
That was the center of the defense.
That was the main theme of the defense.
-: You're asking for a change in the law, right?
-: I'm...
For the second issue,
I am the...
Which addresses the jury instructions for self-defense.
I believe that it could be improved,
as far as in this particular case,
the judge did not even follow the model instruction.
She added another sentence
and that made it...
-: Can you tell me first what the improvement is
that you think is appropriate?
-: Sure. Well, for one thing,
it's ambiguous when as to...
-: But what would you have it say?
-: I would have it be clarified that when they say,
for the purpose of determining who attacked whom
with deadly force or...
And to first say that there's two types of force.
There's...
There's two questions to be cited.
Who first initiated the conflict
and who escalated the conflict by first use of deadly force?
The way it is now, it just says who attacked whom first,
and then it talks about deadly force.
It would need to say specifically...
-: I thought...
I thought what Chambers said was,
"Don't read Adjutant narrowly."
Because Judge Quinlan in the Chambers case said,
"Well, I can't do this because they were involved
in a non-deadly fight."
The victim, the defendant, started the non-deadly fight,
and then there was deadly force in, we said, in Chambers.
Well, don't read that.
Instigate.
Also include, who started it with deadly force,
who escalated it, essentially.
Matthew: Yes, Your Honor.
-: And then the model instructions in 2018,
cite Heverly to Chambers as well.
-: Well, the...
It doesn't.
-: And it cites in Chambers...
It cites approvingly to the 2013 instructions.
-: In Chambers. Justice Gaziano: Yeah.
-: Well, the...
It doesn't...
The change in the instruction doesn't say anything
about the two types of deadly force.
-: Well, the note to the judge in 2018 says...
And it uses the Chambers hypothetical.
It says, "Hey judges,
in appropriate cases add the following instruction.
If someone uses force, it says,
but if you escalate a simple fist fight into a knife fight,
which Chambers... Matthew: Right.
-: Then you get the instruction as well.
But it's still relevant to who started it.
-: Right, but the...
-: But you want deadly forced to be used in the instruction.
-: It needs to be clarified
that the Adjutant evidence can go to both types of...
-: But wouldn't the judge make that threshold finding?
So basically a judge,
which Judge Quinlan was misled,
might misled.
She did what the law required,
but she didn't expand Adjutant.
But it's the question of whether or not this evidence
is admissible at all.
So if a judge said it's not admissible,
it just doesn't come in.
And then if it comes in,
then it has to do with who started the fight.
-: She said it was not admissible as to...
-: Right, because it...
There was a question...
There wasn't a question of first aggressor,
as far as the fist fight, not the knife fight.
-: Well, it...
They didn't really get into that so much.
She just said, "Well, the question is, 'Who first?'"
-: But you've won that.
So, Chambers is Chambers.
And Judge...
Matthew: Right. -: Garsh, in this case,
said, "Okay, I'm going to give you Adjutant evidence,"
and allowed in the three incidences in this case.
Do you think that...
And there's some language in Chambers that supports you.
You think that it should be beyond first aggressor?
It should be, basically, was it reasonable
to use self-defense?
Because, give them everything...
Matthew: Yes. -: In this fight.
-: That's the second part of the second issue.
As that Chambers says,
it wasn't just admitted for the question of
who is the first to use deadly force.
Or who was the first...
It's for the general overall purpose
of proving if the defendant is...
Justice Gaziano: I think that language
supports your argument.
-: Yes, I agree, Your Honor.
And that there's nothing about that
in the judge's instructions here.
-: There's a little bit of a lack of clarity on this though.
And I'd like to see if you could help us out.
There's two different issues.
One is the relevance of Adjutant-type evidence,
as it relates to who is the first aggressor.
And whether you get the entire incident to be able
to help the jury determine
who the first aggressor is based on propensity inferences.
But then there's the other issue,
which is does Adjutant apply to all of self-defense,
or just to who is the first aggressor?
And those issues are sort of mushed up.
Matthew: Right? -: In your brief
and in this case.
So are you saying both?
Are you saying just one?
-: Well, I'd like to point...
I would like to differentiate between the first issue
in my brief, which is fully preserved.
That the judge in this case,
without going into other cases at all,
the judge in this case erred and it was...
It's preserved issue, so it's harmless error.
-: So that's the first issue.
Matthew: That's the first issue.
-: So there isn't any confusion,
the first issue that's preserved is that Judge Garsh said,
in determining who the first aggressor is,
the only relevance of the prior act of violence
is who initiated the violence.
And you are saying, "No, we need the whole incident
to be able to determine who the..."
-: Well, I'm saying first in that issue,
and that she limited it in this case.
And she just said it's limited to the first blow.
Justice Lowy: Right.
-: I don't see any support for that
in any authority anywhere.
-: Adjutant says give them as much as you need
to be relevant to who struck the first blow.
It's a relevance determination,
as Justice Lowy said,
and an abusive discretion standard thereafter.
I think the problem that we had applying Adjutant
in the trial court
was sometimes lawyers wanted to submit a conviction
and they say, "Here you go.
The person was convicted.
The victim was convicted of assault and battery."
And I think a lot of judges said,
"Well, that doesn't tell the jury anything."
It's not...
It doesn't illuminate the...
Matthew: Yes, Your Honor. -: facts.
So we need, we...
So Mr. Defense Attorney, Ms. Defense Attorney,
get yourself a witness, which was the issue.
So, but you did that.
Matthew: Yes, the trial counsel...
-: The trial counsel did that in appropriate...
Matthew: Yes. -: And they had
to discuss the evidence.
And now it's Judge Garsh's decision.
And I think she said,
"We don't want to trial within a trial.
I'm gonna stop it at some point."
-: Well, before she even gets to that, she says that the...
This was not Adjutant.
So that's prior conduct
showing propensity.
-: No, she said the latter part was in Adjutant.
She allowed the first, she allowed the incidences,
the bar fights in the...
-: She just allowed the first blow.
Justice Gaziano: Right. -: And that
is almost nothing of these incidents.
-: But doesn't that show who initiated the fight?
The first blow? -: What...
Well, who initiated the fight...
It shows that he initiated the fight.
But it doesn't... That...
The question is not
who initiated the fight.
The whole...
All the evidence goes to that of the incident,
because it shows the power of him.
He's more likely to initiate the fight.
-: That's your second argument, right?
Because that more goes to that language in Chambers
as to it's relevant to everything.
-: Well, it's... It also...
It's the first argument in that there's nothing that says...
It says violent incidents, evidence of violent incidents.
It doesn't say the first blow of the violent incidents.
-: See, that's the...
That's what I was saying my question is.
It's mushed all together.
And you need to differentiate
between the two principles that are going on here.
Because as you point out in your brief,
Judge Garsh, under Atchison, has enormous discretion.
But if she doesn't know she has the discretion...
Matthew: Right. -: Then she doesn't
get the protection of the abuse of discretion.
-: This is not an abuse of discretion.
-: So again, there's two issues.
One is when you're looking at Adjutant evidence
and who's the first aggressor,
is the evidence only admissible who struck the first blow
in the prior act?
And you're saying no. Matthew: No.
-: And then the other issue is, does Adjutant evidence,
including all of self-defense.
Retreat, violence being reasonable, in these circumstances?
And I think you gotta differentiate between those two.
-: That is a further...
-: Help us understand what we're...
-: I agree that that's a further issue down the line,
but we don't even need to...
The judge erred just under Adjutant.
Forget Chambers that comes in and says...
It clarifies, in my opinion, Adjutant saying
it's not just for the purpose of first aggressor.
But she limits the evidence so much
that even if Chambers never existed, she...
-: I think that's a tough argument for you.
I think that the Chambers language helps you, but I think...
-: Oh, definitely helps.
It helps very much.
But I think, just under Adjutant, she erred.
I looked...
-: You might wanna move to the second issue
because your time's gonna run out.
-: Okay.
The jury question.
Yes.
And the one thing,
you put out the Amicus call,
and there this...
In this case, the judge...
It's different than the model.
She added a sentencing.
It's limited to that only.
So that's not even in the model instructions.
She didn't even follow the model instructions there.
So that's a major problem with her instruction.
And then the other issues are, how can the...
How can you tell what first aggressor means,
for the purpose of determining who attacked whom?
Well, does that mean who started the fight,
or first to escalate with deadly force?
-: The deadly force case, what's the prejudice?
-: Prejudice says that...
Chambers says this,
that there's two issues, and if it's in dispute,
the evidence is allowed for to determine both issues.
It's not decided here who started the fight.
Nothing's decided here.
That's why this was not harmless error at all.
This is case is less clear than Adjutant,
less clear than...
-: You think Chambers would allow an entire incident in,
and then the defense attorney would be able to argue,
"This was reasonable self-defense
because look at the pummeling that this person gave
to the cop and to the people in the bar."
Basically. -: Right.
He's a force that can't be stopped at...
And...
-: So that equals reasonable self-defense
because of the nature of his violence.
Matthew: Right. -: The propensity for his...
Propensity for violence.
-: Right.
And the Commonwealth is arguing two different things
in the first issue.
They're saying, "Well, it only matters the first..."
It doesn't matter.
They cut it off at the first blow.
But it...
That doesn't show deadly force.
And the second issue they're saying,
"Well, it doesn't even matter who started the fight.
It's deadly force that's the issue."
Well... -: How hard would it be?
Or easy would it be for a jury to identify
when the precise moment of deadly force begins?
-: It's not very easy at all.
That's one reason why.
Justice Gaziano: So the...
-: As much evidence as possible of the...
Of not possible, but evidence says non-cumulative...
Cumulative evidence that's relevant.
These incidents are completely that.
And the judge determined
before they had a pre-trial hearing, she said,
"Yes, this comes in.
These incidents are fine."
And she just sat there and she just said,
"No, it's only the first blow."
I don't know where she got that.
-: Can you, yeah... Can you clarify this for me?
The error in her instruction is the last line
where she said, "You cannot consider such evidence
for any other purpose whatsoever."
-: Yes, she said that.
-: That was added and that's the error in your view.
-: She said that every time
for all the three Adjutant witnesses and the two Morales.
-: But that's your allegation of error.
-: That's part of it.
That's...
-: The instructional error. -: Yeah, the...
That's... She added to that.
That's her own error, added to...
And I think the instructions...
-: But the instructions, you have to concede
were written with Chambers,
and all that Chambers language in mind,
because it cites Chambers.
-: It cites Chambers, but it doesn't say
what Chambers says about...
The evidence is admitted for the overall purpose
of determining self-defense.
It segregates it... -: No, I...
-: Within the fifth proposition.
-: Agreed, agreed, and it might be silenced by...
You may be...
You might be doomed by the failure to say that.
But, yeah, it does not say that.
-: Right. It's...
And it also is unclear, it doesn't have...
A dual definition of at-first aggressor, do...
-: You recognize this would be a great expansion
of Adjutant?
-: I don't...
I don't think that it would be.
I think that...
Under the first issue, not at all.
She just completely got that wrong.
But if you're talking about the second issue,
if you were to revise...
Chambers does say that that's not an Adjutant.
Yes.
So as... As Chambers...
-: Yeah, we have to take those two lines from Chambers
and say... -: Right.
-: What we said,
even though Chambers has an Adjutant sandwich.
It says first aggressor, first aggressor,
and then it has that language.
Matthew: Right. -: In the front.
-: And I agree that language in Chambers is not an Adjutant
and it's ambiguous, as we point out in the brief.
So...
-: Can I ask the same question as Justice Budd,
Chief Justice Budd started with.
Which is are you expanding the whole concept to this?
Once he starts a fight, he's gonna escalate it no matter...
To quote...
It seems like you're basically saying
that he's going to use deadly force no matter what
because he just will keep fighting.
Is that...
That's different, isn't it?
That that's a whole other concept.
Basically this guy's so violent that he's...
Unless you kill him, he's going to use deadly force.
Is that,
sort of, what you're saying? -: Well, in this case,
it's for the juror. It's a jury question
to decide.
-: But that's not Adjutant is it?
That's an...
That's a new concept, right?
-: I don't believe it's a new concept.
It's... Adjutant says
that it's propensity evidence.
Propensity for violence and to cut off it at the first blow,
he started a fight with somebody.
The important thing is they...
Lots of people start fights.
This guy finishes them and wins them.
And he's, honestly...
And he's reckless.
And the defendants said that
he ignored a warning shot and just ran at them.
And all they get is that this guy started a couple fights.
They don't get that he had
to have multiple officers bring him to the station.
He was tased six times, didn't go down.
That's the point that...
That was not presented to the jury at all.
Sorry, I'm over time.
If there's anything else?
-: Okay, thank you.
-: Thank you very much, Your Honors.
-: Okay, Attorney Nathanson.
I'm sorry, Nadeau.
I apologize.
(Chief Justice Budd laughs)
-: No problem.
Thank you, Madame Chief Justice.
Good morning. May I please the court?
I'm Steven Nadeau, on behalf of the Commonwealth.
Our position, of course,
is that the trial judge appropriately applied Adjutant
in Chambers when she admitted,
and then curtailed, some of the prior violent acts initiated
by the victim in this case.
And when she instructed the jury
on how they were to use the evidence.
-: Mr. Nadeau, how do you get around the Chambers language?
On page 529,
it says that it's not limited to this purpose.
It was admitted for a broader purpose
in giving the jury relevant information
regarding the victim's prior act of violence
that may help them evaluate conflicting evidence
as to the truth regarding the events
that led to the victim's death, and ultimately determine
whether or not the prosecution met its burden of proof.
So it talks about Adjutant in Chambers,
and talks about the initiation of violence
and says violence is gonna be
who initiated the knife fight too, not the fist fight.
But then it has that line I just read
about the broader purpose.
And I think that supports what counsel was just arguing
that, well, maybe we should take a look at this.
Because we said in Chambers it's broader purpose,
not just first aggressor.
Steven: Right. -: What's your response?
-: So...
-: You better guys drink a water.
(laughter)
-: I need it. Thank you.
So my response is,
first, unfortunately,
I kind of can't make, necessarily, heads or tails
of that paragraph given that it's sort of predicated
on a mistake, I guess,
about what was introduced in Adjutant and Chambers.
And certainly it's, I think, within this court's power
to have expanded Adjutant as expansively
as that language would do.
But I don't think that's
what the court intended to do there.
I think, as I know in the brief,
that it was just a reference.
That this is not only
why some of this evidence might come in.
There may be other issues.
And also as kind of a reminder,
there's some other language in Chambers just, you know,
where Chambers was kind of novel because it dealt
with the first aggressor issue.
It was sort of instructing trial judges as you mentioned.
Don't read these things hyper critically
or hyper technically.
Give some flexibility for the defendant who is accused
of often very serious crimes,
who may need to, you know,
creatively introduce evidence as part of his defense.
I would also refer to Commonwealth vs. Camacho,
which is cited in the defendant's brief at 472 Mass 587.
And that comes after Chambers,
and as an example of the court, kind of,
drawing a very clear boundary
around what the relevance of this kind of evidence is.
And I'll just read briefly from a paragraph there.
"Given this largely undisputed evidence,
the primary question for the jury was not
who began the altercation or escalated to deadly force,
but rather whether the defendant was legally entitled
to use the force he did in defense of another.
There may be a question as to which act,
the bottle throwing or the gun firing,
escalated the fight into a deadly confrontation.
But that is a wholly distinct issue
from the individual who initiated which act."
-: So, and we had to Connick as well.
So we've never returned to this Chambers language.
Is that the point?
Steven: Certainly not.
-: As broad Chambers language.
-: As a basis of a holding or anything like that,
or was expanding beyond.
-: But Counsel, if you could...
I still don't know if you've actually gotten
to Justice Gaziano's point.
I'd like to follow up if I could about Chambers.
Steven: Sure.
-: So one of the concerns
that I think is being brought up here,
is this larger picture.
And you know, you just mentioned the language in Camacho
about whether or not the person was legally entitled
to do what they did.
And so that brings up the reasonableness of what they did.
Right? Steven: Right.
-: So if you don't have the larger picture...
And I'm gonna separate this out for you for a second.
Not that all of these things
would come the more fuller picture
of what the person has done in the past,
to give to the jury, or perhaps have the jury use it,
to engage in propensity reasoning.
It's that the defendant engaged in propensity reasoning
because it was the defendant's reasonableness
of their actions, which is informed by,
what I thought, this person was capable of.
And that is a function of telling them what he's done before
to gauge the reasonableness of what the defendant did,
how they reacted.
So when you look at the language in Chambers,
wouldn't that be relevant to the reasonableness
of the fear when it comes to what they then did?
-: Well, these kind of acts
are admissible when there's evidence
that the defendant knew of them.
Justice Georges: Sure.
-: If he doesn't, it may not have any effect
on how he would respond if he doesn't know about those.
-: This is just as Justice Cowan said in Adjutant.
This is pure propensity,
because Fontes and Pidge, where the defendant knows.
Steven: Right. -: Right.
Steven: So, yes.
But this is just whether or not we're looking
at propensities.
And I think the point that we're making, and Justice Georges
is making as well,
is that isn't it basically more fair
that if we're gonna go down this road
that the jury be informed of the totality
of what the defendant or the victim is capable of?
-: Yes, and I think in the circumstances of this case,
there was ample evidence of the victim's propensity.
-: But you have the judge's instruction,
which went beyond our model instructions
and said, "Don't use it for any other purpose."
-: Yes, and I think that was consistent with Camacho.
I sort of imagined
that's where Judge Garsh got that line from.
But again, in the circumstances of this case
where the violent acts, the defendant...
Or the victim directly threatened
to visit upon the defendant in this case.
The defendant testified to reputation.
It was essentially undisputed
that the victim was a violent guy.
-: That's the prejudice issue.
We're still trying to get our arms around the first issue,
the preserved issue, which is whether or not,
on the issue of who is the first aggressor,
the jury can consider would and who struck the first blow,
but can consider the entire incident
in order to help determine who was the first aggressor.
Steve: Right. -: And that issue,
remind me if I'm wrong that issue is preserved.
Steven: Yes.
-: And it's not...
And we're not analyzing it as to whether Judge Garsh,
in her wide discretion under Adjutant...
Because there is a wide discretion
for trial judge under Adjutant.
We're not determining whether Judge Garsh looked
at this situation and said, "No, these fights,
I'm only letting in the first blows."
It... She thought
that's all she could let in.
So she hasn't...
We don't look at whether or not
it was an appropriate exercise of discretion.
-: Well, I think actually,
Judge Garsh was not using a hyper-technical application
of Adjutant.
I think this case and her approach to it
kind of shows the flexibility of Adjutant and Chambers
because in all three of the acts that were introduced,
they were violent acts already in progress
when the witnesses, all police officers,
showed up on the scene.
-: You know how I looked at it.
I mean...
And I'm happy to be correct about how it came in.
I thought what she was saying,
"No, you're not getting into these events
beyond the first blow."
Steven: Right.
And, well, certainly in some of them,
the evidence went beyond the first blow.
So she...
It's not like she struck the evidence.
For instance, at the Al Mac's Diner,
where there's a fight and then it continues
as they fall to the ground and it goes on from there.
So, no, I don't think Adjutant requires exclusion
of evidence after the first blow.
And I don't think that's what Judge Garsh...
Justice Lowy: You don't think that's what she did?
-: No, and I think her express concern was
about the creating trials within trials.
Justice Gaziano: Which goes to her discretion, really.
-: Right, right.
And I think her...
Say that's her saying that's not Adjutant
was kind of just a shorthand way
of saying we're going beyond the relevance here
and getting into, again,
trials within trials, cumulative and prejudicial evidence.
-: And how does that square with her subsequent instruction
as to how the jury could use the evidence
that came in from the officers?
-: I think that was an appropriate instruction based on,
again, Camacho,
where it was a very clear boundary drawn around
what the evidence can be used for
and when it cannot be admitted.
-: So isn't that contradictory, though?
I mean, on the one hand,
you're saying she's not really limiting
to the first blow and what it can be used for,
but in the instruction that's exactly what she does.
-: Well, I think those are two different things.
What evidence she allowed in as relevant
to the first aggressor issue
that may go beyond what was the first blow.
-: That the jury can't consider?
-: They... I think they can consider
all of that evidence as to determining, in this case,
who was the first aggressor, the first to use deadly force.
I think it's maybe splitting hairs, but I think those are...
-: It's contradictory.
I mean, it's like limiting instruction.
If she says you can only use it for this,
and for any other purpose it's not admissible.
That cabins how you can use it.
And so does the instruction.
So that's the point, I guess.
Is why is that not relevant in the jury's consideration
of who is the first aggressor?
To know about the fuller picture,
about what the victim in this case did,
or any case, does.
And certainly I know that there are federal cases
that say that you can...
That this fuller picture is admissible,
on the issue of how reasonable
is the reasonable reaction to...
In this case.
-: Right.
And that's of course when the defendant knows
about the incident.
-: No, it's not.
There are federal cases that talk about when they don't.
Particularly, when they don't know it's true.
That it's just...
This is what I've been...
This is what I know of.
So it's kind of almost tantamount to the same thing.
You don't really know that it happened,
but yet it's still important that there's an effect on you
when that...
That you can divine about how you're gonna respond.
Why wouldn't that be an appropriate place for us to go?
-: It might be.
I think, again, when the defendant doesn't know
about these prior acts,
there may be circumstances unique to those particular facts.
That yes, there's a relevance there,
even if he didn't know the reputation as such,
that it is probative in some way.
I don't know that that's the case here,
but certainly nonetheless, again,
ample, I would say, evidence admitted on that point.
And it was essentially undisputed
that the victim had a propensity for violence in this case.
Did that answer your question?
-: If we conclude...
-: As best you could, thank you.
-: If we conclude there's error here on this,
is there so much evidence of his violence
that is put in anyway, that doesn't matter?
Because, I mean, he's threatening the victim repeatedly
with pummeling, and you know...
I can't remember all the things he said,
but it gets in, right?
Steven: Right. -: Yeah.
-: You have reputational violence,
you have his reputation,
and you have his knowledge of past acts.
You have... -: And then the direct threats.
-: And then Adjutant.
-: And certainly, that's sort of why I think this case
is a poor one for expanding Adjutant.
Because I think that theme that the defendant urges,
he was hamstrung on that the defendant...
The victim never backs down
was ran throughout the evidence
about the victim in this case.
Again, all of the Adjutant instances had violent episodes
that were in progress when the police arrived.
The threats to the defendant included.
-: Which might have led to the second degree murder.
-: Sorry? -: Which may have led
to the verdict in this case.
-: Right, right.
-: So in some ways I think that was successful on that front.
But he said, "I'm gonna break your arms,
I'm gonna break your legs.
I'll go easy on your back,
and when you're unconscious,
maybe, I'll stop at that point."
So he's kind of saying, "I won't back down."
So I think on the prejudice prong
that evidence is all in the mix.
-: And how about on the jury instruction failing to...
She's specific that Adjutant applies
to not just first aggressor, but first to use deadly force.
-: I think she was right,
under our case law, to limit it to just deadly force,
because if you're the first aggressor of non-deadly force
and someone escalates,
you can't or you can't respond with deadly force,
non-deadly force.
So the non-deadly force issue
is sort of a irrelevant concern.
I dunno if it's exactly irrelevant,
but not the aim of what the evidence is in this case.
-: Yeah, but it's really not an issue
of a fist fight turned into a knife fight.
-: Right. -: In this case.
-: Right.
At one point I wanted to follow up on that with...
But I seem to have lost it.
So if there are no other questions...