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SJC Docket No. 13599, Commonwealth vs Shondell Rateree.
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Okay, Attorney Dahlberg.
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Good morning, may it please the court.
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Nancy Dahlberg for Shondell Rateree.
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Before I proceed, I just wanna indicate that I,
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for the sake of clarity,
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because this can be a confusing fact pattern,
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I will consistent, with my brief use the last names
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of individuals, no disrespect intended to any individual.
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I am asking that the court vacate all
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of the convictions in this case except count 12,
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misleading the police,
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and ask the court to enter not guilty on that count.
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This case presents the kind of factual scenario
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for which the rule in adjutant in its progeny
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was developed, where self-defense, and we argue here,
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defense of another, and I will just,
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without trying to confuse the court,
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indicate that the Commonwealth has assumed that defense
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of another applies here in this case,
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where self-defense and defense of another
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are asserted by the defendant,
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and there is a dispute as to who escalated a conflict
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with the use of deadly force,
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evidence that an alleged victim
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was a first aggressor initiating
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prior acts of violence, even if unknown
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to the defendant can help the jury determine
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the truth of what happened.
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Evidence that Griffith was the first aggressor
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with a knife in a prior incident
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was occluded by the judge here,
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and that exclusion was prejudicial error
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requiring a new trial.
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Here everyone agreed that there was a melee
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among four people that lasted a very short time.
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However, there was a dispute as to who initiated the use
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of deadly force with a knife.
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All four participants sustained injuries.
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Griffith said he had no knife
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and that Rateree was the aggressor.
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But Rateree said that Griffith had a knife.
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Can I ask you a question?
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Yes.
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One of the reasons,
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or one of the bases that we relied upon in expanding
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the rule that is now the adjutant rule,
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was the fact that there,
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all the federal courts allowed that kind
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of propensity evidence in, I think it was 45 out
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of the 50 states also allowed it in for the self-defense.
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Have you done
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or do you know whether the federal courts
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do allow this kind of propensity evidence in
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for defense of another and/or the states?
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So the majority of states do not have the adjutant rule.
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The majority of states like the federal government,
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and there is a footnote in adjutant,
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and actually in the brief I can point you to,
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but they allow propensity evidence as to reputation,
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not as specific acts of violence.
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Right. So that's a different question.
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The question I had is for the sort of basic proposition
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of allowing propensity evidence regardless of its reputation
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or specific acts.
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Yes.
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In adjutant, it seemed that one
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of the persuasive things that,
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one of the things that was persuasive to the court
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was the fact that the states had actually already
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gone that way, as had the federal government.
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So United States versus Kaiser, which is cited by adjutant
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and which is cited in the brief includes defense of another.
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Now that's-
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And is that the only case that you're aware of?
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You know, there are not very many cases
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of defense of another, so yes, I don't have other cases
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that talk about that.
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But there are remarkably few cases
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that involve defense of another, generally.
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Can I ask you to explore the differences
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between self-defense
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and defense of another vis-a-vis the adjutant rule?
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Because in a straightforward self-defense,
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we're looking to see who the first aggressor was,
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was it the victim or the defendant.
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Now we get defense of another
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and it's a third person, of course,
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the other being thrown into the mix
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and it becomes, it seems to me, a bit more convoluted
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because we're looking at perceptions of, is it,
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who was the first aggressor on whose perception?
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Is it the person who was the other
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or is it somewhat perceived by the defendant
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or how does that work and how would you compare the two?
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Well, if I may talk about this specific case,
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I would say the evidence is the same on defense
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of another and self-defense.
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I'm just wondering about the rule though,
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because the more it gets, the more we move from self-defense
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to defense of another and a different person
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is put into the mix,
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does the propensity argument
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and does it become somewhat more convoluted
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and confusing to a jury?
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Well, I can spin out some hypotheticals if you don't
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want me to talk about this specific case.
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No, no, please.
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Well, in this-
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Answer it how you want to.
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Alright, let me start with this specific case.
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In this specific case, the evidence was the same.
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Ms. Rateree saw, according to his statement,
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heard Griffith stabbing his co-defendant,
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and for the sake of clarity today, I will say co-defendant,
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that is Mr. Rios-Figueroa.
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But because I have difficulty with that name,
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I'm going to say co-defendant.
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So he hears him stabbing,
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he hears the co-defendant yelling out,
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and at that time, this melee, which people,
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the testimony is people are right on top
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of each other, caused him to fear for his own life
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and for his co-defendants.
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And he says that in his statement.
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So in that case, the situation is the same.
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The first aggressor is Griffiths
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and causes concern about self, raises the defense
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of self-defense in defense of another.
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If Your Honor is discussing a situation,
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and so I think the court can certainly say in this scenario,
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defense of another clearly applies
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Because we have the footnote in the case
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that says this only applies, doesn't apply to self-defense,
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the defense of another.
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I know you dispute that,
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but there's at least a footnote that says that.
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There is a footnote in Camacho that says, we are not going
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to extend the rule to defense of another in this case.
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Right, and I'm just wondering what the logic is,
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and is it because it becomes more convoluted when we move
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from self-defense to defense than another?
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Well, I-
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Therefore more confusing to the jury.
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And I would just say that Camacho didn't raise the issue.
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And so I think that the statement there was dictum
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and also limited by, in this case.
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I would say that there is no additional, oh, I'm sorry.
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But it does raise the issue of Camacho.
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It's just, it distinguishes it on the facts, doesn't it?
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Camacho is not about,
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there was no dispute in Camacho about who initiated force.
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It was the defendant shot a gun into the crowd.
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There was absolutely no evidence of a dispute,
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as to dispute as to first aggressor.
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So it appears that that was dictum, and actually,
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I reviewed the briefs in that case.
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The only mention, there was no argument on either side.
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There was just an assertion that it should apply.
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So I would say that truly this court is not bound by that
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and there is no reasoned argument for that.
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And I would also, but I do wanna,
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I don't know if I answered Justice Gaziano's question,
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so I don't wanna, is that what-
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I was just trying to understand
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what happened in Camacho before you (indistinct).
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In defense of another,
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there really are two different assaults.
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One is the assault between the victim
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and in the third party, correct?
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Then there's the attack
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or self-defense by defendant against victim.
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So I just want to explore how,
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how this adjutant issue applies to this scenario.
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So to the current scenario, I would say that they're,
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the two are linked just as they are sort
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of inextricably tied in case law.
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As to a hypothetical where someone was across the street
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and had had an argument
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and then there was someone else attacking a third party,
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I think it'd still be applicable,
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but remember that adjutant evidence is within
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the discretion of the judge.
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Here, the judge abuse that discretion
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because he thought he couldn't exercise it.
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He did not understand for some reason the language of the,
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of Rateree's statement,
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which I don't really frankly understand.
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I think it's pretty clear
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that Griffiths was the first aggressor
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and that was corroborated
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by the statement of the co-defendant.
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But I think that that, your question, Your Honor,
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I think it should be, I'm asking the court
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to rule that it's admissible,
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but certainly within the discretion of the trial court,
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and perhaps they see in that situation it didn't fall,
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it didn't justify admission.
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Here, if adjuvant is a discretionary doctrine, which I,
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which it is, as you stated,
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and the judge here exercised his discretion
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to exclude the prior act,
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even though self-defense was also a defense in the trial,
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even if we were to agree with you that the doctrine
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adjutant should be extended to defense of another cases,
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how would that affect the outcome in this case?
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Because we know that the judge excluded the evidence
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as a discretionary matter,
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even though self-defense was a defense.
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So the judge was prepared to admit the evidence.
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He indicated that clearly, he said it was relevant
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and temporarily related.
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He decided later that the record did not indicate
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that Griffith was, that there was evidence
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that Griffith was the first aggressor
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and that was in dispute.
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That is indisputably wrong.
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And I think what happened here, and the reason it's error
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and abuse of discretion is that the judge did not recognize
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that he had the ability to admit it
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because he did not recognize the dispute.
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So I would-
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But how can we reconcile that with the fact
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that he gave a self-defense instruction,
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because he gave a self defense instruction,
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which would only make sense if there was evidence
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that Griffiths was the first aggressor.
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I agree with you, Your Honor.
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It's inconsistent and another indication that he was wrong.
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Well, perhaps he just,
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perhaps we're giving too much weight
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to what he said when he said there was no evidence.
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Because clearly by the time the instruction comes along,
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he's thinking there is sufficient evidence
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to support giving the instruction to the jury.
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For most of the jury, and if, for much of the transcript,
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he's very clear that he's going to admit it.
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And then one day he looks at the transcript
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of Rateree's statement and says,
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Well, I don't see where the dispute is.
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And the, you know, the defense attorney knows that
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there's a dispute.
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He says, This is what happened, and I, you know,
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I have that in the brief,
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but for some reason the judge didn't recognize it
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and that was error.
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But I agree that it's a real inconsistency
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with his instruction, and so-
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In your view, since it is a discretionary decision,
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what are the factors
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that should be taken into account when the judge
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is exercising that discretion?
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Well, I think that's laid out in adjutant in its progeny
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Here, he considered prejudice versus probity,
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and the Commonwealth argued against the admission
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of the Griffiths evidence, 'cause he said
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it was very prejudicial to their case,
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which is what supports our argument
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that the exclusion was very prejudicial to Rateree.
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So prejudicial versus probative, relevance,
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and temporarily related.
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And then the issue is how much of it comes in?
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That's a discretionary matter for the judge.
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But the judge actually exercised discretion appropriately
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00:12:06.270 --> 00:12:09.570
until he got to a reading of the transcript that,
266
00:12:09.570 --> 00:12:12.446
at that time, just escaped him.
267
00:12:12.446 --> 00:12:15.270
He doesn't exercise discretion here, right.
268
00:12:15.270 --> 00:12:20.270
He says, if someone's gonna extend adjutant to defense
269
00:12:20.280 --> 00:12:22.230
of another, it has to be the SJC.
270
00:12:22.230 --> 00:12:23.370
He can't do it.
271
00:12:23.370 --> 00:12:24.398
So he doesn't do it.
272
00:12:24.398 --> 00:12:25.860
He doesn't exercise-
273
00:12:25.860 --> 00:12:28.590
No, as to defense of another, absolutely, Your Honor.
274
00:12:28.590 --> 00:12:31.140
I think as to self-defense,
275
00:12:31.140 --> 00:12:33.840
it was an error in the exercised expression.
276
00:12:33.840 --> 00:12:38.520
And as to defense of another, he was unwilling
277
00:12:38.520 --> 00:12:41.040
to indicate that it applied, and yes,
278
00:12:41.040 --> 00:12:44.763
and he pointed to, of course, the SJC on that issue.
279
00:12:46.115 --> 00:12:48.226
Justice WAHL-UH-HOH-JEN, did I answer your question?
280
00:12:48.226 --> 00:12:49.650
You did. Thank you.
281
00:12:49.650 --> 00:12:50.673
Okay, thank you.
282
00:12:52.650 --> 00:12:54.690
Are there any other questions on that issue
283
00:12:54.690 --> 00:12:58.110
or should I carry on and, oh, I don't have a lot
284
00:12:58.110 --> 00:13:01.957
And misleading and, 'cause i had a little trouble
285
00:13:01.957 --> 00:13:04.083
following your arguing on timing.
286
00:13:04.083 --> 00:13:07.800
It's the first time they interview your client,
287
00:13:07.800 --> 00:13:10.200
it's at seven o'clock in the morning.
288
00:13:10.200 --> 00:13:12.834
They haven't discovered the gun on the beach yet
289
00:13:12.834 --> 00:13:14.116
at that point.
290
00:13:14.116 --> 00:13:18.158
So isn't he misleading the police when he says,
291
00:13:18.158 --> 00:13:20.400
I didn't go to the beach?
292
00:13:20.400 --> 00:13:22.747
He said, I don't, I believe he said,
293
00:13:22.747 --> 00:13:24.270
"I don't think I went there."
294
00:13:24.270 --> 00:13:26.400
But to go back for a minute, the Commonwealth
295
00:13:26.400 --> 00:13:28.113
has to prove that,
296
00:13:30.780 --> 00:13:33.570
let me just get the language here.
297
00:13:33.570 --> 00:13:38.477
The Commonwealth has to prove that he caused,
298
00:13:38.477 --> 00:13:40.620
caused the police to pursue a course
299
00:13:40.620 --> 00:13:42.900
of investigation material different from the course
300
00:13:42.900 --> 00:13:45.540
they would have, could have, did or could have.
301
00:13:45.540 --> 00:13:47.280
The Commonwealth failed to prove this
302
00:13:47.280 --> 00:13:49.980
because they knew at three o'clock in the morning
303
00:13:49.980 --> 00:13:52.200
that he threw the knife into the water.
304
00:13:52.200 --> 00:13:55.470
That was on, that was in real time on the video.
305
00:13:55.470 --> 00:13:57.390
And they have not proven that they could
306
00:13:57.390 --> 00:13:58.770
have been misled by that.
307
00:13:58.770 --> 00:14:01.380
They know it's him at three o'clock in the morning?
308
00:14:01.380 --> 00:14:05.100
The police officer who saw this in real time said,
309
00:14:05.100 --> 00:14:08.910
they already had the description of the his car.
310
00:14:08.910 --> 00:14:12.180
They said that, and he had already gotten the BOLO.
311
00:14:12.180 --> 00:14:13.013
I haven't seen this video,
312
00:14:13.013 --> 00:14:16.800
but is this video clear that it's him and his car
313
00:14:16.800 --> 00:14:18.870
or is it gonna be one of these grainy videos
314
00:14:18.870 --> 00:14:19.870
that we always get
315
00:14:20.820 --> 00:14:24.240
The Yarmouth police officer who testified indicated
316
00:14:24.240 --> 00:14:28.020
that he got the BOLO, the car looked like a silver,
317
00:14:28.020 --> 00:14:31.080
a light car, and the man looked like a black man.
318
00:14:31.080 --> 00:14:34.320
This was the definition, this was the description
319
00:14:34.320 --> 00:14:35.744
that came over the BOLO.
320
00:14:35.744 --> 00:14:38.430
He says he didn't go to the beach,
321
00:14:38.430 --> 00:14:40.590
and yet, that level of detail,
322
00:14:40.590 --> 00:14:43.260
he's not misleading the police because-
323
00:14:43.260 --> 00:14:44.447
He said, "I don't think-"
324
00:14:44.447 --> 00:14:47.239
'Cause a black man was driving
325
00:14:47.239 --> 00:14:49.923
a gray car to the beach?
326
00:14:51.060 --> 00:14:53.940
I think if they, they knew it was what had happened
327
00:14:53.940 --> 00:14:56.700
because they sent the police there in the morning
328
00:14:56.700 --> 00:15:00.000
to go retrieve it from the ocean.
329
00:15:00.000 --> 00:15:02.730
But they had a BOLO go out just before 3:00 AM,
330
00:15:02.730 --> 00:15:07.470
and at 3:02, they see in real time someone matching that.
331
00:15:07.470 --> 00:15:10.500
That's why he immediately contacted the Barnstable police
332
00:15:10.500 --> 00:15:11.790
with the information.
333
00:15:11.790 --> 00:15:15.544
So are you saying that when the defendant
334
00:15:15.544 --> 00:15:18.990
made the misstatement to the police, they already,
335
00:15:18.990 --> 00:15:22.200
those particular officers already knew
336
00:15:22.200 --> 00:15:23.943
that he had discarded the knife?
337
00:15:25.350 --> 00:15:28.230
They certainly have not proven otherwise,
338
00:15:28.230 --> 00:15:29.400
and it's the burden of proving.
339
00:15:29.400 --> 00:15:30.840
They had all the information
340
00:15:30.840 --> 00:15:33.750
to show that they had and that they had proffered
341
00:15:33.750 --> 00:15:36.120
no evidence that they could have been misled.
342
00:15:36.120 --> 00:15:38.460
I would like to just say his misstatements,
343
00:15:38.460 --> 00:15:41.040
I say, were equivocations and they're distinguished
344
00:15:41.040 --> 00:15:44.520
from the kinds of statements that in,
345
00:15:44.520 --> 00:15:46.320
as I described in the brief.
346
00:15:46.320 --> 00:15:48.450
The only case you cite though is the case
347
00:15:48.450 --> 00:15:52.315
where the person eats the drugs in front of the cops.
348
00:15:52.315 --> 00:15:55.050
Are there any places more like this
349
00:15:55.050 --> 00:15:59.460
where the statements are misleading but the cops are?
350
00:15:59.460 --> 00:16:03.390
So I would definitely, I would distinguish the two cases
351
00:16:03.390 --> 00:16:04.503
that I have in the reply brief
352
00:16:04.503 --> 00:16:06.480
that the Commonwealth relies on,
353
00:16:06.480 --> 00:16:10.431
both cases in which the police did not know the truth
354
00:16:10.431 --> 00:16:12.750
of a situation at the time
355
00:16:12.750 --> 00:16:14.670
that they were doing in their investigation
356
00:16:14.670 --> 00:16:16.320
and found out later.
357
00:16:16.320 --> 00:16:20.881
And so there aren't again a lot of cases in this area,
358
00:16:20.881 --> 00:16:24.075
but the ones that are relied upon are different.
359
00:16:24.075 --> 00:16:27.183
Counsel, I wanna ask about what our inquiry is here.
360
00:16:28.680 --> 00:16:32.660
We have previously just to quote the Paquette case
361
00:16:32.660 --> 00:16:35.640
that you cite in your brief, that the test is whether these
362
00:16:35.640 --> 00:16:39.390
are lies that reasonably could lead investigators
363
00:16:39.390 --> 00:16:43.440
to pursue a material, a different course of investigation.
364
00:16:43.440 --> 00:16:46.470
So that sounds like an objective inquiry about the nature
365
00:16:46.470 --> 00:16:49.410
of the defendant's statement.
366
00:16:49.410 --> 00:16:52.920
Is it of the kind that reasonably could lead investigators
367
00:16:52.920 --> 00:16:55.770
to pursue material, a different course of investigation?
368
00:16:55.770 --> 00:16:59.070
You have briefed this as a question of whether,
369
00:16:59.070 --> 00:17:02.947
given what the officer's subjectively knew at that time,
370
00:17:02.947 --> 00:17:06.451
whether or not those officers, in fact,
371
00:17:06.451 --> 00:17:10.949
could be misled, which is it?
372
00:17:10.949 --> 00:17:13.260
The Commonwealth has to show
373
00:17:13.260 --> 00:17:16.170
that they could have been misled,
374
00:17:16.170 --> 00:17:19.585
and I was, here, there they have not presented
375
00:17:19.585 --> 00:17:22.770
the evidence that they could have been misled.
376
00:17:22.770 --> 00:17:25.170
In addition, I would just go back to the,
377
00:17:25.170 --> 00:17:28.410
in terms of the equivocations that I don't know,
378
00:17:28.410 --> 00:17:30.840
that is actually not considered a misstatement
379
00:17:30.840 --> 00:17:32.310
under the case law.
380
00:17:32.310 --> 00:17:33.810
Did I answer your question, Justice?
381
00:17:33.810 --> 00:17:37.230
So is it one or the other or is it both?
382
00:17:37.230 --> 00:17:42.230
So what, if a person who's the subject of an investigation
383
00:17:43.800 --> 00:17:48.450
tells a blatant lie to an officer
384
00:17:48.450 --> 00:17:50.490
that could mislead them,
385
00:17:50.490 --> 00:17:53.910
for example, Oh, I saw who did it,
386
00:17:53.910 --> 00:17:56.520
it was John Jones,
387
00:17:56.520 --> 00:18:00.900
but that officer subjectively knows that actually the person
388
00:18:00.900 --> 00:18:05.580
who says that did it, does that not satisfy the statute
389
00:18:05.580 --> 00:18:08.400
because the officer couldn't be misled?
390
00:18:08.400 --> 00:18:11.764
I think if he, if the officer knows at the time
391
00:18:11.764 --> 00:18:15.720
then he could not have been, then he cannot be misled.
392
00:18:15.720 --> 00:18:19.560
So that people have an ability to lie to police officers
393
00:18:19.560 --> 00:18:22.500
as long as those police officers have information
394
00:18:22.500 --> 00:18:25.440
that would counter the lie.
395
00:18:25.440 --> 00:18:28.890
Well, if they know that it's information
396
00:18:28.890 --> 00:18:30.660
that would not, and of course,
397
00:18:30.660 --> 00:18:31.860
it's the Commonwealth's burden.
398
00:18:31.860 --> 00:18:35.430
If they have information that could not mislead them
399
00:18:35.430 --> 00:18:39.946
because they know the truth, then it's not the crime
400
00:18:39.946 --> 00:18:44.790
of intimidation of a witness/misleading a police officer.
401
00:18:44.790 --> 00:18:45.990
That's what I would say.
402
00:18:46.879 --> 00:18:48.450
Okay, thank you.
403
00:18:48.450 --> 00:18:49.650
Thank you very much.
404
00:18:52.320 --> 00:18:53.370
Attorney El Khoury.
405
00:18:56.670 --> 00:18:58.200
Good morning, may it please the court.
406
00:18:58.200 --> 00:18:59.910
Rose-Ellen El Khoury for the Cape and Islands
407
00:18:59.910 --> 00:19:02.790
district attorney's office in the Commonwealth.
408
00:19:02.790 --> 00:19:05.490
The Commonwealth contends the trial judge's denial
409
00:19:05.490 --> 00:19:07.477
of the defendant's motion
410
00:19:07.477 --> 00:19:09.270
to admit first aggressor evidence pursuant
411
00:19:09.270 --> 00:19:13.904
to Commonwealth versus Adjutant 443 Mass 649-2005
412
00:19:13.904 --> 00:19:17.730
was an appropriate exercise of his discretion.
413
00:19:17.730 --> 00:19:19.110
Whether to admit evidence
414
00:19:19.110 --> 00:19:22.290
of prior violent incidents instigated by the victim
415
00:19:22.290 --> 00:19:24.157
of a crime is, quote,
416
00:19:24.157 --> 00:19:27.217
"Always subject to the broad discretion afforded
417
00:19:27.217 --> 00:19:28.110
"to the trial judge."
418
00:19:28.110 --> 00:19:32.144
But here, the judge didn't, the judge read our footnote
419
00:19:32.144 --> 00:19:34.964
and said, I don't have the discretion.
420
00:19:34.964 --> 00:19:37.350
That's correct, and the Commonwealth,
421
00:19:37.350 --> 00:19:40.300
although in our brief we do treat arguendo
422
00:19:40.300 --> 00:19:43.800
defense of another as if it were self-defense,
423
00:19:43.800 --> 00:19:46.020
just for the purposes of the argument,
424
00:19:46.020 --> 00:19:48.510
does maintain that it was not an abuse of discretion
425
00:19:48.510 --> 00:19:50.919
for the judge to decline to unilaterally-
426
00:19:50.919 --> 00:19:53.610
Well let me ask you, what's the distinction
427
00:19:53.610 --> 00:19:55.590
between defense of another,
428
00:19:55.590 --> 00:19:57.180
and self-defense such that we should
429
00:19:57.180 --> 00:19:59.446
have different attitude roles?
430
00:19:59.446 --> 00:20:03.090
I would say that the distinction boils down
431
00:20:03.090 --> 00:20:06.850
to the complications and a fact pattern.
432
00:20:06.850 --> 00:20:10.440
With self-defense, the threat is clearly
433
00:20:10.440 --> 00:20:11.766
an immediate threat.
434
00:20:11.766 --> 00:20:16.129
An individual is responding to the overt acts of,
435
00:20:16.129 --> 00:20:19.860
supposedly, a victim who is an aggressor.
436
00:20:19.860 --> 00:20:22.770
Whereas, for defense of another,
437
00:20:22.770 --> 00:20:25.923
that is inherently less immediately clear.
438
00:20:27.300 --> 00:20:30.085
It's a perceived threat and attack.
439
00:20:30.085 --> 00:20:32.790
Now granted, where deadly violence is involved,
440
00:20:32.790 --> 00:20:34.560
that does become a little bit more straightforward.
441
00:20:34.560 --> 00:20:36.180
If you have one person who's wielding a weapon
442
00:20:36.180 --> 00:20:38.010
and one who doesn't,
443
00:20:38.010 --> 00:20:41.040
there is a much clearer disparity there for a third party.
444
00:20:41.040 --> 00:20:42.990
But I would say that the distinctions
445
00:20:42.990 --> 00:20:44.765
come in terms of the complication.
446
00:20:44.765 --> 00:20:45.896
If that's the case though,
447
00:20:45.896 --> 00:20:48.570
why shouldn't the defendant have the benefit
448
00:20:48.570 --> 00:20:51.595
of the evidence, the adjutant evidence?
449
00:20:51.595 --> 00:20:53.433
In this particular case, I would say
450
00:20:53.433 --> 00:20:56.490
that the defendant should not have the benefit of it
451
00:20:56.490 --> 00:20:59.370
because neither defendant, or the co-defendant in this case,
452
00:20:59.370 --> 00:21:03.487
ever admitted to utilizing deadly force in any way.
453
00:21:03.487 --> 00:21:07.740
You know, the defendant is very specific in his language
454
00:21:07.740 --> 00:21:09.540
when he talks about self-defense
455
00:21:09.540 --> 00:21:10.740
or when he talks about what he did,
456
00:21:10.740 --> 00:21:12.420
he says, maybe I hit him.
457
00:21:12.420 --> 00:21:16.350
He clearly, you know, watching the video there,
458
00:21:16.350 --> 00:21:19.290
there are moments where he gesticulates in a way
459
00:21:19.290 --> 00:21:21.150
that indicates stabbing.
460
00:21:21.150 --> 00:21:23.040
He knows the difference between stabbing and hitting.
461
00:21:23.040 --> 00:21:25.595
He knows when he says hitting, what he's saying.
462
00:21:25.595 --> 00:21:28.877
There is no indication on his part
463
00:21:28.877 --> 00:21:31.830
or on the part of the co-defendant that either
464
00:21:31.830 --> 00:21:34.890
of them used a knife at any time during this altercation.
465
00:21:34.890 --> 00:21:38.079
But if we, when we're analyzing whether you get
466
00:21:38.079 --> 00:21:40.583
an instruction, we look at the facts
467
00:21:40.583 --> 00:21:42.540
in a light most favorable to the defendant,
468
00:21:42.540 --> 00:21:43.865
not to the (indistinct).
469
00:21:43.865 --> 00:21:46.087
We look at these facts in a light most favorable
470
00:21:46.087 --> 00:21:47.754
to the defendant.
471
00:21:47.754 --> 00:21:51.837
It's clear that there's two knives in place here.
472
00:21:53.345 --> 00:21:58.290
It's absolutely, and for an instruction that is correct,
473
00:21:58.290 --> 00:21:59.550
but this is not an instruction,
474
00:21:59.550 --> 00:22:04.550
this is the admission of evidence, where this is less clear.
475
00:22:05.490 --> 00:22:09.570
This is not going to assist the jury in understanding
476
00:22:09.570 --> 00:22:11.430
the circumstances of this fight.
477
00:22:11.430 --> 00:22:14.643
It is just going to add layers of confusion.
478
00:22:14.643 --> 00:22:17.340
But correct me, I thought the lens we look at on adjutant
479
00:22:17.340 --> 00:22:20.313
is still in the light most favorable to the defendant.
480
00:22:21.180 --> 00:22:23.220
It was my understanding that it still boils down
481
00:22:23.220 --> 00:22:26.205
at the end of the day to the discretion of the judge.
482
00:22:26.205 --> 00:22:27.038
Right.
483
00:22:27.038 --> 00:22:28.498
But it's the discretion of the judge
484
00:22:28.498 --> 00:22:30.660
after they analyzed the evidence
485
00:22:30.660 --> 00:22:33.087
that's been probably introduced in the light most favorable
486
00:22:33.087 --> 00:22:33.920
to the defendant.
487
00:22:33.920 --> 00:22:35.700
And looking at it in that light from the beginning,
488
00:22:35.700 --> 00:22:39.330
the judge made very clear that this incident,
489
00:22:39.330 --> 00:22:41.460
he felt, was proper adjutant evidence
490
00:22:41.460 --> 00:22:44.213
if it was warranted by the situation.
491
00:22:44.213 --> 00:22:47.560
But given the way the case developed, given the evidence
492
00:22:47.560 --> 00:22:50.400
that was put forth, it was not appropriate
493
00:22:50.400 --> 00:22:51.990
to put in adjutant evidence
494
00:22:51.990 --> 00:22:55.419
where neither defendant was at all indicating.
495
00:22:55.419 --> 00:22:58.242
But that's not necessarily square
496
00:22:58.242 --> 00:23:00.510
with the defendant's statements, right.
497
00:23:00.510 --> 00:23:03.270
Because you know, when you, when you listen
498
00:23:03.270 --> 00:23:06.450
or when you read the defendant's statements to the police,
499
00:23:06.450 --> 00:23:09.270
he talks about this, it's not long,
500
00:23:09.270 --> 00:23:13.825
but there is a break between his involvement in the melee
501
00:23:13.825 --> 00:23:18.090
and then having an opportunity to look at
502
00:23:18.090 --> 00:23:20.910
what his co-defendant and the other two involved.
503
00:23:20.910 --> 00:23:23.580
And he very distinctly says, you know,
504
00:23:23.580 --> 00:23:25.560
that the woman was on top of him
505
00:23:25.560 --> 00:23:29.490
and he was being called out for by his co-defendant,
506
00:23:29.490 --> 00:23:31.957
and not only called out for, but saying,
507
00:23:31.957 --> 00:23:34.140
"He's poking me, he's sticking me."
508
00:23:34.140 --> 00:23:38.504
So isn't the factual circumstances here in the light
509
00:23:38.504 --> 00:23:42.323
most favorable to the defendant there?
510
00:23:42.323 --> 00:23:44.280
In the light most favorable to the defendant,
511
00:23:44.280 --> 00:23:45.569
I would say yes.
512
00:23:45.569 --> 00:23:48.493
I would, however say that again,
513
00:23:48.493 --> 00:23:51.262
it doesn't quite reach there.
514
00:23:51.262 --> 00:23:56.262
I genuinely think that where neither defendant is willing
515
00:23:56.340 --> 00:23:58.623
to make any sort of statement saying,
516
00:23:59.884 --> 00:24:02.493
this is the level of force with which
517
00:24:02.493 --> 00:24:05.288
we addressed this situation, that-
518
00:24:05.288 --> 00:24:08.463
So we needed Rateree to say,
519
00:24:09.390 --> 00:24:14.390
So I then got this knife and stabbed the victim
520
00:24:15.630 --> 00:24:18.420
because I had to do that in order to defend.
521
00:24:18.420 --> 00:24:21.360
We need to finish the other part of the equal sign.
522
00:24:21.360 --> 00:24:22.260
I would say yes.
523
00:24:22.260 --> 00:24:23.850
I would say if you look at the other cases
524
00:24:23.850 --> 00:24:25.740
in the adjutant line,
525
00:24:25.740 --> 00:24:27.930
there aren't any that I'm aware of.
526
00:24:27.930 --> 00:24:31.011
And admittedly, my knowledge is not completely extensive.
527
00:24:31.011 --> 00:24:33.240
I don't really understand that, Counsel.
528
00:24:33.240 --> 00:24:36.570
Why does the defendant have to admit
529
00:24:36.570 --> 00:24:40.800
using the knife when the evidence red in the light
530
00:24:40.800 --> 00:24:45.780
most favorable to him in terms of the adjutant analysis
531
00:24:45.780 --> 00:24:47.735
suggests that he did,
532
00:24:47.735 --> 00:24:52.735
that we know that he discarded a knife,
533
00:24:53.626 --> 00:24:58.626
we know that the victim was stabbed multiple times.
534
00:24:58.833 --> 00:25:03.030
There were two knives used in the incident.
535
00:25:03.030 --> 00:25:06.047
Why wouldn't all of that evidence
536
00:25:06.047 --> 00:25:09.173
suggest that the adjutant analysis
537
00:25:09.173 --> 00:25:14.173
would favor giving, allowing the propensity evidence?
538
00:25:14.970 --> 00:25:17.040
I would say because actually these post scenarios
539
00:25:17.040 --> 00:25:18.840
similar to the one that we have right now,
540
00:25:18.840 --> 00:25:21.360
where a defendant makes equivocal statements
541
00:25:21.360 --> 00:25:24.445
and refuses to, for lack of a better phrase,
542
00:25:24.445 --> 00:25:26.360
take ownership of the self-defense
543
00:25:26.360 --> 00:25:29.220
or defense of another that they engaged in,
544
00:25:29.220 --> 00:25:31.986
and now comes afterwards saying, well,
545
00:25:31.986 --> 00:25:36.986
but I think that where a defendant does not
546
00:25:40.237 --> 00:25:45.237
indicate in any way that they participated in the-
547
00:25:46.790 --> 00:25:49.140
Well he admits he participated in the melee.
548
00:25:49.140 --> 00:25:51.360
He just says, I was helping my friend,
549
00:25:51.360 --> 00:25:53.190
he was on the ground being stabbed.
550
00:25:53.190 --> 00:25:55.500
He does, but when he's not admitting
551
00:25:55.500 --> 00:25:59.871
to utilizing the same degree of force that allegedly
552
00:25:59.871 --> 00:26:04.871
was used by multiple parties in the fight-
553
00:26:06.074 --> 00:26:08.490
What's your best case for that,
554
00:26:08.490 --> 00:26:12.501
that the defendant has to admit using deadly force?
555
00:26:12.501 --> 00:26:16.579
I would actually say that I think the fact pattern
556
00:26:16.579 --> 00:26:19.980
in Chambers is very illuminating.
557
00:26:19.980 --> 00:26:24.960
I think it does a good job of showing a defendant who,
558
00:26:24.960 --> 00:26:26.940
there was a struggle over that knife
559
00:26:26.940 --> 00:26:31.350
and the defendant says, I don't know if I, you know,
560
00:26:31.350 --> 00:26:32.757
twisted it and stabbed it.
561
00:26:32.757 --> 00:26:34.650
You know, he gives conflicting accounts.
562
00:26:34.650 --> 00:26:38.100
But he does say that yes, there was a knife,
563
00:26:38.100 --> 00:26:39.600
I did try to take control of it.
564
00:26:39.600 --> 00:26:41.130
I did take these actions
565
00:26:41.130 --> 00:26:43.380
that did result in this stabbing.
566
00:26:43.380 --> 00:26:45.090
Here, neither defendant says that they took
567
00:26:45.090 --> 00:26:49.242
any actions that resulted in anybody's stabbing.
568
00:26:49.242 --> 00:26:51.877
This seems a little weird to me because,
569
00:26:51.877 --> 00:26:55.877
but otherwise I think your argument sounds,
570
00:26:55.877 --> 00:26:58.410
your argument sounds to me as though you're saying
571
00:26:58.410 --> 00:27:00.330
the defendant needs to admit
572
00:27:00.330 --> 00:27:03.180
to the crime with which he's been charged
573
00:27:03.180 --> 00:27:06.370
by the government in order to have the benefit
574
00:27:08.031 --> 00:27:11.763
of the defense or the adjutant evidence.
575
00:27:16.200 --> 00:27:18.780
I can understand that interpretation.
576
00:27:18.780 --> 00:27:22.500
It's my thought that the purpose of adjutant,
577
00:27:22.500 --> 00:27:25.290
self-defense is, to a degree,
578
00:27:25.290 --> 00:27:27.090
an admission of committing the crime
579
00:27:27.090 --> 00:27:28.020
of which one is accused.
580
00:27:28.020 --> 00:27:29.670
But it's saying that this crime
581
00:27:29.670 --> 00:27:31.050
that I committed was justified
582
00:27:31.050 --> 00:27:32.190
because of these circumstances.
583
00:27:32.190 --> 00:27:34.067
That's never been the law that a defendant
584
00:27:34.067 --> 00:27:37.020
has to admit or get on a witness stand
585
00:27:37.020 --> 00:27:39.407
to get a self-defense.
586
00:27:39.407 --> 00:27:42.210
You can have, you can raise self-defense
587
00:27:42.210 --> 00:27:44.040
through ancillary evidence
588
00:27:44.040 --> 00:27:46.560
that does not involve any admissions
589
00:27:46.560 --> 00:27:49.260
of misconduct by a defendant, correct?
590
00:27:49.260 --> 00:27:52.080
Yes, but where the argument I feel was that this,
591
00:27:52.080 --> 00:27:55.575
you know, the defendant never had a knife in his hand.
592
00:27:55.575 --> 00:27:57.444
I don't think that the judge-
593
00:27:57.444 --> 00:27:59.104
The issue is whether the facts
594
00:27:59.104 --> 00:28:01.760
and circumstances give rise to a light most favorable
595
00:28:01.760 --> 00:28:04.230
to the defendant of self-defense,
596
00:28:04.230 --> 00:28:07.380
and now the issue is whether or not facts and circumstances
597
00:28:07.380 --> 00:28:09.810
and a light most favorable to the defendant give rise
598
00:28:09.810 --> 00:28:11.393
to an adjutant, admission of adjutant evidence.
599
00:28:14.286 --> 00:28:15.793
I'm not gonna disagree with your honor on the-
600
00:28:18.427 --> 00:28:20.910
Well we're trying to flesh this out
601
00:28:20.910 --> 00:28:23.680
because on the one hand it sounds like
602
00:28:24.900 --> 00:28:27.660
you want it both ways,
603
00:28:27.660 --> 00:28:29.820
because on the one hand you seem to be suggesting
604
00:28:29.820 --> 00:28:33.030
that the defendant has to make this allocution in order
605
00:28:33.030 --> 00:28:34.350
to get the benefit of it.
606
00:28:34.350 --> 00:28:36.210
But on the other side, we don't get
607
00:28:36.210 --> 00:28:39.060
to take anything into the fact that you charged him
608
00:28:39.060 --> 00:28:42.480
with misleading the police for throwing away a knife.
609
00:28:42.480 --> 00:28:46.836
So you are charging him consistent with that he
610
00:28:46.836 --> 00:28:49.644
used something in this,
611
00:28:49.644 --> 00:28:53.130
but yet on the other hand, you're saying,
612
00:28:53.130 --> 00:28:57.326
but we don't know whether he actually used anything in this.
613
00:28:57.326 --> 00:28:59.040
I wouldn't say that I'm saying we don't know
614
00:28:59.040 --> 00:29:00.990
whether he used anything in this.
615
00:29:00.990 --> 00:29:02.880
Clearly from the Commonwealth's position, it's very clear
616
00:29:02.880 --> 00:29:05.962
who used certain utensils during this-
617
00:29:05.962 --> 00:29:07.743
So why does he have to admit it?
618
00:29:08.610 --> 00:29:10.830
I would say that that is, to a degree,
619
00:29:10.830 --> 00:29:13.260
what self-defense required, particularly in a case like this
620
00:29:13.260 --> 00:29:15.960
where the issue is not of who the first aggressor
621
00:29:15.960 --> 00:29:17.640
of the actual entire fight was,
622
00:29:17.640 --> 00:29:20.610
but it's who initiated the escalation,
623
00:29:20.610 --> 00:29:22.620
where the issue is escalation
624
00:29:22.620 --> 00:29:24.630
and where neither the defendant
625
00:29:24.630 --> 00:29:28.299
nor the co-defendant wants to be anywhere near an admission
626
00:29:28.299 --> 00:29:32.220
to participating in an escalated level of violence.
627
00:29:32.220 --> 00:29:35.790
I would say that in that case,
628
00:29:35.790 --> 00:29:40.790
how do you reach that they acted in defense of another
629
00:29:42.660 --> 00:29:45.990
in a way that resulted in the results that we have?
630
00:29:45.990 --> 00:29:48.150
But wouldn't, in that case, this be the kind
631
00:29:48.150 --> 00:29:50.250
of an evident case where adjutant evidence
632
00:29:50.250 --> 00:29:52.593
would actually be really helpful to the jury?
633
00:29:55.101 --> 00:30:00.101
In this case, in this particular case, it's my position
634
00:30:00.212 --> 00:30:02.670
that it would not.
635
00:30:02.670 --> 00:30:06.400
One of the concerns that the court had at the initial
636
00:30:07.380 --> 00:30:10.410
decision in adjutant was the opportunity
637
00:30:10.410 --> 00:30:14.573
for arguments to devolve into an examination
638
00:30:14.573 --> 00:30:17.250
of collateral events, and that the Commonwealth
639
00:30:17.250 --> 00:30:21.690
made clear at the time of the trial, there was a full intent
640
00:30:21.690 --> 00:30:25.320
to bring in more evidence of specific acts
641
00:30:25.320 --> 00:30:27.060
of violence on behalf of the defendant
642
00:30:27.060 --> 00:30:29.490
and co-defendant as rebuttal evidence
643
00:30:29.490 --> 00:30:31.950
that was never fully reached and never fully discussed
644
00:30:31.950 --> 00:30:36.270
because the defendant's adjutant evidence never came in.
645
00:30:36.270 --> 00:30:40.020
But I would say that the direction based, you know,
646
00:30:40.020 --> 00:30:43.860
a reading of the transcript, a reading of the facts
647
00:30:43.860 --> 00:30:46.890
of this case makes it clear that there is a good chance
648
00:30:46.890 --> 00:30:49.200
this would've devolved into a trial within a trial,
649
00:30:49.200 --> 00:30:51.392
for lack of a better phrase.
650
00:30:51.392 --> 00:30:52.740
Can I move to the misleading of a police-
651
00:30:52.740 --> 00:30:53.690
Oh, one question.
652
00:30:54.720 --> 00:30:56.970
You don't, Camacho is your best case,
653
00:30:56.970 --> 00:30:58.740
but you don't talk about it at all.
654
00:30:58.740 --> 00:31:00.873
Do you wanna take a shot at saying that,
655
00:31:01.740 --> 00:31:03.680
explain to us why Camacho would support
656
00:31:03.680 --> 00:31:06.535
the judge's decision here.
657
00:31:06.535 --> 00:31:11.493
Can you explain factually why it's similar to this?
658
00:31:12.334 --> 00:31:17.160
Well, at the outset, the easiest similarity
659
00:31:17.160 --> 00:31:20.290
between Camacho and this case is that, in both cases,
660
00:31:20.290 --> 00:31:22.803
there was no question about who started the fight.
661
00:31:23.761 --> 00:31:27.510
The question in this case came in the context
662
00:31:27.510 --> 00:31:31.646
of who escalated and in Camacho that was less of an issue
663
00:31:31.646 --> 00:31:33.960
than it was here.
664
00:31:33.960 --> 00:31:37.230
But similar to Camacho, there were periods of disengagement
665
00:31:37.230 --> 00:31:41.520
and reengagement as there were alleged to be in this case.
666
00:31:41.520 --> 00:31:43.826
But in the footnote, Camacho,
667
00:31:43.826 --> 00:31:46.340
where we say we don't apply it,
668
00:31:46.340 --> 00:31:49.480
we're not gonna extend action in this case,
669
00:31:49.480 --> 00:31:52.290
we're clearly drawing some kind of distinction.
670
00:31:52.290 --> 00:31:54.330
You wanna argue why it helps you
671
00:31:54.330 --> 00:31:59.230
because your factual argument seems incredibly weak
672
00:32:01.184 --> 00:32:04.404
and you're not taking on the legal argument.
673
00:32:04.404 --> 00:32:09.404
The issue in Camacho where there are multiple,
674
00:32:10.490 --> 00:32:12.060
for lack of a better phrase,
675
00:32:12.060 --> 00:32:13.950
I'm sorry, moving parts,
676
00:32:13.950 --> 00:32:16.320
is something that the court makes very clear.
677
00:32:16.320 --> 00:32:19.060
These end up becoming very collateral
678
00:32:19.905 --> 00:32:24.905
and they are of minimal relevance to making a determination
679
00:32:27.090 --> 00:32:29.700
about who took what actions.
680
00:32:29.700 --> 00:32:33.049
I think the language that the court ultimately uses
681
00:32:33.049 --> 00:32:36.660
is that the primary question for the jury was not
682
00:32:36.660 --> 00:32:39.540
who began the altercation or escalated it to deadly force,
683
00:32:39.540 --> 00:32:41.520
but rather whether the defendant is legally entitled
684
00:32:41.520 --> 00:32:43.323
to use the force that he used.
685
00:32:44.328 --> 00:32:46.785
And I would say in this case,
686
00:32:46.785 --> 00:32:49.500
it is similar in that regard.
687
00:32:49.500 --> 00:32:52.454
Ultimately the question for the jury was less about
688
00:32:52.454 --> 00:32:55.162
who started it and whether or not whether
689
00:32:55.162 --> 00:32:58.020
the actions taken by the-
690
00:32:58.020 --> 00:33:02.993
Can I ask you, just to clarify, Camacho, the victim
691
00:33:04.050 --> 00:33:08.100
did no part in the fight, right,
692
00:33:08.100 --> 00:33:09.750
had no part in the fight?
693
00:33:09.750 --> 00:33:10.583
Yes.
694
00:33:10.583 --> 00:33:14.486
Right, and here the victim was part and parcel
695
00:33:14.486 --> 00:33:15.510
of the fight?
696
00:33:15.510 --> 00:33:16.343
Yes.
697
00:33:16.343 --> 00:33:18.783
Okay, so that seems to be a difference-
698
00:33:21.234 --> 00:33:23.692
That is a not insignificant difference.
699
00:33:23.692 --> 00:33:25.890
I think the parallel comes more from the fact
700
00:33:25.890 --> 00:33:29.610
that the defendant in that case sought to introduce evidence
701
00:33:29.610 --> 00:33:34.118
of prior specific instances of violence on behalf
702
00:33:34.118 --> 00:33:37.890
of individuals who are not the victim
703
00:33:37.890 --> 00:33:42.435
to justify the actions that were ultimately taken.
704
00:33:42.435 --> 00:33:45.860
And in that way I would say that concern
705
00:33:45.860 --> 00:33:48.477
that you're going to start bringing in
706
00:33:48.477 --> 00:33:52.214
and expanding to things that are really ancillary,
707
00:33:52.214 --> 00:33:57.066
I would say, in that way does sort of parallel this case.
708
00:33:57.066 --> 00:34:00.979
Can you go over the fact, the timing of when
709
00:34:00.979 --> 00:34:04.015
the police knew what about the knife
710
00:34:04.015 --> 00:34:06.813
and the discarding of the knife at the beach?
711
00:34:07.890 --> 00:34:11.223
Sure, happy to do my best, but I do see my time as well.
712
00:34:12.363 --> 00:34:15.270
So during the initial interview
713
00:34:15.270 --> 00:34:16.530
that the police had with the defendant,
714
00:34:16.530 --> 00:34:19.835
which took place, I believe, between,
715
00:34:19.835 --> 00:34:23.340
I wanna say 7:30-ish in the morning,
716
00:34:23.340 --> 00:34:25.730
7:50-ish in the morning,
717
00:34:25.730 --> 00:34:29.970
the defendant denied going down to the beach
718
00:34:29.970 --> 00:34:30.900
or the ocean.
719
00:34:30.900 --> 00:34:34.170
And at that time did the police know that
720
00:34:34.170 --> 00:34:35.490
in fact he did.
721
00:34:35.490 --> 00:34:37.680
The police knew that a person matching
722
00:34:37.680 --> 00:34:40.140
the defendant's description had been down at the beach.
723
00:34:40.140 --> 00:34:41.880
I apologize off the top of my head,
724
00:34:41.880 --> 00:34:46.410
I can't remember if they had specifically identified
725
00:34:46.410 --> 00:34:48.240
the defendant as the individual.
726
00:34:48.240 --> 00:34:52.476
But what is known is that they did not identify what,
727
00:34:52.476 --> 00:34:55.950
they did not know exactly what he had done at the beach.
728
00:34:55.950 --> 00:34:58.260
It looked like he had thrown something into the water,
729
00:34:58.260 --> 00:35:00.240
but whether he actually had done so
730
00:35:00.240 --> 00:35:02.430
and what he may have thrown into the water
731
00:35:02.430 --> 00:35:04.500
was still not yet known.
732
00:35:04.500 --> 00:35:06.780
And did the defendant make any statements
733
00:35:06.780 --> 00:35:10.890
about the object, the knife?
734
00:35:10.890 --> 00:35:13.578
Once shown a picture of the knife,
735
00:35:13.578 --> 00:35:14.420
he said, that's my knife.
736
00:35:14.420 --> 00:35:17.070
He did admit that that knife belonged to him.
737
00:35:17.070 --> 00:35:19.560
What was the misleading part, sorry?
738
00:35:19.560 --> 00:35:21.300
The misleading part would've been when he said,
739
00:35:21.300 --> 00:35:22.530
I didn't go down to the ocean.
740
00:35:22.530 --> 00:35:23.760
I wasn't anywhere around.
741
00:35:23.760 --> 00:35:26.310
But at that time they knew he had been at the ocean.
742
00:35:26.310 --> 00:35:28.800
They knew someone matching his description had been
743
00:35:28.800 --> 00:35:31.440
down at the ocean and had thrown something into the water.
744
00:35:31.440 --> 00:35:34.770
But that denial of even being present there
745
00:35:34.770 --> 00:35:37.200
was clearly intended to lead the police in a,
746
00:35:37.200 --> 00:35:38.190
oh, it wasn't me.
747
00:35:38.190 --> 00:35:41.010
So anything you're looking for is not gonna be related.
748
00:35:41.010 --> 00:35:43.260
Can we just go to exactly what he said?
749
00:35:43.260 --> 00:35:46.320
So in the interview he repeatedly said
750
00:35:46.320 --> 00:35:48.450
that he was, quote, sauced up,
751
00:35:48.450 --> 00:35:51.634
and repeatedly denied memory of the entire period
752
00:35:51.634 --> 00:35:54.540
of time and that it occurred numerous times.
753
00:35:54.540 --> 00:35:57.997
And then they asked, "Did you go to the water tonight?
754
00:35:57.997 --> 00:36:00.997
"Did you go down by the water to the ocean at all?"
755
00:36:00.997 --> 00:36:02.047
"Down by the ocean, yeah."
756
00:36:02.047 --> 00:36:02.880
"Down by the ocean?"
757
00:36:02.880 --> 00:36:04.147
"Down by the ocean, no.
758
00:36:04.147 --> 00:36:06.187
"The beach or anything like that?"
759
00:36:06.187 --> 00:36:07.417
"I don't remember."
760
00:36:07.417 --> 00:36:08.437
"You don't remember?"
761
00:36:08.437 --> 00:36:09.757
"I don't think so.
762
00:36:09.757 --> 00:36:11.190
"I don't think so."
763
00:36:11.190 --> 00:36:13.200
So he is pressed
764
00:36:13.200 --> 00:36:14.987
and he says, I don't remember.
765
00:36:14.987 --> 00:36:18.067
I don't think so, I don't think so.
766
00:36:18.067 --> 00:36:19.327
At one point he does say,
767
00:36:19.327 --> 00:36:21.780
"Down by the ocean, down by the ocean, no."
768
00:36:21.780 --> 00:36:25.920
So what is your best case for the proposition
769
00:36:25.920 --> 00:36:30.300
that just denying a police accusation in this manner
770
00:36:30.300 --> 00:36:31.710
where you're sort of pressed
771
00:36:31.710 --> 00:36:33.900
and you say, I don't remember, I don't remember,
772
00:36:33.900 --> 00:36:38.380
I don't think so, counts as willfully misleading
773
00:36:38.380 --> 00:36:41.700
a police officer in a way that,
774
00:36:41.700 --> 00:36:44.253
I forget the exact language of the statute,
775
00:36:45.202 --> 00:36:48.104
that willfully with the intent to impede,
776
00:36:48.104 --> 00:36:52.531
obstruct, delay, and so forth an investigation?
777
00:36:52.531 --> 00:36:56.400
I would say the best case probably is Paquette,
778
00:36:56.400 --> 00:36:59.043
which is 475 Mass. 793.
779
00:36:59.970 --> 00:37:02.580
Specifically if you look at page 798,
780
00:37:02.580 --> 00:37:04.500
it discusses that the definition of mislead
781
00:37:04.500 --> 00:37:08.437
includes knowingly making a false statement, which yes,
782
00:37:08.437 --> 00:37:13.437
is a broad category, but the defendant's actions
783
00:37:15.630 --> 00:37:18.363
in this case do fall under that umbrella.
784
00:37:20.100 --> 00:37:24.330
Equivocations aside, he does at times make very clear
785
00:37:24.330 --> 00:37:25.590
it's not me, I wasn't there.
786
00:37:25.590 --> 00:37:27.330
Well, could we put the equivocations aside?
787
00:37:27.330 --> 00:37:30.870
Like where would you say is the most unequivocal
788
00:37:30.870 --> 00:37:32.163
false statement here?
789
00:37:35.418 --> 00:37:38.400
Sorry, bear with me. Lemme get to the page.
790
00:37:38.400 --> 00:37:42.843
It's R65, is the part that I was quoting.
791
00:37:45.180 --> 00:37:46.013
It's embarrassing.
792
00:37:46.013 --> 00:37:47.934
My computer is now being difficult.
793
00:37:47.934 --> 00:37:49.080
It's decided right now is the time
794
00:37:49.080 --> 00:37:50.580
it wants to gimme a hard time.
795
00:37:59.460 --> 00:38:03.755
I would say the unequivocal no in his first response,
796
00:38:03.755 --> 00:38:07.743
the initial statement that I did not go down to the ocean.
797
00:38:10.620 --> 00:38:13.110
You know, he does then say, well, I don't remember,
798
00:38:13.110 --> 00:38:16.380
but his initial response is, no, it wasn't me.
799
00:38:16.380 --> 00:38:17.213
I wasn't there.
800
00:38:17.213 --> 00:38:19.140
So I would say that's probably the strongest statement
801
00:38:19.140 --> 00:38:20.719
for the misleading.
802
00:38:20.719 --> 00:38:23.323
Can I ask about the, are you done, sorry.
803
00:38:23.323 --> 00:38:25.123
Can I ask about the lesser included?
804
00:38:27.202 --> 00:38:32.030
There's not, the different stabbings
805
00:38:32.030 --> 00:38:35.747
and beatings are not separately identified counts.
806
00:38:36.907 --> 00:38:40.845
How can we save these things individually based
807
00:38:40.845 --> 00:38:42.963
on the fact there are multiple incidents
808
00:38:42.963 --> 00:38:46.254
when the jury is not instructed,
809
00:38:46.254 --> 00:38:50.595
nor is the defendant charged specifically?
810
00:38:50.595 --> 00:38:52.320
I would say that the testimony
811
00:38:52.320 --> 00:38:55.170
of the doctors in the case did sort
812
00:38:55.170 --> 00:38:57.030
of make clear that there were different-
813
00:38:57.030 --> 00:39:00.513
But the jury doesn't, the jury is directed to that.
814
00:39:01.380 --> 00:39:04.173
Don't we have to find these are lesser included?
815
00:39:06.720 --> 00:39:07.553
Potentially.
816
00:39:07.553 --> 00:39:09.270
It's the Commonwealth's position that there was enough
817
00:39:09.270 --> 00:39:13.410
of a distinction that a jury could understand, you know,
818
00:39:13.410 --> 00:39:16.740
different instances, different potential avenues.
819
00:39:16.740 --> 00:39:20.970
Was it argued that way in closing?
820
00:39:20.970 --> 00:39:23.173
Not as clearly as it could have been,
821
00:39:23.173 --> 00:39:27.740
but I would say that to direct your attention to volume 11
822
00:39:27.740 --> 00:39:31.543
of the transcript, I believe page 69, the parties do
823
00:39:31.543 --> 00:39:33.930
during the motion for required finding of not guilty
824
00:39:33.930 --> 00:39:36.905
touch upon the issue of duplicitousness.
825
00:39:36.905 --> 00:39:41.460
And they do appear to not quite come to a consensus,
826
00:39:41.460 --> 00:39:43.260
but acknowledge that there are multiple avenues
827
00:39:43.260 --> 00:39:47.820
to reach the convictions that, on the charges
828
00:39:47.820 --> 00:39:49.083
that the defendants face.
829
00:39:50.942 --> 00:39:53.340
In the closing, the prosecutor doesn't walk
830
00:39:53.340 --> 00:39:55.806
through the different ones, right?
831
00:39:55.806 --> 00:39:59.032
There's no attempt to differentiate (indistinct).
832
00:39:59.032 --> 00:40:01.230
Not to my memory, I don't think it's,
833
00:40:01.230 --> 00:40:03.180
there's a clear walkthrough in closing.