-: SJC Docket No. 13599, Commonwealth vs Shondell Rateree.
-: Okay, Attorney Dahlberg.
-: Good morning, may it please the court.
Nancy Dahlberg for Shondell Rateree.
Before I proceed, I just wanna indicate that I,
for the sake of clarity,
because this can be a confusing fact pattern,
I will consistent, with my brief use the last names
of individuals, no disrespect intended to any individual.
I am asking that the court vacate all
of the convictions in this case except count 12,
misleading the police,
and ask the court to enter not guilty on that count.
This case presents the kind of factual scenario
for which the rule in adjutant in its progeny
was developed, where self-defense, and we argue here,
defense of another, and I will just,
without trying to confuse the court,
indicate that the Commonwealth has assumed that defense
of another applies here in this case,
where self-defense and defense of another
are asserted by the defendant,
and there is a dispute as to who escalated a conflict
with the use of deadly force,
evidence that an alleged victim
was a first aggressor initiating
prior acts of violence, even if unknown
to the defendant can help the jury determine
the truth of what happened.
Evidence that Griffith was the first aggressor
with a knife in a prior incident
was occluded by the judge here,
and that exclusion was prejudicial error
requiring a new trial.
Here everyone agreed that there was a melee
among four people that lasted a very short time.
However, there was a dispute as to who initiated the use
of deadly force with a knife.
All four participants sustained injuries.
Griffith said he had no knife
and that Rateree was the aggressor.
But Rateree said that Griffith had a knife.
Speaker: Can I ask you a question?
-: Yes.
-: One of the reasons,
or one of the bases that we relied upon in expanding
the rule that is now the adjutant rule,
was the fact that there,
all the federal courts allowed that kind
of propensity evidence in, I think it was 45 out
of the 50 states also allowed it in for the self-defense.
Have you done
or do you know whether the federal courts
do allow this kind of propensity evidence in
for defense of another and/or the states?
-: So the majority of states do not have the adjutant rule.
The majority of states like the federal government,
and there is a footnote in adjutant,
and actually in the brief I can point you to,
but they allow propensity evidence as to reputation,
not as specific acts of violence.
-: Right. So that's a different question.
The question I had is for the sort of basic proposition
of allowing propensity evidence regardless of its reputation
or specific acts.
Speaker: Yes.
-: In adjutant, it seemed that one
of the persuasive things that,
one of the things that was persuasive to the court
was the fact that the states had actually already
gone that way, as had the federal government.
-: So United States versus Kaiser, which is cited by adjutant
and which is cited in the brief includes defense of another.
Now that's-
Speaker: And is that the only case that you're aware of?
-: You know, there are not very many cases
of defense of another, so yes, I don't have other cases
that talk about that.
But there are remarkably few cases
that involve defense of another, generally.
-: Can I ask you to explore the differences
between self-defense
and defense of another vis-a-vis the adjutant rule?
Because in a straightforward self-defense,
we're looking to see who the first aggressor was,
was it the victim or the defendant.
Now we get defense of another
and it's a third person, of course,
the other being thrown into the mix
and it becomes, it seems to me, a bit more convoluted
because we're looking at perceptions of, is it,
who was the first aggressor on whose perception?
Is it the person who was the other
or is it somewhat perceived by the defendant
or how does that work and how would you compare the two?
-: Well, if I may talk about this specific case,
I would say the evidence is the same on defense
of another and self-defense.
-: I'm just wondering about the rule though,
because the more it gets, the more we move from self-defense
to defense of another and a different person
is put into the mix,
does the propensity argument
and does it become somewhat more convoluted
and confusing to a jury?
-: Well, I can spin out some hypotheticals if you don't
want me to talk about this specific case.
Speaker: No, no, please.
-: Well, in this-
Speaker: Answer it how you want to.
-: Alright, let me start with this specific case.
In this specific case, the evidence was the same.
Ms. Rateree saw, according to his statement,
heard Griffith stabbing his co-defendant,
and for the sake of clarity today, I will say co-defendant,
that is Mr. Rios-Figueroa.
But because I have difficulty with that name,
I'm going to say co-defendant.
So he hears him stabbing,
he hears the co-defendant yelling out,
and at that time, this melee, which people,
the testimony is people are right on top
of each other, caused him to fear for his own life
and for his co-defendants.
And he says that in his statement.
So in that case, the situation is the same.
The first aggressor is Griffiths
and causes concern about self, raises the defense
of self-defense in defense of another.
If Your Honor is discussing a situation,
and so I think the court can certainly say in this scenario,
defense of another clearly applies
-: Because we have the footnote in the case
that says this only applies, doesn't apply to self-defense,
the defense of another.
I know you dispute that,
but there's at least a footnote that says that.
-: There is a footnote in Camacho that says, we are not going
to extend the rule to defense of another in this case.
-: Right, and I'm just wondering what the logic is,
and is it because it becomes more convoluted when we move
from self-defense to defense than another?
-: Well, I-
-: Therefore more confusing to the jury.
-: And I would just say that Camacho didn't raise the issue.
And so I think that the statement there was dictum
and also limited by, in this case.
I would say that there is no additional, oh, I'm sorry.
Speaker: But it does raise the issue of Camacho.
It's just, it distinguishes it on the facts, doesn't it?
-: Camacho is not about,
there was no dispute in Camacho about who initiated force.
It was the defendant shot a gun into the crowd.
There was absolutely no evidence of a dispute,
as to dispute as to first aggressor.
So it appears that that was dictum, and actually,
I reviewed the briefs in that case.
The only mention, there was no argument on either side.
There was just an assertion that it should apply.
So I would say that truly this court is not bound by that
and there is no reasoned argument for that.
And I would also, but I do wanna,
I don't know if I answered Justice Gaziano's question,
so I don't wanna, is that what-
Speaker: I was just trying to understand
what happened in Camacho before you (indistinct).
-: In defense of another,
there really are two different assaults.
One is the assault between the victim
and in the third party, correct?
Then there's the attack
or self-defense by defendant against victim.
So I just want to explore how,
how this adjutant issue applies to this scenario.
-: So to the current scenario, I would say that they're,
the two are linked just as they are sort
of inextricably tied in case law.
As to a hypothetical where someone was across the street
and had had an argument
and then there was someone else attacking a third party,
I think it'd still be applicable,
but remember that adjutant evidence is within
the discretion of the judge.
Here, the judge abuse that discretion
because he thought he couldn't exercise it.
He did not understand for some reason the language of the,
of Rateree's statement,
which I don't really frankly understand.
I think it's pretty clear
that Griffiths was the first aggressor
and that was corroborated
by the statement of the co-defendant.
But I think that that, your question, Your Honor,
I think it should be, I'm asking the court
to rule that it's admissible,
but certainly within the discretion of the trial court,
and perhaps they see in that situation it didn't fall,
it didn't justify admission.
-: Here, if adjuvant is a discretionary doctrine, which I,
which it is, as you stated,
and the judge here exercised his discretion
to exclude the prior act,
even though self-defense was also a defense in the trial,
even if we were to agree with you that the doctrine
adjutant should be extended to defense of another cases,
how would that affect the outcome in this case?
Because we know that the judge excluded the evidence
as a discretionary matter,
even though self-defense was a defense.
-: So the judge was prepared to admit the evidence.
He indicated that clearly, he said it was relevant
and temporarily related.
He decided later that the record did not indicate
that Griffith was, that there was evidence
that Griffith was the first aggressor
and that was in dispute.
That is indisputably wrong.
And I think what happened here, and the reason it's error
and abuse of discretion is that the judge did not recognize
that he had the ability to admit it
because he did not recognize the dispute.
So I would-
-: But how can we reconcile that with the fact
that he gave a self-defense instruction,
because he gave a self defense instruction,
which would only make sense if there was evidence
that Griffiths was the first aggressor.
-: I agree with you, Your Honor.
It's inconsistent and another indication that he was wrong.
-: Well, perhaps he just,
perhaps we're giving too much weight
to what he said when he said there was no evidence.
Because clearly by the time the instruction comes along,
he's thinking there is sufficient evidence
to support giving the instruction to the jury.
-: For most of the jury, and if, for much of the transcript,
he's very clear that he's going to admit it.
And then one day he looks at the transcript
of Rateree's statement and says,
Well, I don't see where the dispute is.
And the, you know, the defense attorney knows that
there's a dispute.
He says, This is what happened, and I, you know,
I have that in the brief,
but for some reason the judge didn't recognize it
and that was error.
But I agree that it's a real inconsistency
with his instruction, and so-
-: In your view, since it is a discretionary decision,
what are the factors
that should be taken into account when the judge
is exercising that discretion?
-: Well, I think that's laid out in adjutant in its progeny
Here, he considered prejudice versus probity,
and the Commonwealth argued against the admission
of the Griffiths evidence, 'cause he said
it was very prejudicial to their case,
which is what supports our argument
that the exclusion was very prejudicial to Rateree.
So prejudicial versus probative, relevance,
and temporarily related.
And then the issue is how much of it comes in?
That's a discretionary matter for the judge.
But the judge actually exercised discretion appropriately
until he got to a reading of the transcript that,
at that time, just escaped him.
-: He doesn't exercise discretion here, right.
He says, if someone's gonna extend adjutant to defense
of another, it has to be the SJC.
He can't do it.
So he doesn't do it.
He doesn't exercise-
-: No, as to defense of another, absolutely, Your Honor.
I think as to self-defense,
it was an error in the exercised expression.
And as to defense of another, he was unwilling
to indicate that it applied, and yes,
and he pointed to, of course, the SJC on that issue.
Justice WAHL-UH-HOH-JEN, did I answer your question?
Speaker: You did. Thank you.
-: Okay, thank you.
Are there any other questions on that issue
or should I carry on and, oh, I don't have a lot
-: And misleading and, 'cause i had a little trouble
following your arguing on timing.
It's the first time they interview your client,
it's at seven o'clock in the morning.
They haven't discovered the gun on the beach yet
at that point.
So isn't he misleading the police when he says,
I didn't go to the beach?
-: He said, I don't, I believe he said,
"I don't think I went there."
But to go back for a minute, the Commonwealth
has to prove that,
let me just get the language here.
The Commonwealth has to prove that he caused,
caused the police to pursue a course
of investigation material different from the course
they would have, could have, did or could have.
The Commonwealth failed to prove this
because they knew at three o'clock in the morning
that he threw the knife into the water.
That was on, that was in real time on the video.
And they have not proven that they could
have been misled by that.
-: They know it's him at three o'clock in the morning?
-: The police officer who saw this in real time said,
they already had the description of the his car.
They said that, and he had already gotten the BOLO.
-: I haven't seen this video,
but is this video clear that it's him and his car
or is it gonna be one of these grainy videos
that we always get
-: The Yarmouth police officer who testified indicated
that he got the BOLO, the car looked like a silver,
a light car, and the man looked like a black man.
This was the definition, this was the description
that came over the BOLO.
-: He says he didn't go to the beach,
and yet, that level of detail,
he's not misleading the police because-
Nancy: He said, "I don't think-"
-: 'Cause a black man was driving
a gray car to the beach?
-: I think if they, they knew it was what had happened
because they sent the police there in the morning
to go retrieve it from the ocean.
But they had a BOLO go out just before 3:00 AM,
and at 3:02, they see in real time someone matching that.
That's why he immediately contacted the Barnstable police
with the information.
-: So are you saying that when the defendant
made the misstatement to the police, they already,
those particular officers already knew
that he had discarded the knife?
-: They certainly have not proven otherwise,
and it's the burden of proving.
They had all the information
to show that they had and that they had proffered
no evidence that they could have been misled.
I would like to just say his misstatements,
I say, were equivocations and they're distinguished
from the kinds of statements that in,
as I described in the brief.
-: The only case you cite though is the case
where the person eats the drugs in front of the cops.
Are there any places more like this
where the statements are misleading but the cops are?
-: So I would definitely, I would distinguish the two cases
that I have in the reply brief
that the Commonwealth relies on,
both cases in which the police did not know the truth
of a situation at the time
that they were doing in their investigation
and found out later.
And so there aren't again a lot of cases in this area,
but the ones that are relied upon are different.
-: Counsel, I wanna ask about what our inquiry is here.
We have previously just to quote the Paquette case
that you cite in your brief, that the test is whether these
are lies that reasonably could lead investigators
to pursue a material, a different course of investigation.
So that sounds like an objective inquiry about the nature
of the defendant's statement.
Is it of the kind that reasonably could lead investigators
to pursue material, a different course of investigation?
You have briefed this as a question of whether,
given what the officer's subjectively knew at that time,
whether or not those officers, in fact,
could be misled, which is it?
-: The Commonwealth has to show
that they could have been misled,
and I was, here, there they have not presented
the evidence that they could have been misled.
In addition, I would just go back to the,
in terms of the equivocations that I don't know,
that is actually not considered a misstatement
under the case law.
Did I answer your question, Justice?
-: So is it one or the other or is it both?
So what, if a person who's the subject of an investigation
tells a blatant lie to an officer
that could mislead them,
for example, Oh, I saw who did it,
it was John Jones,
but that officer subjectively knows that actually the person
who says that did it, does that not satisfy the statute
because the officer couldn't be misled?
-: I think if he, if the officer knows at the time
then he could not have been, then he cannot be misled.
-: So that people have an ability to lie to police officers
as long as those police officers have information
that would counter the lie.
-: Well, if they know that it's information
that would not, and of course,
it's the Commonwealth's burden.
If they have information that could not mislead them
because they know the truth, then it's not the crime
of intimidation of a witness/misleading a police officer.
That's what I would say.
Dewar: Okay, thank you.
-: Thank you very much.
-: Attorney El Khoury.
-: Good morning, may it please the court.
Rose-Ellen El Khoury for the Cape and Islands
district attorney's office in the Commonwealth.
The Commonwealth contends the trial judge's denial
of the defendant's motion
to admit first aggressor evidence pursuant
to Commonwealth versus Adjutant 443 Mass 649-2005
was an appropriate exercise of his discretion.
Whether to admit evidence
of prior violent incidents instigated by the victim
of a crime is, quote,
"Always subject to the broad discretion afforded
"to the trial judge."
-: But here, the judge didn't, the judge read our footnote
and said, I don't have the discretion.
-: That's correct, and the Commonwealth,
although in our brief we do treat arguendo
defense of another as if it were self-defense,
just for the purposes of the argument,
does maintain that it was not an abuse of discretion
for the judge to decline to unilaterally-
-: Well let me ask you, what's the distinction
between defense of another,
and self-defense such that we should
have different attitude roles?
-: I would say that the distinction boils down
to the complications and a fact pattern.
With self-defense, the threat is clearly
an immediate threat.
An individual is responding to the overt acts of,
supposedly, a victim who is an aggressor.
Whereas, for defense of another,
that is inherently less immediately clear.
It's a perceived threat and attack.
Now granted, where deadly violence is involved,
that does become a little bit more straightforward.
If you have one person who's wielding a weapon
and one who doesn't,
there is a much clearer disparity there for a third party.
But I would say that the distinctions
come in terms of the complication.
-: If that's the case though,
why shouldn't the defendant have the benefit
of the evidence, the adjutant evidence?
-: In this particular case, I would say
that the defendant should not have the benefit of it
because neither defendant, or the co-defendant in this case,
ever admitted to utilizing deadly force in any way.
You know, the defendant is very specific in his language
when he talks about self-defense
or when he talks about what he did,
he says, maybe I hit him.
He clearly, you know, watching the video there,
there are moments where he gesticulates in a way
that indicates stabbing.
He knows the difference between stabbing and hitting.
He knows when he says hitting, what he's saying.
There is no indication on his part
or on the part of the co-defendant that either
of them used a knife at any time during this altercation.
-: But if we, when we're analyzing whether you get
an instruction, we look at the facts
in a light most favorable to the defendant,
not to the (indistinct).
We look at these facts in a light most favorable
to the defendant.
It's clear that there's two knives in place here.
-: It's absolutely, and for an instruction that is correct,
but this is not an instruction,
this is the admission of evidence, where this is less clear.
This is not going to assist the jury in understanding
the circumstances of this fight.
It is just going to add layers of confusion.
-: But correct me, I thought the lens we look at on adjutant
is still in the light most favorable to the defendant.
-: It was my understanding that it still boils down
at the end of the day to the discretion of the judge.
-: Right.
But it's the discretion of the judge
after they analyzed the evidence
that's been probably introduced in the light most favorable
to the defendant.
-: And looking at it in that light from the beginning,
the judge made very clear that this incident,
he felt, was proper adjutant evidence
if it was warranted by the situation.
But given the way the case developed, given the evidence
that was put forth, it was not appropriate
to put in adjutant evidence
where neither defendant was at all indicating.
-: But that's not necessarily square
with the defendant's statements, right.
Because you know, when you, when you listen
or when you read the defendant's statements to the police,
he talks about this, it's not long,
but there is a break between his involvement in the melee
and then having an opportunity to look at
what his co-defendant and the other two involved.
And he very distinctly says, you know,
that the woman was on top of him
and he was being called out for by his co-defendant,
and not only called out for, but saying,
"He's poking me, he's sticking me."
So isn't the factual circumstances here in the light
most favorable to the defendant there?
-: In the light most favorable to the defendant,
I would say yes.
I would, however say that again,
it doesn't quite reach there.
I genuinely think that where neither defendant is willing
to make any sort of statement saying,
this is the level of force with which
we addressed this situation, that-
-: So we needed Rateree to say,
So I then got this knife and stabbed the victim
because I had to do that in order to defend.
We need to finish the other part of the equal sign.
-: I would say yes.
I would say if you look at the other cases
in the adjutant line,
there aren't any that I'm aware of.
And admittedly, my knowledge is not completely extensive.
-: I don't really understand that, Counsel.
Why does the defendant have to admit
using the knife when the evidence red in the light
most favorable to him in terms of the adjutant analysis
suggests that he did,
that we know that he discarded a knife,
we know that the victim was stabbed multiple times.
There were two knives used in the incident.
Why wouldn't all of that evidence
suggest that the adjutant analysis
would favor giving, allowing the propensity evidence?
-: I would say because actually these post scenarios
similar to the one that we have right now,
where a defendant makes equivocal statements
and refuses to, for lack of a better phrase,
take ownership of the self-defense
or defense of another that they engaged in,
and now comes afterwards saying, well,
but I think that where a defendant does not
indicate in any way that they participated in the-
-: Well he admits he participated in the melee.
He just says, I was helping my friend,
he was on the ground being stabbed.
He does, but when he's not admitting
to utilizing the same degree of force that allegedly
was used by multiple parties in the fight-
-: What's your best case for that,
that the defendant has to admit using deadly force?
-: I would actually say that I think the fact pattern
in Chambers is very illuminating.
I think it does a good job of showing a defendant who,
there was a struggle over that knife
and the defendant says, I don't know if I, you know,
twisted it and stabbed it.
You know, he gives conflicting accounts.
But he does say that yes, there was a knife,
I did try to take control of it.
I did take these actions
that did result in this stabbing.
Here, neither defendant says that they took
any actions that resulted in anybody's stabbing.
-: This seems a little weird to me because,
but otherwise I think your argument sounds,
your argument sounds to me as though you're saying
the defendant needs to admit
to the crime with which he's been charged
by the government in order to have the benefit
of the defense or the adjutant evidence.
-: I can understand that interpretation.
It's my thought that the purpose of adjutant,
self-defense is, to a degree,
an admission of committing the crime
of which one is accused.
But it's saying that this crime
that I committed was justified
because of these circumstances.
-: That's never been the law that a defendant
has to admit or get on a witness stand
to get a self-defense.
You can have, you can raise self-defense
through ancillary evidence
that does not involve any admissions
of misconduct by a defendant, correct?
-: Yes, but where the argument I feel was that this,
you know, the defendant never had a knife in his hand.
I don't think that the judge-
-: The issue is whether the facts
and circumstances give rise to a light most favorable
to the defendant of self-defense,
and now the issue is whether or not facts and circumstances
and a light most favorable to the defendant give rise
to an adjutant, admission of adjutant evidence.
-: I'm not gonna disagree with your honor on the-
-: Well we're trying to flesh this out
because on the one hand it sounds like
you want it both ways,
because on the one hand you seem to be suggesting
that the defendant has to make this allocution in order
to get the benefit of it.
But on the other side, we don't get
to take anything into the fact that you charged him
with misleading the police for throwing away a knife.
So you are charging him consistent with that he
used something in this,
but yet on the other hand, you're saying,
but we don't know whether he actually used anything in this.
-: I wouldn't say that I'm saying we don't know
whether he used anything in this.
Clearly from the Commonwealth's position, it's very clear
who used certain utensils during this-
-: So why does he have to admit it?
-: I would say that that is, to a degree,
what self-defense required, particularly in a case like this
where the issue is not of who the first aggressor
of the actual entire fight was,
but it's who initiated the escalation,
where the issue is escalation
and where neither the defendant
nor the co-defendant wants to be anywhere near an admission
to participating in an escalated level of violence.
I would say that in that case,
how do you reach that they acted in defense of another
in a way that resulted in the results that we have?
-: But wouldn't, in that case, this be the kind
of an evident case where adjutant evidence
would actually be really helpful to the jury?
-: In this case, in this particular case, it's my position
that it would not.
One of the concerns that the court had at the initial
decision in adjutant was the opportunity
for arguments to devolve into an examination
of collateral events, and that the Commonwealth
made clear at the time of the trial, there was a full intent
to bring in more evidence of specific acts
of violence on behalf of the defendant
and co-defendant as rebuttal evidence
that was never fully reached and never fully discussed
because the defendant's adjutant evidence never came in.
But I would say that the direction based, you know,
a reading of the transcript, a reading of the facts
of this case makes it clear that there is a good chance
this would've devolved into a trial within a trial,
for lack of a better phrase.
-: Can I move to the misleading of a police-
-: Oh, one question.
-: You don't, Camacho is your best case,
but you don't talk about it at all.
Do you wanna take a shot at saying that,
explain to us why Camacho would support
the judge's decision here.
Can you explain factually why it's similar to this?
-: Well, at the outset, the easiest similarity
between Camacho and this case is that, in both cases,
there was no question about who started the fight.
The question in this case came in the context
of who escalated and in Camacho that was less of an issue
than it was here.
But similar to Camacho, there were periods of disengagement
and reengagement as there were alleged to be in this case.
-: But in the footnote, Camacho,
where we say we don't apply it,
we're not gonna extend action in this case,
we're clearly drawing some kind of distinction.
You wanna argue why it helps you
because your factual argument seems incredibly weak
and you're not taking on the legal argument.
-: The issue in Camacho where there are multiple,
for lack of a better phrase,
I'm sorry, moving parts,
is something that the court makes very clear.
These end up becoming very collateral
and they are of minimal relevance to making a determination
about who took what actions.
I think the language that the court ultimately uses
is that the primary question for the jury was not
who began the altercation or escalated it to deadly force,
but rather whether the defendant is legally entitled
to use the force that he used.
And I would say in this case,
it is similar in that regard.
Ultimately the question for the jury was less about
who started it and whether or not whether
the actions taken by the-
-: Can I ask you, just to clarify, Camacho, the victim
did no part in the fight, right,
had no part in the fight?
-: Yes.
-: Right, and here the victim was part and parcel
of the fight?
-: Yes.
-: Okay, so that seems to be a difference-
-: That is a not insignificant difference.
I think the parallel comes more from the fact
that the defendant in that case sought to introduce evidence
of prior specific instances of violence on behalf
of individuals who are not the victim
to justify the actions that were ultimately taken.
And in that way I would say that concern
that you're going to start bringing in
and expanding to things that are really ancillary,
I would say, in that way does sort of parallel this case.
-: Can you go over the fact, the timing of when
the police knew what about the knife
and the discarding of the knife at the beach?
-: Sure, happy to do my best, but I do see my time as well.
So during the initial interview
that the police had with the defendant,
which took place, I believe, between,
I wanna say 7:30-ish in the morning,
7:50-ish in the morning,
the defendant denied going down to the beach
or the ocean.
Speaker: And at that time did the police know that
in fact he did.
-: The police knew that a person matching
the defendant's description had been down at the beach.
I apologize off the top of my head,
I can't remember if they had specifically identified
the defendant as the individual.
But what is known is that they did not identify what,
they did not know exactly what he had done at the beach.
It looked like he had thrown something into the water,
but whether he actually had done so
and what he may have thrown into the water
was still not yet known.
-: And did the defendant make any statements
about the object, the knife?
-: Once shown a picture of the knife,
he said, that's my knife.
He did admit that that knife belonged to him.
-: What was the misleading part, sorry?
-: The misleading part would've been when he said,
I didn't go down to the ocean.
I wasn't anywhere around.
-: But at that time they knew he had been at the ocean.
-: They knew someone matching his description had been
down at the ocean and had thrown something into the water.
But that denial of even being present there
was clearly intended to lead the police in a,
oh, it wasn't me.
So anything you're looking for is not gonna be related.
-: Can we just go to exactly what he said?
So in the interview he repeatedly said
that he was, quote, sauced up,
and repeatedly denied memory of the entire period
of time and that it occurred numerous times.
And then they asked, "Did you go to the water tonight?
"Did you go down by the water to the ocean at all?"
"Down by the ocean, yeah."
"Down by the ocean?"
"Down by the ocean, no.
"The beach or anything like that?"
"I don't remember."
"You don't remember?"
"I don't think so.
"I don't think so."
So he is pressed
and he says, I don't remember.
I don't think so, I don't think so.
At one point he does say,
"Down by the ocean, down by the ocean, no."
So what is your best case for the proposition
that just denying a police accusation in this manner
where you're sort of pressed
and you say, I don't remember, I don't remember,
I don't think so, counts as willfully misleading
a police officer in a way that,
I forget the exact language of the statute,
that willfully with the intent to impede,
obstruct, delay, and so forth an investigation?
-: I would say the best case probably is Paquette,
which is 475 Mass. 793.
Specifically if you look at page 798,
it discusses that the definition of mislead
includes knowingly making a false statement, which yes,
is a broad category, but the defendant's actions
in this case do fall under that umbrella.
Equivocations aside, he does at times make very clear
it's not me, I wasn't there.
-: Well, could we put the equivocations aside?
Like where would you say is the most unequivocal
false statement here?
-: Sorry, bear with me. Lemme get to the page.
-: It's R65, is the part that I was quoting.
-: It's embarrassing.
My computer is now being difficult.
It's decided right now is the time
it wants to gimme a hard time.
I would say the unequivocal no in his first response,
the initial statement that I did not go down to the ocean.
You know, he does then say, well, I don't remember,
but his initial response is, no, it wasn't me.
I wasn't there.
So I would say that's probably the strongest statement
for the misleading.
-: Can I ask about the, are you done, sorry.
Can I ask about the lesser included?
There's not, the different stabbings
and beatings are not separately identified counts.
How can we save these things individually based
on the fact there are multiple incidents
when the jury is not instructed,
nor is the defendant charged specifically?
-: I would say that the testimony
of the doctors in the case did sort
of make clear that there were different-
-: But the jury doesn't, the jury is directed to that.
Don't we have to find these are lesser included?
-: Potentially.
It's the Commonwealth's position that there was enough
of a distinction that a jury could understand, you know,
different instances, different potential avenues.
-: Was it argued that way in closing?
-: Not as clearly as it could have been,
but I would say that to direct your attention to volume 11
of the transcript, I believe page 69, the parties do
during the motion for required finding of not guilty
touch upon the issue of duplicitousness.
And they do appear to not quite come to a consensus,
but acknowledge that there are multiple avenues
to reach the convictions that, on the charges
that the defendants face.
-: In the closing, the prosecutor doesn't walk
through the different ones, right?
There's no attempt to differentiate (indistinct).
-: Not to my memory, I don't think it's,
there's a clear walkthrough in closing.