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SJC-13527.
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Commonwealth v. Scott W. Morrison.
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Attorney Bradl, whenever you're ready.
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Hello, Your Honor, may it please the court.
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Your Honors, Timothy Bradl on behalf of Scott Morrison.
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My client is doing a 25 to 30 at MCI-Norfolk
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under the Aggravated Kidnapping statute.
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Your Honor, the court has granted further appellate review,
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and Mr. Morrison is incredibly grateful for that
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and thanks this court.
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The issue here, Your Honors,
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is that the statute under which he was sentenced
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is undeniably ambiguous.
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And he must be given the benefit of the rule of lenity.
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And if the court does not do so in this case, Your Honors,
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it will work a catastrophic injustice on Mr. Morrison,
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who will spend the rest of his life,
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likely spend the rest of his life, in prison
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over a statute that we're not quite sure what it means.
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And no one wants to be part of a system where someone-
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Help us, tell us what it means then.
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So from what I understand,
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there are three levels of kidnapping.
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Yes, Your Honor.
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There's kidnapping.
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There's kidnapping, armed with a dangerous weapon.
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And then we get into this, and that has a greater sentence.
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That's right, Your Honor.
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Then we get into this third category
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with the armed with a dangerous weapon and thereby...
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Right.
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Thereby is the rub here, Your Honor.
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My first question though,
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before we get into grammatical parsing,
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why does it make sense that your client...
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'Cause again, I look at the legislature.
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They're not a bunch of grammarians.
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They're focused on policy distinction.
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So your client is armed with a gun.
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He kidnaps, and the result is death of the kidnapped victim.
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So why does it make sense that the injury basically
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doesn't matter at all here in your client's case?
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Is it all because of the word thereby?
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It's a very fact-bound case, Your Honor.
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It's a convoluted set of facts.
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Again, the legislature's writing in categories.
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So it's dividing into three categories,
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and you're creating, sort of in my view, a fourth category.
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So I just wanna understand why that is.
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Sure.
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Again, I don't find either of the two decisions below
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that helpful in elucidating meaning as opposed to grammar.
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Sure, the answer, Judge,
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is found in a close review of the facts,
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the scope of the joint venture, Your Honors.
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There's a joint venture that involves Mr. Morrison,
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allegedly, and found by the jury
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to have kidnapped the deceased
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while having a gun on his hip.
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Then he is alleged to have delivered
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or found to have delivered the person to the principal here,
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for lack of a better word, Mr. Feeney, and then leaves.
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There's no contradictory evidence that he was there,
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that he was part of this.
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And so that's where his joint venture ends for now.
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Feeney takes it upon himself to murder,
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and that was his verdict, murder of Mr. Robertson.
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Let me take it...
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Let's go a little further.
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So your client is armed with a gun and a baton, right?
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Well, that's a fact question, Judge.
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The baton was in a duffel bag in the car.
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Okay, but if, for example,
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he gave the baton and the gun to Mr. Feeney
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and then Mr. Feeney used them,
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I take it we're in the, your view,
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you get the 25 to 30 years, right?
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If he gave the baton to Feeney, Your Honor?
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And Feeney used it, he's part of this joint venture.
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I take it he still gets 25 to 30 years.
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No, Your Honor.
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'Cause I'm finding refuge from the jury verdict on that.
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He was only found guilty of manslaughter,
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not sharing the intent to murder.
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He was only found guilty of manslaughter,
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which is a statement by the jury
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that he did not share the intent to kill
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or cause grievous bodily harm.
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I'm looking at the statute, okay.
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So the statute, your focus is on the word "thereby."
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Yes.
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And again, if Mr. Feeney used the gun
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or the baton that your client had,
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I take it 25 to 30 would meet the statutory language, right?
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No, because he did not use the baton, Judge.
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I think the jury found that...
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That's probably part of the verdict, Your Honor,
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is that the baton was in a duffel bag in the car.
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I forget if it was a trunk or the back of the car.
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But nonetheless, it cannot be said
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that he was armed with it.
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So the focus needs to be on the gun.
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And it's undeniable that the gun caused no harm whatsoever.
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You're totally focused on your client,
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which is absolutely what you should be doing.
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But we're also focused on the...
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We've gotta interpret the meaning of this statute
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which applies to a lot more people than your client.
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So I'm just trying to make the statute make sense,
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and you're not helping me much on that.
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Okay, let me try, Judge.
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So the statute, the legislature has seen fit
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to add the word "thereby," not by means of,
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which I know counsel for the Commonwealth
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wants to focus the court on,
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words that are not in the statute.
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So, immaterial.
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So here, the legislature has chosen
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to use the words "thereby."
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And so I wanna invite the court to look back
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at Justice Sacks's dissent here,
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where he slices and dices the opinion,
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the majority opinion, pretty well.
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He slices and dices grammar.
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Yes.
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But no one's giving us an explanation
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of why the legislature would want to treat this differently,
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that it's so important.
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Again, the example,
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I can't remember if the majority uses it
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or the Commonwealth uses it,
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he kidnaps him with a gun
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and then strangles the victim with rope.
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It's the same result.
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But it's a different person, Judge.
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He was definitely found to not be participating in that...
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You keep focusing on this narrow factual issue,
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which is, again, your prerogative.
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But help me make sense of the statute.
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At least try.
Sure.
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It's the fourth paragraph
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of Justice Sacks's dissent, Your Honors.
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He says that, "The word 'thereby' can plausibly be found
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"to modify either inflicts."
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Well, strike that; I'm sorry.
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It's found to modify inflicts.
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But then you still need to go the next step.
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What's being inflicted,
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a kidnapping or use of a dangerous weapon?
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So that's my question for you, is that,
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in the other paragraphs of this same statute,
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"thereby" is also used, right?
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Yes, your Honor.
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And in those paragraphs, "thereby" clearly refers to
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the crime of kidnapping.
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And I'm wondering why it shouldn't also be interpreted
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or construed in this last paragraph, the third paragraph,
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to modify the crime of kidnapping?
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Because it doesn't make sense, Your Honor.
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And it's redundant.
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A kidnapping causes a harm from a kidnapping.
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It doesn't make sense.
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If you just read it...
I don't understand that.
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What do you mean, it's redundant?
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Why would the legislature have to refer back
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to the kidnapping?
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We're already talking about a kidnapping statute.
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But we don't have a serious bodily injury
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in any of the other paragraphs.
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So that's what's added here.
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Right?
Yes.
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That's what the first justice, Justice Kafker, was saying.
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It's this sort of an increasing set of punishments
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for additional conduct.
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First paragraph is just kidnapping.
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Second paragraph is kidnapping while armed with a firearm.
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And then we come to the third paragraph
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where you're armed with a dangerous weapon
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and there's a serious bodily injury thereby.
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So all Mr. Morrison needs is a plausible reading
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to create an ambiguity.
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And then it's game over for the Commonwealth, Your Honor.
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Here...
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Well, that's why I'm wondering.
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Usually, we don't interpret sentences in any statute
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in isolation.
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We usually interpret them in the context
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of the statutory scheme as a whole.
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And in the other two paragraphs,
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"thereby" refers clearly to the crime of kidnapping.
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Well, I believe "thereby" was added later, Judge.
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And in the appendix,
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we have the November 5th, 2010 version of it
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which I'm focused on here.
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And I think it's not a...
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I don't think it's a controlling word, Judge.
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Because when you look at the third paragraph
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that's applicable here, what inflicts serious bodily injury,
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a kidnapping or a dangerous weapon?
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And the logical reading of it is a dangerous weapon.
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And as Justice Sacks says it in that dissent,
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"The word 'thereby' can equally plausibly
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"be referred back to either a kidnapping
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"or a dangerous weapon."
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And can you, sorry...
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As they say in the opinions, "You need go no further."
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There's the ambiguity.
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I'd like to go one step further.
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Justice Wendlandt, are you done?
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Sure.
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I want you to, I'm going to try to wrestle
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with the policy question.
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'Cause, again, I think the legislature's focused on policy.
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Sure.
Not grammar.
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So why would a kidnapping while armed
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that results in a substantial bodily injury,
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in this case death,
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not be subject to the highest penalty, the third prong,
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because the weapon that he used, the gun,
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was not what inflicted the injury?
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Why would the legislature make that distinction
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when, again, there's a substantial injury, a kidnapping,
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and you're armed?
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And this thing wouldn't have happened...
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Maybe it would've
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because of the cleverness of the constables
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and they've got police documentation they shouldn't have.
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But why would the legislature wanna penalize this less
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even though there's a substantial injury here?
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The legislature is bound to their words, Your Honor.
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Again, I understand the wording.
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But the wording has been expertly diced
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by the Appeals Court.
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Tell me why that makes sense.
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I feel like that's speculating, Your Honor,
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because I need to stay with the language of the statute.
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Words mean something in the real world.
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They reflect reality.
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So why would the legislature want your client
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to get less time,
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even though the person who was kidnapped is dead?
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He wasn't held responsible for the death, Your Honor,
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in the sense of murder.
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He was held responsible for manslaughter
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by recklessly creating a situation.
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So he wouldn't apply to the statute
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the way Your Honor appears to be contemplating it.
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Well, I'm just trying to make sense of the statute.
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I mean, the reason that Commonwealth would have
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would be that someone's abducted using a handgun,
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taken for a ride and then beaten.
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Correct?
Right.
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And your view is that wouldn't satisfy the statute.
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The Commonwealth's view, it would.
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Well, it depends on the facts.
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And this set of facts is extremely unusual, Your Honor,
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where it's established conclusively
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that Mr. Morrison was told,
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and the other co-defendant Ricci was told
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that there was going to be no...
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I know, but you lost that and with the jury.
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So the issue-
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Well, no, I don't think I did, Judge
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Sorry to cut you off.
265
00:12:54.330 --> 00:12:56.640
I don't think I did, Judge.
266
00:12:56.640 --> 00:12:57.930
The question I have is,
267
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that's what we're really struggling with.
268
00:12:59.490 --> 00:13:00.780
The legislature could say,
269
00:13:00.780 --> 00:13:03.510
when you abduct someone using a handgun,
270
00:13:03.510 --> 00:13:05.640
and then with the consequences that follow
271
00:13:05.640 --> 00:13:07.620
if someone is severely beaten
272
00:13:07.620 --> 00:13:09.510
so as to inflict serious bodily injury,
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00:13:09.510 --> 00:13:11.343
we're gonna punish you further.
274
00:13:12.180 --> 00:13:14.797
Then you read on in the same sentence and it says,
275
00:13:14.797 --> 00:13:16.920
"whoever sexually assaults such person,"
276
00:13:16.920 --> 00:13:18.870
there's no therebys in that.
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00:13:18.870 --> 00:13:21.390
It could be someone is abducted
278
00:13:21.390 --> 00:13:23.160
and then they're sexually assaulted.
279
00:13:23.160 --> 00:13:24.510
That's an aggravating factor
280
00:13:24.510 --> 00:13:26.160
for aggravating kidnapping, right.
281
00:13:26.160 --> 00:13:27.840
Well, that's the Rodriguez case, Judge,
282
00:13:27.840 --> 00:13:31.290
where the statute has already been found to be subject
283
00:13:31.290 --> 00:13:34.000
to the rule of lenity in that respect
284
00:13:34.920 --> 00:13:39.180
where the sexual assault aspect of it,
285
00:13:39.180 --> 00:13:42.300
the defendant in Rodriguez got the benefit of that.
286
00:13:42.300 --> 00:13:44.190
And, you know, as Justice Sacks's, again,
287
00:13:44.190 --> 00:13:46.927
says in his dissent, "It's not surprising that
288
00:13:46.927 --> 00:13:48.957
"the language here is troublesome."
289
00:13:50.280 --> 00:13:51.930
If I could just account for
290
00:13:51.930 --> 00:13:53.880
all the different interpretations, Judge.
291
00:13:53.880 --> 00:13:57.390
And this is why Morrison has to win this, Your Honors.
292
00:13:57.390 --> 00:14:00.660
We have Judge Cosgrove, he found that "thereby"
293
00:14:00.660 --> 00:14:02.940
modified the word "commits."
294
00:14:02.940 --> 00:14:06.390
Then we have the majority of the Appeals Court saying
295
00:14:06.390 --> 00:14:09.000
that it modified the word "inflicts,"
296
00:14:09.000 --> 00:14:11.610
but then went on this grammatical lark
297
00:14:11.610 --> 00:14:14.160
and found that it was not ambiguous.
298
00:14:14.160 --> 00:14:17.160
Then we have Justice Sacks agreeing
299
00:14:17.160 --> 00:14:19.950
that it modifies the word "inflicts."
300
00:14:19.950 --> 00:14:20.850
Sorry, Counsel.
301
00:14:20.850 --> 00:14:23.310
Could we go back to the sort of practical question here?
302
00:14:23.310 --> 00:14:26.490
So we've been discussing and wrestling with a hole
303
00:14:26.490 --> 00:14:27.420
that would be created, I think,
304
00:14:27.420 --> 00:14:29.400
to use one of my colleagues' words,
305
00:14:29.400 --> 00:14:31.620
in the hypothetical not existing here
306
00:14:31.620 --> 00:14:35.043
of, you know, someone's killed with a rope, not the weapon.
307
00:14:38.040 --> 00:14:41.970
If the court were to accept your interpretation
308
00:14:41.970 --> 00:14:45.063
and interpret the statute as you suggest,
309
00:14:46.680 --> 00:14:49.290
how would a case like this be charged?
310
00:14:49.290 --> 00:14:52.653
Would there be a way to account for the hole, as it were?
311
00:14:53.910 --> 00:14:58.470
I think the court needs to charge
312
00:14:58.470 --> 00:14:59.910
the way that I asked Judge Cosgrove,
313
00:14:59.910 --> 00:15:01.170
I was trial counsel, Your Honor,
314
00:15:01.170 --> 00:15:04.590
that I asked Judge Cosgrove to charge, which was that-
315
00:15:04.590 --> 00:15:05.423
Apologies.
316
00:15:06.413 --> 00:15:08.190
When I said charged, I don't mean by the jury.
317
00:15:08.190 --> 00:15:09.720
I mean the prosecution.
318
00:15:09.720 --> 00:15:12.330
Because obviously, they will wanna hold someone
319
00:15:12.330 --> 00:15:14.220
criminally responsible where they strangle someone
320
00:15:14.220 --> 00:15:16.380
with a rope and not the gun they came with.
321
00:15:16.380 --> 00:15:17.730
So could you address that question?
322
00:15:17.730 --> 00:15:19.170
It's just like Rodriguez, Your Honor,
323
00:15:19.170 --> 00:15:22.020
that unless the legislature does something different,
324
00:15:22.020 --> 00:15:24.810
that they have to say that the dangerous weapon
325
00:15:24.810 --> 00:15:26.130
causes the injury.
326
00:15:26.130 --> 00:15:27.870
So there are no other crimes that the person
327
00:15:27.870 --> 00:15:30.213
could be charged with to deal with the rope?
328
00:15:32.070 --> 00:15:33.003
Like murder?
329
00:15:35.250 --> 00:15:36.510
Sorry, I'm just asking.
330
00:15:36.510 --> 00:15:39.270
We're wrestling with the practical difficulty
331
00:15:39.270 --> 00:15:41.700
and the strangeness of the legislature's...
332
00:15:41.700 --> 00:15:43.280
It's a very strange set of facts.
333
00:15:43.280 --> 00:15:45.540
It's a very fact-bound case here, Your Honor.
334
00:15:45.540 --> 00:15:47.400
Well, it's fact bound for your client
335
00:15:47.400 --> 00:15:48.270
and important for your client.
336
00:15:48.270 --> 00:15:50.100
But we're trying to make a rule for future cases.
337
00:15:50.100 --> 00:15:52.920
And this statute is certainly gonna apply in future cases.
338
00:15:52.920 --> 00:15:54.450
And so we're trying to figure out
339
00:15:54.450 --> 00:15:56.670
how we should most sensibly interpret the statute.
340
00:15:56.670 --> 00:15:59.560
And we're wrestling with the fact that your reading
341
00:16:00.542 --> 00:16:04.470
would say that the legislature in this statute
342
00:16:04.470 --> 00:16:07.260
has not penalized people who show up with a gun
343
00:16:07.260 --> 00:16:09.060
but then the person is killed with a rope.
344
00:16:09.060 --> 00:16:12.660
So could you explain how, is there a way,
345
00:16:12.660 --> 00:16:14.160
'cause this is not addressed in the briefs,
346
00:16:14.160 --> 00:16:17.550
is there a way that that situation could be accounted for
347
00:16:17.550 --> 00:16:20.910
by the fabric of the rest of our criminal laws
348
00:16:20.910 --> 00:16:22.590
that is not apparent from the briefing here?
349
00:16:22.590 --> 00:16:23.423
Sure.
350
00:16:24.630 --> 00:16:26.610
It's really the facts here where
351
00:16:26.610 --> 00:16:29.610
it's such an anomalous set of facts
352
00:16:29.610 --> 00:16:34.110
where he's found to have taken the person away
353
00:16:34.110 --> 00:16:35.820
while having a gun on his hip.
354
00:16:35.820 --> 00:16:37.170
And that's the instrumentality.
355
00:16:37.170 --> 00:16:39.510
I agree the facts here are fact-specific,
356
00:16:39.510 --> 00:16:41.670
but I don't think it's necessarily unusual
357
00:16:41.670 --> 00:16:43.890
that there'll be multiple weapons at a crime scene,
358
00:16:43.890 --> 00:16:45.690
and that someone may bring one of them
359
00:16:45.690 --> 00:16:48.780
but then that's not the weapon that is used in the crime.
360
00:16:48.780 --> 00:16:50.910
So could you address the more general situation?
361
00:16:50.910 --> 00:16:51.743
Sure.
362
00:16:51.743 --> 00:16:55.817
So here, Morrison leaves,
363
00:16:58.200 --> 00:17:01.560
and he's not there for the encounter in the garage,
364
00:17:01.560 --> 00:17:02.760
for the murder in the garage
365
00:17:02.760 --> 00:17:05.160
just to put a exact point on it.
366
00:17:05.160 --> 00:17:08.820
And he's summoned back to help dispose of the body
367
00:17:08.820 --> 00:17:10.170
is what the finding is.
368
00:17:10.170 --> 00:17:11.247
So here-
369
00:17:11.247 --> 00:17:14.490
But that's not a necessary fact in many future cases.
370
00:17:14.490 --> 00:17:16.162
Because under your reading, even if-
371
00:17:16.162 --> 00:17:17.850
It's not gonna come up in future cases.
372
00:17:17.850 --> 00:17:19.620
Let's just imagine Mr. Morrison stayed,
373
00:17:19.620 --> 00:17:22.563
which we know he did not, but say Mr. Morrison stayed,
374
00:17:23.670 --> 00:17:24.840
under your reading of the statute,
375
00:17:24.840 --> 00:17:26.610
he still could not be charged, correct?
376
00:17:26.610 --> 00:17:30.330
Because the gun was not used
377
00:17:30.330 --> 00:17:32.250
to inflict the serious bodily injury,
378
00:17:32.250 --> 00:17:33.870
which is not disputed here.
379
00:17:33.870 --> 00:17:35.940
I think he'd be on the hook as a joint venture
380
00:17:35.940 --> 00:17:38.130
of being present at the scene, absolutely.
381
00:17:38.130 --> 00:17:42.750
So this really wouldn't cause a glitch in the law.
382
00:17:42.750 --> 00:17:45.930
I think that the best point here for Your Honors
383
00:17:45.930 --> 00:17:49.650
is to hold the legislature accountable where they,
384
00:17:49.650 --> 00:17:51.030
it's just like Rodriguez.
385
00:17:51.030 --> 00:17:52.983
They create this ambiguity.
386
00:17:54.240 --> 00:17:56.370
Either interpretation is plausible.
387
00:17:56.370 --> 00:17:59.310
I know, Your Honors, you do it for a living.
388
00:17:59.310 --> 00:18:01.830
You solve problems, you solve cases.
389
00:18:01.830 --> 00:18:03.240
You give the answer.
390
00:18:03.240 --> 00:18:04.920
But here it's a little different.
391
00:18:04.920 --> 00:18:08.480
Your job here is to see if there's an ambiguity.
392
00:18:08.480 --> 00:18:11.010
So the view that you have on joint venture
393
00:18:11.010 --> 00:18:16.010
would be that if someone abducted someone at knife point
394
00:18:16.680 --> 00:18:18.060
and then there was another guy there
395
00:18:18.060 --> 00:18:20.610
that had a baseball bat, they're taken away
396
00:18:20.610 --> 00:18:22.650
and the person with a baseball bat hits the person,
397
00:18:22.650 --> 00:18:24.638
it doesn't matter because they're all gonna be guilty
398
00:18:24.638 --> 00:18:26.490
in the joint venture.
399
00:18:26.490 --> 00:18:28.650
Right, it wouldn't matter in most cases
400
00:18:28.650 --> 00:18:29.550
where it's a joint venture
401
00:18:29.550 --> 00:18:30.990
Of an aggravated kidnapping.
402
00:18:30.990 --> 00:18:32.970
And the weird thing here, Your Honor, is that
403
00:18:32.970 --> 00:18:36.270
he was explicitly not part of that part of the joint,
404
00:18:36.270 --> 00:18:37.290
I don't wanna say the joint venture.
405
00:18:37.290 --> 00:18:40.920
He was not part of that transaction in the garage.
406
00:18:40.920 --> 00:18:43.500
He was found to not be that by the jury.
407
00:18:43.500 --> 00:18:46.140
And that's the funny part of,
408
00:18:46.140 --> 00:18:47.460
it's the strange part of this case.
409
00:18:47.460 --> 00:18:51.090
And that's what should get him the rule of lenity
410
00:18:51.090 --> 00:18:52.500
as applied here.
411
00:18:52.500 --> 00:18:55.230
Because in this weird set of facts,
412
00:18:55.230 --> 00:18:58.503
troubling and tragic set of facts, no doubt,
413
00:18:59.640 --> 00:19:03.840
he was not part of the use of the baton in the garage,
414
00:19:03.840 --> 00:19:05.880
did not share the intent for that.
415
00:19:05.880 --> 00:19:08.430
And if you look at the statute,
416
00:19:08.430 --> 00:19:11.040
each of those interpretations is plausible.
417
00:19:11.040 --> 00:19:13.260
And that ends the inquiry.
418
00:19:13.260 --> 00:19:17.010
And the rule of lenity here as applied to Mr. Morrison
419
00:19:17.010 --> 00:19:19.053
should carry the day, Your Honors.
420
00:19:19.920 --> 00:19:20.753
I see I'm over.
421
00:19:20.753 --> 00:19:23.190
If there's any further questions,
422
00:19:23.190 --> 00:19:24.780
I'd be happy to answer them.
423
00:19:24.780 --> 00:19:26.093
Okay, thank you.
Thank you very much.
424
00:19:30.576 --> 00:19:32.159
Attorney Sumrall.
425
00:19:35.938 --> 00:19:36.771
Alford, I'm sorry.
426
00:19:36.771 --> 00:19:38.823
I'm so sorry, thank you.
427
00:19:39.930 --> 00:19:42.150
Good morning, Your Honors.
428
00:19:42.150 --> 00:19:44.130
Pamela Alford for the Commonwealth.
429
00:19:44.130 --> 00:19:46.560
The Commonwealth asks this court to affirm
430
00:19:46.560 --> 00:19:49.830
the defendant's convictions for aggravated kidnapping,
431
00:19:49.830 --> 00:19:52.920
manslaughter and conspiracy involving the kidnapping
432
00:19:52.920 --> 00:19:54.750
and death of James Robertson.
433
00:19:54.750 --> 00:19:56.760
It is not correct to say
434
00:19:56.760 --> 00:19:59.430
that the defendant's conduct ended
435
00:19:59.430 --> 00:20:01.113
when he left the garage because...
436
00:20:01.113 --> 00:20:02.160
Does it matter?
437
00:20:02.160 --> 00:20:03.727
I mean, let's stick to the statute.
438
00:20:03.727 --> 00:20:08.520
"Thereby" it sounds like creates an ambiguity
439
00:20:08.520 --> 00:20:10.140
in this third paragraph.
440
00:20:10.140 --> 00:20:14.107
And as your opposing counsel has said,
441
00:20:14.107 --> 00:20:16.620
"Isn't that game over for the Commonwealth?"
442
00:20:16.620 --> 00:20:20.050
Once there's an ambiguity, the rule of lenity kicks in
443
00:20:22.301 --> 00:20:24.870
and the defendant can't be convicted
444
00:20:24.870 --> 00:20:26.250
under your interpretation.
445
00:20:26.250 --> 00:20:28.200
Or are you saying that the construction
446
00:20:29.640 --> 00:20:32.310
advocated by the majority of the Appeals Court
447
00:20:32.310 --> 00:20:35.430
is the only construction of "thereby?"
448
00:20:35.430 --> 00:20:38.070
It is the plain and logical reading.
449
00:20:38.070 --> 00:20:40.473
There is no ambiguity in the statute.
450
00:20:42.150 --> 00:20:44.130
And under this court-settled case law,
451
00:20:44.130 --> 00:20:47.340
there is no need to use the rule of lenity
452
00:20:47.340 --> 00:20:49.920
because the legislature was not ambiguous.
453
00:20:49.920 --> 00:20:52.590
The intent of the legislature is clear.
454
00:20:52.590 --> 00:20:55.170
And while it's not necessary to get there,
455
00:20:55.170 --> 00:20:58.080
to use the rule of lenity in this case
456
00:20:58.080 --> 00:20:59.883
would produce an absurd result.
457
00:21:01.290 --> 00:21:03.420
What about Rodriguez where we said that
458
00:21:03.420 --> 00:21:06.033
the rule of lenity applied within the same sentence?
459
00:21:07.740 --> 00:21:09.483
On the last part of it, on the-
460
00:21:11.190 --> 00:21:14.610
I thought Rodriguez was an Appeals Court case.
461
00:21:14.610 --> 00:21:15.570
I could be concerned.
462
00:21:15.570 --> 00:21:19.980
But the Commonwealth's view is Rodriguez helps.
463
00:21:19.980 --> 00:21:24.630
Rodriguez says that "armed with a dangerous weapon."
464
00:21:24.630 --> 00:21:26.430
I'm sorry, it is an Appeals Court case.
465
00:21:26.430 --> 00:21:29.190
But as I said, the Commonwealth's view is that
466
00:21:29.190 --> 00:21:31.060
Commonwealth versus Rodriguez
467
00:21:31.980 --> 00:21:34.400
is an argument in favor of the Commonwealth
468
00:21:34.400 --> 00:21:36.930
of how to consistently treat this statute,
469
00:21:36.930 --> 00:21:41.130
that "armed with a dangerous weapon" modifies
470
00:21:41.130 --> 00:21:46.130
both the inflicting serious bodily injury
471
00:21:46.980 --> 00:21:49.410
and the sexual assault.
472
00:21:49.410 --> 00:21:54.000
So here, if you took the defendant's interpretation,
473
00:21:54.000 --> 00:21:57.790
you would be saying that you have to commit
474
00:22:00.629 --> 00:22:04.260
the serious bodily injury with the dangerous weapon,
475
00:22:04.260 --> 00:22:05.730
but that you'd only have to be armed
476
00:22:05.730 --> 00:22:08.550
with the dangerous weapon for the sexual assault.
477
00:22:08.550 --> 00:22:10.503
That would be an inconsistency.
478
00:22:12.750 --> 00:22:15.840
To address Justice Wendlandt's question,
479
00:22:15.840 --> 00:22:18.877
the use of "thereby" is consistent.
480
00:22:18.877 --> 00:22:21.060
"Thereby" was first used in the kidnapping
481
00:22:21.060 --> 00:22:23.130
or a predecessor kidnapping statute.
482
00:22:23.130 --> 00:22:26.940
I tracked it back to 1901 in what was the first paragraph.
483
00:22:26.940 --> 00:22:31.940
And it clearly went to the offense of commits.
484
00:22:32.400 --> 00:22:36.930
It was predominantly used with an aggravated offense
485
00:22:36.930 --> 00:22:39.390
for intent to extort.
486
00:22:39.390 --> 00:22:44.390
And in 1998, when the legislature put in that statute,
487
00:22:44.550 --> 00:22:46.590
they put in two new paragraphs.
488
00:22:46.590 --> 00:22:51.590
And one was "kidnapping with..."
489
00:22:51.720 --> 00:22:53.797
The second paragraph became
490
00:22:53.797 --> 00:22:57.517
"kidnapping armed with a specified firearm
491
00:22:57.517 --> 00:23:01.347
"or of a specified firearm-type weapon."
492
00:23:02.220 --> 00:23:04.173
And then the sentence of,
493
00:23:04.173 --> 00:23:07.650
"And if there is intent to distort, thereby..."
494
00:23:07.650 --> 00:23:10.200
What do we do with all of that legislative history?
495
00:23:10.200 --> 00:23:11.880
I mean, it's all very quite interesting.
496
00:23:11.880 --> 00:23:15.390
But is the ordinary person out there supposed to understand
497
00:23:15.390 --> 00:23:19.920
and know the legislative history in order to interpret this,
498
00:23:19.920 --> 00:23:22.260
what I think might be ambiguous language?
499
00:23:22.260 --> 00:23:24.960
Are they supposed to say: Oh, well in 1892,
500
00:23:24.960 --> 00:23:26.430
they did this and then oh.
501
00:23:26.430 --> 00:23:30.360
So they must mean by "thereby," they must have always meant
502
00:23:30.360 --> 00:23:33.390
the commission of the kidnapping and not the DW.
503
00:23:33.390 --> 00:23:35.850
There are two interrelated answers to that.
504
00:23:35.850 --> 00:23:40.850
Judging from the person armed with a...
505
00:23:40.920 --> 00:23:43.920
So "armed with a dangerous weapon"
506
00:23:43.920 --> 00:23:45.390
has a very specific meaning
507
00:23:45.390 --> 00:23:47.460
and has had a very specific meaning
508
00:23:47.460 --> 00:23:50.250
for I would suggest well over 150 years.
509
00:23:50.250 --> 00:23:52.620
And I would suggest it's the literal meaning
510
00:23:52.620 --> 00:23:54.510
of being armed with a dangerous weapon.
511
00:23:54.510 --> 00:23:57.330
My question is not about "armed with a dangerous weapon."
512
00:23:57.330 --> 00:24:01.497
It's about the "inflicts SBI thereby,"
513
00:24:03.570 --> 00:24:06.660
that that doesn't have a specific meaning
514
00:24:06.660 --> 00:24:08.010
from time immemorial.
515
00:24:08.010 --> 00:24:11.700
And it doesn't, as far as I can tell,
516
00:24:11.700 --> 00:24:14.880
have a specific plain-and-ordinary meaning
517
00:24:14.880 --> 00:24:19.880
in the sentence in that paragraph unless I pull in:
518
00:24:19.890 --> 00:24:24.360
Well, what did the legislature probably intend?
519
00:24:24.360 --> 00:24:27.540
You know, what happened in the legislative history?
520
00:24:27.540 --> 00:24:30.330
And I'm wondering in that situation
521
00:24:30.330 --> 00:24:32.700
where I have to rely on these
522
00:24:32.700 --> 00:24:37.700
non-plain-and-ordinary meaning sources,
523
00:24:38.130 --> 00:24:39.720
who wins that battle?
524
00:24:39.720 --> 00:24:42.360
The Commonwealth, who's written the statute
525
00:24:42.360 --> 00:24:46.140
that requires these other things in order to interpret it,
526
00:24:46.140 --> 00:24:48.570
or the defendant, who is just looking at the words
527
00:24:48.570 --> 00:24:49.890
of the statute?
528
00:24:49.890 --> 00:24:53.430
I respectfully do not accept the premise
529
00:24:53.430 --> 00:24:55.620
that this is ambiguous
530
00:24:55.620 --> 00:25:00.360
because my suggestion is that what the legislature did here,
531
00:25:00.360 --> 00:25:03.877
and the dissent pulls what he called
532
00:25:03.877 --> 00:25:06.660
"a snippet of legislative history."
533
00:25:06.660 --> 00:25:09.510
And I think that it helps the Commonwealth
534
00:25:09.510 --> 00:25:10.890
that originally...
535
00:25:10.890 --> 00:25:14.130
So originally, this was an Omnibus Firearm Statute.
536
00:25:14.130 --> 00:25:18.000
And in the House, they wanna put in some language
537
00:25:18.000 --> 00:25:20.220
that would put in the second and the third paragraphs.
538
00:25:20.220 --> 00:25:22.687
And the first version of the third paragraph had
539
00:25:22.687 --> 00:25:24.990
"with a dangerous weapon."
540
00:25:24.990 --> 00:25:28.440
And then what the Conference Committee did was
541
00:25:28.440 --> 00:25:31.050
they put in what we now know to be the statute
542
00:25:31.050 --> 00:25:33.210
which was both consistent
543
00:25:33.210 --> 00:25:36.120
with using "armed with a dangerous weapon."
544
00:25:36.120 --> 00:25:39.840
And the legislature, the second part of my answer
545
00:25:39.840 --> 00:25:41.820
to Your Honor is that,
546
00:25:41.820 --> 00:25:44.407
the public would read the statute to say that
547
00:25:44.407 --> 00:25:47.393
"armed with a dangerous weapon" has its longstanding meaning
548
00:25:47.393 --> 00:25:50.070
and the legislature is presumed to know
549
00:25:50.070 --> 00:25:51.720
how this court has held.
550
00:25:51.720 --> 00:25:54.930
And this court has held for many, many years
551
00:25:54.930 --> 00:25:58.920
in a variety of both statutes
552
00:25:58.920 --> 00:26:02.910
and both in terms of statutory interpretation
553
00:26:02.910 --> 00:26:05.010
and in double-jeopardy analysis
554
00:26:05.010 --> 00:26:06.963
that "armed with a dangerous weapon"
555
00:26:08.415 --> 00:26:12.600
means to possess it but not necessarily actively use it.
556
00:26:12.600 --> 00:26:15.060
It is the defendant's interpretation.
557
00:26:15.060 --> 00:26:18.060
The problem is, the enhancement comes from the injury.
558
00:26:18.060 --> 00:26:19.113
Right?
Yes.
559
00:26:20.610 --> 00:26:22.530
'Cause we've already got the enhancement
560
00:26:22.530 --> 00:26:24.240
from the "armed with a dangerous weapon."
561
00:26:24.240 --> 00:26:27.150
That puts you into category two, right?
562
00:26:27.150 --> 00:26:29.100
Not necessarily, Your Honor.
563
00:26:29.100 --> 00:26:33.000
So paragraph two, the Commonwealth's interpretation
564
00:26:33.000 --> 00:26:35.270
is that it has to be a specific weapon.
565
00:26:35.270 --> 00:26:37.473
In this case, it was a firearm though.
566
00:26:38.310 --> 00:26:40.703
In this case, it was a gun.
567
00:26:41.670 --> 00:26:43.950
So in this case...
568
00:26:43.950 --> 00:26:46.560
And are you saying it doesn't fall under paragraph two?
569
00:26:46.560 --> 00:26:48.120
The Commonwealth would say it does not
570
00:26:48.120 --> 00:26:50.200
fall under paragraph two because
571
00:26:51.828 --> 00:26:54.240
there was a search of Feeney's,
572
00:26:54.240 --> 00:26:56.250
the co-defendant's, residence.
573
00:26:56.250 --> 00:26:59.970
They did pull a nine millimeter
574
00:26:59.970 --> 00:27:01.710
that possibly was the firearm.
575
00:27:01.710 --> 00:27:05.430
But there was not testimony that you would need
576
00:27:05.430 --> 00:27:08.643
to prove the statutory definition of a firearm:
577
00:27:09.710 --> 00:27:11.670
that the barrel was under 16 inches,
578
00:27:11.670 --> 00:27:13.650
that it was capable of firing a shot.
579
00:27:13.650 --> 00:27:15.280
That wasn't the evidence
580
00:27:16.260 --> 00:27:17.093
that was available to the Commonwealth.
581
00:27:17.093 --> 00:27:20.823
The Commonwealth loses this appeal.
582
00:27:21.990 --> 00:27:24.843
What's the consequence for this particular defendant?
583
00:27:26.040 --> 00:27:29.447
There would be a lesser included sentence of kidnapping.
584
00:27:29.447 --> 00:27:30.743
[Justice Wendlandt] Okay, thank you.
585
00:27:31.800 --> 00:27:33.420
But here...
586
00:27:33.420 --> 00:27:36.270
Now, you're saying he wasn't armed
587
00:27:36.270 --> 00:27:37.650
with a dangerous weapon?
588
00:27:37.650 --> 00:27:42.650
No, I'm saying if you look at the second paragraph...
589
00:27:45.870 --> 00:27:47.827
Doesn't the third paragraph have the same
590
00:27:47.827 --> 00:27:51.450
"armed with a dangerous weapon" as the second paragraph?
591
00:27:51.450 --> 00:27:53.070
No.
592
00:27:53.070 --> 00:27:54.660
Your Honor, respectfully,
593
00:27:54.660 --> 00:27:58.560
I don't believe that to be the case.
594
00:27:58.560 --> 00:28:00.870
I believe that the second paragraph
595
00:28:00.870 --> 00:28:05.400
discusses firearm, rifle, shotgun, I believe machine gun.
596
00:28:05.400 --> 00:28:06.750
So what's the dangerous weapon
597
00:28:06.750 --> 00:28:08.970
that the Commonwealth is saying he was armed with?
598
00:28:08.970 --> 00:28:10.050
The holstered gun.
599
00:28:10.050 --> 00:28:13.320
That gave the defendant and his co-defendant,
600
00:28:13.320 --> 00:28:15.993
who was a cooperating witness at trial, Ricci,
601
00:28:17.040 --> 00:28:19.380
that the defendant had a holstered gun
602
00:28:19.380 --> 00:28:24.380
that gave him the perceived lawful authority of a constable.
603
00:28:24.900 --> 00:28:27.390
And using that constructive force
604
00:28:27.390 --> 00:28:30.450
of the holstered gun got the victim,
605
00:28:30.450 --> 00:28:33.000
who was doing the innocuous activity
606
00:28:33.000 --> 00:28:35.190
of trying to fix his parents' sink...
607
00:28:35.190 --> 00:28:36.023
Understood.
608
00:28:36.023 --> 00:28:38.580
Now, so you're saying the holstered gun,
609
00:28:38.580 --> 00:28:42.030
even if it's not a firearm, that's the dangerous weapon
610
00:28:42.030 --> 00:28:43.323
he was armed with?
Absolutely.
611
00:28:43.323 --> 00:28:46.710
Even if it wasn't operable and all of that?
612
00:28:46.710 --> 00:28:48.570
And that's a very important point.
613
00:28:48.570 --> 00:28:51.420
Because if you go back to armed robbery cases
614
00:28:51.420 --> 00:28:56.060
where this principle is even more entrenched,
615
00:29:02.040 --> 00:29:05.730
if you go back to Commonwealth versus Maori,
616
00:29:05.730 --> 00:29:07.290
which is an 1865 case,
617
00:29:07.290 --> 00:29:09.210
and Commonwealth versus Rogers
618
00:29:09.210 --> 00:29:14.210
where the firearm was never even produced,
619
00:29:14.760 --> 00:29:19.200
it is the guise, it's the possession of the firearm
620
00:29:19.200 --> 00:29:21.750
that increases the risk of harm.
621
00:29:21.750 --> 00:29:25.140
And this is the principle that the legislature
622
00:29:25.140 --> 00:29:27.840
would've been aware of and that the defendant is ignoring
623
00:29:27.840 --> 00:29:30.360
in trying to suggest that there is an ambiguity.
624
00:29:30.360 --> 00:29:33.147
Okay, I have a question about the "thereby."
625
00:29:34.680 --> 00:29:36.780
What's it there for?
626
00:29:36.780 --> 00:29:38.659
It's there to connect
627
00:29:38.659 --> 00:29:43.620
"the infliction of a dangerous weapon."
628
00:29:43.620 --> 00:29:48.240
Excuse me, "the infliction of serious bodily injury"
629
00:29:48.240 --> 00:29:51.390
to "the commission of the offense,"
630
00:29:51.390 --> 00:29:55.027
in that statute here, kidnapping,
631
00:29:55.027 --> 00:29:57.270
"while armed with a dangerous weapon."
632
00:29:57.270 --> 00:29:59.397
Can't you do that without the "thereby?"
633
00:30:00.990 --> 00:30:02.970
I'm not suggesting it has great meaning,
634
00:30:02.970 --> 00:30:05.520
but it does have meaning connecting the two.
635
00:30:05.520 --> 00:30:09.960
But it's not necessary to connect the two.
636
00:30:09.960 --> 00:30:12.690
It's superfluous.
637
00:30:12.690 --> 00:30:14.250
But if it's superfluous there,
638
00:30:14.250 --> 00:30:17.940
it's superfluous in the first two paragraphs of the statute.
639
00:30:17.940 --> 00:30:22.940
The statute is consistent in the use of "thereby"
640
00:30:22.980 --> 00:30:26.970
in those first three paragraphs of the kidnapping statute
641
00:30:26.970 --> 00:30:29.790
that relates an aggravating factor
642
00:30:29.790 --> 00:30:32.892
back to the commission of the offense.
643
00:30:32.892 --> 00:30:36.450
Okay, a while ago, you cut yourself off.
644
00:30:36.450 --> 00:30:38.920
But you had started to say that
645
00:30:40.110 --> 00:30:43.440
if we follow Attorney Bradl's interpretation,
646
00:30:43.440 --> 00:30:44.850
the defendant's interpretation,
647
00:30:44.850 --> 00:30:47.550
that it would lead to an absurd result.
648
00:30:47.550 --> 00:30:48.660
You didn't follow up on that,
649
00:30:48.660 --> 00:30:49.830
but I'd like to follow up on that.
650
00:30:49.830 --> 00:30:50.820
Well, and this goes...
651
00:30:50.820 --> 00:30:52.860
If I could just get the question out.
652
00:30:52.860 --> 00:30:54.480
Absolutely, in...
653
00:30:54.480 --> 00:30:55.860
If I could get the question out?
654
00:30:55.860 --> 00:30:57.390
Okay.
Thank you.
655
00:30:57.390 --> 00:30:58.980
But in this case, when you look
656
00:30:58.980 --> 00:31:02.130
at what the jury returned for the verdict,
657
00:31:02.130 --> 00:31:03.750
the manslaughter verdict,
658
00:31:03.750 --> 00:31:05.880
why would it be an absurd result
659
00:31:05.880 --> 00:31:10.110
for us to read that ambiguity in the way the defendant says?
660
00:31:10.110 --> 00:31:12.900
Because there was no evidence
661
00:31:12.900 --> 00:31:16.620
that connects whatever Mr. Morrison did
662
00:31:16.620 --> 00:31:19.680
in bringing the victim to the house
663
00:31:19.680 --> 00:31:21.723
to what ultimately happened.
664
00:31:23.850 --> 00:31:25.620
So why would that be absurd?
665
00:31:25.620 --> 00:31:28.470
Wouldn't that be consistent with reading it that way?
666
00:31:28.470 --> 00:31:33.120
Because he brought the victim there.
667
00:31:33.120 --> 00:31:35.160
And whatever Mr. Feeney did
668
00:31:35.160 --> 00:31:38.730
was something that the jury found that Mr. Morrison
669
00:31:38.730 --> 00:31:41.190
and the other co-defendant had nothing to do with
670
00:31:41.190 --> 00:31:43.920
other than disposing of the body.
671
00:31:43.920 --> 00:31:46.710
The Commonwealth respectfully disagrees
672
00:31:46.710 --> 00:31:48.213
with that factual premise.
673
00:31:50.192 --> 00:31:53.160
The facts of this case were that the defendant
674
00:31:53.160 --> 00:31:58.160
and Ricci brought the victim into Ricci's garage
675
00:31:59.820 --> 00:32:04.820
whereby pre-arrangement that this defendant was a part of,
676
00:32:07.110 --> 00:32:11.100
there was a chair bolted to the floor.
677
00:32:11.100 --> 00:32:13.560
And there was evidence from Ricci,
678
00:32:13.560 --> 00:32:16.170
who was a cooperating witness,
679
00:32:16.170 --> 00:32:19.860
that Morrison, he believed, brought the drill to do this.
680
00:32:19.860 --> 00:32:21.720
So the chair was there.
681
00:32:21.720 --> 00:32:24.390
Feeney comes in, he's dressed in black.
682
00:32:24.390 --> 00:32:26.070
He has a black ski mask.
683
00:32:26.070 --> 00:32:27.780
He's carrying the black duffle bag
684
00:32:27.780 --> 00:32:30.120
that was in this defendant's car.
685
00:32:30.120 --> 00:32:30.953
Sure.
686
00:32:30.953 --> 00:32:35.250
All of that being true, but Mr. Morrison leaves.
687
00:32:35.250 --> 00:32:38.130
Whatever happens, and there was testimony
688
00:32:38.130 --> 00:32:40.710
about the fact that Feeney was just upset.
689
00:32:40.710 --> 00:32:42.360
Maybe he wanted to scare the victim
690
00:32:42.360 --> 00:32:44.260
into not be dating this woman
691
00:32:45.150 --> 00:32:46.920
or to stay away from this woman.
692
00:32:46.920 --> 00:32:49.200
Again, with all of the evidence
693
00:32:49.200 --> 00:32:52.500
that the Commonwealth adduced at trial,
694
00:32:52.500 --> 00:32:56.040
the jury still returned a manslaughter conviction
695
00:32:56.040 --> 00:32:57.180
against Mr. Morrison.
696
00:32:57.180 --> 00:32:58.650
Which the Commonwealth would suggest
697
00:32:58.650 --> 00:33:01.980
is entirely consistent with an aggravated manslaughter.
698
00:33:01.980 --> 00:33:05.100
First, kidnapping is a general intent crime.
699
00:33:05.100 --> 00:33:07.800
So the intent that needs to be shared
700
00:33:07.800 --> 00:33:11.190
is the intent to restraint, confine.
701
00:33:11.190 --> 00:33:14.760
But a general intent crime, the aggravating factor
702
00:33:14.760 --> 00:33:15.990
is the injury.
703
00:33:15.990 --> 00:33:18.690
And here, once they got him in,
704
00:33:18.690 --> 00:33:23.250
Feeney shackles the victim to the chair.
705
00:33:23.250 --> 00:33:26.817
Ricci seized the black baton on the duffel bag,
706
00:33:26.817 --> 00:33:30.570
and Feeney tells Ricci and Morrison to get out, to leave.
707
00:33:30.570 --> 00:33:35.040
So the jury certainly could find that,
708
00:33:35.040 --> 00:33:37.200
as they did for manslaughter,
709
00:33:37.200 --> 00:33:40.350
that there was a high degree of likelihood
710
00:33:40.350 --> 00:33:43.980
of serious injury here.
711
00:33:43.980 --> 00:33:47.790
This is also absurd because to take on a legal premise,
712
00:33:47.790 --> 00:33:48.687
to answer both your question,
713
00:33:48.687 --> 00:33:52.683
and to build off of Justice Dewar's earlier question,
714
00:33:53.820 --> 00:33:56.310
you don't even need another weapon.
715
00:33:56.310 --> 00:34:00.843
The aggravating factor here is the serious bodily injury.
716
00:34:03.660 --> 00:34:06.180
The injury, the harm is the same.
717
00:34:06.180 --> 00:34:08.760
The victim here is dead
718
00:34:08.760 --> 00:34:13.140
no matter whether a dangerous weapon was used or not.
719
00:34:13.140 --> 00:34:15.390
It wouldn't even need to be a rope.
720
00:34:15.390 --> 00:34:18.588
If somebody under the influence of a gun-
721
00:34:18.588 --> 00:34:21.540
But would a jury have to specifically find
722
00:34:21.540 --> 00:34:24.903
a joint venture theory for that to be true?
723
00:34:27.270 --> 00:34:29.460
For aggravated kidnapping?
724
00:34:29.460 --> 00:34:32.580
For what you're saying, for aggravated kidnapping,
725
00:34:32.580 --> 00:34:36.780
that that shared intent runs all the way through
726
00:34:36.780 --> 00:34:38.820
irrespective of whether or not you thought
727
00:34:38.820 --> 00:34:42.570
that they were going to use the gun or some other implement
728
00:34:42.570 --> 00:34:45.483
to effect the serious bodily injury?
729
00:34:47.670 --> 00:34:50.670
I apologize if I'm not answering this correctly.
730
00:34:50.670 --> 00:34:53.670
The kidnapping did not stop when Morrison left.
731
00:34:53.670 --> 00:34:57.930
When he left, the victim who was continually restrained,
732
00:34:57.930 --> 00:35:00.360
the restraint was continuous.
733
00:35:00.360 --> 00:35:02.133
This wasn't an abandonment.
734
00:35:03.030 --> 00:35:04.500
The jury certainly could find
735
00:35:04.500 --> 00:35:07.770
that the defendant was there and willing to help.
736
00:35:07.770 --> 00:35:11.790
You know, he came back much later at Feeney's behest.
737
00:35:11.790 --> 00:35:14.490
This is not brought as a joint venture, right?
738
00:35:14.490 --> 00:35:16.980
There's not a joint venture conviction
739
00:35:16.980 --> 00:35:19.410
on the aggravated kidnapping, correct?
740
00:35:19.410 --> 00:35:21.753
Well, so this was post Zanetti.
741
00:35:22.893 --> 00:35:26.850
The jury was given joint venture instructions
742
00:35:26.850 --> 00:35:29.310
and supplemental joint venture instructions
743
00:35:29.310 --> 00:35:31.380
that they needed to determine joint venture
744
00:35:31.380 --> 00:35:33.633
as to each defendant.
745
00:35:34.590 --> 00:35:35.423
Did they convict him
746
00:35:35.423 --> 00:35:37.803
of joint venture aggravated kidnapping or not?
747
00:35:40.920 --> 00:35:43.580
There wouldn't have been a specific...
748
00:35:44.700 --> 00:35:47.730
The jury was not asked to make a specific finding
749
00:35:47.730 --> 00:35:50.013
that it was joint venture or not.
750
00:35:51.210 --> 00:35:53.340
As I said, this was post Zanetti.
751
00:35:53.340 --> 00:35:56.673
And that they found that the defendant's conduct,
752
00:36:00.960 --> 00:36:02.310
that the defendant,
753
00:36:02.310 --> 00:36:05.670
either as a principal or as a joint venturer
754
00:36:05.670 --> 00:36:07.950
committed aggravated kidnapping.
755
00:36:07.950 --> 00:36:10.920
And under the facts of this case in the plain language,
756
00:36:10.920 --> 00:36:14.583
in the consistent interpretation of the word armed,
757
00:36:15.870 --> 00:36:17.580
that was entirely correct.
758
00:36:17.580 --> 00:36:21.243
And the Commonwealth would ask that you affirm the verdicts.