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<v ->Number SJC-13443.</v>

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Commonwealth versus Dara Poum.

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<v ->Okay, Attorney Crouch.</v>

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<v ->Good morning.</v>

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And may it please the court,

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Andrew Crouch on behalf of Mr. Poum,

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who appeals from convictions

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out of the Middlesex County Superior Court.

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I'd like to begin today

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by addressing the mitigating circumstances issue.

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This is one that was at the heart of the defendant's case

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and his theory at trial.

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The parties also agreed

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that there were mitigating circumstances,

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specifically sudden combat at play here.

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<v ->Was that clearly wrong though?</v>

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That's my question.

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So I don't understand

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how this fits within sudden combat.

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<v Andrew>Certainly.</v>

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<v ->'Cause the guy goes into somebody's house</v>

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with a gun threatening them,

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driving them into the bathroom

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and they've got little kids in the rest of the house.

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So how is that fit

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within sort of our definition of sudden combat?

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<v ->Certainly.</v>

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So we take this first obviously in the light,

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most favorable-

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<v Justice Kafker>Totally agree.</v>

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<v ->To the defendant here.</v>

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And you know, there wasn't much pushback

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from the Commonwealth at trial.

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There wasn't much push, any pushback from the judge.

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And I think the reason is this,

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this is not a situation like a lot of armed-

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<v Justice Kafker>Well, there was pushback.</v>

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It's just-
<v ->In the se-</v>

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<v ->There's pushback completely on the felony murder aspect.</v>

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<v Andrew>Correct.</v>

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<v ->And it looks like a generous mistake by the Commonwealth</v>

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and possibly the judge

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on the premeditated murder instruction,

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giving you a sudden combat mitigating-

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<v ->Putting the felony murder part of it aside,</v>

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which we contend is a legal error post Brown,

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focusing specifically on Your Honor's questions

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about the facts here.

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This is a little bit different than,

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this is significantly different than a lot of the cases

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such as armed home invasion, armed robbery,

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and felony murder,

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where we see an immediate response

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from the occupant of the home to the entry into a home

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or the entry in the situation.

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Instead here, we see this process evolve over time.

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And what happens is,

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and we are not arguing sufficiency of the evidence,

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we're not challenging the underlying

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armed home invasion conviction.

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We take those facts as they are.

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What happens after the interactions

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that Mr. Poum has with Ms. Kelly,

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is this, as I said, goes on over several minutes.

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Is it five, is it 10?

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It's hard to say from the facts, but it continues on.

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They eventually, Kelly, you know, Ms. Kelly

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and the Callahans end up in the bathroom with Mr. Poum.

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They direct him into the bathroom.

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They're having a conversation.

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He has entered the apartment.

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He is intoxicated.

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He is looking around for somebody

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who is clearly not there.

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He has searched the rooms.

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At that point, they bring him into the bathroom.

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They're trying to explain to him,

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"Whoever you're looking for is not here."

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<v Justice Kafker>He brings them into the bathroom, right.</v>

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<v ->I believe it, I think that may be correct, Your Honor.</v>

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In terms of the list most favorable to the defendant,

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it may be that he ends up,

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they end up in the bathroom, I will say here, but-

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<v Justice Kafker>He's got the gun.</v>

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<v ->He does, he does have the gun.</v>

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<v Justice Kafker>Yeah.</v>

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<v ->But so they end up in, they, let's say he brings him,</v>

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brings them into the bathroom.

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He is there by Ms. Kelly's own statements,

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quietly listening to them explain

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that this person is not there.

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At that point, you know,

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he in the light most favorable to the defendant,

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he is trying to leave several times.

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He's already checked the apartment.

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He's been told that this person

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he's looking for is not there.

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And so we think in the light

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most favorable to the defendant,

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the jury could have found

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that he's attempting to leave the apartment,

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he's attempting to leave the scene.

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That is when-

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<v Justice Georges>What's the evidence of that?</v>

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<v ->Is that he is backing out.</v>

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He is trying to-

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<v ->No where does that come from?</v>

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<v Andrew>Where in the record does that come from?</v>

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<v ->Yeah.</v>

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<v Andrew>There is-</v>

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<v ->I'm saying, does somebody testify?</v>

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'Cause he didn't testify, right?

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<v Andrew>He does not testify.</v>

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<v ->So I'm asking you when you're saying</v>

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it's in the light most favorable to the defendant.

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<v Andrew>Yes.</v>

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<v ->Ms. Kelly testifies that he's trying to back out?</v>

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<v Andrew>Yes, Ms. Kelly, you know,</v>

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testifies that he attempts

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to leave the bathroom several times.

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<v Justice Georges>Mm-hmm.</v>

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<v ->And that on the final time, you know,</v>

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and each time he tries to leave the bathroom,

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he is stopped by one of the Callahans

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and they keep him in the bathroom.

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<v Judge Kafker>Isn't she testifying</v>

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they're frightened that he's gonna go-

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<v ->This is in the light most, yes, right-</v>

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<v ->But again, you don't have his testimony.</v>

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You have her testimony saying, you know,

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I got little, I got babies

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or little kids over in the rest of the house.

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We don't want him, you know, feeling,

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we don't want him looking for,

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and also we got two children hiding

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in a bedroom somewhere else, right, you know.

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<v Andrew>I suspect-</v>

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<v ->We don't want him wandering around.</v>

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<v ->I certainly understand that</v>

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from the Commonwealth's perspective.

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And if the standard was taken in the light most favorable

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of the Commonwealth, that certainly makes sense.

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<v ->But even in the light most favorable to you,</v>

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isn't it that he's still looking for

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what he calls the "fat lady" or whatever it is.

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<v Andrew>Mm-hmm.</v>
<v ->Right?</v>

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He's not saying, "Oh, I'm going home now."

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You know?

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<v Andrew>But the jury is-</v>

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<v ->Well, he's not saying,</v>

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"Whoops, I went to the wrong house."

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<v ->No, but this has gone on for several minutes.</v>

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He is quietly listening to them.

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He's not arguing with them at that point.

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And at that point he tries, you know,

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we suggest that the light most favorable to the defendant,

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the jury could have found on these facts

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that he is trying to withdraw,

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that he's trying to leave the scene.

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And that each time he is stopped by the Callahans.

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Then at that point, and the final time,

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Keith, as he is turning to,

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as Mr. Poum is turning to leave,

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Keith lunges for the gun.

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And that is when Ms. Kelly depart,

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you know, runs out of the bathroom

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and Mr. Poum finds himself confronted with two individuals

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who are substantially larger than him.

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Ms. Kelly describes him as a pip squeaks, says he's skinny.

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He's about five foot five.

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<v ->I give you that part.</v>

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But then he shoots Keith,

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or I can't remember who, he shoots Joseph.

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He shoots somebody first.

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And then the other person says, "Please don't shoot me."

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Isn't that, and again,

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that's the only testimony we have on this, right?

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<v ->No, I think what we have, and we do have some changes</v>

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and this is what I would suggest the jury can find.

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It is not as if there is consistent testimony,

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and this is not unusual in these types of cases.

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From the very first statement that Ms. Kelly

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or Ryan Callahan give to the police,

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their testimony changes over time

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and it becomes progressively worse,

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and their statements to police change over time.

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And it become progressively worse for the defendant

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in terms of things that he did.

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And so we could, you know,

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we believe in the light most favor of the defendant.

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The jury could have decided that that was, you know,

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that they didn't believe that part of the testimony.

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Instead, what they could believe,

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in the light most favorable to the defendant

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is that when Ms. Kelly departs and he finds himself,

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Mr. Poum finds himself in a room with two individuals

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who are six inches or more larger than him,

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have more than a hundred pounds on him,

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he is in a two-on-one confrontation at that point

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where the first effort is Keith had reached for the gun.

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He then, you know, the witnesses then hear a fight-

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<v ->But don't the cases,</v>

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I mean the sudden combat cases don't involve,

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I mean, I'm not aware of anywhere,

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one where someone's going to rob somebody.

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And two, they usually are, you know,

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basically these people come

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and then the combat is a surprise.

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It comes outta nowhere.

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Like, you know, they get into a, you know,

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they're drinking and then they end up getting

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into a surprise fight or something like that.

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This would really push sudden combat

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to a whole new level, wouldn't it?

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<v Andrew>I don't think it does, Your Honor.</v>

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<v ->What's a close, a case where we found sudden comment</v>

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that's comparable to this?

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<v ->I think, I mean we look at one of the closer cases</v>

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and I would suggest that this is

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in a very narrow category of cases.

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When we look at the, we look at the model instructions,

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they talk about few circumstances sort of matters.

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The self-defense instructions

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I think are a little bit helpful here

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in that they talk about cases such as escape

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or someone leaving the scene.

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And that may be a case like Rogers or things like that.

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It's limited and narrow

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and we don't have a lot of these types of cases.

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<v ->Do you have any case that has a comparable set of facts</v>

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where we've found heat of passion

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based on sudden combat?

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<v Andrew>I'm sorry, I missed the last part.</v>

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<v ->Do you have any case on comparable facts</v>

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where we have upheld a finding

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of heat of passion based on sudden combat?

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<v ->Where you have found heat of,</v>

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where you found provocation on sudden combat?

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<v ->[Judge Wolohojian] Sure. Provocation.</v>

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<v ->Sure, I think there's plenty of cases.</v>

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<v ->[Judge Wolohojian] The closest case on the facts.</v>

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<v ->The closest case on the facts here</v>

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would have to be, I mean it's in the,

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it's more in the self-defense context 'cause it's Roger-

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<v ->[Judge Wolohojian] I'm talking about</v>

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this specific defense.

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<v ->Unfortunately, I think Rogers</v>

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is probably as close as we get

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because I don't think the court, this is, like I said,

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a very unusual set of circumstances.

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Usually-

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<v ->[Judge Wolohojian] Haven't we always</v>

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looked at the totality of the circumstances?

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It seems to me what you're asking the court to do

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is to sort of pick up the narrative,

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00:08:59.700 --> 00:09:00.813
midstream,

257
00:09:01.710 --> 00:09:06.450
as opposed to taking into account the entire context.

258
00:09:06.450 --> 00:09:07.950
<v Andrew>I don't think I'm doing that, Your Honor,</v>

259
00:09:07.950 --> 00:09:09.147
and what I would-

260
00:09:09.147 --> 00:09:10.860
<v ->But so assume that we were going</v>

261
00:09:10.860 --> 00:09:15.120
to look at the entire context and that we were,

262
00:09:15.120 --> 00:09:16.320
because there's an objective

263
00:09:16.320 --> 00:09:19.563
and a subjective component to it, correct?

264
00:09:21.330 --> 00:09:23.640
How were you entitled to the defendants

265
00:09:23.640 --> 00:09:26.700
on the objective component?

266
00:09:26.700 --> 00:09:28.260
<v ->Well, I think the objective component,</v>

267
00:09:28.260 --> 00:09:30.060
keeping in mind here, that this is all,

268
00:09:30.060 --> 00:09:30.990
the evidence is taken

269
00:09:30.990 --> 00:09:32.490
in the light most favorable to the defendant.

270
00:09:32.490 --> 00:09:33.564
I think that's the key part.

271
00:09:33.564 --> 00:09:34.397
<v ->[Judge Wolohojian] Sure.</v>

272
00:09:34.397 --> 00:09:36.090
<v ->As we laid out, as I laid out,</v>

273
00:09:36.090 --> 00:09:38.130
this is the narrative that the jury could find

274
00:09:38.130 --> 00:09:39.240
based upon the evidence here.

275
00:09:39.240 --> 00:09:41.490
And as I said, we are not challenging

276
00:09:41.490 --> 00:09:43.890
or dismissing the evidence under underlying

277
00:09:43.890 --> 00:09:45.660
the armed home invasion conviction.

278
00:09:45.660 --> 00:09:48.840
We're accepting that as part and parcel here.

279
00:09:48.840 --> 00:09:50.337
But what we're suggesting is,

280
00:09:50.337 --> 00:09:52.320
and what contrasts this case

281
00:09:52.320 --> 00:09:54.000
from most of these other cases

282
00:09:54.000 --> 00:09:56.520
is the occupant of the home does not immediate,

283
00:09:56.520 --> 00:09:59.910
such as a machete case where, you know, somebody enters

284
00:09:59.910 --> 00:10:02.940
and they immediately receive a response

285
00:10:02.940 --> 00:10:04.585
to someone trying to defend themselves.

286
00:10:04.585 --> 00:10:08.850
<v ->But if you go into a house with a gun,</v>

287
00:10:08.850 --> 00:10:12.300
it won't be a surprise if they resist you, right?

288
00:10:12.300 --> 00:10:14.280
<v Andrew>There is, but this-</v>

289
00:10:14.280 --> 00:10:17.130
<v ->I'm just, the cases I'm thinking of,</v>

290
00:10:17.130 --> 00:10:19.620
okay, so the guy goes to a fight,

291
00:10:19.620 --> 00:10:22.170
he challenges some guy to a fight

292
00:10:22.170 --> 00:10:24.000
and he drives over

293
00:10:24.000 --> 00:10:28.110
and then a bunch of other people rush out.

294
00:10:28.110 --> 00:10:29.910
But we don't find sudden combat there,

295
00:10:29.910 --> 00:10:32.730
even though more people showed up than he was expecting

296
00:10:32.730 --> 00:10:34.413
or, you know, they were bigger.

297
00:10:36.000 --> 00:10:37.470
You know? Right?

298
00:10:37.470 --> 00:10:39.690
<v ->I think the key here is the evolution of time.</v>

299
00:10:39.690 --> 00:10:41.910
I think that, you know, the time changes this

300
00:10:41.910 --> 00:10:44.370
and makes it very different than any of these other cases

301
00:10:44.370 --> 00:10:46.140
that we talk about.

302
00:10:46.140 --> 00:10:47.310
Just that period-

303
00:10:47.310 --> 00:10:50.850
<v ->Again, he's got a gun in a house</v>

304
00:10:50.850 --> 00:10:54.120
and we also, the whole castle law issue,

305
00:10:54.120 --> 00:10:56.280
you can defend yourself in your home,

306
00:10:56.280 --> 00:10:59.940
doesn't he, he should expect resistance.

307
00:10:59.940 --> 00:11:02.187
It's not sudden and unsurprising, right?

308
00:11:02.187 --> 00:11:04.020
<v ->And had that resistance come immediately,</v>

309
00:11:04.020 --> 00:11:04.853
I would agree with you.

310
00:11:04.853 --> 00:11:07.500
It had come within a short period of time,

311
00:11:07.500 --> 00:11:09.240
that is the case law to date.

312
00:11:09.240 --> 00:11:10.073
This would, you know,

313
00:11:10.073 --> 00:11:11.610
I think what the Commonwealth is asking for here

314
00:11:11.610 --> 00:11:13.380
is an extension of the case law

315
00:11:13.380 --> 00:11:16.440
to basically cover anytime you enter a home,

316
00:11:16.440 --> 00:11:17.490
it's essentially makes it,

317
00:11:17.490 --> 00:11:18.690
you know, like the first aggressor law.

318
00:11:18.690 --> 00:11:20.326
You cannot, you know,

319
00:11:20.326 --> 00:11:23.280
you cannot ask for a mitigating circumstances instruction.

320
00:11:23.280 --> 00:11:25.170
And I don't think that's what the case law suggests.

321
00:11:25.170 --> 00:11:27.330
I think that few circumstances here

322
00:11:27.330 --> 00:11:30.600
is where this is one of those narrow category of cases.

323
00:11:30.600 --> 00:11:32.160
<v ->But maybe not a bright line.</v>

324
00:11:32.160 --> 00:11:35.700
But again, if you marry the two points

325
00:11:35.700 --> 00:11:37.800
of Justice Kafker and Justice Wolohojian,

326
00:11:37.800 --> 00:11:39.990
you've got the totality here

327
00:11:39.990 --> 00:11:42.810
where you've got this armed gunman,

328
00:11:42.810 --> 00:11:43.950
and I know what you're saying.

329
00:11:43.950 --> 00:11:44.970
You're saying that,

330
00:11:44.970 --> 00:11:47.370
okay, they've gotta immediately meet with resistance,

331
00:11:47.370 --> 00:11:48.750
but he's armed.

332
00:11:48.750 --> 00:11:51.300
And so it might be that you have to wait

333
00:11:51.300 --> 00:11:54.810
until you get into the close confines of that bathroom

334
00:11:54.810 --> 00:11:57.037
for either one of those brothers to say,

335
00:11:57.037 --> 00:11:58.710
"Now's the time to resist."

336
00:11:58.710 --> 00:12:01.756
Because now it's easier

337
00:12:01.756 --> 00:12:03.900
or under the terrible circumstances,

338
00:12:03.900 --> 00:12:07.440
this is where it's most apt for me to do something

339
00:12:07.440 --> 00:12:10.170
now that I'm closer in this little bathroom,

340
00:12:10.170 --> 00:12:13.560
and there's four people there.

341
00:12:13.560 --> 00:12:15.990
So you know, on the one hand,

342
00:12:15.990 --> 00:12:18.330
you're saying the Commonwealth's view

343
00:12:18.330 --> 00:12:20.220
takes it a little bit to an extreme,

344
00:12:20.220 --> 00:12:22.140
but on your view,

345
00:12:22.140 --> 00:12:24.540
you'd have to immediately, have to rush an armed gunman

346
00:12:24.540 --> 00:12:28.080
to be able to say that there wasn't any sudden combat here.

347
00:12:28.080 --> 00:12:29.610
<v ->I think this is why we have the jury,</v>

348
00:12:29.610 --> 00:12:32.460
and this is a pure jury issue for them to determine

349
00:12:32.460 --> 00:12:35.610
whether or not these mitigating circumstances suffice

350
00:12:35.610 --> 00:12:37.737
to negate malice in this particular case.

351
00:12:37.737 --> 00:12:40.890
And I think that's where the jury has to go between,

352
00:12:40.890 --> 00:12:42.270
you know, this is not a set of facts

353
00:12:42.270 --> 00:12:45.240
where we are all in agreement as to each component.

354
00:12:45.240 --> 00:12:46.740
There are some parts that come in, you know,

355
00:12:46.740 --> 00:12:48.360
some statements that come in later,

356
00:12:48.360 --> 00:12:50.940
you know, police statements that happened sort of at,

357
00:12:50.940 --> 00:12:53.220
you know, later on closer to trial.

358
00:12:53.220 --> 00:12:56.020
These are all things the jury has to weigh to determine,

359
00:12:57.034 --> 00:12:59.310
you know, what it thinks happened here, in what order.

360
00:12:59.310 --> 00:13:00.540
And this is not a situation

361
00:13:00.540 --> 00:13:03.180
where we sort of post-hoc judge that.

362
00:13:03.180 --> 00:13:05.280
And I don't think it's a case that lends itself well

363
00:13:05.280 --> 00:13:07.470
to a bright line determination

364
00:13:07.470 --> 00:13:09.960
that once you enter a house with a firearm,

365
00:13:09.960 --> 00:13:11.100
mitigating circumstances are

366
00:13:11.100 --> 00:13:13.320
in all circumstances off the table.

367
00:13:13.320 --> 00:13:15.480
As I suggest, this is a narrow circumstance.

368
00:13:15.480 --> 00:13:17.460
This is one of those few circumstances

369
00:13:17.460 --> 00:13:19.893
and where the jury here was precluded from,

370
00:13:20.840 --> 00:13:22.170
you know, the opportunity specifically

371
00:13:22.170 --> 00:13:24.690
to make a determination on mitigating circumstances.

372
00:13:24.690 --> 00:13:26.730
We just don't know what the jury would've done.

373
00:13:26.730 --> 00:13:28.860
<v Judge Kafker>Can I take you to two of your other issues?</v>

374
00:13:28.860 --> 00:13:29.910
<v ->Certainly.</v>

375
00:13:29.910 --> 00:13:34.680
<v ->So the judge...</v>

376
00:13:34.680 --> 00:13:37.020
On the sentencing signals,

377
00:13:37.020 --> 00:13:39.010
I'm gonna do consecutives

378
00:13:44.240 --> 00:13:45.073
and he says, instead,

379
00:13:45.073 --> 00:13:46.623
he doesn't just say, I guess,

380
00:13:47.490 --> 00:13:48.907
we wouldn't be here if he said,

381
00:13:48.907 --> 00:13:50.820
"I'm considering doing this," right?

382
00:13:50.820 --> 00:13:52.320
So, but isn't he,

383
00:13:52.320 --> 00:13:57.320
he's giving defense counsel and the prosecution a heads up

384
00:13:57.360 --> 00:13:59.043
and saying, here's what,

385
00:14:00.420 --> 00:14:02.227
again, it would've been better if he'd said,

386
00:14:02.227 --> 00:14:03.270
"I'm considering doing,"

387
00:14:03.270 --> 00:14:04.170
but he doesn't say that.

388
00:14:04.170 --> 00:14:05.940
But again, they're on notice.

389
00:14:05.940 --> 00:14:07.020
That's what he's gonna do.

390
00:14:07.020 --> 00:14:09.423
Isn't that sufficient?

391
00:14:10.830 --> 00:14:13.260
Maybe not artful, but isn't,

392
00:14:13.260 --> 00:14:15.390
the defense counsel has a chance to respond there

393
00:14:15.390 --> 00:14:17.490
and say, "No judge, you're wrong for this reason."

394
00:14:17.490 --> 00:14:20.610
Or "I really want you to reconsider that for this reason."

395
00:14:20.610 --> 00:14:22.530
Isn't that an okay?

396
00:14:22.530 --> 00:14:24.300
<v ->I think that this is a,</v>

397
00:14:24.300 --> 00:14:26.040
I mean I've been doing this a long time.

398
00:14:26.040 --> 00:14:27.840
This is a very unusual circumstance

399
00:14:27.840 --> 00:14:29.370
and you handle plenty of appeals.

400
00:14:29.370 --> 00:14:32.100
You just don't see judges do this very often, or ever.

401
00:14:32.100 --> 00:14:33.690
And this is why I'm citing cases

402
00:14:33.690 --> 00:14:35.970
from Wisconsin and Pennsylvania

403
00:14:35.970 --> 00:14:37.140
because it just doesn't happen.

404
00:14:37.140 --> 00:14:38.970
<v ->But they do give heads up sometimes.</v>

405
00:14:38.970 --> 00:14:40.170
They don't, they just don't phrase it-

406
00:14:40.170 --> 00:14:41.340
<v ->And if that was the case,</v>

407
00:14:41.340 --> 00:14:42.707
I will tell you we would not be here.

408
00:14:42.707 --> 00:14:44.857
And it happens all the time where judges say,

409
00:14:44.857 --> 00:14:48.060
"I'm inclined to do this or I'm leaning this way."

410
00:14:48.060 --> 00:14:49.050
We don't have a problem with that.

411
00:14:49.050 --> 00:14:50.580
That's not a due process violation.

412
00:14:50.580 --> 00:14:52.650
Here in this critical juncture,

413
00:14:52.650 --> 00:14:54.570
and I would suggest the court doesn't give a leaning,

414
00:14:54.570 --> 00:14:56.767
I mean to quote the court's words, it says,

415
00:14:56.767 --> 00:14:58.770
"I'll tell you that I will impose consecutive

416
00:14:58.770 --> 00:15:00.600
life sentences I'm going to impose."

417
00:15:00.600 --> 00:15:02.400
And then he does just that.

418
00:15:02.400 --> 00:15:05.100
This is, you know, a very unusual case

419
00:15:05.100 --> 00:15:07.410
where the judge pre-judged, you know,

420
00:15:07.410 --> 00:15:08.910
we're not alleging any kind of bias

421
00:15:08.910 --> 00:15:11.550
like we see in Lewis and White and some of the other cases.

422
00:15:11.550 --> 00:15:13.020
I think it provides helpful language

423
00:15:13.020 --> 00:15:14.400
for considering this case.

424
00:15:14.400 --> 00:15:17.040
But here, we look at cases out of Pennsylvania

425
00:15:17.040 --> 00:15:19.830
like Luketic and the case out of Wisconsin,

426
00:15:19.830 --> 00:15:21.750
similar circumstances very similar,

427
00:15:21.750 --> 00:15:23.047
where the judge says,

428
00:15:23.047 --> 00:15:24.600
"This is what I'm going to do

429
00:15:24.600 --> 00:15:26.970
before the sentencing hearing actually begins,"

430
00:15:26.970 --> 00:15:29.520
before the, you know, the defense has a chance

431
00:15:29.520 --> 00:15:31.320
to put in mitigation evidence

432
00:15:31.320 --> 00:15:33.930
and then the judge goes forward and does that.

433
00:15:33.930 --> 00:15:36.750
This is just not what can be done in these cases.

434
00:15:36.750 --> 00:15:39.450
The judge can't issue that sentence before the,

435
00:15:39.450 --> 00:15:43.680
you know, in any kind of post-hoc allocution opportunity

436
00:15:43.680 --> 00:15:45.450
doesn't remedy the fact that the judge

437
00:15:45.450 --> 00:15:47.880
has already determined what that sentence is going to be

438
00:15:47.880 --> 00:15:49.080
and then followed through with it.

439
00:15:49.080 --> 00:15:50.010
<v Judge Georges>In this case though,</v>

440
00:15:50.010 --> 00:15:51.960
didn't the judge hear from defense counsel

441
00:15:51.960 --> 00:15:52.980
before saying that?

442
00:15:52.980 --> 00:15:53.813
<v ->And that's what I said,</v>

443
00:15:53.813 --> 00:15:56.790
the post-hoc opportunity even after that fact

444
00:15:56.790 --> 00:15:58.680
doesn't resolve the problem.

445
00:15:58.680 --> 00:16:00.990
The problem is the judge pre-judged the case.

446
00:16:00.990 --> 00:16:03.750
He said, "This is what my sentence is going to be."

447
00:16:03.750 --> 00:16:05.940
And the judge issued that sentence.

448
00:16:05.940 --> 00:16:06.876
That's the problem.

449
00:16:06.876 --> 00:16:08.520
<v ->I think Judge George's question was,</v>

450
00:16:08.520 --> 00:16:11.940
wasn't there a preliminary back and forth about that?

451
00:16:11.940 --> 00:16:13.050
<v ->So what happened,</v>

452
00:16:13.050 --> 00:16:15.540
I apologize for misapprehending the question.

453
00:16:15.540 --> 00:16:19.110
What happened here is ADA Loughlin

454
00:16:19.110 --> 00:16:20.940
asked for an opportunity to, you know,

455
00:16:20.940 --> 00:16:21.930
talk with the court ahead of time.

456
00:16:21.930 --> 00:16:23.280
They go to sidebar.

457
00:16:23.280 --> 00:16:25.350
They have a discussion as many cases do

458
00:16:25.350 --> 00:16:26.183
where they're just trying to figure out

459
00:16:26.183 --> 00:16:27.016
what the procedure is.

460
00:16:27.016 --> 00:16:28.680
Each judge has a different procedure.

461
00:16:28.680 --> 00:16:30.180
You know, he says,

462
00:16:30.180 --> 00:16:31.560
here's the witnesses we're gonna be calling.

463
00:16:31.560 --> 00:16:33.690
He previews the Commonwealth sentencing argument.

464
00:16:33.690 --> 00:16:36.135
He says defense counsel is going to be asking for,

465
00:16:36.135 --> 00:16:37.140
you know, concurring sentence.

466
00:16:37.140 --> 00:16:38.730
You know, when given a chance,

467
00:16:38.730 --> 00:16:39.720
defense counsel says,

468
00:16:39.720 --> 00:16:41.490
I'm gonna ask for concurring sentences.

469
00:16:41.490 --> 00:16:43.200
And then the judge says, "I will tell you

470
00:16:43.200 --> 00:16:45.600
I'm going to impose this sentence."

471
00:16:45.600 --> 00:16:47.460
You know, this is not a mitigation opportunity.

472
00:16:47.460 --> 00:16:50.400
It's before sentencing hearing has even begun.

473
00:16:50.400 --> 00:16:51.390
And at that point,

474
00:16:51.390 --> 00:16:53.670
this is where we say the due process violation happens.

475
00:16:53.670 --> 00:16:55.560
And I said, very unusual case.

476
00:16:55.560 --> 00:16:57.660
I've not seen another one in Massachusetts.

477
00:16:57.660 --> 00:16:59.340
I had to go to extra jurisdictional,

478
00:16:59.340 --> 00:17:00.930
you know, research on this one.

479
00:17:00.930 --> 00:17:02.340
But I would suggest specifically looking

480
00:17:02.340 --> 00:17:03.270
at the Philadelphia appeal

481
00:17:03.270 --> 00:17:06.570
or the Pennsylvania Appeals Court case in Luketic

482
00:17:06.570 --> 00:17:08.880
is very similar to this particular case.

483
00:17:08.880 --> 00:17:09.930
<v Judge Budd>And what's the prejudice</v>

484
00:17:09.930 --> 00:17:11.760
to the defendant here?

485
00:17:11.760 --> 00:17:13.800
<v ->It's a straight due process violation.</v>

486
00:17:13.800 --> 00:17:15.540
This is a critical juncture in the proceeding

487
00:17:15.540 --> 00:17:17.460
and he has to have the opportunity

488
00:17:17.460 --> 00:17:19.650
before the judge makes the determination

489
00:17:19.650 --> 00:17:21.270
to give his mitigation evidence,

490
00:17:21.270 --> 00:17:22.320
to give the evidence there.

491
00:17:22.320 --> 00:17:24.540
A post-hoc opportunity, it's not the same thing.

492
00:17:24.540 --> 00:17:25.373
<v ->No, I understand.</v>

493
00:17:25.373 --> 00:17:28.083
Yeah, but just practically speaking,

494
00:17:29.010 --> 00:17:30.360
he's serving a life sentence

495
00:17:30.360 --> 00:17:33.030
without the possibility of parole.

496
00:17:33.030 --> 00:17:34.800
<v ->Yes, but if the judge</v>

497
00:17:34.800 --> 00:17:36.780
had just issued concurrent sentences,

498
00:17:36.780 --> 00:17:38.190
then no, we probably, you know,

499
00:17:38.190 --> 00:17:40.320
we wouldn't be here because again,

500
00:17:40.320 --> 00:17:41.610
there would be no prejudice.

501
00:17:41.610 --> 00:17:44.400
But contrary to I think what the Commonwealth argues here,

502
00:17:44.400 --> 00:17:45.990
and I would note we did file

503
00:17:45.990 --> 00:17:48.210
a very recent stipulation in this case.

504
00:17:48.210 --> 00:17:50.250
There was part of the sentencing record

505
00:17:50.250 --> 00:17:51.960
where there was an inaudible section.

506
00:17:51.960 --> 00:17:55.860
We have then clarified what that language was

507
00:17:55.860 --> 00:17:58.680
and even at, you know,

508
00:17:58.680 --> 00:18:01.770
even at the sentencing hearing,

509
00:18:01.770 --> 00:18:04.800
the ADA acknowledged that there would,

510
00:18:04.800 --> 00:18:06.330
you know, that consecutive sentences

511
00:18:06.330 --> 00:18:07.980
and concurrent sentences are very different

512
00:18:07.980 --> 00:18:10.860
and said if there is a change in the law,

513
00:18:10.860 --> 00:18:12.900
you know this could have a real impact in this case.

514
00:18:12.900 --> 00:18:14.430
And we suggest with all of the changes

515
00:18:14.430 --> 00:18:15.630
this court has undertaken

516
00:18:15.630 --> 00:18:17.550
and that we see across the country in terms

517
00:18:17.550 --> 00:18:21.750
of changing the law regards to lifetime without parole,

518
00:18:21.750 --> 00:18:24.060
this is a meaningful distinction.

519
00:18:24.060 --> 00:18:24.893
<v Judge Kafker>Can I ask?</v>

520
00:18:24.893 --> 00:18:26.160
The last issue I've got

521
00:18:26.160 --> 00:18:29.340
is the lesser included issue.

522
00:18:29.340 --> 00:18:30.173
<v ->I'm sorry.</v>

523
00:18:30.173 --> 00:18:31.353
<v ->The lesser included issue.</v>

524
00:18:32.220 --> 00:18:33.510
So.
<v Andrew>Yes.</v>

525
00:18:33.510 --> 00:18:36.570
<v ->The Commonwealth's argument, I take it,</v>

526
00:18:36.570 --> 00:18:38.853
and I'm gonna press them on this, is that,

527
00:18:40.625 --> 00:18:44.490
you could have charged on one home invasion

528
00:18:44.490 --> 00:18:45.323
'cause you've got three

529
00:18:45.323 --> 00:18:47.100
or you've got eight people in the house.

530
00:18:47.100 --> 00:18:50.700
But I take it your argument is

531
00:18:50.700 --> 00:18:54.630
the only home invasion that he was indicted on

532
00:18:54.630 --> 00:18:58.360
and that there's instruction on is

533
00:19:00.750 --> 00:19:03.780
Ms. Kelly, nobody else,

534
00:19:03.780 --> 00:19:07.710
and then I take it, it is a lesser included, right?

535
00:19:07.710 --> 00:19:08.760
<v Andrew>That is correct.</v>

536
00:19:08.760 --> 00:19:09.593
And that is exactly what we're-

537
00:19:09.593 --> 00:19:10.830
<v ->Now it would've been different</v>

538
00:19:10.830 --> 00:19:14.190
had they instructed more flexibly,

539
00:19:14.190 --> 00:19:16.640
meaning I guess, it's the standard instruction

540
00:19:16.640 --> 00:19:17.760
to say, home invasion

541
00:19:17.760 --> 00:19:18.593
and there were, you know,

542
00:19:18.593 --> 00:19:20.583
six, seven different people in the house.

543
00:19:21.480 --> 00:19:23.010
And there's a difference

544
00:19:23.010 --> 00:19:25.440
between the indictment and the instruction.

545
00:19:25.440 --> 00:19:26.790
<v ->And then there's maybe, I think the issue is,</v>

546
00:19:26.790 --> 00:19:28.320
is there's also probably an issue

547
00:19:28.320 --> 00:19:30.960
with regards to the ability to prove

548
00:19:30.960 --> 00:19:32.790
all of the elements of armed home invasion

549
00:19:32.790 --> 00:19:34.650
against other individuals in the house

550
00:19:34.650 --> 00:19:37.590
who maybe didn't interact with Mr. Poum.

551
00:19:37.590 --> 00:19:40.080
Ms. Kelly obviously had a physical interaction

552
00:19:40.080 --> 00:19:43.170
with Mr. Poum that qualified for armed home invasion,

553
00:19:43.170 --> 00:19:45.060
which is why I imagine the Commonwealth

554
00:19:45.060 --> 00:19:48.750
chose to both indict the armed home invasion charge on her

555
00:19:48.750 --> 00:19:52.350
and the court felt compelled understandably so

556
00:19:52.350 --> 00:19:55.810
for both of the accounts of felony murder

557
00:19:57.232 --> 00:19:58.377
to instruct that Jessica Kelly was that-

558
00:19:58.377 --> 00:20:01.800
<v ->Are there cases that make this exact point that if,</v>

559
00:20:01.800 --> 00:20:03.600
'cause they're citing the cases

560
00:20:03.600 --> 00:20:06.000
where home invasion is against a person.

561
00:20:06.000 --> 00:20:07.110
You could have multiple ones.

562
00:20:07.110 --> 00:20:09.930
But are there cases that do just what you say,

563
00:20:09.930 --> 00:20:13.770
which is you charged on one person,

564
00:20:13.770 --> 00:20:15.810
you instructed on one person

565
00:20:15.810 --> 00:20:17.640
and then the felony murder is built

566
00:20:17.640 --> 00:20:19.020
on top of that one person,

567
00:20:19.020 --> 00:20:21.300
therefore, it's clearly lesser included.

568
00:20:21.300 --> 00:20:23.340
<v ->I think the best case we can look at is Doucette</v>

569
00:20:23.340 --> 00:20:25.290
and that's a case where it's a little bit different

570
00:20:25.290 --> 00:20:27.810
because there are multiple,

571
00:20:27.810 --> 00:20:29.790
there's two different victims in that case.

572
00:20:29.790 --> 00:20:32.130
There's a decedent, Mr. Twyman,

573
00:20:32.130 --> 00:20:34.920
and then there was an injured individual, Mr. Escott.

574
00:20:34.920 --> 00:20:36.090
And what the court, you know,

575
00:20:36.090 --> 00:20:39.600
basically said there is we have these two different victims.

576
00:20:39.600 --> 00:20:41.640
You know, there are these separate

577
00:20:41.640 --> 00:20:43.200
armed home invasion charges.

578
00:20:43.200 --> 00:20:45.385
You know, we can dismiss one

579
00:20:45.385 --> 00:20:47.790
and dismiss the one against Mr. Twyman

580
00:20:47.790 --> 00:20:50.790
who was also the homicide victim.

581
00:20:50.790 --> 00:20:54.810
But you know, that's as close as we can get in terms of,

582
00:20:54.810 --> 00:20:57.900
because otherwise these cases are pretty routinely,

583
00:20:57.900 --> 00:20:59.190
you know, the Commonwealth usually comes in

584
00:20:59.190 --> 00:21:01.095
and says yes, that is a duplicative conviction,

585
00:21:01.095 --> 00:21:02.250
it should have been dismissed.

586
00:21:02.250 --> 00:21:04.410
It's sort of rare to come in and argue it.

587
00:21:04.410 --> 00:21:06.720
And that's why we think this falls pretty straightforwardly

588
00:21:06.720 --> 00:21:08.670
within the duplicative convictions law.

589
00:21:10.140 --> 00:21:12.540
The court has any further questions?

590
00:21:12.540 --> 00:21:13.373
<v Judge Budd>No, thank you.</v>

591
00:21:13.373 --> 00:21:14.270
<v ->Thank you very much.</v>

592
00:21:17.370 --> 00:21:18.803
<v Judge Budd>Okay, Attorney Lee.</v>

593
00:21:23.130 --> 00:21:25.260
<v ->Madam Chief Justice and may it please the court,</v>

594
00:21:25.260 --> 00:21:28.170
ADA Chia Chi Lee for Middlesex on behalf of Commonwealth.

595
00:21:28.170 --> 00:21:31.140
In Brown, this court malice an essential element

596
00:21:31.140 --> 00:21:32.250
of felony murder.

597
00:21:32.250 --> 00:21:34.230
Brown, however, do not require the Commonwealth

598
00:21:34.230 --> 00:21:36.960
to prove the absence of mitigating circumstances

599
00:21:36.960 --> 00:21:38.370
in all cases.

600
00:21:38.370 --> 00:21:40.050
I disagree with my friend on the other side

601
00:21:40.050 --> 00:21:41.820
that it is always a jury question.

602
00:21:41.820 --> 00:21:43.590
It is not always a jury question.

603
00:21:43.590 --> 00:21:45.450
It is only a jury question

604
00:21:45.450 --> 00:21:47.910
if the defendant is entitled to that instruction

605
00:21:47.910 --> 00:21:50.460
when evidence in the light most favorable to the defendant

606
00:21:50.460 --> 00:21:52.110
under the totality of the circumstances.

607
00:21:52.110 --> 00:21:53.430
<v Judge Budd>Can you low down just a little bit?</v>

608
00:21:53.430 --> 00:21:54.263
<v ->Yes, Your Honor.</v>

609
00:21:54.263 --> 00:21:56.400
And the idea, the concept of

610
00:21:56.400 --> 00:21:58.350
in the light most favorable to the defendant

611
00:21:58.350 --> 00:21:59.610
is not picking and choosing

612
00:21:59.610 --> 00:22:01.980
like all the justices we're talking about earlier.

613
00:22:01.980 --> 00:22:06.390
It's about when there's a conflicting testimony

614
00:22:06.390 --> 00:22:07.800
to a specific fact.

615
00:22:07.800 --> 00:22:10.980
<v ->So was it an error for the judge</v>

616
00:22:10.980 --> 00:22:14.880
to give it with the other two murder charges?

617
00:22:14.880 --> 00:22:19.880
Because what would be the intellectual difference in saying,

618
00:22:20.700 --> 00:22:24.660
I'm going to give the mitigating circumstances instruction

619
00:22:24.660 --> 00:22:26.430
for murder one and two,

620
00:22:26.430 --> 00:22:28.770
but I'm not going to give it for felony murder?

621
00:22:28.770 --> 00:22:32.220
And I know there seemed to be some confusion

622
00:22:32.220 --> 00:22:35.610
about that subparagraph in the felony murder instruction.

623
00:22:35.610 --> 00:22:40.610
But would be the intellectually significant difference

624
00:22:41.340 --> 00:22:42.173
between saying,

625
00:22:42.173 --> 00:22:43.830
I'll give it in this and not give it in that?

626
00:22:43.830 --> 00:22:44.880
<v ->I think number one,</v>

627
00:22:44.880 --> 00:22:47.100
the judge erred in giving that instruction

628
00:22:47.100 --> 00:22:50.130
to the premeditation because the facts are the same.

629
00:22:50.130 --> 00:22:52.140
And like my brother say-

630
00:22:52.140 --> 00:22:54.570
<v ->Erred because you basically said,</v>

631
00:22:54.570 --> 00:22:56.130
you should give it, right?

632
00:22:56.130 --> 00:22:57.480
The Commonwealth,

633
00:22:57.480 --> 00:22:58.747
I can see the judge saying,

634
00:22:58.747 --> 00:23:00.783
"Well, the Commonwealth wants it given,

635
00:23:01.650 --> 00:23:03.720
the defense wants it given."

636
00:23:03.720 --> 00:23:05.430
it seems like it was a mistake to give it,

637
00:23:05.430 --> 00:23:08.670
but you can see how it happens 'cause you asked for it.

638
00:23:08.670 --> 00:23:09.900
<v ->Yes, Your Honor.</v>

639
00:23:09.900 --> 00:23:11.070
It was a quick discussion.

640
00:23:11.070 --> 00:23:12.930
There was not really delved

641
00:23:12.930 --> 00:23:14.760
into the time the charge conference.

642
00:23:14.760 --> 00:23:15.900
And it is an error.

643
00:23:15.900 --> 00:23:17.130
However, the Commonwealth

644
00:23:17.130 --> 00:23:19.170
is not taking inconsistent positions.

645
00:23:19.170 --> 00:23:20.550
What we're taking position right now

646
00:23:20.550 --> 00:23:22.380
is mitigating any circumstance.

647
00:23:22.380 --> 00:23:24.450
Sudden combat is not required.

648
00:23:24.450 --> 00:23:26.490
The defendant is not entitled to that instruction

649
00:23:26.490 --> 00:23:27.750
as to felony murder.

650
00:23:27.750 --> 00:23:29.760
Like the justice talked about earlier,

651
00:23:29.760 --> 00:23:33.030
this does not fit the definition of sudden combat.

652
00:23:33.030 --> 00:23:34.560
This is not two people...

653
00:23:34.560 --> 00:23:35.393
<v ->Can...</v>

654
00:23:37.260 --> 00:23:39.180
I'd just like you to address maybe

655
00:23:39.180 --> 00:23:42.930
the more narrow point which is set aside the facts.

656
00:23:42.930 --> 00:23:47.930
Assume a case where the fact satisfied sudden combat

657
00:23:49.260 --> 00:23:50.460
or you know,

658
00:23:50.460 --> 00:23:53.520
taken in the light most favorable to the defendant.

659
00:23:53.520 --> 00:23:56.470
Is it the Commonwealth's position that

660
00:23:59.550 --> 00:24:00.600
an instruction should,

661
00:24:00.600 --> 00:24:04.950
on sudden combat should only be given on the murder charge

662
00:24:04.950 --> 00:24:06.780
and not on the felony murder?

663
00:24:06.780 --> 00:24:09.640
Or are you agreeing that

664
00:24:10.650 --> 00:24:13.050
it should be given with respect to both?

665
00:24:13.050 --> 00:24:15.090
<v ->I think in this particular set of facts,</v>

666
00:24:15.090 --> 00:24:16.860
you shouldn't be given in any exact case.

667
00:24:16.860 --> 00:24:18.780
<v ->I asked you to set aside the facts.</v>

668
00:24:18.780 --> 00:24:21.060
I asked you to assume,

669
00:24:21.060 --> 00:24:23.730
assume that the facts were sufficient

670
00:24:23.730 --> 00:24:25.950
to merit the instruction.

671
00:24:25.950 --> 00:24:27.180
<v Chia>To merit the instruction?</v>

672
00:24:27.180 --> 00:24:28.770
<v ->Yes.</v>

673
00:24:28.770 --> 00:24:31.500
<v ->If the facts actually merits the instruction,</v>

674
00:24:31.500 --> 00:24:32.850
I think it would go to all,

675
00:24:33.900 --> 00:24:35.160
all the murder theories.

676
00:24:35.160 --> 00:24:37.260
<v ->Alright, so the legal error here,</v>

677
00:24:37.260 --> 00:24:39.810
if the facts supported the instruction

678
00:24:39.810 --> 00:24:42.273
was that the judge gave the instruction,

679
00:24:43.650 --> 00:24:45.780
told the jury not to consider mitigating

680
00:24:45.780 --> 00:24:48.483
in circumstances with respect to felony murder.

681
00:24:50.520 --> 00:24:52.800
<v Chia>Yes. If that's the case.</v>

682
00:24:52.800 --> 00:24:53.760
<v ->Okay.</v>

683
00:24:53.760 --> 00:24:55.110
<v ->But that's not what happened here.</v>

684
00:24:55.110 --> 00:24:57.780
The error was the judge gave the sudden combat instruction

685
00:24:57.780 --> 00:24:59.490
as to premeditation

686
00:24:59.490 --> 00:25:01.560
because the evidence does not support

687
00:25:01.560 --> 00:25:02.790
the defendant being entitled to that.

688
00:25:02.790 --> 00:25:05.220
And I know Justice Wolohojian was talking about

689
00:25:05.220 --> 00:25:06.840
what's the closest case here.

690
00:25:06.840 --> 00:25:09.120
In this court's case, in 2002,

691
00:25:09.120 --> 00:25:10.400
Randolph was the closest case.

692
00:25:10.400 --> 00:25:12.420
It was a premeditation case

693
00:25:12.420 --> 00:25:14.040
where the victim was chasing the defendant

694
00:25:14.040 --> 00:25:15.480
out of the victim's apartment,

695
00:25:15.480 --> 00:25:17.250
arming himself with a knife.

696
00:25:17.250 --> 00:25:19.890
This court held, it was a proper response

697
00:25:19.890 --> 00:25:21.720
to a violent armed assault

698
00:25:21.720 --> 00:25:24.090
on the victim's wife in their house.

699
00:25:24.090 --> 00:25:27.240
And that cannot be sufficient provocation.

700
00:25:27.240 --> 00:25:28.290
And that's the same concept.

701
00:25:28.290 --> 00:25:30.900
We can see the same thing in Roderick in 1999

702
00:25:30.900 --> 00:25:32.370
and Lucia in 1955.

703
00:25:32.370 --> 00:25:34.560
All of these three cases are cited in a Commonwealth brief.

704
00:25:34.560 --> 00:25:35.850
If you look at this case law,

705
00:25:35.850 --> 00:25:38.460
this all talk about the same concept.

706
00:25:38.460 --> 00:25:42.330
If a defendant commits a violent offense on the victim,

707
00:25:42.330 --> 00:25:44.910
the victim had the right to defend himself

708
00:25:44.910 --> 00:25:46.620
and respond to that violent conduct.

709
00:25:46.620 --> 00:25:48.210
And that's what happened here.

710
00:25:48.210 --> 00:25:50.430
The evolution of the time here does not matter

711
00:25:50.430 --> 00:25:51.570
because when the defendant

712
00:25:51.570 --> 00:25:53.700
remained in the house with a knife,

713
00:25:53.700 --> 00:25:56.970
sorry, with a firearm, that assault was continuous.

714
00:25:56.970 --> 00:26:00.960
The victims in this house with three adults, five children,

715
00:26:00.960 --> 00:26:01.793
they were all danger.

716
00:26:01.793 --> 00:26:02.970
The victim had the right,

717
00:26:02.970 --> 00:26:04.950
like Justice Georges say,

718
00:26:04.950 --> 00:26:07.200
to wait the proper time for them to defend themself.

719
00:26:07.200 --> 00:26:09.400
And that's what the victim just did in here.

720
00:26:11.070 --> 00:26:13.170
If no further questions on this issue,

721
00:26:13.170 --> 00:26:15.630
I'll move on to the declaration instruction.

722
00:26:15.630 --> 00:26:16.463
<v Judge Georges>Yes.</v>

723
00:26:16.463 --> 00:26:18.300
<v ->After reading defense brief, reply brief,</v>

724
00:26:18.300 --> 00:26:20.460
the Commonwealth agrees that it is duplicative.

725
00:26:20.460 --> 00:26:23.310
The main reason is the jury was only struck-

726
00:26:23.310 --> 00:26:24.290
<v Judge Georges>Thank you, thank you.</v>

727
00:26:24.290 --> 00:26:25.400
For making our lives simpler.

728
00:26:25.400 --> 00:26:26.600
<v ->Of course, Your Honor.</v>

729
00:26:27.870 --> 00:26:30.270
And as the sentencing issue,

730
00:26:30.270 --> 00:26:35.220
understand that the judge made the words very definitive,

731
00:26:35.220 --> 00:26:39.450
but the judge gave both sides a opportunity

732
00:26:39.450 --> 00:26:41.490
to talk about their positions as sidebar.

733
00:26:41.490 --> 00:26:45.930
That's page four to nine on volume 14 of the transcript.

734
00:26:45.930 --> 00:26:47.130
<v Justice Kafker>What are the pages? Sorry?</v>

735
00:26:47.130 --> 00:26:50.970
<v ->Four to nine, on transcript volume 14.</v>

736
00:26:50.970 --> 00:26:52.950
The Commonwealth argued first and the defendant,

737
00:26:52.950 --> 00:26:56.040
like my brother say, gave a short position,

738
00:26:56.040 --> 00:27:00.570
which is a concurrent sentencing on the life felony on-

739
00:27:00.570 --> 00:27:02.400
<v Justice Kafker>This was before the judge said this</v>

740
00:27:02.400 --> 00:27:03.233
or after he said it?

741
00:27:03.233 --> 00:27:04.080
<v ->That's before.</v>

742
00:27:04.080 --> 00:27:07.140
<v ->So there's a back and forth before</v>

743
00:27:07.140 --> 00:27:10.380
where they each present sort of their tentative views or?

744
00:27:10.380 --> 00:27:13.860
<v ->Right, and that's after the judge announced his plan.</v>

745
00:27:13.860 --> 00:27:15.633
After that, they go to open court,

746
00:27:16.680 --> 00:27:18.570
that both parties were given the opportunity

747
00:27:18.570 --> 00:27:20.070
to explain their position again.

748
00:27:20.070 --> 00:27:21.510
And the defendant was asked

749
00:27:21.510 --> 00:27:22.890
whether he want to address the court

750
00:27:22.890 --> 00:27:24.210
as required by the rule.

751
00:27:24.210 --> 00:27:26.970
The defendant was given the opportunity, but he declined.

752
00:27:26.970 --> 00:27:30.180
So I understand the judge could have used the words lighter,

753
00:27:30.180 --> 00:27:32.010
but the defendant was given all the opportunity

754
00:27:32.010 --> 00:27:33.990
to present his argument in terms of sentencing.

755
00:27:33.990 --> 00:27:35.070
There's no prejudice here.

756
00:27:35.070 --> 00:27:37.140
<v ->How about the issue?</v>

757
00:27:37.140 --> 00:27:42.140
I mean, really he does a terrible job on mitigation.

758
00:27:43.560 --> 00:27:48.560
He doesn't bring up any of the standard mitigation

759
00:27:48.690 --> 00:27:51.660
that, you know, he had an alcohol problem,

760
00:27:51.660 --> 00:27:53.193
he had some injury,

761
00:27:54.150 --> 00:27:57.180
he grew up in a gang-infested neighborhood.

762
00:27:57.180 --> 00:27:58.260
You know, none of that.

763
00:27:58.260 --> 00:27:59.430
What do we do with that?

764
00:27:59.430 --> 00:28:00.540
<v ->I think the really good point</v>

765
00:28:00.540 --> 00:28:01.590
is there's no prejudice here.

766
00:28:01.590 --> 00:28:03.540
Understand the law could change,

767
00:28:03.540 --> 00:28:06.360
but if it did change, it does change in the future,

768
00:28:06.360 --> 00:28:09.690
the defendant can bring a Rule 30 motion for,

769
00:28:09.690 --> 00:28:12.570
to relieve the sentencing for the consecutive time.

770
00:28:12.570 --> 00:28:16.170
Us, right now, there's no change of law

771
00:28:16.170 --> 00:28:21.170
and this theoretical concept of things might change

772
00:28:21.720 --> 00:28:24.870
to impact a life felony with a possibility of parole,

773
00:28:24.870 --> 00:28:27.090
it's simply pretty unlikely at this point.

774
00:28:27.090 --> 00:28:30.360
So as the stage right now, as the evidence in the law,

775
00:28:30.360 --> 00:28:32.010
there's no prejudice to the defendant

776
00:28:32.010 --> 00:28:34.770
when he's serving a life with without possibility of parole.

777
00:28:34.770 --> 00:28:37.620
<v ->But you just, I mean you just,</v>

778
00:28:37.620 --> 00:28:39.153
if things do change,

779
00:28:40.110 --> 00:28:44.040
wouldn't this be the time for us to set that up

780
00:28:44.040 --> 00:28:47.343
so that he doesn't have to come back if things do change?

781
00:28:48.360 --> 00:28:50.700
<v ->No, because I think it's still theoretical</v>

782
00:28:50.700 --> 00:28:51.600
and if it does happen,

783
00:28:51.600 --> 00:28:52.920
there's no prejudice to the defendant

784
00:28:52.920 --> 00:28:55.380
because he has a quick remedy.

785
00:28:55.380 --> 00:28:57.540
And it's not like he's gonna be out at any point.

786
00:28:57.540 --> 00:29:00.120
He's still serving a lifetime without possibility of parole.

787
00:29:00.120 --> 00:29:02.493
So if there's any change, he could be paroled,

788
00:29:03.330 --> 00:29:06.240
that's the time when the lower court can address it,

789
00:29:06.240 --> 00:29:08.430
burden for this court to find his prejudice

790
00:29:08.430 --> 00:29:09.990
under the state of law right now.

791
00:29:09.990 --> 00:29:12.360
<v Justice Kafker>So the murders were consecutive,</v>

792
00:29:12.360 --> 00:29:14.850
the others were concurrent, right?

793
00:29:14.850 --> 00:29:15.683
<v ->Yes, Your Honor.</v>

794
00:29:15.683 --> 00:29:17.010
And given the (indistinct),

795
00:29:17.010 --> 00:29:18.810
and the concession of duplicative charge,

796
00:29:18.810 --> 00:29:20.310
it doesn't matter at this point.

797
00:29:20.310 --> 00:29:21.180
<v Justice Kafker>Mm-hmm.</v>

798
00:29:21.180 --> 00:29:23.730
<v ->So I just wanna make sure I understand.</v>

799
00:29:23.730 --> 00:29:26.680
Your argument is that the reason why

800
00:29:28.890 --> 00:29:30.690
there's no prejudice from the claim

801
00:29:30.690 --> 00:29:32.640
of ineffective assistance of counsel

802
00:29:32.640 --> 00:29:35.370
is because he could renew that claim.

803
00:29:35.370 --> 00:29:37.530
Commonwealth agrees that he could renew that claim

804
00:29:37.530 --> 00:29:40.200
in the form of a Rule 30 motion in the future.

805
00:29:40.200 --> 00:29:41.400
<v ->That's one reason, Your Honor.</v>

806
00:29:41.400 --> 00:29:43.583
The other reason is he is serving life

807
00:29:43.583 --> 00:29:45.270
without possibility of parole.

808
00:29:45.270 --> 00:29:48.270
And we'll look at the defense conduct

809
00:29:48.270 --> 00:29:50.880
and prejudice at the time of the law when it happened.

810
00:29:50.880 --> 00:29:53.370
The law right now is there's no change

811
00:29:53.370 --> 00:29:55.800
to change the outcome of the sentencing.

812
00:29:55.800 --> 00:29:58.440
So because he's serving life without possibility of parole,

813
00:29:58.440 --> 00:29:59.640
there's no prejudice.

814
00:29:59.640 --> 00:30:00.870
<v ->But you're saying that's the reason</v>

815
00:30:00.870 --> 00:30:03.270
we should not really examine

816
00:30:03.270 --> 00:30:05.370
whether or not there's an effective assistance?

817
00:30:05.370 --> 00:30:06.630
<v ->No, I think this court,</v>

818
00:30:06.630 --> 00:30:09.660
I think defense attorney should have done a lot more

819
00:30:09.660 --> 00:30:12.293
in terms of sentencing, but there's no prejudice here.

820
00:30:13.920 --> 00:30:15.153
No further questions.

821
00:30:16.620 --> 00:30:17.670
Counselor rest brief.