-: SJC-13527.
Commonwealth v. Scott W. Morrison.
-: Attorney Bradl, whenever you're ready.
-: Hello, Your Honor, may it please the court.
Your Honors, Timothy Bradl on behalf of Scott Morrison.
My client is doing a 25 to 30 at MCI-Norfolk
under the Aggravated Kidnapping statute.
Your Honor, the court has granted further appellate review,
and Mr. Morrison is incredibly grateful for that
and thanks this court.
The issue here, Your Honors,
is that the statute under which he was sentenced
is undeniably ambiguous.
And he must be given the benefit of the rule of lenity.
And if the court does not do so in this case, Your Honors,
it will work a catastrophic injustice on Mr. Morrison,
who will spend the rest of his life,
likely spend the rest of his life, in prison
over a statute that we're not quite sure what it means.
And no one wants to be part of a system where someone-
-: Help us, tell us what it means then.
So from what I understand,
there are three levels of kidnapping.
Attorney Bradl: Yes, Your Honor.
-: There's kidnapping.
There's kidnapping, armed with a dangerous weapon.
And then we get into this, and that has a greater sentence.
Attorney Bradl: That's right, Your Honor.
-: Then we get into this third category
with the armed with a dangerous weapon and thereby...
-: Right.
Thereby is the rub here, Your Honor.
-: My first question though,
before we get into grammatical parsing,
why does it make sense that your client...
'Cause again, I look at the legislature.
They're not a bunch of grammarians.
They're focused on policy distinction.
So your client is armed with a gun.
He kidnaps, and the result is death of the kidnapped victim.
So why does it make sense that the injury basically
doesn't matter at all here in your client's case?
Is it all because of the word thereby?
-: It's a very fact-bound case, Your Honor.
It's a convoluted set of facts.
-: Again, the legislature's writing in categories.
So it's dividing into three categories,
and you're creating, sort of in my view, a fourth category.
So I just wanna understand why that is.
Attorney Bradl: Sure.
-: Again, I don't find either of the two decisions below
that helpful in elucidating meaning as opposed to grammar.
-: Sure, the answer, Judge,
is found in a close review of the facts,
the scope of the joint venture, Your Honors.
There's a joint venture that involves Mr. Morrison,
allegedly, and found by the jury
to have kidnapped the deceased
while having a gun on his hip.
Then he is alleged to have delivered
or found to have delivered the person to the principal here,
for lack of a better word, Mr. Feeney, and then leaves.
There's no contradictory evidence that he was there,
that he was part of this.
And so that's where his joint venture ends for now.
Feeney takes it upon himself to murder,
and that was his verdict, murder of Mr. Robertson.
-: Let me take it...
Let's go a little further.
So your client is armed with a gun and a baton, right?
-: Well, that's a fact question, Judge.
The baton was in a duffel bag in the car.
-: Okay, but if, for example,
he gave the baton and the gun to Mr. Feeney
and then Mr. Feeney used them,
I take it we're in the, your view,
you get the 25 to 30 years, right?
-: If he gave the baton to Feeney, Your Honor?
-: And Feeney used it, he's part of this joint venture.
I take it he still gets 25 to 30 years.
-: No, Your Honor.
'Cause I'm finding refuge from the jury verdict on that.
He was only found guilty of manslaughter,
not sharing the intent to murder.
He was only found guilty of manslaughter,
which is a statement by the jury
that he did not share the intent to kill
or cause grievous bodily harm.
-: I'm looking at the statute, okay.
So the statute, your focus is on the word "thereby."
Attorney Bradl: Yes.
-: And again, if Mr. Feeney used the gun
or the baton that your client had,
I take it 25 to 30 would meet the statutory language, right?
-: No, because he did not use the baton, Judge.
I think the jury found that...
That's probably part of the verdict, Your Honor,
is that the baton was in a duffel bag in the car.
I forget if it was a trunk or the back of the car.
But nonetheless, it cannot be said
that he was armed with it.
So the focus needs to be on the gun.
And it's undeniable that the gun caused no harm whatsoever.
-: You're totally focused on your client,
which is absolutely what you should be doing.
But we're also focused on the...
We've gotta interpret the meaning of this statute
which applies to a lot more people than your client.
So I'm just trying to make the statute make sense,
and you're not helping me much on that.
-: Okay, let me try, Judge.
So the statute, the legislature has seen fit
to add the word "thereby," not by means of,
which I know counsel for the Commonwealth
wants to focus the court on,
words that are not in the statute.
So, immaterial.
So here, the legislature has chosen
to use the words "thereby."
And so I wanna invite the court to look back
at Justice Sacks's dissent here,
where he slices and dices the opinion,
the majority opinion, pretty well.
-: He slices and dices grammar.
-: Yes.
-: But no one's giving us an explanation
of why the legislature would want to treat this differently,
that it's so important.
Again, the example,
I can't remember if the majority uses it
or the Commonwealth uses it,
he kidnaps him with a gun
and then strangles the victim with rope.
It's the same result.
-: But it's a different person, Judge.
He was definitely found to not be participating in that...
-: You keep focusing on this narrow factual issue,
which is, again, your prerogative.
But help me make sense of the statute.
At least try. -: Sure.
It's the fourth paragraph
of Justice Sacks's dissent, Your Honors.
He says that, "The word 'thereby' can plausibly be found
"to modify either inflicts."
Well, strike that; I'm sorry.
It's found to modify inflicts.
But then you still need to go the next step.
What's being inflicted,
a kidnapping or use of a dangerous weapon?
-: So that's my question for you, is that,
in the other paragraphs of this same statute,
"thereby" is also used, right?
Attorney Bradl: Yes, your Honor.
-: And in those paragraphs, "thereby" clearly refers to
the crime of kidnapping.
And I'm wondering why it shouldn't also be interpreted
or construed in this last paragraph, the third paragraph,
to modify the crime of kidnapping?
-: Because it doesn't make sense, Your Honor.
And it's redundant.
A kidnapping causes a harm from a kidnapping.
It doesn't make sense.
If you just read it... -: I don't understand that.
What do you mean, it's redundant?
-: Why would the legislature have to refer back
to the kidnapping?
We're already talking about a kidnapping statute.
-: But we don't have a serious bodily injury
in any of the other paragraphs.
So that's what's added here.
Right? -: Yes.
-: That's what the first justice, Justice Kafker, was saying.
It's this sort of an increasing set of punishments
for additional conduct.
First paragraph is just kidnapping.
Second paragraph is kidnapping while armed with a firearm.
And then we come to the third paragraph
where you're armed with a dangerous weapon
and there's a serious bodily injury thereby.
-: So all Mr. Morrison needs is a plausible reading
to create an ambiguity.
And then it's game over for the Commonwealth, Your Honor.
Here...
-: Well, that's why I'm wondering.
Usually, we don't interpret sentences in any statute
in isolation.
We usually interpret them in the context
of the statutory scheme as a whole.
And in the other two paragraphs,
"thereby" refers clearly to the crime of kidnapping.
-: Well, I believe "thereby" was added later, Judge.
And in the appendix,
we have the November 5th, 2010 version of it
which I'm focused on here.
And I think it's not a...
I don't think it's a controlling word, Judge.
Because when you look at the third paragraph
that's applicable here, what inflicts serious bodily injury,
a kidnapping or a dangerous weapon?
And the logical reading of it is a dangerous weapon.
And as Justice Sacks says it in that dissent,
"The word 'thereby' can equally plausibly
"be referred back to either a kidnapping
"or a dangerous weapon."
-: And can you, sorry...
-: As they say in the opinions, "You need go no further."
There's the ambiguity.
-: I'd like to go one step further.
Justice Wendlandt, are you done?
-: Sure.
-: I want you to, I'm going to try to wrestle
with the policy question.
'Cause, again, I think the legislature's focused on policy.
-: Sure. -: Not grammar.
So why would a kidnapping while armed
that results in a substantial bodily injury,
in this case death,
not be subject to the highest penalty, the third prong,
because the weapon that he used, the gun,
was not what inflicted the injury?
Why would the legislature make that distinction
when, again, there's a substantial injury, a kidnapping,
and you're armed?
And this thing wouldn't have happened...
Maybe it would've
because of the cleverness of the constables
and they've got police documentation they shouldn't have.
But why would the legislature wanna penalize this less
even though there's a substantial injury here?
-: The legislature is bound to their words, Your Honor.
-: Again, I understand the wording.
But the wording has been expertly diced
by the Appeals Court.
Tell me why that makes sense.
-: I feel like that's speculating, Your Honor,
because I need to stay with the language of the statute.
-: Words mean something in the real world.
They reflect reality.
So why would the legislature want your client
to get less time,
even though the person who was kidnapped is dead?
-: He wasn't held responsible for the death, Your Honor,
in the sense of murder.
He was held responsible for manslaughter
by recklessly creating a situation.
So he wouldn't apply to the statute
the way Your Honor appears to be contemplating it.
-: Well, I'm just trying to make sense of the statute.
-: I mean, the reason that Commonwealth would have
would be that someone's abducted using a handgun,
taken for a ride and then beaten.
Correct? -: Right.
-: And your view is that wouldn't satisfy the statute.
The Commonwealth's view, it would.
-: Well, it depends on the facts.
And this set of facts is extremely unusual, Your Honor,
where it's established conclusively
that Mr. Morrison was told,
and the other co-defendant Ricci was told
that there was going to be no...
-: I know, but you lost that and with the jury.
So the issue-
-: Well, no, I don't think I did, Judge
Sorry to cut you off.
I don't think I did, Judge.
-: The question I have is,
that's what we're really struggling with.
The legislature could say,
when you abduct someone using a handgun,
and then with the consequences that follow
if someone is severely beaten
so as to inflict serious bodily injury,
we're gonna punish you further.
Then you read on in the same sentence and it says,
"whoever sexually assaults such person,"
there's no therebys in that.
It could be someone is abducted
and then they're sexually assaulted.
That's an aggravating factor
for aggravating kidnapping, right.
-: Well, that's the Rodriguez case, Judge,
where the statute has already been found to be subject
to the rule of lenity in that respect
where the sexual assault aspect of it,
the defendant in Rodriguez got the benefit of that.
And, you know, as Justice Sacks's, again,
says in his dissent, "It's not surprising that
"the language here is troublesome."
If I could just account for
all the different interpretations, Judge.
And this is why Morrison has to win this, Your Honors.
We have Judge Cosgrove, he found that "thereby"
modified the word "commits."
Then we have the majority of the Appeals Court saying
that it modified the word "inflicts,"
but then went on this grammatical lark
and found that it was not ambiguous.
Then we have Justice Sacks agreeing
that it modifies the word "inflicts."
-: Sorry, Counsel.
Could we go back to the sort of practical question here?
So we've been discussing and wrestling with a hole
that would be created, I think,
to use one of my colleagues' words,
in the hypothetical not existing here
of, you know, someone's killed with a rope, not the weapon.
If the court were to accept your interpretation
and interpret the statute as you suggest,
how would a case like this be charged?
Would there be a way to account for the hole, as it were?
-: I think the court needs to charge
the way that I asked Judge Cosgrove,
I was trial counsel, Your Honor,
that I asked Judge Cosgrove to charge, which was that-
-: Apologies.
When I said charged, I don't mean by the jury.
I mean the prosecution.
Because obviously, they will wanna hold someone
criminally responsible where they strangle someone
with a rope and not the gun they came with.
So could you address that question?
-: It's just like Rodriguez, Your Honor,
that unless the legislature does something different,
that they have to say that the dangerous weapon
causes the injury.
-: So there are no other crimes that the person
could be charged with to deal with the rope?
Like murder?
-: Sorry, I'm just asking.
We're wrestling with the practical difficulty
and the strangeness of the legislature's...
-: It's a very strange set of facts.
It's a very fact-bound case here, Your Honor.
-: Well, it's fact bound for your client
and important for your client.
But we're trying to make a rule for future cases.
And this statute is certainly gonna apply in future cases.
And so we're trying to figure out
how we should most sensibly interpret the statute.
And we're wrestling with the fact that your reading
would say that the legislature in this statute
has not penalized people who show up with a gun
but then the person is killed with a rope.
So could you explain how, is there a way,
'cause this is not addressed in the briefs,
is there a way that that situation could be accounted for
by the fabric of the rest of our criminal laws
that is not apparent from the briefing here?
-: Sure.
It's really the facts here where
it's such an anomalous set of facts
where he's found to have taken the person away
while having a gun on his hip.
And that's the instrumentality.
-: I agree the facts here are fact-specific,
but I don't think it's necessarily unusual
that there'll be multiple weapons at a crime scene,
and that someone may bring one of them
but then that's not the weapon that is used in the crime.
So could you address the more general situation?
-: Sure.
So here, Morrison leaves,
and he's not there for the encounter in the garage,
for the murder in the garage
just to put a exact point on it.
And he's summoned back to help dispose of the body
is what the finding is.
So here-
-: But that's not a necessary fact in many future cases.
Because under your reading, even if-
-: It's not gonna come up in future cases.
-: Let's just imagine Mr. Morrison stayed,
which we know he did not, but say Mr. Morrison stayed,
under your reading of the statute,
he still could not be charged, correct?
Because the gun was not used
to inflict the serious bodily injury,
which is not disputed here.
-: I think he'd be on the hook as a joint venture
of being present at the scene, absolutely.
So this really wouldn't cause a glitch in the law.
I think that the best point here for Your Honors
is to hold the legislature accountable where they,
it's just like Rodriguez.
They create this ambiguity.
Either interpretation is plausible.
I know, Your Honors, you do it for a living.
You solve problems, you solve cases.
You give the answer.
But here it's a little different.
Your job here is to see if there's an ambiguity.
-: So the view that you have on joint venture
would be that if someone abducted someone at knife point
and then there was another guy there
that had a baseball bat, they're taken away
and the person with a baseball bat hits the person,
it doesn't matter because they're all gonna be guilty
in the joint venture.
-: Right, it wouldn't matter in most cases
where it's a joint venture
-: Of an aggravated kidnapping.
-: And the weird thing here, Your Honor, is that
he was explicitly not part of that part of the joint,
I don't wanna say the joint venture.
He was not part of that transaction in the garage.
He was found to not be that by the jury.
And that's the funny part of,
it's the strange part of this case.
And that's what should get him the rule of lenity
as applied here.
Because in this weird set of facts,
troubling and tragic set of facts, no doubt,
he was not part of the use of the baton in the garage,
did not share the intent for that.
And if you look at the statute,
each of those interpretations is plausible.
And that ends the inquiry.
And the rule of lenity here as applied to Mr. Morrison
should carry the day, Your Honors.
I see I'm over.
If there's any further questions,
I'd be happy to answer them.
-: Okay, thank you. -: Thank you very much.
-: Attorney Sumrall.
Alford, I'm sorry.
I'm so sorry, thank you.
-: Good morning, Your Honors.
Pamela Alford for the Commonwealth.
The Commonwealth asks this court to affirm
the defendant's convictions for aggravated kidnapping,
manslaughter and conspiracy involving the kidnapping
and death of James Robertson.
It is not correct to say
that the defendant's conduct ended
when he left the garage because...
-: Does it matter?
I mean, let's stick to the statute.
"Thereby" it sounds like creates an ambiguity
in this third paragraph.
And as your opposing counsel has said,
"Isn't that game over for the Commonwealth?"
Once there's an ambiguity, the rule of lenity kicks in
and the defendant can't be convicted
under your interpretation.
Or are you saying that the construction
advocated by the majority of the Appeals Court
is the only construction of "thereby?"
-: It is the plain and logical reading.
There is no ambiguity in the statute.
And under this court-settled case law,
there is no need to use the rule of lenity
because the legislature was not ambiguous.
The intent of the legislature is clear.
And while it's not necessary to get there,
to use the rule of lenity in this case
would produce an absurd result.
-: What about Rodriguez where we said that
the rule of lenity applied within the same sentence?
On the last part of it, on the-
-: I thought Rodriguez was an Appeals Court case.
I could be concerned.
But the Commonwealth's view is Rodriguez helps.
Rodriguez says that "armed with a dangerous weapon."
-: I'm sorry, it is an Appeals Court case.
-: But as I said, the Commonwealth's view is that
Commonwealth versus Rodriguez
is an argument in favor of the Commonwealth
of how to consistently treat this statute,
that "armed with a dangerous weapon" modifies
both the inflicting serious bodily injury
and the sexual assault.
So here, if you took the defendant's interpretation,
you would be saying that you have to commit
the serious bodily injury with the dangerous weapon,
but that you'd only have to be armed
with the dangerous weapon for the sexual assault.
That would be an inconsistency.
To address Justice Wendlandt's question,
the use of "thereby" is consistent.
"Thereby" was first used in the kidnapping
or a predecessor kidnapping statute.
I tracked it back to 1901 in what was the first paragraph.
And it clearly went to the offense of commits.
It was predominantly used with an aggravated offense
for intent to extort.
And in 1998, when the legislature put in that statute,
they put in two new paragraphs.
And one was "kidnapping with..."
The second paragraph became
"kidnapping armed with a specified firearm
"or of a specified firearm-type weapon."
And then the sentence of,
"And if there is intent to distort, thereby..."
-: What do we do with all of that legislative history?
I mean, it's all very quite interesting.
But is the ordinary person out there supposed to understand
and know the legislative history in order to interpret this,
what I think might be ambiguous language?
Are they supposed to say: Oh, well in 1892,
they did this and then oh.
So they must mean by "thereby," they must have always meant
the commission of the kidnapping and not the DW.
-: There are two interrelated answers to that.
Judging from the person armed with a...
So "armed with a dangerous weapon"
has a very specific meaning
and has had a very specific meaning
for I would suggest well over 150 years.
-: And I would suggest it's the literal meaning
of being armed with a dangerous weapon.
My question is not about "armed with a dangerous weapon."
It's about the "inflicts SBI thereby,"
that that doesn't have a specific meaning
from time immemorial.
And it doesn't, as far as I can tell,
have a specific plain-and-ordinary meaning
in the sentence in that paragraph unless I pull in:
Well, what did the legislature probably intend?
You know, what happened in the legislative history?
And I'm wondering in that situation
where I have to rely on these
non-plain-and-ordinary meaning sources,
who wins that battle?
The Commonwealth, who's written the statute
that requires these other things in order to interpret it,
or the defendant, who is just looking at the words
of the statute?
-: I respectfully do not accept the premise
that this is ambiguous
because my suggestion is that what the legislature did here,
and the dissent pulls what he called
"a snippet of legislative history."
And I think that it helps the Commonwealth
that originally...
So originally, this was an Omnibus Firearm Statute.
And in the House, they wanna put in some language
that would put in the second and the third paragraphs.
And the first version of the third paragraph had
"with a dangerous weapon."
And then what the Conference Committee did was
they put in what we now know to be the statute
which was both consistent
with using "armed with a dangerous weapon."
And the legislature, the second part of my answer
to Your Honor is that,
the public would read the statute to say that
"armed with a dangerous weapon" has its longstanding meaning
and the legislature is presumed to know
how this court has held.
And this court has held for many, many years
in a variety of both statutes
and both in terms of statutory interpretation
and in double-jeopardy analysis
that "armed with a dangerous weapon"
means to possess it but not necessarily actively use it.
It is the defendant's interpretation.
-: The problem is, the enhancement comes from the injury.
Right? -: Yes.
-: 'Cause we've already got the enhancement
from the "armed with a dangerous weapon."
That puts you into category two, right?
-: Not necessarily, Your Honor.
So paragraph two, the Commonwealth's interpretation
is that it has to be a specific weapon.
-: In this case, it was a firearm though.
-: In this case, it was a gun.
So in this case...
-: And are you saying it doesn't fall under paragraph two?
-: The Commonwealth would say it does not
fall under paragraph two because
there was a search of Feeney's,
the co-defendant's, residence.
They did pull a nine millimeter
that possibly was the firearm.
But there was not testimony that you would need
to prove the statutory definition of a firearm:
that the barrel was under 16 inches,
that it was capable of firing a shot.
That wasn't the evidence
that was available to the Commonwealth.
-: The Commonwealth loses this appeal.
What's the consequence for this particular defendant?
-: There would be a lesser included sentence of kidnapping.
-: [Justice Wendlandt] Okay, thank you.
-: But here...
-: Now, you're saying he wasn't armed
with a dangerous weapon?
-: No, I'm saying if you look at the second paragraph...
-: Doesn't the third paragraph have the same
"armed with a dangerous weapon" as the second paragraph?
-: No.
Your Honor, respectfully,
I don't believe that to be the case.
I believe that the second paragraph
discusses firearm, rifle, shotgun, I believe machine gun.
-: So what's the dangerous weapon
that the Commonwealth is saying he was armed with?
-: The holstered gun.
That gave the defendant and his co-defendant,
who was a cooperating witness at trial, Ricci,
that the defendant had a holstered gun
that gave him the perceived lawful authority of a constable.
And using that constructive force
of the holstered gun got the victim,
who was doing the innocuous activity
of trying to fix his parents' sink...
-: Understood.
Now, so you're saying the holstered gun,
even if it's not a firearm, that's the dangerous weapon
he was armed with? -: Absolutely.
-: Even if it wasn't operable and all of that?
-: And that's a very important point.
Because if you go back to armed robbery cases
where this principle is even more entrenched,
if you go back to Commonwealth versus Maori,
which is an 1865 case,
and Commonwealth versus Rogers
where the firearm was never even produced,
it is the guise, it's the possession of the firearm
that increases the risk of harm.
And this is the principle that the legislature
would've been aware of and that the defendant is ignoring
in trying to suggest that there is an ambiguity.
-: Okay, I have a question about the "thereby."
What's it there for?
-: It's there to connect
"the infliction of a dangerous weapon."
Excuse me, "the infliction of serious bodily injury"
to "the commission of the offense,"
in that statute here, kidnapping,
"while armed with a dangerous weapon."
-: Can't you do that without the "thereby?"
-: I'm not suggesting it has great meaning,
but it does have meaning connecting the two.
-: But it's not necessary to connect the two.
It's superfluous.
-: But if it's superfluous there,
it's superfluous in the first two paragraphs of the statute.
The statute is consistent in the use of "thereby"
in those first three paragraphs of the kidnapping statute
that relates an aggravating factor
back to the commission of the offense.
-: Okay, a while ago, you cut yourself off.
But you had started to say that
if we follow Attorney Bradl's interpretation,
the defendant's interpretation,
that it would lead to an absurd result.
You didn't follow up on that,
but I'd like to follow up on that.
-: Well, and this goes...
-: If I could just get the question out.
Attorney Alford: Absolutely, in...
-: If I could get the question out?
-: Okay. -: Thank you.
But in this case, when you look
at what the jury returned for the verdict,
the manslaughter verdict,
why would it be an absurd result
for us to read that ambiguity in the way the defendant says?
Because there was no evidence
that connects whatever Mr. Morrison did
in bringing the victim to the house
to what ultimately happened.
So why would that be absurd?
Wouldn't that be consistent with reading it that way?
Because he brought the victim there.
And whatever Mr. Feeney did
was something that the jury found that Mr. Morrison
and the other co-defendant had nothing to do with
other than disposing of the body.
-: The Commonwealth respectfully disagrees
with that factual premise.
The facts of this case were that the defendant
and Ricci brought the victim into Ricci's garage
whereby pre-arrangement that this defendant was a part of,
there was a chair bolted to the floor.
And there was evidence from Ricci,
who was a cooperating witness,
that Morrison, he believed, brought the drill to do this.
So the chair was there.
Feeney comes in, he's dressed in black.
He has a black ski mask.
He's carrying the black duffle bag
that was in this defendant's car.
-: Sure.
All of that being true, but Mr. Morrison leaves.
Whatever happens, and there was testimony
about the fact that Feeney was just upset.
Maybe he wanted to scare the victim
into not be dating this woman
or to stay away from this woman.
Again, with all of the evidence
that the Commonwealth adduced at trial,
the jury still returned a manslaughter conviction
against Mr. Morrison.
-: Which the Commonwealth would suggest
is entirely consistent with an aggravated manslaughter.
First, kidnapping is a general intent crime.
So the intent that needs to be shared
is the intent to restraint, confine.
But a general intent crime, the aggravating factor
is the injury.
And here, once they got him in,
Feeney shackles the victim to the chair.
Ricci seized the black baton on the duffel bag,
and Feeney tells Ricci and Morrison to get out, to leave.
So the jury certainly could find that,
as they did for manslaughter,
that there was a high degree of likelihood
of serious injury here.
This is also absurd because to take on a legal premise,
to answer both your question,
and to build off of Justice Dewar's earlier question,
you don't even need another weapon.
The aggravating factor here is the serious bodily injury.
The injury, the harm is the same.
The victim here is dead
no matter whether a dangerous weapon was used or not.
It wouldn't even need to be a rope.
If somebody under the influence of a gun-
-: But would a jury have to specifically find
a joint venture theory for that to be true?
-: For aggravated kidnapping?
-: For what you're saying, for aggravated kidnapping,
that that shared intent runs all the way through
irrespective of whether or not you thought
that they were going to use the gun or some other implement
to effect the serious bodily injury?
-: I apologize if I'm not answering this correctly.
The kidnapping did not stop when Morrison left.
When he left, the victim who was continually restrained,
the restraint was continuous.
This wasn't an abandonment.
The jury certainly could find
that the defendant was there and willing to help.
You know, he came back much later at Feeney's behest.
-: This is not brought as a joint venture, right?
There's not a joint venture conviction
on the aggravated kidnapping, correct?
-: Well, so this was post Zanetti.
The jury was given joint venture instructions
and supplemental joint venture instructions
that they needed to determine joint venture
as to each defendant.
-: Did they convict him
of joint venture aggravated kidnapping or not?
-: There wouldn't have been a specific...
The jury was not asked to make a specific finding
that it was joint venture or not.
As I said, this was post Zanetti.
And that they found that the defendant's conduct,
that the defendant,
either as a principal or as a joint venturer
committed aggravated kidnapping.
And under the facts of this case in the plain language,
in the consistent interpretation of the word armed,
that was entirely correct.
And the Commonwealth would ask that you affirm the verdicts.