-: Number SJC-13443.
Commonwealth versus Dara Poum.
-: Okay, Attorney Crouch.
-: Good morning.
And may it please the court,
Andrew Crouch on behalf of Mr. Poum,
who appeals from convictions
out of the Middlesex County Superior Court.
I'd like to begin today
by addressing the mitigating circumstances issue.
This is one that was at the heart of the defendant's case
and his theory at trial.
The parties also agreed
that there were mitigating circumstances,
specifically sudden combat at play here.
-: Was that clearly wrong though?
That's my question.
So I don't understand
how this fits within sudden combat.
Andrew: Certainly.
-: 'Cause the guy goes into somebody's house
with a gun threatening them,
driving them into the bathroom
and they've got little kids in the rest of the house.
So how is that fit
within sort of our definition of sudden combat?
-: Certainly.
So we take this first obviously in the light,
most favorable-
Justice Kafker: Totally agree.
-: To the defendant here.
And you know, there wasn't much pushback
from the Commonwealth at trial.
There wasn't much push, any pushback from the judge.
And I think the reason is this,
this is not a situation like a lot of armed-
Justice Kafker: Well, there was pushback.
It's just- -: In the se-
-: There's pushback completely on the felony murder aspect.
Andrew: Correct.
-: And it looks like a generous mistake by the Commonwealth
and possibly the judge
on the premeditated murder instruction,
giving you a sudden combat mitigating-
-: Putting the felony murder part of it aside,
which we contend is a legal error post Brown,
focusing specifically on Your Honor's questions
about the facts here.
This is a little bit different than,
this is significantly different than a lot of the cases
such as armed home invasion, armed robbery,
and felony murder,
where we see an immediate response
from the occupant of the home to the entry into a home
or the entry in the situation.
Instead here, we see this process evolve over time.
And what happens is,
and we are not arguing sufficiency of the evidence,
we're not challenging the underlying
armed home invasion conviction.
We take those facts as they are.
What happens after the interactions
that Mr. Poum has with Ms. Kelly,
is this, as I said, goes on over several minutes.
Is it five, is it 10?
It's hard to say from the facts, but it continues on.
They eventually, Kelly, you know, Ms. Kelly
and the Callahans end up in the bathroom with Mr. Poum.
They direct him into the bathroom.
They're having a conversation.
He has entered the apartment.
He is intoxicated.
He is looking around for somebody
who is clearly not there.
He has searched the rooms.
At that point, they bring him into the bathroom.
They're trying to explain to him,
"Whoever you're looking for is not here."
Justice Kafker: He brings them into the bathroom, right.
-: I believe it, I think that may be correct, Your Honor.
In terms of the list most favorable to the defendant,
it may be that he ends up,
they end up in the bathroom, I will say here, but-
Justice Kafker: He's got the gun.
-: He does, he does have the gun.
Justice Kafker: Yeah.
-: But so they end up in, they, let's say he brings him,
brings them into the bathroom.
He is there by Ms. Kelly's own statements,
quietly listening to them explain
that this person is not there.
At that point, you know,
he in the light most favorable to the defendant,
he is trying to leave several times.
He's already checked the apartment.
He's been told that this person
he's looking for is not there.
And so we think in the light
most favorable to the defendant,
the jury could have found
that he's attempting to leave the apartment,
he's attempting to leave the scene.
That is when-
Justice Georges: What's the evidence of that?
-: Is that he is backing out.
He is trying to-
-: No where does that come from?
Andrew: Where in the record does that come from?
-: Yeah.
Andrew: There is-
-: I'm saying, does somebody testify?
'Cause he didn't testify, right?
Andrew: He does not testify.
-: So I'm asking you when you're saying
it's in the light most favorable to the defendant.
Andrew: Yes.
-: Ms. Kelly testifies that he's trying to back out?
Andrew: Yes, Ms. Kelly, you know,
testifies that he attempts
to leave the bathroom several times.
Justice Georges: Mm-hmm.
-: And that on the final time, you know,
and each time he tries to leave the bathroom,
he is stopped by one of the Callahans
and they keep him in the bathroom.
Judge Kafker: Isn't she testifying
they're frightened that he's gonna go-
-: This is in the light most, yes, right-
-: But again, you don't have his testimony.
You have her testimony saying, you know,
I got little, I got babies
or little kids over in the rest of the house.
We don't want him, you know, feeling,
we don't want him looking for,
and also we got two children hiding
in a bedroom somewhere else, right, you know.
Andrew: I suspect-
-: We don't want him wandering around.
-: I certainly understand that
from the Commonwealth's perspective.
And if the standard was taken in the light most favorable
of the Commonwealth, that certainly makes sense.
-: But even in the light most favorable to you,
isn't it that he's still looking for
what he calls the "fat lady" or whatever it is.
Andrew: Mm-hmm. -: Right?
He's not saying, "Oh, I'm going home now."
You know?
Andrew: But the jury is-
-: Well, he's not saying,
"Whoops, I went to the wrong house."
-: No, but this has gone on for several minutes.
He is quietly listening to them.
He's not arguing with them at that point.
And at that point he tries, you know,
we suggest that the light most favorable to the defendant,
the jury could have found on these facts
that he is trying to withdraw,
that he's trying to leave the scene.
And that each time he is stopped by the Callahans.
Then at that point, and the final time,
Keith, as he is turning to,
as Mr. Poum is turning to leave,
Keith lunges for the gun.
And that is when Ms. Kelly depart,
you know, runs out of the bathroom
and Mr. Poum finds himself confronted with two individuals
who are substantially larger than him.
Ms. Kelly describes him as a pip squeaks, says he's skinny.
He's about five foot five.
-: I give you that part.
But then he shoots Keith,
or I can't remember who, he shoots Joseph.
He shoots somebody first.
And then the other person says, "Please don't shoot me."
Isn't that, and again,
that's the only testimony we have on this, right?
-: No, I think what we have, and we do have some changes
and this is what I would suggest the jury can find.
It is not as if there is consistent testimony,
and this is not unusual in these types of cases.
From the very first statement that Ms. Kelly
or Ryan Callahan give to the police,
their testimony changes over time
and it becomes progressively worse,
and their statements to police change over time.
And it become progressively worse for the defendant
in terms of things that he did.
And so we could, you know,
we believe in the light most favor of the defendant.
The jury could have decided that that was, you know,
that they didn't believe that part of the testimony.
Instead, what they could believe,
in the light most favorable to the defendant
is that when Ms. Kelly departs and he finds himself,
Mr. Poum finds himself in a room with two individuals
who are six inches or more larger than him,
have more than a hundred pounds on him,
he is in a two-on-one confrontation at that point
where the first effort is Keith had reached for the gun.
He then, you know, the witnesses then hear a fight-
-: But don't the cases,
I mean the sudden combat cases don't involve,
I mean, I'm not aware of anywhere,
one where someone's going to rob somebody.
And two, they usually are, you know,
basically these people come
and then the combat is a surprise.
It comes outta nowhere.
Like, you know, they get into a, you know,
they're drinking and then they end up getting
into a surprise fight or something like that.
This would really push sudden combat
to a whole new level, wouldn't it?
Andrew: I don't think it does, Your Honor.
-: What's a close, a case where we found sudden comment
that's comparable to this?
-: I think, I mean we look at one of the closer cases
and I would suggest that this is
in a very narrow category of cases.
When we look at the, we look at the model instructions,
they talk about few circumstances sort of matters.
The self-defense instructions
I think are a little bit helpful here
in that they talk about cases such as escape
or someone leaving the scene.
And that may be a case like Rogers or things like that.
It's limited and narrow
and we don't have a lot of these types of cases.
-: Do you have any case that has a comparable set of facts
where we've found heat of passion
based on sudden combat?
Andrew: I'm sorry, I missed the last part.
-: Do you have any case on comparable facts
where we have upheld a finding
of heat of passion based on sudden combat?
-: Where you have found heat of,
where you found provocation on sudden combat?
-: [Judge Wolohojian] Sure. Provocation.
-: Sure, I think there's plenty of cases.
-: [Judge Wolohojian] The closest case on the facts.
-: The closest case on the facts here
would have to be, I mean it's in the,
it's more in the self-defense context 'cause it's Roger-
-: [Judge Wolohojian] I'm talking about
this specific defense.
-: Unfortunately, I think Rogers
is probably as close as we get
because I don't think the court, this is, like I said,
a very unusual set of circumstances.
Usually-
-: [Judge Wolohojian] Haven't we always
looked at the totality of the circumstances?
It seems to me what you're asking the court to do
is to sort of pick up the narrative,
midstream,
as opposed to taking into account the entire context.
Andrew: I don't think I'm doing that, Your Honor,
and what I would-
-: But so assume that we were going
to look at the entire context and that we were,
because there's an objective
and a subjective component to it, correct?
How were you entitled to the defendants
on the objective component?
-: Well, I think the objective component,
keeping in mind here, that this is all,
the evidence is taken
in the light most favorable to the defendant.
I think that's the key part.
-: [Judge Wolohojian] Sure.
-: As we laid out, as I laid out,
this is the narrative that the jury could find
based upon the evidence here.
And as I said, we are not challenging
or dismissing the evidence under underlying
the armed home invasion conviction.
We're accepting that as part and parcel here.
But what we're suggesting is,
and what contrasts this case
from most of these other cases
is the occupant of the home does not immediate,
such as a machete case where, you know, somebody enters
and they immediately receive a response
to someone trying to defend themselves.
-: But if you go into a house with a gun,
it won't be a surprise if they resist you, right?
Andrew: There is, but this-
-: I'm just, the cases I'm thinking of,
okay, so the guy goes to a fight,
he challenges some guy to a fight
and he drives over
and then a bunch of other people rush out.
But we don't find sudden combat there,
even though more people showed up than he was expecting
or, you know, they were bigger.
You know? Right?
-: I think the key here is the evolution of time.
I think that, you know, the time changes this
and makes it very different than any of these other cases
that we talk about.
Just that period-
-: Again, he's got a gun in a house
and we also, the whole castle law issue,
you can defend yourself in your home,
doesn't he, he should expect resistance.
It's not sudden and unsurprising, right?
-: And had that resistance come immediately,
I would agree with you.
It had come within a short period of time,
that is the case law to date.
This would, you know,
I think what the Commonwealth is asking for here
is an extension of the case law
to basically cover anytime you enter a home,
it's essentially makes it,
you know, like the first aggressor law.
You cannot, you know,
you cannot ask for a mitigating circumstances instruction.
And I don't think that's what the case law suggests.
I think that few circumstances here
is where this is one of those narrow category of cases.
-: But maybe not a bright line.
But again, if you marry the two points
of Justice Kafker and Justice Wolohojian,
you've got the totality here
where you've got this armed gunman,
and I know what you're saying.
You're saying that,
okay, they've gotta immediately meet with resistance,
but he's armed.
And so it might be that you have to wait
until you get into the close confines of that bathroom
for either one of those brothers to say,
"Now's the time to resist."
Because now it's easier
or under the terrible circumstances,
this is where it's most apt for me to do something
now that I'm closer in this little bathroom,
and there's four people there.
So you know, on the one hand,
you're saying the Commonwealth's view
takes it a little bit to an extreme,
but on your view,
you'd have to immediately, have to rush an armed gunman
to be able to say that there wasn't any sudden combat here.
-: I think this is why we have the jury,
and this is a pure jury issue for them to determine
whether or not these mitigating circumstances suffice
to negate malice in this particular case.
And I think that's where the jury has to go between,
you know, this is not a set of facts
where we are all in agreement as to each component.
There are some parts that come in, you know,
some statements that come in later,
you know, police statements that happened sort of at,
you know, later on closer to trial.
These are all things the jury has to weigh to determine,
you know, what it thinks happened here, in what order.
And this is not a situation
where we sort of post-hoc judge that.
And I don't think it's a case that lends itself well
to a bright line determination
that once you enter a house with a firearm,
mitigating circumstances are
in all circumstances off the table.
As I suggest, this is a narrow circumstance.
This is one of those few circumstances
and where the jury here was precluded from,
you know, the opportunity specifically
to make a determination on mitigating circumstances.
We just don't know what the jury would've done.
Judge Kafker: Can I take you to two of your other issues?
-: Certainly.
-: So the judge...
On the sentencing signals,
I'm gonna do consecutives
and he says, instead,
he doesn't just say, I guess,
we wouldn't be here if he said,
"I'm considering doing this," right?
So, but isn't he,
he's giving defense counsel and the prosecution a heads up
and saying, here's what,
again, it would've been better if he'd said,
"I'm considering doing,"
but he doesn't say that.
But again, they're on notice.
That's what he's gonna do.
Isn't that sufficient?
Maybe not artful, but isn't,
the defense counsel has a chance to respond there
and say, "No judge, you're wrong for this reason."
Or "I really want you to reconsider that for this reason."
Isn't that an okay?
-: I think that this is a,
I mean I've been doing this a long time.
This is a very unusual circumstance
and you handle plenty of appeals.
You just don't see judges do this very often, or ever.
And this is why I'm citing cases
from Wisconsin and Pennsylvania
because it just doesn't happen.
-: But they do give heads up sometimes.
They don't, they just don't phrase it-
-: And if that was the case,
I will tell you we would not be here.
And it happens all the time where judges say,
"I'm inclined to do this or I'm leaning this way."
We don't have a problem with that.
That's not a due process violation.
Here in this critical juncture,
and I would suggest the court doesn't give a leaning,
I mean to quote the court's words, it says,
"I'll tell you that I will impose consecutive
life sentences I'm going to impose."
And then he does just that.
This is, you know, a very unusual case
where the judge pre-judged, you know,
we're not alleging any kind of bias
like we see in Lewis and White and some of the other cases.
I think it provides helpful language
for considering this case.
But here, we look at cases out of Pennsylvania
like Luketic and the case out of Wisconsin,
similar circumstances very similar,
where the judge says,
"This is what I'm going to do
before the sentencing hearing actually begins,"
before the, you know, the defense has a chance
to put in mitigation evidence
and then the judge goes forward and does that.
This is just not what can be done in these cases.
The judge can't issue that sentence before the,
you know, in any kind of post-hoc allocution opportunity
doesn't remedy the fact that the judge
has already determined what that sentence is going to be
and then followed through with it.
Judge Georges: In this case though,
didn't the judge hear from defense counsel
before saying that?
-: And that's what I said,
the post-hoc opportunity even after that fact
doesn't resolve the problem.
The problem is the judge pre-judged the case.
He said, "This is what my sentence is going to be."
And the judge issued that sentence.
That's the problem.
-: I think Judge George's question was,
wasn't there a preliminary back and forth about that?
-: So what happened,
I apologize for misapprehending the question.
What happened here is ADA Loughlin
asked for an opportunity to, you know,
talk with the court ahead of time.
They go to sidebar.
They have a discussion as many cases do
where they're just trying to figure out
what the procedure is.
Each judge has a different procedure.
You know, he says,
here's the witnesses we're gonna be calling.
He previews the Commonwealth sentencing argument.
He says defense counsel is going to be asking for,
you know, concurring sentence.
You know, when given a chance,
defense counsel says,
I'm gonna ask for concurring sentences.
And then the judge says, "I will tell you
I'm going to impose this sentence."
You know, this is not a mitigation opportunity.
It's before sentencing hearing has even begun.
And at that point,
this is where we say the due process violation happens.
And I said, very unusual case.
I've not seen another one in Massachusetts.
I had to go to extra jurisdictional,
you know, research on this one.
But I would suggest specifically looking
at the Philadelphia appeal
or the Pennsylvania Appeals Court case in Luketic
is very similar to this particular case.
Judge Budd: And what's the prejudice
to the defendant here?
-: It's a straight due process violation.
This is a critical juncture in the proceeding
and he has to have the opportunity
before the judge makes the determination
to give his mitigation evidence,
to give the evidence there.
A post-hoc opportunity, it's not the same thing.
-: No, I understand.
Yeah, but just practically speaking,
he's serving a life sentence
without the possibility of parole.
-: Yes, but if the judge
had just issued concurrent sentences,
then no, we probably, you know,
we wouldn't be here because again,
there would be no prejudice.
But contrary to I think what the Commonwealth argues here,
and I would note we did file
a very recent stipulation in this case.
There was part of the sentencing record
where there was an inaudible section.
We have then clarified what that language was
and even at, you know,
even at the sentencing hearing,
the ADA acknowledged that there would,
you know, that consecutive sentences
and concurrent sentences are very different
and said if there is a change in the law,
you know this could have a real impact in this case.
And we suggest with all of the changes
this court has undertaken
and that we see across the country in terms
of changing the law regards to lifetime without parole,
this is a meaningful distinction.
Judge Kafker: Can I ask?
The last issue I've got
is the lesser included issue.
-: I'm sorry.
-: The lesser included issue.
So. Andrew: Yes.
-: The Commonwealth's argument, I take it,
and I'm gonna press them on this, is that,
you could have charged on one home invasion
'cause you've got three
or you've got eight people in the house.
But I take it your argument is
the only home invasion that he was indicted on
and that there's instruction on is
Ms. Kelly, nobody else,
and then I take it, it is a lesser included, right?
Andrew: That is correct.
And that is exactly what we're-
-: Now it would've been different
had they instructed more flexibly,
meaning I guess, it's the standard instruction
to say, home invasion
and there were, you know,
six, seven different people in the house.
And there's a difference
between the indictment and the instruction.
-: And then there's maybe, I think the issue is,
is there's also probably an issue
with regards to the ability to prove
all of the elements of armed home invasion
against other individuals in the house
who maybe didn't interact with Mr. Poum.
Ms. Kelly obviously had a physical interaction
with Mr. Poum that qualified for armed home invasion,
which is why I imagine the Commonwealth
chose to both indict the armed home invasion charge on her
and the court felt compelled understandably so
for both of the accounts of felony murder
to instruct that Jessica Kelly was that-
-: Are there cases that make this exact point that if,
'cause they're citing the cases
where home invasion is against a person.
You could have multiple ones.
But are there cases that do just what you say,
which is you charged on one person,
you instructed on one person
and then the felony murder is built
on top of that one person,
therefore, it's clearly lesser included.
-: I think the best case we can look at is Doucette
and that's a case where it's a little bit different
because there are multiple,
there's two different victims in that case.
There's a decedent, Mr. Twyman,
and then there was an injured individual, Mr. Escott.
And what the court, you know,
basically said there is we have these two different victims.
You know, there are these separate
armed home invasion charges.
You know, we can dismiss one
and dismiss the one against Mr. Twyman
who was also the homicide victim.
But you know, that's as close as we can get in terms of,
because otherwise these cases are pretty routinely,
you know, the Commonwealth usually comes in
and says yes, that is a duplicative conviction,
it should have been dismissed.
It's sort of rare to come in and argue it.
And that's why we think this falls pretty straightforwardly
within the duplicative convictions law.
The court has any further questions?
Judge Budd: No, thank you.
-: Thank you very much.
Judge Budd: Okay, Attorney Lee.
-: Madam Chief Justice and may it please the court,
ADA Chia Chi Lee for Middlesex on behalf of Commonwealth.
In Brown, this court malice an essential element
of felony murder.
Brown, however, do not require the Commonwealth
to prove the absence of mitigating circumstances
in all cases.
I disagree with my friend on the other side
that it is always a jury question.
It is not always a jury question.
It is only a jury question
if the defendant is entitled to that instruction
when evidence in the light most favorable to the defendant
under the totality of the circumstances.
Judge Budd: Can you low down just a little bit?
-: Yes, Your Honor.
And the idea, the concept of
in the light most favorable to the defendant
is not picking and choosing
like all the justices we're talking about earlier.
It's about when there's a conflicting testimony
to a specific fact.
-: So was it an error for the judge
to give it with the other two murder charges?
Because what would be the intellectual difference in saying,
I'm going to give the mitigating circumstances instruction
for murder one and two,
but I'm not going to give it for felony murder?
And I know there seemed to be some confusion
about that subparagraph in the felony murder instruction.
But would be the intellectually significant difference
between saying,
I'll give it in this and not give it in that?
-: I think number one,
the judge erred in giving that instruction
to the premeditation because the facts are the same.
And like my brother say-
-: Erred because you basically said,
you should give it, right?
The Commonwealth,
I can see the judge saying,
"Well, the Commonwealth wants it given,
the defense wants it given."
it seems like it was a mistake to give it,
but you can see how it happens 'cause you asked for it.
-: Yes, Your Honor.
It was a quick discussion.
There was not really delved
into the time the charge conference.
And it is an error.
However, the Commonwealth
is not taking inconsistent positions.
What we're taking position right now
is mitigating any circumstance.
Sudden combat is not required.
The defendant is not entitled to that instruction
as to felony murder.
Like the justice talked about earlier,
this does not fit the definition of sudden combat.
This is not two people...
-: Can...
I'd just like you to address maybe
the more narrow point which is set aside the facts.
Assume a case where the fact satisfied sudden combat
or you know,
taken in the light most favorable to the defendant.
Is it the Commonwealth's position that
an instruction should,
on sudden combat should only be given on the murder charge
and not on the felony murder?
Or are you agreeing that
it should be given with respect to both?
-: I think in this particular set of facts,
you shouldn't be given in any exact case.
-: I asked you to set aside the facts.
I asked you to assume,
assume that the facts were sufficient
to merit the instruction.
Chia: To merit the instruction?
-: Yes.
-: If the facts actually merits the instruction,
I think it would go to all,
all the murder theories.
-: Alright, so the legal error here,
if the facts supported the instruction
was that the judge gave the instruction,
told the jury not to consider mitigating
in circumstances with respect to felony murder.
Chia: Yes. If that's the case.
-: Okay.
-: But that's not what happened here.
The error was the judge gave the sudden combat instruction
as to premeditation
because the evidence does not support
the defendant being entitled to that.
And I know Justice Wolohojian was talking about
what's the closest case here.
In this court's case, in 2002,
Randolph was the closest case.
It was a premeditation case
where the victim was chasing the defendant
out of the victim's apartment,
arming himself with a knife.
This court held, it was a proper response
to a violent armed assault
on the victim's wife in their house.
And that cannot be sufficient provocation.
And that's the same concept.
We can see the same thing in Roderick in 1999
and Lucia in 1955.
All of these three cases are cited in a Commonwealth brief.
If you look at this case law,
this all talk about the same concept.
If a defendant commits a violent offense on the victim,
the victim had the right to defend himself
and respond to that violent conduct.
And that's what happened here.
The evolution of the time here does not matter
because when the defendant
remained in the house with a knife,
sorry, with a firearm, that assault was continuous.
The victims in this house with three adults, five children,
they were all danger.
The victim had the right,
like Justice Georges say,
to wait the proper time for them to defend themself.
And that's what the victim just did in here.
If no further questions on this issue,
I'll move on to the declaration instruction.
Judge Georges: Yes.
-: After reading defense brief, reply brief,
the Commonwealth agrees that it is duplicative.
The main reason is the jury was only struck-
Judge Georges: Thank you, thank you.
For making our lives simpler.
-: Of course, Your Honor.
And as the sentencing issue,
understand that the judge made the words very definitive,
but the judge gave both sides a opportunity
to talk about their positions as sidebar.
That's page four to nine on volume 14 of the transcript.
Justice Kafker: What are the pages? Sorry?
-: Four to nine, on transcript volume 14.
The Commonwealth argued first and the defendant,
like my brother say, gave a short position,
which is a concurrent sentencing on the life felony on-
Justice Kafker: This was before the judge said this
or after he said it?
-: That's before.
-: So there's a back and forth before
where they each present sort of their tentative views or?
-: Right, and that's after the judge announced his plan.
After that, they go to open court,
that both parties were given the opportunity
to explain their position again.
And the defendant was asked
whether he want to address the court
as required by the rule.
The defendant was given the opportunity, but he declined.
So I understand the judge could have used the words lighter,
but the defendant was given all the opportunity
to present his argument in terms of sentencing.
There's no prejudice here.
-: How about the issue?
I mean, really he does a terrible job on mitigation.
He doesn't bring up any of the standard mitigation
that, you know, he had an alcohol problem,
he had some injury,
he grew up in a gang-infested neighborhood.
You know, none of that.
What do we do with that?
-: I think the really good point
is there's no prejudice here.
Understand the law could change,
but if it did change, it does change in the future,
the defendant can bring a Rule 30 motion for,
to relieve the sentencing for the consecutive time.
Us, right now, there's no change of law
and this theoretical concept of things might change
to impact a life felony with a possibility of parole,
it's simply pretty unlikely at this point.
So as the stage right now, as the evidence in the law,
there's no prejudice to the defendant
when he's serving a life with without possibility of parole.
-: But you just, I mean you just,
if things do change,
wouldn't this be the time for us to set that up
so that he doesn't have to come back if things do change?
-: No, because I think it's still theoretical
and if it does happen,
there's no prejudice to the defendant
because he has a quick remedy.
And it's not like he's gonna be out at any point.
He's still serving a lifetime without possibility of parole.
So if there's any change, he could be paroled,
that's the time when the lower court can address it,
burden for this court to find his prejudice
under the state of law right now.
Justice Kafker: So the murders were consecutive,
the others were concurrent, right?
-: Yes, Your Honor.
And given the (indistinct),
and the concession of duplicative charge,
it doesn't matter at this point.
Justice Kafker: Mm-hmm.
-: So I just wanna make sure I understand.
Your argument is that the reason why
there's no prejudice from the claim
of ineffective assistance of counsel
is because he could renew that claim.
Commonwealth agrees that he could renew that claim
in the form of a Rule 30 motion in the future.
-: That's one reason, Your Honor.
The other reason is he is serving life
without possibility of parole.
And we'll look at the defense conduct
and prejudice at the time of the law when it happened.
The law right now is there's no change
to change the outcome of the sentencing.
So because he's serving life without possibility of parole,
there's no prejudice.
-: But you're saying that's the reason
we should not really examine
whether or not there's an effective assistance?
-: No, I think this court,
I think defense attorney should have done a lot more
in terms of sentencing, but there's no prejudice here.
No further questions.
Counselor rest brief.