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<v ->SJC-13357 Commonwealth v. Jeffrey A. Souza.</v>

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(papers rustling)

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(papers rustling)

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<v ->Your attorney, Soares, whenever you're ready.</v>

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<v ->Good morning, ma'am...</v>

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Chief Justice and Associate Justices,

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may I please the court, Matthew Soares for Jeffrey Souza.

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I would like to address Issues...

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Sorry, Your Honor,

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I would like to address Issues 1 and 2,

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but of course I'm happy to take any of your questions.

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The first issue is that the trial judge erred

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when she cut off the testimony of the adjutant witnesses,

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as soon as they had testified to the first blow

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of the violent incident.

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And this arrow went to the heart of the defense

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because it prevented the defense

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from presenting the truth about the decedent, Kyle Brady.

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That is that he was a powerful force

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that could not be stopped.

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That was the center of the defense.

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That was the main theme of the defense.

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<v ->You're asking for a change in the law, right?</v>

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<v ->I'm...</v>

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For the second issue,

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I am the...

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Which addresses the jury instructions for self-defense.

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I believe that it could be improved,

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as far as in this particular case,

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the judge did not even follow the model instruction.

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She added another sentence

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and that made it...

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<v ->Can you tell me first what the improvement is</v>

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that you think is appropriate?

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<v ->Sure.
Well, for one thing,</v>

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it's ambiguous when as to...

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<v ->But what would you have it say?</v>

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<v ->I would have it be clarified that when they say,</v>

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for the purpose of determining who attacked whom

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with deadly force or...

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And to first say that there's two types of force.

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There's...

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There's two questions to be cited.

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Who first initiated the conflict

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and who escalated the conflict by first use of deadly force?

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The way it is now, it just says who attacked whom first,

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and then it talks about deadly force.

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It would need to say specifically...

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<v ->I thought...</v>

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I thought what Chambers said was,

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"Don't read Adjutant narrowly."

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Because Judge Quinlan in the Chambers case said,

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"Well, I can't do this because they were involved

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in a non-deadly fight."

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The victim, the defendant, started the non-deadly fight,

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and then there was deadly force in, we said, in Chambers.

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Well, don't read that.

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Instigate.

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Also include, who started it with deadly force,

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who escalated it, essentially.

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<v Matthew>Yes, Your Honor.</v>

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<v ->And then the model instructions in 2018,</v>

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cite Heverly to Chambers as well.

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<v ->Well, the...</v>

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It doesn't.

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<v ->And it cites in Chambers...</v>

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It cites approvingly to the 2013 instructions.

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<v ->In Chambers.</v>
<v Justice Gaziano>Yeah.</v>

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<v ->Well, the...</v>

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It doesn't...

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The change in the instruction doesn't say anything

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about the two types of deadly force.

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<v ->Well, the note to the judge in 2018 says...</v>

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And it uses the Chambers hypothetical.

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It says, "Hey judges,

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in appropriate cases add the following instruction.

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If someone uses force, it says,

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but if you escalate a simple fist fight into a knife fight,

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which Chambers...
<v Matthew>Right.</v>

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<v ->Then you get the instruction as well.</v>

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But it's still relevant to who started it.

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<v ->Right, but the...</v>

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<v ->But you want deadly forced to be used in the instruction.</v>

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<v ->It needs to be clarified</v>

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that the Adjutant evidence can go to both types of...

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<v ->But wouldn't the judge make that threshold finding?</v>

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So basically a judge,

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which Judge Quinlan was misled,

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might misled.

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She did what the law required,

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but she didn't expand Adjutant.

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But it's the question of whether or not this evidence

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is admissible at all.

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So if a judge said it's not admissible,

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it just doesn't come in.

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And then if it comes in,

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then it has to do with who started the fight.

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<v ->She said it was not admissible as to...</v>

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<v ->Right, because it...</v>

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There was a question...

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There wasn't a question of first aggressor,

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as far as the fist fight, not the knife fight.

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<v ->Well, it...</v>

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They didn't really get into that so much.

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She just said, "Well, the question is, 'Who first?'"

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<v ->But you've won that.</v>

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So, Chambers is Chambers.

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And Judge...

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<v Matthew>Right.</v>
<v ->Garsh, in this case,</v>

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said, "Okay, I'm going to give you Adjutant evidence,"

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and allowed in the three incidences in this case.

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Do you think that...

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And there's some language in Chambers that supports you.

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You think that it should be beyond first aggressor?

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It should be, basically, was it reasonable

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to use self-defense?

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Because, give them everything...

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<v Matthew>Yes.</v>
<v ->In this fight.</v>

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<v ->That's the second part of the second issue.</v>

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As that Chambers says,

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it wasn't just admitted for the question of

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who is the first to use deadly force.

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Or who was the first...

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It's for the general overall purpose

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of proving if the defendant is...

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<v Justice Gaziano>I think that language</v>

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supports your argument.

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<v ->Yes, I agree, Your Honor.</v>

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And that there's nothing about that

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in the judge's instructions here.

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<v ->There's a little bit of a lack of clarity on this though.</v>

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And I'd like to see if you could help us out.

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There's two different issues.

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One is the relevance of Adjutant-type evidence,

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as it relates to who is the first aggressor.

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And whether you get the entire incident to be able

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to help the jury determine

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who the first aggressor is based on propensity inferences.

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But then there's the other issue,

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which is does Adjutant apply to all of self-defense,

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or just to who is the first aggressor?

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And those issues are sort of mushed up.

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<v Matthew>Right?</v>
<v ->In your brief</v>

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and in this case.

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So are you saying both?

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Are you saying just one?

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<v ->Well, I'd like to point...</v>

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I would like to differentiate between the first issue

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in my brief, which is fully preserved.

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That the judge in this case,

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without going into other cases at all,

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the judge in this case erred and it was...

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It's preserved issue, so it's harmless error.

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<v ->So that's the first issue.</v>

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<v Matthew>That's the first issue.</v>

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<v ->So there isn't any confusion,</v>

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the first issue that's preserved is that Judge Garsh said,

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in determining who the first aggressor is,

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the only relevance of the prior act of violence

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is who initiated the violence.

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And you are saying, "No, we need the whole incident

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to be able to determine who the..."

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<v ->Well, I'm saying first in that issue,</v>

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and that she limited it in this case.

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And she just said it's limited to the first blow.

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<v Justice Lowy>Right.</v>

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<v ->I don't see any support for that</v>

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in any authority anywhere.

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<v ->Adjutant says give them as much as you need</v>

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to be relevant to who struck the first blow.

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It's a relevance determination,

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as Justice Lowy said,

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and an abusive discretion standard thereafter.

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I think the problem that we had applying Adjutant

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in the trial court

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was sometimes lawyers wanted to submit a conviction

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and they say, "Here you go.

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The person was convicted.

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The victim was convicted of assault and battery."

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And I think a lot of judges said,

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"Well, that doesn't tell the jury anything."

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It's not...

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It doesn't illuminate the...

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<v Matthew>Yes, Your Honor.</v>
<v ->facts.</v>

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So we need, we...

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So Mr. Defense Attorney, Ms. Defense Attorney,

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get yourself a witness, which was the issue.

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So, but you did that.

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<v Matthew>Yes, the trial counsel...</v>

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<v ->The trial counsel did that in appropriate...</v>

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<v Matthew>Yes.</v>
<v ->And they had</v>

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to discuss the evidence.

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And now it's Judge Garsh's decision.

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And I think she said,

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"We don't want to trial within a trial.

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I'm gonna stop it at some point."

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<v ->Well, before she even gets to that, she says that the...</v>

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This was not Adjutant.

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So that's prior conduct

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showing propensity.

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<v ->No, she said the latter part was in Adjutant.</v>

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She allowed the first, she allowed the incidences,

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the bar fights in the...

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<v ->She just allowed the first blow.</v>

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<v Justice Gaziano>Right.</v>
<v ->And that</v>

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is almost nothing of these incidents.

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<v ->But doesn't that show who initiated the fight?</v>

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The first blow?
<v ->What...</v>

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Well, who initiated the fight...

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It shows that he initiated the fight.

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But it doesn't...
That...

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The question is not

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who initiated the fight.

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The whole...

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All the evidence goes to that of the incident,

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because it shows the power of him.

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He's more likely to initiate the fight.

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<v ->That's your second argument, right?</v>

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Because that more goes to that language in Chambers

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as to it's relevant to everything.

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<v ->Well, it's...
It also...</v>

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It's the first argument in that there's nothing that says...

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It says violent incidents, evidence of violent incidents.

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It doesn't say the first blow of the violent incidents.

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<v ->See, that's the...</v>

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That's what I was saying my question is.

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It's mushed all together.

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And you need to differentiate

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between the two principles that are going on here.

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Because as you point out in your brief,

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Judge Garsh, under Atchison, has enormous discretion.

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But if she doesn't know she has the discretion...

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<v Matthew>Right.</v>
<v ->Then she doesn't</v>

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get the protection of the abuse of discretion.

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<v ->This is not an abuse of discretion.</v>

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<v ->So again, there's two issues.</v>

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One is when you're looking at Adjutant evidence

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and who's the first aggressor,

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is the evidence only admissible who struck the first blow

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in the prior act?

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And you're saying no.
<v Matthew>No.</v>

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<v ->And then the other issue is, does Adjutant evidence,</v>

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including all of self-defense.

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Retreat, violence being reasonable, in these circumstances?

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And I think you gotta differentiate between those two.

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<v ->That is a further...</v>

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<v ->Help us understand what we're...</v>

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<v ->I agree that that's a further issue down the line,</v>

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but we don't even need to...

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The judge erred just under Adjutant.

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Forget Chambers that comes in and says...

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It clarifies, in my opinion, Adjutant saying

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it's not just for the purpose of first aggressor.

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But she limits the evidence so much

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that even if Chambers never existed, she...

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00:10:53.220 --> 00:10:55.140
<v ->I think that's a tough argument for you.</v>

257
00:10:55.140 --> 00:10:59.190
I think that the Chambers language helps you, but I think...

258
00:10:59.190 --> 00:11:00.120
<v ->Oh, definitely helps.</v>

259
00:11:00.120 --> 00:11:01.500
It helps very much.

260
00:11:01.500 --> 00:11:05.430
But I think, just under Adjutant, she erred.

261
00:11:05.430 --> 00:11:06.263
I looked...

262
00:11:06.263 --> 00:11:07.680
<v ->You might wanna move to the second issue</v>

263
00:11:07.680 --> 00:11:09.300
because your time's gonna run out.

264
00:11:09.300 --> 00:11:10.470
<v ->Okay.</v>

265
00:11:10.470 --> 00:11:12.660
The jury question.

266
00:11:12.660 --> 00:11:13.493
Yes.

267
00:11:15.116 --> 00:11:18.240
And the one thing,

268
00:11:18.240 --> 00:11:21.360
you put out the Amicus call,

269
00:11:21.360 --> 00:11:23.880
and there this...

270
00:11:23.880 --> 00:11:25.890
In this case, the judge...

271
00:11:25.890 --> 00:11:27.000
It's different than the model.

272
00:11:27.000 --> 00:11:28.680
She added a sentencing.

273
00:11:28.680 --> 00:11:30.780
It's limited to that only.

274
00:11:30.780 --> 00:11:33.090
So that's not even in the model instructions.

275
00:11:33.090 --> 00:11:35.670
She didn't even follow the model instructions there.

276
00:11:35.670 --> 00:11:39.930
So that's a major problem with her instruction.

277
00:11:39.930 --> 00:11:44.790
And then the other issues are, how can the...

278
00:11:44.790 --> 00:11:47.100
How can you tell what first aggressor means,

279
00:11:47.100 --> 00:11:49.830
for the purpose of determining who attacked whom?

280
00:11:49.830 --> 00:11:52.230
Well, does that mean who started the fight,

281
00:11:52.230 --> 00:11:54.150
or first to escalate with deadly force?

282
00:11:54.150 --> 00:11:57.450
<v ->The deadly force case, what's the prejudice?</v>

283
00:11:57.450 --> 00:11:59.370
<v ->Prejudice says that...</v>

284
00:11:59.370 --> 00:12:00.960
Chambers says this,

285
00:12:00.960 --> 00:12:05.960
that there's two issues, and if it's in dispute,

286
00:12:05.970 --> 00:12:09.870
the evidence is allowed for to determine both issues.

287
00:12:09.870 --> 00:12:12.510
It's not decided here who started the fight.

288
00:12:12.510 --> 00:12:14.130
Nothing's decided here.

289
00:12:14.130 --> 00:12:19.130
That's why this was not harmless error at all.

290
00:12:19.918 --> 00:12:23.610
This is case is less clear than Adjutant,

291
00:12:23.610 --> 00:12:24.443
less clear than...

292
00:12:24.443 --> 00:12:28.140
<v ->You think Chambers would allow an entire incident in,</v>

293
00:12:28.140 --> 00:12:31.923
and then the defense attorney would be able to argue,

294
00:12:33.127 --> 00:12:35.070
"This was reasonable self-defense

295
00:12:35.070 --> 00:12:38.130
because look at the pummeling that this person gave

296
00:12:38.130 --> 00:12:40.770
to the cop and to the people in the bar."

297
00:12:40.770 --> 00:12:41.730
Basically.
<v ->Right.</v>

298
00:12:41.730 --> 00:12:44.310
He's a force that can't be stopped at...

299
00:12:44.310 --> 00:12:45.270
And...

300
00:12:45.270 --> 00:12:47.070
<v ->So that equals reasonable self-defense</v>

301
00:12:47.070 --> 00:12:49.470
because of the nature of his violence.

302
00:12:49.470 --> 00:12:50.970
<v Matthew>Right.</v>
<v ->The propensity for his...</v>

303
00:12:50.970 --> 00:12:52.440
Propensity for violence.

304
00:12:52.440 --> 00:12:53.557
<v ->Right.</v>

305
00:12:53.557 --> 00:12:55.230
And the Commonwealth is arguing two different things

306
00:12:55.230 --> 00:12:56.063
in the first issue.

307
00:12:56.063 --> 00:12:58.980
They're saying, "Well, it only matters the first..."

308
00:12:58.980 --> 00:12:59.813
It doesn't matter.

309
00:12:59.813 --> 00:13:02.083
They cut it off at the first blow.

310
00:13:02.083 --> 00:13:02.916
But it...

311
00:13:02.916 --> 00:13:03.837
That doesn't show deadly force.

312
00:13:03.837 --> 00:13:05.737
And the second issue they're saying,

313
00:13:05.737 --> 00:13:08.370
"Well, it doesn't even matter who started the fight.

314
00:13:08.370 --> 00:13:10.200
It's deadly force that's the issue."

315
00:13:10.200 --> 00:13:12.690
Well...
<v ->How hard would it be?</v>

316
00:13:12.690 --> 00:13:15.420
Or easy would it be for a jury to identify

317
00:13:15.420 --> 00:13:20.220
when the precise moment of deadly force begins?

318
00:13:20.220 --> 00:13:21.480
<v ->It's not very easy at all.</v>

319
00:13:21.480 --> 00:13:22.833
That's one reason why.

320
00:13:22.833 --> 00:13:24.150
<v Justice Gaziano>So the...</v>

321
00:13:24.150 --> 00:13:27.081
<v ->As much evidence as possible of the...</v>

322
00:13:27.081 --> 00:13:29.370
Of not possible, but evidence says non-cumulative...

323
00:13:29.370 --> 00:13:31.500
Cumulative evidence that's relevant.

324
00:13:31.500 --> 00:13:33.420
These incidents are completely that.

325
00:13:33.420 --> 00:13:34.980
And the judge determined

326
00:13:34.980 --> 00:13:37.297
before they had a pre-trial hearing, she said,

327
00:13:37.297 --> 00:13:39.180
"Yes, this comes in.

328
00:13:39.180 --> 00:13:40.320
These incidents are fine."

329
00:13:40.320 --> 00:13:42.277
And she just sat there and she just said,

330
00:13:42.277 --> 00:13:44.430
"No, it's only the first blow."

331
00:13:44.430 --> 00:13:46.080
I don't know where she got that.

332
00:13:46.080 --> 00:13:47.520
<v ->Can you, yeah...
Can you clarify this for me?</v>

333
00:13:47.520 --> 00:13:51.210
The error in her instruction is the last line

334
00:13:51.210 --> 00:13:53.220
where she said, "You cannot consider such evidence

335
00:13:53.220 --> 00:13:54.570
for any other purpose whatsoever."

336
00:13:54.570 --> 00:13:55.560
<v ->Yes, she said that.</v>

337
00:13:55.560 --> 00:13:56.907
<v ->That was added and that's the error in your view.</v>

338
00:13:56.907 --> 00:13:58.290
<v ->She said that every time</v>

339
00:13:58.290 --> 00:14:00.807
for all the three Adjutant witnesses and the two Morales.

340
00:14:00.807 --> 00:14:02.707
<v ->But that's your allegation of error.</v>

341
00:14:03.581 --> 00:14:05.280
<v ->That's part of it.</v>

342
00:14:05.280 --> 00:14:06.113
That's...

343
00:14:06.113 --> 00:14:07.380
<v ->The instructional error.</v>
<v ->Yeah, the...</v>

344
00:14:07.380 --> 00:14:09.450
That's...
She added to that.

345
00:14:09.450 --> 00:14:11.700
That's her own error, added to...

346
00:14:11.700 --> 00:14:14.310
And I think the instructions...

347
00:14:14.310 --> 00:14:16.950
<v ->But the instructions, you have to concede</v>

348
00:14:16.950 --> 00:14:18.420
were written with Chambers,

349
00:14:18.420 --> 00:14:20.160
and all that Chambers language in mind,

350
00:14:20.160 --> 00:14:21.543
because it cites Chambers.

351
00:14:22.440 --> 00:14:24.990
<v ->It cites Chambers, but it doesn't say</v>

352
00:14:24.990 --> 00:14:26.730
what Chambers says about...

353
00:14:26.730 --> 00:14:30.270
The evidence is admitted for the overall purpose

354
00:14:30.270 --> 00:14:31.470
of determining self-defense.

355
00:14:31.470 --> 00:14:33.180
It segregates it...
<v ->No, I...</v>

356
00:14:33.180 --> 00:14:34.529
<v ->Within the fifth proposition.</v>

357
00:14:34.529 --> 00:14:36.810
<v ->Agreed, agreed, and it might be silenced by...</v>

358
00:14:36.810 --> 00:14:38.550
You may be...

359
00:14:38.550 --> 00:14:40.923
You might be doomed by the failure to say that.

360
00:14:42.180 --> 00:14:44.610
But, yeah, it does not say that.

361
00:14:44.610 --> 00:14:45.650
<v ->Right.
It's...</v>

362
00:14:46.740 --> 00:14:50.000
And it also is unclear, it doesn't have...

363
00:14:52.860 --> 00:14:55.590
A dual definition of at-first aggressor, do...

364
00:14:55.590 --> 00:14:57.870
<v ->You recognize this would be a great expansion</v>

365
00:14:57.870 --> 00:14:58.983
of Adjutant?

366
00:14:59.910 --> 00:15:00.810
<v ->I don't...</v>

367
00:15:00.810 --> 00:15:02.670
I don't think that it would be.

368
00:15:02.670 --> 00:15:03.650
I think that...

369
00:15:05.370 --> 00:15:07.590
Under the first issue, not at all.

370
00:15:07.590 --> 00:15:08.760
She just completely got that wrong.

371
00:15:08.760 --> 00:15:10.110
But if you're talking about the second issue,

372
00:15:10.110 --> 00:15:11.900
if you were to revise...

373
00:15:13.440 --> 00:15:16.650
Chambers does say that that's not an Adjutant.

374
00:15:16.650 --> 00:15:17.483
Yes.

375
00:15:17.483 --> 00:15:18.840
So as...
As Chambers...

376
00:15:18.840 --> 00:15:21.270
<v ->Yeah, we have to take those two lines from Chambers</v>

377
00:15:21.270 --> 00:15:22.380
and say...
<v ->Right.</v>

378
00:15:22.380 --> 00:15:23.213
<v ->What we said,</v>

379
00:15:23.213 --> 00:15:25.590
even though Chambers has an Adjutant sandwich.

380
00:15:25.590 --> 00:15:27.330
It says first aggressor, first aggressor,

381
00:15:27.330 --> 00:15:28.473
and then it has that language.

382
00:15:28.473 --> 00:15:29.307
<v Matthew>Right.</v>
<v ->In the front.</v>

383
00:15:29.307 --> 00:15:33.930
<v ->And I agree that language in Chambers is not an Adjutant</v>

384
00:15:33.930 --> 00:15:37.350
and it's ambiguous, as we point out in the brief.

385
00:15:37.350 --> 00:15:38.183
So...

386
00:15:38.183 --> 00:15:39.780
<v ->Can I ask the same question as Justice Budd,</v>

387
00:15:39.780 --> 00:15:41.220
Chief Justice Budd started with.

388
00:15:41.220 --> 00:15:45.150
Which is are you expanding the whole concept to this?

389
00:15:45.150 --> 00:15:49.820
Once he starts a fight, he's gonna escalate it no matter...

390
00:15:50.850 --> 00:15:52.470
To quote...

391
00:15:52.470 --> 00:15:53.970
It seems like you're basically saying

392
00:15:53.970 --> 00:15:56.280
that he's going to use deadly force no matter what

393
00:15:56.280 --> 00:15:58.950
because he just will keep fighting.

394
00:15:58.950 --> 00:16:00.150
Is that...

395
00:16:00.150 --> 00:16:01.143
That's different, isn't it?

396
00:16:01.143 --> 00:16:04.020
That that's a whole other concept.

397
00:16:04.020 --> 00:16:06.930
Basically this guy's so violent that he's...

398
00:16:06.930 --> 00:16:10.290
Unless you kill him, he's going to use deadly force.

399
00:16:10.290 --> 00:16:11.123
Is that,

400
00:16:12.180 --> 00:16:13.059
sort of, what you're saying?
<v ->Well, in this case,</v>

401
00:16:13.059 --> 00:16:13.892
it's for the juror.
It's a jury question

402
00:16:13.892 --> 00:16:14.725
to decide.

403
00:16:14.725 --> 00:16:16.200
<v ->But that's not Adjutant is it?</v>

404
00:16:16.200 --> 00:16:17.033
That's an...

405
00:16:17.033 --> 00:16:19.230
That's a new concept, right?

406
00:16:19.230 --> 00:16:20.880
<v ->I don't believe it's a new concept.</v>

407
00:16:20.880 --> 00:16:22.410
It's...
Adjutant says

408
00:16:22.410 --> 00:16:24.000
that it's propensity evidence.

409
00:16:24.000 --> 00:16:28.290
Propensity for violence and to cut off it at the first blow,

410
00:16:28.290 --> 00:16:30.330
he started a fight with somebody.

411
00:16:30.330 --> 00:16:31.680
The important thing is they...

412
00:16:31.680 --> 00:16:32.850
Lots of people start fights.

413
00:16:32.850 --> 00:16:35.850
This guy finishes them and wins them.

414
00:16:35.850 --> 00:16:36.980
And he's, honestly...

415
00:16:38.070 --> 00:16:38.940
And he's reckless.

416
00:16:38.940 --> 00:16:43.890
And the defendants said that

417
00:16:43.890 --> 00:16:46.743
he ignored a warning shot and just ran at them.

418
00:16:48.120 --> 00:16:50.640
And all they get is that this guy started a couple fights.

419
00:16:50.640 --> 00:16:51.473
They don't get that he had

420
00:16:51.473 --> 00:16:54.750
to have multiple officers bring him to the station.

421
00:16:54.750 --> 00:16:57.030
He was tased six times, didn't go down.

422
00:16:57.030 --> 00:16:58.320
That's the point that...

423
00:16:58.320 --> 00:17:00.600
That was not presented to the jury at all.

424
00:17:00.600 --> 00:17:01.620
Sorry, I'm over time.

425
00:17:01.620 --> 00:17:03.033
If there's anything else?

426
00:17:04.680 --> 00:17:05.513
<v ->Okay, thank you.</v>

427
00:17:05.513 --> 00:17:06.533
<v ->Thank you very much, Your Honors.</v>

428
00:17:07.980 --> 00:17:09.330
<v ->Okay, Attorney Nathanson.</v>

429
00:17:12.390 --> 00:17:13.830
I'm sorry, Nadeau.

430
00:17:13.830 --> 00:17:15.173
I apologize.

431
00:17:15.173 --> 00:17:16.380
(Chief Justice Budd laughs)

432
00:17:16.380 --> 00:17:17.640
<v ->No problem.</v>

433
00:17:17.640 --> 00:17:18.990
Thank you, Madame Chief Justice.

434
00:17:18.990 --> 00:17:20.190
Good morning.
May I please the court?

435
00:17:20.190 --> 00:17:23.310
I'm Steven Nadeau, on behalf of the Commonwealth.

436
00:17:23.310 --> 00:17:24.660
Our position, of course,

437
00:17:24.660 --> 00:17:27.470
is that the trial judge appropriately applied Adjutant

438
00:17:27.470 --> 00:17:29.190
in Chambers when she admitted,

439
00:17:29.190 --> 00:17:33.030
and then curtailed, some of the prior violent acts initiated

440
00:17:33.030 --> 00:17:35.400
by the victim in this case.

441
00:17:35.400 --> 00:17:37.320
And when she instructed the jury

442
00:17:37.320 --> 00:17:39.600
on how they were to use the evidence.

443
00:17:39.600 --> 00:17:44.100
<v ->Mr. Nadeau, how do you get around the Chambers language?</v>

444
00:17:44.100 --> 00:17:47.100
On page 529,

445
00:17:47.100 --> 00:17:49.650
it says that it's not limited to this purpose.

446
00:17:49.650 --> 00:17:51.360
It was admitted for a broader purpose

447
00:17:51.360 --> 00:17:52.950
in giving the jury relevant information

448
00:17:52.950 --> 00:17:55.290
regarding the victim's prior act of violence

449
00:17:55.290 --> 00:17:57.570
that may help them evaluate conflicting evidence

450
00:17:57.570 --> 00:17:58.860
as to the truth regarding the events

451
00:17:58.860 --> 00:18:01.560
that led to the victim's death, and ultimately determine

452
00:18:01.560 --> 00:18:04.050
whether or not the prosecution met its burden of proof.

453
00:18:04.050 --> 00:18:07.290
So it talks about Adjutant in Chambers,

454
00:18:07.290 --> 00:18:09.720
and talks about the initiation of violence

455
00:18:09.720 --> 00:18:12.030
and says violence is gonna be

456
00:18:12.030 --> 00:18:14.670
who initiated the knife fight too, not the fist fight.

457
00:18:14.670 --> 00:18:17.220
But then it has that line I just read

458
00:18:17.220 --> 00:18:19.470
about the broader purpose.

459
00:18:19.470 --> 00:18:23.400
And I think that supports what counsel was just arguing

460
00:18:23.400 --> 00:18:25.680
that, well, maybe we should take a look at this.

461
00:18:25.680 --> 00:18:28.050
Because we said in Chambers it's broader purpose,

462
00:18:28.050 --> 00:18:29.313
not just first aggressor.

463
00:18:30.240 --> 00:18:32.400
<v Steven>Right.</v>
<v ->What's your response?</v>

464
00:18:32.400 --> 00:18:33.570
<v ->So...</v>

465
00:18:33.570 --> 00:18:34.884
<v ->You better guys drink a water.</v>

466
00:18:34.884 --> 00:18:36.750
(laughter)

467
00:18:36.750 --> 00:18:37.950
<v ->I need it.
Thank you.</v>

468
00:18:39.210 --> 00:18:42.270
So my response is,

469
00:18:42.270 --> 00:18:43.230
first, unfortunately,

470
00:18:43.230 --> 00:18:46.260
I kind of can't make, necessarily, heads or tails

471
00:18:46.260 --> 00:18:49.590
of that paragraph given that it's sort of predicated

472
00:18:49.590 --> 00:18:52.230
on a mistake, I guess,

473
00:18:52.230 --> 00:18:56.223
about what was introduced in Adjutant and Chambers.

474
00:18:57.810 --> 00:19:00.900
And certainly it's, I think, within this court's power

475
00:19:00.900 --> 00:19:04.710
to have expanded Adjutant as expansively

476
00:19:04.710 --> 00:19:06.960
as that language would do.

477
00:19:06.960 --> 00:19:08.190
But I don't think that's

478
00:19:08.190 --> 00:19:09.690
what the court intended to do there.

479
00:19:09.690 --> 00:19:11.130
I think, as I know in the brief,

480
00:19:11.130 --> 00:19:12.750
that it was just a reference.

481
00:19:12.750 --> 00:19:14.940
That this is not only

482
00:19:14.940 --> 00:19:17.010
why some of this evidence might come in.

483
00:19:17.010 --> 00:19:18.393
There may be other issues.

484
00:19:19.560 --> 00:19:20.820
And also as kind of a reminder,

485
00:19:20.820 --> 00:19:23.910
there's some other language in Chambers just, you know,

486
00:19:23.910 --> 00:19:27.000
where Chambers was kind of novel because it dealt

487
00:19:27.000 --> 00:19:28.950
with the first aggressor issue.

488
00:19:28.950 --> 00:19:32.268
It was sort of instructing trial judges as you mentioned.

489
00:19:32.268 --> 00:19:34.980
Don't read these things hyper critically

490
00:19:34.980 --> 00:19:36.093
or hyper technically.

491
00:19:37.200 --> 00:19:39.240
Give some flexibility for the defendant who is accused

492
00:19:39.240 --> 00:19:40.680
of often very serious crimes,

493
00:19:40.680 --> 00:19:43.890
who may need to, you know,

494
00:19:43.890 --> 00:19:46.893
creatively introduce evidence as part of his defense.

495
00:19:48.690 --> 00:19:52.590
I would also refer to Commonwealth vs. Camacho,

496
00:19:52.590 --> 00:19:57.590
which is cited in the defendant's brief at 472 Mass 587.

497
00:19:57.870 --> 00:20:00.210
And that comes after Chambers,

498
00:20:00.210 --> 00:20:03.300
and as an example of the court, kind of,

499
00:20:03.300 --> 00:20:05.190
drawing a very clear boundary

500
00:20:05.190 --> 00:20:08.943
around what the relevance of this kind of evidence is.

501
00:20:09.780 --> 00:20:13.023
And I'll just read briefly from a paragraph there.

502
00:20:14.317 --> 00:20:16.650
"Given this largely undisputed evidence,

503
00:20:16.650 --> 00:20:18.420
the primary question for the jury was not

504
00:20:18.420 --> 00:20:21.690
who began the altercation or escalated to deadly force,

505
00:20:21.690 --> 00:20:24.000
but rather whether the defendant was legally entitled

506
00:20:24.000 --> 00:20:27.120
to use the force he did in defense of another.

507
00:20:27.120 --> 00:20:29.130
There may be a question as to which act,

508
00:20:29.130 --> 00:20:31.050
the bottle throwing or the gun firing,

509
00:20:31.050 --> 00:20:33.660
escalated the fight into a deadly confrontation.

510
00:20:33.660 --> 00:20:35.160
But that is a wholly distinct issue

511
00:20:35.160 --> 00:20:39.057
from the individual who initiated which act."

512
00:20:39.057 --> 00:20:40.710
<v ->So, and we had to Connick as well.</v>

513
00:20:40.710 --> 00:20:44.910
So we've never returned to this Chambers language.

514
00:20:44.910 --> 00:20:46.440
Is that the point?

515
00:20:46.440 --> 00:20:47.273
<v Steven>Certainly not.</v>

516
00:20:47.273 --> 00:20:48.106
<v ->As broad Chambers language.</v>

517
00:20:48.106 --> 00:20:49.950
<v ->As a basis of a holding or anything like that,</v>

518
00:20:49.950 --> 00:20:51.417
or was expanding beyond.

519
00:20:51.417 --> 00:20:52.917
<v ->But Counsel, if you could...</v>

520
00:20:53.970 --> 00:20:56.670
I still don't know if you've actually gotten

521
00:20:56.670 --> 00:20:59.580
to Justice Gaziano's point.

522
00:20:59.580 --> 00:21:01.860
I'd like to follow up if I could about Chambers.

523
00:21:01.860 --> 00:21:03.120
<v Steven>Sure.</v>

524
00:21:03.120 --> 00:21:04.620
<v ->So one of the concerns</v>

525
00:21:04.620 --> 00:21:07.170
that I think is being brought up here,

526
00:21:07.170 --> 00:21:09.840
is this larger picture.

527
00:21:09.840 --> 00:21:12.750
And you know, you just mentioned the language in Camacho

528
00:21:12.750 --> 00:21:15.390
about whether or not the person was legally entitled

529
00:21:15.390 --> 00:21:16.470
to do what they did.

530
00:21:16.470 --> 00:21:20.767
And so that brings up the reasonableness of what they did.

531
00:21:20.767 --> 00:21:21.600
Right?
<v Steven>Right.</v>

532
00:21:21.600 --> 00:21:24.780
<v ->So if you don't have the larger picture...</v>

533
00:21:24.780 --> 00:21:27.780
And I'm gonna separate this out for you for a second.

534
00:21:27.780 --> 00:21:29.490
Not that all of these things

535
00:21:29.490 --> 00:21:31.290
would come the more fuller picture

536
00:21:31.290 --> 00:21:34.950
of what the person has done in the past,

537
00:21:34.950 --> 00:21:38.610
to give to the jury, or perhaps have the jury use it,

538
00:21:38.610 --> 00:21:41.550
to engage in propensity reasoning.

539
00:21:41.550 --> 00:21:46.550
It's that the defendant engaged in propensity reasoning

540
00:21:48.240 --> 00:21:51.210
because it was the defendant's reasonableness

541
00:21:51.210 --> 00:21:54.870
of their actions, which is informed by,

542
00:21:54.870 --> 00:21:58.890
what I thought, this person was capable of.

543
00:21:58.890 --> 00:22:03.890
And that is a function of telling them what he's done before

544
00:22:04.410 --> 00:22:08.100
to gauge the reasonableness of what the defendant did,

545
00:22:08.100 --> 00:22:09.750
how they reacted.

546
00:22:09.750 --> 00:22:12.540
So when you look at the language in Chambers,

547
00:22:12.540 --> 00:22:16.470
wouldn't that be relevant to the reasonableness

548
00:22:16.470 --> 00:22:20.733
of the fear when it comes to what they then did?

549
00:22:21.840 --> 00:22:24.630
<v ->Well, these kind of acts</v>

550
00:22:24.630 --> 00:22:26.250
are admissible when there's evidence

551
00:22:26.250 --> 00:22:27.810
that the defendant knew of them.

552
00:22:27.810 --> 00:22:28.643
<v Justice Georges>Sure.</v>

553
00:22:28.643 --> 00:22:32.220
<v ->If he doesn't, it may not have any effect</v>

554
00:22:32.220 --> 00:22:35.340
on how he would respond if he doesn't know about those.

555
00:22:35.340 --> 00:22:37.830
<v ->This is just as Justice Cowan said in Adjutant.</v>

556
00:22:37.830 --> 00:22:39.570
This is pure propensity,

557
00:22:39.570 --> 00:22:42.750
because Fontes and Pidge, where the defendant knows.

558
00:22:42.750 --> 00:22:43.770
<v Steven>Right.</v>
<v ->Right.</v>

559
00:22:43.770 --> 00:22:45.030
<v Steven>So, yes.</v>

560
00:22:45.030 --> 00:22:47.010
But this is just whether or not we're looking

561
00:22:47.010 --> 00:22:47.850
at propensities.

562
00:22:47.850 --> 00:22:50.820
And I think the point that we're making, and Justice Georges

563
00:22:50.820 --> 00:22:51.653
is making as well,

564
00:22:51.653 --> 00:22:54.780
is that isn't it basically more fair

565
00:22:54.780 --> 00:22:56.760
that if we're gonna go down this road

566
00:22:56.760 --> 00:22:59.040
that the jury be informed of the totality

567
00:22:59.040 --> 00:23:01.623
of what the defendant or the victim is capable of?

568
00:23:02.970 --> 00:23:06.120
<v ->Yes, and I think in the circumstances of this case,</v>

569
00:23:06.120 --> 00:23:09.900
there was ample evidence of the victim's propensity.

570
00:23:09.900 --> 00:23:14.520
<v ->But you have the judge's instruction,</v>

571
00:23:14.520 --> 00:23:17.250
which went beyond our model instructions

572
00:23:17.250 --> 00:23:20.130
and said, "Don't use it for any other purpose."

573
00:23:20.130 --> 00:23:22.830
<v ->Yes, and I think that was consistent with Camacho.</v>

574
00:23:22.830 --> 00:23:24.000
I sort of imagined

575
00:23:24.000 --> 00:23:26.403
that's where Judge Garsh got that line from.

576
00:23:27.600 --> 00:23:29.880
But again, in the circumstances of this case

577
00:23:29.880 --> 00:23:33.330
where the violent acts, the defendant...

578
00:23:33.330 --> 00:23:35.100
Or the victim directly threatened

579
00:23:35.100 --> 00:23:38.853
to visit upon the defendant in this case.

580
00:23:40.917 --> 00:23:42.660
The defendant testified to reputation.

581
00:23:42.660 --> 00:23:44.230
It was essentially undisputed

582
00:23:45.180 --> 00:23:47.310
that the victim was a violent guy.

583
00:23:47.310 --> 00:23:49.120
<v ->That's the prejudice issue.</v>

584
00:23:49.120 --> 00:23:53.520
We're still trying to get our arms around the first issue,

585
00:23:53.520 --> 00:23:56.820
the preserved issue, which is whether or not,

586
00:23:56.820 --> 00:24:00.840
on the issue of who is the first aggressor,

587
00:24:00.840 --> 00:24:05.840
the jury can consider would and who struck the first blow,

588
00:24:06.390 --> 00:24:10.740
but can consider the entire incident

589
00:24:10.740 --> 00:24:13.217
in order to help determine who was the first aggressor.

590
00:24:13.217 --> 00:24:14.973
<v Steve>Right.</v>
<v ->And that issue,</v>

591
00:24:16.380 --> 00:24:19.293
remind me if I'm wrong that issue is preserved.

592
00:24:21.300 --> 00:24:22.770
<v Steven>Yes.</v>

593
00:24:22.770 --> 00:24:24.000
<v ->And it's not...</v>

594
00:24:24.000 --> 00:24:27.390
And we're not analyzing it as to whether Judge Garsh,

595
00:24:27.390 --> 00:24:30.169
in her wide discretion under Adjutant...

596
00:24:30.169 --> 00:24:31.350
Because there is a wide discretion

597
00:24:31.350 --> 00:24:33.450
for trial judge under Adjutant.

598
00:24:33.450 --> 00:24:35.850
We're not determining whether Judge Garsh looked

599
00:24:35.850 --> 00:24:39.000
at this situation and said, "No, these fights,

600
00:24:39.000 --> 00:24:41.310
I'm only letting in the first blows."

601
00:24:41.310 --> 00:24:42.210
It...
She thought

602
00:24:42.210 --> 00:24:45.300
that's all she could let in.

603
00:24:45.300 --> 00:24:46.830
So she hasn't...

604
00:24:46.830 --> 00:24:48.530
We don't look at whether or not

605
00:24:48.530 --> 00:24:51.383
it was an appropriate exercise of discretion.

606
00:24:51.383 --> 00:24:52.620
<v ->Well, I think actually,</v>

607
00:24:52.620 --> 00:24:57.600
Judge Garsh was not using a hyper-technical application

608
00:24:57.600 --> 00:24:58.433
of Adjutant.

609
00:24:58.433 --> 00:25:01.290
I think this case and her approach to it

610
00:25:01.290 --> 00:25:04.300
kind of shows the flexibility of Adjutant and Chambers

611
00:25:05.430 --> 00:25:09.120
because in all three of the acts that were introduced,

612
00:25:09.120 --> 00:25:12.030
they were violent acts already in progress

613
00:25:12.030 --> 00:25:13.800
when the witnesses, all police officers,

614
00:25:13.800 --> 00:25:15.535
showed up on the scene.

615
00:25:15.535 --> 00:25:16.794
<v ->You know how I looked at it.</v>

616
00:25:16.794 --> 00:25:17.627
I mean...

617
00:25:17.627 --> 00:25:19.533
And I'm happy to be correct about how it came in.

618
00:25:19.533 --> 00:25:22.087
I thought what she was saying,

619
00:25:22.087 --> 00:25:24.270
"No, you're not getting into these events

620
00:25:24.270 --> 00:25:26.056
beyond the first blow."

621
00:25:26.056 --> 00:25:27.780
<v Steven>Right.</v>

622
00:25:27.780 --> 00:25:29.400
And, well, certainly in some of them,

623
00:25:29.400 --> 00:25:31.020
the evidence went beyond the first blow.

624
00:25:31.020 --> 00:25:31.853
So she...

625
00:25:31.853 --> 00:25:35.130
It's not like she struck the evidence.

626
00:25:35.130 --> 00:25:36.750
For instance, at the Al Mac's Diner,

627
00:25:36.750 --> 00:25:39.720
where there's a fight and then it continues

628
00:25:39.720 --> 00:25:42.543
as they fall to the ground and it goes on from there.

629
00:25:46.080 --> 00:25:51.000
So, no, I don't think Adjutant requires exclusion

630
00:25:51.000 --> 00:25:52.350
of evidence after the first blow.

631
00:25:52.350 --> 00:25:53.790
And I don't think that's what Judge Garsh...

632
00:25:53.790 --> 00:25:56.154
<v Justice Lowy>You don't think that's what she did?</v>

633
00:25:56.154 --> 00:25:59.580
<v ->No, and I think her express concern was</v>

634
00:25:59.580 --> 00:26:01.773
about the creating trials within trials.

635
00:26:02.790 --> 00:26:04.446
<v Justice Gaziano>Which goes to her discretion, really.</v>

636
00:26:04.446 --> 00:26:05.730
<v ->Right, right.</v>

637
00:26:05.730 --> 00:26:07.320
And I think her...

638
00:26:07.320 --> 00:26:09.690
Say that's her saying that's not Adjutant

639
00:26:09.690 --> 00:26:11.040
was kind of just a shorthand way

640
00:26:11.040 --> 00:26:14.280
of saying we're going beyond the relevance here

641
00:26:14.280 --> 00:26:15.720
and getting into, again,

642
00:26:15.720 --> 00:26:18.693
trials within trials, cumulative and prejudicial evidence.

643
00:26:20.940 --> 00:26:24.600
<v ->And how does that square with her subsequent instruction</v>

644
00:26:24.600 --> 00:26:28.890
as to how the jury could use the evidence

645
00:26:28.890 --> 00:26:30.603
that came in from the officers?

646
00:26:32.154 --> 00:26:35.130
<v ->I think that was an appropriate instruction based on,</v>

647
00:26:35.130 --> 00:26:36.240
again, Camacho,

648
00:26:36.240 --> 00:26:39.960
where it was a very clear boundary drawn around

649
00:26:39.960 --> 00:26:42.330
what the evidence can be used for

650
00:26:42.330 --> 00:26:43.880
and when it cannot be admitted.

651
00:26:45.210 --> 00:26:47.100
<v ->So isn't that contradictory, though?</v>

652
00:26:47.100 --> 00:26:47.933
I mean, on the one hand,

653
00:26:47.933 --> 00:26:49.410
you're saying she's not really limiting

654
00:26:49.410 --> 00:26:52.110
to the first blow and what it can be used for,

655
00:26:52.110 --> 00:26:54.710
but in the instruction that's exactly what she does.

656
00:26:56.940 --> 00:26:58.770
<v ->Well, I think those are two different things.</v>

657
00:26:58.770 --> 00:27:01.380
What evidence she allowed in as relevant

658
00:27:01.380 --> 00:27:02.910
to the first aggressor issue

659
00:27:02.910 --> 00:27:05.640
that may go beyond what was the first blow.

660
00:27:05.640 --> 00:27:07.190
<v ->That the jury can't consider?</v>

661
00:27:08.490 --> 00:27:09.840
<v ->They...
I think they can consider</v>

662
00:27:09.840 --> 00:27:13.590
all of that evidence as to determining, in this case,

663
00:27:13.590 --> 00:27:15.630
who was the first aggressor, the first to use deadly force.

664
00:27:15.630 --> 00:27:18.863
I think it's maybe splitting hairs, but I think those are...

665
00:27:20.220 --> 00:27:21.810
<v ->It's contradictory.</v>

666
00:27:21.810 --> 00:27:24.180
I mean, it's like limiting instruction.

667
00:27:24.180 --> 00:27:26.190
If she says you can only use it for this,

668
00:27:26.190 --> 00:27:29.310
and for any other purpose it's not admissible.

669
00:27:29.310 --> 00:27:30.597
That cabins how you can use it.

670
00:27:30.597 --> 00:27:32.460
And so does the instruction.

671
00:27:32.460 --> 00:27:35.280
So that's the point, I guess.

672
00:27:35.280 --> 00:27:40.280
Is why is that not relevant in the jury's consideration

673
00:27:40.830 --> 00:27:43.560
of who is the first aggressor?

674
00:27:43.560 --> 00:27:46.230
To know about the fuller picture,

675
00:27:46.230 --> 00:27:49.920
about what the victim in this case did,

676
00:27:49.920 --> 00:27:51.960
or any case, does.

677
00:27:51.960 --> 00:27:54.000
And certainly I know that there are federal cases

678
00:27:54.000 --> 00:27:55.350
that say that you can...

679
00:27:55.350 --> 00:27:57.690
That this fuller picture is admissible,

680
00:27:57.690 --> 00:27:59.250
on the issue of how reasonable

681
00:27:59.250 --> 00:28:02.700
is the reasonable reaction to...

682
00:28:02.700 --> 00:28:04.110
In this case.

683
00:28:04.110 --> 00:28:05.256
<v ->Right.</v>

684
00:28:05.256 --> 00:28:07.200
And that's of course when the defendant knows

685
00:28:07.200 --> 00:28:08.040
about the incident.

686
00:28:08.040 --> 00:28:09.360
<v ->No, it's not.</v>

687
00:28:09.360 --> 00:28:13.470
There are federal cases that talk about when they don't.

688
00:28:13.470 --> 00:28:16.050
Particularly, when they don't know it's true.

689
00:28:16.050 --> 00:28:16.883
That it's just...

690
00:28:16.883 --> 00:28:17.716
This is what I've been...

691
00:28:17.716 --> 00:28:19.410
This is what I know of.

692
00:28:19.410 --> 00:28:22.200
So it's kind of almost tantamount to the same thing.

693
00:28:22.200 --> 00:28:23.910
You don't really know that it happened,

694
00:28:23.910 --> 00:28:27.090
but yet it's still important that there's an effect on you

695
00:28:27.090 --> 00:28:28.320
when that...

696
00:28:28.320 --> 00:28:32.303
That you can divine about how you're gonna respond.

697
00:28:32.303 --> 00:28:36.213
Why wouldn't that be an appropriate place for us to go?

698
00:28:38.370 --> 00:28:39.203
<v ->It might be.</v>

699
00:28:39.203 --> 00:28:41.940
I think, again, when the defendant doesn't know

700
00:28:41.940 --> 00:28:43.560
about these prior acts,

701
00:28:43.560 --> 00:28:47.460
there may be circumstances unique to those particular facts.

702
00:28:47.460 --> 00:28:49.920
That yes, there's a relevance there,

703
00:28:49.920 --> 00:28:52.773
even if he didn't know the reputation as such,

704
00:28:53.700 --> 00:28:56.370
that it is probative in some way.

705
00:28:56.370 --> 00:28:58.800
I don't know that that's the case here,

706
00:28:58.800 --> 00:29:00.750
but certainly nonetheless, again,

707
00:29:00.750 --> 00:29:04.590
ample, I would say, evidence admitted on that point.

708
00:29:04.590 --> 00:29:05.940
And it was essentially undisputed

709
00:29:05.940 --> 00:29:10.053
that the victim had a propensity for violence in this case.

710
00:29:14.610 --> 00:29:16.050
Did that answer your question?

711
00:29:16.050 --> 00:29:17.580
<v ->If we conclude...</v>

712
00:29:17.580 --> 00:29:19.740
<v ->As best you could, thank you.</v>

713
00:29:19.740 --> 00:29:22.980
<v ->If we conclude there's error here on this,</v>

714
00:29:22.980 --> 00:29:25.230
is there so much evidence of his violence

715
00:29:25.230 --> 00:29:28.770
that is put in anyway, that doesn't matter?

716
00:29:28.770 --> 00:29:33.770
Because, I mean, he's threatening the victim repeatedly

717
00:29:34.560 --> 00:29:36.750
with pummeling, and you know...

718
00:29:36.750 --> 00:29:38.850
I can't remember all the things he said,

719
00:29:38.850 --> 00:29:42.060
but it gets in, right?

720
00:29:42.060 --> 00:29:43.770
<v Steven>Right.</v>
<v ->Yeah.</v>

721
00:29:43.770 --> 00:29:45.150
<v ->You have reputational violence,</v>

722
00:29:45.150 --> 00:29:47.130
you have his reputation,

723
00:29:47.130 --> 00:29:49.680
and you have his knowledge of past acts.

724
00:29:49.680 --> 00:29:51.510
You have...
<v ->And then the direct threats.</v>

725
00:29:51.510 --> 00:29:52.800
<v ->And then Adjutant.</v>

726
00:29:52.800 --> 00:29:57.540
<v ->And certainly, that's sort of why I think this case</v>

727
00:29:57.540 --> 00:30:00.180
is a poor one for expanding Adjutant.

728
00:30:00.180 --> 00:30:04.743
Because I think that theme that the defendant urges,

729
00:30:05.753 --> 00:30:08.280
he was hamstrung on that the defendant...

730
00:30:08.280 --> 00:30:10.290
The victim never backs down

731
00:30:10.290 --> 00:30:12.330
was ran throughout the evidence

732
00:30:12.330 --> 00:30:13.830
about the victim in this case.

733
00:30:15.540 --> 00:30:20.540
Again, all of the Adjutant instances had violent episodes

734
00:30:21.360 --> 00:30:23.660
that were in progress when the police arrived.

735
00:30:24.780 --> 00:30:28.170
The threats to the defendant included.

736
00:30:28.170 --> 00:30:30.600
<v ->Which might have led to the second degree murder.</v>

737
00:30:30.600 --> 00:30:31.770
<v ->Sorry?</v>
<v ->Which may have led</v>

738
00:30:31.770 --> 00:30:33.420
to the verdict in this case.

739
00:30:33.420 --> 00:30:34.500
<v ->Right, right.</v>

740
00:30:34.500 --> 00:30:38.340
<v ->So in some ways I think that was successful on that front.</v>

741
00:30:38.340 --> 00:30:40.590
But he said, "I'm gonna break your arms,

742
00:30:40.590 --> 00:30:41.423
I'm gonna break your legs.

743
00:30:41.423 --> 00:30:43.500
I'll go easy on your back,

744
00:30:43.500 --> 00:30:44.880
and when you're unconscious,

745
00:30:44.880 --> 00:30:46.770
maybe, I'll stop at that point."

746
00:30:46.770 --> 00:30:50.430
So he's kind of saying, "I won't back down."

747
00:30:50.430 --> 00:30:53.070
So I think on the prejudice prong

748
00:30:53.070 --> 00:30:54.840
that evidence is all in the mix.

749
00:30:54.840 --> 00:30:58.969
<v ->And how about on the jury instruction failing to...</v>

750
00:30:58.969 --> 00:31:01.781
She's specific that Adjutant applies

751
00:31:01.781 --> 00:31:05.883
to not just first aggressor, but first to use deadly force.

752
00:31:07.770 --> 00:31:11.580
<v ->I think she was right,</v>

753
00:31:11.580 --> 00:31:15.967
under our case law, to limit it to just deadly force,

754
00:31:16.950 --> 00:31:20.430
because if you're the first aggressor of non-deadly force

755
00:31:20.430 --> 00:31:21.840
and someone escalates,

756
00:31:21.840 --> 00:31:24.690
you can't or you can't respond with deadly force,

757
00:31:24.690 --> 00:31:25.560
non-deadly force.

758
00:31:25.560 --> 00:31:28.440
So the non-deadly force issue

759
00:31:28.440 --> 00:31:32.730
is sort of a irrelevant concern.

760
00:31:32.730 --> 00:31:33.930
I dunno if it's exactly irrelevant,

761
00:31:33.930 --> 00:31:38.460
but not the aim of what the evidence is in this case.

762
00:31:38.460 --> 00:31:40.110
<v ->Yeah, but it's really not an issue</v>

763
00:31:40.110 --> 00:31:42.060
of a fist fight turned into a knife fight.

764
00:31:42.060 --> 00:31:43.110
<v ->Right.</v>
<v ->In this case.</v>

765
00:31:43.110 --> 00:31:43.943
<v ->Right.</v>

766
00:31:48.240 --> 00:31:51.030
At one point I wanted to follow up on that with...

767
00:31:51.030 --> 00:31:52.530
But I seem to have lost it.

768
00:31:52.530 --> 00:31:54.380
So if there are no other questions...