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SJC-13538, Commonwealth versus Adrian B. Hinds.
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Okay, Attorney Fronhofer, good morning.
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Good morning, shall I begin?
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[Chief Justice Budd] Yes, please.
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Good morning Your Honors.
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Elaine Fronhofer for Adrian Hinds.
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I just wanna mention to Your Honors
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that Mr. Hinds is here with me in the courtroom today
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with one of his family members.
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I'm gonna begin by discussing point one of my brief,
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which is about the Facebook post,
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specifically, the testimony that the judge heard
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prior to reviewing the post
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and ruling they would be excluded because they were, quote,
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way more prejudicial than probative.
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The government presented no evidence
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that Miranda Arthur-Smith was of Asian descent,
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and she testified that she was the one
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that Mr. Hinds attacked,
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that she then yelled to her roommate,
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and Mr. Cherniak then ran outside with a knife
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and confronted Hinds.
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Both Arthur-Smith and Cherniak testified
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that Hinds then told them why he had attacked Arthur-Smith.
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Can I ask you-
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He said he told-
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Can I ask you, was there an issue of on self-defense,
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the animus between the two combatants?
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There was an issue of self-defense.
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I didn't hear the last part of your question.
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The animus between the two people involved in the fight.
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There was no issue of whether there was animus
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because both testified that they had animus.
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Does that answer your question?
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Yeah, I was just,
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because we had reversed as far as the motive goes
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in Mr. Hinds' favor, correct?
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Before, and I was just wondering if the same concerns
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about trying to explore,
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give the jury information about what was really going on
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between the two combatants is relevant as well?
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Right, and I think there was testimony
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from both Mr. Hinds and from the complainants.
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Well, from Mr. Cherniak, Arthur-Smith doesn't have any,
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nor Hinds don't have any contact really,
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as far as we can tell from the record,
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that there was animus between them before this altercation,
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but what's significant
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is that both the complainants testified,
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this is according to their story,
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that Hinds told them why he had attacked Arthur-Smith,
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and it was for quote, messing with his mother.
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And even by Cherniak's own account,
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the only physical altercation he had with Hinds
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occurred after Cherniak had stood in the way of Mr. Hinds
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re-exiting his apartment,
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and he started spraying Mr. Hinds with pepper spray
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while Mr. Hinds is holding a laptop
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and clearly has his key in his hand.
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I guess I'm trying to figure out
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why in the first Hinds' case,
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the racial animus of Mr. Cherniak was relevant,
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so much so that an expert was allowed to testify,
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but it didn't,
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any sort of racial animus by the defendant
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wouldn't also be relevant and admissible.
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It's for the reasons of that little description
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I just gave of the alleged assault.
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[Justice Wendlandt] Because?
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Because it wasn't Mr. Cherniak
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that Hinds allegedly assaulted.
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It was Arthur-Smith who there's no-
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But whose testimony are you getting that from?
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Because that's not Mr. Hinds' testimony.
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I mean, his testimony is he looks out his window,
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and he sees the two of them by his car puncturing his tire,
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and that he went out to confront Nate.
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So, you have his own testimony.
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You're only focusing on the testimony of the complainants,
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but your client's own testimony is very different.
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Well, it's all self-defense in his telling,
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but, also, it's the government's theory of the case,
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and the government's trying to get the Facebook post in
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to say, well, they don't say this,
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they never actually argue this,
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but what they could argue today is that, well, they,
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and sort of the question,
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Justice Wendlandt you're getting to,
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they could support maybe a theory of racial animus,
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but their own witnesses' account undermine that theory.
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So it's just clearly not relevant to their case.
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But why isn't it for the jury to sort all of that out?
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[Attorney Fronhofer] Well.
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Because your client says, my tires got punctured.
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My tires have been punctured before
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and they have been taken very seriously by the police.
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He leaves his shower and goes to confront the two,
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and he ultimately gets sprayed.
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There's all types of reasons why.
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Wouldn't that be relevant to saying
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that this is really not about punctured tires
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from the Commonwealth's perspective
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and it's about underlying racial animus?
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Well, I don't think so, Your Honor,
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when their own witnesses say,
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tell a completely different story.
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So it actually sort of contradicts their story
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that it was all about Arthur-Smith
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and all about him, you know, her messing with his mother.
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And, sorry, I just wanna get to the-
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Sure.
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It's missing a point here.
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And so, yeah, and Mr. Hinds does not allege
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that he had assaulted them.
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He alleged he was assaulted-
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Is your argument that it's not relevant
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because it runs counter to other Commonwealth evidence?
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[Attorney Fronhofer] Yes, that is.
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How can that be the test of relevance?
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Isn't that usually the test for, you know,
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if evidence is conflicting,
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then just because evidence is conflicting,
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it doesn't mean that it's irrelevant.
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It just means that it goes to the weight.
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Right.
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Of the evidence that as the jury may evaluate it.
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And can I just add to Justice Wolohojian's point,
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the specific evidence we're talking about
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is credibility evidence,
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and that we know that the trial judge says,
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"You can believe anything a witness says,
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some of what a witness says,
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or none of what a witness says."
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This is all witness credibility testimony.
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So how are we making this relevancy in that context?
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Well, I'm gonna try to answer both questions.
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So, it's, you know,
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as the judge said when the prosecutor said at trial,
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like, maybe we could get these Facebook posts in
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if Mr. Hinds claims he didn't know Mr. Cherniak's ethnicity,
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and the judge says,
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"The ethnicity of Mr. Cherniak really isn't at issue here."
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So, you know, I think, if it has any relevance,
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I don't agree that it does,
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but if it does, it's pretty small.
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I'm sorry, I lost my train of thought to your question.
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It seems to me that that is the stronger point here.
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I mean, I don't mean to make your argument for you,
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but it may indeed have some probative value.
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It seems to me that the question really becomes
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is the probative value to a collateral issue first,
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and, secondly, is the prejudicial weight of the evidence
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such that it outweighs whatever probative value
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there may be on that collateral issue.
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That seems to me, the crux of the issue.
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So perhaps you could address that a little bit.
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Yes, Your Honors,
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and I think you kinda summed it up pretty accurately there,
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that any probative value it has is pretty small.
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Again, this post,
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another reason the trial judge said
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he was gonna not admit them right away
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was because they were so old, you know,
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they were many months old.
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Obviously, they're extremely prejudicial.
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And so when you're talking about something
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that has fairly low probative value
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compared to the very, very high prejudicial value,
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the balance of those two,
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especially on a collateral issue is clear.
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So, and now can you please tie all that to what I think is
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perhaps the only live issue at this trial,
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which was self-defense.
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I mean, it looks undisputed to me
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that your client,
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there's not really a dispute that your client
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hit two people with a hammer.
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So in some sense, the elements of the crimes
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are not really live issues because they're satisfied
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by pretty much uncontradicted evidence,
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where really in the core of this case
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is really the self-defense defense, right?
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Can you tie that, though, to the argument
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about the error in admitting the evidence to its prejudice
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with respect to that,
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the sort of limited nature of the question
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that the jury needed to determine in this case?
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I will try.
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I mean, I think the point that I think we're both on
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is that there was a reason that Mr. Hinds
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was permitted to introduce,
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and it came back to Justice Wendlandt's question,
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Mr. Cherniak's 211 tattoo, or, you know, if it was a 211,
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you know, and the potential indication that suggested
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he had anti-Black animus.
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And the reason was that it supported,
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clearly supported the self-defense argument
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that there was a reason that Mr. Cherniak slashed his tire
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and then assaulted him.
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Whereas, this, you know, if it were a five-month-old,
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or whatever it was,
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Facebook post that shows anti-Asian sentiment was not,
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well, I'm gonna say not relevant at all or not, you know,
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as the trial judge said, "His ethnicity has no,"
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you know, it's not an issue here.
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He attacked Arthur-Smith and then, and this is, you know,
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and his argument is
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he was acting in self-defense completely.
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And the complainant's testimony
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is that he attacked Arthur-Smith,
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and Cherniak's testimony
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is the only physical altercation they had
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was when Cherniak intercepts him
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as he's leaving his apartment for the second time,
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and spraying with pepper spray.
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So, unlike the tattoo evidence,
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which, actually, clearly does support,
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and kinda fill in a motive for Cherniak's attack on Hinds,
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the five-month-old, whatever, how old,
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Facebook posts that have this racial slur
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don't actually support the Commonwealth's theory
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of the case, and that's why they're different.
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Can I ask you a question?
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Is your argument different with regard to the texts?
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Somewhat different, I mean, it was-
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It must be right,
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because the texts don't have that racial element,
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instead they say, "Will die or will kill"
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suggesting a pre-meditated.
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Yeah, it said "Death to those in 65.
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Miranda and Nate will work under false names," et cetera.
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So it is a little different.
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The judge-
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What is the argument there that that was there?
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That it was too remote for one,
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and it was a nine-month-old text,
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and that it is, you know, the language of the text itself
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is a little bit unclear.
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I mean, it's obviously very prejudicial,
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and that's why this is a slightly different argument.
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It is clearly evidence with which
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we sway the jury with propensity,
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but be viewed as propensity evidence
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when there isn't a lot of probative weight to the evidence.
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I mean, I'm not denying that it has some probative value,
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but given that it's nine months old,
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given how, you know, sort of-
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When was the breakdown in the relationship
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between Hinds and Cherniak before the attack?
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Cherniak testified it was around September.
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How relative to that,
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how much time between that and this?
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[Attorney Fronhofer] And the text?
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[Justice Wendlandt] Yes.
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The text predates that what Cherniak said-
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[Justice Wendlandt] By how many months?
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By how many months?
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Probably about five months.
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I'm just guessing now, but.
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Okay, well, we can figure that out from the record.
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But this is what I wanna point out.
262
00:11:45.570 --> 00:11:47.004
But we can figure that out from the record.
263
00:11:47.004 --> 00:11:47.837
It's in the record?
264
00:11:47.837 --> 00:11:48.670
Yes, I'm sure you can.
265
00:11:48.670 --> 00:11:49.503
Okay great, thank you.
266
00:11:49.503 --> 00:11:50.336
Yes, how many months, sorry.
267
00:11:51.330 --> 00:11:52.650
I didn't actually realize this
268
00:11:52.650 --> 00:11:53.880
until I was writing the reply brief,
269
00:11:53.880 --> 00:11:56.738
and then the Commonwealth's brief
270
00:11:56.738 --> 00:11:58.650
actually cite several cases.
271
00:11:58.650 --> 00:12:01.260
And then I realized that the case at the Appeals Court
272
00:12:01.260 --> 00:12:02.910
cites, which is Commonwealth versus Butler,
273
00:12:02.910 --> 00:12:04.620
and all four of the cases
274
00:12:04.620 --> 00:12:06.870
that the Commonwealth rely on to say
275
00:12:06.870 --> 00:12:08.910
that this evidence should've come in,
276
00:12:08.910 --> 00:12:11.040
this remote and time prior bad act evidence
277
00:12:11.040 --> 00:12:11.970
should've come in,
278
00:12:11.970 --> 00:12:14.550
are distinguishable from the situation here
279
00:12:14.550 --> 00:12:16.590
for three pretty significant reasons.
280
00:12:16.590 --> 00:12:18.879
First of all, in all five of those cases
281
00:12:18.879 --> 00:12:21.900
the victims were either dead,
282
00:12:21.900 --> 00:12:24.720
or were refusing to cooperate with the prosecution.
283
00:12:24.720 --> 00:12:26.640
So more specifically here,
284
00:12:26.640 --> 00:12:28.489
the remote and time prior bad act evidence
285
00:12:28.489 --> 00:12:31.230
was not as necessary to provide
286
00:12:31.230 --> 00:12:32.430
otherwise unavailable evidence
287
00:12:32.430 --> 00:12:34.200
about the nature of the defendants
288
00:12:34.200 --> 00:12:35.790
and the alleged victim's relationship.
289
00:12:35.790 --> 00:12:38.370
Here we had Arthur-Smith testifying.
290
00:12:38.370 --> 00:12:41.940
We had, more specifically, Mr. Cherniak testifying.
291
00:12:41.940 --> 00:12:43.447
So the text would've been admissible
292
00:12:43.447 --> 00:12:46.157
if Mr. Hinds had actually killed the two victims?
293
00:12:46.157 --> 00:12:48.480
Right, there would be nobody to counter
294
00:12:48.480 --> 00:12:49.426
what the nature of the relationship.
295
00:12:49.426 --> 00:12:54.063
That is a big difference between all five of the cases
296
00:12:54.063 --> 00:12:56.006
that the Commonwealth cites, sorry.
297
00:12:56.006 --> 00:12:58.770
Are you then in the territory where
298
00:12:58.770 --> 00:13:01.230
what you're saying is the admission of the texts
299
00:13:01.230 --> 00:13:05.627
and the Facebook posts was duplicative of other testimony?
300
00:13:05.627 --> 00:13:08.010
Doesn't that then undercut the sense
301
00:13:08.010 --> 00:13:10.710
that there's prejudice that flowed from its admission?
302
00:13:12.480 --> 00:13:15.090
Oh no, I mean, I think that it doesn't.
303
00:13:15.090 --> 00:13:16.440
Well, I don't think it undercuts it
304
00:13:16.440 --> 00:13:19.405
because the text itself is, you know,
305
00:13:19.405 --> 00:13:22.290
it says, "Death to those in 65."
306
00:13:22.290 --> 00:13:24.000
Again, the alleged victims.
307
00:13:24.000 --> 00:13:26.610
So are you saying it added anything to the evidence,
308
00:13:26.610 --> 00:13:28.590
or are you saying that it was cumulative
309
00:13:28.590 --> 00:13:30.925
of the Commonwealth's other evidence?
310
00:13:30.925 --> 00:13:32.487
I'm saying that it wasn't.
311
00:13:32.487 --> 00:13:34.620
What I'm saying is that in all of the cases,
312
00:13:34.620 --> 00:13:36.886
the Commonwealth cites and the Appeals Court cites.
313
00:13:36.886 --> 00:13:39.464
They needed evidence.
314
00:13:39.464 --> 00:13:40.950
The government needed evidence
315
00:13:40.950 --> 00:13:42.990
to show the nature of the relationship
316
00:13:42.990 --> 00:13:45.060
to show that there was animosity.
317
00:13:45.060 --> 00:13:47.070
And here, well, first of all,
318
00:13:47.070 --> 00:13:48.866
Hinds acknowledged that there was animosity,
319
00:13:48.866 --> 00:13:50.590
and both of the alleged victims did, so no.
320
00:13:50.590 --> 00:13:52.920
Okay, so I take it you're saying that the texts
321
00:13:52.920 --> 00:13:56.340
are cumulative of other properly admitted evidence.
322
00:13:56.340 --> 00:13:57.997
Yes, and much more prejudicial, yes.
323
00:13:57.997 --> 00:13:59.820
And too remote in time.
324
00:13:59.820 --> 00:14:01.885
And in all those cases,
325
00:14:01.885 --> 00:14:05.250
the judge had repeatedly given the jury
326
00:14:05.250 --> 00:14:06.360
a limiting instruction
327
00:14:06.360 --> 00:14:09.930
on how this remote and time evidence should be used,
328
00:14:09.930 --> 00:14:11.580
and what would be improper use.
329
00:14:11.580 --> 00:14:13.290
No such instruction was given here.
330
00:14:13.290 --> 00:14:14.520
Was one asked for?
331
00:14:14.520 --> 00:14:17.340
No, I do wanna say that, I mean,
332
00:14:17.340 --> 00:14:19.320
it was heavily objected to.
333
00:14:19.320 --> 00:14:21.930
The trial counsel moved from mistrial based on it.
334
00:14:21.930 --> 00:14:22.763
but not, you're right.
335
00:14:22.763 --> 00:14:23.610
But eliminates, okay.
336
00:14:23.610 --> 00:14:26.910
And the third difference is that here,
337
00:14:26.910 --> 00:14:30.009
the particular prior bad act evidence brought in,
338
00:14:30.009 --> 00:14:34.032
you know, a suggestion of other crimes, you know,
339
00:14:34.032 --> 00:14:37.260
the text starts with death to those in 65, so.
340
00:14:37.260 --> 00:14:39.120
And this is not the apartment
341
00:14:39.120 --> 00:14:40.620
that the alleged victims live in,
342
00:14:40.620 --> 00:14:43.470
so it's, you know, particularly prejudicial.
343
00:14:43.470 --> 00:14:45.176
Does it not say their first names?
344
00:14:45.176 --> 00:14:46.009
Yes, it does.
345
00:14:46.009 --> 00:14:46.842
[Justice Wendlandt] Okay.
346
00:14:46.842 --> 00:14:48.850
But it starts with this other statement, so.
347
00:14:48.850 --> 00:14:51.933
Could you briefly talk about prejudice,
348
00:14:53.264 --> 00:14:57.060
assuming that there was erroneous submission
349
00:14:57.060 --> 00:14:59.310
of the Facebook posts.
350
00:14:59.310 --> 00:15:00.780
Could you talk about, please,
351
00:15:00.780 --> 00:15:04.413
prejudice in the context of the case as a whole.
352
00:15:05.400 --> 00:15:06.243
Yes.
353
00:15:08.640 --> 00:15:11.223
This case came down to a credibility contest.
354
00:15:12.330 --> 00:15:14.820
There was pretty strong evidence
355
00:15:14.820 --> 00:15:17.550
in support of Mr. Hinds' self-defense argument.
356
00:15:17.550 --> 00:15:19.320
It was just not, you know,
357
00:15:19.320 --> 00:15:21.307
an overwhelming case on the government's part.
358
00:15:21.307 --> 00:15:23.490
I think the government really likes to-
359
00:15:23.490 --> 00:15:26.040
There was very limited use of the evidence
360
00:15:26.040 --> 00:15:28.740
in the prosecutor's closing argument.
361
00:15:28.740 --> 00:15:32.610
The jury verdict does not seem to indicate
362
00:15:32.610 --> 00:15:36.573
that they were swept away by,
363
00:15:37.710 --> 00:15:39.693
or inflamed, you know.
364
00:15:41.192 --> 00:15:43.770
I'm trying to look at the case as a whole to see.
365
00:15:43.770 --> 00:15:45.511
Yeah, I don't, I mean, I'm not sure if I agree with that.
366
00:15:45.511 --> 00:15:48.180
In their closing,
367
00:15:48.180 --> 00:15:51.510
the prosecutor talked about the Facebook post,
368
00:15:51.510 --> 00:15:53.580
repeated the racial epithet,
369
00:15:53.580 --> 00:15:55.260
you know, repeated it two times,
370
00:15:55.260 --> 00:15:58.080
said that, you know, you can't believe him, you know,
371
00:15:58.080 --> 00:16:00.450
you'd have to be ignoring his Facebook post.
372
00:16:00.450 --> 00:16:02.520
Like, actually, I think there were three references to it
373
00:16:02.520 --> 00:16:05.520
in their closing, they hammered on it.
374
00:16:05.520 --> 00:16:07.900
And I don't know that I agree that there,
375
00:16:07.900 --> 00:16:10.710
the jury's verdict shows that they weren't swayed by it.
376
00:16:10.710 --> 00:16:13.168
I don't know how you would know that.
377
00:16:13.168 --> 00:16:16.020
And so in this case,
378
00:16:16.020 --> 00:16:18.189
which came down to a credibility contest
379
00:16:18.189 --> 00:16:21.992
where the evidence was certainly not overwhelming
380
00:16:21.992 --> 00:16:25.710
in particular after it comes in,
381
00:16:25.710 --> 00:16:29.610
and then surprisingly it comes in,
382
00:16:29.610 --> 00:16:31.710
and then counsel is not permitted
383
00:16:31.710 --> 00:16:35.790
to call a surrebuttal witness who could testify that he had,
384
00:16:35.790 --> 00:16:37.200
in fact, not authored the post,
385
00:16:37.200 --> 00:16:40.440
or at least strongly indicated he had not authored the post,
386
00:16:40.440 --> 00:16:42.180
or at least question, you know,
387
00:16:42.180 --> 00:16:44.460
put that question in the jury's mind,
388
00:16:44.460 --> 00:16:46.710
the combination of those two errors
389
00:16:46.710 --> 00:16:48.660
was particularly harmful in this case.
390
00:16:48.660 --> 00:16:51.660
I just want to, you know, say the Appeals Court wrote:
391
00:16:51.660 --> 00:16:54.300
Here, the risk of prejudice by these errors was high
392
00:16:54.300 --> 00:16:55.912
where the errors all concern evidence
393
00:16:55.912 --> 00:16:58.290
implicating credibility in a trial
394
00:16:58.290 --> 00:17:00.240
in which credibility was the only real issue.
395
00:17:00.240 --> 00:17:02.280
Chief, would you mind if I asked a follow-up question
396
00:17:02.280 --> 00:17:03.113
on that last point?
397
00:17:03.113 --> 00:17:04.080
No.
398
00:17:04.080 --> 00:17:07.380
Counsel, I'm interested in the issue about this,
399
00:17:07.380 --> 00:17:09.603
the witness on the surrebuttal.
400
00:17:10.770 --> 00:17:11.823
What is it?
401
00:17:13.380 --> 00:17:15.690
So I understand that you allege
402
00:17:15.690 --> 00:17:18.240
that the judge didn't go through all the different facets,
403
00:17:18.240 --> 00:17:20.970
but there is the issue
404
00:17:20.970 --> 00:17:25.200
of what this witness was going to be called for
405
00:17:25.200 --> 00:17:28.482
was about the email address and that-
406
00:17:28.482 --> 00:17:30.660
[Attorney Fronhofer] It was not just the email address.
407
00:17:30.660 --> 00:17:33.387
Well, what's in the record,
408
00:17:33.387 --> 00:17:36.638
and what the defense counsel was talking about
409
00:17:36.638 --> 00:17:40.830
was that there was this email address
410
00:17:40.830 --> 00:17:44.910
that was allegedly associated with the Facebook account
411
00:17:44.910 --> 00:17:45.897
on the phone,
412
00:17:45.897 --> 00:17:48.930
and that somehow she had clicked on a link,
413
00:17:48.930 --> 00:17:52.170
and it was registered back to some other third person,
414
00:17:52.170 --> 00:17:56.100
but, again, going back into a more holistic view of this,
415
00:17:56.100 --> 00:17:59.040
when the detective testified on cross-examination,
416
00:17:59.040 --> 00:18:03.120
he was vigorously cross-examined on it doesn't mean anything
417
00:18:03.120 --> 00:18:06.630
that you could create this, or access it remotely,
418
00:18:06.630 --> 00:18:09.630
and it would appear that somebody on the phone did.
419
00:18:09.630 --> 00:18:13.680
And you can't tell us whether or not Mr. Hinds
420
00:18:13.680 --> 00:18:15.390
created this or accessed this.
421
00:18:15.390 --> 00:18:17.940
That was really covered on cross,
422
00:18:17.940 --> 00:18:22.320
but on this issue, though,
423
00:18:22.320 --> 00:18:26.040
doesn't this issue get brought up by defense counsel
424
00:18:26.040 --> 00:18:27.153
about the email?
425
00:18:28.380 --> 00:18:31.206
Meaning, like, in her cross-examination of the detective?
426
00:18:31.206 --> 00:18:32.039
Yes.
427
00:18:32.039 --> 00:18:32.872
Yes.
428
00:18:32.872 --> 00:18:36.570
That she then was ostensibly going to be
429
00:18:36.570 --> 00:18:39.750
called for to explain,
430
00:18:39.750 --> 00:18:42.239
and I didn't see that really addressed in the briefing.
431
00:18:42.239 --> 00:18:45.420
Do we at all consider the fact
432
00:18:45.420 --> 00:18:48.483
that this was created by defense counsel, this issue?
433
00:18:50.550 --> 00:18:53.490
By inquiring about this email address
434
00:18:53.490 --> 00:18:55.414
and the detective doesn't say
435
00:18:55.414 --> 00:18:58.920
that it's conclusive of anything.
436
00:18:58.920 --> 00:19:00.215
The detective just says
437
00:19:00.215 --> 00:19:03.930
it's associated based on this data poll.
438
00:19:03.930 --> 00:19:08.930
And that was after questioning by defense counsel.
439
00:19:09.150 --> 00:19:12.505
So does that at all go into the calculus for us here
440
00:19:12.505 --> 00:19:15.153
about whether the judge abused his discretion?
441
00:19:17.026 --> 00:19:21.926
Hmm, I think that the significant thing is that,
442
00:19:21.926 --> 00:19:24.240
you know, Detective Edwards' testimony
443
00:19:24.240 --> 00:19:25.407
and then the admission of the Facebook post
444
00:19:25.407 --> 00:19:28.380
and the text messages were the last thing the jury heard.
445
00:19:28.380 --> 00:19:32.550
I think it would've been incredibly important to the defense
446
00:19:32.550 --> 00:19:35.490
in this credibility, you know, weighing case,
447
00:19:35.490 --> 00:19:38.070
to have somebody pointing out
448
00:19:38.070 --> 00:19:43.070
that there's a couple reasons why it's not clear
449
00:19:43.080 --> 00:19:46.890
that Mr. Hinds had any control of this account.
450
00:19:46.890 --> 00:19:50.610
And so just by virtue of having a witness
451
00:19:50.610 --> 00:19:52.920
pointing out these discrepancies,
452
00:19:52.920 --> 00:19:54.111
and it wasn't just the email,
453
00:19:54.111 --> 00:19:58.480
what at least defense counsel said was that
454
00:20:00.570 --> 00:20:02.040
the expert would testify to
455
00:20:02.040 --> 00:20:03.720
was that the review of all of the events
456
00:20:03.720 --> 00:20:06.600
in the extraction report created from Hinds' cell phone
457
00:20:06.600 --> 00:20:09.210
did not show any evidence that the user of Hinds' phone
458
00:20:09.210 --> 00:20:11.630
had ever accessed that Facebook account.
459
00:20:11.630 --> 00:20:14.280
And then there's the email.
460
00:20:14.280 --> 00:20:15.870
And that the owner of the Facebook account
461
00:20:15.870 --> 00:20:18.750
where the posts were made was not Mr. Hinds,
462
00:20:18.750 --> 00:20:20.430
I don't think I'm answering your question, I'm sorry.
463
00:20:20.430 --> 00:20:21.882
No, that's all right.
464
00:20:21.882 --> 00:20:25.133
I thank you for the attempt, thank you.
465
00:20:25.133 --> 00:20:27.362
Okay, thank you.
466
00:20:27.362 --> 00:20:31.880
[Attorney Fronhofer] Thank you very much, Your Honors.
467
00:20:31.880 --> 00:20:34.213
Okay, Attorney Coliflores.
468
00:20:35.430 --> 00:20:36.600
Morning, and may it please the court,
469
00:20:36.600 --> 00:20:38.700
Joseph Coliflores for the Commonwealth.
470
00:20:38.700 --> 00:20:41.760
In 2021, this court reversed the first trial verdict
471
00:20:41.760 --> 00:20:43.830
and sent it back for retrial
472
00:20:43.830 --> 00:20:45.630
with the aided benefit of the testimony
473
00:20:45.630 --> 00:20:47.580
of Sophie Bjork-James.
474
00:20:47.580 --> 00:20:49.140
In light of that ruling,
475
00:20:49.140 --> 00:20:52.050
trial counsel for the defendant opened by stating
476
00:20:52.050 --> 00:20:54.390
that Westfield was a racist town.
477
00:20:54.390 --> 00:20:58.320
And in use of that testimony of Dr. Bjork-James,
478
00:20:58.320 --> 00:21:00.150
laid testimonies, I'm sorry,
479
00:21:00.150 --> 00:21:03.633
racism squarely at the feet of Nathaniel Cherniak.
480
00:21:04.768 --> 00:21:06.360
It is in this context that we must analyze
481
00:21:06.360 --> 00:21:09.180
the admission of the textbook, the Facebook,
482
00:21:09.180 --> 00:21:13.860
and the exclusion of the surrebuttal witness, Lindsay Hawk.
483
00:21:13.860 --> 00:21:17.073
Turning to the Facebook messages or post, I apologize,
484
00:21:18.750 --> 00:21:23.196
the defendant said that the N-word had been screamed at him
485
00:21:23.196 --> 00:21:25.350
in the city of Westfield,
486
00:21:25.350 --> 00:21:28.020
and that he had been in a relationship
487
00:21:28.020 --> 00:21:29.040
with Nathaniel Cherniak,
488
00:21:29.040 --> 00:21:30.300
and that that relationship
489
00:21:30.300 --> 00:21:33.900
had deteriorated over a number of years.
490
00:21:33.900 --> 00:21:36.786
Both the Facebook posts and the text messages
491
00:21:36.786 --> 00:21:40.770
show that deterioration of that relationship
492
00:21:40.770 --> 00:21:44.730
from the genesis of them working out in the gym together
493
00:21:44.730 --> 00:21:48.033
through the ultimate act of attacking Miranda Arthur-Smith.
494
00:21:49.931 --> 00:21:53.070
So isn't it a collateral issue that,
495
00:21:53.070 --> 00:21:56.670
you know, five months before the altercation
496
00:21:56.670 --> 00:21:58.290
there was a breakdown
497
00:21:58.290 --> 00:22:01.443
in the workout schedules of the victim and the defendant?
498
00:22:02.310 --> 00:22:04.890
And what the cause of that was?
499
00:22:04.890 --> 00:22:06.600
I guess I'm getting into the heart
500
00:22:06.600 --> 00:22:09.840
of whether or not of what is actually collateral.
501
00:22:09.840 --> 00:22:12.942
We have defense counsel opening with this idea of racism
502
00:22:12.942 --> 00:22:14.980
in the town and when-
503
00:22:14.980 --> 00:22:19.620
Well, because that was central to the self-defense claim
504
00:22:19.620 --> 00:22:24.620
that, in fact, I'm sorry about my voice, that the victim,
505
00:22:25.470 --> 00:22:30.470
the second victim had a motive to attack the defendant,
506
00:22:30.720 --> 00:22:33.750
and the defendant was responding in kind
507
00:22:33.750 --> 00:22:35.700
in light of that racial animus.
508
00:22:35.700 --> 00:22:38.380
I don't understand exactly how
509
00:22:39.810 --> 00:22:42.540
the breakdown in the relationship a few months ago
510
00:22:42.540 --> 00:22:46.200
because of the defendant's racial animus to the victim
511
00:22:46.200 --> 00:22:49.140
is central to the Commonwealth's case.
512
00:22:49.140 --> 00:22:52.080
So the breakdown is essential to the Commonwealth's case
513
00:22:52.080 --> 00:22:53.310
in light of the opening
514
00:22:53.310 --> 00:22:56.550
where we have a relationship that was friendly,
515
00:22:56.550 --> 00:23:00.120
and then there's accusations both ways
516
00:23:00.120 --> 00:23:02.550
of certain statements being made about drug dealing,
517
00:23:02.550 --> 00:23:05.760
and connections to New York City and accusations.
518
00:23:05.760 --> 00:23:07.230
Commonwealth's theory wasn't
519
00:23:07.230 --> 00:23:10.604
that the defendant attacked the victim, the second victim,
520
00:23:10.604 --> 00:23:13.431
because of his Asian descent, was it?
521
00:23:13.431 --> 00:23:14.264
[Attorney Coliflores] It was not.
522
00:23:14.264 --> 00:23:15.097
Okay.
523
00:23:15.097 --> 00:23:15.930
It was not.
524
00:23:15.930 --> 00:23:18.180
The Commonwealth from the opening to the closing
525
00:23:18.180 --> 00:23:21.240
it was that this was an unprovoked hammer attack.
526
00:23:21.240 --> 00:23:22.252
The evidence is clear,
527
00:23:22.252 --> 00:23:24.300
at least from the Commonwealth's point of view,
528
00:23:24.300 --> 00:23:27.060
that Miranda Arthur-Smith was attacked outside.
529
00:23:27.060 --> 00:23:28.410
We have percipient witnesses
530
00:23:28.410 --> 00:23:31.170
that observed the altercation outside.
531
00:23:31.170 --> 00:23:33.450
We have Detective Tsatsos testifying
532
00:23:33.450 --> 00:23:35.730
that the use of pepper spray
533
00:23:35.730 --> 00:23:40.160
was not indicated within that stairwell or vestibule
534
00:23:40.160 --> 00:23:42.660
of the apartment complex.
535
00:23:42.660 --> 00:23:46.110
That fact, which is essential to the defendant's version
536
00:23:46.110 --> 00:23:47.760
where he was in the stairwell
537
00:23:47.760 --> 00:23:50.400
when he was initially attacked with a pepper spray
538
00:23:50.400 --> 00:23:53.280
and then raised the hammer,
539
00:23:53.280 --> 00:23:57.720
and went back in the back-and-forth fashion in self-defense.
540
00:23:57.720 --> 00:23:59.310
None of the physical evidence
541
00:23:59.310 --> 00:24:01.893
supports the attack happening in the stairwell.
542
00:24:02.760 --> 00:24:04.110
Would the Commonwealth's,
543
00:24:04.110 --> 00:24:05.370
would your position be the same
544
00:24:05.370 --> 00:24:08.210
with respect to the text message and the two Facebook posts
545
00:24:08.210 --> 00:24:10.860
if those messages and posts
546
00:24:10.860 --> 00:24:14.790
did not actually contain a racial element per se,
547
00:24:14.790 --> 00:24:17.490
but just were kind of similar messages
548
00:24:17.490 --> 00:24:18.930
minus the racial element,
549
00:24:18.930 --> 00:24:21.363
but just indicating animus?
550
00:24:23.010 --> 00:24:26.220
Would the argument for admissibility be the same?
551
00:24:26.220 --> 00:24:27.060
I believe so,
552
00:24:27.060 --> 00:24:28.890
and when we're looking at it,
553
00:24:28.890 --> 00:24:32.280
we also have to take in consideration of the timing of it.
554
00:24:32.280 --> 00:24:35.640
And I'm not sure if I have gotten into this,
555
00:24:35.640 --> 00:24:39.150
but there was, the breakdown happens early on,
556
00:24:39.150 --> 00:24:41.220
and then the attack happens later,
557
00:24:41.220 --> 00:24:42.150
but in the meantime,
558
00:24:42.150 --> 00:24:45.060
Nathaniel Cherniak did observe the defendant in the hallway
559
00:24:45.060 --> 00:24:49.110
appeared to be waiting with a hammer
560
00:24:49.110 --> 00:24:51.900
in an attack kinda mentality.
561
00:24:51.900 --> 00:24:54.180
However, nothing happens at that point.
562
00:24:54.180 --> 00:24:56.697
Combined with the defendant's statements to his mother
563
00:24:56.697 --> 00:25:00.123
that they overheard that maybe it was them, that they did it
564
00:25:00.123 --> 00:25:02.610
with the inference being either the flat tires,
565
00:25:02.610 --> 00:25:06.960
or other racial insults being hurled at them
566
00:25:06.960 --> 00:25:09.377
within the complex or in the greater town,
567
00:25:09.377 --> 00:25:14.377
you can't ignore the greater context of their relationship,
568
00:25:14.940 --> 00:25:16.440
not only as neighbors,
569
00:25:16.440 --> 00:25:19.383
but their relationship within that town itself.
570
00:25:21.600 --> 00:25:23.220
The Commonwealth could not combat
571
00:25:23.220 --> 00:25:26.700
the admission of Dr. Bjork-James' testimony
572
00:25:26.700 --> 00:25:30.870
that 211 on the tattoo allegedly,
573
00:25:30.870 --> 00:25:33.720
is associated with the 211 Bootboys,
574
00:25:33.720 --> 00:25:37.410
who are allegedly a fan club of the 211 Crew
575
00:25:37.410 --> 00:25:40.410
who either are/or affiliate with white supremacy,
576
00:25:40.410 --> 00:25:42.060
or with white nationalism,
577
00:25:42.060 --> 00:25:45.240
depending on which 211 group you're talking about.
578
00:25:45.240 --> 00:25:46.830
Laying that testimony
579
00:25:46.830 --> 00:25:49.170
squarely at the feet of Nathaniel Cherniak
580
00:25:49.170 --> 00:25:51.300
in the context of a racial town,
581
00:25:51.300 --> 00:25:55.620
requires a full understanding of how they became friends,
582
00:25:55.620 --> 00:25:57.150
how that deteriorated,
583
00:25:57.150 --> 00:25:59.850
and how it ultimately ended up with a hammer attack
584
00:25:59.850 --> 00:26:02.760
outside the apartment at 10:00 AM.
585
00:26:02.760 --> 00:26:07.560
Can you explain why the judge's failure
586
00:26:07.560 --> 00:26:11.820
to allow the rebuttal evidence was not error?
587
00:26:11.820 --> 00:26:13.290
Certainly.
588
00:26:13.290 --> 00:26:15.960
The judge was in the best position to judge the credibility
589
00:26:15.960 --> 00:26:18.810
of all of the testimony and all the witnesses,
590
00:26:18.810 --> 00:26:21.270
and that includes the defendant's own testimony
591
00:26:21.270 --> 00:26:23.370
about the Facebook posts,
592
00:26:23.370 --> 00:26:28.370
Detective Edwards' testimony about the extraction itself.
593
00:26:28.560 --> 00:26:31.140
And so when we're looking at those Durning factors,
594
00:26:31.140 --> 00:26:33.900
and we must not only look at the Durning factors,
595
00:26:33.900 --> 00:26:36.720
but this court's decision in 2021,
596
00:26:36.720 --> 00:26:39.277
in what I believe is footnote 29, saying,
597
00:26:39.277 --> 00:26:41.520
"This court does not anticipate the lack of notice
598
00:26:41.520 --> 00:26:44.937
to be reoccurring for any expert witnesses going forward."
599
00:26:46.020 --> 00:26:49.380
We, unfortunately, were in that same position
600
00:26:49.380 --> 00:26:51.840
where there was an expert that was not noticed
601
00:26:51.840 --> 00:26:54.450
either in identity basis of testimony,
602
00:26:54.450 --> 00:26:58.918
or expected testimony outside of the expertise.
603
00:26:58.918 --> 00:27:01.714
The defense wouldn't have called the expert
604
00:27:01.714 --> 00:27:04.740
except that the Facebook posts
605
00:27:04.740 --> 00:27:07.530
were let in sort of at the last minute.
606
00:27:07.530 --> 00:27:08.363
Certainly.
607
00:27:08.363 --> 00:27:10.500
And so that's when we're looking at the Durning factors,
608
00:27:10.500 --> 00:27:13.650
and the standard of review that it's an abuse of discretion
609
00:27:13.650 --> 00:27:18.180
for both the Durning as well as rebuttal and surrebuttal.
610
00:27:18.180 --> 00:27:20.190
There's layers of abuse of discretion here
611
00:27:20.190 --> 00:27:22.260
that we must take into context.
612
00:27:22.260 --> 00:27:25.350
When Judge Ferrara was looking into
613
00:27:25.350 --> 00:27:30.030
the whole expert testimony issue, he expertly asked,
614
00:27:30.030 --> 00:27:33.480
was this person known or testified?
615
00:27:33.480 --> 00:27:35.760
And, yes, the expert was known,
616
00:27:35.760 --> 00:27:37.680
however, the expert had testified,
617
00:27:37.680 --> 00:27:38.790
or had written a report
618
00:27:38.790 --> 00:27:42.420
about something unrelated to cell phone extractions.
619
00:27:42.420 --> 00:27:43.830
She had been brought up
620
00:27:43.830 --> 00:27:45.914
in the context of a cellular telephone ping,
621
00:27:45.914 --> 00:27:48.480
which was the subject of a motion to suppress,
622
00:27:48.480 --> 00:27:51.600
which was denied prior to the first trial.
623
00:27:51.600 --> 00:27:52.860
So, yes, the Commonwealth,
624
00:27:52.860 --> 00:27:55.050
and as a practitioner in Hampden County
625
00:27:55.050 --> 00:27:57.510
is well-aware of who Lindsay Hawk is.
626
00:27:57.510 --> 00:27:59.280
However, her testimony,
627
00:27:59.280 --> 00:28:02.490
her testimony as to Facebook extractions
628
00:28:02.490 --> 00:28:04.350
from cellular devices,
629
00:28:04.350 --> 00:28:07.557
as well as her discovery of a witness named Luna,
630
00:28:07.557 --> 00:28:10.440
left the Commonwealth completely surprised
631
00:28:10.440 --> 00:28:12.480
as to the Durning factor.
632
00:28:12.480 --> 00:28:15.075
Well, counsel, this is the point I was getting at
633
00:28:15.075 --> 00:28:17.610
with your opposing counsel.
634
00:28:17.610 --> 00:28:20.850
So this really happens over two days.
635
00:28:20.850 --> 00:28:23.675
So there's the end of that first day, right?
636
00:28:23.675 --> 00:28:27.270
When this issue comes up and then the proffer the next day,
637
00:28:27.270 --> 00:28:32.270
but what I'm still confused about was that it seemed that
638
00:28:34.170 --> 00:28:37.840
Hawk's testimony was going to directly
639
00:28:39.270 --> 00:28:42.360
put in context the email address
640
00:28:42.360 --> 00:28:45.660
that was associated with that Facebook account.
641
00:28:45.660 --> 00:28:50.660
And that was elicited by defense counsel that created that.
642
00:28:51.297 --> 00:28:53.035
And so I'm still wondering
643
00:28:53.035 --> 00:28:57.690
does that at all factor into the factors here
644
00:28:57.690 --> 00:28:59.100
because the trial judge,
645
00:28:59.100 --> 00:29:01.680
even though he may not have said explicitly
646
00:29:01.680 --> 00:29:05.220
going through these factors, he talked about the extraction,
647
00:29:05.220 --> 00:29:08.430
he talked about that you had the extraction ahead of time,
648
00:29:08.430 --> 00:29:13.410
including the email that was ostensibly associated with it.
649
00:29:13.410 --> 00:29:16.530
So how does that factor in?
650
00:29:16.530 --> 00:29:19.410
I think looking here, yes, the judge did not
651
00:29:19.410 --> 00:29:22.860
explicitly consider the defense counsel's opening
652
00:29:22.860 --> 00:29:23.850
of the issue.
653
00:29:23.850 --> 00:29:25.710
However, on review, I do agree,
654
00:29:25.710 --> 00:29:27.930
as I think about it for the first time standing here,
655
00:29:27.930 --> 00:29:31.590
that defense counsel did seize upon the moment
656
00:29:31.590 --> 00:29:33.150
to ask about this email,
657
00:29:33.150 --> 00:29:38.130
which was associated with a website URL facebook.com,
658
00:29:38.130 --> 00:29:39.031
not through an application,
659
00:29:39.031 --> 00:29:43.800
but through, like, a browser on the phone.
660
00:29:43.800 --> 00:29:45.480
So the argument would be that this person
661
00:29:45.480 --> 00:29:49.680
used the phone in a browser to access Facebook.
662
00:29:49.680 --> 00:29:51.360
And so I would generally say
663
00:29:51.360 --> 00:29:54.210
that that's an issue of credibility as to whether or not
664
00:29:54.210 --> 00:29:57.810
we attribute that email, Boytoy, with the defendant,
665
00:29:57.810 --> 00:30:00.000
or accept the alternative argument
666
00:30:00.000 --> 00:30:02.190
that it's someone else that used that phone
667
00:30:02.190 --> 00:30:04.950
to create the Adrian Anomaly Hinds Facebook account,
668
00:30:04.950 --> 00:30:07.650
and then create those Facebook posts.
669
00:30:07.650 --> 00:30:09.020
A little bit of inference upon inference
670
00:30:09.020 --> 00:30:10.833
based upon the record.
671
00:30:14.130 --> 00:30:16.700
Let's assume that the...
672
00:30:19.050 --> 00:30:24.050
Can you explain how the defendant's racial animus,
673
00:30:26.820 --> 00:30:29.673
or racial prejudices, let's say,
674
00:30:31.110 --> 00:30:35.070
are relevant to the live issue of self-defense?
675
00:30:35.070 --> 00:30:37.890
The real core issue of self-defense in this case.
676
00:30:37.890 --> 00:30:42.270
So, when we're looking at the self-defense instruction,
677
00:30:42.270 --> 00:30:44.970
it's a reasonable belief of attack.
678
00:30:44.970 --> 00:30:48.990
And when we look at the defendant's own version
679
00:30:48.990 --> 00:30:50.520
of how the attack happened,
680
00:30:50.520 --> 00:30:52.650
and even when we look at the version
681
00:30:52.650 --> 00:30:54.200
that the Commonwealth proffers,
682
00:30:55.320 --> 00:30:57.243
the defendant was in his apartment.
683
00:30:58.080 --> 00:31:03.080
He then sees a 12 to 16-inch blade withdrawn from the pants
684
00:31:03.180 --> 00:31:05.040
slashing or stabbing the tire.
685
00:31:05.040 --> 00:31:09.030
He then leaves the safety confines of his apartment
686
00:31:09.030 --> 00:31:12.330
to confront the two victims.
687
00:31:12.330 --> 00:31:14.070
When we're looking at
688
00:31:14.070 --> 00:31:16.380
it's not a reasonable belief of attack there.
689
00:31:16.380 --> 00:31:18.391
When we're considering the self-defense theory.
690
00:31:18.391 --> 00:31:20.910
[Justice Wendlandt] If I could just stop you for a second.
691
00:31:20.910 --> 00:31:21.743
[Attorney Coliflores] Sure.
692
00:31:21.743 --> 00:31:26.273
To focus more narrowly on the question
693
00:31:27.120 --> 00:31:29.400
that Justice Wolohojian asked you.
694
00:31:29.400 --> 00:31:34.400
How does the defendant's racial animus against the victim
695
00:31:34.620 --> 00:31:39.120
X months old, or even currently existing,
696
00:31:39.120 --> 00:31:44.120
help the Commonwealth defray the self-defense argument,
697
00:31:45.090 --> 00:31:46.797
which was the only thing that was at issue?
698
00:31:46.797 --> 00:31:48.480
And I think it's right there at that moment,
699
00:31:48.480 --> 00:31:50.580
that decision to leave the apartment
700
00:31:50.580 --> 00:31:52.380
shows that it was not a self-defense.
701
00:31:52.380 --> 00:31:54.000
So we're looking at the credibility.
702
00:31:54.000 --> 00:31:55.740
But how does that affect,
703
00:31:55.740 --> 00:31:59.010
how does the Facebook posts fit into that story?
704
00:31:59.010 --> 00:32:00.390
It's this idea,
705
00:32:00.390 --> 00:32:03.390
and the Commonwealth did not linger upon this at trial.
706
00:32:03.390 --> 00:32:06.000
It's the idea that the defendant
707
00:32:06.000 --> 00:32:08.940
is so incensed from the racism in town,
708
00:32:08.940 --> 00:32:12.030
and that he has a specific racial prejudice
709
00:32:12.030 --> 00:32:13.500
against one of these victims,
710
00:32:13.500 --> 00:32:17.250
which may be attributable to Miranda Arthur-Smith
711
00:32:17.250 --> 00:32:19.060
who lives with Nathaniel Cherniak in the apartment.
712
00:32:19.060 --> 00:32:21.540
Okay, I mean, I think we have to be a little careful here.
713
00:32:21.540 --> 00:32:24.070
What's concerning me is the idea that
714
00:32:26.010 --> 00:32:29.700
someone who harbors racial prejudices
715
00:32:29.700 --> 00:32:32.670
is not entitled to a self-defense defense.
716
00:32:32.670 --> 00:32:33.677
Do you see what I'm saying?
717
00:32:33.677 --> 00:32:34.510
[Attorney Coliflores] I do see that, yes.
718
00:32:34.510 --> 00:32:35.837
That would concern me.
719
00:32:35.837 --> 00:32:36.670
[Attorney Coliflores] Yes.
720
00:32:36.670 --> 00:32:38.973
So why are we not in that zone here?
721
00:32:41.310 --> 00:32:43.045
Why are we not in the zone of
722
00:32:43.045 --> 00:32:45.205
the defendant not being entitled to it?
723
00:32:45.205 --> 00:32:46.805
Of that problematic conclusion
724
00:32:48.540 --> 00:32:53.540
that a racist cannot be entitled to self-defense?
725
00:32:54.783 --> 00:32:57.360
I think we must look at in the inverse
726
00:32:57.360 --> 00:32:59.790
when who is entitled to a self-defense instruction
727
00:32:59.790 --> 00:33:01.985
it's any reasonable point of view.
728
00:33:01.985 --> 00:33:02.836
[Justice Wolohojian] Who meets the elements.
729
00:33:02.836 --> 00:33:03.669
[Attorney Coliflores] Right.
730
00:33:03.669 --> 00:33:04.502
Right.
731
00:33:04.502 --> 00:33:06.660
And if we do look at the defendant's theory of the case,
732
00:33:06.660 --> 00:33:10.620
he does at least meet somewhat of this idea of self-defense
733
00:33:10.620 --> 00:33:12.180
either of himself in the hallway,
734
00:33:12.180 --> 00:33:14.130
or self-defense of his vehicle
735
00:33:14.130 --> 00:33:17.370
upon seeing it being the tires being slashed,
736
00:33:17.370 --> 00:33:22.140
which he had been suffered to his testimony many times over.
737
00:33:22.140 --> 00:33:25.886
Well, there's also the upstream issue because the Facebook
738
00:33:25.886 --> 00:33:28.620
and the detective's testimony
739
00:33:28.620 --> 00:33:31.914
comes after Mr. Hinds' testimony.
740
00:33:31.914 --> 00:33:32.847
[Attorney Coliflores] That's correct.
741
00:33:32.847 --> 00:33:37.020
And that's where the judge revisits that decision,
742
00:33:37.020 --> 00:33:38.160
the evidentiary decision,
743
00:33:38.160 --> 00:33:40.260
because there's the testimony
744
00:33:40.260 --> 00:33:42.973
that I know that your opposing counsel disagrees,
745
00:33:42.973 --> 00:33:45.330
but there's the testimony
746
00:33:45.330 --> 00:33:48.840
of never having said anything negative,
747
00:33:48.840 --> 00:33:50.190
or I forget the formulation,
748
00:33:50.190 --> 00:33:54.246
but there was the affirmative testimony from Mr. Hinds
749
00:33:54.246 --> 00:33:58.140
that I didn't have a beef with them.
750
00:33:58.140 --> 00:34:01.440
And so I never said anything negative or anything.
751
00:34:01.440 --> 00:34:03.807
So the fuller context is, also,
752
00:34:03.807 --> 00:34:06.947
isn't that gonna inform the reasonableness analysis
753
00:34:06.947 --> 00:34:08.730
for self-defense?
754
00:34:08.730 --> 00:34:09.690
I believe so, Your Honor.
755
00:34:09.690 --> 00:34:13.170
And when we're looking at that specific testimony,
756
00:34:13.170 --> 00:34:16.770
there was a lot of discussion
757
00:34:16.770 --> 00:34:19.770
about towards versus to, right?
758
00:34:19.770 --> 00:34:20.603
The question is,
759
00:34:20.603 --> 00:34:23.820
did you ever use a racial epithet towards Mr. Cherniak?
760
00:34:23.820 --> 00:34:25.887
I never said anything to him.
761
00:34:25.887 --> 00:34:30.540
And I think we must give the trial judge here some credit.
762
00:34:30.540 --> 00:34:31.860
He's listening to the testimony.
763
00:34:31.860 --> 00:34:34.470
He understands what is going on
764
00:34:34.470 --> 00:34:36.408
in this specific line of questioning.
765
00:34:36.408 --> 00:34:41.408
And there's a line between
766
00:34:41.430 --> 00:34:43.770
not having a good relationship,
767
00:34:43.770 --> 00:34:45.750
to someone disliking,
768
00:34:45.750 --> 00:34:47.010
to someone hating,
769
00:34:47.010 --> 00:34:50.670
to having a racial prejudice against something.
770
00:34:50.670 --> 00:34:52.770
And I would credit the trial judge's determination
771
00:34:52.770 --> 00:34:54.169
at that moment that he didn't believe
772
00:34:54.169 --> 00:34:58.140
what the defendant was saying was completely truthful.
773
00:34:58.140 --> 00:35:02.100
That defendant there was almost playing with the answers
774
00:35:02.100 --> 00:35:04.560
to the questions that the prosecutor was asking,
775
00:35:04.560 --> 00:35:06.060
the changing of towards and to,
776
00:35:06.060 --> 00:35:07.560
and the retorting,
777
00:35:07.560 --> 00:35:11.850
isn't that a negative relationship with them?
778
00:35:11.850 --> 00:35:14.340
It's clear that he was being deceitful,
779
00:35:14.340 --> 00:35:16.710
and, therefore, it was proper to inquire further,
780
00:35:16.710 --> 00:35:18.903
and to admit the Facebook posts.
781
00:35:23.670 --> 00:35:24.750
If there are no further questions
782
00:35:24.750 --> 00:35:26.800
the Commonwealth would rest on its brief.