-: SJC-13538, Commonwealth versus Adrian B. Hinds.
-: Okay, Attorney Fronhofer, good morning.
-: Good morning, shall I begin?
-: [Chief Justice Budd] Yes, please.
-: Good morning Your Honors.
Elaine Fronhofer for Adrian Hinds.
I just wanna mention to Your Honors
that Mr. Hinds is here with me in the courtroom today
with one of his family members.
I'm gonna begin by discussing point one of my brief,
which is about the Facebook post,
specifically, the testimony that the judge heard
prior to reviewing the post
and ruling they would be excluded because they were, quote,
way more prejudicial than probative.
The government presented no evidence
that Miranda Arthur-Smith was of Asian descent,
and she testified that she was the one
that Mr. Hinds attacked,
that she then yelled to her roommate,
and Mr. Cherniak then ran outside with a knife
and confronted Hinds.
Both Arthur-Smith and Cherniak testified
that Hinds then told them why he had attacked Arthur-Smith.
Justice Gaziano: Can I ask you-
-: He said he told-
-: Can I ask you, was there an issue of on self-defense,
the animus between the two combatants?
-: There was an issue of self-defense.
I didn't hear the last part of your question.
-: The animus between the two people involved in the fight.
-: There was no issue of whether there was animus
because both testified that they had animus.
Does that answer your question?
-: Yeah, I was just,
because we had reversed as far as the motive goes
in Mr. Hinds' favor, correct?
Before, and I was just wondering if the same concerns
about trying to explore,
give the jury information about what was really going on
between the two combatants is relevant as well?
-: Right, and I think there was testimony
from both Mr. Hinds and from the complainants.
Well, from Mr. Cherniak, Arthur-Smith doesn't have any,
nor Hinds don't have any contact really,
as far as we can tell from the record,
that there was animus between them before this altercation,
but what's significant
is that both the complainants testified,
this is according to their story,
that Hinds told them why he had attacked Arthur-Smith,
and it was for quote, messing with his mother.
And even by Cherniak's own account,
the only physical altercation he had with Hinds
occurred after Cherniak had stood in the way of Mr. Hinds
re-exiting his apartment,
and he started spraying Mr. Hinds with pepper spray
while Mr. Hinds is holding a laptop
and clearly has his key in his hand.
-: I guess I'm trying to figure out
why in the first Hinds' case,
the racial animus of Mr. Cherniak was relevant,
so much so that an expert was allowed to testify,
but it didn't,
any sort of racial animus by the defendant
wouldn't also be relevant and admissible.
-: It's for the reasons of that little description
I just gave of the alleged assault.
-: [Justice Wendlandt] Because?
-: Because it wasn't Mr. Cherniak
that Hinds allegedly assaulted.
It was Arthur-Smith who there's no-
-: But whose testimony are you getting that from?
Because that's not Mr. Hinds' testimony.
I mean, his testimony is he looks out his window,
and he sees the two of them by his car puncturing his tire,
and that he went out to confront Nate.
So, you have his own testimony.
You're only focusing on the testimony of the complainants,
but your client's own testimony is very different.
-: Well, it's all self-defense in his telling,
but, also, it's the government's theory of the case,
and the government's trying to get the Facebook post in
to say, well, they don't say this,
they never actually argue this,
but what they could argue today is that, well, they,
and sort of the question,
Justice Wendlandt you're getting to,
they could support maybe a theory of racial animus,
but their own witnesses' account undermine that theory.
So it's just clearly not relevant to their case.
-: But why isn't it for the jury to sort all of that out?
-: [Attorney Fronhofer] Well.
-: Because your client says, my tires got punctured.
My tires have been punctured before
and they have been taken very seriously by the police.
He leaves his shower and goes to confront the two,
and he ultimately gets sprayed.
There's all types of reasons why.
Wouldn't that be relevant to saying
that this is really not about punctured tires
from the Commonwealth's perspective
and it's about underlying racial animus?
-: Well, I don't think so, Your Honor,
when their own witnesses say,
tell a completely different story.
So it actually sort of contradicts their story
that it was all about Arthur-Smith
and all about him, you know, her messing with his mother.
And, sorry, I just wanna get to the-
Justice Georges: Sure.
-: It's missing a point here.
And so, yeah, and Mr. Hinds does not allege
that he had assaulted them.
He alleged he was assaulted-
-: Is your argument that it's not relevant
because it runs counter to other Commonwealth evidence?
-: [Attorney Fronhofer] Yes, that is.
-: How can that be the test of relevance?
Isn't that usually the test for, you know,
if evidence is conflicting,
then just because evidence is conflicting,
it doesn't mean that it's irrelevant.
It just means that it goes to the weight.
-: Right.
-: Of the evidence that as the jury may evaluate it.
-: And can I just add to Justice Wolohojian's point,
the specific evidence we're talking about
is credibility evidence,
and that we know that the trial judge says,
"You can believe anything a witness says,
some of what a witness says,
or none of what a witness says."
This is all witness credibility testimony.
So how are we making this relevancy in that context?
-: Well, I'm gonna try to answer both questions.
So, it's, you know,
as the judge said when the prosecutor said at trial,
like, maybe we could get these Facebook posts in
if Mr. Hinds claims he didn't know Mr. Cherniak's ethnicity,
and the judge says,
"The ethnicity of Mr. Cherniak really isn't at issue here."
So, you know, I think, if it has any relevance,
I don't agree that it does,
but if it does, it's pretty small.
I'm sorry, I lost my train of thought to your question.
-: It seems to me that that is the stronger point here.
I mean, I don't mean to make your argument for you,
but it may indeed have some probative value.
It seems to me that the question really becomes
is the probative value to a collateral issue first,
and, secondly, is the prejudicial weight of the evidence
such that it outweighs whatever probative value
there may be on that collateral issue.
That seems to me, the crux of the issue.
So perhaps you could address that a little bit.
-: Yes, Your Honors,
and I think you kinda summed it up pretty accurately there,
that any probative value it has is pretty small.
Again, this post,
another reason the trial judge said
he was gonna not admit them right away
was because they were so old, you know,
they were many months old.
Obviously, they're extremely prejudicial.
And so when you're talking about something
that has fairly low probative value
compared to the very, very high prejudicial value,
the balance of those two,
especially on a collateral issue is clear.
-: So, and now can you please tie all that to what I think is
perhaps the only live issue at this trial,
which was self-defense.
I mean, it looks undisputed to me
that your client,
there's not really a dispute that your client
hit two people with a hammer.
So in some sense, the elements of the crimes
are not really live issues because they're satisfied
by pretty much uncontradicted evidence,
where really in the core of this case
is really the self-defense defense, right?
Can you tie that, though, to the argument
about the error in admitting the evidence to its prejudice
with respect to that,
the sort of limited nature of the question
that the jury needed to determine in this case?
-: I will try.
I mean, I think the point that I think we're both on
is that there was a reason that Mr. Hinds
was permitted to introduce,
and it came back to Justice Wendlandt's question,
Mr. Cherniak's 211 tattoo, or, you know, if it was a 211,
you know, and the potential indication that suggested
he had anti-Black animus.
And the reason was that it supported,
clearly supported the self-defense argument
that there was a reason that Mr. Cherniak slashed his tire
and then assaulted him.
Whereas, this, you know, if it were a five-month-old,
or whatever it was,
Facebook post that shows anti-Asian sentiment was not,
well, I'm gonna say not relevant at all or not, you know,
as the trial judge said, "His ethnicity has no,"
you know, it's not an issue here.
He attacked Arthur-Smith and then, and this is, you know,
and his argument is
he was acting in self-defense completely.
And the complainant's testimony
is that he attacked Arthur-Smith,
and Cherniak's testimony
is the only physical altercation they had
was when Cherniak intercepts him
as he's leaving his apartment for the second time,
and spraying with pepper spray.
So, unlike the tattoo evidence,
which, actually, clearly does support,
and kinda fill in a motive for Cherniak's attack on Hinds,
the five-month-old, whatever, how old,
Facebook posts that have this racial slur
don't actually support the Commonwealth's theory
of the case, and that's why they're different.
-: Can I ask you a question?
Is your argument different with regard to the texts?
-: Somewhat different, I mean, it was-
-: It must be right,
because the texts don't have that racial element,
instead they say, "Will die or will kill"
suggesting a pre-meditated.
-: Yeah, it said "Death to those in 65.
Miranda and Nate will work under false names," et cetera.
So it is a little different.
The judge-
-: What is the argument there that that was there?
-: That it was too remote for one,
and it was a nine-month-old text,
and that it is, you know, the language of the text itself
is a little bit unclear.
I mean, it's obviously very prejudicial,
and that's why this is a slightly different argument.
It is clearly evidence with which
we sway the jury with propensity,
but be viewed as propensity evidence
when there isn't a lot of probative weight to the evidence.
I mean, I'm not denying that it has some probative value,
but given that it's nine months old,
given how, you know, sort of-
-: When was the breakdown in the relationship
between Hinds and Cherniak before the attack?
-: Cherniak testified it was around September.
-: How relative to that,
how much time between that and this?
-: [Attorney Fronhofer] And the text?
-: [Justice Wendlandt] Yes.
-: The text predates that what Cherniak said-
-: [Justice Wendlandt] By how many months?
-: By how many months?
Probably about five months.
I'm just guessing now, but.
-: Okay, well, we can figure that out from the record.
-: But this is what I wanna point out.
-: But we can figure that out from the record.
It's in the record?
-: Yes, I'm sure you can.
-: Okay great, thank you.
-: Yes, how many months, sorry.
I didn't actually realize this
until I was writing the reply brief,
and then the Commonwealth's brief
actually cite several cases.
And then I realized that the case at the Appeals Court
cites, which is Commonwealth versus Butler,
and all four of the cases
that the Commonwealth rely on to say
that this evidence should've come in,
this remote and time prior bad act evidence
should've come in,
are distinguishable from the situation here
for three pretty significant reasons.
First of all, in all five of those cases
the victims were either dead,
or were refusing to cooperate with the prosecution.
So more specifically here,
the remote and time prior bad act evidence
was not as necessary to provide
otherwise unavailable evidence
about the nature of the defendants
and the alleged victim's relationship.
Here we had Arthur-Smith testifying.
We had, more specifically, Mr. Cherniak testifying.
-: So the text would've been admissible
if Mr. Hinds had actually killed the two victims?
-: Right, there would be nobody to counter
what the nature of the relationship.
That is a big difference between all five of the cases
that the Commonwealth cites, sorry.
Are you then in the territory where
what you're saying is the admission of the texts
and the Facebook posts was duplicative of other testimony?
Doesn't that then undercut the sense
that there's prejudice that flowed from its admission?
-: Oh no, I mean, I think that it doesn't.
Well, I don't think it undercuts it
because the text itself is, you know,
it says, "Death to those in 65."
Again, the alleged victims.
-: So are you saying it added anything to the evidence,
or are you saying that it was cumulative
of the Commonwealth's other evidence?
-: I'm saying that it wasn't.
What I'm saying is that in all of the cases,
the Commonwealth cites and the Appeals Court cites.
They needed evidence.
The government needed evidence
to show the nature of the relationship
to show that there was animosity.
And here, well, first of all,
Hinds acknowledged that there was animosity,
and both of the alleged victims did, so no.
-: Okay, so I take it you're saying that the texts
are cumulative of other properly admitted evidence.
-: Yes, and much more prejudicial, yes.
And too remote in time.
And in all those cases,
the judge had repeatedly given the jury
a limiting instruction
on how this remote and time evidence should be used,
and what would be improper use.
No such instruction was given here.
Justice Georges: Was one asked for?
-: No, I do wanna say that, I mean,
it was heavily objected to.
The trial counsel moved from mistrial based on it.
but not, you're right.
Justice Georges: But eliminates, okay.
-: And the third difference is that here,
the particular prior bad act evidence brought in,
you know, a suggestion of other crimes, you know,
the text starts with death to those in 65, so.
And this is not the apartment
that the alleged victims live in,
so it's, you know, particularly prejudicial.
-: Does it not say their first names?
-: Yes, it does.
-: [Justice Wendlandt] Okay.
-: But it starts with this other statement, so.
-: Could you briefly talk about prejudice,
assuming that there was erroneous submission
of the Facebook posts.
Could you talk about, please,
prejudice in the context of the case as a whole.
-: Yes.
This case came down to a credibility contest.
There was pretty strong evidence
in support of Mr. Hinds' self-defense argument.
It was just not, you know,
an overwhelming case on the government's part.
I think the government really likes to-
-: There was very limited use of the evidence
in the prosecutor's closing argument.
The jury verdict does not seem to indicate
that they were swept away by,
or inflamed, you know.
I'm trying to look at the case as a whole to see.
-: Yeah, I don't, I mean, I'm not sure if I agree with that.
In their closing,
the prosecutor talked about the Facebook post,
repeated the racial epithet,
you know, repeated it two times,
said that, you know, you can't believe him, you know,
you'd have to be ignoring his Facebook post.
Like, actually, I think there were three references to it
in their closing, they hammered on it.
And I don't know that I agree that there,
the jury's verdict shows that they weren't swayed by it.
I don't know how you would know that.
And so in this case,
which came down to a credibility contest
where the evidence was certainly not overwhelming
in particular after it comes in,
and then surprisingly it comes in,
and then counsel is not permitted
to call a surrebuttal witness who could testify that he had,
in fact, not authored the post,
or at least strongly indicated he had not authored the post,
or at least question, you know,
put that question in the jury's mind,
the combination of those two errors
was particularly harmful in this case.
I just want to, you know, say the Appeals Court wrote:
Here, the risk of prejudice by these errors was high
where the errors all concern evidence
implicating credibility in a trial
in which credibility was the only real issue.
-: Chief, would you mind if I asked a follow-up question
on that last point?
-: No.
-: Counsel, I'm interested in the issue about this,
the witness on the surrebuttal.
What is it?
So I understand that you allege
that the judge didn't go through all the different facets,
but there is the issue
of what this witness was going to be called for
was about the email address and that-
-: [Attorney Fronhofer] It was not just the email address.
-: Well, what's in the record,
and what the defense counsel was talking about
was that there was this email address
that was allegedly associated with the Facebook account
on the phone,
and that somehow she had clicked on a link,
and it was registered back to some other third person,
but, again, going back into a more holistic view of this,
when the detective testified on cross-examination,
he was vigorously cross-examined on it doesn't mean anything
that you could create this, or access it remotely,
and it would appear that somebody on the phone did.
And you can't tell us whether or not Mr. Hinds
created this or accessed this.
That was really covered on cross,
but on this issue, though,
doesn't this issue get brought up by defense counsel
about the email?
-: Meaning, like, in her cross-examination of the detective?
Justice Georges: Yes.
-: Yes.
-: That she then was ostensibly going to be
called for to explain,
and I didn't see that really addressed in the briefing.
Do we at all consider the fact
that this was created by defense counsel, this issue?
By inquiring about this email address
and the detective doesn't say
that it's conclusive of anything.
The detective just says
it's associated based on this data poll.
And that was after questioning by defense counsel.
So does that at all go into the calculus for us here
about whether the judge abused his discretion?
-: Hmm, I think that the significant thing is that,
you know, Detective Edwards' testimony
and then the admission of the Facebook post
and the text messages were the last thing the jury heard.
I think it would've been incredibly important to the defense
in this credibility, you know, weighing case,
to have somebody pointing out
that there's a couple reasons why it's not clear
that Mr. Hinds had any control of this account.
And so just by virtue of having a witness
pointing out these discrepancies,
and it wasn't just the email,
what at least defense counsel said was that
the expert would testify to
was that the review of all of the events
in the extraction report created from Hinds' cell phone
did not show any evidence that the user of Hinds' phone
had ever accessed that Facebook account.
And then there's the email.
And that the owner of the Facebook account
where the posts were made was not Mr. Hinds,
I don't think I'm answering your question, I'm sorry.
-: No, that's all right.
I thank you for the attempt, thank you.
-: Okay, thank you.
-: [Attorney Fronhofer] Thank you very much, Your Honors.
-: Okay, Attorney Coliflores.
-: Morning, and may it please the court,
Joseph Coliflores for the Commonwealth.
In 2021, this court reversed the first trial verdict
and sent it back for retrial
with the aided benefit of the testimony
of Sophie Bjork-James.
In light of that ruling,
trial counsel for the defendant opened by stating
that Westfield was a racist town.
And in use of that testimony of Dr. Bjork-James,
laid testimonies, I'm sorry,
racism squarely at the feet of Nathaniel Cherniak.
It is in this context that we must analyze
the admission of the textbook, the Facebook,
and the exclusion of the surrebuttal witness, Lindsay Hawk.
Turning to the Facebook messages or post, I apologize,
the defendant said that the N-word had been screamed at him
in the city of Westfield,
and that he had been in a relationship
with Nathaniel Cherniak,
and that that relationship
had deteriorated over a number of years.
Both the Facebook posts and the text messages
show that deterioration of that relationship
from the genesis of them working out in the gym together
through the ultimate act of attacking Miranda Arthur-Smith.
-: So isn't it a collateral issue that,
you know, five months before the altercation
there was a breakdown
in the workout schedules of the victim and the defendant?
And what the cause of that was?
-: I guess I'm getting into the heart
of whether or not of what is actually collateral.
We have defense counsel opening with this idea of racism
in the town and when-
-: Well, because that was central to the self-defense claim
that, in fact, I'm sorry about my voice, that the victim,
the second victim had a motive to attack the defendant,
and the defendant was responding in kind
in light of that racial animus.
I don't understand exactly how
the breakdown in the relationship a few months ago
because of the defendant's racial animus to the victim
is central to the Commonwealth's case.
-: So the breakdown is essential to the Commonwealth's case
in light of the opening
where we have a relationship that was friendly,
and then there's accusations both ways
of certain statements being made about drug dealing,
and connections to New York City and accusations.
-: Commonwealth's theory wasn't
that the defendant attacked the victim, the second victim,
because of his Asian descent, was it?
-: [Attorney Coliflores] It was not.
-: Okay.
-: It was not.
The Commonwealth from the opening to the closing
it was that this was an unprovoked hammer attack.
The evidence is clear,
at least from the Commonwealth's point of view,
that Miranda Arthur-Smith was attacked outside.
We have percipient witnesses
that observed the altercation outside.
We have Detective Tsatsos testifying
that the use of pepper spray
was not indicated within that stairwell or vestibule
of the apartment complex.
That fact, which is essential to the defendant's version
where he was in the stairwell
when he was initially attacked with a pepper spray
and then raised the hammer,
and went back in the back-and-forth fashion in self-defense.
None of the physical evidence
supports the attack happening in the stairwell.
-: Would the Commonwealth's,
would your position be the same
with respect to the text message and the two Facebook posts
if those messages and posts
did not actually contain a racial element per se,
but just were kind of similar messages
minus the racial element,
but just indicating animus?
-: Would the argument for admissibility be the same?
I believe so,
and when we're looking at it,
we also have to take in consideration of the timing of it.
And I'm not sure if I have gotten into this,
but there was, the breakdown happens early on,
and then the attack happens later,
but in the meantime,
Nathaniel Cherniak did observe the defendant in the hallway
appeared to be waiting with a hammer
in an attack kinda mentality.
However, nothing happens at that point.
Combined with the defendant's statements to his mother
that they overheard that maybe it was them, that they did it
with the inference being either the flat tires,
or other racial insults being hurled at them
within the complex or in the greater town,
you can't ignore the greater context of their relationship,
not only as neighbors,
but their relationship within that town itself.
The Commonwealth could not combat
the admission of Dr. Bjork-James' testimony
that 211 on the tattoo allegedly,
is associated with the 211 Bootboys,
who are allegedly a fan club of the 211 Crew
who either are/or affiliate with white supremacy,
or with white nationalism,
depending on which 211 group you're talking about.
Laying that testimony
squarely at the feet of Nathaniel Cherniak
in the context of a racial town,
requires a full understanding of how they became friends,
how that deteriorated,
and how it ultimately ended up with a hammer attack
outside the apartment at 10:00 AM.
-: Can you explain why the judge's failure
to allow the rebuttal evidence was not error?
-: Certainly.
The judge was in the best position to judge the credibility
of all of the testimony and all the witnesses,
and that includes the defendant's own testimony
about the Facebook posts,
Detective Edwards' testimony about the extraction itself.
And so when we're looking at those Durning factors,
and we must not only look at the Durning factors,
but this court's decision in 2021,
in what I believe is footnote 29, saying,
"This court does not anticipate the lack of notice
to be reoccurring for any expert witnesses going forward."
We, unfortunately, were in that same position
where there was an expert that was not noticed
either in identity basis of testimony,
or expected testimony outside of the expertise.
-: The defense wouldn't have called the expert
except that the Facebook posts
were let in sort of at the last minute.
-: Certainly.
And so that's when we're looking at the Durning factors,
and the standard of review that it's an abuse of discretion
for both the Durning as well as rebuttal and surrebuttal.
There's layers of abuse of discretion here
that we must take into context.
When Judge Ferrara was looking into
the whole expert testimony issue, he expertly asked,
was this person known or testified?
And, yes, the expert was known,
however, the expert had testified,
or had written a report
about something unrelated to cell phone extractions.
She had been brought up
in the context of a cellular telephone ping,
which was the subject of a motion to suppress,
which was denied prior to the first trial.
So, yes, the Commonwealth,
and as a practitioner in Hampden County
is well-aware of who Lindsay Hawk is.
However, her testimony,
her testimony as to Facebook extractions
from cellular devices,
as well as her discovery of a witness named Luna,
left the Commonwealth completely surprised
as to the Durning factor.
-: Well, counsel, this is the point I was getting at
with your opposing counsel.
So this really happens over two days.
So there's the end of that first day, right?
When this issue comes up and then the proffer the next day,
but what I'm still confused about was that it seemed that
Hawk's testimony was going to directly
put in context the email address
that was associated with that Facebook account.
And that was elicited by defense counsel that created that.
And so I'm still wondering
does that at all factor into the factors here
because the trial judge,
even though he may not have said explicitly
going through these factors, he talked about the extraction,
he talked about that you had the extraction ahead of time,
including the email that was ostensibly associated with it.
So how does that factor in?
-: I think looking here, yes, the judge did not
explicitly consider the defense counsel's opening
of the issue.
However, on review, I do agree,
as I think about it for the first time standing here,
that defense counsel did seize upon the moment
to ask about this email,
which was associated with a website URL facebook.com,
not through an application,
but through, like, a browser on the phone.
So the argument would be that this person
used the phone in a browser to access Facebook.
And so I would generally say
that that's an issue of credibility as to whether or not
we attribute that email, Boytoy, with the defendant,
or accept the alternative argument
that it's someone else that used that phone
to create the Adrian Anomaly Hinds Facebook account,
and then create those Facebook posts.
A little bit of inference upon inference
based upon the record.
-: Let's assume that the...
Can you explain how the defendant's racial animus,
or racial prejudices, let's say,
are relevant to the live issue of self-defense?
The real core issue of self-defense in this case.
-: So, when we're looking at the self-defense instruction,
it's a reasonable belief of attack.
And when we look at the defendant's own version
of how the attack happened,
and even when we look at the version
that the Commonwealth proffers,
the defendant was in his apartment.
He then sees a 12 to 16-inch blade withdrawn from the pants
slashing or stabbing the tire.
He then leaves the safety confines of his apartment
to confront the two victims.
When we're looking at
it's not a reasonable belief of attack there.
When we're considering the self-defense theory.
-: [Justice Wendlandt] If I could just stop you for a second.
-: [Attorney Coliflores] Sure.
-: To focus more narrowly on the question
that Justice Wolohojian asked you.
How does the defendant's racial animus against the victim
X months old, or even currently existing,
help the Commonwealth defray the self-defense argument,
which was the only thing that was at issue?
-: And I think it's right there at that moment,
that decision to leave the apartment
shows that it was not a self-defense.
So we're looking at the credibility.
-: But how does that affect,
how does the Facebook posts fit into that story?
-: It's this idea,
and the Commonwealth did not linger upon this at trial.
It's the idea that the defendant
is so incensed from the racism in town,
and that he has a specific racial prejudice
against one of these victims,
which may be attributable to Miranda Arthur-Smith
who lives with Nathaniel Cherniak in the apartment.
-: Okay, I mean, I think we have to be a little careful here.
What's concerning me is the idea that
someone who harbors racial prejudices
is not entitled to a self-defense defense.
Do you see what I'm saying?
-: [Attorney Coliflores] I do see that, yes.
-: That would concern me.
-: [Attorney Coliflores] Yes.
-: So why are we not in that zone here?
-: Why are we not in the zone of
the defendant not being entitled to it?
-: Of that problematic conclusion
that a racist cannot be entitled to self-defense?
-: I think we must look at in the inverse
when who is entitled to a self-defense instruction
it's any reasonable point of view.
-: [Justice Wolohojian] Who meets the elements.
-: [Attorney Coliflores] Right.
-: Right.
-: And if we do look at the defendant's theory of the case,
he does at least meet somewhat of this idea of self-defense
either of himself in the hallway,
or self-defense of his vehicle
upon seeing it being the tires being slashed,
which he had been suffered to his testimony many times over.
-: Well, there's also the upstream issue because the Facebook
and the detective's testimony
comes after Mr. Hinds' testimony.
-: [Attorney Coliflores] That's correct.
-: And that's where the judge revisits that decision,
the evidentiary decision,
because there's the testimony
that I know that your opposing counsel disagrees,
but there's the testimony
of never having said anything negative,
or I forget the formulation,
but there was the affirmative testimony from Mr. Hinds
that I didn't have a beef with them.
And so I never said anything negative or anything.
So the fuller context is, also,
isn't that gonna inform the reasonableness analysis
for self-defense?
-: I believe so, Your Honor.
And when we're looking at that specific testimony,
there was a lot of discussion
about towards versus to, right?
The question is,
did you ever use a racial epithet towards Mr. Cherniak?
I never said anything to him.
And I think we must give the trial judge here some credit.
He's listening to the testimony.
He understands what is going on
in this specific line of questioning.
And there's a line between
not having a good relationship,
to someone disliking,
to someone hating,
to having a racial prejudice against something.
And I would credit the trial judge's determination
at that moment that he didn't believe
what the defendant was saying was completely truthful.
That defendant there was almost playing with the answers
to the questions that the prosecutor was asking,
the changing of towards and to,
and the retorting,
isn't that a negative relationship with them?
It's clear that he was being deceitful,
and, therefore, it was proper to inquire further,
and to admit the Facebook posts.
If there are no further questions
the Commonwealth would rest on its brief.